593 / 822
GAZETTE
OCTOBER 1988
The applicant was suspended from duty.
A n investigation was carried out and the
applicant was dismissed at its conclusion.
The Court noted that the first investigation
into the complaints by the Supervisor would
not have resulted in action in the nature of
a suspension.
The Board's case for dismissal was that
the applicant was lucky to have been re-
instated after his dismissal in February and
t h at f o l l o w i ng the i n c i d e nt w i t h his
Supervisor and the complaints from the
nurses his dismissal w as a u t oma t i c,
particularly having regard to the warning
about future conduct w h i ch he received
w h en he was re-instated in March.
The Court considered that the reasons for
the dismissal were more complex than those
stated by the respondents. It took the view
that the clash between the applicant and his
Supervisor had a significant bearing on the
dismissal.
H e l d That the dismissal of the applicant
was not wholly for the misconduct alleged
by the Board; that w h en such matters were
not relied upon to justify the dimissal or
tested to establish whether reliance upon
any of them was justified the Court was not
prepared to hold that the misconduct alleged
was the whole or main reason for the
dismissal as is required by section 6(1) of the
Unfair Dismissals Act 1977; that the
dismissal of the aplicant was consequently
unfair.
Locke -v- Southern Health Board (per Barron
J) 5 November
1987 -
Unreported
DECLAN MADDEN
LOCAL GOVERNMENT (PLANNING &
DEVELOPMENT) ACT 1963 - 1983
RIGHT OF OBJECTOR TO RECEIVE
I NFORMAT I ON FROM AN BORD
PLEANALA
Monarch Properties Ltd. applied for planning
permission for housing at Carriglea Park,
Dun Laoghaire adjoining the Sefton Estates.
Their plans envisaged a roadway from
Carriglea Estate through Sefton Estates and
on to Rochestown Avenue. The application
by Monarch was opposed by the Sefton
Residents A s s o c i a t i o n, of w h i c h the
prosecutrix w as C h a i r w oma n. On 26
September 1985 Dublin County Council
refused the application.
Monarch appealed the decision of the
Planning Authority to A n Bord Pleanala on
2 2 October 1985. By letter dated 19
November 1985 they set out 'the detailed
grounds of the appeal'. That letter was not
c i r c u l a t ed to t he S e f t on R e s i d e n ts
Association but they became aware of the
appeal and a Planning Consultant retained
by the Association, Mr. Brian Meehan,
applied to the Board for a copy of the
grounds and was furnished w i th them. In a
lengthy memorandum to the Board dated
1 9 th D e c e m b er
1 9 85 Mr.
M e e h an
c omme n t ed in detail on w h at he described
as 'the brief grounds of appeal' submitted
by Monarch and contended that those
grounds of appeal 'represent a rather
simplistic and inaccurate interpretation of
the planning situation wh i ch pertains to this
particular area'. By letter dated 13 February
1986 Monarch made additional submissions
in relation to the grounds of appeal and again
that letter was not circulated by the Board
to the Sefton Residents Association nor did
they become aware of its contents until after
the determination of the appeal. The
Association did receive a copy of a letter
dated 13 April 1986 written on behalf of the
Residents of Ardmore Park Dun Laoghaire
w h o were supporting the appeal by Monarch
Properties Limited and Mr. Meehan made a
short and he said, inadequate response, by
letter to the Board. In an affidavit Mr.
Meehan set out the lengthy submission
w h i ch he would have made in response to
the additional submissions made on behalf
of Monarch had he been aware of them. On
7 May 1986 A n Bord Pleanala granted
permission for the development of the
Carriglea Estate.
The prosecutrix obtained a conditional
Order of Certiorari to quash the decision of
7 May 1986 on the grounds that the Board
had purported to adjudicate on the appeal
without (a) furnishing all submissions made
on behalf of Monarch to the prosecutrix so
as to enable her to make submissions in
relation thereto and (b) in purporting to
adjudicate on the appeal brought by
Monarch w i t h o ut first ensuring that all
interested parties had an opportunity of
making submissions and representations
relevant to their considerations including
p r o s e c u t r i x. The Co u rt r e v i e w ed the
obligations of the Board under paragraph 38
of the Local Government (Planning &
Development) Regulations 1977 and noted
that on the face of it an objector w h o se
objection had been upheld and accordingly
had no cause to appeal did not fall within
the definition of 'a party to an appeal'
withing the meaning of paragraph 35(2) and
accordingly was not a person w h o was
entitled under paragraph 4 0 to be given
copies of observations made in writing to the
Board by persons w h o were parties to the
appeal. The Court noted that the contention
that there was no right to object in advance
to the granting of a planning permission and
that the only right was to appeal a decision
was rejected by the Supreme Court in the
case of the
State (Stanford & Ors) -v- Dun
Laoghaire Corporation & Others
(unreported,
2 0 February 1981) and that the argument
that a successful objector had no
locus
standi
to challenge a planning permission
granted contrary to the principles of
Constitution and natural justice was rejected
in
Law -v- the Minister for Local
Government
and Traditional Homes Ltd.
High Court (per
Deale J., 3 0 May 1974 unreported.) The
Court took the view that if an objector had
a right to maintain a case in the Civil courts
that objector should have an equal right in
justice to be heard as a respondent or notice
party in the case of an appeal to an Bord
Pleanala and referred to the case of the
State
(Coras
iompair
Eireann)
and An
Bord
Pleanala
(Supreme Court, 12 December
1984) where the Court appeared to take the
view that a successful objector wo u ld be
entitled to be a party to an appeal to An Bord
Pleanala. The Court noted that Coras lompair
Eireann were in a special position because
A r t i c le 6 5 of t he 1 9 77 Re g u l a t i o ns
designated t h em as a 'public authority' for
the purpose of Section 5 of the Local
Government (Planning & Development) Act
1976 and that the Board were bound to
maintain as the Supreme Court held 'an
informed liaison' w i th Coras lompair Eireann.
The Court noted that there was a lacuna in
the procedure dealing w i th appeals since
Section 18 of the Local Go v e r nme nt
(Planning & D e v e l o pme n t) A ct 1 9 83
conferred on An Bord Pleanala the right
where they are of opinion that any document
particulars or other information is necessary
for the purpose of enabling it to determine
an appeal to serve notice 'on any person w ho
is a party to the appeal or to any other
person w h o has made submissions or
observations to the Board as regards the
Appeal'. The 1977 Regulations did not deal
w i th the category of persons w h o had made
submissions or observations to the Board as
regards that Appeal but w ho were not
'parties to the Appeal'. The Court took the
view that this additional category of persons
did have rights and entitled to an appropriate
degree of protection in accordance w i th fair
procedures guaranteed by the Constitution.
The Court then reviewed the facts of the
present case and noted that the presecutrix
had received the Notice of Appeal and 'the
detailed grounds for appeal' and was able
to arrange for the Planning Consultants to
m a ke d e t a i l ed o b s e r v a t i o ns on t he
submissions already m a da In addition the
Planning Consultant had submitted further
observations arising out of the submission
made by the Ardmore Park Residents and
that the real complaint was that neither the
p r o s e c u t r ix nor her e x p e r ts had an
opportunity of commenting on the reply or
further submission by the Developer of 13
February 1986. The Court held that the
essence of natural justice was that it
required the application of broad principles
of commonsense and fair play to a given set
of circumstances in which a person is acting
judicially.
Wh at wo u ld be required must vary w i th
the circumstances of the case. At one end
of the spectrum it would be sufficient to
afford a party the right to make informal
observations and at the other constitutional
justice might dictate that a party concerned
should have the right to be provided w i th
legal aid and to cross examine witnesses
supporting against him. The Court had no
doubt that on an appeal to the Planning
Board - that the requirements of natural
justice fell within the rights of the objector
rather as distinct from a developer exercising
property rights, and that this flowed from the
nature of the interest w h i ch was being
protected, the number of possible objectors,
the nature of the function exercised by the
Planning Board and the limited criteria by
which appeals are required to be judged and
the practical fact that in any proceedings
whether oral or otherwise there must be
finality. The Court held that the real
substance of the objectors case was before
A n Bord Pleanala and duly considered by it.
The Court went on to say that it did not
accept any general proposition that An Bord
Pleanala could discharge its obligation to an
interested party by delivering part only of the
Applicants submissions to any person
entitled to receive the same, but that in the
present case the requirements of natural
justice had been met.
The State (Paula Haverty)
-v- An
Bord
Pleanala. High Court (per Murphy J.) 17 July
1987 - 11988) ILRM 545.
JOHN F. BUCKLEY
vii