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UNREPORTED IRISH CASES
In a planning appeal, the Minister, in giving his deci-
sion, must act strictly and impartially upon the
evidence tendered at the oral hearing before the
inspector, and upon no extraneous matters.
The Minister made a decision on 23 October 1972
under the Planning and Development Act, 1963,
whereby the plaintiff, a solicitor, was refused outline
planning permission in respect of certain lands, her
property. On 3 October 1969 the plaintiff sought under
Section 26 of the 1963 Act from Dublin Co. Council
outline planning permission for a housing development
on her lands at Fosterstown North. The plaintiff's
application was refused on 28 November 1969 for the
reasons that: (1) Development of housing in the area
would result in extensive additional traffic on an over-
burdened main road; (2) No water supply or sewerage
facilities are available; (3) The proposed development
is accordingly premature; (4) The proposed develop-
ment would interfere with the proper development and
operation of Dublin Airport; (5) The occupants of any
houses erected would suffer severe loss of amenities due
to persistent aircraft noise. The plaintiff, in appealing,
asked for an oral hearing, which was held before an
inspector on 14 January 1972. The Ministers refusal,
made by his Parliamentary Secretary, to entertain the
appeal was conveyed on 23 October 1972 and in it the
Minister relied heavily on grounds (2) and (5).
At the time of the oral hearing, there was in exis-
tence a County Dublin Draft Plan, and this had to be
considered by the Councillors. In the Draft Plan, the
plaintiff's lands were zoned for agricultural purposes
only, but in October 1970 a resolution had been passed
by the Planning Committee of the Council stating that
these lands were to be zoned for residential purposes
only. After the oral hearing, on 11 February 1971, the
Council passed a resolution zoning these lands for
residential purposes; this resolution was taken against
the advice of the planning officers, who were indignant.
The inspector made his report on 25 March 1971
and deals with the submissions and evidence tendered
at the oral hearing. He then gives an account of his
own inspection of the lands in question, and deals with
the position of the site in relation to sewerage facilities
and road access. The total area is 11} acres, of which
about half has been zoned for residential purposes.
The inspector objects to the inclusion for residential
development of part of the site, because of its location
on an important flight path of Dublin Airport, and
because of the inevitable noise problem. The application
should be refused because (1) the site is located on a
flight path of Dublin Airport; (2) the residents would
suffer loss of amenity due to aircraft noise; (3) there are
no proper sewerage facilities. Marginal notes were
made by a senior officer of planning in Local Govern-
ment to the following effect : (1) omit; (2) do not use;
(3) add traffic hazard. The inspector's report is part of
document 137. In document B. 11 the senior officer of
planning sent a long cross-examining memorandum to
the inspector; the inspector duly replied in document
B. 12. There was also a long report from a Mr. Stringer
containing strong condemnation of the County Council
resolution of 11 February 1971. In reply to queries by
the Parliamentary Secretary, the inspector in document
B. 17 submitted a detailed report of his objection in
relation to sewerage facilities. Eventually the plaintiff's
appeal was refused by the Parliamentary Secretary, who
in this case was discharging functions of a judicial
nature.
In
Murphy v Dublin Corporation
(1972) I.R. at page
238, Walsh J. said : "By statute, the Minister is the one
who has to decide the matter—not the inspector. In
doing so the Minister must act judicially and within
the bounds of constitutional justice . . . The inspector is
acting as the recorder of the Minister, and should con-
vey to him a fair and accurate account of what tran-
spires. The Minister should make his decision on this
material alone. If the Minister is influenced by the
Inspector, his decision will be open to review and may
be quashed. It follows that if the Inspector does recom-
mend or advise it must be related strictly to matters
arising at the hearing, and, in arriving at a decision,
the Minister must be unfettered by any advice given
by the inspector." Here the plaintiff's appeal was
treated from the very beginning as a departmental
matter within Local Government. Instead of the
inspector holding an oral hearing, and reporting the
result thereof directly to the Minister as the designated
person, this report became the subject of a file in the
planning officer's section. Furthermore, the chief officer
made his own recommendation that permission he
refused for reasons stated on an order already drafted.
Worse still, it appears that observations were added to
the inspector's report which indicated that there was no
free and untramelled communication between the
inspector and the Minister. Furthermore, details as to
the sewerage scheme which were not in the report were
also tendered. The inspector in his report not merely
contained an account of the evidence, but also an
account of his own inspection of the lands, and his
personal observations in relation to matters dealt with
at the hearing. It follows that the decision of the
Parliamentary Secretary acting for the Minister could
not have been made on the basis of material and evid-
ence adduced at the oral hearing.
This case illustrates the impracticability of attempting
to process through a Department of State the exercise
of a judicial function conferred by statute on the head
of that Department. Such a function must be dis-
charged by the holder of that office personally, and not
with the assistance or upon the advice of persons not
contemplated by the statute.
The plaintiff is accordingly entitled to succeed and
the declaration will be granted.
[Susan Geraghty v Minister for Local Government
(No. 2); O'Higgins J.; unreported; 12 July 1974.]
Declaration under Minerals Development Act, 1940,
pan t ed to plaintiffs that Minister's Order is
invalid, because it does not specify in detail the
nature, situation and extent of the acquired
minerals.
The defendant, Patrick Wright, was owner in fee
simple of lands at Nevinstown, Navan. By agreement
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