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null, void and
ultra vires.
When the defendants applied
to Dun Laoghaire Corporation for housing development
at Hackettsland, their application was opposed by the
plaintiff. Permission subject to conditions was granted
in the first instance by that Corporation on 20 April
1971 and the plaintiff duly appealed against that deci-
sion on 4 May 1971, requesting an oral hearing. This
oral hearing was duly directed, and held before a
Departmental Inspector named Mr. X, in April 1972;
the plaintiff and the defendants duly called witnesses
at this hearing. Mr. X made a written report on 9 May
1972 and a copy of the report and of the Ministerial
decision were presented to the High Court.
The main submissions made on behalf of the plaintiff
were as follows :
(1) Th at the Minister, in exercising the right to
decide an appeal from the decision of the planning
authority in accordance with Section 26 (5) of the
Planning Act, 1963, is performing a function of a
judicial nature.
(2) In performing functions of a judicial nature the
Minister must act in accordance with the principles of
Natural Justice by (a) acting only on the evidence which
lias been made known to the other party and giving that
party an opportunity of refuting it; and (b) making
findings of fact or raising inferences from facts which
are duly supported by evidence.
(3) A corollary to this is that the Court must set aside
the Minister's decision if the Court finds that the Minis-
ter has not complied with (1) and (2) above.
(4) A further corollary is that, as the Minister does
not need to have any reasons for decisions under the
Planning Act, if the Inspector's report contains evidence
which was not made known to the plaintiff, then the
Court must presume that the Minister acted upon that
evidence until the contrary is proved.
In
Murphy v. Dublin Corporation—
(1972)
I.R. 215
—a clear expression of view was held by the Supreme
Court as to the control which the Courts are bound to
exercise in proceedings so close to that of the Minister
under the Planning Act, 1963, as to be a binding prece-
dent for this case. At page 238, Walsh J. examines the
functions of the Inspector as follows: "By statute the
Minister is the one who has to decide the matter, not
the Inspector. In doing so, the Minister must act judi-
cially and within the bounds of constitutional justice.
. . . Insofar as the conduct of the inquiry is concerned,
the Inspector is acting as recorder for the Minister. . . .
If the Inspector's report takes the form of a document,
then it must contain an account of all the essentials of
the proceedings over which he presided. It is no part of
his function to arrive at any conclusion. If the Minister
is influenced in his decision by the opinions or the
conclusions of the Inspector, the Minister's decision will
be open to review. It may be quashed and set aside if it
is shown to be based on materials other than those dis-
closed at the public hearing." There is no distinction in
principle between the procedure under the Housing
Acts in Murphy's case, and the procedure under the
Planning Acts in this case.
It is first asserted on behalf of the plaintiff that there
was no evidence contained in the report of the public
hearing to support the contention that the development
proposed would not, by reason of the demand made
upon it by the existing sewerage facilities and the in-
adequacy of those facilities, cause pollution on the sea-
shore at Killiney. It is then argued that, without a
finding based on such evidence, pollution would
not be caused, the Minister could not make a valid
decision under the Planning Acts to grant the requisite
permission. Finlay J. stated he was not concerned with
the weight of evidence produced at the inquiry, either
for or against any particular issue arising there. It is
therefore only necessary to seek in the report evidence
upon which the Minister could conclude that the devel-
opment for which permission was being sought could
be carried out without polluting the adjoining area;
the defendant's architect stated he had visited the site
about twenty times, and had often walked on the fore-
shore, and on no occasion had he seen any evidence of
pollution, or been conscious of any undue smell. In
reaching any decision with regard to sewerage and
pollution the Minister would be concerned not only
with the existing situation but with the probable future
development or expansion of sewerage facilities in the
area. On the facts submitted, there was evidence at the
public hearing upon which the Minister was entitled to
reach a decision that pollution could and would he
avoided. This first contention must therefore fail.
Secondly, it is asserted that in two instances the report
of Mr. X contains a reference to facts and evidence
which was not presented at the oral hearing, and which
must be presumed to be based on materials other than
those disclosed at the public hearing.
The first instance reads as follows: "It has been
clearly accepted at the oral hearing that the works are
overloaded. It has also been suggested that new provi-
sions for sewerage disposal are imminent. I have dis-
cussed this with our own sanitary inspectors, and indeed
have made inquiries with the relevant local authority-
There is no doubt that the works are now coping with
a vastly greater load than originally envisaged." 1 he
plaintiff contends that this constitutes the relating by
the Inspector of some discussion he had outside the
public oral hearing with local authority officials. In
reality this cannot be said to constitute any fact upon
which the Minister might act or which might influence
his opinion.
The second instance reads: "I have recently and
carefully walked along the line of the river and the
foreshore for about half a mile, and can state that I
have seen no evidence of raw excreta present. Both the
stream and the river do indicate substantial discolour-
ation and there is evidence in the river . . . which
appears to be organic debris." This undoubtedly con-
stitutes a statement of fact by Mr. X of the result of a
visual observation by him of the area in respect of
which the issue with regard to pollution and sewerage
arose. There is no indication that this visit nor these
observations were disclosed by the Inspector at the
public hearing.
Prima facie
therefore this falls within
the definition of material not disclosed at the hearing.
Professor Fitzgerald, as an expert witness for the
plaintiff, had stated that there were signs of raw sewer-
age and of rubbish along the beach—but this was
rebutted by the architect for the defendants. There was
thus a direct conflict of fact in regard to this question-
Counsel for defendants contend that by virtue of Sec-
tion 82 (5) of the Planning Act, 1963, there is a direct
statutory power in the person directed to hold the oral
hearing to visit the site. It was merely a statutory
endorsement of his right to have so visited it to report
the result of that visit to the Minister. Unlike the
arbitrator under the Acquisition of Land (Assessment of
Compensation) Act, 1919, referred to in
The
State
(Hegarty)
v. Winters—(
1956)
I.R. 320—the Inspector
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