The Gazette 1988

GAZETTE

OCTOBER 1988

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. Bord Pleanala. High Court (per Murphy J.) 17 July 1987 - 11988) ILRM 545. The State (Paula Haverty) -v- An

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

JOHN F. BUCKLEY

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