The Gazette 1975

While the number of applications for planning per- mission tends to fluctuate in proportion to the general- level of economic activity, in Ireland the number of appeals has in fact continued to grow at an alarming rate, and so has the cost of dealing with them. As lawyers you will readily understand this if I draw an analogy with the work of the Courts. If the Higher Courts were to work on different criteria than the Lower or were permitted to give capricious decisions without assigning reasons, one could expect every decision to give rise to an appeal. Likewise, if two-thirds of those convicted by the Lower Courts were declared innocent on hppeal, then one would appeal in every case. Yet this is more or less precisely the position which obtains with the "quasi-judicial" proceedings, known as Plannjng Appeals. One wonders that you, gentlemen, as lawyers do not rise up and object to the use of the term "quasi-judicial" in this context. Has the Incorporated Law Society addressed itself to the question of whether its members should brief Counsel to plead at such "quasi-judicial" hear- »ngs, where the "quasi-judge" does not attend, is not permitted to accept recommendations from his representative, and is not bound to relate his decision to the Development Plan or to the evidence presented? It does the term of "judicial" no honour that such proceedings should be described as "quasi- Judicial". 2. The concept of planning under which the com- munity, and members of the community, have a right to influence the use an owner can make of his property arises from new attitudes to private property, new attitudes to society and an emerging understanding of individual and collective responsi- bility towards future generations. The resultant modification of absolute ownership is widely accepted by the body politic to-day. It tends, however, to be at variance with Irish Case Law and indeed with the attitude to Property enshrined in Article 43 of our Constitution less than forty years ago. We must look to the members of the Incorporated Law Society to belp find a legislative way out of the immediate problem which this poses or alternatively to propose Constitutiona Amendments to resolve the dichotomy m the longer term. 3. The Planning Bill currently before the Dail continues to enshrine the principle of public partici- pation in planning but Section 17 as currently drafted " have the effect, in practice, of precluding the public from participating. If Section 17 is adopted m its present form, every appellant will be faced with the possibility of an open-ended award against him, n ° t alone of the legal costs of other parties but of a ny figures the Appeal Board chooses to state as its °wn costs plus any "other expenses occasioned to another party in relation to the appeal". This last could include the loss of profits suffered by a developer during the period taken by the Appeal board to consider the matter.

The inclusion of the right of the Board at its absolute discretion to award itself costs is contrary to the best traditions of Irish Law and will almost certainly give rise to unnecessary costly litigation. The capacity to award the other expenses is in fact discriminatory. Section 17 as it is drafted is loaded heavily against the community and its environ- ment. Developers, who stand to gain by successful appeals, can afford the risk of having to pay the environmentalists' costs on the occasions when they lose. There is no possibility of a financial gain for those who appeal with the interests of the environ- ment at heart, although there is the possibility that, on occasion, they may have their costs awarded to them. The concept of the Board "not acceding the substance to the appellants grounds of appeal" is also loaded against the conservationists. For the developer the decision will tend to be an open and shut one. Either he gets his permission or he doesn't. For those whose objective is to defendd the environment even a minor change in conditions may well be of great importance. While the conservationist can only hope to claim his costs, the developer can, as the Bill is drafted, claim his costs "or other expenses occasioned to him in relation to the appeal". As the Bill is worded a third party group, "even if it be a prescribed body" can only be awarded its costs or expenses when it is opposing the Planning Authority's decision. It cannot be awarded costs or expenses when it is supporting the Planning Authority. This is surely not a desirable situation. I have been told by Departmental Officials that this is not what is intended, and that only the costs directly related to the conduct of the appeal will be awarded. If this is what is intended, then surely this is what the legislation should say! It has been argued that the Bill merely transfers tc a Planning Appeals Board the authority previously vested in the Minister and that the situation has not proven unsatisfactory in the past. There are however three vital differences. 1. The Bill gives the Planning Board powers not previously vested in the Minister. 2. The Minister had to answer to the Dail and ultimately to the electorate for the way in which he used his discretionary powers. The Planning Appeals Board will not be thus answerable. 3. The Planning Board will have entirely new and adequate pro- visions for dealing with vexatious or ill-founded appeals under Section 16 of the Act. This gives the Board an alternative solution to a potential problem which was not available to the Minister in the past— thus sharply reducing the need for the proposed provisions of Section 17. In view of the serious erosion of individual rights which Section 17 involves and in view of its obvious divergence from the better tradition of Irish Law, An Taisce would urge the Incorporated Law Society to consider Section 17 of the Bill and make representa- tions to the Ministers for Justice and for Local Government with a view to having it omitted or verv drastically amended.

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