The Gazette 1974

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 100