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1. This is an application brought pursuant to leave for Judicial Review in the form of an Order of Certiorari, a number of Declarations and an Order of Mandamus requiring the Respondent to consider a particular planning appeal in accordance with law.

Leave was granted on grounds (e) A-J in the Applicant's grounding statement but essentially the grounds can be reduced to three and they are as follows:-

1. It was stated in the decision of the Respondent dismissing the Applicant's appeal that the intended development consisting of a proposed shopping centre and retail warehousing would contravene materially an objective set out in the current development plan. It had, however, been accepted by all parties at the time of the oral hearing before the Respondent's inspector that the development plan had been amended on 12 October, 1998 so as to accommodate the proposed development.

2. The decision of the Respondent dated 24 February, 1999 in setting out reasons for refusal of the permission referred specifically to regard having been taken to the terms of the Local Government (Planning and Development) General Policy Directive, 1982 (SI No 264 of 1982). The Applicant argues that at the time of the decision that directive had been revoked and that there was no saving provision in the statutory instrument itself or in the parent Act or in the Interpretation Act which kept the directive alive for the purposes of this appeal.

3. The Respondent's inspector had taken the view that the application for permission could be severed and that while permission for part of the development should be refused, permission for a different part ought to be granted. The Respondent, however, decided that the application was for one integrated development and that it should be treated as such by the Respondent with the result that permission was refused for the entire development. It is argued on behalf of the Applicant that this decision was irrational and wrong in law.

The Respondent delivered a Statement of Opposition in which it admitted the first ground for relief but disputed the two other grounds. The Respondent was willing to pay the Applicant the costs of the Judicial Review proceedings up to the date of the Respondent's admission provided that the proceedings were then discontinued. There would of course be an Order of Certiorari and the matter would be referred back to the Board. The Applicant, however, wanted the other two points decided also and it was accepted that on risk as to costs the application would proceed on that basis.

I turn now therefore to considering the point raised by the Applicant in relation to the 1982 Statutory Instrument. That directive was made by the Minister for the Environment on August, 1982 in pursuance of powers conferred on the Minister by Section 7 of the Local Government (Planning and Development) Act, 1982. It laid down guidelines in relation to planning applications in respect of retail shopping developments. On 9 June, 1998 the Minister for the Environment and Local Government made a new replacement statutory instrument entitled the Local Government (Planning and Development) General Policy Directive (Shopping), 1998 (SI No 193 of 1998). Paragraph 1 of this new directive provided at sub-paragraphs (b) and (c) as follows:-

"(b) This directive shall come into operation on the 10 June, 1998, and

(c) this directive replaces the Local Government (Planning and Development) General Policy Directive, 1982."

Traditionally, statutory instruments have tended to be called either "Regulations" or an "Order" and the standard word used for repealing them is "revoke". That is indeed the word used in the Interpretation Act, 1937. However, none of these expressions are terms of art and it is accepted by everybody that both the 1982 and the 1998 Directives are statutory instruments. I am equally satisfied that once the 1998 Directive became operative the 1982 Directive stood revoked. That is the only meaning that can be given to the word "replaces". This however still begs some questions to which I will return. It is first necessary to give a little factual background as to how this problem arises. The Applicant was originally apprehensive that the Respondent would regard as operative and apply the 1998 Directive to the Applicant's application, notwithstanding that that directive was made long after the application was lodged. Apart from any ambiguity in interpretation of the 1998 application, it was argued strongly by the Applicant that the directive would have to be regarded as unreasonable and void if it was to have the effect of applying to any application lodged before the directive was made. This point appears to have been conceded by the Respondent and it was accepted by the Respondent that the 1998 Directive did not apply. However, the Respondent then took the view that as a consequence the 1982 Directive did apply. The Applicant however is now arguing that neither directive applied. The Applicant claims that the 1982 Directive stood revoked on 10 June, 1998, the date on which the 1998 Directive became operative and that there is no saving provision. This of course creates an absurd situation which would never have been intended by the Minister for the Environment and Local Government. But the Applicant's case is that this has arisen due possibly to faulty draughtsmanship but that this Court would be bound to hold that neither statutory instrument applied to the determination of this appeal.

Any Court would be reluctant to hold with the Applicant this point if it could be avoided. It is therefore necessary to examine each of the possible escape routes invoked by the Respondent. There is a possible simple approach to the matter. In view of the fact that the 1998 Directive uses the word "replaces", it might be argued that unless it is in operation in relation to any particular application then no replacement has taken place and the 1982 Directive continues to apply. Although that argument is obviously very attractive, I have come to the conclusion that I must reject it. The scheme of the 1998 Directive is clearly that it should come into operation on the day after the directive was made or in other words on 1O June, 1998. The replacement occurs on that day. It would be to misconstrue the 1998 Directive to suggest that replacements can take place on different days depending on whether the 1998 Directive applies to particular applications or not. I think that the only interpretation of the 1998 Directive which is open to me to make is that there was a complete replacement on 10 June, 1998. If I am right in that view then the 1982 Directive stood revoked on that date.

It is now necessary to consider whether, notwithstanding the revocation, it might have continued to apply to this application pursuant to provisions in the Interpretation Act, 1937. The first possible provision which could apply is Section 19(2) of the 1937 Act. That sub-section reads as follows:-

"Where an instrument made wholly or partly under an Act of the Oireachtas revokes the whole or a portion of a previous statutory instrument (whether made wholly or partly under such Act or under another statute) and substitutes other provisions for the instrument or portion of an instrument so revoked, the instrument or portion of an instrument so revoked shall, unless the contrary is expressly provided in the revoking instrument, continue in force until the said substituted provisions come into operation."

I think that that sub-section is quite clearly dealing with new statutory instruments which contain provisions for the entire statutory instrument or different parts of it to come into operation on future dates but which also includes a provision revoking an earlier statutory instrument. All that sub-section is doing is to ensure that the revoked statutory instrument for which the new statutory instrument is a replacement, shall continue to apply either in whole or in part until the relevant provisions in the new instrument are brought into force. If I am right in that interpretation the sub-section is of no assistance to the Respondent in this case. It is dealing with a different situation.

The next provision in the Interpretation Act which the Respondent invokes is Section 22(1)(b). The relevant provision reads as follows:-

"Where an instrument made wholly or partly under an Act of the Oireachtas revokes the whole or a portion of a previous statutory instrument, then, unless the contrary intention appears, such revocation shall not affect the previous operation of the statutory instrument or portion of a statutory instrument so revoked or anything duly done or suffered thereunder."

This provision appears to me to be of no assistance to the Respondent either. It is dealing only with the "previous operation" of the statutory instrument. In other words, in a case where say the 1982 Statutory Instrument was in force at the time of a decision made by the planning authority but revoked at the time the decision on appeal by the Board there would be no question of the decision of the planning authority being rendered void thereby avoiding the subsequent appeal procedure. Anything previously done under the revoked statutory instrument remains lawful. But that is of no help whatsoever to the Respondent because the Respondent tried to apply the statutory instrument subsequent to its revocation.

The last argument made at the hearing by Counsel for the Respondent is based on Section 22(1)(e) of the Interpretation Act, 1937. That provision reads as follows:-

"Where an instrument made wholly or partly under an Act of the Oireachtas revokes the whole or a portion of a previous statutory instrument, then, unless the contrary intention appears, such revocation shall not prejudice or affect any legal proceedings, civil or criminal pending at the time of such revocation in respect of any such right, privilege, obligation, liability, offence, or contravention as aforesaid."

For the purposes of this case it is not necessary for me to express any view as to whether in any instance civil legal proceedings can include proceedings before tribunals or bodies other than Courts. In the context of the reference to criminal proceedings it seems likely that the paragraph is intended to cover Court proceedings only. But even if that is not so, I am quite satisfied that it does not cover an appeal before the Respondent. Effectively, the Supreme Court has so held in McKone Estates Limited v Dublin County Council, [1995] 2 ILRM 283. It was held in that case that planning procedures are part of the administrative system of the State and are not part of the judicial system. Planning authorities and An Bord Pleanala do not constitute Courts. Accordingly, an application for planning permission is not a legal proceeding within the meaning of Section 22(1)(c) of the 1937 Act. Blayney J who delivered the only judgment in the McKeon case specifically states in his judgment that An Bord Pleanala is not a Court. This was in the context of the interpretation of this very provision of the Interpretation Act.

However strange it may seem therefore, I have come to the conclusion that the Applicant's argument that neither the 1982 Directive nor the 1998 Directive was in force in relation to this appeal is correct. However, when as it must, this matter goes back to the Respondent for reconsideration and re-determination, the Board does not have to act "in blinkers". In other words, it does not have to approach its decision on the artificial assumption that neither of the statutory instruments has ever existed and that it had never heard of them. It is entitled to note both the existence and the terms of each of the statutory instruments and to further take note that due to a lacuna almost certainly unintended, neither directive is binding on the Board. But the Board is perfectly entitled to take the view that the 1982 Directive was only revoked in the context of a substituted directive with more extensive provisions and that those provisions which are common to both directives represent ministerial and therefore, in a sense, public policy. It would, in my view, be both reasonable and appropriate that the Board should pay due regard to that public policy. It would not be absolutely bound by it and certainly if it took the view that that public policy was against good planning it should ignore it. But if it considered that the policy common to both directives was a reasonable approach to planning then as a Board acting reasonably and carrying out its functions properly it should pay due regard and respect to that policy.

The third ground on which the Applicant is seeking to impugn the decision of the Board is in my view unsustainable, especially having regard to O'Keeffe v An Bord Pleanala [1992] ILRM 237. It is true that the inspector recommended severance but the Board itself could in no way be bound by that decision. The Respondent was entitled not to consider the remaining elements of the Applicant's proposed development having made a decision to refuse planning permission for the retail aspects of the proposal on the grounds of proper planning and development. The application for permission had been in an integrated form and it was for one particular development. I cannot see how the Respondent was acting either irrationally or illegally in deciding so to treat the application. The Applicant therefore would not be entitled to Certiorari on that particular ground.

In summary, therefore, there are two grounds on which the Applicant is entitled to Certiorari and the matter will be remitted to An Bord Pleanala for re-determination. All aspects of the appeal should be reconsidered by the Board once the matter is returned to it.