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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kenny v. An Bord Pleanala (No. 1) [2000] IEHC 146; [2001] 1 IR 565 (15th December, 2000)
URL: http://www.bailii.org/ie/cases/IEHC/2000/146.html
Cite as: [2001] 1 IR 565, [2000] IEHC 146

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Kenny v. An Bord Pleanála (No. 1) [2000] IEHC 146; [2001] 1 IR 565 (15th December, 2000)

THE HIGH COURT
JUDICIAL REVIEW
2000 No. 532 JR
BETWEEN
JAMES KENNY
APPLICANT
AND
AN BORD PLEANALA
RESPONDENT
AND
DARTRY AND DISTRICT PRESERVATION ASSOCIATION, MATT CROTTY, THE PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESS OF DUBLIN
NOTICE PARTIES

JUDGMENT of McKechnie J. delivered the 15th day of December, 2000
  1. This is an application made pursuant to Section 82(3A) of the Local Government (Planning and Development) Act 1963, seeking leave to apply by way of an application for Judicial Review, for certain reliefs, which, if successful, would result in a specified decision of An Bord Pleanala to grant a planning permission being declared invalid and ultra vires . That permission, granted to the third named Notice Party (Trinity College) authorised a development, of approximately 25,000 square metres in area, comprising inter alia three new buildings ranging in height from three to seven storeys to accommodate 832 bedrooms arranged in 180 apartments, a 400 seater dining facility, laundrette, students shop, the refurbishment of Trinity hall which is a List 2 building, the removal of a single storey gate lodge to facilitate a relocated entrance, a new atrium between Trinity hall and the sports hall and further and other associated buildings, works and facilities. As the Applicant, who lives nearby and as the first and second Notice Parties all have a vested interest in the immediate location of this proposed development and as they allege adverse consequences to their persons, property and environment, they bring or support the bringing of, these said proceedings.
  2. The following dates and events are relevant to a consideration of the matters at issue in this application:-
    31/3/99: required notices appear in the public newspapers,

    31/3/99: seven technical reports including service engineers reports are finalised,

    /3/99 : the Environmental Impact Statement (EIS) is completed,

    12/4/99: the planning application is submitted together with the appropriate documentation,,

    9/7/99: additional information, unsolicited, is furnished to the planning authority,

    14/9/99: an Article 35 request for additional information is issued,

    7/10/99: this request is responded to inter alia by submitting revised plans, a revised EIS, technical reports including the service engineers reports, elevation drawings, other particulars and documents all in the context of revised notices having been published in the relevant newspapers and a revised site notice placed on the site,

    11/11/99: notification of decision by the planning authority to grant the permission sought, subject to fourteen conditions,

    /11/99: Appeals all within time to An Bord Pleanala by the Applicant and others opposed to the planning permission and also by Trinity College in respect of certain matters not further relevant to this case,

    24,25,26/5/00: An Oral hearing is conducted by a senior planning inspector at which all of the relevant parties are present or represented,
    26/6/00: the Planning Inspector’s report is submitted, and
    4/8/00:: An Bord Pleanala issues a decision to grant permission for the aforesaid development subject to a total of nineteen conditions,
  3. The three conditions most relevant to this Judgment are those numbered 1, 8 and 16. Together with the reasons given for their imposition, these conditions, as appearing in the Second Schedule to the said Grant, read as follows:-
No. 1. “the proposed development shall be carried out in accordance with the revised plans submitted to the planning authority and received on the 7th day of October 1999, in response to a request for revised plans under Article 35 of the Local Government (Planning and Development) Regulations 1994, except as may otherwise be required in order to comply with the following conditions.
Reason: In the interest of clarity.

No. 8. Revised drawings of the proposed development, with floor plans and elevations corresponding in detail, shall be submitted to and agreed in writing by the planning authority prior to the commencement of development.
Reason: In the interest of orderly development.

No. 16 . Noise levels emanating from plant serving the proposed buildings shall not exceed a maximum level of 45 d B (A) leq when measured over any 15 minute period at any location at the site boundaries.
Reason: To protect the amenities of residential properties in the vicinity.
4. The challenge in these proceedings to the validity of the decision so given has been made, essentially on four grounds, which in brief terms can adequately be described as follows:-

(A) Ground No. 1 - Condition No. 8

1. This alleges that condition No. 8 is and amounts to an unlawful delegation by the Bord, of its decision making power, to a planning authority and is thus ultra vires . It is claimed that as a result of such a condition the developer and the planning authority is at large, as to the appearance, nature and scale of the ultimate development, all of which matters can be agreed in private without any input from, or access by, members of the public.

2. Graphically, it is stated that a planning permission has been granted for what is, in effect, an unknown development.

(B) Ground No. 2. - The Boiler House:-

3. The Applicant’s first submission under this heading of challenge, is that the plans and drawings as submitted do not give any indication of the boiler house facilities which a development of this nature undoubtedly requires. Secondly, it is claimed that, during the course of the oral hearing, an attempt was made by the Applicant for planning permission, namely Trinity College, to have the boiler house facilities sited in the basement, which suggestion had not previously been made or considered, much less evaluated or analysed. Thirdly it is pointed out that in the EIS a centralised boiler system is mentioned whereas at the oral hearing a decentralised system was advanced as being the preferred option of the developers. All of this, the argument goes, amounts to a breach of the planning regulations, results in there having been insufficient information before An Bord Pleanala which would have enabled it to exercise its jurisdiction, and finally in this regard, there is also a claim mentioned, but not pursued, that there was no material before the board which could have justified, what is now claimed to be, an irrational and unreasonable decision so made by it.

(C) Ground No. 3 - E.I.S.

4. In the Affidavit evidence sworn to support this application, an assault is made on the adequacy of the EIS. In particular it is claimed that Chapter 2.2, Chapter 4.3 and Figure 4.3, Chapter 7.2 and Chapter 13 all have within them, such profound defects as amount to a non compliance with Council Directive 85/337/EEC, in particular with Annex III thereof, and also with the Irish implementing legislation. Though so framed, the factual basis of this submission is almost identical to that forming the basis of the Ground last mentioned, namely the inadequate details available or submitted in respect of the proposed boiler house facilities.

(D) Ground No. 4- The Gate Lodge

5. As appears from the description of the aforesaid development given at paragraph 1 above, a requirement thereof is the removal of a single story gate lodge, this in the context of a redesigned and newly located entrance to the particular site. On Mr. Kenny’s behalf it is alleged that this lodge is a protected structure within the Local Government (Planning and Development) Act 1999 and since no exceptional circumstances exist, or have been shown to exist, planning permission, involving its demolition, should not have been granted, as so to do is contrary to this Act and in particular to Section 8(10) (b) thereof.

5. Section 82 (3A) of the 1963 Act, which was inserted by Section 19 (3) of the 1992 Act, prohibits the questioning of a decision of the board, given on appeal under Part IV of the 1963 Act, other than by way of an application for Judicial Review. Such an application, which must be on notice, “shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed”. This threshold of “substantial grounds”, has formed the subject matter of many decisions of both this Court and the Supreme Court in the past decade. In Scott -v- An Bord Pleanala (1995) 1 IRLM p. 424 the Supreme Court suggested that these words “require that the grounds must be reasonable”, In Byrne -v- Wicklow County Council , H. C., U/R 3/11/1994 Mr. Justice Keane, as he then was, approached the matter on the basis that one must show not merely an arguable case but must demonstrate substantial grounds for contending the invalidity as alleged. Some short period after that decision Carroll J. gave judgment in McNamara -v- An Bord Pleanala 1995 2 ILRM p. 125. At p. 130 of the judgement, inter alia the Learned Judge said:
“in order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous....”

6. This said passage, since its delivery in 1995, has been endorsed and approved when and wherever the occasion arose. This included the decision of Mr. Justice Geoghegan in Jackson Way Properties Limited -v- the Minister for the Environment and Others, H. C. U/R, 2/7/1999. In that judgment however, which dealt with a similar phrase under Section 55(A) of the Roads Acts 1993 (as inserted by Sec. 6 of the amending 1998 Act), the Learned Judge also expressed the view that there had to be “real substance in the argument and not merely that it is just about open to argument ”.

6. Against the change in the law, brought in by and resulting from the enactment of Section 19(3) of the 1992 Act, and in the context of what Finlay C. J., said in KSK Enterprises Limited -v- An Bord Pleanala (1994) 2 I.R. 128 at p.135, there can be no doubt but that the threshold of “substantial grounds”, was intended, in my humble view, to result in a different and higher threshold, than that normally applicable to an application for Judicial Review under the Rules of the Superior Courts. That a ground had to be reasonable, before it could be substantial, could never be disputed. That such a ground also had to be arguable, equally in my view, could not be challenged. Such tests on their own however, may not be adequate as both of these descriptions equally apply when one seeks leave in an ordinary Judicial Review case under Order 84 Rule 20. See the judgment of Denham J. in G -v- the Director of Public Prosecutions (1994) 1 I.R. 374. Indeed, in a consideration of these words, one can think of grounds which could be both reasonable and arguable and yet fall significantly short of meeting the threshold of being “substantial”. The words “trivial or tenous” are undoubtedly helpful but probably more so as words of elimination rather then qualification. The description of being “weighty” and of “real substance” are in my view of considerable importance in the interpretation of this threshold phrase. However, it must also be remembered that, from a base say, opposite substantial, namely insubstantial, an applicant must navigate the considerable distance in between, and in addition, must arrive at and meet the threshold whilst still afloat and on course. In truth I feel, whilst many attempts have been made to explain or convey “the equivalent of its meaning” I am not certain that one can better the original phrase itself . In any event these observations of mine are purely an aside as the Supreme Court has, once again, in the Matter of the Article 26 reference of the Illegal Immigrants (Trafficking Bill 1999) endorsed the McNamara test.
7. In approaching this application, in accordance with the above principles, it seems to me that there is one further distinction between a hearing of this nature and/or an ex-parte application for relief under Order 84 Rule 20. It is, that with this procedure, both or all parties are heard, usually a considerable body of evidence, though in Affidavit form, is submitted and usually full argument takes place. Some difference of approach may therefore be justified, though one should see R -v- Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Limited (1982) AC 617 at 643 and 644 which passages were quoted with approval by Denham J. in the G case. Whether or not and whichever, it seems to me that whilst obviously I should not attempt to resolve conflicts of fact or express any concluded view on complex questions of law or indeed anticipate the long term result, nonetheless within existing limitations, I should, I feel make some evaluation of the factual matrix and should, where with certainty I can, form some view of the appropriate statutory provisions and the relevant and material case law. On a separate though related point could I say that simply because matters of fact and law may be traversed again, if leave is granted, should not in any way take from, reduce or lessen the appropriate threshold. In this way therefore I now propose to examine, seriatim, the grounds of challenge as submitted.

8. Ground No. 1 : Condition No. 8 constituting an unlawful delegation of power .

7. Prior to outlining the test in Boland’s case it is also necessary, in any consideration of this ground, to refer to two other aspects of law which in my view have a bearing on this matter;-

(a) Firstly, in Re XJS Investments Limited 1987 ILRM. 659 the Supreme Court at p. 663 of the Report, when dealing with the proper method of interpreting planning documents said
“certain principles may be stated in respect of the true construction of planning documents: (a) to state the obvious they are not acts of the Oireachtas or subordinate legislation emanating from skilled draughtsman and inviting the accepted canons of construction applicable to such material:
(b) they are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole necessarily indicate some other meaning .....”

(b) Secondly, there is a clear distinction between conditions in a planning permission which, for their implementation require the “approval” of the planning authority and conditions which require the “agreement” of the planning authority - whether such conditions have or have not a default mechanism attached. With the first category of conditions the provisions of Section 82 (3A) of the 1963 Act apply whereas the latter are not so included. One of the consequences of this exclusion is that the strict time limits so imposed in Section 82 (3A) do not apply. See Boyne Grove Food Farms Limited -v- J Murphy Developments Limited , H. C. U/R, and Vera O’Connor -v- the Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin and Another , H. C. U/R, 26/5/2000. In passing it should be observed, presumably with regard to both types of conditions, that the enforcing provisions of the Planning Code are available including the injunctive process under Section 27 of the 1976 Act as inserted by Section 19 4 (g) of the 1992 Act.
(c) Thirdly, when an issue arises as to what might legitimately be embraced within a condition requiring the agreement of the planning authority, it should be noted that the answer to such an inquiry is not to be determined on the basis of irrationality or unreasonableness as per O’Keeffe -v- An Bord Pleanala (1993) 1 I.R. 39, but rather, the approach and solution must be determined by the appropriate vires principles. In Wicklow Trust Limited -v Wicklow County Council H. C. U/R 5/2/1998 McGuinness J. in a similar context, said that the question of reasonableness/unreasonableness was not material.
“The question is whether they (Planning Authority) were correct in law in this opinion”.
In Gregory -v- Dun Laoghaire Rathdown County Council H. C. U/R, 16/7/1996 Geoghegan J. in the High Court said:
“I have only to consider whether the Council acted ultra vires”.

8. On appeal in the Supreme Court U/R 28/7/1997 Murphy J. emphatically rejected, as being unsustainable, an approach based on O’Keeffe, rather he said “the proper function of the Court was the implementation of the condition imposed by the Board”.

9. Finally Barron J., in the same case said “the real issue in this case is as to the proper construction of conditions.....”.

9. There is no dispute as to the direct principles of law applicable to the power of An Bord Pleanala to impose conditions of this nature. Having expressly endorsed the views of Murphy J. in Houlihan -v- An Bord Pleanala, H. C. U/R, 4/10/93 and the ratio of the decision of Keane J. in his High Court judgment in the case presently mentioned, the Supreme Court, through the Chief Justice, in Boland -v- An Bord Pleanala , (1996) 3 I.R. 435 summarised at p. 466 what these applicable principles are.

10. Therefrom the following can be stated:-

(a) to afford a developer, subject to the consent of the Planning Authority, a degree of flexibility, particularly if the intended scheme involves complex enterprise;
(b) to leave technical matters, or matters of detail including a redesign in the light of practical experience, to such a device; and
(c) To have faith and confidence in the Planning Authorities role given its statutory function and responsibility.
10. Before considering Condition No.8 in the aforesaid context could I make three further observations. Firstly in my opinion Section 26 (1) of the 1963 Act is the statutory basis upon which such a condition may be imposed with the conditions specified in subsection 2 thereof, expressly being without prejudice to the generality of the power conferred by subsection 1. Secondly, whilst the primary purpose of Section 14(4) of the 1976 Act was the transfer of power from the Minister to the Board, nonetheless such a transfer could not take place if, in the first instance, such a power was non-existent. Hence, at least by implication, the recognition of the Board’s power in this regard. Thirdly, as Keane J., as he then was, said in the Boland Case :-
“ the Court is not concerned with the advantages or disadvantages of the proposed development, either from a planning or environmental point of view. This is a matter exclusively within the remit of the specialist body set up by statute for this purpose”.

11. Is condition No.8 therefore too wide and as a result ultra vires ?

11. The planning permission sought in this case and granted on appeal by the Board, was in respect of the development as proposed, which development had to be carried out in accordance with the revised plans submitted to the Planning Authority and received by it on the 7th of October 1999. Whilst Condition No.1 of the Grant goes on to read:- “except as may otherwise be required in order to comply with the following conditions ”
- it should be clearly understood that the scheme as authorised is that as outlined in these revised plans. There can be no question whatsoever of the developer being at large, even to a limited extent, with regard to what may be constructed. The reason given for Condition No.1 makes this clear - it is stated :- “In the interest of clarity”, namely that the developer and indeed the public would know what is authorised. Condition No.8 does not in any material, significant or meaningful way, modify this condition. To so construe the condition first mentioned would in fact be to misconstrue it. Accordingly I can see no basis for the submission that the development for which planning permission has been obtained is unknown or cannot in all material respects be identified.
12. Could I for a moment look at the background to the imposition of Condition No.8.

12. In the permission issued by the Planning Authority, Condition No.4 sought what could only be described as a significant redesign. At pages 139/140 of the Planning Inspector’s report, Mr Thornton deals with this. He said:-

“The buildings proposed would be institutional in use. The design as proposed by the Architects reflect the use and the nature and scale of the proposed development .
I consider that the design as proposed in the modified plans is of good quality and is acceptable even having regard to the residential conservation zoning of adjoining lands. I consider that the site is significantly large to establish its own architectural quality. I do not consider that there are significant gains to be achieved by interfering with the design proposed to the extent required by condition No.4 of the Planning Authority’s decision. I do not consider that it is necessary to require stronger roof profiles with emphatic eaves detailing. Although the Planning Authority may not be attempting to replicate architecture from any bygone era I consider that the condition attempts to introduce elements from the domestic scale buildings in the vicinity into a design which is appropriate for the institutional use proposed. I consider .... The scheme has been designed by a firm of competent architects. I consider that it is generally acceptable as proposed from a design point of view. ( I note however that there are some discrepancies in the drawings for example the floor layout in the elevational drawings of lot no.2 do not correspondence in detail at the northern end of the west facing elevation. There also appears to be discrepancies in window sizes and small openings indicated on elevations are not shown on the layout plans. I consider that the discrepancies are not significant in a fundamental sense. Details however should be agreed with the Planning Authority)”.

13. In response to this discussion and to implement his views the Inspector suggested the imposition of a Condition, No. 6, which Condition, together with a reason therefore reads as follows:-
“Accurate drawings of the development, with floor plans and elevations corresponding in detail shall be agreed in writing by the Planning Authority prior to works commencing on the proposed development.
Reason: to resolve ambiguities arising from discrepancies on the plans received by the Planning Authority on the 7th of October 1999”.

13. Condition No.8, I am satisfied, has almost identically the same wording. The only difference is in the reason. In the Grant it is said to be “in the interest of orderly development” whereas the suggestion of the Planning Inspector was more specific. Notwithstanding this change I am convinced that Condition No.8 was essentially designed to meet the discrepancies and ambiguities outlined by the Inspector. I cannot therefore conceive of any argument, objectively sustainable, which supports the Applicant’s submission under this heading.

14. In addition I do not believe that it would be correct of me to assume that the Planning Authority, which as a matter of law ought to be aware of its functions and responsibilities including its limitations, when dealing with conditions of this nature, would exceed its role which is to further the faithful, true and core implementation of the permission. It would be wrong in my view to ascribe to it any ultra vires intention when none has or could be so identified. In addition whilst the availability of a remedy, would not by itself deprive an applicant of his entitlement to leave, if otherwise it should be granted, nonetheless the fact that Section 82(3A) does not apply is a factor which in my view I am entitled to take into account when assessing the material both in the context of the specified threshold and of the discretion vested in me.

15. Grounds Nos’ 2 and 3 - both of which can conveniently be taken together

14. During the course of this hearing it was suggested, that in relation to the boiler house facilities there was a breach of the 1994 Planning Regulations and/or a breach of Council Directive 85/337/EEC and/or the domestic provisions incorporating this Directive into Irish Law. On being invited to identity precisely what regulations or articles or sections were breached and how, it was not possible for Counsel on behalf of the Applicant to so indicate. Accordingly this submission cannot constitute a substantial ground for the purposes of this application.

16. There can be little doubt but that some confusion has arisen with regard to the proposed boiler house facilities. In both the original EIS and the revised one, at Chapter 9 of each, it is stated that the development would be serviced by a centralised boiler plant. At the oral hearing two suggested modifications to this were advanced. Firstly, it was urged upon the Inspector that these facilities could properly be placed in the basement, this being the first time that such a location was mentioned with no real consideration having been given to the quantity of excavation involved or the effect on the tree roots or on the water table. Rightly so in my view, at p. 151 of the Report, the Inspector emphatically ruled out any further debate on this possibility. Having so rejected this suggestion I cannot see how the Applicant can in this case, further rely upon this point.
17. In the Service Engineers Reports, originally given and as revised, plant rooms are listed for all three buildings. In the revised plans and in particular Drgs. 213A, 214 and 215, all dated September 1999, plant rooms are again shown, though it should be said that one could not readily identify all such rooms, without an explanation that the floor plan was but a typical or representative one.

15. At the oral hearing there was very considerable debate on this question. Every interested person made a contribution. Some such persons were for and some against the development including those witnesses specifically called on behalf of the Applicant.

18. Notwithstanding this confusion and despite the entry in the EIS and the floating of the basement solution, what is abundantly clear however, is that at the Oral Hearing, as per the Design Architect Ms. Boyle, a decentralised system was in fact being sought on behalf of the developer. See pages 12, 34,35,48,51,99 and 102 of the Planning Inspector’s Report. Furthermore everyone present knew of this proposal and indeed made comment on it. And yet it is alleged that, there was such a lack of detail before it so as to deprive the Board of its power to decide on this application. Examples of matters in dispute were, - the precise location of the plant rooms - (this being essential it was claimed to determine the emanating noise); the fact that one such room was shown next to a living area, whether the dimensions of such areas were sufficient, what should be the height of the flue, its location etc. Whilst I am satisfied that all of these matters were adequately dealt with at the oral hearing and that many are also suitable to be dealt with by agreement with the local authority, in addition could I say that I would set my face totally against such a microscopic examination by this Court of such matters of details.
19. Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the EIS or the debate on it had before the Inspector. These are not matters of concern to this Court. The Planning Authority and An Bord Pleanala, as these bodies must under the Regulations, were satisfied as to the EIS, with the Inspector and the Board also being satisfied with the evidence, both documentary and oral, produced at the oral hearing. That in my view concludes the matter. However lest there should be any doubt about it, my own opinion is that the EIS did address adequately, as did the oral hearing, any and all significant impacts which a decentralised boiler system could have on this development. Furthermore, on the specific issue of noise, Condition No.16 is, in my view a complete answer.

16. As a result I do not believe that the Applicant has established a substantial ground in this regard.


20. Ground No.4 - The Gate Lodge

17. Prior to dealing specifically with this ground I should make reference to a submission also made with regard to the development plan. It was urged upon this Court that the gate lodge in question was “protected” under the Development Plan. A contrary view was expressed by the Planning Authority, in the person of Mr McDonald, at the old hearing and also by the Planning Inspector. In addition a consideration of the List, both at Nos’ 1 and 2 clearly demonstrate, directly and indirectly, that this is not so and that no protection exists under the Plan with regard to this gate lodge.

21. The 1999 Act was enacted on the 30th of June 1999 but did not, by the express provisions of section 42(3) thereof, come into operation until the 1st of January 2000. A very definite view was therefore expressed that six months should expire before it had the force of operating law within the State.

18. Notwithstanding, it is alleged that it applies to this application and so the argument goes, given the definition of “structure”, and “protected structure”, as contained in Sec. 1 thereof, it is claimed that the gate lodge comes within, and accordingly, unless exceptional circumstances exist, no permission should issue which encompasses its demolition. As no such exceptional circumstances are even suggested the permission in question is therefore invalid.

22. There is no doubt, in my mind, that for this submission to be accepted one would have to construe the 1999 Act as having to have retrospective effect. With regard to the development in question the planning process commenced in April 1999 with the lodging of the appropriate documentation seeking permission. Article 35 was invoked by the Planning Authority on the 14th of September and responded to by the Applicant on the 7th of October. Furthermore a Notice of Intention to grant Planning Permission issued on the 11th of November some seven weeks prior to the 1st January. If there had been no appeal to an Bord Pleanala, no argument could be advanced, save for retrospection, that the Act could possibly apply. An appeal however was lodged, an oral hearing did take place and the decision of the Board issued in August 2000. In my view, in the present context, the lodging of the Appeals and thus the continuation of the process, has no bearing as to the applicable law.
23. When under a statutory regime a process has been commenced, those involved in or affected thereby, have a right to see that process through, to a conclusion, under the law as it was at the date of its commencement. It is true that Statutory retrospection may apply in which event a Constitutional issue may or may not arise. Apart from such intervention, if in this case, instead of the 1999 Act potentially effecting the property of Trinity College it had sought, for example, to prevent or restrict the Applicant from appealing, I have no doubt but that a sustainable challenge could not only be instituted but indeed sued to a successful conclusion.
24. Two cases were cited in support of this submission, on Ground No. 4. The first was McKeown Estate Ltd. -v- Dublin County Council 1995 2 ILRM 283. In that case an application for permission was made on the 15th of December 1999. The Planning Authority issued notification of its decision to grant on the 25th of April 1990. Appeals were lodged. In the interval the 1990 Planning Act came into force on the 10th of June of that year. That, repealed Part VI of the 1963 Act which dealt with compensation, and in its place, new provisions contained in Part III of the 1990 Act become operative. On the 21st of January 1991 An Bord Pleanala refused planning permission. On the 30th of July of that year the Applicant claimed compensation under, the said Part III of the 1990 Act. On the 26th of June 1992 it successfully sought from the Circuit Court an enlargement of time so as to lodge a claim under the repealed Part VI of the 1963 Act. An appeal therefrom was taken to the High Court which in turn agreed to state a case for the opinion of the Supreme Court. Though ostensibly fought on the point of an enlargement of time, the real issue between the parties was whether or not, given the aforesaid dates, the Applicant could in respect of the Board’s decision still seek compensation under the 1963 Act. The Court, when giving judgment, indicated clearly that jurisdiction to even mount a claim for compensation arose only when the Board issued its decision which was more than seven months after the repeal of the relevant Part of the 1963 Act. Accordingly there was no question of the Applicant, either in January or July 1991, being in the position to avail of the repealed provisions.

25. The second case was J. Wood & Co. Ltd. -v- Wicklow County Council 1995 1IRLM p. 51. In that case, as of the 10th June 1990 an application for planning permission had been made but no decision had issued. In July of that year the Planning Authority issued it’s decision and on the 1st of July 1991 the Board determined the Appeal. For the purposes of this Judgment it is not necessary to consider, in any depth the relevant features of this case. It is sufficient to state firstly that the decison of the Board was a precondition to making or asserting a claim for compensation, secondly that since no decision issued until post the 10th of June 1990, how could it be said that the statutory regime, which by then had been repealed, could be the one under and by which an entitlement to compensation should be determined and thirdly as of the date of the relevant decision, one could only conclude that the newly created right to claim, surely had to be considered under the provisions then in force. Consequently I do not believe that either decision supports the propositions advanced on behalf of the Applicant.
26. In the light of the above, it is now necessary to consider whether in fact the 1999 Act, in its relevant provisions, has retrospective effect. Retrospection, in this context existing when the Act in question
“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed”

19. See Craies on Statute Law, 7th ed. p. 387.

27. The principles of construction to be applied in determining whether an Act is or is not retrospective were considered by the Supreme Court in Hamilton -v- Hamilton 1982, IR 466. O’ Higgins CJ in his Judgment at p. 474 cited with approval the following cases and the following extracts therefrom:-
(a) In Gardner -v- Lucas 1878 3 App. Cas 582 Lord O’Hagan said at p. 601 of the report
“... Unless there is some declared intention of the legislature - clear and unequivocal - or unless there is some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prespective and not retrospective”.

(b) In Reid -v- Reid 1886 31 Ch D 402 at 408 of the report Bowen L. J. said:
“Now the particular rule of construction which has been referred to but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well known trite maxim omnis nova constitutio futuris forman imponere debit non praeteritis, that is that except in special cases the new law ought to be construed so as to interfere as little as possible with vested nights”.

(c) In Athlumney’s case 1898 2 Q B 547 Wright J. said at pp. 551/552 of the report:-
“Perhaps no rule of construction is more firmly established then this - that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise then as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prespective only”.
28. Henchy J., in his Judgment in the Hamilton case at p. 484 said:-
“The judicial authorities (which are mentioned in the Judgment which the Chief Justice has just delivered ) make clear that, because there is a presumption that a statute does not intend to operate unfairly, unjustly or oppressively by trenching on rights or obligations lawfully acquired or created before the statute came into force, it should be construed as prespective in its application and not retrospective, unless there is clear and unambiguous intention to the contrary expressed, or necessarily implied, in the statute or unless the change affected by the statute is purely procedural”.

20. These views were adopted by Blayney J. and Dublin County Council -v- Grealy 1990, 1IR p. 77 where at p. 82 he added:-

“One starts accordingly with the presumption that S. 25 is to be construed as being prespective in its application. And for this presumption to be rebutted, the Act must express a clear and unambiguous intention to the contrary, or there must be some circumstances rendering it inevitable that the Court should conclude that the Act is retrospective or the change effected by the statute must purely procedural”.

29. There are several further and other cases on this topic all containing statements of principle similar to those expressed above. I wish to refer to one further case only namely Doyle -v- An Taoiseach 1986 ILRM 693 where the Supreme Court held that if the provisions of section 79 of the Finance Act, 1980 (which purported to confirm the validity of certain levies on the sale of live cattle which had been introduced in 1979) were held to have retrospective effect, it would be to that extent unconstitutional since as Henchy J. said it would have the effect:-
“of making, ex post facto, non-payment of the levy in 1979 an infringement of the law. Such a result would make section 79 invalid having regard to Article 15.5 of the Constitution”.

21. Since however there was nothing to indicate in the 1980 Act that the Oireachtas had intended it to apply it retrospectively, the Court held that

“section 79 should be treated as having only perspective effect and therefore had no application to the present case”.

22. The reference to Article 15.5 is of course a reference to an express Constitution provision prohibiting the Oireachtas from declaring acts to be infringements of the law which were not so up to date of their commission.



30. In my consideration of the 1999 Act and in particular the relevant portions thereof I cannot identify any intention, much less a clear and unambiguous one, that this Act is to have retrospective effect. On the contrary I am satisfied that at all times it was clearly intended that the Act should apply only as and from the date it became operative within this jurisdiction. Furthermore and in any event, even if this be incorrect, the relevant sections must surely also permit of a perspective interpretation which in the legal and constitutional context above mentioned should and must be the one preferred by this Court.

31. In conclusion therefore I am not satisfied that the Applicant has reached the specified threshold on any of the grounds advanced on his behalf. Therefore I refuse leave.

© 2000 Irish High Court

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