Edward Mulhall (applicant) v An Bord Pleanala (respondent) and Petrogas Gas Limited and Laois County Council (notice parties).

Judicial Review - Planning and development - Application for leave to seek judicial review - Permission granted for the development of lands and premises with conditions imposed in the interests of traffic safety - Whether substantial grounds - Whether decision irrational - Whether irregularities invalidated the decision - Local Government (Planning and Development) Act 1963 (No 28), section 82 - Local Government (Planning and Development) Act 1992 (No 14), sections 4(3), 9 and 19.

The High Court (before Mr Justice McCracken); judgment delivered 21 March 1996.

SECTION 82 of the 1963 Act as amended provides that the court shall not give leave to judicially review a decision of the respondent unless the court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. The words "substantial grounds" require that the grounds must be reasonable. 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. A ground that does not stand any chance of being sustained (e.g. where the point is already being decided at another case) could not be said to be substantial.

The circumstances under which the court can intervene on the basis of irrationality with the decision maker involved in administrative function are limited and rare. In order for an applicant for judicial review to satisfy a court that a planning authority has acted so irrationally that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the planning authority had before it no relevant material which would support its decision.

Judicial review is not concerned basically with the actual decision reached by an administrative body whose decision is being reviewed, but rather is concerned with the method by which the decision was reached and whether there was any basis upon which it could be reached.

The High Court so held in refusing the applicant leave to apply for judicial review of the respondent's decision.

Eamon Galligan BL for the applicant. Camline Costello BL for the respondent, Gerard Hogan BL for the first notice party, John Peart SC for the second notice party.

MR JUSTICE McCRACKEN said that this was an application by way of notice of motion pursuant to section 82 of the 1963 Act as amended for an order granting the applicant leave to apply for judicial review of a decision of the respondent dated 22 September 1995.

The original permission was granted on 5 May 1995 for the development of certain lands and premises which were known as the Georgian Inn, Capakeel, Co Laois, the development consisting of the relocation of petrol pumps, change of use of a restaurant/take away to shop and offices, change of use of a shop to restaurant, and extension to kitchen. The permission was granted subject to 1-4 conditions, the majority of which were imposed in the interests of traffic safety. The applicant was a substantial farmer whose yard and outbuildings were situated almost opposite the Georgian Inn, and the basis of his objections were related to two entrances to his, yard from the road and to traffic hazards that might be created because of his use of farm machinery.

An inspector's report was prepared for An Bord Pleanala which set out the applicant's objections, and the submissions made on behalf of Petrogas Group Limited, the applicants for the planning permission. The inspector's recommendation was that the permission should be granted in accordance with a number of conditions set out in his report, again most of which were stated to be in the interests of traffic safety.

Mr Justice McCracken said that the 1963 Act as amended provided that a court should not give leave to judicially review a decision of the respondent unless the court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. He said that this provision had been considered in several cases. In Scott v An Bord Pleanala [1995] ILRM 424 Mr Justice Egan said that the words "substantial grounds" required that the grounds must be reasonable. This was expanded by Miss Justice Carroll in McNamara v An Bord Pleanala [1995] 2 ILRM 125 where she said that 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.

Mr Justice McCracken said that the arguments of the applicant in the instant case were, firstly that the decision was so irrational that it could not reasonably have been reached, and secondly that there were a number of alleged irregularities which would invalidate the decision. He decided to deal briefly with the alleged irregularities.

It was said that there was a mistake in the application and drawings which accompanied it. Mr Justice McCracken said that there certainly was an error in the drawings, in that they did not show the entrances to the applicant's farm yard, but he said that the applicant had ample opportunity to bring this to the attention of the respondent in the course of his submissions. In any event it was absolutely clear from the inspector's report that he was well aware of the entrances to the applicant's property and he specifically referred to them. The respondent was fully aware of any such error at the time that the decision was made.

It was also said that there was a mistake in the inspector's report in that it stated that the premises ceased to trade as a public house in 1992, while the applicant alleged it in fact ceased to trade in 1989. This was certainly not a substantial matter which could possibly affect the decision, and the inspector further made the point in his report that, while the premises were not trading, the licence had continuously been renewed.

It was also suggested that the developer suggested to the planning authority that there should be certain alterations to the road markings outside the Georgian Inn, and the applicant ought to have had an opportunity to comment on these proposed markings. Mr Justice McCracken was satisfied that the applicant did in fact have an opportunity to so comment, in that this plan showing the road markings was on the planning authority's file, and was open to inspection at all times by the applicant and that therefore this was a matter upon which he could have commented in his submissions to the respondent.

Finally, the applicant took certain photographs of the premises, in particular seeking to show that the use of his exits by farm machinery could have constituted a traffic hazard under the new proposals. The photographs were sought to be submitted to the respondent after the appeal had been lodged. The respondent refused to consider the photographs on the basis that they were not admissible because of the provisions of section 4(3) of the 1992 Act which provides -

"Without prejudice to section 9, an appellant shall not be entitled to elaborate in writing upon or make further submissions in writing in relation to, the grounds of appeal as stated in the appeal or to submit further grounds of appeal and any such elaboration, submissions or further grounds of appeal that is or are received by the Board shall not be considered by it.

Mr Justice McCracken said that section 9 of the Act also empowered the respondent, where it considered it appropriate in the interests of justice, to request any party to make further submissions. It was suggested that in the circumstances, even if the documents were not admissible because of section 4(3), nevertheless, the respondent ought to have requested them under section 9.

Mr Justice McCracken did not consider that this was a correct interpretation of these sections, ash if the respondent was to request the documents under section 9, they would have to consider them, which they were precluded from doing under section 4(3). Accordingly, he did not think that any of the objections based on alleged irregularities in the proceedings could have been considered substantial.

Mr Justice McCracken then considered whether this was an irrational decision. He said that that matter had been dealt with at some length in the Supreme Court in O'Keeffe v An Bord Pleanala [1993] 1 IR 39. In that case the then Chief, Mr Justice Finlay, said that it was clear that the circumstances under which the court can intervene on the basis of irrationality with the decision maker involved in an administrative function are limited and rare. The Chief Justice considered, as was done by Mr Justice Henchy in State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, the circumstances under which the court can and should intervene, and also, in brief terms and not necessarily comprehensively, the circumstances under which the court cannot intervene. He said that the court cannot interfere with the decision of an administrative decision making authority merely on the grounds that either it is satisfied that on the facts as found it would have raised different inferences and conclusions or it is satisfied that the case against the decision made by the authority was much stronger than the case for it. Mr Justice Henchy had said that under the provisions of the planning acts the legislature had unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the board which was expected to have special skill, competence and experience in planning matters. The court was not vested with that jurisdiction, nor was it expected to, nor could it exercise discretion with regard to planning matters. He was satisfied that in order for an applicant for judicial review to satisfy a court that the decision making authority has acted irrationally so that a court could intervene and quash its decision, it was necessary that the applicant establish to the satisfaction of the court that the decision making authority had before it no relevant material which would support its decision.

Mr Justice McCracken said that in the present case, the respondent had before it a report from its inspector giving a recent opinion, and dealing, by direct reference to the applicant's submissions, with the question of traffic hazard. Certainly, the inspector's report did say that the solution was somewhat less than ideal and no doubt the respondent considered this point. However, it was not possible for planning authorities or the respondent in any case inevitably to reach ideal solutions. He was satisfied that the inspector's report, and the documentation before the respondent, including the plan for altering the road markings did constitute grounds upon, which the respondent could reach the decision which it reached.

This was not an appeal from chat decision. Mr Justice McCracken emphasised that judicial review is not concerned with the actual decision reached by the administrative body whose decision is being reviewed, but rather is concerned with the method by which that decision was reached, and whether there was any basis upon which it could be reached.

Mr Justice McCracken refused leave to proceed in this case.

Solicitors: Rollestons (Portlaoise) for the applicant; T. T. L. Overend McCarron and Gibbons (Dublin) for the respondent; Taylor and Buchalter (Dublin) for the first notice party; Murphy & Co. (Abbeyleix) for the second notice party.