O'Flynn Construction Company Limited (applicant) v An Bord Pleanala (respondent).

Planning - Legislation - Statutory instruments - Certiorare - Judicial review - Earlier statutory instrument revoked by later statutory instrument at date of hearing before respondent - Later instrument not in force at date of lodgment of appeal - Whether earlier statutory instrument applied to applicant's appeal - Whether there was an applicable saving provision - Interpretation Act 1937, sections 19(2), 22(1)(b), 22(1)(e).

The High Court (before Mr Justice Geoghegan); judgment delivered 12 November 1999.

Proceedings before planning authorities or An Bord Pleanala are not legal proceedings within the meaning of section 22(1)(e) of the Interpretation Act 1937. There was therefore no statutory provision which operated to continue in force a statutory instrument which had been revoked so as to apply to an appeal before An Bord Pleanala. This did not prevent the board from considering the provisions common to the 1982 and 1998 directives to be aspects of public policy, provided that that policy did not conflict with considerations of proper planning.

Mr Justice Geoghegan so held in granting an order of certiorari quashing the decision of the respondent to refuse the applicant's appeal against the refusal to grant planning permission.

Dermot Gleeson SC and Brian Murray BL for the applicant; Nuala Butler BL for the respondent.

Mr Justice Geoghegan said that this was an application by way of judicial review for 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. The grounds on which the application was made were as follows

(1) The decision of the respondent dismissing the applicant's appeal stated that the intended development would contravene materially an objective set out in the current development plan. However, it had been accepted by all parties that by the time of the oral hearing before the respondent's inspector, the development plan had been amended so as to accommodate the applicant's development.

(2) The decision of the respondent, in setting out the reasons for dismissing the appeal, stated that regard had been taken of the terms of the Local Government (Planning and Development) General Policy Directive 1982 (SI No 264 of 1982). The applicant argued that, at the date of the decision, the directive had been revoked and there was no saving provision which kept the directive alive for the purposes of the appeal.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, had decided that the application should be treated as being for one integrated development, and refused permission for the entire development. The applicant argued that this was irrational and wrong in law.

The respondent had conceded the first ground, though it disputed the other two, and had offered to pay the costs of the judicial review proceedings up to the date of its admission, provided that the proceedings were then discontinued. An order of certiorari would of course have been made. However, the applicant wanted the other two points decided also.

Mr Justice Geoghegan said that the 1982 directive had been made by the Minister for the Environment on 10 August 1982 pursuant to his powers under section 7 of the Local Government (Planning and Development) Act 1982. The directive laid down guidelines in relation to planning applications in respect of retail shopping developments. On 9 June 1998, the Minister had made a replacement order, the Local Government (Planning and Development) General Policy Directive (Shopping), 1998 (SI 193 of 1998). Paragraph 1 provided: " . . . (b) This directive shall come into operation on the 10th day of June 1998, and (c) This directive replaces the Local Government (Planning and Development) General Policy Directive 1982."

Mr Justice Geoghegan said that traditionally, statutory instruments have tended to be called either "regulations" or "orders" and the standard word used for repealing them was "revoke". Indeed, that was the word used in the Interpretation Act 1937. However, it was common case that the 1982 and 1998 directives were statutory instruments. Mr Justice Geoghegan said that he was satisfied that once the 1998 directive became operative, the 1982 directive stood revoked.

Mr Justice Geoghegan said that the respondent had conceded that the 1998 directive did not apply to the applicant's appeal, but had taken the view that, as a consequence, the 1982 directive applied. The applicant, however, argued that neither directive applied, since the 1982 directive stood revoked from 10 June 1998. Mr Justice Geoghegan said that this was an absurd situation which could not have been intended, and any court would be reluctant to hold with the applicant on this point if it could be avoided.

The respondent had presented a number of possible escape routes. The first was that the use of the word "replaces" means that, unless the 1998 directive was in operation in relation to any particular application, no replacement had taken place and the 1982 directive continued to apply. Mr Justice Geoghegan said that this argument must be rejected. The scheme of the directive was clearly that it should come into operation on 10 June 1998. The replacement occurred on that day. Mr Justice Geoghegan said that if he was right on that point, the 1982 directive stood revoked on that date.

Mr Justice Geoghegan then turned to section 19(2) of the Interpretation Act 1937, by which it is provided as follows: "Where an instrument . . . revokes the whole or a portion of a previous statutory instrument . . . and substitutes other provisions for the instrument or portion of an instrument so revoked, the instrument or portion of an instrument so revoked shall . . . continue in force until the said substituted provisions come into operation."

Mr Justice Geoghegan said that the sub-section ensured that the revoked statutory instrument for which the new statutory instrument was a replacement, should continued to apply either in whole or in part until the relevant provisions in the new instrument were brought into force. It was of no assistance to the respondent.

Mr Justice Geoghegan also cited section 22(1)(b) of the Interpretation Act 1937, which provides: "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 - . . . (b) affect the previous operation of the statutory instrument or portion of a statutory instrument so revoked or anything duly done or suffered thereunder."

Mr Justice Geoghegan said that provision was of no assistance either. It dealt only with the "previous operation" of the statutory instrument. In other words, if the 1982 directive had been in force at the time of the decision of the planning authority, but revoked at the time of the decision on appeal by the respondent, there would be no question of the decision of the planning authority being rendered void thereby avoiding the subsequent appeal procedure. That was of no help to the respondent, because it had tried to apply the statutory instrument subsequent to its revocation.

Mr Justice Geoghegan then cited section 22(1)(e) of the 1937 Act, which provides: "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 - . . . (e) 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." Mr Justice Geoghegan said that it was not necessary to decide whether "civil legal proceedings" could include proceedings before tribunals or bodies other than courts. It was most likely that the reference to criminal proceedings was intended to cover court proceedings only. As regards this case, the Supreme Court had effectively decided in McKeon Estates Limited v Dublin County Council [1995] 2 ILRM 283 that planning procedures were part of the administrative system of the State and were not part of the judicial system. That decision had been given in the context of the same subsection of the 1937 Act. Accordingly, an application for planning permission was not a legal proceeding within the meaning of section 22(1)(c) of the 1937 Act.

Mr Justice Geoghegan said that he had therefore come to the conclusion that the applicant's argument that neither the 1982 nor the 1998 directive was in force in relation to the appeal was correct. However, when the matter would go back to the respondent for re-determination, the respondent did not have to approach its decision on the artificial assumption that neither of the statutory instruments had ever existed, and that it had never heard of them. It would be entitled to note both the existence and terms of each of the statutory instruments, and 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 were common to both directives represented ministerial and, in a sense, public policy. Mr Justice Geoghegan said that, in his view, it would be both reasonable and appropriate that the respondent should pay due regard to that public policy. It would not be absolutely bound by it, and if it took the view that the public policy was contrary to good planning it should ignore it. However, if it considered that the policy was a reasonable approach to planning then, as a body acting reasonably and carrying out its functions properly, it should pay due regard and respect to that policy.

Mr Justice Geoghegan said that the third ground on which the application was made was unsustainable, especially having regard to O'Keeffe v An Bord Pleanala [1992] 1 IR 39. The respondent could not be bound by the inspector's view on severance. The respondent was entitled not to consider the remaining elements of the 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 applicant would not be entitled to certiorari on that particular ground.

Mr Justice Geoghegan therefore granted an order of certiorari on the first two grounds, and remitted the matter to the respondent for re-determination.

Solicitors: P.J. O'Driscoll & Son (Cork) for the applicant; TTL Overend McCarron & Gibbons (Dublin) for the respondent.