Thomas Stack and Ann Stack (applicants) v An Bord Pleanal a (respondent) and Kerry County Council and Michael McKiernan (notice parties).

Judicial Review - Leave to apply - Statement of grounds of the applicant - Whether substantial grounds for contending the impugned decision be quashed - Local Government (Planning and Development) Act 1963 - Local Government (Planning and Development) Act 1992, sections 13(2) and 19(3).

The High Court (Mr Justice O'Neill); judgment delivered 11 July 2000.

When seeking leave to apply for a judicial review pursuant to the provisions of the Local Government (Planning and Development) Act 1963 as amended by Section 19(3) of the Local Government (Planning and Development) Act 1992, the applicants must satisfy the court that there are substantial grounds for contending the decision which is impugned in the proceedings is invalid or ought to be quashed.

The High Court so held in granting the applicants leave to seek judicial review in respect of three out of nine grounds in their statement grounding their application for judicial review.

Eamon Galligan BL for the applicants; Nuala Butler BL for the respondent.

Mr Justice O'Neill said that in order to obtain leave to apply for judicial review pursuant to the provisions of the Local Government (Planning and Development) Act 1963 as amended by Section 19(3) of the Local Government (Planning and Development) Act 1992 ("the 1992 Act"), the applicants must satisfy the court that there are substantial grounds for contending the decision impugned in the proceedings is invalid or ought to be quashed. The applicants in their statement grounding their application for judicial review sought an order of certiorari quashing the decision of the respondent refusing permission for a development comprising of the construction of a one-and-a-half storey house with septic tank and percolation area at Barrow, Artfort, County Kerry.

On 7 May 1999 the first notice party granted planning permission to the applicants for the development. The site had been designated an Area of Secondary Special Amenity in the Kerry County Development Plans 1989 and 1996 whereby it was policy to restrict development to protect amenities and the natural beauty of the area. On 21 May 1999, the second notice party appealed the decision to the respondent, submitting that the proposed dwelling would injure the scenic and natural beauty of the area.

The senior planning inspector for the respondent recommended that planning permission be granted since the site was located at a relatively low level of the peninsula and that it would be subject to compliance with certain conditions. On 23 November 1999, a board direction was given that permission be refused accompanied with a note to the effect that the board did not consider that the circumstances involved were significantly different from those relating to another site to the west for which the respondent had recently refused permission. The respondent then made a decision to refuse planning permission on 23 November 1999 for the reason set out in a schedule. This was that the development would be located on a prominent site within an area designated Special Amenity, that it would seriously injure the scenic amenities and natural beauty of the area and would be contrary to the proper planning and development of the area.

In assessing whether or not the grounds set out in applicants' statement of grounds are "substantial grounds" for contending that the decision of the respondent is invalid and ought to be quashed, Mr Justice O'Neill followed McNamara v An Bord Pleanala [1995] 2 ILRM 125. In order for a ground to be substantial, it must be reasonable, arguable and weighty. A ground that does not stand any chance of being sustained could not be said to be substantial, and if a ground is considered substantial, the court does not evaluate each argument put forward in support of such a ground.

The first ground was that the respondents took into account other matters in making its decision without giving notice of such matters in writing to the applicants. It was submitted that in particular the respondent took into account unspecified information relating to the other site for which permission had been refused. The applicants submitted that the respondent had thus acted in breach of its statutory obligation under section 13(2) of the 1992 Act, so the decision was made ultra vires and was invalid and of no legal effect. Mr Justice O'Neill stated that it was not necessary for him to resolve the clearly conflicting submissions advanced for the purposes of deciding whether or not this ground is a substantial one. He stated that because the applicants had not been informed pursuant to section 13(2) that the respondent proposed to regard the application as no different to that other site they were not given an opportunity to make a case regarding any differences that might exist. This ground was thus a substantial ground.

Mr Justice O'Neill stated that the second ground (that the failure to notify and to afford opportunity to make submissions amounted to a breach of the principles of natural and constitutional justice) was similar in content to the first and was thus a substantial ground.

The third ground was that the decision flew in the face of fundamental reason and common sense and was so totally unreasonable as to be invalid, by reason of the fact that it was based on the conclusion that the circumstances were not significantly different from the earlier decision. The fourth ground was that the decision was so totally unreasonable as to be invalid by reason of the fact that there was no evidence on the basis of which that conclusion could have been reached. Mr Justice O'Neill applied O'Keeffe v An Bord Plean ala [1993] 1 IR 39 and said that in order to satisfy the court that the decision making authority acted irrationally, it was necessary to establish to the satisfaction of the court that the authority had before it no relevant material which could support its decision. Mr Justice O'Neill was satisfied that the third and fourth grounds were not substantial grounds, since there had been sufficient material before the respondent in the form of plans for the house and the inspector's report.

The fifth ground was that the decision was made ultra vires since the respondent failed to furnish any adequate reasons for its decision. It was the applicants' case that the respondent should have indicated what was wrong with the proposed development and that the decision was ambiguous since it could be read to mean either that the instant development proposal was defective, or alternatively that no development would be permitted on this site.

Mr Justice O'Neill stated that there was undoubtedly authority for this proposition in the neighbouring jurisdiction in Save Britain's Heritage v The Secretary of State for the Environment and Others [1991] 2 All ER 10, an authority which could be very persuasive. He said that it could be argued that authorities in this jurisdiction deal more with the form of decisions. This is to the effect that decisions, taken in their entirety, must be capable of demonstration to an intelligent person who was aware of the issues raised, what the reasons for the decision were. However, the essential content of the reasons for a decision was addressed in the Save Britain's Heritage case and what has happened in that case could be said to be a development of the law in this area that has not yet happened in this jurisdiction. Accordingly, Mr Justice O'Neill held that this was a substantial ground.

The sixth ground concerned the failure to furnish adequate reasons as to why the recommendation of senior inspector was rejected. Mr Justice O'Neill said that this was not a substantial ground as it is well settled that the respondent need not accept a recommendation of an inspector and has no obligation to explain a rejection of an inspector's recommendation. The seventh ground concerned material change in the background planning circumstances affecting the subject sight since the grant of outline planning permission in 1994 and the next ground concerned the failure to give adequate reasons in that regard. The final ground concerned the failure to furnish an adequate record of the decision for the purposes of review. Mr Justice O'Neill said that the applicants had not advanced any case in their application to persuade him that these grounds were substantial grounds.

Mr Justice O'Neill held that the applicants were entitled to leave to apply for judicial review on the first, second and fifth grounds.

Solicitors: O'Sullivan Cadogan (Kerry) for the applicants; Overend McCarron & Gibbons (Dublin) for the respondent.