wide streets

Murdoch's Term of the Week: An Bord Pleanála

The founding of the Wide Streets Commission in 1757 marked the first concerted effort at urban planning in Dublin. With a remit to transform the capital from a medieval town into a modern city fit for international commerce, the Commission oversaw the extension of Sackville Street (now O'Connell Street), to the River Liffey. This had the effect of moving the focal point of the city eastwards, a feature that has remained to this day. This week's TOTW examines our modern planning authority.

 

Bord Pleanála, An: 

A body corporate, consisting of a chairperson and 7 other ordinary members, which is required to perform the functions set out in the Act: Planning and Development Act 2000 ss.102-104. There is provision for an independent committee to select 3 candidates for consideration by the government for the post of chairperson (ibid s.105). The Minister appoints the 7 ordinary members as selected by prescribed organisations eg representing physical planning, engineering, architecture, construction industry, local government, rural and local communities, and persons concerned with the protection and preservation of the environment (ibid s.106). For amendments to s.106 see Planning and Development (Amendment) Act 2010 s.40.

It is an offence for a person to communicate with the chairperson, ordinary members, employees or consultants and advisors to the board for the purpose of influencing improperly the consideration of an appeal or referral or a decision of the board (ibid s.114).

The board may, in its absolute discretion, hold an oral hearing of an appeal or of a referral (ibid s.134). The board is required to have regard to the policies for the time being, of the government, a State authority, the Minister, and planning authorities (ibid s.143). The board is empowered to direct that such sum as it considers proper is paid by an appellant or the person making the referral or by the planning authority (ibid s.145). See also Planning and Development Act 2000 s.135 as amended by Planning and Development (Strategic Infrastructure) Act 2006 s.23 as amended by Environment (Miscellaneous Provisions) Act 2011 s.26.

Applications for planning permission for certain developments which are considered to be of strategic importance to the State may be submitted directly to An Bord Pleanála, and not a planning authority: Planning and Development Act 2000 s.37A (as inserted by Planning and Development (Strategic Infrastructure) Act 2006 s.3). Further amendments to s.37A have been effected by Planning and Development (Amendment) Act 2010 s.25. For that purpose, a special Strategic Infrastructure Division was established within the Board: s.112A of the 2000 Act (as inserted by s.19 of the 2006 Act).

Matters which go the board are largeley either APPEALS or REFERRALS (qqv). However, matters such as initial applications for STRATEGIC INFRASTRUCTURE (qv) as well as other matters listed in s.144(1A) of the 2000 Act as inserted by s.44 of the 2010 Act may also go to the board. An application for substitute consent may be made to the Board, see ss.177D and 177K of the 2000 Act as inserted by s.57 of the 2010 Act. For amendments to s.177D, see SI No 320 of 2015

Where a question of law arises on any appeal or referral, the board may refer the question to the High Court for decision (ibid s.50(1)). O.103 r.9 RSC states that this should be done by way of special summons: Rules of the Superior Courts (Planning and Development Act 2000) 2004 (SI No 813 of 2004).

Regarding meetings of the Board, see s.108 of the 2000 Act as amended by s.41 of the 2010 Act.

The board is entitled to take into consideration the common good as envisaged by the government eg as evidenced by its entering into an international agreement concerning the “Loran C” navigation system: Keane v An Bord Pleanála [1998 SC] 2 ILRM 241. Proceedings before planning authorities or before An Bord Pleanála are not legal proceedings within the meaning of s.22(1)(e) of the Interpretation Act 1937: O’Flynn Construction Co Ltd v An Bord Pleanála [2000 HC] ITLR (3rd Jan).

Where the board grants planning permission in contravention of a development plan, it should give its reasons for so doing: The Village Residents Association Ltd v An Bord Pleanála [1999 HC] ITLR (6th Dec). It was held that the board had fulfilled its statutory obligation on the question of the adequacy of the reasons stated: Village Residents Association v An Bord Pleanála (No 3) [2001 HC] 1 IR 441. The reasons on which a decision of the Board is based must be sufficient to enable the courts to review the decision and to satisfy persons having recourse to the Board that it had directed its mind adequately to the issues before it: Cork City Council v An Bord Pleanála [2006] IEHC 192; [2007 HC] 1 IR 761.

The Board is obliged to state the main reasons and considerations on which a decision was based. It has been held that the statement of reasons and considerations had to be sufficient (i) to give an applicant such information as might be necessary or appropriate for him to consider whether he had a reasonable chance of succeeding in judicially reviewing the decision, (ii) to enable him to arm himself for the hearing of any such judicial review, (iii) to enable him to know if the respondent had directed its mind adequately to the issues before it, and (iv) to enable the courts to review the decision: Grealish v An Bord Pleanála [2006] IEHC 310; [2007 HC] 2 IR 536.

It has been held that where An Bord Pleanála had made available to each party the submissions of the other for comment, this fully satisfied the requirements of NATURAL JUSTICE: Fairyhouse Clubs Ltd v An Bord Pleanála [2001 HC] ITLR - 15th Oct.

There was no requirement that a referral of a matter by a county council to the Board be contained in one document only; if the grounds of a referral and the reasons, considerations and arguments on which it was based could have been discerned by the Board from a written document or series of documents, the referral should not be condemned as invalid for failure to comply with the mandatory provisions of Planning and Development Act 2000 s.127(1)(d): O’Reilly Brothers (Wicklow) Ltd v An Bord Pleanála [2006] IEHC 363; [2008 HC] 1 IR 187.

A decision of the Board to twice grant planning permission for a landfill was quashed by the High Court on the grounds of OBJECTIVE BIAS (qv), see: Usk and District Residents Association v An Bord Pleanála [2009] IEHC 346; [2010 HC] 2 ILRM 235; [2010 HC] 4 IR 113; [2009 HC] ITLR (26 Oct).

See Killiney and Ballybrack Development Association v Minister for Local Government [1974 HC]; Geraghty v Minister for Local Government [1976] IR 153; O’Keeffe v An Bord Pleanála and Radio Tara [1992 SC] ILRM 237 and [1993 SC] 1 IR 39. See also Cáirde Chill an Disirt Teo v An Bord Pleanala [2009] IEHC 76; [2009 HC] 2 ILRM 89. See Kimber in 11 ILT & SJ (1993) 17. See Planning and Development Regulations 2001, Part 7, arts.56 - 78: SI No 600 of 2001 as amended by SI No 235 of 2008. See also Public Service Superannuation (Misc Provs) Act 2004, Schedule 2. See website: www.pleanala.ie. [Bibliography: Galligan (1)]. See CODE OF CONDUCT; PLANNING APPEAL; STRATEGIC INFRASTRUCTURE.

 

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