Title:	White & anor -v- Dublin City Council & ors
Neutral Citation:	[2004] IESC 35
Supreme Court Record Number:	44, 46 & 47/03
High Court Record Number:	2000 492 JR
Date of Delivery:	06/10/2004
Court:	Supreme Court
Composition of Court:	Denham J., Murray J., Mc Guinness J., Fennelly J., McCracken J.
Judgment by:	Fennelly J.
Status:	Approved
Result:	Dismiss
Judgments by Link to Judgment Concurring Denham J. Link Murray J., Mc Guinness J., McCracken J. Fennelly J. Link Murray J., Mc Guinness J., McCracken J.

The Applicants (whom I will refer to as “the Whites”) are the joint owners of number 10 Park Lane, Chapelizod, Dublin 20. The Notice Party (whom I will refer to as Mr Tracey) owns and lives in the adjoining house, number 11. Both dwellinghouses are adjacent to Phoenix Park. The Whites originally acquired the land on which the houses are now built about 1986.

There was a substantial amount of open space or garden in the curtilage of number 11. The case concerns Mr Tracey’s attempts to get planning permission for a new house to be built on this ground. There were some earlier planning events, but these are of only passing relevance. Mr Tracey obtained planning permission for an extension about 1993, but did not proceed with it. The Whites obtained planning permission for and built a conservatory to the rear of their house. There was no difficulty or conflict between the parties regarding these matters.

Number 10 adjoins number 11 at a slightly unusual angle. For the purposes of this appeal, the crucial fact is that the rear garden of number 10, the Whites’ house, lies to the east of the site of Mr Tracey’s proposed house.

In June 1999, Mr Tracey, through his architect, applied for planning permission to build “a two storey, with attic, single family dwelling on land adjacent to an existing house on Park Lane, bordering Phoenix Park.” The required public notices were given. Mr Tracey showed the Whites copies of the drawings that had been lodged. He drew attention to the east elevation to indicate that there would be no windows in that elevation, the one facing the Whites’ property. He also pointed out that two windows on the proposed south elevation nearest to the Whites’ boundary would contain obscure glass.

The Whites consulted an architect, who inspected the planning application (reference 1822/99) and advised them that the proposed development would not overlook or overshadow their property. He also advised that Mr Tracey was unlikely to get planning permission. Although the Whites were unhappy with the height of such a development close to their boundary wall, they decided, in view of the architect’s advice, and, in particular, the fact that they would not be overlooked, as well as in the interests of good prior neighbourly relations, that they would not object to the application and they did not do so. Nonetheless, permission was refused by the first-named Respondents/Appellants, then called the Mayor, Aldermen and Burgesses of Dublin, or Dublin Corporation. The title to the proceedings has been amended to refer to the latter under the name of Dublin City Council (hereinafter “the planning authority”). The Decision Order refusing permission was made on 5th August 1999.

The reasons for refusal related principally to the height and size of the proposed development. One reason related to the fact that its “window orientation” would result in a “high degree of overlooking” of Phoenix Park. Another reason stated that “due to its height, size, design and position in relation to immediately adjoining property [it] would be seriously injurious to the amenities of such property through overshadowing and visual obtrusion.”

In short, the permission was refused for the potential of the proposed dwelling to overlook Phoenix Park, but not the residence or garden owned by the Whites. This was because the plans were so drawn that the house would not, in fact, overlook the Whites’ property.

Mr Tracey was unhappy with this decision. He felt, rightly or wrongly, that he had been led to believe by two planning officials that his proposals were acceptable from a planning point of view. While he was aware that planning officials could give no binding commitments and the decision-making power of the planning authority could not be fettered by exchanges between developers and officials, there had been no objections to the development. He was not expecting to receive a refusal on such comprehensive grounds. It is unnecessary to decide the merits of this dispute or misunderstanding or even if there was one. Neither of the two officials who dealt with Mr Tracey’s first application was called as a witness in the High Court. The background is important only for the light it casts on the handling of Mr Tracey’s second application, to which I now turn.

Firstly, however, it should be noted that Mr Tracey, in early September 1999, lodged an appeal with An Bórd Pleanála against the refusal of the first application.

By a new application, lodged with the planning authority on 17th September 1999, Mr Tracey’s architect applied for permission for “the construction of a new two storey with attic single family dwelling of a nett area of 130 sq. metres.” The second application was very substantially similar to the first. The public notice was identical. The application stated: “Due to the location of the existing house and its neighbour, views are only permissible to the north and west from the proposed house, in order to avoid overlooking.” In this respect, therefore, there was no change. The principal variations, compared with the first application were: floor area was reduced by 3 square metres; the site was moved slightly forward toward Park Lane and away from the Whites’ boundary; a balcony which would have overlooked Phoenix Park was eliminated. The Whites’ architect when he later - after the grant of permission - inspected these plans, considered these alterations to be extremely minor and designed only to make the application appear sufficiently different from the first application to constitute a new application.

In October 1999, Mr Tracey wrote to the planning authority, enclosing a letter from his architect, to express dissatisfaction with what he considered to be the unsatisfactory manner in which the earlier application had been handled. Mr Tracey stated that he had fulfilled the requirements of the planning officer before submission and that he was “shocked when permission was refused on totally different grounds.” He claimed that he had had a similar experience with another officer. Both these officers had left, it was said, without passing on their views. The architect asked for the name of the new officer in charge in order to arrange a meeting to discuss the background to a design which had earlier been considered to be acceptable.

Mr Kieran Rose, Senior Executive planner with the planning authority received and considered this correspondence. He said in evidence in the High Court that he regarded the complaints made as being serious in terms of a public authority and its dealings with an applicant for planning permission. He arranged a meeting which took place on 29th November 1999. This was attended by Mr Tracey, his architect and a planning expert as well as four planning officials. These were Mr John Martin, Deputy Chief Planning Officer, Mr David Dunne, Chief Planner, Mr Kieran Rose, Senior Executive Planner and Mr Michael McGinty, Executive Planner. Mr Tracey and his representatives reiterated their displeasure at the manner in which he claimed to have been treated, as outlined in his letter. Mr Rose expressed regret at these matters, but disputed, in his evidence, that this expression amounted to an apology.

The discussion then focused on ways in which the application could be modified so as to address the reasons given for refusal of the first application and to make it acceptable in terms of proper planning and development. In particular, the meeting considered Reason Number 4 of the earlier decision which concerned the location of the proposed dwelling in the garden area of an existing house and which would result in inadequate curtilage for both houses with “consequent serious injury to the amenities of property in the vicinity.”

The planners were conscious of the position taken by the planning authority in refusing the first application. “The changes in the first application were not,” as Mr Rose put it “sufficient to warrant a change of decision.” Mr Dunne proposed that notice might be given to Mr Tracey pursuant to Article 35 of the Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994) inviting Mr Tracey to submit revised plans or drawings modifying the proposed development. As will be seen, when I come to consider Article 35, it operates when the planning authority is disposed to grant permission subject to such modifications. It is clear, therefore, that the entire tenor and substance of the meeting was that Article 35 would be employed so that Mr Tracey would modify the application in such a way as to be acceptable to the planning authority and that permission could be granted without appearing to conflict with the earlier refusal. It was central to this approach that the second application, as it stood, was insufficiently different from the first to justify the planning authority in deciding to grant permission for a development so similar to one which it had recently rejected. Mr Tracey was confident, following the meeting, that he would get his permission, by following the Article 35 procedure. His confidence was such that he withdrew his appeal to An Bórd Pleanála. There was no discussion as to whether Mr Tracey would be required to publish any new notice of the application.

In the period following the November meeting, Mr Tracey’s architect effectively agreed the modifications with the planning authority. These procedures also made it necessary to extend the time for dealing with the application. Four extensions of time were agreed with the applicant and were made the subject of decisions on 10th November, 1st December 1999 and 26th January and 23rd March 2000.

The modifications actually made were indicated on 25th January 2000. Mr Rose sent an internal memorandum to Mr McDonnell, saying that discussions had been held with the applicant’s architect and representatives of the planning department and that “it was agreed that the following changes would allow a favourable decision.” He proposed asking Mr Tracey to submit revised plans under Article 35 and specified the modifications that should be required. The planning authority wrote formally, on the direction of the Assistant City Manager, to Mr Tracey on 14th February and in accordance with the terms of Mr Rose’s memorandum, to the following effect:

“I recommend the applicant to submit revised drawings under Article 35 of the Planning Regulations as follows:

(a) Bring forward the buildings to the street frontage.

(b) Confine the dormer to the rear.

(c) Provide private open space for existing and proposed houses to Development Plan standards.

(d) Reorientate ridge to a north south line.

(e) No increase in the footprint of the building.

(f) A high quality design and finish on all areas visible to the public.”

The Whites were not aware and were not made aware of the changes that became incorporated into Mr Tracey’s application, following the implementation of the Article 35 procedure. From the foregoing summary, it can be seen that the modified plans were not lodged until 21st February 2000 and the decision to grant was made on 20th March 2000. Because the Whites did not object to a development which would not overlook their property, they did not register any objection with the planning authority. If they had, they would have been informed of the modifications. Even if they had been exceptionally vigilant in inspecting the planning file, they would have found nothing untoward until after 21st February 2000.

Mr Tracey informed the second-named applicant on 26th May 2000 that he had obtained planning permission. The latter inspected the planning file on 29th May 2000 and learned for the first time that modifications had been made to the drawings and that these formed the basis for the grant of permission. He stated that he was shocked to discover this, as Mr Tracey now had planning permission for a house with six windows on the east elevation and two windows on the north elevation. He subsequently had a conversation with Mr Tracey, who said that the planning authority had forced him to change the plans.

Article 35 makes no provision for readvertising applications, following the submission of modified plans or drawings, pursuant to a requirement of the planning authority. The planning authority has, however, power, under Article 17(3) to require new public notices.

Mr Rose, in his internal written communication of 25th January 2000 to Mr McDonnell made no reference to whether a new public notice should be required. He simply did not mention the matter. In his evidence, in the High Court, he said that it was a matter “for the judgement of the planning authority” whether a new public notice was necessary. He did not “consider it necessary to readvertise the proposed development.” He explained his reasons for this conclusion very fully. It is sufficient, for the purposes of this appeal, to say that, on the central issue of “overlooking,” he did not consider the change to be significant. He laid stress on the village location of the development. There would be no greater degree of overlooking than might be expected in a suburban site. He concluded that the particular level of overlooking was acceptable.

The Proceedings to Date

The Whites served Notice of Motion seeking Judicial Review of the decision of the planning authority on 13th September 2000. This was, of course, outside the two-month time limit for challenging planning decisions laid down in section 82(3B)(a) of the Local Government (Planning and Development) Act, 1963 as inserted by section 19 of the Local Government (Planning and Development) Act, 1992. Accordingly, the Whites included in their Judicial Review application an application for a declaration that this provision is invalid, having regard to the provisions of the Constitution.

On the assumption that the two-month time limit was unconstitutional, and on the further assumption that the court would have power to extend any applicable time limit, the Whites considered that they would need to get the time extended and they made an application for amendment of the Judicial Review grounds so as to include an application for an extension of time pursuant to Order 84, rule 21 of the Rules of the Superior Courts. However, they commenced their application within six months from the making of the impugned decision.

The High Court made orders declaring that the Whites had locus standi to challenge the validity of the section and granting leave to apply for Judicial Review.

The full Judicial Review proceedings were heard by O’Caoimh J in the High Court over five days in January and February 2002. The hearing consisted of consideration of a large number of affidavits and the cross-examination of a number of witnesses.

O’Caoimh J dealt, firstly, with the non-constitutional issue. He thought that the decision-making process was “very far from transparent and appear[ed] to have been conducted in a manner to ensure that the Applicants would not be aware of the nature of the proposed grant of planning permission prior to its grant.” He though that the use of the Article 35 procedure had resulted in the grant of a permission very far removed from the initial application made in September 1999. He considered that the exercise of the discretion conferred by Article 17(3) of the Regulations should be viewed in the overall context of the Planning Acts and the need for transparency in the decision-making process. He did not see how “a planning authority could not consider that re-notification or re-advertising was not necessitated in view of the very fundamental change effected between the planning permission sought and the ultimate decision to grant planning permission with the “modifications.””

O’Caoimh J, in his judgment of 25th May 2001, outlines the facts surrounding the period between the time the Whites learned of the planning decision and the issue of proceedings in September, but does not appear specifically to have addressed the issue of extension of time. Where the section contained no provision for an extension of time, he considered it idle to speculate on what the outcome would have been, if it had. It seems that the application for Judicial Review was commenced within the normal period of six months for an application for certiorari. At any rate, no point on this issue has been raised on the hearing of the appeal. O’Caoimh J declared the section to be unconstitutional and granted an order of certiorari in relation to the decision to grant planning permission. He also certified, pursuant to section 82 (3B)(b) of the same act, that his decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court. The certified point is:

“In the light of the discretion vested in a local planning authority such as Dublin City Council to decide whether any proposed modifications in an application for planning permission warrant fresh notices and re-advertising is it open to a court to conclude in a given case that the decision is unreasonable or irrational notwithstanding any purported explanation for the decision taken.”

The central point made on behalf of the Whites may be made quite simply. The development envisaged in the original application would have contained no windows overlooking their property. The planning authority required that the application be modified so as to orientate windows in an easterly direction which would, indeed, overlook their property, i.e., their rear garden. They were aware of the application as lodged. They had been given the plans of the first application and had caused it to be inspected by an expert planner. They had - correctly - been informed that the second application was closely similar. Therefore, they had not objected. They were unaware of the modifications which had the effect of reorientating the windows so as to overlook their property, as they had never been advertised.

The planning authority and Mr Tracey respond that it was a matter for the planning authority to decide whether a new notice should be required. They were not obliged to do so. Article 17(3) is discretionary. Mr Rose duly and properly considered this issue from the point of view of the proper planning and development of the area. The court should not overrule his decision merely because it disagrees with him. He gave ample reasons for his decision, which cannot be regarded as irrational.

Priority between Constitutional and other Issues

The Whites’ claim is, of course, prima facie, statute-barred. It is not contested that, in order to succeed, they have to show that section 82(3B)(a) of the Act of 1963, as amended is unconstitutional. The planning authority suggests, in its written submissions, that it may be appropriate to consider the constitutional issue in advance of the other issues. If the section is not unconstitutional, there is no need to reach a conclusion on the planning issue. That approach is not permissible.

It is well-established in the case law of this Court that a challenge to the constitutionality of a statute will not normally be addressed until the person mounting the challenge shows that he is affected by the provision. Finlay C.J. stated that it is clear from the “jurisprudence that the Courts should not engage in the question of the possible invalidity of an Act of the Oireachtas unless it is necessary for its decision to do so.” (McDaid v Sheehy [1991] I.R. 1 at page 17.) Where there are points which do not entail such a question, it follows that they must be dealt with first. If they are decided against the party raising the constitutional question, the latter will not normally be reached. Alternatively, as in Roche v Minister for Industry and Commerce [1978] I.R. 149, a party may succeed on a non-constitutional ground. In that case, the court declared invalid, for non-compliance with a statutory provision, an order made by the Minister under the Minerals Development Act, 1940. The plaintiff, therefore, succeeded in his objective and this Court was unanimously of the view that it was unnecessary to deal with the validity of the section.

A possible exception is recognised in two judgments. O’Higgins C.J. in M. v An Bórd Uchtála [1977] 287, at page 293, thought that “there may be circumstances of an exceptional nature where the requirement of justice and the protection of constitutional rights make the larger [i.e. constitutional] enquiry necessary.” Finlay C.J. in Murphy v Roche [1987] expressed the view that the principle must be subject in any individual case to the overriding consideration of doing justice between the parties.

When considering the consequence of that principle for the present case, it is most material to consider the case of Brady v Donegal County Council [1989] I.L.R.M. 282. In that case, the planning issue was whether the newspaper, the Derry Journal, in which a notice of a planning application for County Donegal was published, circulated in the area of the proposed development. Costello J, in the High Court, without deciding that preliminary issue of fact, entered on a determination of the constitutionality of the statutory provision at issue in the present case. His attention was not drawn to the case law, referred to above (insofar as it had been decided at that time). He decided that the section was unconstitutional. In this Court, Finlay C.J., speaking for a unanimous court, held that, without a determination of whether the newspaper circulated in the area of the proposed development, the Court should not consider the constitutional question. The plaintiffs had no locus standi unless that was decided in a particular way. Therefore, the entire matter was remitted to the High Court.

In my view, the logic of those decisions is that it would not suffice for the Whites to show that they wish to impugn the validity of the planning permission. It is, no doubt, possible to say that it would be simpler and more convenient for the court to address the constitutional issue first. However, there is no overriding consideration, in the interests of justice, for departing from the normal rule. I am satisfied that it must be shown that their claim is well-founded, in short that it would succeed. If, on the other hand they fail on the planning issue, it will be unnecessary to consider the constitutional issue.

Conclusion on the Planning Issue

O’Caoimh J effectively considered that the decision of the planning authority not to demand that Mr Tracey re-advertise his application, having regard to the modifications required through the Article 35 procedure, was so unreasonable as to be irrational. Consequently, the Whites were deprived of any reasonable opportunity to object. This invalidated the decision to grant permission.

Article 35 of the Regulations provides:

“Where a planning authority, having considered a planning application, are disposed to grant a permission or an approval subject to any modification of the development to which the application relates, they may invite the applicant to submit to them revised plans or other drawings modifying, or other particulars providing for the modification of, the said development and, in case such plans, drawings or particulars are submitted, may decide to grant a permission or an approval for the relevant development as modified by all or any such plans, drawings or particulars.”

“3) Where—

(a) plans, drawings or other particulars are submitted to a planning authority by an applicant in response to an invitation under article 35, or

(b) [not relevant]


the planning authority may, where they consider it necessary so to do, require the applicant to give such further notice in such manner and in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement.”

The planning authority, and, in particular, Mr Rose considered that Mr Tracey had legitimate grounds for complaint about the manner in which the first application had been handled. For that reason, a special meeting was, quite reasonably, arranged for Mr Tracey and his advisers with a number of senior planning officials. The discussion turned to addressing the reasons for refusal in such a manner as to devise modifications which would enable planning permission to be granted. In the view of the planners, the second application was not sufficiently different from the first to warrant a departure from the position adopted in the refusal of that first application.

The procedure under Article 35 was identified as the means by which these twin objectives would be achieved. The application would be sufficiently altered to justify a departure from the refusal and the new application could be granted.

The crucial element in the required modifications which were identified was that orientation of the proposed house would be turned ninety degrees. The result would be that, instead of being merely visually obtrusive to the occupants of Number 10, the proposed house would overlook the garden of Number 10.

In this situation, Mr Rose seems to have made the crucial decision that the amount of overlooking would not be significant and that, consequently, the planning authority should not exercise its statutory power to require Mr Tracey to publish any new notice of the application. The consequence was that the Whites had no reasonable means of knowing that the plans had been altered in this way. To compound this aspect of the matter, because they had been prepared to accept the “visual obtrusion” of the first version with no overlooking, they had not lodged any objection with the planning authority. If they had, they would have been informed of the modifications.

It now has to be decided whether this decision can properly be described as so irrational as to warrant the quashing of the permission. The test of irrationality is propounded authoritatively in the judgment of Henchy J, with which the majority of the Court agreed, in The State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642 at page 658:

“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”

“These considerations, described by counsel on behalf of the appellants as the height of the fence against judicial intervention by way of review on the grounds of irrationality of decision, are of particular importance in relation to questions of the decisions of planning authorities.

Under the provisions of the Planning Acts the legislature has 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 are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.”

I would certainly be prepared to accept that the Court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr Rose were a substantive decision of the planning authority or of An Bórd Pleanála to grant planning permission in spite of the degree of overlooking of the Whites property, in circumstances where the Whites had been on notice and whether or not they had objected, it would have been extremely difficult if not impossible to quarrel with it, still less judicially review it.

I believe, however, that Mr Rose’s reasoning was flawed. He was, in reality, acting as if he was deciding whether permission should be granted. In considering whether the modified plans should be re-notified, he should rather have asked himself, in the circumstances of the application before the planning authority, whether some members of the public might reasonably wish to object to the plans as modified. Much was made in argument of the fact that the statutory notices are for the benefit of the public and are not directed to any individuals. That is an unduly narrow interpretation. The members of the public likely to be most closely affected by a planning application are the nearest neighbours, a fact implicit in the reasons given for the original refusal. Mr Rose, by assessing the degree of overlooking without allowing for the possibility of objection, was effectively deciding, without hearing possible objectors, that there was no reasonable basis for objection.

Mr Rose should have considered the history of the two applications. The first and the unmodified version of the second application were, as is common ground, very similar. In particular, they did not involve overlooking of Number 10 and there was very specific reference to the lack of overlooking. He should have realised that the planning authority was requiring modifications precisely to differentiate the plans sufficiently from the notified application. He should have appreciated that the essential modification being required by the planning authority would necessarily and automatically substitute overlooking for visual obtrusion and that Mr Tracey had specifically informed the planning authority that the neighbours had been shown the plans on the basis that there would be no overlooking.

I do not say that the planning authority’s decision was irrational in the broad sense. Mr Rose’s planning expertise is undoubted. I consider rather that Mr Rose, on behalf of the planning authority, excluded from his consideration the likelihood that the Whites would want to object and that, if they did, the planning authority would have had to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and irrational. The planning authority created a dilemma for itself by requiring modifications in order to differentiate the second application sufficiently to justify a departure from the decision to refuse, but which would be, nonetheless, not sufficiently different to warrant a new public notice. This is a very fine line to tread. This factor is special to this case. It would not arise in every case of Article 35 modifications. Article 35 accords a substantial discretion to a planning authority and clearly envisages a wide range of cases in which modifications to a planning application should not require new public notices but the radical nature of the changes to the application in this case make it exceptional. In this case, there should have been new notices, which should have included mention of modified plans. For this reason, I would answer the point certified by O’Caoimh J in the sense that it was open to him, in the circumstances of this case to conclude that the decision of the planning authority, having required modifications to the application as lodged, not to require that it be re-advertised by new public notices was unreasonable and irrational.

For these reasons, I would uphold the decision of the learned High Court judge on the planning issue. The Whites are entitled to an order of certiorari quashing the decision to grant planning permission, subject to the effect of the two-month time limit, which is considered in the judgment of the Court.