THE COURT OF APPEAL
Peart J.
Birmingham J.
Hogan J.
Neutral Citation Number: [2018] IECA 27
Record No. 2016/294
BETWEEN/COLM MOORE
- AND -
THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT
FIRST NAMED RESPONDENT /
APPELLANT
- AND -
DUBLIN CENTRAL LIMITED PARTNERSHIP
NOTICE PARTY
Record No. 2016/296
BETWEEN/COLM MOORE
- AND -
THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT
FIRST NAMED RESPONDENT /
- AND -
DUBLIN CENTRAL LIMITED PARTNERSHIP
APPELLANT
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of February 2018
1. In this separate judgment I propose to address the planning issues arising in the separate proceedings brought by Mr. Moore under s. 160 of the Planning and Development Act 2000 (“the 2000 Act”). This judgment pre-supposes that the reader is familiar with the judgment in the National Monuments Act proceedings which has just been delivered this morning. The present judgment is, in effect, a sequel to that earlier judgment and cannot really be understood save by reference to it.
2. In this appeal, the appellant, the Minister for Arts, Heritage and the Gaeltacht (“the Minister”)(and joined by the notice party, Dublin Central Limited Partnership) appeals against an order of the High Court (Barrett J.) of 8th April 2016 granting injunctive relief pursuant to s. 160 of the Planning and Development Act, 2000, (as amended)(“the 2000 Act”). Put simply, the Minister is appealing against an order that restrained the demolition of 13, 18 and 19 Moore Street and also restrained the development of a commemorative centre at 14 -17 Moore Street, Dublin, on the basis that the development was unauthorised.
3. The appeal presented is potentially wide-ranging, but at its heart the Minister’s case is essentially as follows: First, the development at issue was the subject of the grant of a planning permission and has been authorised by a valid consent pursuant to s. 14 of the National Monuments Acts 1930 – 2004. Second, s. 260 of the Planning and Development Act 2000 expressly disapplies the entire 2000 Act in relation to development that has been the subject of such a consent and it follows that the development did not amount to unauthorised development. Third, in any event, the development at issue was, in planning terms, an immaterial deviation from the development that was authorised by the planning permission. Finally, it is said that the development at issue was, in all the circumstances, development in relation to which the Court ought to have exercised its discretion and withheld relief.
4. In order to appreciate the context in which these submissions are made it is necessary first to understand the background facts.
5. On the 24th April 2008 Chartered Land Limited (the predecessor in title of Dublin Central Limited Partnership) applied for planning permission for a large mixed-use development comprising retail, recreational and commercial and residential development, as well as extensive demolition and conservation works on a site of 2.17 hectares which consists of most of the block enclosed by Upper O'Connell Street, Henry Street, Moore Street, O'Rahilly Parade and Parnell Street in Dublin 1. The proposed development included, inter alia, 109 retail units, an anchor store, and 108 apartments, all to be comprised in four distinct blocks, new north-south and east-west streets, three public spaces and a sloping roof-garden. The proposed blocks thus comprised: (i) Block ‘A’ with a building adjoining Moore Street, Henry Street and Block C; (ii) Block ‘B’ facing onto Moore Street, O'Rahilly Parade, and the north-south street; (iii) Block ‘C’, the retail anchor store, facing onto O'Connell Street, the plaza adjoining the east-west street, and Moore Lane, and (iv) Block ‘D’, facing onto O'Connell Street at the plaza and east-west street. There was a proposed net floor area of 72,068m2 within the overall development, of which 77 per cent (55,593m2) was to be allocated to retail use.
6. Planning permission was first granted by Dublin City Council. An appeal to An Bord Pleanála was conducted by way of an oral hearing. An inspector for An Bord Pleanála prepared a report of June 2009 which recommended refusal of the permission, though he noted that An Bord Pleanála might consider requesting revised plans under s.132 of the 2000 Act. At a meeting on the 10th August 2009 An Bord Pleanála decided to issue a notice to Chartered Land requiring it to submit amended drawings to address certain issues. In response to this last-mentioned notice, on the 9th November 2009, Chartered Land submitted amended plans to An Bord Pleanála. In February 2010 these amended plans were the subject of a further report by An Bord Pleanála inspector.
7. On the 24th March 2010, An Bord Pleanála granted planning permission to Chartered Land in respect of the amended plans that had been submitted to it (“the 2010 permission”). That 2010 permission provided for, inter alia, 83 retail units, 14 café/restaurant units and an anchor restaurant/café, 22 residential units, office space of circa 4,296m2, a gallery, an assembly hall, a new public street, car parking, bicycle parking, and a commemorative centre. The permission provided that:
“All other buildings, other than the protected structures and façades, national monuments and other non-protected structures and façades noted above, are to be demolished.”
8. As I have just noted in the National Monument judgment, Nos. 14-17 Moore Street had already been made the subject of a preservation order in January 2007 by the Minister pursuant to s. 14 of the National Monuments Act 1930 (“the 1930 Act”). The preservation order did not then extend to Nos. 13, 18 and 19 Moore Street. The 2010 permission contained the following conditions:
“The development shall be carried out and completed in accordance with the plans and particulars lodged with the application as amended…except as may otherwise be required in order to comply with the following conditions. Where such conditions require details to be agreed with the planning authority, the developer shall agree such details in writing with the planning authority prior to the commencement of development and the development shall be carried out and completed in accordance with the agreed particulars…..
5. No works shall commence within the preservation order boundary of the National Monument at 14-17 Moore Street unless the prior Ministerial Consent to such works has been obtained in accordance with the statutory requirements of s. 14 of the National Monuments Acts 1930 - 2004.
Reason: In interests of clarity, having regard to the inclusion within the site of works to a National Monument.”
9. Chartered Land subsequently applied to the Minister for a consent pursuant to s. 14 of the 1930 Act for the carrying out of works in relation to Nos. 14-17 Moore Street. By decision of the 16th July 2013 the Minister issued a consent (“Consent C 494”) that refused consent for certain of the works in respect of which consent had been sought. Among the works for which the Minister withheld consent were the construction of a two-storey extension to the north-west elevation of No.17 and an extension at basement and ground levels to the rear of No.14. The Minister required the submission of revised plans.
10. Chartered Land submitted revised plans to the Minister and on the 30th April 2014 the Minister issued a fresh consent which stated that its “conditions shall be read in conjunction with the conditions attached to Consent C494” (“the Consent”). Nos. 14 - 17 Moore Street were then subsequently acquired by the State in September 2015 and it thus became the on-site developer of the national monument. The major change proposed by the Minister was that the commemorative centre would cover all of Nos. 14-17 Moore Street and would not extend simply to No. 16 Moore Street as had been originally proposed in the original planning permission which had been granted to Chartered Land.
11. Just like the judgment on the 1930 Act, this appeal presents a variety of difficult and diverse legal issues. The first question which falls to be considered is whether the changes proposed by the Minister amount to material changes – in planning terms – from previously approved plans. It is to that issue to which I will first turn.
Are the proposed changes material?
12. The starting point in any consideration of this issue of whether the changes were material is, quite obviously, to look at the changes themselves. The planning permission obtained by Chartered Land was only for the use of No. 16 Moore Street as a commemorative centre, with a café/restaurant use at No. 14 Moore Street, a retail and ancillary office use being indicated at No. 15 Moore Street and a retail unit with ancillary offices at No. 17 Moore Street. By contrast, the proposed works envisaged by the Minister involved a commemorative centre over all of Nos. 14 to 17 Moore Street.
13. In his judgment in the High Court on this point, Barrett J. noted:
“Mr. Moore contends that the developments being carried out, or proposed to be carried out by the Minister . . . pursuant to the ministerial consent is not the same development for which permission was granted and that there are material differences in terms of the works to be done. He points to the following differences:
(i) A new two-storey structure that is to be built against a northern party of No. 17 Moore Street;
(ii) whereas under the planning permission retail unit G7 was omitted (along with other changes under Condition 4), the s.14 consent will reinstated retail unit G7 with other changes to be made to retail units G8 to 10;
(iii) whereas the planning permission makes reference to a change of use of No. 16 Moore Street to a Commemorative Centre, only No. 16 is mentioned, yet the centre contemplated by the [ministerial] consent extends to Nos. 14 to 17 and part of 18;
(iv) the initial s. 14 consent refused consent to, inter alia, certain demolition works; this necessitated certain changes to the proposed design and layout of the Commemorative Centre;
(v) notwithstanding that Nos. 14 to 17 Moore Street are protected structures, the revised consent of 30 April 2014 includes conditions requiring the submission of (i) further details concerning the proposed construction, finishes and use of the extended basement to the rear of No. 14, (ii) a detailed review of the underpinning strategy and (iii) detailed plans of proposed structures to be placed within the footprint of Nos. 8 and 9 Moore Street . . .”
14. Barrett J. then concluded:
“Turning to a consideration of all of the above mentioned things, it might perhaps be contended that individually any of these changes is not a material difference; even if this were so, the cumulative scale of changes arising has the effect that this argument loses all persuasiveness. That the above changes are material and significant is evidence from the above mentioned point. It is evident too from certain oral evidence provided in the course of the judicial review proceedings with Mr. Terry Allen [who is the Principal Officer of the National Monument Section in the Department of Arts, Heritage and the Gaeltacht] stating, inter alia, that ‘there would be significant changes introduced in the consent to what the planning permission would have provided for. . .’ Mr. Allen further stated under cross-examination that so far as he is aware, no further planning permission was sought in respect of these ‘significant changes’ nor has any variation or modification of said planning permission been sought”.
15. For my part, I cannot but agree with Barrett J. that what was proposed by the Minister amounted to a material change of use. A commemorative centre is, in fact, a different use category to retail, office and café/restaurant uses and one would, I think, struggle to say that these uses are not different in planning terms. This is confirmed by the fact that a commemorative centre – which in the specialist lexicon of planning law might fairly be described as a museum or exhibition hall - is contained in a different use category to that of office, retail and café/restaurant use in Part 4 of Schedule 2 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001)(“the 2001 Regulations”) for the purposes of being exempted development. Thus, Class 10 comprises:
“Use as—
(a) an art gallery (but not for the sale or hire of works of art),
(b) a museum,
(c) a public library or public reading room,
(d) a public hall,
(e) an exhibition hall,
(f) a social centre, community centre or non-residential club, but not as a dance hall or concert hall”. (emphasis supplied)
16. A shop is, however, retail use and thus comes under Class 1. Office use comes under Class 2 and there is no category for café/restaurant use. In fact, it may be noted that the definition of a shop contained in Article 5 of the 2001 Regulations specifically excludes a restaurant use:
“…but does not include any use associated with the provision of funeral services or as a funeral home, or as a hotel, a restaurant or a public house, or for the sale of hot food or intoxicating liquor for consumption off the premises except under paragraph (d), or any use to which class 2 or 3 of Part 4 of Schedule 2 applies.”
17. Clearly, a café/restaurant use will by its nature be different in planning terms to a commemorative centre, as there will be implications for such diverse matters as opening hours, deliveries, potential noise, odours, not least if alcohol is also served therewith.
18. It should also be observed that the much larger commemorative centre now planned by the Minister comprising over three (or perhaps four) different structures - as compared to the use of No. 16 Moore Street alone in the original planning permission - is likely to be a more significant visitor or tourist attraction. This will, accordingly, have an impact on the volume and, indeed, the profile of persons visiting the centre. All of this may also impact on other businesses in the area and, indeed, the character of the area may also possibly be affected. Since, moreover, no application to vary or modify the planning permission has been made by the Minister there has been, accordingly, no opportunity for third parties to state how they may be affected by this change of use.
19. There is, moreover, the further consideration that the Minister’s proposals would, as Barrett J. noted, significantly affect the physical structure and layout of the three buildings in Nos. 14-17 Moore Street as compared with the original proposals. All of the changes are set out in elaborate detail in the High Court judgment. One does not, I think, need to be a planning specialist to appreciate these proposed changes are at least appreciably – indeed, it would be probably more correct to say, significantly - different from that comprised in the original planning permission.
20. All in all, the Minister is proposing significant changes in terms of both physical structures and use in respect of development along a very busy urban street which has extensive commercial and retail use in the heart of Dublin city centre. Yet these proposals have not been subject to appraisal from a planning perspective, so that the views of potentially third parties could be gauged. Viewed from those general planning perspectives, any conclusion that these changes were not material in planning terms would, I think, be unrealistic. I would accordingly uphold this aspect of the judgment of the High Court.
The locus standi of the applicant
21. It is next necessary to address the question of the locus standi of the applicant, Mr. Moore, in seeking this s. 160 relief. The Minister contends that Mr. Moore has no particular interest in ensuring compliance with the original plans and that he is using the s. 160 mechanism for the essentially collateral purpose of preventing the development now envisaged by the Minister. The Minister’s submission, accordingly, is that Mr. Moore’s real objection is not, as such, to the planning merits of the more recent proposal for a commemorative centre, but rather that he wants a different form of commemoration for the entire Moore Street battlefield site. The Minister also maintains that it is clear that s. 160 was intended to be simply an emergency provision that assisted compliance with the Planning Acts.
22. It is, perhaps, worth noting that this issue could not really have arisen prior to 1976 because prior to that point the only private parties who could have taken such injunction proceedings were those with a proprietary interest in the matter. The law was then changed dramatically by the enactment of s 27(1) of the Local Government (Planning and Development) Act 1976 – the precursor to the present s. 260 of the 2000 Act - which allowed such proceedings to be brought by any person regardless of the fact that they had no proprietary interest in the property in question. Section 160(1) provides that such can application can be brought by “a planning authority or by any other person, whether or not the person has an interest in the land.” It may be convenient to take these two objections in reverse order.
23. While there are, admittedly, occasional judicial comments to the effect that the s. 160 procedure may only be used in emergency style cases, this view of the parameters of the section cannot now be seriously entertained, not least in view of the recent comments of McKechnie J. in Meath County Council v Murray [2017] IESC 25, [2017] 2 I.L.R.M. 297, 309-310 where McKechnie J said at para. 33 et seq. where he stated:
“33. It is undoubtedly correct to say that both the High Court and the Supreme Court have in the past indicated that the injunctive provision was intended as a type of ‘fire brigade’ section to deal with urgent situations requiring immediate action, so as to stop or prevent an unauthorised development; however, virtually all such expressions were made in relation to the form of the section which predated section 160, which in its terms is much more expansive than either version of its precursor. In addition, it has also been said that, by reason of its summary nature, the procedure may not be suitable where a more thorough exploration, particularly of the facts but also of intricate issues of law, may be necessary in order to determine the outcome (Dublin Corporation v. McGowan [1993] 1 I.R. 405, Mahon v. Butler [1997] 3 I.R. 369 at 378-379 ……..) Whilst I accept that in some cases of major conflict, recourse to some of the more elaborate steps readily available via the plenary process may be necessary, I am also satisfied that where such is required, the same can be availed of. However, given the multitude of applications moved in this form, the vast majority of which have created no difficulty, it seems clear that it will be only in very rare circumstances indeed that the stipulated statutory procedure should not be utilised.
34. It should be recalled that one of the major objectives behind this legislative process is the desire that issues of planning control should be dealt with effectively and efficiently and in the most expeditious way possible. If every alleged infringement, or even a majority thereof, could not be litigated in this way, that objective would be stood down. That should not happen, nor is there any necessity for it”.
24. It is clear, therefore, that the mere fact that the present application is far removed from the classic type case of a developer seeking to demolish or construct a building without planning permission in order to create a form of fait accompli does not mean that the s. 160 procedure cannot properly be invoked for this purpose. I would accordingly reject this particular objection on the part of the Minister.
The motives of the applicant
25. The issue of the motive of the applicant is, however, a more vexed and potentially troubling question. In essence, the Minister’s argument is that Mr. Moore has no real planning interest in the proposed Moore Street site but that he is really seeking to use the s. 160 proceedings to bring about his collateral objective of ensuring that the Minister’s plans are frustrated and aborted, thus paving the way for a different and more extensive form of preservation of the Moore Street battlefield site. This raises the issue of motive and the use of s. 160 proceedings for collateral and even opportunistic purposes.
26. While there may be particular and special cases where the motives of an applicant may be particularly relevant, I think it clear from the structure and system of s. 160 itself that these considerations are rarely decisive in themselves. This is because, as McKechnie J. pointed out in Murray, the principal objective of s. 160 is to secure the integrity and effectiveness of the planning system and this objective might be undermined if the private motives of the applicant were to be regarded as a significant factor.
27. If I despise my neighbour and then discover that he has engaged in development which amounts to a clear breach of the planning laws, is s. 160 relief to be refused simply because I also bear a private grudge against him? The answer must be: surely not. This is because the focus of the section is on whether there has been an objective breach of the planning laws of sufficient gravity to warrant the grant of an order under s. 160, rather than the motives of the applicant who brought the proceedings in the first instance.
28. One can readily find other examples: is not a trader entitled to s. 160 relief where it is clear that a competitor is operating illegally in manifest breach of the planning laws? This was the very point which was made by Hedigan J. in Amphitheatre Ireland v. HSS Developments [2009] IEHC 464, where he stated at para. 36:
“It should be noted at the outset that the fact that the applicant may have a commercial interest in the outcome of these proceedings, as a competitor with the Citywest venue, is not in any way a bar to their having locus standi under s.160. Counsel for the [respondent] rightly accepted that that was the case. Competitors have a legitimate interest in ensuring a level playing field in respect of the planning process”.
29. But even if the objector in Amphitheatre Ireland was indifferent to the merits of the planning issue and the evidence established that it was simply determined to avail opportunistically of the s. 160 procedure in order to discomfit a trade rival and to gain a trading advantage as a result, would this really matter?
30. The same is essentially true here, because this is really at the heart of the Minister’s objection, namely, that Mr. Moore’s complaints regarding material breach and so forth are simply opportunistic methods of ensuring that a development to which he is personally opposed does not proceed. Yet it could scarcely be suggested if a material breach of the planning laws were to be established that the granting of relief under s. 160 should turn on as fine a thing as Mr. Moore’s own private personal motives or whether he had a fastidious devotion to the enforcement of the planning laws. The plain fact of the matter is that by changing the law to permit every member of the public to bring such proceedings regardless of interest in land the Oireachtas has plainly intended that “…we are all, as users or enjoyers of the environment in which we live, given a standing to go to Court and to seek an order compelling those who have been given a development permission to carry out the development in accordance with the terms of that permission”: Morris v. Garvey [1983] I.R. 319, 323 per Henchy J.
31. For all of these reasons, I consider the fact that Mr. Moore may possibly have had collateral objectives in mind when bringing these proceedings is not relevant, at least so far as facts of the present case are concerned. But had the Court been required to consider the grant of a s. 160 injunction, then the motives of the Minister would also have been relevant so far as the grant of discretionary relief was concerned. After all, the Minister had been acting against a background where the earlier planning permission was, in fact, less respectful of the historic significance of Moore Street than that which she had been proposing. She was, moreover, departing from the earlier permission in order to advance – as she saw it – a vitally important act of public commemoration in the public interest. By reason, however, of my conclusion on the ultimate s. 160 issue, it is not, I think, necessary to express any concluded view on this.
32. I now propose to turn to the issue of the validity of the consent.
The validity of the consent
33. The proposed works which are intended to be carried out by the Minister on Nos. 14-17 Moore Street were authorised pursuant to the provisions of s. 14 of the 1930 Act by a consent which was originally granted on 16 July 2013, but which was varied on 29 April 2014 and revised on 14 September 2015. Condition 50 of the July 2013 consent provided that:
“Substantive works shall commence on site within three months of approval of the revised project design.”
34. It is common case that the latter approval issued on 30 April 2014, so that the effect of condition 50 was that substantive works had to commence by 30 July 2014. It is accepted that the only actual works which were performed prior to July 2014 were, in the words of Barrett J.:
“. . . checking for the outside presence of bats, checking for cracks, trimming some plants, sprucing up a garden wall and removing some polystyrene boards – not much more, in truth, than most of us would get up to when pottering about the garden on a summer’s day. No works were done to any of the buildings comprising Nos. 14 to 17 [Moore Street].”
35. Barrett J. found that these works were not “substantive” in the sense required by the consent and that they were simply “minor and peripheral works.” The judge held that as a result:
“…the consent of July 2013 is conditional upon the commencement of substantive works by 30 July 2014, that consent….must and does fall because the consent was expressed to be conditional on the satisfaction of a condition what was not satisfied within the prescribed timeframe.”
36. I fear that I cannot agree with the trial judge in this regard. Even if it is to be accepted that no substantive works were in fact carried out by 30 July 2014 – and it is common case that they commenced shortly after 1 October 2014 at the very latest - I do not regard this as dispositive. The time requirement was not, I think, ever intended to be a regarded as a strict deadline akin to a statutory limitation period. No possible prejudice has been identified by reason of this delay.
37. In these circumstances I would regard the 30 July 2014 requirement as at most a directory requirement, the breach of which did not invalidate the condition, at least in the absence of identifiable prejudice on which an objector might possibly rely. I am, accordingly, of the view that the s. 14 consent was not rendered invalid by reason of the non-compliance – if, indeed, there was any – with the time requirement.
The proper interpretation of s. 260 of the 2000 Act
38. I turn now to the what the parties are agreed was the central feature of this appeal, namely, the proper interpretation of s. 260 of the 2000 Act. Section 260 of the 2000 Act provides:
“Nothing in this Act shall restrict, prejudice, or affect the functions of the Minister ... under the National Monuments Acts, 1930 to 1994, in relation to national monuments as defined by those Acts or any particular monuments.”
39. The Minister's position is that the relationship between the two regulatory regimes is governed by s. 260 of the 2000 Act and that, accordingly, this section amounts to an express disapplication of the planning code in so far as it relates to development authorised and undertaken pursuant to the 1930 Act. It followed from this premise that the Minister need not apply for, or comply with, a planning permission in relation to development that has been the subject of a consent granted under the 1930 Act. It was submitted in turn that in so far as the revised plans depart from the original plans, the same cannot amount to unauthorised development by reason of the express disapplication of the entire planning code by s. 260 of the 2000 Act. Indeed, in the course of questions put by members of the Court in the course of oral argument on this appeal, the Attorney General did not shrink from submitting that the effect of s. 260 of the 2000 Act was that the Minister was free, for example, to develop a commemorative centre at Nos. 14-17 Moore Street without the need for planning permission, at least once the appropriate s. 14 consent for this purpose was in place.
40. Conversely, it is Mr Moore's contention that the 1930 Act and the 2000 Act interact in a similar way to the interaction between, for example, the Waste Management Acts and the Planning Acts so that a license, permission or consent obtained under one regime does not obviate the need to obtain a license, permission or consent under the other. Mr. Moore contends that s. 260 of the 2000 Act is a saving provision which was enacted for the avoidance of doubt in order to confirm the relationship between the two regimes.
The judgment of the High Court on the s. 160 issue
41. Before considering these respective submissions in detail, it is necessary next to consider the reasoning of Barrett J. – who in his judgment, broadly speaking, accepted the submissions of the applicant on this point of statutory interpretation – on this issue. Barrett J. first referred to decisions such as the judgment of McKechnie J. in South Dublin County Council v Fallowvale [2005] IEHC 408 (where it was held that the planning code and other regimes interacted as double authorisation regimes) and Sandymount and Merrion Residents Association v. An Bord Pleanála [2013] IEHC 542 (where the local authority was under an obligation to obtain three separate consents). One could not, I think, dispute what McKechnie J. said in Fallowvale, namely, that “mere compliance with one statutory regime does not absolve the affected party from compliance with a different regime unless such is expressly provided for.”
42. I have taken the liberty of highlighting the italicised words because Fallowvale really illustrates what is at issue here, namely, whether s. 260 of the 2000 Act amounts to an express disapplication of the planning code. This, of course, was the question posed by Barrett J. when he asked (at para. 383 of the judgment):
“Could it be that in a liberal democracy such as ours with its manifold checks and balances designed to ensure, so far as possible, that no branch of government acquires or employs unrestrained power, that the Oireachtas would have elected to endow the Minister for Arts, etc. with the abundant freedom of action which s.260 is suggested by her to have brought about? The short answer to this question is ‘no’ – and this answer springs so clearly from the decision, binding on this Court, of the Supreme Court in Howard v. Commissioners of Public Works [1994] 1 I.R.101, that the court must admit to some degree of surprise that counsel for the Minister, and Chartered Land, pursued the s.260 line of argument with the vigour that they did.” (Emphasis supplied)
43. There is no doubt but that the decision in Howard is crucial because it appears to be the only authority to date which has considered – admittedly only in passing – the implications of s. 260 or, more strictly, its immediate statutory predecessor, s. 90 of the Local Government (Planning and Development) Act 1963 (“the 1963 Act”). Section 90 was drafted in more or less identical terms as the current s. 260 of the 2000 Act.
44. In Howard the applicant contended that the construction of a visitors’ centre by the Commissioner for Public Works in the Burren, County Clare, required planning permission pursuant to the Local Government (Planning and Development) Act 1963, and sought declarations and further related relief. The High Court (Costello J.) granted the relief sought and the Supreme Court (Finlay C.J., Blayney and Denham JJ., O'Flaherty and Egan JJ. dissenting) dismissed the Commissioners' appeal.
45. The first question at issue was whether or not there was a presumption that a general enactment did or did not apply to the State and State authorities. Having ruled, in effect, that any previous Crown prerogative creating a presumption to this effect had not survived the enactment of the Constitution, the Court then went to consider whether the 1963 Act applied to State authorities such as the Commissioners of Public Works.
46. The Commissioners (“OPW”) argued that even if there was no presumption that the 1963 Act did not apply to the State or a State authority, and even though there was no express disapplication of the 1963 Act, that Act ought to still be interpreted as not applying to State authorities. In effect, therefore, the OPW contended for an implied disapplication of the 1963 Act.
47. The OPW relied on two principal grounds in this regard. First, at the time the legislation was enacted – which was prior to the establishment of An Bord Pleanála in 1976 - the Minister for the Environment heard appeals from planning authorities so that, if the Act did in fact apply to State authorities, it would mean that the Minister for the Environment would be required to make an application for permission to a local authority, and then hear appeal from himself against that decision. It was this argument which found favour with the dissent, with, for example, O’Flaherty J. saying ([1994] 1 I.R. 101, 145-146) that the Minister “could not, for example, have done anything as absurd as appeal to himself.”
48. Secondly, it was pointed out that pursuant to s. 84 of the Act of 1963, State authorities were under a duty to consult with a planning authority prior to commencing building works. This duty to consult (which included a duty to refer disputes to the Minister where they could not be reconciled) was alleged to be inconsistent with the application of the Act to State authorities. It was alleged that a duty to consult made little sense if State authorities would thereafter be required to apply for permission.
49. The objectors to the proposed OPW development made the case, in effect, that if the Oireachtas had intended something as dramatic as a complete exemption for State development from the scope of the Planning Acts this would have been stated in express terms in the 1963 Act itself. The objectors also relied for this purpose on s. 90 of the 1963 Act (i.e., the equivalent of s. 260 of the 2000 Act). Finlay C.J. recorded their argument thus ([1994] 1 I.R. 101, 132):
“With regard to s. 90 of the Act, it is again pointed out that if the provisions of the Act, other than s. 84, did not apply to the Commissioners of Public Works, this section preventing the provisions of the Act from restricting, prejudicing or affecting the function of the Commissioners of Public Works under the National Monuments Acts, 1930 and 1954, in relation to national monuments would, again, be wholly superfluous.”
50. As it happens, although the majority did not have to rule on this point, they nonetheless found for the objectors. In the lead majority judgment, Finlay C.J. held that the 1963 Act did apply to the State. He accepted that certain provisions - such as the former right of appeal to the Minister - created anomalies, but did not think that this was sufficient in itself to constitute an implicit disapplication of the Act. The Chief Justice stressed that primacy afforded to the express wording of a statute meant that an alleged implicit disapplication could not override an express provision that sought to give the Act a general application.
51. If the majority did not address the s. 90 issue in express terms, the dissent did. In particular O’Flaherty J. observed ([1994] 1 I.R. 101, 147-148):
“Secondly, reference was made [by counsel for the objectors] to s. 90 of the Act of 1963 which provides:
“Nothing in this Act shall restrict, prejudice, or affect the functions of the Minister for Finance or the Commissioners of Public Works in Ireland under the National Monuments Acts, 1930 and 1954…. in relation to national monuments as defined by those Acts or any particular such monuments.”
Again, the question is posed: why have this provision if the State, either Minister or Commissioners, are not bound by the planning code? The reason I believe that this provision was inserted is to make clear that national monuments were and were to continue to remain separate from the planning code. An idea of the extent of what is embraced by the definition "national monument" as well as "monument" can be gathered from a consideration of the judgment delivered by Ó Dálaigh C.J. (speaking for the Court) in Tormey v. The Commissioners for Public Works (1972) [1993] I.L.R.M. 703. A perusal of that judgment makes clear how necessary it is to keep national monuments in a separate sphere.”
52. As I have already noted, Barrett J. relied heavily on the reasoning in Howard for his conclusions regarding the proper interpretation of s. 260 of the 2000 Act, saying:
“385. The carte blanche-style argument in Howard is clearly very similar to the carte blanche-style argument being raised by the Minister for Arts, etc. in the present proceedings...
388. In Howard, a five-person Supreme Court split 3-2 in its decision, with Finlay C.J., Blayney J. and Denham J. in the majority (O'Flaherty and Egan JJ. dissenting). When it came to the Commissioners' submissions concerning the purported exemption that arose for them when it came to securing planning permission, Finlay C.J. observed, at 139:
“The combination …of what appears to be the unambiguous meaning of the words contained in s.24 in respect of a building constructed by the Commissioners and the equally unambiguous terms of the words contained in s.84 as leading to an incongruous or even an absurd result, cannot in my view, upon the principles applicable, entitle the courts in interpreting this statute to insert, as it were, into s.24 an implied exemption for development of any description carried out by the Commissioners of Public Works which is nowhere expressed in that section.”
Blayney J., who spends a good portion of his judgment considering the principles of statutory interpretation is even more fulsome in his rejection in the line of contention proffered by the Commissioners, stating at 152: “If the construction of s.24 of the Act of 1963 is approached in the light of these principles, in my opinion the only reasonable conclusion that can be reached is that the section applies to development by the Commissioners of Public Works. The section is so worded that it clearly applies to all development other than development coming within either of the two exceptions in sub-section (1). So it applies to development by the Commissioners. This could have been avoided if the Act had provided in section 4 that development by the Commissioners should be exempted development. But this was not done. The result is that development by the Commissioners does not come within either of the exceptions in sub-s.1 and so is subject to the general provision that planning permission for it is required….It was submitted on behalf of the Commissioners, however, that s.24 does not apply to them because of the provisions of s.84 .It was argued that it is a necessary implication from the provisions of that section that the Commissioners could not be required to seek planning permission as well as to comply with the provisions of section 84 .It was submitted that the legislature could not have intended that the Commissioners should have to comply with both s.84 and s.24 ; that it would be pointless for the Commissioners to have to consult with the planning authority, as required by s.84 , and possibly also, as a result of objections raised, to have to consult with the Minister, if subsequently they had to apply for planning permission in the normal way. It was argued that compliance with s.84 relieved them from having to comply with section 24.”
390. The similarity between, on the one part, the above-mentioned submissions for the Commissioners and, on the other, the submissions made on behalf of the Minister in the present proceedings is striking.”
53. Barrett J. then referred extensively to the judgments of Blayney and Denham JJ. before saying:
“392. Returning then to s.260 of the Act of 2000, in light of the majority judgments in Howard, what is the court to make of the provision that: “Nothing in this Act shall restrict, prejudice, or affect the functions of the Minister for Arts, [etc.]…under the National Monuments Acts…in relation to national monuments as defined by those Acts or any particular monuments?”
393. Counsel for the Minister for Arts, etc. contends in effect that s.260 casts a protective shield around national monuments and that, under the cover of this shield, the Minister may act with relative freedom, provided she observes the requirements of the National Monuments Acts. Having regard to the conclusions reached by the Supreme Court concerning the very similar arguments of the Commissioners in Howard, the court cannot but respectfully conclude that counsel is wrong in this regard.
394 The court is especially mindful in reaching this last-mentioned conclusion of (1) the warning sounded by Blayney J. in Howard as to “forming a conclusion as to the intention of the legislature without that intention being expressed in the section itself” and (2) to the fact that, and here again the court echoes the judgment of Blayney J. in Howard, if the Oireachtas had intended to bring outside the scope of the Act of 2000 any development done on or to a national monument by or under the licence of the Minister for Arts, etc., it would have been simple for the Oireachtas to provide that any such development was an exempt development.”
54. Barrett J. then went on to characterise s. 260 of the 2000 Act as essentially a saving provision:
“395. It seems to this Court that s.260 is but a ‘saving’ provision which provides simply that the Minister has her functions under the National Monuments Acts and that the functions she enjoys thereunder are not restricted, prejudiced or affected by the Act of 2000. These functions, as identified in the National Monuments Act 1930, include:
(1) becoming the guardian of a national monument by deed (s.5),
(2) becoming a guardian by virtue of a transfer from a local authority (s.7),
(3) making a preservation order in respect of a national monument which is in danger of being or is actually being destroyed, injured or removed (s.8),
(4) acquiring a national monument compulsorily or by agreement (s.11),
(5) the maintenance of national monuments (s.12),
(6) the removal of national monuments to a museum (s.13),
(7) giving consent to acts (e.g. of demolition or excavation) relating to a national monument owned by the Minister or subject to a preservation order (s.14),
(8) giving advice to the owner of a national monument (s.15),
(9) admitting the public to view a national monument (s.16),
(10) making an order prohibiting the burial of persons within a national monument (s.17),
(11) placing a tablet or plate on a national monument (s.18),
(12) establishing a National Monuments Advisory Council (s.21), and
(13) giving a licence for the excavation for archaeological purposes (s.26).
396. None of the above-listed functions is restricted, prejudiced and/or affected by a separate requirement to obtain planning permission under the Act of 2000. Thus none of the Minister's functions under the National Monuments Acts is to be construed as having been taken from her by the Act of 2000 and entrusted instead to a planning authority or An Bord Pleanála. But that is the extent of the saver: the Minister's functions fall to be exercised in tandem with the Act of 2000 and not despite it. For the court to endorse the ‘protective shield’ argument would involve it forming a conclusion as to the intention of the Oireachtas without that intention being expressed in s.260 itself or being apparent therefrom, and when a far simpler means of creating that ‘protective shield’ (the exempt development route) was open to the Oireachtas. The court's conclusions in this regard do not just make legal sense (not least by reference to the decision of the Supreme Court in Howard) but chime too with common-sense. The notion that the Oireachtas in preserving the functions of the Minister under the National Monuments Acts meant thereby to constrain the application of the Planning Acts just does not ring true. The Minister retains her functions; planning authorities and An Bord Pleanála have theirs; all operate freely but in tandem. Their comity of purpose perhaps makes disputes between them unlikely, but should such disputes arise they must be resolved and, if they cannot be resolved amicably, the courts stand by ready to assist.”
55. This extensive reasoning invites several comments by way of response. While I recognise the force of the analysis of Barrett J. regarding the reasoning in Howard, I also cannot help thinking that there is one essential difference between the situation in Howard and s. 260 of the 2000 Act, namely, that the latter provision constitutes an express disapplication of the 2000 Act. As we have just seen, the majority in Howard emphasised that a general public Act of the Oireachtas – such as the 1963 Act - in principle applied to all natural and legal persons and this was a core part of their reasoning. But this does not mean that there is some legal tablet of stone which prevents the Oireachtas from enacting legislation which expressly negatives the application of a particular Act to a given state of affairs. For my part, I consider that there are several reasons why the conclusion that the 2000 Act has, in fact, been disapplied by the operation of s. 260 is the only realistic interpretation of that section which is open to this Court.
56. First, it is in any event clear that s. 32 of the 2000 Act envisages the express disapplication of the Act in providing for exempted development rules:
“32(1) Subject to the other provisions of this Act, permission shall be required under this Part — (a) in respect of any development of land, not being exempted development…” (emphasis supplied).
57. The very reference to “subject to the other provisions of this Act” expressly envisages that other provisions of the 2000 Act will expressly disapply the general obligation to obtain planning permission in respect of a proposed development.
58. It is true that, as counsel for Mr. Moore, Mr. Bradley S.C., forcefully argued, the Oireachtas could have provided for the classification of development that has been authorised under the 1930 Act as exempt development. But to treat certain development as exempt development for planning purposes is not quite the same as providing for the dis-application of ther Planning Acts by s. 260 of the PDA 2000. Thus, for example, forms of exempted development provided for under s. 4 of the 2000 Act are later deemed de-exempted under s. 57 of the same Act if they relate to a protected structure. Likewise, s. 179 of the 2000 Act provides that local authority development which is otherwise exempt may nonetheless be brought back within the scope of the 2000 Act.
59. Second, the 2000 Act does indeed expressly envisages other circumstances where the Act is in terms disapplied. Thus, s. 181 (1) of the 2000 Act (as amended) provides:
“The Minister may, by regulations, provide that, except for this section and section 181A to section 181C, the provisions of this Act shall not apply to any specified class or classes of development by or on behalf of a State authority where the development is, in the opinion of the Minister, in connection with or for the purposes of public safety or order, the administration of justice or national security or defence and, for so long as the regulations are in force, the provisions of this Act shall not apply to the specified class or classes of development.” (emphasis supplied)
60. Third, the amended provisions of s. 14D of the 1930 Act are consistent with the conclusion that that Act falls outside the scope of the 2000 Act. Section 14(D) makes development under the 1930 Act subject to a requirement to have an Environment Impact Assessment. But if the 2000 Act applied to development authorised under the 1930 Act there would have been no need to so provide because such an obligation would, in any event, arise under the former Act.
61. Fourth, any other conclusion would be at variance with the actual language of s. 260 itself. The phrase “Nothing in this Act” amounts to the language of express disapplication of a core obligation of the 2000 Act itself, namely, the necessity to obtain planning permission contained in s. 32 of that Act. This is underscored by the equally explicit language of the remainder of the section (“….shall restrict, prejudice, or affect the functions of the Minister ... under the National Monuments Acts….”) It is, I think, impossible to say that the Minister’s functions under the 1930 Act would not be “affected” if she were now to be required to obtain planning permission in respect of works on a national monument.
62. One may accept, of course, that the “Nothing in this Act” formula is a standard drafting technique which may be said to be characteristic of legislative saving clauses generally. But what, exactly, does s. 260 serve to save? In Comptroller and Auditor General v Ireland [1997] 1 IR 248, 260 Laffoy J. approved the following definition from Bennion, Statutory Interpretation (2nd ed. at 243):
“A saving is a provision the intention of which is to narrow the effect of an enactment to which it refers so as to preserve some existing legal rule or right from its operation.”
63. There is little in the 2000 Act to suggest that the operation of the functions of the Minister under the 1930 Act might be impliedly repealed but for the operation of s. 260 of the 2000 Act. Rather, s. 260 of the 2000 Act serves, in Bennion’s words, to narrow the effect of that latter enactment so as to preserve the functions of the Minister under the 1930 Act. She is, for example, free to take emergency measures to deal with the possible repair of a national monument or to take steps to preserve the access of the public to that monument in the manner contemplated by the 1930 Act without having to apply for planning permission.
64. For all of these reasons, I cannot, with respect, agree with Barrett J.’s analysis of the effect of s. 260 of the 2000 Act. For my part, while I like and value the scope of the protections afforded to the environment and the orderly planning and development envisaged by the 2000 Act as much as any other citizen, I feel nonetheless compelled to admit that the Oireachtas can, should it so choose,, subject only to complying (where appropriate) with both the Constitution and EU law, disapply that entire regime to given situations through the use of clear and unambiguous statutory language which has this particular effect. For all the reasons I have given I think it clear from the language of s. 260 that this is choice which the Oireachtas has chosen to make.
65. Some may think this state of affairs unsatisfactory. Others may consider that the extent of the entire disapplication of the 2000 Act provided by s. 260 goes further than is actually necessary to deal with obvious examples such as the necessity to take measures to safeguard newly discovered national monuments or to maintain and repair existing national monuments. But if this is so, this is a matter entirely for the Oireachtas to address.
66. The net effect, therefore, of this conclusion is that by virtue of s. 260 of the 2000 Act, the Minister does not require to obtain planning permission for any works she carries out on or at a national monument. It follows in turn that any such works carried out by the Minister must, of course, be carried out lawfully and that in turn presupposes that the appropriate consent has been obtained for the purposes of s. 14 of the 1930 Act.
Conclusions
67. In summary, therefore, my principal conclusions are as follows:
68. First, the Minister’s current proposals in relation to Nos. 14-17 Moore Street amount to significant changes in terms of both physical structures and use in respect of development as compared with the original planning permission obtained by Chartered Land, the predecessor in title to Dublin Central Limited Partnership. These proposals have not, however, been subject to appraisal from a planning perspective, so that the views of potentially third parties could be assessed. Viewed from those general planning perspectives, it would be hard to say that they did not constitute a material variation from the terms of that original planning permission. To that extent, therefore, I would uphold the reasoning of Barrett J. in this respect.
69. Second, the requirement in the s. 14 consent that substantive works must be carried out within three months was at most a directory requirement, the breach of which did not invalidate the condition, at least in the absence of identifiable prejudice on which the objector might rely. In the absence of any such prejudice, s. 14 consent was accordingly not rendered invalid by reason of the non-compliance – if, indeed, there was any – with this time requirement.
70. Third, the fact that these s. 160 proceedings may have been commenced by the applicant for reasons unconnected with the proper planning and development but simply to avail of an opportunity to block a development of which he did not personally approve is not, at least, so far as the facts of the present case is concerned, a decisive consideration.
71. Fourth, however, the effect of s. 260 of the 2000 Act is to disapply the provisions of the planning regime in respect of works at or near a national monument, provided that the appropriate consent has been granted for the purposes of s. 14 of the 1930 Act. It follows that the Minister is accordingly entitled to construct a new commemorative centre comprising the entirety of Nos. 14-17 Moore Street without the necessity for planning permission at all, provided that the requisite consent envisaged by s. 14 of the 1930 Act is in place.
72. In the light of these conclusions regarding the proper interpretation of s. 260 of the 2000 Act and the consequential disapplication of the Planning Acts to works carried out by the Minister at the national monument in accordance with a valid consent granted under s. 14 of the 1930 Act, the proposed works did not amount to a breach of the Planning Acts. It is for this reason that I consider that Barrett J. was in error in granting the relevant order restraining this proposed development in accordance with s. 160 of the 2000 Act.
73. It follows that I would accordingly discharge the s. 160 injunction and allow the appeal.
