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1. An application was made to the High Court (Geoghegan J.) on the 26th day of July, 1999 by the Applicant for leave to apply by way of Judicial Review for various reliefs including relief by way of an Order of Certiorari quashing the decision of An Bord Pleanala dated the 13th day of May, 1999 and bearing the An Bord Pleanala reference number PL29N107418.

2. This decision comprised a decision by the Respondent to dismiss an appeal by the Applicant against an earlier decision of Dublin Corporation made on the 2nd day of July, 1998 to grant, subject to various conditions, a permission to Shelbourne Developments Limited for the development of certain property located in Parnell Street, Moore Street, O'Rahily Parade and Moore Lane in the City of Dublin 1 as a hotel, bar, restaurant, leisure centre and for retail, car-parking and other commercial use.

3. On the 26th day of July, 1999 when the application was made to Geoghegan J. on behalf of the Applicant for leave to apply by way of Judicial Review as outlined above it was indicated to the Court and agreed by all the parties that a preliminary point (described somewhat colourfully as a "knockout point") required to be determined which, if decided in favour of Shelbourne Developments Limited and An Bord Pleanala, would have the effect of resolving all outstanding issues in the case since it would comprise a determination that the Applicant was not entitled to bring the proceedings before the Court or to seek the relief which it claims herein.

4. Accordingly, Geoghegan J., with the consent of all the parties (including the Applicant) made an Order that the preliminary point concerned (and that point alone) should be determined by this Court during the Summer Recess, since all of the parties concerned agreed that the matter could be appropriately dealt with during the Recess, and it was duly fixed for hearing by this Court on the 24th day of August, 1999.

5. The point which this Court has been required to determine is whether or not, having regard to the provisions of Section (3B)(a) of Section 82 of the Local Government (Planning and Development) Act, 1963 (as inserted by the Act of 1976 and amended by the Act of 1992), the application for leave to apply for Judicial Review which has been made by the Applicant, Keelgrove Properties Limited, herein has been made ".... within the period of two months commencing on the date on which a decision...." was "given".

6. The following matters adduced in evidence are not in dispute:-

7. The document goes on to describe the property and the development, impose conditions and give reasons and it is dated the 13th day of May, 1999.

8. On the said 9th day of July, 1999 true copies of the document concerned were served by hand on the following, that is to say:-

9. On the said 9th day of July, 1999 true copies of those documents were sent by ordinary prepaid post to the Secretary of Shelbourne Developments Limited and to Messrs. Sheehan & Company, Solicitors at No. 1 Clare Street, Dublin who were the Solicitors acting on behalf of Shelbourne Developments Limited in respect of the appeal to An Bord Pleanala by the Applicant.

10. The true copies of the said documents were not received by Messrs. Sheehan & Company, the Solicitors on behalf of Shelbourne Developments Limited, until the 13th day of July, 1999 and were not received at the registered offices of Shelbourne Developments Limited at 21 Fitzwilliam Place, Dublin 2 until Tuesday, the 13th day of July, 1999 and as a matter of practice, whilst 80% of letters which are posted in the Dublin 2 area on Fridays will be delivered on the following Monday, some 20% of those letter will not be delivered until the following Tuesday and it is not unusual for a letter which is posted on a Friday not to be received until the following Tuesday.

11. It is expressly acknowledged and very properly conceded on behalf of the Applicant that having regard to the principles set down by the Supreme Court (Finlay C.J.) in the case of K.S.K. Enterprises Limited -v- An Bord Pleanala & Ors. , (1994) I.R. 128 that "... if the Notice of Motion is not served on all the parties provided for mandatorily within the meaning of Section 82, Sub-section (3B) of the Act of 1963 as distinct from the power of the Court at a later stage to order the service of additional parties, the application has not been made within the time limited by Section 82" and accordingly if the Notice of Motion and accompanying documents grounding the application herein were not served upon Shelbourne Developments Limited or its Solicitors within the period of two months from the date when the "decision" of An Bord Pleanala was "given" then the Applicant is barred from bringing these proceedings and from claiming the relief which it seeks, notwithstanding adequate service within the time limited by statute in that behalf upon all of the other parties who are required by statute to be so served.

12. As I have already indicated, the point which this Court has been required to determine relates to Section (3B)(a) of Section 82 of the Local Government (Planning and Development) Act, 1963 (as inserted by the Act of 1976 and amended by Section 19 of the Local Government (Planning and Development) Act of 1992).

13. What I am required to determine is whether in the circumstances outlined above, the application which has been made herein has been "made" within the period of two months commencing upon the date upon which the decision by An Bord Pleanala (which is dated the 13th day of May, 1999 and bears the reference number PL29N107418) was "given".

14. Mr. Brady, S.C., and Mr. O'Donnell, B.L., on behalf of Shelbourne Developments Limited contend that the decision was "given" on the date which is shown upon the document to which I have referred earlier and which bears the words "DECISION:.. It is hereby decided.... to grant permission....", that is to say on the 13th day of May, 1999. They are supported in their contention by Ms. Butler, B.L., on behalf of An Bord Pleanala and all three Counsel have referred me to a number of authorities which, they say, supports that contention.

15. Although Mr. McGuinness did advance an argument to the intent that service of the Notice of Motion in these proceedings had been effected upon Shelbourne Developments Limited on the date (9th July, 1999) upon which that document was literally posted by way of ordinary prepaid post for delivery to Shelbourne Developments Limited and its Solicitors - that is to say, the 9th day of July, 1999, he did not press that point and I should say for the avoidance of confusion that in any event I would not be disposed to accept that contention, having regard to the clear terms of the final sentence of Section 18 of the Interpretation Act of 1932 which provides that in general where documents are "authorised" to be served by post

16. It follows from the foregoing inescapably that if the contention of Shelbourne Developments Limited and of An Bord Pleanala is correct and if the decision of An Bord Pleanala was "given" within the meaning of Section (3B)(a) of Section 82 of the 1963 Act (as inserted and amended) on the 13th day of July, 1999 then the Notice of Motion and accompanying documents were not served upon Shelbourne Developments Limited or its Solicitors within the period of two months from the date when the "decision" was "given" because I am satisfied on the evidence (and indeed it is not disputed) that the documents concerned were not received either by Shelbourne Developments Limited or by its Solicitors until the 13th day of July, 1999 and all of the parties are in agreement that service on the 13th day of July, 1999 would comprise service upon a date two months and one day after the 13th day of May, 1999 for all purposes connected with this application.

17. Accordingly, if the "decision" of the Board was "given" on the 13th day of May, 1999 then the Applicant is barred from bringing these proceedings and from seeking liberty to claim relief by way of Judicial Review which it wishes to seek.

18. Mr. McGuinness, S.C., on behalf of the Applicant argues that the "decision" of An Bord Pleanala which bears the reference number PL29N107418 was "made" on the 13th day of May, 1999 which is the date upon the document which bears that reference number but was not "given" until either:

19. If the contention advanced by Mr. McGuinness is correct then similarly it follows that the Notice of Motion and accompanying documents were duly served upon Shelbourne Developments Limited and its Solicitors within the period of two months from the date when the "decision" was "given" because I am satisfied on the evidence that copies of the document to which I have earlier referred and which bears the words "DECISION... etc." and which bears the date 13th May, 1999 were not posted to Dublin Corporation and to the other parties (including the Applicant) who were affected by the decision until the 14th day of May, 1999 and not received by them until the 17th May, 1999 and all of the parties are in agreement that service was effected upon all of the parties including Shelbourne Developments Limited and its Solicitors on the 13th day of July, 1999 so that this would comprise service upon a date within two months of the 14th day of May, 1999 for all purposes connected with this application.

20. Accordingly, if the "decision" of the Board was "given" on or after the 14th day of May, 1999 then the Applicant is entitled to seek liberty to claim the reliefs by way of Judicial Review which it wishes to seek.

21. Mr. McGuinness has referred me to a number of authorities in support of his contention that a decision by a planning authority (including An Bord Pleanala) should be deemed to be "given" when the party affected by that decision has been notified of the making of the decision and he relied in particular upon the decision of the High Court (O'Hanlon J.) in Freeney -v- Bray U.D.C. , (1982) I.L.R.M. 29, the decision of the High Court (O'Keeffe P.) in The State (Murphy) -v- The County Council of the County of Dublin , (1970) I.R. 253 and more recently the decision of the High Court (Kelly J.) in Flynn -v- O'Flaherty , (1997) 2 IR 558.

22. I think it is of particular significance that all of those authorities related to proceedings brought by various applicants arising out of the provisions of Section 26(4) of the Local Government (Planning and Development) Act, 1963 as amended and comprised claims for relief on the grounds that particular planning authorities had not notified affected parties of planning decisions within "the appropriate period" prescribed by the same section.

23. The applicants in the authorities concerned relied upon the provision within the same sub-section which provides:-

24. I have little doubt that the cases cited by Mr. McGuinness are of considerable assistance in determining when individual decisions by planning authorities to grant permission or approval can be "regarded as having been given...." within the context and for the purposes of Section 26(4)(a) of the 1963 Act as amended but I am not sure that they are of assistance in determining the date upon which a decision is "given" within the context and for the purposes of Section (3B)(a) of Section 82 of the same Act.

25. In short, Mr. McGuinness argues that the date upon which a decision is "given" within the meaning and for the purposes of Section (3B)(a)(i) of the Act as amended is the date upon which the parties affected by the decision have been notified of the making of the decision. He relies upon the provisions of Section 18 of the Interpretation Act, 1937 as authority for the proposition that the date upon which a decision is "given" in the context of subsection (3B)(a) of Section 82 of the Act should be construed as meaning the date upon which notice of the making of the decision is sent or received by the parties affected thereby.

26. Applying those principles it follows that I must seek to establish as best I can the intention of the Legislature when it enacted the sub-section which is in question herein and in particular the word "given" within the context of that sub-section.

27. If the arguments advanced on behalf of the Applicant are correct then notification of the making of a decision could be effected upon different interested parties upon different dates giving rise to a significant imprecision relative to the limitation period of two months contained within the sub-section.

28. Furthermore, as Mr. O'Donnell pointed out in his submissions in the K.S.K. case, Finlay C.J. (at p. 137) referring to this precise sub-section declared that he ".... would conclude that if within the time limited of two months from the date of the decision a Notice of Motion is filed in the High Court and it is served on the mandatory parties provided in the sub-section that that must be taken as being compliant with the two months time limit".

29. Whilst the observation referred to above is of course not conclusive on the matter, it may be of some significance that while presumably giving the words of the sub-section their "...ordinary and natural sense....", Finlay C.J. did not deem it appropriate to refer to the date when the affected parties were notified of the making of the decision.

30. Furthermore, as has been pointed out by Ms. Butler, B.L., Section 26(8) of the 1963 Act as amended draws a clear and unambiguous distinction between "a decision given under this section" and "the notification of such decision...".

31. It follows that it was and is the intention of the Legislature that one of the functions of a planning authority (including An Bord Pleanala) is to make or take decisions and that another separate function is to notify the interested party of the making or taking of such decisions.

32. Planning legislation within this jurisdiction contains a number of clear, detailed and unambiguous provisions relative to the obligations, requirements and functions of planning authorities relative to the notification of such decisions to parties affected by such decisions. In many cases such obligations, requirements and functions relative to notification are set out in some detail.

33. Mr. McGuinness contends that the word "given" in Section (3B)(a) of Section 82 of the 1963 Act actually means "notified to parties affected thereby". He says that I should construe the word "given" in those terms.

34. I am afraid that I cannot agree with him. I am satisfied that if the Legislature had intended that the period of two months which was referred to in Sub-section (i) of the sub-section concerned had been deemed to commence on the date upon which the planning authorities decision was ".... notified to the parties affected thereby" then those words or some such similar words would have been used within the sub-section concerned.

35. Mr. O'Donnell has suggested that a planning decision is "made" when it is passed by resolution of the elected members of the authority and that the same decision is "given" when the Order setting out the decision has been duly signed by an officer authorised by the authority. Whilst not in any way doubting Mr. O'Donnell's assertion, I have no actual evidence that such is the case. It may well be - and indeed I believe it to be likely - that a planning "decision" of the kind referred to in the subsection concerned cannot be said to have been "given" until an Order has been made by the Planning Authority concerned (An Bord Pleanala as the case maybe) giving effect to that decision but in the instant case it is acknowledged by all parties that An Bord Pleanala made the appropriate Order on the day upon which the actual decision was "made", that is to say, the 30th May, 1999.

36. Accordingly, applying as best I can the rules for the construction of Acts of Parliament to which reference was made by Geoghegan J. in Hegarty & Horgan -v- The Labour Court, (supra), I am satisfied that expanding the words in question in their "ordinary and natural sense" the date upon which a planning decision is "given" within the meaning of Sub-section (3B)(a)(i) of the 1963 Act as amended is the date stated upon the Order which gives effect to the decision unless the contrary can be proved.

37. It follows from the foregoing that the Notice of Motion and accompanying documents grounding the Applicant's application herein were not served upon Shelbourne Developments Limited or its Solicitors within the period of two months from the date when the "decision" was "given" and the Applicant is barred from bringing these proceedings and for seeking liberty to claim the relief by way of Judicial Review which it wishes to seek.