High Court quashes planning refusal for failing to provide adequate reasons and considering irrational grounds.

Neutral Citation Number [2006] IEHC 310

THE HIGH COURT

JUDICIAL REVIEW

[2003 No. 695 JR]

BETWEEN

THOMAS GREALISH

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

Judgment of O’Neill J. delivered on the 24th day of October, 2006

1. The applicant in this case was on 2nd February, 2005, given leave by this court (Laffoy J.) to seek by way of judicial review an

order of certiorari quashing the decision of the respondent made the 7th August, 2003, refusing permission on the appeal of the

applicant for planning permission under Planning Register Reference 211/03 Appeal Ref. 29 S.202449, on the grounds that the

respondent was in breach of the rules of natural and constitutional justice in failing to give any, or any adequate reasons for its said

decision and that the said decision was unreasonable and irrational.

2. Leave was granted by Laffoy J. in a reserved judgment delivered on the 2nd February, 2005, in which she set out fully the factual

background and planning history relevant to this matter and there is no need to repeat the same here. The following passage from the

learned judge’s judgment sets the scene and poses the issues which have to be resolved on this application:

“In my view standing alone the ground advanced by the applicant as to the inadequacy of the reason expressed for

departing from the inspector’s recommendation which was contended was a mere tautology of the refusal and did not

advance in any way the explanation for the refusal is not sustainable. It is clear on the face of the record of the 2003

decision that the respondent considered two of the options open to it: to refuse in line with the decision of the planning

authority; or, alternatively, to grant permission subject to conditions as recommended by the inspector. It decided to

refuse permission, but it explained why it opted for this course: it considers that the proposed reduction in scale as

recommended by the inspector, would not overcome its concerns, which it had outlined earlier – the scale and non-

integration of the structure. That pithily tells the applicant and the world at large in terms which any intelligent person

should be capable of understanding why the respondent departed from the recommendations of the inspector. In

support of the submission that it was incumbent on the respondent, in giving reasons for its decision, to explain why it

departed from the approach it adopted in its 1990 decision and its 1997 decision, the applicant referred to the following

passage from Wade on Administrative Law, 8th Edition at p. 517:

‘There is no closed list of circumstances in which fairness require reasons to be given but the more important

examples may be given here. First, decisions that appear aberrant without reasons have to be explained, so that it

may be judged whether the aberration is real or apparent. Thus an award of abnormally low compensation to an

unfairly dismissed prison officer by the Civil Service Appeal Board, which made it a rule not to give reasons, was

quashed by the Court of Appeal, holding that natural justice demanded the giving of reasons both in deciding

whether the dismissal was unfair and in assessing compensation, since other employers are entitled to appeal to

industrial tribunals which are obliged by law to give reasons. Similarly, where the decision maker departs from a

previously adopted policy (even if not published) fairness will require that departure to be explained. Thus a health

authorities refusal, without giving reasons, to follow the policy of the National Health Service Executive to

introduce a new (and expensive drug) was quashed.’

When one puts the three decisions of the respondents side by side, a very stark departure from the conclusions reached

in 1990 and 1997 is revealed in the 2003 decision. In 1990 and in 1997 the respondent concluded that the advertising

structure would not seriously injure the visual amenities of the area and would not be contrary to proper planning and

development of the area. In 2003 it concluded that the very same advertising structure would seriously injure the visual

amenities of the area and would be contrary to proper planning and sustainable development of the area. Although it

rationalised its conclusion in 2003 as to the impact of the structure on visual amenities on the basis that it would

‘contribute to visual clutter’ and of its scale and non-integration, in my view, this does not explain the apparent

aberration. It is not apparent that these factors did not exist in 1990 or in 1997 and the evidence before a court

suggests that they did. Against this background and the fact that in 1990 and in 1997 the respondent expressly

overruled the findings of the planning authority as to the obtrusiveness and detrimental impact of the structure on the

visual amenities of the area, how can the validity of the 2003 decision be assessed in accordance with the applicable

judicial review norms without knowing the reasons for the volte-face?

While it is undoubtedly open to the respondent to come to a different conclusion in 2003 to that reached in 1990 and

1997, in the unusual circumstances of this case, in my view, the ground as advanced by the applicant that the

respondent should have given an explanation for departing from the stance it had adopted previously and set out the

considerations which led to such departure and that the failure to do so is a breach of his rights, is a substantial

ground.”

3. Thus, as is clear from the above and the statement of opposition and the submissions made, the issue which arises for

determination is whether the respondents failed to give any, or any adequate reasons for the impugned decision of 2003 and

specifically whether there was a failure to give reasons for its departure from the earlier decisions in 1990 and 1997 whereby planning

approval was granted for the same development and whether any such alleged failure was a failure to give reasons for its decision as

required by law, and finally, whether any such reasons as were given were tainted by irrationality in law.

4. As the main issue in the case concerns the adequacy or otherwise of the reasons given, the relevant legal principles should be set

out at this stage.

5. In the case of Mulholland and Kinsella v. An Bord Pleanála and Others [2005] I.E.H.C. 306, Kelly J. reviewed the relevant English

and Irish cases, i.e. O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, The State (Sweeney) v. The Minister for the Environment

[1975] I.L.R.M. 35, R. (Ermakov) v. Westminster City Council [1996] 2 All E.R. 302, The London Residuary Body v. Secretary of State

for the Environment, 58 J.P.L. 657, and Fairyhouse Club Limited v. An Bord Pleanála (Unreported, July 18th, 2001), and O’Keeffe v. An

Bord Pleanála [1993] 1 I.R. 39 at p. 76.

6. The following passages from these cases are applicable to this case.

7. From O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 (Murphy J.);

“It is clear that the reasons furnished by the board (or by any other Tribunal) must be sufficient first to enable the

courts to review it and secondly to satisfy the persons having recourse to the Tribunal that it directed its mind

adequately to the issues before it. It has never been suggested that an administrative body is bound to provide a

discursive judgment as a result of its deliberations.”

8. From The State (Sweeney) v. The Minister for the Environment [1979] I.L.R.M. 135 (Finlay P.);

“To give to an applicant such information as may be necessary and appropriate for him, firstly, to consider whether he

has got a reasonable chance of succeeding in appealing against the decision of the planning authority and, secondly, to

enable him to arm himself for the hearing of such an appeal.”

9. From R. (Ermakov) v. Westminster City Council [1996] 2 All E.R at 302, (Hutchinson L.J.):

“It is well established that an obligation, whether statutory or otherwise, to give reasons for a decision is imposed so

that the persons affected by the decisions may know why they have won or lost and in particular, may be able to judge

whether the decision is valid and therefore unchallengeable or invalid, and therefore open to challenge. There are

numerous authoritative statements to this effect...

It is possible to state two propositions which the judgments in ex parte Graham support.

1. If the reasons given are insufficient to enable the court to consider the lawfulness of the decision, the decision

itself would be unlawful; and

2. The court should, at the very least, be circumspect about allowing material gaps to be filled by affidavit

evidence or otherwise”

10. From The London Residuary Body v. The Secretary of State for the Environment 58 J.P.L 67 (Simon Brown J. as he then was):

“The duty of the Secretary of State to give reasons arises under Rule 30(1) of the 1974 Enquiry Procedure Rules’. As to

the nature of the obligation the authorities are clear: see particularly Re Poiser and Mills Arbitration [1964] 2 QB 467 and

Westminster Council v. Great Portland Estates Plc [1985] 1AC 661 at p. 673. In all cases the reasons had to be

intelligible, proper and adequate. They could be briefly stated, but they had to deal with the substantial points that had

been raised….

Here, where the Secretary of State had disagreed with his inspector’s recommendation, the obligation to give clear and

cogent reasons assumed particular importance. This was both a matter of common sense and supported by authority:

see, for instance, Rogeland Building Group Limited v. Secretary of State for the Environment [1981] JPL 506, where

Glidewell J. said:-

‘But where, as here, the Secretary of State on advice decided to disagree with the recommendation of his

inspector, it was particularly important that he should make his reasons for such disagreement clear’.”

11. From O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at 76 (Finlay C.J.) said:

“Firstly, I am satisfied that there is no substance in the contention made on behalf of the plaintiff that the Board should

be prohibited from relying on a combination of the reason given for the decision and the reasons given for the

conditions, together with the terms of the conditions. There is nothing in the statute which would justify such a rigid

approach and it would be contrary to common sense and to fairness. What must be looked at is what an intelligent

person who had taken part in the appeal or had been appraised of the broad issues which had arisen in it would

understand from this document, these conditions and these reasons.”

12. In Mulholland and Kinsella v. An Bord Pleanála and ors. Kelly J. as part of his conclusions stated the following:

“I accept, and indeed it is not seriously argued otherwise, that s. 34(10)(a)(b) brought about changes to the previous

statutory position which I have already identified. These changes were by way of expansion to that position. That

expansion involved insofar as was relevant;

(a) an obligation on both to give reasons irrespective of the decision to grant or refuse permission

(b) an obligation to state the main reasons and considerations on which a decision is based and

(c) an obligation to state the main reasons for not accepting the recommendations of the Board’’s inspector.

It is noteworthy that the legislation made no attempt in the 2000 Act to alter the existing jurisprudence in what is

required for reasons to be considered as adequate in law. Thus the pre-existing case law on adequate reasons

(O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750 and The State (Sweeney) v. The Minister for the Environment

[1979] I.L.R.M). 35 continue to apply. That is so whether the reasons are those mentioned in (a), (b) or (c) supra.

Thus, there is no obligation to provide a discursive judgment but the reasons given must, if they are to be considered

adequate, comply with the requirements set forth in the two Irish cases cited in the previous paragraph.

Insofar as the reasons at (c) supra are concerned the test remains the same.

I do not accept that the English authorities which I have quoted from create a more onerous obligation than what is

required in this jurisdiction. Both Ermakov’s and The London Residuary Body case, in my view, do no more than apply

pre-existing, well established principles to their particular facts. These pre-existing principles are no different to those

that were identified in the Irish cases of O’Donoghue and Sweeney. It is no more than common sense that if reasons of

the type specified in (c) above are to pass the O’Donoghue and Sweeney case test they must be clear and cogent. I do

not read the English cases as saying more than that. This is no different to what is required in Irish law.

The obligation at (B) above to state the considerations on which a decision is based is of course new. I am of opinion

that in order for this statement of considerations to pass muster it must satisfy a similar test to that applicable to the

giving of reasons. The statement of considerations must therefore be sufficient to:

(1) Give to an applicant such information as may be necessary and appropriate for him to consider whether he has

a reasonable chance of succeeding in appealing or judicially reviewing the decision,

(2) Arm himself for such hearing or review,

(3) Know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged

to consider,

(4) Enable the courts to review the decision.

Thus the criteria which must be met for the statement of considerations are precisely the same as those which apply in

respect of the statement of main reasons.”

13. I would respectively agree with the above conclusion of Kelly J.

14. For the applicant it was submitted, in summary, that as between the 1990 and 1997 decisions and the 2003 decision there was no

change whatever in the physical circumstances on the ground, that the development in respect of which permission was sought in

2003 was identical to that in respect of which permission was granted by the respondents in 1997 and there was no evidence of any

changes in the surrounding physical environment between 1997 and 2003. The 1999 Development Plan was identical in its relevant

provisions to the 1990 Development Plan which was in force when permission was granted in 1997. It was submitted that those

averments in the affidavit of Gerard Egan sworn on 6th May, 2005, for the respondents which purport to furnish reasons for the

decisions are inadmissible in evidence as the deponent did not have the requisite means of knowledge to depose to reasons for the

decision. It was submitted that there was a complete absence of any reasons for the volte-face, as between the decisions of 1990

and 1997 and the decision of 2003 and hence the decision of 2003 was fatally flawed because it failed to disclose at all the reasons

and considerations upon which a different decision was reached in 2003 and it similarly failed to disclose reasons and considerations

upon which the respondents rejected the recommendation of the inspector in her report of 21st July, 2003, all contrary to the

provisions of s. 34(10) of the Planning and Development Act, 2000. It was further submitted that the respondents having come to a

different conclusion in 2003 to its previous decisions in 1990 and 1997 upon precisely the same facts, and there being no material

changes in the development plan, there was no material before the respondents to support the decision of 2003 and hence that

decision was irrational on the basis of the test set out in O’Keeffe v. An Bord Pleanála.

15. For the respondents it was submitted that the respondents were not in fact departing from a previous decision, that the two

previous decision were for limited periods only and had expired, and that when the matter came before the respondents in 2003 it was

obliged to consider the new application on its own merits de novo not constrained by previous decisions. It was the duty of the

respondent to determine the appeal in this case in accordance with the proper planning and sustainable development of the area in

the light of circumstances prevailing or existing at the time of the appeal. It was entitled to do this, inter alia in the light of the

planning history of the development and in particular the terms and conditions upon which permission had previously been granted and

the reasons and considerations for same. It was submitted that the respondents are not obliged to give an explanation for departing

from the stance it had adopted previously or to set out the considerations which led to such departure. It was submitted that the

previous permissions had been temporary permissions and that it was implicit, that the respondent could adopt a different stance in

an application occurring after the expiry of a temporary permission. It was further submitted that in any event there were material

changes in the 1999 Development Plan which warranted and supported the conclusion reached in the 2003 decision and the applicant

was to be presumed to have knowledge of these relevant changes in the 1999 Development Plan, and hence it was unnecessary for

the respondents in the materials constituting its decision and in the reasons and considerations set out therein, to refer explicitly to

the relevant provisions of the 1999 Development Plan. It was submitted that the decisions and the reasons and considerations stated,

when read in conjunction with the Development Plan make perfectly clear the reasons and considerations upon which the respondents

reached a different decision to that of 1990 or 1997. It was further submitted that the respondents had before it ample material to

support its decision that the advertisement proposed was excessive in scale, not sufficiently integrated with the design and scale of

the building and would contribute to visual clutter and would seriously injure the visual amenities of the area and hence there was

ample material before the respondents to support its decision and therefore it could not be said on any view of the Law to be tainted

by irrationality.

Decision

16. I am satisfied on the evidence adduced on affidavit in this case that the development in respect of which permission was sought

is essentially the same as the one in respect of which permission was granted by the respondents in 1990 and 1997. I am also

satisfied that there is no evidence that the physical environment in which this development is located has in any material respects

changed since 1997. Thus I have come to the conclusion that there was no material change whatsoever in the physical environment,

of the development between 1997 and 2003.

17. It was common case and indeed there could be no argument about this, that the respondents were entitled to reach a different

decision in 2003. I do not agree however that the decision in 2003 can be approached on the basis that it is wholly disconnected from

the 1990 and 1997 decisions or that it can be treated on a stand alone basis. Such an approach in general would leave appellants

with an unavoidable sense that the respondents were entitled to and did conduct appeals in an arbitrary fashion and an unexplained

inconsistency between one decision and the other would leave an applicant under the impression that his appeal had not been

determined in a just manner and such apparent arbitrariness and inconsistency would tend to bring this important statutory tribunal

into public disrepute.

18. Hence in my view whilst the respondents are clearly entitled to reach a different decision on a later application in respect of the

same development, where a previous permission has expired, the reasons and considerations upon which that change of stance has

been adopted must be made clear, so that an appellant can see that his appeal has been determined in a fair and rational manner,

and the public interest in the integrity of An Bord Pleanála, is upheld.

19. The crucial issue then in this case, in my opinion, is whether it can be demonstrated that there was some change of circumstance

which explained or rendered explicable the change of stance adopted by the respondents in the 2003 decision.

20. In ascertaining whether or not this has occurred, in my view the applicant is to be presumed to have had knowledge of the

relevant provisions of the 1999 Development Plan. I do not accept however that such a presumption rendered it unnecessary for

there to be any reference in the statement of reasons and considerations, to the Development Plan. If changes in the Development

Plan were the main reasons or consideration upon which the permission was refused in 2003, in my view a short and simple statement

to that effect was necessary or else some explicit reference to a provision of the development was necessary; otherwise this

applicant and indeed the world at large is left in the position that they must make the assumption, or guess or speculate, that this

was the main reason and consideration for the volte-face.

21. It therefore becomes necessary to examine the relevant provisions of the two Development Plans i.e. the 1990 and the 1999

Development Plans to see whether there has been any material change, and then to consider the materials from which the decision,

reasons and considerations are to be ascertained i.e. the report of the inspector of 21st July, 2003, the decision with its statement of

reasons and considerations, of 8th August, 2003, and the Board Direction of 7th August, 2003, which states in the same terms the

reasons and considerations, to see whether any such material change in the Development Plan is discernable as a main reason and or

consideration.

22. The affidavit of Gerard Egan sworn on behalf of the respondents does not, in my opinion, contain any admissible evidence which is

capable of explaining the decision beyond the foregoing materials. Mr. Egan, I am satisfied does not disclose on affidavit, that he had

the requisite means of knowledge, to be able to explain or add anything to the decisions as represented in the decision itself, with its

statement of reasons and considerations, and the report of the Inspector.

23. It is necessary also to set out the relevant provisions of the two development plans, the relevant parts of the inspector’s report

and the statement of reasons and considerations in the decision of 8th of August, 2003.

24. Paragraph 15.15 under the heading of “Advertisements” is where the relevant provisions of the 1991 Dublin City Development Plan

are to be found as follows:

“Advertisements

15.15.1 The character and attractiveness of Dublin is adversely affected by many insensitive advertisements.

They have damaged the character of individual buildings and streets and have had a detrimental effect upon

historic and conservation areas of the city.

15.15.2 The corporation will seek the removal of such advertisement and permit only advertisements which are

used sensitively and sympathetically and which enhance the appearance and vitality of an area.

15.15.3 Poster Boards

Poster boards constitute one of the most obtrusive elements of all forms of outdoor advertisements.

They rely for their impact on size, scale and location and thus are usually detrimental to the character

of the area in which they are situated.

15.15.4 To ensure the environment is protected from the possible adverse effects of these displays they will be

subject to the following guidelines:

(i) The scale of the display panel should normally relate to pedestrians and the local environment, not

vehicles.

(ii) Vertical proportions are preferred and the 4 sheet approximately (1.5 metres by 1.1 metres) 12

sheet (3.3 metres by 1.6 metres) and 16 sheet (3.2 metres by 2.2 metres) sizes are considered to be

most appropriate.

(iii) the larger advertising hoardings do not fit into the scale of the Dublin street…

15.15.8 A poster panel on a building should be in scale with the particular building and should not cut across any of

its architectural features. Panels should normally not be placed on buildings above ground level. They should not be

positioned forward of the face of adjoining buildings and the rear view should not be unsightly…

15.15.10 Signs on Shop Fronts and Other Business Premises.

Advertisements on shop fronts and business premises are amongst the most prominent forms of

advertising on buildings. If unsympathetic with the design of the buildings on which they are displayed,

this type of advertisement can have a wholly detrimental affect on the local environment, particularly

in principal shopping streets, in conservation areas or on listed buildings. The following guidelines for

shop fronts and business premises will apply.

15.15.11 The number of signs attached to a building should be limited to prevent an impression of clutter and no

sign should be excessively obtrusive are out of scale with the building façade…..

15.15.15 All advertising above ground level will be severely restricted in order to avoid clutter and preserve the

amenity of the street scape. On any building fronting on the Upper and Lower O’Connell St., Westmoreland St.,

College Green or any conservation area, projecting signs affixed to a building at any point above the ground floor

façade shall not normally be permitted…

15.15.24 Freestanding advertisement displays

Public information panels are permissible in situations such as the pedestrian precincts of shopping

centres and other areas of commercial activity. They can be effective when grouped in a unified

composition which avoids an impression of clutter. The amount of advertising permitted on public

information panels will be restricted and shall constitute not more than 20% of the total area…”.

25. Paragraph 14.41 of the 1999 Dublin City Development Plan contains the relevant provision as follows:

“14.41.0 Advertisements/Signage

Well designed advertising signs in selected locations, and on an appropriate scale, can contribute to the character

and vitality of commercial areas of the city, particularly at night. However, the character and attractiveness of

Dublin is adversely affected by many insensitive advertisements. They have damaged the character of individual

buildings and streets and have had a detrimental affect upon the historic and conservation areas of the city.

The corporation will seek the removal of such advertisements and permit only advertisements which are used

sensitively and sympathetically and which enhance the appearance and vitality of an area. In the interests of

amenity and public safety, the corporation will not permit without a licence, the display of any advertising boards

or other advertising devices on the public footpath.

14.42.0 Advertising hoardings

Advertising hoardings, including tri-vision and three-dimensional signs, inappropriately located can constitute one of

the most obtrusive elements of all forms of outdoor advertisements. They rely for their impact on size, scale and

location and thus are usually detrimental to a character of the area in which they are situated. However they can

help to screen building sites and sites awaiting redevelopment.

There is scope for the temporary screening of derelict sites and buildings sites through the use of outdoor

advertising, landscaping, suitable boundary treatment, such as railings and the provision of public seating in liaison

with the outdoor media industry. The industry will be expected to cooperate with the guidelines which are set out

below and as may be amended from time to time.

(A) As a general principle, outdoor advertising shall only be permitted within commercial zones; it shall

not be permitted within residential zones, historical or conservation areas, or amenity areas.

(B) Outdoor advertising shall not be permitted either on listed buildings and structures or within the

vicinity of such buildings and structures, in such a way as to detract from the visual quality of their

setting.

(C) The scale of display panels must be related to the scale of the buildings and streets in which they

are located. 48 sheet panels, despite being the size most favoured by the industry in terms of impact,

will only be acceptable in exceptional circumstances and twin panels of this size on a single site will not

be permitted. As a general principle, the planning authority have a clear preference for the smaller

sized panel such as the Euro panel (3m by 4m) or smaller. Vertical proportions are preferred.

(D) Where illuminated hoardings are proposed the effect on the streetscape including during the hours

of darkness and on the amenities of the area will be considered.

(E) Display panels may form part of the visual screening around building sites or sites awaiting

redevelopment. In such cases temporary permissions will be considered where appropriately sized

panels form an integral part of an overall boundary treatment and do not compromise more than half

of the total surface area of such a treatment.

(F) As a general rule, permissions for outdoor advertising will be limited to a maximum of three years

in the first instance, to enable the position to be reviewed by the Corporation in the light of changing

circumstances at the end of that period.

(G) The number and scale of hoardings in the vicinity of the site.”

26. The respondent’s inspector in a report of the 21st July, 2003, noted in relation to the site that:

“There are two other advertising hoardings in the vicinity – on the Halfway House Pub and on a warehouse to the rear of

the Bank of Ireland”.

27. She noted that the proposed development was to retain an advertising structure measuring 6.5 metres wide by 3.5 metres which

rotates three advertisements and was roughly 4 metres above ground level and was illuminated by an overhead light roughly 6 metres

in length.

28. In the assessment part of a report he says the following:

“Assessment

There are three planning issues in this appeal in my opinion;

1. Development plan issues;

2. Size and scale of the advertisement structure;

3. Planning history;

1. Development Plan Issues

The site is located in a commercially zoned area which is in accordance with the policy of the development plan. It

is not on or near a protected structure. It is illuminated by means of an overhead light, stepped forward from the

hoarding, running most of the width of the sign, I do not consider that the illumination would give rise to

distraction constituting traffic hazard. The structure is larger than the size of the scale normally preferred by the

planning authority, but I will return to this point under the next heading. It is the third of three advertising

structures around this road confluence. I will consider this under the planning history of the site.

2. Size and Scale of the Advertisement Structure

The size of the structure is larger than the preferred size of the planning authority. In addition in this instance, the

structure continues past the roof ridge, as does the overhead light. This is excessive in scale in my view and

seriously detracts from the visual amenities of the area.

The structure should be reduced in width to the maximum permitted in the development plan i.e. 4 metres in

width and 3 metres in height.

3. Planning History

There has been an advertisement hoarding on site since before 1990. Given this presence for such a length of

time, it is my opinion that while three advertisements structures in such close proximity is not visually desirable, it

would be inappropriate to refuse permission for this particular hoarding on the grounds of visual clutter.

Conclusion

The advertising structure is excessive in size and scale and one in three in close proximity. However, given the

planning history of the site, I would recommend that the structure be retained albeit at a much reduced size.

Recommendation

I recommend that permission be granted.”

29. In its decision to refuse permission of the 8th August, 2003, the respondent set out the following as its reasons and

considerations:

“It is considered that the prismatic sign, proposed to be retained, is of excessive scale and does not satisfactorily

integrate with the design and scale of the building at 171 Drimnagh Road. The prismatic sign proposed to be retained on

the gable elevation would contribute to visual clutter, would seriously injure the visual amenities of the area and

therefore would be contrary to the proper planning and sustainable development of the area.

In deciding not to accept the inspector’s recommendation to grant permission, the Board concurred with the decision of

the planning authority and considered that the proposed reduction in scale, as recommended by the inspector would not

overcome its concerns.”

30. The first paragraph of the above reasons and considerations is in almost exactly the same terms as the reason given by the

planning authority in its decision to refuse of the 12th March, 2003.

31. As is apparent from the above, both the planning authority on the respondents identified three factors which led them to refuse

planning permission. These were:

1. Excessive scale;

2. Failure to satisfactorily integrate with the design and scale of 171 Drimnagh Road the building to which it is attached;

and

3. It would contribute to visual clutter and hence would injure the visual amenities of the area and would be contrary to

proper planning and of sustainable development of the area.

32. The first issue of concern therefore for the respondents was the question of the scale of the development. Paragraph 15.15.4 of

the 1991 Dublin City Development Plan deals with scale. Paragraph 14.42.0 (C) of the 1999 Dublin City Development Plan also deals

with scale. The 1999 provision expresses a “clear preference” for the smaller sized panels such as Euro panel (3m by 4m) or smaller.

The inspector in her report recommended a reduction in the scale and proportion to 4 metres in width and 3 metres in height as being

the maximum permitted in the development plan. Paragraph 15.15.4 (II) of the 1991 Plan appears to express a preference for smaller

panels than the 4 metre by 3 metre panels mentioned in the 1999 Plan. Both Plans express a preference for vertical proportions.

Whilst both Plans appear to exclude larger type panels e.g. 48 sheet panels as in the 1999 Plan the “larger advertising hoardings”, in

the 1991 Plan, where preferred size of panels are expressly given, the 1991 Plan appears to express a preference for smaller sizes

display panels in comparison to the 1999 Plan.

33. In spite of that however permission for retention was granted in 1997 in respect of a structure which was 6.5 metres wide and

3.5 metres in height, apparently way in excess of what was expressed to be the preferred size in the 1991 Plan.

34. Is there something in the language used in the 1999 Plan which expresses or conveys a preference for smaller size or which

expresses or conveys a much more definite restriction on permissible sizes? In my view there is nothing in the language of paragraph

14.42.0 (C) in the 1999 Plan which does that. On the contrary the expressed preference for the 3 metre by 4 metre size would

rationally convey a less restrictive approach to the scale issue.

35. I am satisfied that on the scale issue there is nothing in the 1999 Development Plan which would convey to any reasonable

intelligent person, any material change in regard to the scale issue other than perhaps as mentioned a less restrictive approach on

size.

36. The next issue which was of concern to the respondent was the question of the integration of the proposed structure with the

design and scale of the building at 171 Drimnagh Road.

37. Paragraph 15.15.4 (I) of the 1991 Plan says:

“The scale of the display panels should normally relate to pedestrians and the local environment not to vehicles.”

38. Further on at paragraph 15.15.8 it says:

“A poster panel on a building should be in scale with the particular building and should not cut across any of its

architectural features…”

39. Paragraph 14.42.0 (C) of the 1999 Plan says:

“The scale of display panels must be related to the scale of the buildings and streets in which they are located…”

40. In my view there is no material difference between these provisions, relevant to the facts of this case.

41. The final matter which was of concern to the respondents was that if the permission for retention of a development was to be

given that it would contribute to “visual clutter” and in the result would seriously injure the visual amenities of the area. It would

appear from the report of the inspector that what is meant by “clutter” in this regard is the number of other similar advertising boards

in the immediate area.

42. The only mention of “clutter” in the 1991 Development Plan is in paragraph 15.15.11 and also in paragraph 15.15.24. The former

deals with signs on shop fronts and other business premises and appears to be confined to signs attached to the same building. The

latter deals with Free Standing Advertisement Displays. Neither of these situations appears to be relevant to the issue of concern

expressed by the inspector.

43. Paragraph 14.42.0 (G) of the 1999 Plan says:

“The number and scale of hoardings in the vicinity of the site.”

44. This would appear to me to be an entirely new provision thereby creating a separate and distinct issue for concern in relation to

these advertising structures.

45. It is off course right as was submitted for the respondent that the applicant be taken as having knowledge of the relevant parts

of the applicable development plans, and that the decision and the reasons and considerations expressed in it, are to be read in

conjunction with the development plans.

46. Even doing that however, insofar as the issues of scale and non integration are concerned, the reasons and considerations stated

in the decision when read in conjunction with the inspector’s report and the development plan, wholly fail to explain or to render

explicable the reversal of decision from that of 1990 and 1997, where the physical circumstances were identical in both instances.

47. Insofar as the “clutter” issue is concerned it could be said that recourse to the 1999 Development Plan renders the conclusion in

this regard explicable. But if that be so, it is only by way of assuming or perhaps even speculating that the respondents did in fact

have the change in the Development Plan in mind and this was the reason for their conclusion in that regard.

48. As set out above the legal obligation resting on the respondents to explain their decisions is a very light one, one could even say

almost minimal. It is well settled that they do not have to give a discursive judgment. They do however as set out in the judgment of

Kelly J., have to provide sufficient information to enable somebody in the position of the applicant in this case to consider whether he

has a reasonable chance of succeeding in judicially reviewing the decision, can arm himself for such a review; can know if the

respondent has directed its mind adequately to the issues it has to consider; and finally give sufficient information to enable the court

to review the decision. Insofar as two of the main elements of the decision in this case are concerned i.e. reasons and considerations

based on scale and non-integration, the decision fails on every aspect of the foregoing test. There is literally nothing there to explain

why a different conclusion is reached on these issues to that in 1990 or 1997.

49. If one were to assume that the decision somehow explained itself this court would inexorably have to reach the conclusion that

the decision was vitiated by irrationality on the basis that there was no material supporting the reversal of the conclusion reached in

1990 and 1997, as per O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.

50. As these two issues make up a very large part of the substance of the decision, in my view the decision is fatally flawed on this

ground, and must for this reason alone be quashed.

51. Insofar and the remaining third element of the decision is concerned, relating to the “clutter” issue, as said earlier this court is left

in a position whereby it must assume or guess that the reason for the conclusion is a material change in the Development Plan not

because of anything explicitly said either in the decision or the reasons and considerations for it or in the inspector’s report but simply

because there was a relevant material change in the 1999 Development Plan as discussed above.

52. Whilst, it could be concluded, on the balance of probabilities, that the change in the Development Plan was the main reason and

consideration for the conclusion of the respondents on the “clutter” issue, it is very unsatisfactory for this Court, to be put in position

of reaching that conclusion, in that way, when a short and simple statement, indicating reliance on the change in the 1999

Development Plan, would, put beyond any doubt, that this was the reason for that conclusion and indeed for any purported reliance

on the 1999 Development Plan in regard to the “scale” and “integration” concerns. Neither this Court, nor the applicant, nor the world

at large should have to, make assumptions, as to what the main reasons or considerations were, when that would be wholly

unnecessary, if the minimal statement required to make these things clear, was included in the statement of reasons and

considerations in the decision.

53. In an age of near universal literacy one can but observe, that such ommission represents a standard of literary communication

which is very low and in my opinion fails to satisfy the legal requirement, of stating the main reasons and considerations, for its

change of stance, in deciding to refuse permission in 2003.

54. Accordingly, I have come to the conclusion, that the applicant is entitled to an order of certiorari quashing the impugned

decision.