High Court refuses leave for judicial review as applicant's arguments lack substantial grounds for invalidity.

Neutral Citation Number: [2007] IEHC 478

THE HIGH COURT

2006 No. 724 JR

BETWEEN

NOEL MULHAIRE

APPLICANT

AND

AN BORD PLEANÁLA AND THE ELECTRICITY SUPPLY BOARD

RESPONDENTS

AND

ENNIS TOWN COUNCIL

NOTICE PARTY

Judgment of Mr. Justice Birmingham delivered the 31st day of October, 2007.

1. This is an application by Mr. Noel Mulhaire (the applicant) for leave to apply for judicial review in respect of a decision of An Bord

Pleanála (the Board) of 26th April, 2006 granting permission to the Electricity Supply Board (ESB) for the erection of a 24 metre high

free standing communication structure carrying antennae and communications dishes at the ESB substation at Cahircalla, Ennis,

County Clare.

2. Section 50 of the Planning and Development Act 2000, as amended, provides that leave to apply for judicial review shall not be

granted unless

(a) The High Court is satisfied that there are substantial grounds for contending that the decision concerned is invalid or

ought to be quashed and the applicant has a substantial interest in the matter which is the subject of the application.

3. The applicant lives in close proximity to the proposed structure and it is not in dispute that he has a substantial interest in the

application, though it is contended by both respondents that he lacks an entitlement to advance certain arguments which he seeks to

make.

4. In relation to what constitutes substantial grounds, the classic statement of what is required is to be found in the judgment of

Carroll J. in McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125 at 130, where she commented:

“What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending

that the Board’s decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it

must be weighty. It must not be trivial or tenuous.”

5. This passage has been considered and approved in a large number of cases and received the endorsement of the Supreme Court In

Re Article 26 and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360. I accept that at this stage the court is not

concerned with trying to ascertain what the eventual result would be, save to the extent that a ground which did not stand any

chance of being sustained could not be said to be substantial. The authority for that is Village Residents Association Ltd v. An Bord

Pleanála [2000] 1 I.R. 65.

History of the permission

6. In order to understand and put in context arguments advanced by the different parties and, in particular, to put in context certain

arguments advanced by the applicant, it is appropriate to outline the history of the planning application.

7. An application was made to Ennis Town Council by the ESB for permission to erect a 24 metre high free standing communication

structure to carry antennae and communication dishes within an existing ESB substation at Cahircalla, Ennis, County Clare. The

application was received by Ennis Town Council on 3rd June, 2005 and after an initial request for further information, the application

was refused on 30th November, 2005. The refusal referred to material contravention of the development plan for the area, serious

injury to amenities, property in the vicinity of the proposed development and that accordingly the proposed development would be

contrary to the proper planning and sustainable development of the area. It should be noted that in refusing permission the planning

authority was following the recommendations of its planning officials.

8. The refusal of permission was appealed to the Board by the ESB, and the applicant, who had earlier made a submission to Ennis

Town Council, made an observation which was received by the Board on 20th June, 2006. A number of other observations were

submitted by third parties.

9. The Board Inspector’s report recommended refusal, having regard to the guidelines for telecommunications antennae and support

structures issued by the Department of the Environment in 1996, as well as the statutory plan for the area. He concluded that the

proposed development by reason of its height and scale within a low rise environment, would by reason of the associated dishes and

infrastructure and by reason of its location in proximity to residential properties, would be visually intrusive, would injure the amenities

of the area and would diminish property values. He further concluded that the development would materially contravene policy

objectives of the statutory plan, would set an unwelcome precedent and would accordingly be contrary to the proper planning and

sustainable development of the area.

10. The Board received the Inspector’s report on the 24th April, 2007 and on the 26th April, 2007 the Board granted permission

subject to a number of conditions. In doing so it was of course declining to follow the recommendations of the Inspector. It is this

decision which the applicant now seeks to challenge.

11. A very large number of grounds of challenge were put forward in the statement of grounds. However, there is a considerable

overlap between them and some of the grounds are repetitive. It is possible to cluster the grounds so as to reflect the basic

contentions of the applicant. In summary the challenge centres on

(i) alleged irregularities in relation to the site notice;

(ii) an alleged failure on the part of the Board to give any, or any adequate, reasons for its decision.

(iii) It is said that the Board’s decision was unreasonable and or irrational and

(iv) it is alleged that the Board failed to give notice to the applicant of certain matters including the contents of the

Inspector’s report thereby denying the applicant of the opportunity of making relevant submissions.

12. I propose to address each of these issues in turn.

The site notice

13. The evidence before the court indicated that on the 3rd June, 2005, a required site notice was erected by a planning consultant

employed by the ESB who later on the same day lodged the original planning application with Ennis Town Council. It appears that it is

the settled policy of the ESB when submitting a planning application that the site notice is erected on the same day as the planning

application is submitted but before the actual submission.

14. It appears from the affidavit of the applicant that the applicant was initially of the view that the site notice had to be erected

two weeks prior to the submission of the planning application and be in situ throughout that two week period. The applicant,

however, was mistaken in that regard as what is required under Article 17(1) of the Planning and Development Regulations 2001, is

that an applicant shall within the period of two weeks before the making of a planning application give notice of the intention to make

the application by the erection or fixing of a site notice in accordance with Article 19.

15. Faced with this difficulty, the applicant has refined his arguments and contends that the erection of the notice, on the same day

as the planning application was submitted, does not comply with the regulations. The argument made is that the day on which the

application is submitted cannot be regarded as being within the two week period. It is said that this is so by an analogy with the

Statute of Limitations. However, it seems to me that the Statute of Limitations jurisprudence does not assist the applicant. In

McGuinness v. Armstrong Patents Limited [1980] I.R. 289, McMahon J. held that the day on which the cause of action accrues is

included. It seems to me that where somebody erects a sign early in the day when they are subsequently going to lodge an

application for planning permission that they have erected the sign within two weeks prior to the submission of the application.

16. Further, the applicant relies on the fact that the site notice was not in place for sometime running up to the 8th July, 2005, the

last day of the statutory period of five weeks. By letter dated 4th July, 2005 the applicant informed Ennis Town Council that the ESB

were not displaying the application at the site.

17. I am satisfied that the erection of the site notice on the 3rd June, 2005 complied with the requirements of the Planning and

Development Regulations 2001. Furthermore, the ESB did not receive any information or notification that the site notice had been

removed. I accept that the ESB would have arranged to have it renewed, or replaced as required, had information come to hand, that

the site notice had been removed or been defaced or rendered illegible. On the basis, however, of the suggestion, and I do not think

it is much more, that the notice was not in situ in the period running up to the 8th July, 2005 it is said that there has been a failure

to comply with Article 20 of Planning and Development Regulations 2001. Article 20 requires that the site notice should be maintained

in position for a period of five weeks from the date of receipt of the planning application and that it should be renewed if it is removed

or become defaced or illegible within that period. The applicant relies on the decision of Peart J. in Marshall v. Arklow Town Council

[2004] 4 I.R. 92. It seems to me, however, that there are a number of factors which distinguish that case from the present. First of

all, what was in issue there was a decision of the planning authority to grant permission whereas here matters had moved on from the

planning authority to An Bord Pleanála. Secondly, that was a case where the failure by the planning authority to inspect the site to

see whether there was compliance with the requirements in regard to notice gave rise to significant prejudice in that a number of

potential objectors lost out on their opportunity to object.

18. For the sake of completeness I should say that, in my view, the fact that the applicant did not raise an issue in relation to this

site notice in his submission to the Board means that, in any event, he is not now entitled to raise this matter. In Harrington v. An

Bord Pleanála (No. 1) [2006] 1 I.R. 388, Macken J. held that an applicant seeking to pursue judicial review proceedings is normally

required to have personally raised an objection to the decision maker before proceeding to put forward a subsequent legal objection.

However, while I do note that the issue was raised by another objector, in my view, this does not avail the applicant. Further, the

applicant has not been prejudiced in any way even if it is accepted that the site notice was not present for some time. The fact of

the matter is that the applicant for judicial review was fully aware of the permission being sought, made two submissions to the

planning authority and then made observations to An Bord Pleanála. The inability of the applicant to establish prejudice precludes a

successful reliance on the site notice. In Dunne v. An Bord Pleanála [2006] I.E.H.C. 400, McGovern J. deals with two issues raised

with regard to the site notice. Then, it was alleged that the site notice was not erected in good time and also alleged that the site

notice should have been on a yellow background. McGovern J. found it impossible to resolve a dispute as to when the notice went up.

He said that he was in any event satisfied that there was no prejudice to the applicants because they knew in sufficient time of the

developments and they were able to make objections before the planning authority and subsequently appeal the matter to An Bord

Pleanála. The remedy of certiorari is a discretionary remedy, he accordingly exercised his discretion against making any order on that

issue. A similar conclusion was reached, by Kelly J, in Blessington District and Community Council Ltd v. Wicklow County Council

[1997] 1 I.R. 273 where the issue related to the terms of a newspaper notice. Kelly J. found that even if it was assumed that the

premises in question were a habitable house, the issue in the case, it was difficult to see how anyone could have been misled by such

an omission. In the absence of evidence that persons had been mislead, the point could not constitute substantial grounds warranting

judicial review.

19. In summary, it is my view that the procedures followed in this case did in fact comply with the statutory instrument, even if the

situation were otherwise. I am quite satisfied that there has been no prejudice whatever experienced by the applicant and I

accordingly refuse leave to seek judicial review on this ground.

Failure to give reasons

20. The applicant complains that in breach of natural and constitutional justice, the Board failed to give any, or any adequate,

reasons for its decision to grant planning permission to the ESB.

21. It is appropriate to set out the reasons actually given in some detail. The reasons and considerations were stated as follows:

“Having regard to

(a) The National Strategy regarding the improvement of mobile communications services.

(b) The Guidelines relating to telecommunications antennae and support structures which were issued by the

Department of the Environment and Local Government to Planning Authorities in July, 1996.

(c) The commercial zoning of the site.

(d) Its existing use as a utility site and

(e) The location of the cathedral spire to the north east of the site.

It is considered that, subject to compliance with the conditions set out below, the proposed development would not

seriously injure the amenities of the area or of property in the vicinity, would not be prejudicial to public health, and

would, therefore, be in accordance with the proper planning and sustainable development of the area. The Board noted

that the planning authority had decided to refuse permission because it was considered that the proposed development

would constitute a material contravention of the development plan. Having regard, however, to the guidelines relating to

telecommunications antennae and support structures, which were issued by the Department of the Environment and Local

Government to planning authorities in July of 1996, the Board considered that by virtue of s. 37(2)(b)(iii) of the Planning

and Development Act 2000, it was not constrained in granting permission for the proposed development.”

22. The Board, in deciding not to accept the Inspector’s recommendation to refuse permission, had regard to national policy, the

commercial zoning of the site, and the fact that the site consisted of an existing electricity supply Board sub-station.

Conditions

1. This permission is for a period of 5 years from the date of this order. The telecommunications structure and related

ancillary structures shall then be removed unless, prior to the end of the period, planning permission shall have been

granted for their retention for a further period.

Reason: to enable the impact of the development to be reassessed, having regard to changes in technology and

design during the period of five years.

2. The site shall be reinstated on removal of the communications structure and ancillary structures. Details relating to the

removal and reinstatement shall be submitted to, and agreed with, the planning authority as soon as practicable.

Reason: In the interest of orderly development.

3. Part commencement of development, the developer shall lodge with the planning authority a cash deposit, a bond of an

insurance company, or other security to secure the satisfactory reinstatement of the site, coupled with an agreement

empowering the planning authority to apply such security, or part thereof, to the satisfactory completion of the

reinstatement, including all necessary demolition and removal. The form and amount of the security shall be agreed

between the planning authority and developer or, in default of agreement, should be referred to the Board for

determination.

Reason: To ensure the satisfactory reinstatement of the site.

4. The site shall be landscaped in accordance with a scheme of landscaping, details of which should be submitted to the

planning authority for agreement before development commences. The Scheme shall include a time scale for its

implementation.

Reason: In the interest of visual amenity.

5. Surface water drainage arrangements for the proposed development shall comply with the requirements of the planning

authority.

Reason: In the interest of orderly development.

6. Details of the proposed colour scheme for the telecommunications structure, ancillary structures and palisade fencing

should be submitted to, and agreed in writing with, the planning authority prior to the commencement of development.

Reason: In the interest of the visual amenity of the area.

7. The transmitter power output, antennae type and mounting configuration shall be in accordance with the details

submitted with this application, and shall not be altered without a prior grant of planning permission.

Reason: To clarify the nature of the development to which this permission relates and to facilitate a full assessment

of any future alterations to the network.

8. No material change of use of the mast shall be made without a prior grant of planning permission.

Reason: To safeguard the amenities of the area.

9. The developer shall pay to the planning authority a financial contribution in respect of public infrastructures and

facilities benefiting development in the area of the planning authority that is provided, or intended to be provided, by, or

on behalf, of the authority in accordance with the terms of the development contribution scheme made under section 48

of the Planning and Development Act 2000. The contribution shall be paid prior to the commencement of development, or

in such phased payments as the planning authority may facilitate, and shall be subject to any applicable indexation

provisions of the Scheme at the time of payment. Details of the application of the terms of the Scheme shall be agreed

between the planning authority and the developer or, in default of such agreement, the matter shall be referred to the

Board to determine the proper application of the terms of the Scheme.

Reason: It is a requirement of the Planning and Development Act 2000, that a condition requiring a contribution in

accordance with the development contribution Scheme, made under s. 48 of the Act, be applied to the permission.

23. The requirements in relation to the giving of reasons received detailed considerations from Kelly J. in Mulholland v. An Bord

Pleanála (No.2) [2006] 1 I.R. 453. The case is of particular interest in that, as here, this was a case where the Board did not follow

the recommendations of its Inspector recommending rejection of a planning permission but rather granted the permission. Kelly J.

pointed out that the Planning and Development Act 2000, brought about an expansion of the obligations imposed on the Board and

indeed on planning authorities. Under s. 34(10)(a), there is now an obligation to state the main reasons and considerations on which a

decision was based. There is also a requirement now under s. 34(10)(b) to indicate the main reasons for not accepting the

recommendation of the Board’s Inspector.

24. It is important to bear in mind why the giving of reasons is regarded as fundamental. In O’Donoghue v. An Bord Pleanála [1991]

I.L.R.M. 750, Murphy J. said that:

“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.”

25. In State (Sweeney) v. Minister of the Environment [1979] I.L.R.M. 35, Finlay P. stated that the purpose for the requirements for

reasons was:

“To give to the 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.”

26. In dealing with the new obligation to state the consideration on which a decision is based, Kelly J. was of the view that in order

for the statement of considerations to be acceptable under law it must satisfy a similar test to that applicable to the giving of

reasons. The statement of considerations must, therefore, be sufficient to; 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, or arm himself for such hearing or review, know if the decision maker has directed its mind adequately to the issues

which it has considered or is obliged to consider and enable the court to review the decision. Thus, he concluded 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 the main

reason. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at 76 Finlay C.J. said:

“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.”

27. Here, if one has regard to the decision and the conditions and reasons, it is clear, therefore, that the Board has applied its mind

to the issues before it. Indeed, the reasoning of the Board clearly emerges from the decision with the attached conditions. Mr.

Mulhaire may, understandably, be very aggrieved at the outcome, particularly, as his arguments had carried the day before the

planning authority, and with the Inspector, but he cannot be left in any doubt as to why the decision went against him. In my view, it

is noteworthy that the reasons and considerations are set out here much more fully than was the case in O’Keeffe v. An Bord Pleanála

[1993] 1 I.R. 39, a case with some striking similarities as it, too, involved an application for permission to erect a radio mast where An

Bord Pleanála departed from its Inspector’s report it decided to grant permission. As was the case in O’Keeffe v. An Bord Pleanála, I

am satisfied that the entirety of the documents clearly, and sufficiently, identify the reasons by which the Board reached its decision

to grant this particular planning permission subject to these particular conditions. The applicant has placed particular emphasis on the

fact that this was a case where An Bord Pleanála had decided not to follow the Inspector’s recommendation to refuse planning

permission. However, as is clear from Mulholland v. An Bord Pleanála, even here there is no obligation to provide a discursive

judgment. In the present case, An Bord Pleanála expressly stated that in deciding not to follow the Inspector’s recommendation it had

regard to national policy, the commercial zoning of the site, and the fact that the site consisted of an existing ESB sub-station.

Again, while Mr. Mulhaire may not like the conclusions reached by An Bord Pleanála, he cannot be left in any doubt as to how and why

they came to their decision to depart from the Inspector’s recommendation.

28. This was a case where Ennis Town Council had refused the application in part on the grounds that it materially contravened Policy

ENV 5 of the Ennis and Environs Development Plan 2003. As far as material, s. 37 of the Planning and Development Act 2000, provides

as follows:

(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission

even if the proposed development contravenes materially the development plan relating to the area of the planning

authority to whose decision the appeal relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially

contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it

considers that

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the

proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to regional planning guidelines for the

area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority

in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and

permission granted, in the area since the making of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the

requirements of section 34 (10), indicate in its decision the main reasons and considerations for contravening materially

the development plan.

29. In the decision the Board states specifically that, having regard to the guidelines relating to telecommunications antennae and

support structures which were issued by the Department of the Environment and Local Government to planning authorities, in July,

1996 and by virtue of s. 37(2)(b)(iii) of the Planning and Development Act 2000, it was not constrained in granting permission for the

proposed development.

30. During the course of the hearing a disagreement emerged between counsel for the applicant and counsel for the respondents on

how s. 37(2)(b) was to be interpreted. On behalf of the applicant, it was argued that the Board may only grant planning permission

which contravenes a development plan when it considers that the proposed development is of strategic or national importance and

that, in addition, there is present one of the factors listed at (ii), (iii), and (iv). On behalf of the respondents, it is argued that if any

one of the conditions, set out at (i), (ii), (iii) and (iv), is satisfied that the Board is free to grant permission. In my view, the

submissions made on behalf of the respondents are correct. There is no logical connection between a development being of strategic,

or national, importance and the fact that there are conflicting objectives in a development plan or that the objectives are not clearly

stated. Likewise, there is no logical connection between a development of strategic, or national, importance and the pattern of

development in the area since the making of the development plan. I am, therefore, of the view if only one of the conditions specified

at (i) – (iv) is present that the Board is free to grant permission, if it wishes to do so. However, even if I am wrong about that it

would seem to me that in this case the Board were, in any event, having regard to the national importance of the communications

sector a decision, which was not unreasonable or irrational.

Unreasonable or Irrational

31. It is alleged that the Board failed to have regard to

(i) the prejudice,

(ii) the availability of alternative sites,

(iii) the international radiation protection association guidelines and

(iv) its own precedents.

32. On behalf of the applicant, it has been argued that the well known test, as stated in O’Keeffe v. An Bord Pleanála, does not apply

to the present application because Mr. Mulhaire’s constitutional rights are an issue and that, accordingly, requires a different and

more extracting standard to be applied. In that regard, reliance is placed on the judgment of Clarke J. in Gashi v. Minister for Justice,

(Unreported, High Court, 3rd December, 2004).

33. These cases are not at all comparable. Gashi was decided in an asylum context where applicants would frequently contend that if

returned to their home country they would face execution or torture. If the anxious scrutiny test has a place in Irish law, and that

remains to be determined, it is in the context of a very limited type of case and such cases do not have any relevance to the

planning area. I think it is significant that the O’Keeffe test was actually formulated in the context of a planning case and, indeed, a

planning case which raised issues very similar to those that arise in the context of this case.

34. While couched in the language of judicial review, the applicant is effectively inviting the court to substitute its own views for the

views of An Bord Pleanála. Substituting the views of the court for the views of the decision maker is not, however, the purpose of

judicial review.

35. The applicant is concerned about the manner in which public health issues were dealt with. Issues in relation to public health were

to the fore of the decisions made by the planning authority and An Bord Pleanála. An Bord Pleanála concluded that the proposal would

not be prejudicial to public health. There was material before it on which it could so conclude. As Lord Brightman stated in R. v. Chief

Constable of North Wales Police, ex parte Evans [1982] 1 W.L.R. 1155 at 1173 (as quoted by Kelly J. in Flood v. Garda Síochána

Complaints Board [1997] 3 I.R. 321 at 345): “Judicial review is concerned, not with the decision, but with the decision-making

process.”

36. The applicant has criticised the Board for its regard to the national strategy regarding the improvement of mobile communication

services. However, s. 143(1) of the Planning and Development Act 2000, specifically requires the Board, in performing its functions, to

have regard to the policies and objectives of the Government, State Authority, Minister, Planning Authorities and other bodies.

37. The applicant has also challenged the view of the Board that there will be no serious injury to the amenities of the area. In

seeking to challenge this view, particular emphasis is being laid by the applicant on issues relating to visual amenity.

38. It seems to me, however, that the judgments that must be made in that regard are pre-eminently a matter for An Bord Pleanála.

In Evans v. An Bord Pleanála, (7th November 2003) Kearns J. in the context of views at Vico Road, Dalkey observed:

“The extent to which the amenity of a view may be said to be impaired seems to me, in this case at least, to be highly

subjective. That being so, there was considerable scope for the respondent to reach a different conclusion than did the

Inspector on looking at the same material. In an application of this nature, the Court is not concerned, nor is it permitted

to substitute itself for An Bord Pleanála, and to ask if it would have reached the same decision on the identical material.

The Court is only concerned with the decision making process itself. That being so, the Court may only ask: was there

material upon which the decision maker could make the decision which it did make? If so was the decision taken one

which flew or which flies in the face of fundamental reason?”

39. In this case, as in Evans, I am of the view that the answer to the first question as posed by Kearns J., whether there was

material upon which the decision maker could make the decision, is yes; there was material and the answer to the second question,

was the decision one that flies in the face of fundamental reason, must be no.

40. The applicant has advanced a number of arguments relating to the manner in which the Board treated the 1996 guidelines. In

particular, he complains that the Board failed to comply with the guidelines: (a) failing to consider whether the site chosen was the

site of last resort, (b) permitting a mast in a site that was zoned commercial rather than industrial. It is not in dispute that the

guidelines in question fall within the provisions of s. 28 of the Planning and Development Act 2000, and that, accordingly, the Board

must have regard to the guidelines in the performance of its functions. As it happens, all sides in the present case have referred to

the guidelines and found therein materials which they say support their basic contention. It is important to consider the extent of the

obligation imposed on the Board. The obligation upon the Board is to have regard to the guidelines and this is not, at all, the same as

a requirement to follow, or to implement. The Board has stated that it had regard to the guidelines and it would require clear evidence

to displace this assertion. In G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 Hardiman J. stated that:-

“A person claiming that a decision making authority had, contrary to its express statement, ignored representations which

it has received must produce some evidence, either direct or inferential, of that proposition before he can be said to have

an arguable case.”

41. In my view, the observations of Hardiman J., in regard to representations, apply with equal force to the guidelines. The evidence

to support the proposition that the Board did not have regard to the guidelines is wholly lacking. I am reinforced in this view by the

fact that the guidelines were in fact central to the appeal process, having being considered by the Planning Authority, referred to by

the parties to the appeal and considered by the Inspector. This drives me to the conclusion that the guidelines must have been

considered and that the objection is really to the view found arising from that consideration.

42. The applicant relies heavily on the following paragraph in the guidelines “only as a last resort and if the alternative suggested in

the previous paragraph are either unavailable or unsuitable should free standing masts be located in a residential area or beside

schools. Should such location become necessary, sites already developed for utilities should be considered and mast antennae should

be designed and adopted for this specific purpose. The support structure should be kept to the minimum height consistent with

effective operation and should be a monopole rather than a latticed tripod or a square structure.” The applicant contends that

permission should be granted only if the proposed site was a site of last resort. To this, the respondents replied by saying -

“Read the previous paragraph”. It reads “in the vicinity of larger towns and in city suburbs operators should endeavour to

locate in industrial estates or in industrially zoned land. The possibility offered by some commercial or retail areas should

be explored whether as roof top locations or by way of locating “disguised” masts. It should also be noted that sub-

stations operated by the ESB may be suitable for the location of antennae support structures. This possibility should also

be investigated.”

43. The respondents point to the reference in the guidelines to the use of ESB sub-stations and say that the present applications

are, therefore, supported by the guidelines. As I have already indicated the extent of the obligation on the Board is to have regard to

the guidelines and there is nothing to suggest that has not happened.

44. The applicant further complains that the Board has not followed its own precedents or, indeed, referred to the relevant

precedents. Clearly, consistency is a desirable objective but almost all planning decisions involve the task of balancing competing

factors in a specific context. This may well mean that when these factors are applied to a specific context more than one conclusion

may be open, so that neither of the conclusions can be said to be irrational or unreasonable. Indeed, that is very much the view that

I have formed in this case. It would have been open to the Board to refuse permission and had there been a refusal it would have

been difficult for the ESB to categorise the decision as irrational and unreasonable. At the risk, however, of stating the obvious, it

does not at all follow that because a refusal of planning permission would not have been unreasonable or irrational, that it follows that

a decision to grant will be unreasonable or irrational.

45. It has been argued that uncertainty surrounds the scale of the development as a doubt surrounds the number of antennae which

will be erected. I cannot agree. The Board, in deciding to grant permission, was authorising the ESB to proceed with a development

defined and limited by the capacity of the mast. The fact that the permission is time limited is an indication that the Board was keenly

aware of developing technology and seeking an opportunity to reassess the situation after a period.

Failure on the part of the Board to give notice.

46. The applicant criticises the Board for not providing him with a copy of the Inspector’s report which it considered in reaching its

decision and says that this denied the applicant the opportunity of considering it and making relevant submissions. It is contended

that in failing to provide the Inspector’s report the Board failed to comply with s. 137 of the Planning and Development Act 2000,

which states that it must give notice to the parties, and any person, who has made submissions where it purports to take matters

into account other than those raised by the parties, or persons, making submissions. The applicant placed reliance on McGoldrick and

An Bord Pleanála [1997] 1 I.R. 497, Stack v. An Bord Pleanála (Unreported, High Court, O’Neill J., July 11th, 2000).

47. In McGoldrick, the issue turned on whether a particular annex had been constructed to its present dimensions prior to

refurbishment works being carried out. The applicant furnished an amount of evidence in that regard and stated a willingness to

furnish additional evidence if required. The applicant was not told about, nor invited to comment on, an objection that had been made

by a local residents group to the effect that the annex had been newly built by him from smaller and unconnected outhouses.

48. In Stack v. An Bord Pleanála, O’Neill J. granted leave in a situation where when considering an application the Board had regard to

a decision reached in respect of a neighbouring site and a conclusion that there was little difference between the two applications. In

addition, that applicant was not informed of the fact that regard was being had to the earlier decision and that a view was being

formed that there was little difference between them.

49. In this case the situation is entirely different. This was not a question of the Board having regard to some extraneous document,

rather the complaint centres on a report created by the Board’s own Inspector. The arguments on behalf of the applicant ignored the

fact that the Inspector’s report was entirely favourable to the applicant and that there could be no question of the applicant needing

an opportunity to deal with the report. In fact, the sequence of events in respect of the appeal as set out in the affidavit establishes

that third parties including the applicant had the last word on the appeal.

The Board reached its conclusion with undue expedition

50. One additional argument shall be referred to.

51. The applicant points to the fact that the Inspector’s report was received only on 24th April and that, accordingly, the Board had,

effectively, only 24 hours to consider the report. It was contended that there could have been no proper or substantive analysis, or

investigation, arising from the report which was conducted within the 24 hours. In my view, there is no substance in this complaint.

The Board has stated that it considered the Inspector’s report and, indeed, has stated with some particularity why it differed from

the approach recommended by the Inspector. To suggest that inadequate time was taken over the decision is comparable to

suggesting that in a criminal case a conviction could be set-aside because the jury did not stay out long enough. It may be added

that this complaint about undue expedition does not sit easily with the fact that the applicant had earlier sought to make a point in

relation to s. 126 of the Planning and Development Act 2000, when contending that there had been undue delay in determining the

appeal.

Conclusion

52. I am not of the view that any of the arguments advanced individually, or collectively, amount to substantial grounds and,

accordingly, I propose to refuse the application for leave to seek judicial review.