Supreme Court holds planning appeals can be withdrawn before Board's written decision, dismissing appeals on this point.

THE SUPREME COURT

Appeal No. 45/2013

Fennelly J.

O’Donnell J.

Clarke J.

BETWEEN:

ECOLOGICAL DATA CENTRES LIMITED

Applicant/Respondent

-and-

AN BORD PLEANÁLA

Respondent/Appellant

-and-

WICKLOW COUNTY COUNCIL, NATIONAL ROADS AUTHORITY, CLAUS MICHEL, IRIS MICHEL and MARC MICHEL, ALAN BUTLER

and AINE BURKE

Notice Parties

Appeal No. 102/2012

THE HIGH COURT

Record No 2011/248JR

Between

URRINBRIDGE LTD

Applicant/Respondent

And

AN BORD PLEANÁLA

Respondent/Appellant

And

WEXFORD COUNTY COUNCIL AND AILEEN O’CONNOR

Notice Parties

JUDGMENT of Mr. Justice Fennelly delivered the 10th day of December 2013.

1. This single judgment deals with the two appeals listed above. They concern the same point of law and arise from practically

identical circumstances. In each case, the planning authority had made a decision to grant planning permission, which was appealed

to the respondent/appellant, An Bórd Pleanala (hereinafter “the Board”). In each case, the Board met and determined that it would

allow the appeal and refuse the application for planning permission. Finally, in each case, the third-party appellant withdrew the

appeal before the Board had reduced its determination to the written form of a decision.

2. The point of law is as follows: the Board says that, once it had met and, as it says, “determined” the appeal, there was no appeal

remaining which could be withdrawn. The notices of withdrawal of the appeal were ineffective. Its determination of the appeal had

the effect of annulling the decision of the planning authority to grant permission. In short, each of the respondents lost the benefit of

the planning decision in its favour.

3. The whole matter turns on the language of a small number of provisions of the Planning and Development Act, 2000 (No. 30 of

2000) (from here on referred to as “the Act”). For the Board, it is crucial that the Act uses the word “determine” or its cognates

when referring to the act of the Board members, when they meet and conclude whether a permission should or should not be granted.

The decision, it says, merely formalises that act: an appeal cannot be withdrawn after the date of the Board’s “determination.”

4. The respective applicants, in each case, applied for judicial review of the decisions of the Board to refuse them permission, claiming

that, in each case, the appeal had been withdrawn before the Board had “decided” it and that the Board’s decision had no legal

effect. In the second above-name appeal, the appeal of Urrinbridge Limited, MacMenamin J held, in a judgment of 28th October 2011,

that the decision of the Board to refuse permission had been “null and void.” He made an order of certiorari, quashing the decision. In

the first above-name appeal, that of Ecological Data Centres Limited, Hedigan J, in a judgment delivered on 22nd January 2013, held

that case to be indistinguishable from the earlier case. He also found the decision of MacMenamin J to be correct and granted an

order of certiorari.

5. The Board has appealed both cases.

The facts

Ecological Data Centres Limited

6. On 28th July 2010, the planning authority, Wicklow County Council, the first-named notice party, made a decision to grant to the

respondent in the first-named appeal (hereinafter “Ecologic Data”) planning permission for the development of a very substantial

technology park on a site between Newtownmountkennedy and Kilpedder near the N11 in County Wicklow. The second to seventh

named notice parties appealed that decision to the Board within the statutory period. The second, sixth and seventh named notice

parties withdrew their appeal on dates from September 2010.

7. On 15th March 2011, the Board met and decided to refuse the application for planning permission. On 16th March 2011, the third,

fourth and fifth named notice parties, i.e. all the remaining appellants gave notice in writing withdrawing their appeals.

8. On 18th March, an officer of the Board wrote to the agent for those appellants stating that the letter withdrawing the appeals had

not been received in time and that a decision had already been taken in the case.

9. On 21st March 2011 the authorised member of the Board gave the Board Direction recording that the matter had been considered

by all available Board members on 15th March 2011, stating that it had decided by a 5:2 majority to refuse permission “generally in

accordance with the Inspector’s recommendations, in accordance with the following draft reasons and considerations.” The document

then set out the reasons and considerations. On the same date the Board issued its formal order under its seal in accordance with the

Direction.

Urrinbridge Limited

10. On 7th October 2010, Wexford County, the first-named notice party, as planning authority decided to grant to the

applicant/respondent, in the second appeal (hereinafter “Urrinbridge”) planning permission for a substantial residential and commercial

development at Bloody Bridge, Lyre, County Wexford.

11. The second-named notice party served notice of appeal to the Board on 7th October 2010.

12. The Board considered the appeal (including a report from its Inspector) at a meeting of the Board on 25th January 2011. It

determined that it would refuse the application for planning permission.

13. It appears from the affidavit sworn on behalf of Urrinbridge that the second-named notice party had written a letter of withdrawal

of her appeal on 21st January, but this was not delivered to the Board until 28th January 2011.

14. On 31st January 2011the Board, following a like direction as in the Ecologic Data case, made its order under its seal refusing the

permission. By letter dated the 1st February, 2011, the Board notified Urrinbridge that an order had been made by the Board

determining the appeal and enclosed a copy of the Board’s order dated 31st January, 2011.

15. The essential facts, therefore, are identical. The only extant appeal was withdrawn in each case after the Board, as it says, had

“determined” the appeal but before it had embodied that determination in the form of its written decision.

The High Court

16. Leave to apply for judicial review was granted in each case. As already stated, MacMenamin J and Hedigan J respectively decided

in favour of the applicants and made an order quashing each decision of the Board. Since Hedigan J adopted the reasoning of

MacMenamin J, it is the latter judgment which needs to be considered.

17. Having referred to the relevant statutory provisions, at paragraph 22, he noted the effect of the Board’s submissions as being as

follows:

“On foot of these, the argument is made that a decision of a Board, at its meeting, is ipso facto the Board’s

“determination”; that (for example) the preliminary submission of documents, or particulars, could only imply that the

decision which then takes place on an appeal by the Board members where they meet to decide a matter, is a final one.

It is said that these provisions preclude construing what occurs after the board meeting as being any part of a

“determination”.”

However, the learned judge added at paragraph 24:

“However, elsewhere, provisions in the Act itself undermine any such misconception. To some extent, the argument

resembles a house of cards; if one vital base card is removed, the edifice begins to crumble, for reasons I will now

explain.”

18. The learned judge referred to the Board’s interpretation as being “absolutist.” Since these provisions will be considered later, it is

not necessary to refer to them in extenso at this point. MacMenamin J attached crucial importance to the question of the meaning of

the word “decision” and the time limited by the Act for the making of application for judicial review of planning decisions. He cited

extensively from ss. 50 and 50A of the Act. He cited, in particular, the judgment of Kelly J in Friends of the Curragh Environment Ltd.

v. An Bord Pleanála & Others [2009] 4 I.R. 451. At paragraph 31, MacMenamin J said:

“The decision did not take effect until it was “finalised or issued”. That date of notification was the “date of the decision”

from the point of reckoning of time. In that case, as here, the critical question is the reckoning of time. How can the

Board decision in this case be seen differently, or as having taken legal effect until it was finalised or issued? Any

interpretation other than that applied by Kelly J. would imply the rights of a hypothetical applicant could be seriously

compromised. Such rights include the right of access to the courts to seek relief by way of judicial review, and property

rights: they, therefore, have a constitutional provenance. To my mind, (and I use the term unavoidably), that authority is

a “determination” on the issue in question here. Furthermore (by way of illustration), that very “determination” was made

known by a judgment of the court which took effect at the time of its pronouncement or notification. Why then should

the principle be different in this Board determination? It is difficult to escape the conclusion that the Board’s stance here

may have been attributable to concerns as to the unusual timeline of this case.”

19. Following this line of reasoning, he thought that the words “decision” and “determination” were used interchangeably in the Act.

MacMenamin J emphasised the need to construe a statute strictly, where it interferes with a constitutional right, namely the right of

access to the courts.

20. In each case, the High Court certified the same point of law of exceptional public importance pursuant to s. 50A(7) of the Act as

amended as being a point in respect of which it is desirable in the public interest that an appeal should be taken to this Court. It is as

follows:

“When does the Board “determine” an appeal for the purposes of section 37(1)(b) and section 140(1)(a) of the Planning

and Development Act 2000 as amended?”

The appeal

21. The Board argues for a distinction in meaning between the words “determine” and “decide” and their cognates. It says that the

words are not mere synonyms. The concept of “determination” implies the application of reason in light of the statutory criteria. The

Board determined the appeals when it considered the substantive merits of the appeal and decided the outcome, not when the Board

member signed the formal Board order bringing the appeal to an end. The “determination” does not crystallise into a decision until it is

formalised in writing.

22. In essence, the Board relies on the combined effect of the following provisions, in which each use of the word “determine” is

underlined.

23. Section 37(1)(b) of the Act provides that “…where an appeal is brought against a decision of a planning authority and is not

withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance…”

24. The same paragraph goes on to provide that “subsections (1), (2), (3) and (4) of section 34 shall apply, subject to any necessary

modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation

to the determination under that section of an application by a planning authority.”

25. Section 140(1)(a) provides:

“A person who has made an appeal… may withdraw, in writing, the appeal, planning application or referral at any time

before that appeal or referral is determined by the Board.

26. These combined references to “determining” do not, of course, specify the exact point when the “determination” takes place. It is

for that reason that the Board invokes s. 111(4) which provides

“Every question at a meeting of the Board relating to the performance of its functions shall be determined by a majority of

votes of the members present and, in the event that voting is equally divided, the person who is chairperson of the

meeting shall have a casting vote.”

27. Section 111(6) Act, however, provides:

“(a) Subject to paragraph (b) and (c), the Board may perform any of its functions through or by any member of the

Board or other person who has been duly authorised by the Board in that behalf.

(b) Paragraph (a) shall be construed as enabling a member of the Board finally to determine points of detail relating

to a decision on a particular case if the case to which an authorisation under that paragraph relates has been

considered at a meeting of the Board prior to the giving of the authorisation and that determination shall conform to

the terms of that authorisation.

(c) Paragraph (a) shall not be construed as enabling the Board to authorise a person who is not a member of the

Board finally to determine any particular case with which the Board is concerned.”

28. The Board rejected the suggestion that the member of the Board authorised under this sub-section was involved in making any

“determination” of final points of detail. That member was merely formally drawing up the Board’s determination in the form of a

decision that could then be notified to the parties.

29. There are other uses of the term “determine.” Section 137(1) provides:

“The Board in determining an appeal or referral may take into account matters other than those raised by the parties or

by any person who has made submissions or observations to the Board in relation to the appeal or referral if the matters

are matters to which, by virtue of this Act, the Board may have regard.”

30. The Board makes a number of other points, based on the text of the Act:

• S. 37(1)(c) provides that paragraph (b) is to be construed subject to sections 133, 138 and 139;

• Section 132 permits the Board by notice to require the provision of“any document, particulars or other information

[which in its opinion] may be necessary for the purpose of enabling it to determine an appeal…” It may give notice

that, in default of compliance with its request, it may, “pursuant to section 133, dismiss or otherwise determine the

appeal…”

• Section 133 enables the Board, having served a notice under section 131 or 132 and, having considered any

submissions, documents, particulars or information supplied, “without further notice to that person determine, or in

the case of a notice served under section 132, dismiss the appeal…”

• Section 138 gives the Board “an absolute discretion to dismiss an appeal” where it considers it, inter alia, to be

“vexatious, frivolous or without substance or foundation, or…is made with the sole intention of delaying the

development……………….

31. It is submitted by the Board that these provisions show that there is a distinction between the “determination” of an appeal and

its dismissal without a “determination.” In either of these cases, there would still have to be a formal Order of the Board. It follows, as

I understand the argument, that the formal order can never be characterised as the determination, since, in the case of a dismissal,

the Board will have decided not to determine the appeal.

32. More generally, the Board says that the certified point is of singular importance to it. It argues that, because, there will

necessarily be an interval of a day or more between the meeting of the Board at which an appeal will be considered and the drawing

up of a formal order to reflect the decision that has been made, there is a risk of pressure being brought to bear on Board members

and staff to divulge the outcome of appeals which have been dealt with at Board meetings before the formal paperwork reflecting

those decisions has been completed.

33. It submits that there is a danger of the creation of difficulties with the need to respect the laws of the European Union, especially

in respect of conservation of natural habitats by reference to Council Directive 92/43/EEC of 21 May 1992 on the conservation of

natural habitats and of wild fauna and flora (O.J. L 206 22.7.1992, p.7.). The Board cites the decision of the Court of Justice in Case

127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-

7405. That case concerned the licensing of mechanical cockle fishing in the Waddenzee SPA in the Netherlands. The Court held that:

“The competent national authorities, taking account of the appropriate assessment of the implications of mechanical

cockle fishing for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity

only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no

reasonable scientific doubt remains as to the absence of such effects.” (emphasis added)

34. The Board draws attention to the principle of conforming interpretation laid down in many cases, notably in Case C-106/89

Marleasing [1990] ECR I 4135, paragraph 8. It says that Irish legislative provisions ought to be interpreted in light of European law and

obligations under same.

35. In essence, the Board submitted that, from the moment of the “determination” of the appeal, respectively on 16th March 2011

and 25th January 2011, the Board was functus officio. Counsel accepted that it followed from this proposition that the Board had no

power to reconsider its decision between that time and the time (usually several days later) when the matter was reduced to writing

in the form of an order expressing the decision of the Board. This would be so even if a member of the Board, in the intervening

period, adverted to an important point of substance which should persuade the Board to reconsider. It simply would not have the

power to do so.

36. Each of the respondents submits that, the appeals having been withdrawn in each case, the Board no longer had anything before

it to decide. Thus it had no jurisdiction to decide the appeal: the appeal, it is submitted, is not finally determined until the Order of

the Board is drawn up, signed and sealed. Therefore prior to the making of an order, the Board is free to consider and reconsider what

its decision will be.

37. The respondents rely on the judgment of MacMenamin J. They argue that, because it has been held that, for the purposes of the

time limit for applying for judicial review, the decision of the Board dates, not from the time the Board meets and decides internally on

the outcome of an appeal, but from the date of its written and sealed decision, the same date should apply for the purposes of s.140

(1)(a) and the date of withdrawal of an appeal. It is submitted that logic demands that the date of the formal written order or

decision of the Board and its determination should be the same.

Conclusion

38. The entire debate on the appeal centres on the use of the word “determine” when the Board carries out its functions in relation

to appeals pursuant to the Planning and Development Act, 2000, as amended.

39. However, the key question is whether the combined effect of the use of the term “determine” in s. 37 relating to the

consideration and conclusion of an appeal, in s. 111(4) in its general reference to meetings of the Board, and in s.140(1)(a)

concerning the withdrawal of an appeal is that an appeal cannot be withdrawn at any time between the meeting of the Board where

the matter is considered and concluded, and the reduction of that “determination” to writing in the form of a decision.

40. The essence of the submissions of the Board is that the Act makes a considered and deliberate distinction throughout between a

“determination” and a “decision.” Considering the matter at the most general level, I find it difficult to understand why such a

distinction should be necessary. There is no obvious reason, a priori, pointing to a conclusion that the legal effect of an important

administrative act should, for one legal purpose, date from the moment when it is verbally arrived at or concluded and, for another,

from the time of its embodiment in a formal document, having legal form and incorporating the reasons for its adoption. That,

however, is the clear effect of the submissions of the Board. The Board claims that MacMenamin J decided the issue by reference to a

point which was not in issue in the Urrinbridge case, namely the date from which time limit for commencing judicial review proceedings

is to be calculated. It accepts that, for the purposes of judicial review, the time limit runs from the date of the decision for the

purposes of s.50A(6), leaving aside the question of whether or not it is the date of notification which applies. Once that proposition is

accepted, the implications of the Board’s argument is that the “determination” has legal effect for the purposes of an application for

judicial review only from the date of adoption of the decision but that an appeal cannot effectively be withdrawn between the time of

the Board's “determination” of the matter and the formal adoption of the decision.

41. A further counter-intuitive implication of the argument that the Board is functus officio from the moment of its “determination” is

that, as was frankly accepted at the hearing, it has no power to reconvene and reconsider a “determination,” made through error,

oversight or inadvertence. At the hearing, it was postulated that a Board member might, on further reflection, come to realise that a

mistake had been made, whether of law or of appreciation of the facts. Such an error might be fundamental. It might be less serious.

For example, it might have been agreed to impose a condition involving an erroneous calculation of technical matters. On the Board’s

submission, it would be powerless to correct such an error. Its legal obligation would be to continue with the adoption of a clearly

erroneous decision. The answer to this undoubted dilemma, which was proposed at the hearing, was that the matter would have to

await correction through the process of judicial review. That, to my mind, would be an unnecessarily cumbersome and costly remedy.

42. It seems to me obvious that, in the ordinary way, any deliberating body should be in a position to review its decisions before they

have become irrevocable. Indeed, it is the long-established position in law that a court or a judge has power to revise a judgment

orally delivered until such time as it has been incorporated in a perfected order of the court.

43. It is in the light of these considerations that I turn to consider whether, contrary to these instincts, the Act mandates such a

distinction between the meaning of the words “determination” and “decision” as is propounded.

44. The words themselves are, as used in everyday English language, natural synonyms. Where the context is the resolution of a legal

issue or dispute, it would be natural to use them interchangeably. That is indeed what MacMenamin J thought about their use in the

context of the Act. The Oxford English Dictionary, 2nd Ed, (Clarendon Press Oxford, 1989, Vol. 4) treats them as synonyms of each

other.

• Decide, as a transitive verb, means:

“To determine (a question of controversy or cause) by giving a victory to one side or the other; to bring to a settlement,

settle resolve (a matter in dispute, doubt, or suspense). (emphasis added).

• Determine, after a first range of meanings connoting putting an end to or limiting, means: “To settle, or decide (a

dispute, question, matter in debate), as a judge or arbiter” (emphasis added).

The Thesaurus offered on the computer on which I am preparing this judgment offers “decide, settle on, conclude..” as

synonyms for determine and “resolve, determine..” as synonyms for decide.

45. As a matter of law, the matter must, of course, be decided in the light of the words as they are used in the Act. It is true that

the Act uses the word “determine” when referring to the Board in deciding –a word I find it impossible to avoid—on the result of an

appeal. Section 37(1)(b) provides:

“Subject to paragraphs (c) and (d), where an appeal is brought against a decision of a planning authority and is not

withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the

decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given;

and subsections (1), (2), (3) and (4) of section 34 shall apply, subject to any necessary modifications, in relation to the

determination of an application by the Board on appeal under this subsection as they apply in relation to the

determination under that section of an application by a planning authority.”

46. It is immediately obvious that the language changes almost imperceptibly from “determine” to “decision.” Does the Act mean to

distinguish, in the same sentence, between the determination of the Board at its meeting and its decision, which annuls the decision

of the planning authority? It seems to me obvious, that, in this provision, at any rate, no distinction can have been intended.

Admittedly, the second part of the paragraph returns to the term determination. However, it does so in a way which further

undermines the proposition that the Act makes the consistent distinction suggested. It refers explicitly “to the determination under…

section [34] of an application by a planning authority.” However, s. 34 does not use the term determine or determination. Section

34(1) envisages that a planning authority “may decide to grant the permission…” Section 34(2)(a) speaks of the planning authority

“making its decision…” Thus, s.37(1)(b), which is at the heart of the Board’s submissions, demonstrably uses the terms

interchangeably. What the Board determines in the first sentence becomes its decision later in the same sentence. The decision of

the planning authority under s. 34 is its determination when 37(1)(b) needs to refer to it.

47. Accordingly, when s.140(1)(a) provides for the withdrawal of an appeal: “at any time before that appeal is determined by the

Board,” it does not or, at least, does not necessarily refer to the moment at which the Board “determines,” in the sense of deciding

the appeal. Taking those provisions together, the natural and obvious conclusion is that s.140(1)(a) envisages that an appeal may be

effectively withdrawn at any time prior to the incorporation of the determination of the Board in the form of its written decision.

48. It remains to consider the effect of s. 111(4):

“Every question at a meeting of the Board relating to the performance of its functions shall be determined by a majority of

votes of the members present and, in the event that voting is equally divided, the person who is chairperson of the

meeting shall have a casting vote.”

49. The function of that provision is to state what might be considered obvious, namely that every question is to be decided by a

majority vote of those present. It does not apparently permit absentee voting, though that is not a matter we need to decide. The

sub-section is addressed, not to the time at which a determination is deemed to be made, but rather how the question is to be

determined.

50. Section 111(6), quoted above casts light on this. That provision envisages that “a member of the Board [may] finally… determine

points of detail relating to a decision on a particular case if the case to which an authorisation under that paragraph relates has been

considered at a meeting of the Board prior to the giving of the authorisation and that determination shall conform to the terms of that

authorisation.”

51. Three points emerge from that provision. Firstly, there may and, presumably, very often will, be a need to address and decide on

points of detail following the decision at the Board meeting and before the matter is reduced to writing. Secondly, the authorised

Board member decides on those points of detail, but the sub-section uses the word determine for that activity. Thirdly, the final use

of the term determination is consistent only with its being referable to the final written decision.

52. It follows that s.111(4), when read in the light of s.111(6) does not mean that the determination for all purposes of the Act, and,

in particular, for the purposes of s.140(1)(a), takes place at the time of the Board meeting.

53. I am also persuaded that the Act did not intend to draw a distinction between a determination and a decision, by the express

obligation imposed on the Board to state reasons for its decisions. Section 34(10) imposes on every planning authority and on the

Board in the following terms:

“A decision given under this section or section 37 and the notification of the decision shall state the main reasons and

considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission

the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition

imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the condition

is described shall be sufficient to meet the requirements of this subsection.”

The reasons “on which the decision is based” must necessarily be those which motivated the members of the Board to vote as they

did, when determining” the matter under s.37 at their meeting. Here, they are treated as the reasons for the decision. It is clear that

no differentiation is intended.

54. I am satisfied, therefore, that the terms determine and determination on the one hand and decide and decision on the other are

used interchangeably for the purposes of s.140(1)(a).

55. I am not persuaded by the argument based on European Union law. This is not a case of the interpretation of a provision of

national law implementing a provision of a directive, a regulation or any other provision of EU law. The provisions of the Planning Act

relating to the making of decisions on appeals by the Board and the withdrawal of appeals are items of national procedural law.

56. It is possible, of course, that the withdrawal of an appeal may have the effect, in a particular case, of depriving the Board of the

opportunity to decide that a particular permission may have the effect of contravening EU law. However, that result does not flow

from the provisions concerning the time when an appeal is deemed to be withdrawn. Those provisions are completely neutral on the

point. If the present appeals had been withdrawn before the date of the Board determination in each case, the result would have

been the same. Indeed, if the withdrawal of the appeal in the Urrinbridge had been sent in on 21st January instead of being delivered

on 28th, there would have been no question about the matter. In other words, whether the withdrawal of an appeal has an effect in

the sense of causing the grant of a permission which contravenes provisions of EU law is not the result of the interpretation of the

Act proposed in this judgment. It is a random effect, which is the same as if an appeal had never been served or had been withdrawn

in good time.

57. I do not find it necessary to consider the matter before the Court in the present appeals from the point of view of rights. The

rights of access to the courts for the purposes of applications for judicial review are, of course, highly relevant when considering the

date of a decision of a planning authority or the Board and fixing the date when time begins to run. The interpretation of s.140(1)(a)

does not raise any issue of rights. In my view it is a straightforward matter of statutory interpretation. I am satisfied that an appeal

can be validly withdrawn for the purposes of that provision at any time prior to the formulation of the written decision of the Board. I

would answer the question in each appeal accordingly.

58. For these reasons, I would dismiss the appeal in each case.