An Bord Pleanala has a DUTY to alert interested parties

 

The right to comment on planning applications, and on appeals to planning decisions, by both the parties to that application/appeal and interested or affected citizens, is a fundamental premise of our planning law. As far as the right of interested parties is concerned, this right is enshrined in Sections 129 and 130 of the Planning and Development Act 2000 (PDA 2000). These sections also confirm the central role of An Bord Pleanala (ABP) in this process.

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  1. Submissions or observations by other parties

(1) The Board shall, as soon as may be after receipt of an appeal or referral, give a copy thereof to each other party.

(2)(a) Each other party may make submissions or observations in writing to the Board in relation to the appeal or referral within a period of 4 weeks beginning on the day on which a copy of the appeal or referral is sent to that party by the Board.

(b) Any submissions or observations received by the Board after the expiration of the period referred to in paragraph (a) shall not be considered by the Board.

(3) Where no submissions or observations have been received from a party within the period referred to in subsection (2), the Board may without further notice to that party determine the appeal or referral.

(4) Without prejudice to section 131 or 134, a party shall not be entitled to elaborate in writing upon any submissions or observations made in accordance with subsection (2) or make any further submissions or observations in writing in relation to the appeal or referral and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.

 

Section 129 (1) of the PDA 2000 states that the ABP shall, as soon as may be after receipt of an appeal or referral, give a copy thereof to each other party. In 129 (2) (a) the PDA states that each other party may make submissions or observations in writing to the ABP within 4 weeks of the day on which the appeal is sent to that party by the ABP.

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Therefore, as far as parties to an appeal are concerned, the procedure is straightforward and safe (subject to An Post). The clock starts ticking when the ABP posts out (‘sends’) the appeal. There is an express obligation on the ABP to “give a copy thereof” to the parties to the appeal.

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So far, so good. Although time limits must be enforced, fair procedures require that every party should be aware of submissions and have a reasonable opportunity to respond.

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Section 130 of the PDA 2000 deals with other interested parties.

 

  1. Submissions or observations by persons other than parties

(1)(a) Any person other than a party may make submissions or observations in writing to the Board in relation to an appeal or referral, other than a referral under section 96(5).

(b) Without prejudice to subsection (4), submissions or observations may be made within the period specified in subsection (3) and any submissions or observations received by the Board after the expiration of that period shall not be considered by the Board.

(c) A submission or observation shall—

(i) be made in writing,

(ii) state the name and address of the person making the submission or observation and the name and address of any person acting on his or her behalf,

(iii) state the subject matter of the submission or observation,

(iv) state in full the reasons, considerations and arguments on which the submission or observation is based, and

(v) be accompanied by such fee (if any) as may be payable in accordance with section 144.

(2) Submissions or observations which do not comply with subsection (1) shall be invalid.

(3) The period referred to in subsection (1) (b) is—

(a) where notice of receipt of an environmental impact statement is published in accordance with regulations under section 172(5), the period of 4 weeks beginning on the day of publication of any notice required under those regulations,

(b) where notice is required by the Board to be given under section 142(4), the period of 4 weeks beginning on the day of publication of the required notice,

(c) in any other appeal under this Act, the period of 4 weeks beginning on the day of receipt of the appeal by the Board or, where there is more than one appeal against the decision of the planning authority, on the day on which the Board last receives an appeal, or

(d) in the case of a referral, the period of 4 weeks beginning on the day of receipt by the Board of the referral.

(4) Without prejudice to section 131 or 134, a person who makes submissions or observations to the Board in accordance with this section shall not be entitled to elaborate in writing upon the submissions or observations or make further submissions or observations in writing in relation to the appeal or other matter and any such elaboration, submissions or observations that is or are received by the Board shall not be considered by it.

(5) Subsections (1)(b) and (4) shall not apply to submissions or observations made by a Member State of the European Communities (within the meaning of the European Communities Act, 1972) or another state which is a party to the Transboundary Convention, arising from consultation in accordance with the Council Directive or the Transboundary Convention, as the case may be, in relation to the effects on the environment of the development to which the appeal under section 37 relates.

 

This section concerns non-party submissions or observations. This means those people other than the parties to the appeal. Any member of the public may make submissions in relation to the appeal or referral to the ABP. The only type of referral to which it does not apply is a Section 96(5) referral concerning a dispute relating to an agreement to transfer land or equivalent payment to a planning authority for housing purposes or a dispute for the compensation to be paid to the owner.

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A non-party who seeks to make a submission under this section must be in strict compliance with the five matters stated in subsection 2, including that the submission must be in writing, must be clearly referenced, and must contain that fee!

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But let us look at how the time limits are decided here. Contrasted with Section 129 parties, where the clock starts when the ABP posts them a copy of the appeal, what happens with Section 130 interested parties?

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In 130 (3) (c) the PDA 2000 states that the interested party has a period of 4 weeks from the day that the ABP received the last appeal.  However, you will notice that the PDA 2000 does not make it necessary for the ABP to actually do anything (like posting a notice or copy of the appeal) like it does in Section 129. So the clock starts to tick for interested parties from a date that only the ABP knows until it decides to share that fact. The Act does not say how it must share that fact, or even that it has to share that fact, although surely that is necessarily implied.

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This can eat into the window of opportunity for an interested party to make submissions as it means they will have to search out that information. This in turn implies that they will know where to look on the ABP site. Unfortunately, a large proportion of the public would not have a clue where to look, assuming that the ABP does actually publish that detail.

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To give a practical example: If the ABP were to sit on an appeal for a week before they send out the Section 129 notice to the parties to the appeal, and that is likely given that the ABP are very busy, then the consequences to the interested party are already substantial: they have already lost a week in which to make submissions. If we assume that the interested parties are relying on a party to the appeal (usually the Council) to inform them of the appeal, this process might take another week. That leaves the interested party two weeks to make a submission. The delay does not affect the party to the appeal, as their clock only starts ticking when the notice is sent. In theory this could mean that the window of opportunity is lost to the interested party even before they become aware of the appeal. This apparently happened in the appeal by Ecopower against the refusal of planning permission for turbines in the Drumhills outside Dungarvan in Waterford.

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Again, no submissions can be made outside this time limit, unless the ABP requests further submissions (Section 131), or requests a document or information (s.132), or where an oral hearing is held (Section 134), and all of these are purely discretionary powers of the ABP. The strict time limits for submissions do not apply in the special case of observations made by a Member State in relation to effects on the environment of a development where covered by the relevant European law, but that hardly helps an ordinary member of the public who is about to  have wind turbines built in their rose garden.

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It is also important to note that under Article 74 of the Planning Regulations 2001, the ABP, must as soon as may be, following its decision, notify any person who made submissions or observations. Article 74(2) specifies the content of such notice. This section re-enacts s.8 of the 1992 Act. In other words, once again there is a positive duty on the ABP to notify parties after the appeal is decided. Why does Section 130(3)(c) not have a similar provision imposing a similar duty on the ABP before the appeal is decided?

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In its decision of The State (Genport Ltd) v An Bord Pleanala [1983]  I.L.R.M.  12, when considering Sections 17 and 18 (the comparative provisions in the previous Planning Act) the Supreme Court held that:

 “I am satisfied that as a matter of general law An Bord Pleanala carrying out a quasi-judicial function would have an obligation to take reasonable steps to ensure that every party interested in any application before it should be aware of the submissions or representations made by any other party; should have a reasonable opportunity of replying to them; and should have a general reasonable opportunity of making representations to the Board. Those general obligations of the Board arising from the requirements of natural justice are indeed to be found implemented in part at least by ss. 17 and 18 respectively of the Act of 1976.”

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The facts of this case are fascinating, if not bizarre. The appellant party, despite being told to do so by the ABP, failed to make submissions with their original appeal. After receiving the appeal, the ABP gave the appellant another 14 days to make submissions or provide reasons for their appeal, at which stage they said they would determine the appeal. The appellant still failed to provide submissions or reasons. Instead of deciding the appeal, as it said it would do, thereafter the ABP sent the appellant copies of third party objections to the appeal and said that the appellant could comment on them if it wanted to prior to the appeal being determined. The Supreme Court said that if the ABP had gone ahead after 14 days and dismissed the appeal, their decision would have been “review-proof”. However, by sending the appellant the details of the objections of the third parties, the ABP had given up their right to hold the hearing immediately (a waiver), and should have thereafter sent another letter with another 14-day deadline ultimatum before holding the appeal hearing.

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This shows just how far the courts will go to ensure that everybody is given a proper chance to respond to a planning application or appeal. The ABP would do well to take heed of this fact.

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As the parties wishing to make observations or submissions on an appeal are completely dependent on the ABP to inform the public when they have received an appeal and when the clock starts ticking, it must be argued that should the ABP fail to take necessary steps to ensure that the public is informed (by publication in a local and a national newspaper for example) it is not fulfilling its quasi-judicial function.

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Nor is it complying with the First Principle of Natural Justice, namely audi alteram partem (“let the other side be heard”) , which says that if an administrative body (i.e. ABP) intend to make a decision which will have an impact on you, they must provide you with an opportunity to respond or make representations on the issues under consideration, before they make their final decision.

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In this regard, the drafting of Section 130(3)(c) is unfortunate as it does not oblige the ABP to publish anything, unlike (3)(a) and (3)(b). This legislative omission should not mean that the ABP can tell interested parties about the appeal when and if they feel like it. What should happen is that at the same time that the ABP sends out its notice to the parties to the appeal in terms of Section 129, it should publish a notice in a local and national newspaper informing the public that it has received an appeal, and details of where they can view the appeal, and that they have four weeks in which to make an observation or submission. Failure to do this would amount to a transgression of natural justice, and procedural unfairness is most certainly a ground for review.

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Alternatively, the Act needs to be amended to stipulate how a notice of an appeal must be communicated to the general public, either by ABP, or perhaps by the appellant itself as an initial mandatory requirement (in the same way as the original planning permission must be published in local and national newspapers).

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Speak to your local TD about this. They might as well do something constructive with their time while they wait around for a new government to be formed.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in An Bord Pleanala; appeal; interested parties, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act and tagged , , , . Bookmark the permalink.

4 Responses to An Bord Pleanala has a DUTY to alert interested parties

  1. Pat OBrien says:

    Thanks Neil – says a lot for the “partiality” of ABP

    On 29 March 2016 at 12:44, The Law is my Oyster wrote:

    > Neil van Dokkum posted: ” The right to comment on planning applications, > and on appeals to planning decisions, by both the parties to that > application/appeal and interested or affected citizens, is a fundamental > premise of our planning law. As far as the right of interes” >

  2. A very compelling argument for legislative change (or additional resources for An Bord Pleanála to facilitate timeous processing). Have written to An Taoiseach, Deputy Martin, Deputy Kelly, Deputy Cowen, Deputy Creed and Deputy Sherlock requesting that they use their good offices to correct the legislative oversight or provide An Bord Pleanála with additional resources before more citizens are denied natural justice on this. Suggest that others consider something similar.

  3. Pat Swords says:

    Neil

    Let me put this in a somewhat simpler legislative context than what you have described above in relation to the mess that the Irish planning legislation is. Note: The fact that the Irish planning legislation is a complete mess, which needs to be resolved, was Recommendation 1 of 101 in the recent review of An Bord Pleanala now on the http://www.environ.ie website.

    Your blog article above is in essence about fair procedures in public participation in decision making. An Bord Pleanala’s remit includes planning for projects, projects which fall both within and outside of the scope of the EU’s Directive on Environmental Impact Assessment. However, most larger projects of concern are within the scope of that Directive, which was updated in 2005 to include the public participation in decision-making procedures of Article 6 of the Aarhus Convention. So let us look more closely at that Article 6. First of all it applies to decisions to permit activities, such as planning permissions, pollution control licenses, foreshore licenses, etc. It’s scope is defined in a list of projects in Annex I of the Convention, which is similar to the list of projects to be found in the EU’s Environmental Impact Assessment Directive.

    The set up of An Bord Pleanala is ‘unique’ in many ways, not least as it completes a ‘de novo’ review of the planning application, where ‘de novo’ is from new. Therefore, what happen before at the local authority stage is void, it doesn’t exist anymore as it is not a valid permit. So we are starting from scratch again with a complete reconsideration of the permit.

    If we look closely at Article 6 of the Convention:

    http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

    “1. Each Party:
    (a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;”

    So the first part of paragraph 1 of Article 6 is completely understandable. If we continue to read Article 6, it then lists out the various stages of the public participation process where:

    Paragraph 2 defines how the public shall be informed

    Paragraph 3 defines the requirement for ‘reasonable timeframes’

    Paragraph 4 defines how provisions have to be made for early public participation, when all options are open and effective public participation can take place

    Paragraph 5 defines how applicants should be encouraged to enter into consultations with the public.

    Paragraph 6 defines the scope of the information to be made available to the public

    Paragraph 7 defines the public’s right to submit any comments, information, analyses or opinions that it considers relevant to the proposed activity.

    Paragraph 8 defines how the public authority shall ensure that in the decision due account is taken of the outcome of the public participation.

    Paragraph 9 defines the requirement to inform the public of the decision and to make accessible the text of the decision along with the reasons and considerations on which the decision is based.

    This is all well and good you might say, but how is all that theory meant to work in practice? Well there are an excellent set of Recommendations (Maastricht Recommendations) prepared by UNECE on the above. These build on the work of the UNECE Aarhus Convention Compliance Committee and where endorsed findings and recommendations are referenced in the above recommendations (in the footnotes), these are now part of the legal interpretation of the Aarhus Convention.

    http://www.unece.org/fileadmin/DAM/env/pp/mop5/Documents/Post_session_docs/ece_mp.pp_2014_2_add.2_eng.pdf

    So how many days should you have to prepare a submission, i.e. ‘reasonable timeframes’? You can look at the detail above on Article 6(3).

    So all well and good, but what has this got to do directly with the blog above? Well let’s read Article 6 paragraph 10 of the Convention:

    10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.

    So there is an obligation on An Bord Plenala to determine essentially on a case by case basis (see Maastricht Recommendations Point 144): “The nature and magnitude of the activity, the potential impact on the environment and the level of public concern”. On that basis it then has to decide what is appropriate, with regard to the objectives of the Convention, with respect to applying the provisions of Article 6 paragraphs 2 to 9.

    So I could deduce two things: First of all, if the project fell under the terms of Annex I of the Convention and the Environmental Impact Assessment Directive, which a wind farm does, and if An Bord Pleanala has no documentation as to how it had assessed the appropriate means of applying the public participation provisions of paragraphs 2 to 9, would it be legally negligent? To me very much so.

    Secondly, while one might argue as to how far one should go with some of the public participation provisions, such as in relation to the extent of the obligation of paragraph 2 in informing the general public for the second time around, one can’t cut corners with respect to paragraph 3 and ‘reasonable timeframes’. The endorsed findings of the Compliance Committee, as documented in the Maastricht Recommendations are clear as to what is are ‘unreasonable timeframes’.

    So that’s my tuppence worth, as I have often made it clear while Central and Eastern European countries modernised their administrative structures to take these new provisions on board, Ireland completely and utterly ignored them, as Irish public officials consider themselves a law on to themselves – and it goes further than just being pure lazy about staying current with the legal framework. Indeed, if you read the An Bord Pleanala review and the 101 recommendations, they didn’t happen by accident, there could have been even more. Plus not all of these can be considered the fault of legislators, you don’t need legislation per se to adopt good responsible practices in relation to public participation.

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