The Gazette 1974

UNREPORTED IRISH CASES In a planning appeal, the Minister, in giving his deci- sion, must act strictly and impartially upon the evidence tendered at the oral hearing before the inspector, and upon no extraneous matters.

the Parliamentary Secretary, the inspector in document B. 17 submitted a detailed report of his objection in relation to sewerage facilities. Eventually the plaintiff's appeal was refused by the Parliamentary Secretary, who in this case was discharging functions of a judicial nature. In Murphy v Dublin Corporation (1972) I.R. at page 238, Walsh J. said : "By statute, the Minister is the one who has to decide the matter—not the inspector. In doing so the Minister must act judicially and within the bounds of constitutional justice . . . The inspector is acting as the recorder of the Minister, and should con- vey to him a fair and accurate account of what tran- spires. The Minister should make his decision on this material alone. If the Minister is influenced by the Inspector, his decision will be open to review and may be quashed. It follows that if the Inspector does recom- mend or advise it must be related strictly to matters arising at the hearing, and, in arriving at a decision, the Minister must be unfettered by any advice given by the inspector." Here the plaintiff's appeal was treated from the very beginning as a departmental matter within Local Government. Instead of the inspector holding an oral hearing, and reporting the result thereof directly to the Minister as the designated person, this report became the subject of a file in the planning officer's section. Furthermore, the chief officer made his own recommendation that permission he refused for reasons stated on an order already drafted. Worse still, it appears that observations were added to the inspector's report which indicated that there was no free and untramelled communication between the inspector and the Minister. Furthermore, details as to the sewerage scheme which were not in the report were also tendered. The inspector in his report not merely contained an account of the evidence, but also an account of his own inspection of the lands, and his personal observations in relation to matters dealt with at the hearing. It follows that the decision of the Parliamentary Secretary acting for the Minister could not have been made on the basis of material and evid- ence adduced at the oral hearing. This case illustrates the impracticability of attempting to process through a Department of State the exercise of a judicial function conferred by statute on the head of that Department. Such a function must be dis- charged by the holder of that office personally, and not with the assistance or upon the advice of persons not contemplated by the statute. The plaintiff is accordingly entitled to succeed and the declaration will be granted. [Susan Geraghty v Minister for Local Government (No. 2); O'Higgins J.; unreported; 12 July 1974.] Declaration under Minerals Development Act, 1940, pan t ed to plaintiffs that Minister's Order is invalid, because it does not specify in detail the nature, situation and extent of the acquired minerals. The defendant, Patrick Wright, was owner in fee simple of lands at Nevinstown, Navan. By agreement 206

The Minister made a decision on 23 October 1972 under the Planning and Development Act, 1963, whereby the plaintiff, a solicitor, was refused outline planning permission in respect of certain lands, her property. On 3 October 1969 the plaintiff sought under Section 26 of the 1963 Act from Dublin Co. Council outline planning permission for a housing development on her lands at Fosterstown North. The plaintiff's application was refused on 28 November 1969 for the reasons that: (1) Development of housing in the area would result in extensive additional traffic on an over- burdened main road; (2) No water supply or sewerage facilities are available; (3) The proposed development is accordingly premature; (4) The proposed develop- ment would interfere with the proper development and operation of Dublin Airport; (5) The occupants of any houses erected would suffer severe loss of amenities due to persistent aircraft noise. The plaintiff, in appealing, asked for an oral hearing, which was held before an inspector on 14 January 1972. The Ministers refusal, made by his Parliamentary Secretary, to entertain the appeal was conveyed on 23 October 1972 and in it the Minister relied heavily on grounds (2) and (5). At the time of the oral hearing, there was in exis- tence a County Dublin Draft Plan, and this had to be considered by the Councillors. In the Draft Plan, the plaintiff's lands were zoned for agricultural purposes only, but in October 1970 a resolution had been passed by the Planning Committee of the Council stating that these lands were to be zoned for residential purposes only. After the oral hearing, on 11 February 1971, the Council passed a resolution zoning these lands for residential purposes; this resolution was taken against the advice of the planning officers, who were indignant. The inspector made his report on 25 March 1971 and deals with the submissions and evidence tendered at the oral hearing. He then gives an account of his own inspection of the lands in question, and deals with the position of the site in relation to sewerage facilities and road access. The total area is 11} acres, of which about half has been zoned for residential purposes. The inspector objects to the inclusion for residential development of part of the site, because of its location on an important flight path of Dublin Airport, and because of the inevitable noise problem. The application should be refused because (1) the site is located on a flight path of Dublin Airport; (2) the residents would suffer loss of amenity due to aircraft noise; (3) there are no proper sewerage facilities. Marginal notes were made by a senior officer of planning in Local Govern- ment to the following effect : (1) omit; (2) do not use; (3) add traffic hazard. The inspector's report is part of document 137. In document B. 11 the senior officer of planning sent a long cross-examining memorandum to the inspector; the inspector duly replied in document B. 12. There was also a long report from a Mr. Stringer containing strong condemnation of the County Council resolution of 11 February 1971. In reply to queries by