The Gazette 1992

GAZETTE

JULY/AUGUST 1992

The Obl igation to Give Rea sons for Administrat ive Dec i s i ons Part 2

By Maurice Collins BL

should be looked at in combination with the conditions imposed and the reasons given for their imposition, and continued:

The position in Ireland

In Ireland, even where an obligation to give reasons has been imposed on decision makers by statute or by statutory instrument, no attempt has been made to indicate what degree of explanation is thereby required. 42 Most of the relevant statutory provisions refer solely to "statements of reasons" or "grounds" and most of the decided cases deal with the existence or non-existence of a common law obligation and as a result, are concerned with the refusal of administrators and decision- makers to give reasons for their decisions rather than with the question of whether or not their given explanation was adequate. However, in a number of recent cases, the Superior Courts have considered the adequacy of stated reasons in particular circumstances. Moreover, there is also a wealth of UK case law concerning similarly imprecise obligations to state reasons and the adequacy or otherwise of such statements. Defence (1990) has already been referred to. 43 The issue arose again in the context of a decision of An Bord Pleanála in O'Keefe -v- An Bord Pleanála (1991). 44 Relevantly, the action concerned a decision of . the Board to grant planning permission, subject to a number of conditions, for a large and high- powered radio mast in County Meath, despite the recommendations to the contrary of the Inspector who had conducted the oral enquiry on The approach of the Supreme Court in Breen -v- The Minister for behalf of the Board and the conclusions of the experts commissioned by the Board to consider the technical aspects of the application. The reasons stated for allowing the appeal was the Board's

"Approached in that way, I am satisfied that the entire of this

document sufficiently identifies the reasons by which the Board reached a decision to grant this particular planning permission subject to these particular conditions." 45 At no point in O'Keefe does the Court attempt to establish by definition or description the extent of the obligation to give reasons imposed by the relevant statutory provisions. No reference is made to the rationale for imposing the obligation or to its desired function and effect. The Court, per Finlay CJ, explicitly rejected any attempt to link the content of the statutory and common law obligations, a rejection that loses much of its force when one considers the entirely vague and non-specific nature of the statutory duty at issue in O'Keefe itself. It is not immediately apparent why the Chief Justice's own consideration of the common-law obligation to give reasons in Creedon could not assist the Court in O'Keefe, particularly as it must be the case that the function and rationale of the obligation is the same in each case and consequentially, a similar content must be expected to follow. The obligation on An Bord Pleanála to provide reasons for its decisions is clearly distinct from the obligation to give reasons for any conditions it may impose (in fact the former is imposed by section 26 (8) of the 1963 Act while the latter was not imposed until the adoption of the 1977 Planning and Development Regulations SI6J/1977 in particular Article 48 thereof). Given the accepted inadequacy of the reasons for the decision (and the consequent non-compliance with section 26 (8)), it is difficult to understand how the reasons given for imposing the

Mau r i ce Collins BL

satisfaction that the development would not be contrary to the proper planning and development of the area, provided it were carried out in accordance with the stated detailed conditions (for each of which, in accordance with the regulations, separate reasons were given). It was argued by the plaintiff that the stated reason for granting the planning permission was not in reality a reason at all, but merely a statutory sine qua non. Expressed in the language used above, the reason provided by the Board may be said to have been the ultimate fact of the decision-making process, which required justification by reference to the factual background to the application and the relevant principles of law. The decision, the plainfiff argued, was void for non- compliance with the relevant statutory provisions requiring a statement of reasons to be given. The Supreme Court, per Finlay CJ, accepted this submission - at least insofar as it concerned cases where the Board's decision ran contrary to the recommendation of its own inspector. However the Court held that the reason for the decision statement of the threshold requirement for granting any planning permission - i.e. a

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