Blessington Heritage Trust Ltd. v. Wicklow County Council [1998] IEHC 8; [1999] 4 IR 571 (21st January, 1998)

JUDGMENT of Mrs Justice McGuinness delivered the 21st day of January 1998. 1. In these Judicial Review proceedings the Applicant, which is a company limited by guarantee, seeks a number of Orders against the first named Respondent (the County Council) as follows:- 1. An Order of Certiorari quashing the decision of the first named Respondent to adopt a Development Plan for the Blessington area which Plan was adopted by the first named Respondent on the 9th day of September, 1996. 2. A declaration that the adoption of the said Plan was made outside the period provided for under Section 20 of the Local Government (Planning and Development) Act, 1963. 3. A declaration that the second named Respondent has no jurisdiction to extend the appropriate period provided in Section 20 of the Local Government (Planning and Development) Act, 1963 in circumstances where the period as aforesaid has expired. 4. A declaration that a decision of the second named Respondent to extend the period provided for under Section 20 of the Local Government (Planning and Development) Act, 1963 does not act retrospectively to validate ultra vires decisions. 5. A declaration that the first named Respondent failed to comply with the requirements of fair procedures and the requirements of natural justice in making the said application to the second named Respondent and failed to comply with the requirements of Section 19 of the Local Government (Planning and Development) Act, 1963. 6. A declaration that the first named Respondent failed to comply with the requirements of the Respondent's own standing orders in the adoption of the said Development Plan. 7. An Order of Mandamus requiring the first named Respondent to prepare and adopt a Development Plan for the administrative area of Wicklow. 8. An Order prohibiting the first named Respondent from considering an application made under Section 26 of the Local Government (Planning and Development) Act, under the said Blessington Development Plan. 2. As far as number 8 above is concerned, this presumably refers to an application for planning permission for the extraction of sand and gravel which has been made by the Notice Party, Messrs Roadstone (Dublin) Limited and which is at the present being considered by the first named Respondent. 3. For convenience I shall refer to the first named Respondent as "the County Council" and the second named Respondent as "the Minister": I shall refer to the Notice Party as "Roadstone". 4. In the course of the proceedings before this Court it became clear that the main relief sought by the Applicant was the first Order listed above - an Order of Certiorari quashing the decision of the County Council on the 9th September, 1996 to adopt a Development Plan for the Blessington area (the 'Blessington Plan'). A number of grounds were put forward for the claim that the decision of the County Council to adopt a Development for the Blessington area. A number of grounds were put forward for the claim that the decision of the County Council to adopt the Blessington Plan was invalid. These included the fact that the plan was adopted at a time when the appropriate period for reviewing the County Wicklow Development Plan had expired and had not been extended by the Minister, and that therefore the adoption of the Plan was ultra vires the County Council. It was also claimed that the County Council should have given public notice of its intention to apply to the Minister for an extension of the period for reviewing the Plan. A further ground was that the Minister had no jurisdiction retrospectively to validate an ultra vires decision of the County Council or to extend the appropriate period for the review of the Development Plan on more than one occasion. The Applicant also impugns the circumstances in which the Blessington Plan was adopted by the County Council, stating that this was done in breach of the County Council's own standing orders. 5. Both the County Council and the Minister strenuously opposed the claim that the adoption of the Blessington Plan was in any way invalid or ultra vires the County Council. 6. The Applicant's proceedings were issued on the 7th March, 1996 and the Order giving the Applicant leave to seek Judicial Review was made by Kelly J. on the 10th March, 1996. On the 16th June, 1997 Messrs Roadstone (Dublin) Limited were on their own application joined as Notice Party in the proceedings. In addition to their other stated grounds for opposing the Order sought by the Applicant (to which I shall refer later) the Notice Party strongly challenges the locus standi of the Applicant in bringing these proceedings. THE STATUTE 7. Since a large number of the issues raised and argued before this Court turn on the interpretation of Sections 19 , , and 21a of the Local Government (Planning and Development) Act, 1963 (as amended), it will be helpful at this point to refer to the relevant portions of these sections, which provide as follows:- 19. - (1) Every planning authority shall, within the period of three years beginning on the appointed day (or such longer period as the Minister may in any particular case allow), make a plan indicating development objectives for their area. (2) A development plan shall consist of a written statement and a plan indicating the development objectives for the area in question, including objectives - (a) with respect to county boroughs, boroughs, urban districts and scheduled towns - (i) for the use solely or primarily (as may be indicated in the development plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise) (ii) for securing the greater convenience and safety of road users and pedestrians by the provision of parking places or road improvements or otherwise; (iii) for development and renewal of obsolete areas, (iv) for preserving, improving and extending amenities; (b) with respect to other areas - (i) for development and renewal of obsolete areas, (ii) for preserving, improving and extending amenities, (iii) for the provision of new water supplies and sewage services and the extension of existing such supplies and services. (3) Without prejudice to the foregoing subsection and subsection (5) of this section, a development plan may indicate the objectives for any of the purposes mentioned in the Third Schedule to this Act and, with respect to areas other than county boroughs, boroughs, urban districts and scheduled towns, objectives for the use solely or primarily (as may be indicated in the Development Plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise)...... . (5) A planning authority may make either - (a) One development plan, being a plan in relation to the whole of their area and all the subparagraphs in paragraph (a) and, where appropriate, paragraph (b) of subsection (2) of this section, or (b) two or more development plans, each plan being a plan in relation to the whole of their area and some one or more of those subparagraphs or to a part of their area and all or some one or more of those subparagraphs. (6) (a) The making of an application to the Minister for the allowance of such longer period as is referred to in subsection (1) of this section shall be a reserved function. (b) Where a planning authority have applied to the Minister for the allowance of such a longer period as is referred to in subsection (1) of this section, they shall cause notice of the application to be published in at least one newspaper circulating in their area and in the Iris Oifigiúil. (c) A notice under the foregoing paragraph - (i) shall specify the longer period applied for, and (ii) shall state that objections with respect to the application made to the Minister within a specified period of not less than one month will be taken into consideration before the grant of the application (and such objections shall be taken into consideration accordingly). (7) The making of a development plan or any variations of any such plan shall be a reserved function..... . 20. - (1) Where a planning authority have a development plan, they shall, from time to time as occasion may require and at least once in every five years after the date of the making of the plan, review the plan and make in it any variations (whether by way of alteration, addition or deletion) which they consider proper, or make a new development plan. (1A) The Minister may extend (either in relation to planning authorities generally or in a particular case) the period during which a planning authority may comply with the requirements of subsection (1) of this section.... .. 21. - (1) Where a planning authority have prepared a draft of a proposed development plan or a proposed variations of a development plan - (a) they shall send copies of the prescribed documents to the prescribed authorities, (b) they shall cause notice of the preparation of the draft to be published in the Iris Oifigiúil and in at least one newspaper circulating in their area ..... .. (2) A notice under the foregoing subsection shall state - (a) that a copy of the draft may be inspected at a stated place and at stated times during a stated period of not less than three months (and the copy shall be kept available for inspection accordingly), and (b) that objections or representations with respect to the draft made to the planning authority within the said period will be taken into consideration before the making of the Plan or variations (and any such objections or representations shall be taken into consideration accordingly), and (c) that any ratepayer making objection with respect to the draft may include in his objection a request to be afforded an opportunity to state his case before a person or persons appointed by the planning authority (and such opportunity shall be afforded such objector and his statement shall be considered together with his objection), ..... (4) Where a planning authority make a development plan or variations of any such plan, they shall cause a notice of the making to be published in Iris Oifigiúil and in at least one newspaper circulating in their area. (5) A notice under the foregoing subsection shall state that a copy of the plan or variations is available for inspection at a stated place and at stated times (and the copy shall be kept available for inspection accordingly). ..... 21A. - (1) Where a planning authority have prepared a draft of a proposed development plan or a proposed variation of a development plan and, after complying with the requirements of subsections (1) and (2) of Section 21 of this Act , it appears to the authority that the draft should be amended, subject to subsection (2) of this section they may amend the draft and make the development plan or variations accordingly. (2) In case the proposed amendment would, if made, be a material alteration of the draft concerned, the planning authority shall cause notice of the proposed amendment to be published in the Iris Oifigiúil and in at least one newspaper circulating in their area, and having complied with the requirements of subsection (3) and, where appropriate, a requirement of subsection (4) of this section, and having taken into account any representations, they may, as they shall think fit, make the proposed plan or proposed variation, as the case may be, with or without the proposed amendment or with such other amendments (not being an amendment providing for the preservation of a structure or public right of way) as, having regard to the particular circumstances, they consider appropriate. (3) A notice under the foregoing subsection shall state that - (a) a copy of the proposed amendment of the draft may be inspected at a stated place and at stated times during a stated period of not less than one month (and the copy shall be kept available for inspection accordingly), and (b) written representations with respect to the proposed amendment of the draft made to the planning authority within the said period will be taken into consideration before the making of any amendment (and any such representation shall be taken into consideration accordingly)...... THE EVIDENCE 8. Apart from the statements grounding and opposing the application the Court had opened to it a number of Affidavits as follows:- 1. Affidavit of Colm Coogan sworn the 7th March, 1996 grounding the Applicant's application. 2. Affidavit of Bryan Doyle, County Secretary, on behalf of Wicklow County Council, the first named Respondent. 3. Affidavit of Frank O'Gallachóir, Senior Executive Planner on behalf of Wicklow County Council. 4. Affidavit of Enda Falvey, Assistant Principal Officer, on behalf of the Minister for the Environment, the second named Respondent. 5. Two Affidavits of Seamus Breathnach, Company Director, on behalf of the Notice Party, Messrs Roadstone (Dublin) Limited. 6. A replying Affidavit by Frank Corcoran on behalf of the Applicant, dealing in the main with the issue of locus standi. 7. A number of documents were exhibited with the Affidavits. Prominent among these were - (a) the Development Plan for Blessington adopted at the County Council meeting on the 9th September, 1996, (b) the minutes of that meeting of the County Council, (c) the minutes of the following County Council meeting held on the 14th October, 1996, which included amendments of the minutes of the meeting of the 9th September, 1996, (d) the standing orders of Wicklow County Council, (e) the Notice Party's application for planning permission for the extraction of sand and gravel at Deerpark, Blessington, County Wicklow dated 9th January, 1997, (f) a letter from Mr P D Sweetman, Chief Archaeologist of the National Monuments Service, dated 25th February, 1997 dealing with the Notice Party's application for planning permission to extract sand and gravel and recommending far reaching conditions to be attached to any proposed planning permission in regard to the archaeological qualities of the site in question. 9. Mr Colm Coogan, who had sworn the original Affidavit on behalf of the Applicant, was cross-examined on his Affidavit. Much of the cross-examination dealt with the establishment of the Blessington Heritage Trust Company and the identity of its Directors and membership. Both Mr Colm Coogan and Mr Frank Corcoran are Directors of the company. Mr Coogan denied that the company had primarily been incorporated in order to embark upon a prior legal action under Section 27 of the Local Government (Planning and Development) Act, 1976 against the Notice Party. He stated that the company had held a board meeting on the 6th March, 1997 and had decided to take the present Judicial Review proceedings. This decision was taken on account of their extreme concern at the action of the County Council in amending its original draft plan for Blessington by re-zoning part of the Glen Ding Wood area from forestry/amenity purposes to permit quarrying to be carried out in that area. The members of the company were aware that the Notice Party had applied for permission to extract sand and gravel in part of the area of Glen Ding Wood. THE FACTS 10. From the Affidavit, oral and documentary evidence before the Court the factual background to the proceedings appears to be as follows. Wicklow County Council made a Development Plan for County Wicklow as a whole, which was adopted on the 6th March, 1989. It is not clear from the evidence before me whether this was an original plan made pursuant to Section 19 of the 1963 Act, or whether it was, as seems probable, a variation on a previous plan or alternatively a new plan. Be that as it may, the March 1989 plan was due to be reviewed pursuant to Section 20 of the 1963 Act by the 6th March 1994. The County Council applied for extensions of this review period and the Minister extended it by Order firstly to the 6th March, 1995 and subsequently to the 6th September, 1996. It appeared that the review would not be completed by September, 1996 and at a meeting held on 8th July, 1996 the County Council approved of a further application to the Minister to extend the review period to the 6th September, 1999. On 30th August, 1996 the County Manager ordered that a request for this extension be issued and on the same day the County Secretary wrote to the Secretary of the Department of the Environment seeking an extension as follows:- "A Chara, With reference to your letter of 9th inst. I am to request an extension of the period for the review of the County Development Plan to the 6th September, 1999. In this regard, enclosed herewith is a certified copy of the resolution passed by the Council at its meeting held on 8th July, 1996. Also enclosed is a signed copy of County Manager's order number GP350/96 requesting the Minister's sanction to the extension of the period. As you are aware from previous correspondence the members of Wicklow County Council agreed to undertake a comprehensive review of the plan, through a series of working papers. A total of twelve working papers are to be produced together with separate plans for Rathdown, Greystones/Delgany and Rathdrum. A total of seven working papers have been completed with three further papers due for completion by 1st December, 1996 and the remaining two papers by 1st March, 1997. The Plans for Rathdown, Greystones/Delgany and Rathdrum are scheduled for completion by 31st December, 1997. Allowing sufficient time for the working papers and the other plans to be considered by the Council and put on public display etc, the Council considers that a three year extension is necessary. It is hoped to have the complete plan on public display by September, 1998. I would be pleased if you could grant a further and final extension consistent with the resolution of the Council dated 8th July, 1996 and in accordance with the terms of the County Manager's Order GP/350/96 of 30th August, 1996. Is mise le meas, MICHAEL NICHOLSON COUNTY SECRETARY" 11. Somewhat peculiarly the County Secretary's letter does not mention the plan for Blessington among the other separate plans which he mentions. However, if one looks at the County Manager's order GP/350/96 which is headed "Review of County Development Plan", the County Manager states "the County Development Plan was made on 6th March, 1989 and was therefore due for review, in accordance with the provisions of Section 20 of the Local Government (Planning and Development) Act , 19963 by the 6th March, 1994. The members of the Council agreed to make a comprehensive view of the plan, and this, combined with the making of a Development Plan for Wicklow environs and Blessington together with separate plans for Rathdown, Greystones/Delgany and Rathdrum, has resulted in the review being delayed. Ministerial approval was received to extend the period within which the review must be completed to 6th September, 1996. At its meeting held on the 8th July, 1996 the Council approved the making of a further application to the Minister to extend the period within which the review must be completed to 6th September, 1999". 12. The letter dated 9th August, 1996 from the Secretary of the Department is not exhibited, but one must infer that it contained some reference to the fact that the then extended period of review would expire on the 6th September, 1996. Not until 19th December, 1996 did an order issue from the Minister in the following terms:- "Department of the Environment Local Government (Planning and Development) Acts, 1963 to 1993 Wicklow County Council. In exercise of the functions conferred on the Minister for the Environment by Section 20 (1A) of the Local Government (Planning and Development) Act 1963 , as inserted by Section 43 (1)(f) of the Local Government (Planning and Development) Act 1976 which said functions were, on the 29th day of July 1994 delegated to each officer of the Minister holding the position of Secretary or of Assistant Secretary of the Department of the Environment by the said Minister pursuant to Section 61 of the Local Government Act 1994 , I, John O'Connor, Assistant Secretary in the Department of the Environment hereby extend until the 31st day of December, 1997 the period during which the Council of the County of Wicklow, being the Planning Authority for the County of Wicklow, may comply with the requirements of Section 20 (1) of the Local Government (Planning and Development) Act, 1963 in relation to the Wicklow County Development Plan 1989." 13. Rather than comply with the request of the County Council, the Minister extended the period only until the 31st December, 1997. Since these proceedings were heard before me prior to that date, I have no knowledge of the present position with regard to any further extension of the period. 14. As can be seen from the correspondence quoted above, the comprehensive review being carried out by the County Council included the making of a number of "separate plans" for specific areas. One of these was the Blessington area. A draft plan for this area was prepared and was adopted by the County Council at its meeting on the 17th January, 1994. This draft plan was, in accordance with the terms of the statute, put on public display for a period of three months. Under the draft plan the entire Glen Ding Wood area, including the area which is in issue in these proceedings, was zoned for forestry and leisure, recreation and amenity, the zoning objective being stated to be "to preserve the amenities and character of Glen Ding Wood". Mr Corcoran, in his Affidavit on behalf of the Applicant, states that this zoning had wide support among the local community and that the only submission made in opposition to the zoning was made by the Notice Party Messrs Roadstone. This evidence is unchallenged. From the minutes of the County Council meeting of 14th October, 1996 it appears that in fact Roadstone's submission in regard to the zoning of the Glen Ding Wood area was requested by the Senior Executive Planner, Mr Frank O'Gallachoir (or by his officials). It was not received during the statutory three month period but was received subsequently and resulted in the re-opening of consideration of the zoning of the Glen Ding Wood area. 15. Roadstone had purchased lands at Deerpark, Blessington (which included part of Glen Ding Wood) from the Department of Energy in January, 1992 for a sum of £1.25 million. They intended to use these lands for the extraction of sand and gravel, an essential part of their business. Roadstone state that quarrying had been carried out on part of these lands by the previous owner. Roadstone embarked on quarrying in the Glen Ding area. On the 9th March, 1994 Wicklow County Council, as the planning authority, issued proceedings under Section 27 of the Local Government (Planning and Development) Act, 1976 seeking an Order to prevent what the County Council characterised as an unauthorised development. These proceedings were listed and adjourned from time to time over quite a long period. The Applicant in the present proceedings and its members took an intense interest in these proceedings on account of their relevance to the preservation of Glen Ding Wood and they attended the Court hearings. Members of the Trust had, in fact, been instrumental in drawing the County Council's attention to the Notice Party's quarrying in the Glen Ding area. The Applicant company then issued its own Section 27 proceedings. It appears that this was more or less at the instigation of the trial Judge in the County Council proceedings, although this aspect of the matter is not particularly relevant to the present proceedings. Both sets of proceedings were eventually settled on terms whereby Roadstone provided an undertaking to the Court not to extract sand and gravel from the lands pending a submission of an application for planning permission within four months of the adoption of a then proposed Development Plan for Blessington and successfully obtaining such permission. Roadstone have since abided by these undertakings. The date of the settlement is not stated in any of the Affidavits filed in the present proceedings but it seems to have been some time in late 1994 or early in 1995. At any rate, the settlement, as far as the Applicant in the present proceedings was concerned, was entered into in the context of the draft plan for Blessington adopted by the County Council on the 17th January, 1994 under which the whole of Glen Ding Wood was zoned for forestry/amenity purposes. 16. In or about June 1995 the County Council, having considered the submissions made in regard to the draft plan, decided to produce an amended plan. To judge from the minutes of the County Council meetings in September and October 1996 which were exhibited there were at least two fairly major zoning amendments to the draft plan and there may well have been others. One of the these was the re-zoning of part of the Glen Ding Wood lands to allow for quarrying and related activities. The amended plan, in accordance with the terms of Section 21A, was put on display for a period of one month in October-November 1995. The evidence of the Applicant (which again appears to be unchallenged) was that there were 1,415 submissions from individuals and groups objecting to the proposed re-zoning at Glen Ding. This included a submission from the Applicant. Only one submission was made that was not opposed to the re-zoning. During the period from November, 1995 to September, 1996 it appears that there was a considerable amount of local agitation, including leafleting and public meetings, in regard to the re-zoning at Glen Ding. The Applicant asserts that in addition to the natural amenity value of the wood there are sites of major archaeological and historical significance on the site of the proposed quarrying. This is to some extent borne out by the letter of Mr Sweetman the Chief Archaeologist of the National Monuments Service in connection with the proposed planning permission. 17. On the 9th September, 1996 the County Council held its monthly meeting. Item number 5 on the Agenda for that meeting was "to consider report and representations received on the Amended Draft Blessington Development Plan and to consider making the Development Plan for Blessington." 18. The minutes of the meeting of 9th September, taken together with the amendments to those minutes contained in the minutes of the meeting of the 14th October, 1996 give a reasonably full account of the discussion by the Councillors on the item. It is clear that the Council was divided and that there were strongly held opinions on both sides, both as regards the Glen Ding amendment and as regards another amendment re-zoning an existing industrial estate for housing. Councillor Ruttle proposed the adoption of the amended Draft Development Plan as circulated. Councillor Fox seconded the proposal. The Chairman rejected an amendment proposed by Councillor Cullen and seconded by Councillor Ryan which proposed that the amended Draft Development Plan be adopted to include the original zoning for Glen Ding. The Chairman held that the proposal of Councillor Cullen and Councillor Ryan was a direct negative and not an amendment and that the same result would be achieved by voting against Councillor Ruttle's proposal. Councillor Ruttle's motion was carried by fifteen votes to seven with two absentees. 19. On the 8th January, 1997, within the agreed four month period, Roadstone applied for planning permission for the extraction of sand and gravel on 32.4 hectares of their lands at Deerpark, Blessington, County Wicklow. 20. As already stated the Applicant issued the present proceedings on the 7th March, 1997. THE ISSUES 21. Counsel appearing for the four parties made oral submissions in regard to the various issues arising on the pleadings. They also provided the Court with written submissions and helpful books of authorities. In summary, Counsel's submissions covered the following issues. 22. Counsel for the Applicant, Mr Finlay, argued that the requirement for an extension of the period of review of the County Development Plan pursuant to Section 20 (1A) is a mandatory one and that the Council had no jurisdiction to adopt a Development Plan for Blessington subsequent to the expiry of the extended review period on the 6th September, 1996. He contended that the Minister's order of 19th December, 1996 extending the period of review until the 31st December, 1997 could not operate retrospectively and certainly could not retrospectively validate the Council's resolution of the 9th September, 1996. He pointed out that the Minister's Order made no overt references to retrospection. Mr Finlay submitted that the subsection allowed for one period of extension of time and one only and that it was not open to the Minister to grant three successive extensions of time. He also submitted that an application under Section 20 for an extension of time for review of a plan was subject to the same conditions as regards notice, etc, as applied to an application for an extension of time for the making of an original plan under Section 19 (6) and that no such public notice was given in this case. It was unsatisfactory that the Planning Authority, which had heavy responsibilities to the general public, should operate in the way in which it had. The Authority must act judicially and constitutionally in providing for the proper development of its administrative area. He rejected the claim of the Respondents that the Plan for Blessington was not part of the review of the County Wicklow Plan that was a "stand-alone" Plan under Section 19 (5): The Minister's order extending referred to Section 20 only. 23. In regard to the issue of locus standi, Counsel pointed out that no issue of locus standi had been raised against the Applicant in the previous Section 27 proceedings against the Notice Party. He referred to Chambers -v- Sandoz [1992] IR134 as containing a wide and generous interpretation of locus standi in planning cases, and also to the recent Judgment of Morris J. in Lancefort -v- An Bord Pleanala & Ors (Unreported 6th June, 1997). The Affidavit of Frank Corcoran in the present proceedings brought the application within the parameters set out by Morris J. in the Lancefort case. In regard to the claim of laches by the Respondents and the Notice Party, Mr Finlay submitted that the Applicant did not become aware of the situation in regard to the extension of the review period until shortly before the proceedings were issued. 24. Counsel for the first named Respondent, Mr Gallagher, submitted that the County Council had followed all the proper statutory procedures in regard to notice, display, submissions, etc in the processing and adoption of the plan for Blessington. He argued that the plan for Blessington was not a part of the review of the County Wicklow Plan but was a separate plan under Section 19 (5) of the 1963 Act: Such a plan for a town or other part of a functional area could be made at any time, whether or not within the Section 20 time limits. It could be made simultaneously with the review being carried out under Section 20 . He argued also that the notice requirements set out under Section 19 (6) applied only to extensions of the period for making the original County Development Plan and had no application to extensions of time for the review of that Plan. 25. He also submitted that the time requirements for the review of the County Development Plan set out in Section 20 were directory rather than mandatory in nature. The Section set out no penalty or particular consequence for failure to observe the proper time limits. There was, for example, no provision for the surcharging of Councillors or the disbandment of the Council, nor was there any provision invalidating a plan adopted outside the proper time limits. 26. In regard to the issue of locus standi he relied on the dictum of Lynch J. in Malahide Community Council Limited -v- Fingal County Council & Anor (Supreme Court unreported 14th May, 1997). He accepted that the dictum was expressly obiter but argued that the obiter dicta of a Judge of the Supreme Court should be given proper weight. In contrast to the instant case, the Applicants in Chambers -v- Sandoz were individuals who could well be affected personally by the operations of the Respondent. In the Lancefort case, the Applicants were held to have locus standi to oppose a particular planning permission: This was distinguishable from a situation where the Applicant sought to invalidate an entire Development Plan. He argued also that the Applicant had no locus standi whatever to challenge the conduct of the County Council meeting. In regard to laches Counsel pointed out that the Blessington Plan had been adopted and in being since the 9th September, 1996 and the Applicant's proceedings were issued only on the 10th March, 1997. 27. Counsel for the second named Respondent, Mr Healy, supported the submissions of Mr Gallagher. He particularly stressed the contrast between statutory provisions which were mandatory or imperative and those which were merely directory in nature. He suggested that the Court should consider when interpreting the Section what were the legal consequences of non-compliance with the time limits. If, for example, the County Council failed altogether to apply for an extension or the Minister refused an extension did that mean that the Planning Authority could never in the future review the original plan? Such a situation could not be in the public interest. A rigid view of the Section was unsustainable. Mr Healy agreed with Mr Gallagher that there was no basis for importing the provisions of Section 19 (6) regarding notice in to an application for an extension for review under Section 20 . 28. Counsel for the Notice Party, Mr Byrne, made similar submissions to those of Mr Gallagher and Mr Healy. He presented an extensive survey of both older and more modern case law in regard to the distinction between mandatory and directory provisions and statutes. I will refer later to a number of these cases. He argued that the Minister's order of the 19th December retrospectively covered the period from 6th September to 19th December, 1996. He opened law in regard to the possible retrospective effect of statutory provisions and submitted that, while in the main the Courts frowned upon retrospection, this did not apply to procedural matters of which the Minister's order was one. The Minister's order was delegated legislation in regard to a procedural matter of time limits, he said. He adopted the arguments of Counsel for the Respondents that the plan for Blessington was a stand-alone or separate plan and not part of the general review of the Wicklow County Development Plan. THE LAW AND CONCLUSIONS 29. As is clear from the pleadings and from the submissions of Counsel a variety of issues arise in the instant case. I will endeavour to deal with these issues in a logical order. 30. The first and basic issue is that of the locus standi of the Applicant company. In challenging the Applicant's locus standi the Respondents and the Notice Party chiefly rely on the dictum of Lynch J. at the conclusion of his Judgment in Malahide Community Council Limited -v- Fingal County Council & Anor (unreported 14th May, 1997). At page 32 of his Judgment the learned Lynch J. said:- "There is however, one further matter to which I wish to refer before concluding. What I say now in relation to this matter is obiter, because it was not raised or referred to or argued in any way either before the High Court or this Court. The point is the standing, or the locus standi, of the Applicant company to maintain these proceedings. The only information about the Applicant is that contained in paragraph 3 of Mr Michael Ryan's Affidavit of 1st December, 1993 which reads as follows; 'The Applicant herein is a company registered under Irish law and has its registered office at 43 Biscayne, Malahide in the County of Dublin. The Applicant herein is, as can be seen from the title, the Malahide Community Council and its purposes are, inter alia, to provide a framework within which individuals and organisations can work together in the promotion of the social, cultural and economic welfare the Malahide Community. In considering the social, cultural and economic welfare of the Malahide Community, the Applicant herein has always had regard to such matters as the planning and development of the Malahide area.' It does not appear from this paragraph that the Applicant company owns any buildings or lands which might be affected by planning matters. The address 43 Biscayne, Malahide, County Dublin is Mr Ryan's address. Assuming that the Applicant does not own any buildings or lands which it might seek to develop or which might be affected by planning applications made by other parties, I find it difficult to see how a limited company incorporated under the Companies Acts, 1963 - 1995 can be affected by planning objections, decisions or applications. As an artificial body or person lacking the five senses of human persons it could never experience the pleasure of open spaces, beautiful gardens and woods or the physical satisfaction of sports facilities: it can never be nauseated by foul smells nor deafened by noisy industry or loud and raucous music nor have a cherished view of open spaces obstructed by new buildings. Good, bad or indifferent planning decisions cannot affect this artificial corporate body in any way, except by increasing or diminishing its asset value if it owns lands or buildings favourably or unfavourably affected by such decisions. In the absence of economic interests it seems to me that a limited company is not an appropriate body to litigate matters arising from the Local Government (Planning and Development) Acts, 1963 to 1993. I doubt therefore that the Applicant has any locus standi to maintain these proceedings." 31. Neither of the other Judges of the Supreme Court who dealt with this case referred to this particular issue and the Chief Justice in particular reserved any decision on the point until he had heard it fully argued before him. However, it is clear that, as suggested by Counsel, the obiter dicta of a learned Judge of the Supreme Court must be treated seriously and with respect. 32. In countering this challenge, Counsel for the Applicant referred firstly to the Judgment of the learned McCarthy J. in Chambers -v- An Bord Pleanala and Sandoz (Ringaskiddy) Limited [1992] IR134 . In dealing with the issue of locus standi in that case the learned McCarthy J. at page 142 of the report stated:- "The Plaintiffs are aggrieved persons: by definition, they have locus standi: no question arises of being granted locus standi. The core of the second Defendant's argument lies in the quotation from Walsh J. in The State (Lynch) -v- Cooney [1982] IR337 at page 369 'the question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is a greater importance to be attached to the facts because it is only by examination of the facts that the Court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates.' Examination of the ensuing part of the Judgment and the case law cited makes it clear beyond question that the issue of sufficient interest is one capable of objective assessment and relates to the impact on personal situation, ranging from the liability of a rate-payer to pay his share of the cost of the luncheon had by the members of Dublin Corporation to the damage to the Plaintiff's business and the licensing provisions covered in East Donegal Co-operative Livestock Mart Limited -v- Attorney General [1970] IR317. .... in my Judgment, the considerations relied upon by the Defendants and, in particular by the second Defendant, whatever their relevance to the substantive issue, are irrelevant to that of locus standi. Section 82 of the Act of 1963 prescribes a time limit for proceedings such as these: obviously the statutory scheme contemplates challenge in the Courts. Access to the Courts to contest a justiciable issue is constitutionally guaranteed. It may be regulated as examined in Murphy -v- Greene [1990] 2IR 566 where not the locus standi but the right to sue is controlled by the statute. In my view, the Plaintiffs clearly have locus standi in this action." 33. The learned Egan J. came to the same conclusion. At page 144 of the Report he stated:- "It is perfectly clear, therefore, that a decision of the Planning Authority may be quashed or set aside by the High Court. This can arise for different reasons e.g. lack of jurisdiction, an improper exercise of jurisdiction or some other legal requirement essential to the exercise of its jurisdiction. The statutory relief can be claimed by 'a person'. The Plaintiff's are persons who reside with their large family within two miles of the proposed pharmaceutical factory and it is not seriously challenged that they have an interest and concern in the development planned. I have used the word 'interest' in the sense in which any lay man may use it, and, for the moment, it is not intended to have any special meaning". 34. At page 146 the learned Egan J. concluded:- "The learned trial judge was correct in finding that the Plaintiffs were not named objectors in the application before Cork County Council but they were certainly involved with the body known as R. I. C. H. ("Responsible Industry for Cork Harbour") who were objectors and who subsequently appealed to the first Defendant. The Plaintiffs stated that they left it to R. I. C. H. to deal with the appeal and their attitude in this regard can readily be understood particularly as there were nineteen appellants in all. I am perfectly satisfied on the evidence given by the Plaintiffs that they had and have 'a sufficient interest' in the matter within the meaning of the judgment given by Walsh J. in the State (Lynch) -v- Cooney [1982] IR 337 and accordingly they have locus standi." 35. The learned Finlay C. J., Hederman J. and O'Flaherty J. agreed with these conclusions. It is clear from this decision of the Supreme Court that locus standi in this type of case is widely defined and not readily refused. However, the Applicants in that case were natural persons and the question of the locus standi of a corporate body to maintain such proceedings did not arise. 36. That question was, however, carefully considered by the learned Morris J. (now President of this Court) after a hearing lasting six days in the case of Lancefort Limited -v- An Bord Pleanala, Ireland and the Attorney General and Treasury Holdings Limited (unreported 6th June, 1997). At page 3 of his judgment the learned Morris J. firstly decided that it was correct to deal with the issue of locus standi at the preliminary stage of leave to issue judicial review proceedings. He went on to say from page 4 onwards:- "I am satisfied that in this case Mr Michael Smith and the group of people associated with him are genuinely and honestly concerned and have devoted significant efforts in the past for the protection of listed and historical buildings and have a legitimate concern for the historical building heritage of Dublin and throughout the country. I accept that, as is said in Mr Smith's Affidavit, this group has worked tirelessly and frequently without pay toward this end. Mr Smith, a prominent member of An Taisce in which company he has held a number of prestigious offices, was the person to whom An Taisce delegated the function of opposing this development. He, inter alia, filed objections, canvassed the support of public representatives, attended at the oral hearing and voiced An Taisce's opposition to the development. He was the person with whom An Bord Pleanala communicated. I do not accept that Mr Smith or any of his associates fall within the category of persons contemplated by Henchy J. in Cahill -v- Sutton [1980] IR 269 which he described as 'the crank, the obstructionist, the meddlesome, the perverse and the officious man of straw'. I accept that after the decision of An Bord Pleanala consideration was given by An Taisce to the possibility of seeking to challenge the decision by way of Judicial Review but that a decision was made by An Taisce to devote their funds otherwise. I also accept that Mr Smith and his associates, as he says in his Affidavit, 'reached a consensus that the achievement of shared objectives and aims would best be secured by the co-ordination of joint action through the contemplated company limited by guarantee to which such individuals would subscribe and through which they would actively work thereby pooling their efforts to the optimum effect. I further say that I and my fellow subscribers perceived the Applicant as fulfilling predominantly an active of public interest role similar to that of bodies such as Cork Environmental Alliance Limited which co-ordinates public efforts for environmental protection in the Cork area and the Sierra Club in the United States of America'. It was in those circumstances that the Applicant company, a company limited by guarantee, came into existence and was incorporated on the 18th December, 1996. The locus standi of the Applicant has been challenged on a number of grounds. It is submitted that a limited company incorporated only on a date subsequent to the decision of An Bord Pleanala and only for affording the true Applicants a shield against an award of costs should not, in the exercise of the Court's discretion, be given leave to seek judicial review since prima facie (although this fact is formally denied in replying Affidavits) it would appear that the company is without assets or property and has not and cannot suffer any loss as a consequence of the decision. In support of this proposition I have been referred to the decision of Mr Justice Lynch in the Supreme Court (unreported 14th May, 1997) in Malahide Community Council -v- Fingal County Council and Gannon Homes Limited and Nassana Limited and Comeragh Properties Limited in which Mr Justice Lynch, in making it clear that his pronouncements are obiter states as follows ". 37. The learned Morris J. then quoted the passage which I have already quoted above. 38. At page seven of his judgment the learned Morris J. continued:- "I accept as the law the statements of the Supreme Court in SPUC -v- Coogan [1989] IR 734 and Cahill -v- Sutton [1980] IR 269 and from this it is clear, I believe, that circumstances may exist and can arise where the Court would permit the right to be invoked on behalf of other parties. A clear case of this was in SPUC -v- Coogan where it was held that a limited company might move the Court on behalf of the unborn. However, I do not see this as imposing limits on this right. Chief Justice O'Higgins in this course of his judgment in Cahill -v- Sutton warned against the danger of making 'the Courts the happy hunting ground of the busy-body and the crank' but Henchy J. in the course of his judgment dealt with the circumstances in which the want of locus standi on the part of the person questioning the constitutionality of the statute may be overlooked 'if in the circumstances of the case there is a transcendent need to assert against the statute the constitutional provision that has been invoked' (see page 285). Having given a number of examples Henchy J. proceeds; 'however those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of the case, the Court finds there are weighty contravening considerations justifying the departure from the rule'. In the present case a decision has been taken by a number of conscientious concerned persons to seek the protection of the Court through a limited company. It is required that these proceedings be commenced within a period of two months from the date of the delivery of the decision. To rule that the company has no locus standi would have the effect of depriving these persons of access to the Courts. I am of the view that they have demonstrated their bona fide interest in these proceedings by the work and effort which they have given in the past to this project and I am satisfied of their commitment. I think that it would be improper to rely upon the rule of locus standi to deprive them of the opportunity of access to the Court and I believe there are, in the words of Mr Justice Henchy, weighty countervailing considerations justify the departure from the rule. Accordingly, I believe the Applicant company does possess the locus standi necessary to move this application. With regard to the submission that the Applicant is without assets, I am aware that an application for security for costs has been made and awaits hearing . This aspect of the matter will, no doubt, be of importance at the hearing of that application". 39. In regard to the issue of assets, the learned Morris J. subsequently made an Order providing for security for costs. 40. In the instant case, despite my respect for the obiter dicta of the learned Lynch J., I find myself in agreement with the conclusions of the learned President of this Court which he reached after a careful analysis of the facts and of the law. In the instant case Mr Corcoran in his Affidavit sworn on the 20th day of June, 1997 states at paragraph 3 onward:- "I say that the primary objective of the company is to promote, protect and conserve the heritage sites and amenities at Blessington and its environs for present and future generations of local people and visitors to the area. I say that Blessington Heritage Trust Limited is currently a constituent member of and is represented by the deponent on Wicklow Uplands Council and on the Blessington and District Local Action Plan Group, a Leader organisation, and on the Wicklow Planning Alliance. I say that the members of the company are predominantly comprised of local residents and the company was previously known as the Blessington Heritage Trust. I say that this organisation has been actively engaged in environmental research and protection over a very long period and is particularly concerned about the area in Blessington, the subject matter of the plan, which is an area rich in archaeology, history and other matters of this nature. I say this organisation has been the recipient of an environmental awareness award which has been conferred by the Department of the Environment and which award was given for researching and highlighting the geological, archaeological, historical, cultural, ecological and amenity assets of Glen Ding Wood, Deerpark, Blessington which is in the area of the Blessington Development Plan. I say that the aforesaid Blessington Heritage Trust has been actively involved in environmental matters in the Blessington area since in or about 1994, but I say that the members of the group have been involved in similar activities since the early 1990s. I say that part of the functions of the Applicant is to ensure that developments which are carried out in the area are not detrimental to the visual amenities of the area or to the environmental character of the area and that matters relating to heritage, ecology, archaeology and history are adequately protected within the context of any such development. I say that it was because we were so concerned about the impact of a quarrying development on the Glen Ding Wood area that we instituted proceedings under Section 27 of the Local Government (Planning and Development) Act, 1976 to restrain the Notice Party herein from carrying out an unauthorised development in those proceedings." 41. I might comment that it appears somewhat ironic that the Minister for the Environment who presented the Environmental Awareness Award to the Applicant for the reasons stated by Mr Corcoran should now in these proceedings be supporting the re-zoning of part of Glen Ding Wood to allow for quarrying. However, it is not the task of this Court to rule in any way on the merits or otherwise of the re-zoning decision which was proposed by Wicklow County Council in their amendment of the Draft Development Plan. 42. It is clear that the members of Blessington Heritage Trust Company are at least as qualified as those of Lancefort Limited to pursue this type of proceedings and indeed may well be more locally based and involved in the relevant area of Blessington. I must also take note of the fact that the locus standi of the Applicants was at no stage challenged by the Notice Parties during the course of the earlier Section 27 proceedings. 43. The framework and scheme of our legislation on local government planning and development is essentially one of balance between a number of interests - those of the developer (ranging from the individual developer to the major development company), those of the local planning authority in promoting proper planning and development in its administrative area, those of the Minister in maintaining central supervision under the legislation, and last but by no means least those of the ordinary members of the public who reside in the environment which is vitally effected both by overall development plans and by individual planning decisions. The rights of all these individuals and groups are carefully and in detail spelt out in the planning legislation and the Courts should at all times endeavour to maintain the balance envisaged in the legislation. In McGarry -v- Sligo County Council [1989] ILRM 768 the learned McCarthy J. famously described the development plan thus:- "When adopted, it forms an environmental contract between the Planning Authority, the Council and the community, embodying a promise by the Council that it will regulate development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially." 44. In cases like the instant case it may well be argued, as it was in the Lancefort case, that companies such as the Applicant company have been incorporated simply to afford the true Applicants "a shield against an award of costs" to use the words of the learned Morris J. I have no doubt that this is a relevant factor and one which must cause concern to a developer such as the Notice Party. However, it could also be argued that in cases such as the present the individual member of the public may in practice be denied access to the Courts - or at least have that access made much more difficult - by the danger of an award of costs against him in a case where his opponent is a large development company with resources which enable it to pursue lengthy and costly litigation with comparative impunity. Over-reliance on the incorporation of companies such as the Applicant in this case may tip the balance too far in favour of objectors or concerned local persons; on the other hand, blanket refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well-resourced developer. It seems to me that the balance is best preserved by the course followed by the learned Morris J. The Court should look at the factual background in each case and, if necessary, maintain the balance by the making of an order for security for costs. I therefore conclude that the Applicant company has locus standi to maintain the present proceedings. 45. The issue of delay or laches was also raised. I do not consider this to be a major issue, since the delay involved was not of inordinate length, and I accept that, as stated by Mr Corcoran in his Affidavit, the Applicant was not in possession of the facts concerning the expiry of the period of extension on the 6th September, 1996 until shortly before the issue of the proceedings. The Applicant is not in my opinion debarred of its remedy by reason of delay. Nor do I consider it to be debarred by reason of its relatively minor failures to observe all the minutiae of company law. 46. The next issue which arises is as to whether the Blessington Plan is a "stand-alone" or "de novo" plan or part of the general review of the 1989 development plan for the administrative area of County Wicklow. Section (5) as quoted above provides that a Planning Authority may make either one Development Plan in relation to the whole area or two or more Development Plans. Where two or more plans are made they may be either plans for the whole area referring to different objectives or separate plans for different parts of the area. Section 19 however, deals with the making of the original Development Plan by the Planning Authority for its area and contains its own time limits, provisions for notice etc. On the documentary evidence before me it is difficult to accept that the County Council saw the Blessington Plan and the other local plans which were also being prepared in that light. It is not suggested in the statement of opposition filed by the County Council on 19th May, 1997 that the Blessington Plan was being processed other than under the provisions of Section 20 of the 1963 Act, presumably as part of the review of the 1989 Plan which was in progress. There is nothing wrong with this approach; nothing in Section 20 (1) would seem to prevent a Planning Authority which is reviewing and varying a Development Plan from including in its variations specific plans for certain parts of its administrative area. Again, one must consider the letter of 30th August, 1996 which the County Secretary, Mr Nicholson wrote to the Secretary of the Department of the Environment seeking an extension of the period of review of the County Development Plan, together with the enclosed order of the County Manager which I have quoted above. The County Secretary's letter speaks in one sentence of the twelve working papers which were to be produced together with separate plans for different areas. The following paragraph also clearly refers to the general working papers and the local plans as part of the overall review which was being carried out and for which an extension of time was sought. The same attitude comes across clearly in the order of the County Manager of the same date. I do not consider that there is any need for sophisticated legal analysis as to whether the Blessington Plan was a stand-alone matter. On the County Council's own evidence it was an integral part of the review and variation of the 1989 Plan and as such was governed by the provisions of Section 20 of the 1963 Act. 47. The Applicant submits that under Section 20 (1A) of the 1963 Act the Minister may extend the five year period for a review of the Development Plan once and once only and that the Minister had no jurisdiction to extend the period on three occasions as he did. It is true that the subsection does not expressly provide for multiple or repeated extensions of time. However, a somewhat similar issue in regard to extensions of time in the planning process was dealt with by the learned Kelly J. in his unreported judgment in the case of Flynn and O'Flaherty Properties Limited -v- Dublin Corporation (unreported 19th December, 1996). In this judgment the learned judge was dealing with the provisions of Section 26 (4)(A) of the Local Government (Planning and Development) Acts, 1963-1993 under which the period of consideration of a planning application may be extended. The Respondent in that case argued (as is argued in the instant case) that the statutory provisions permitted of only one extension of time and that no further extension was permitted. At page seven of his judgment the learned Kelly J. said:- "However, in any event I am of opinion that the Respondent's argument concerning the number of occasions upon which an extension of time can be granted is not correct at law. It appears to me that Section 26 (4)(A) expressly refers to the 'appropriate period' as that defined in subsection 26 (4)(A). That in the context of this case is the period of two months beginning on the day of receipt by the Planning Authority of the application. Section 26 (4)(A) then goes on to permit of an extension of that period and then provides that subsection 4 (B) of the section shall 'as regards the particular case to which the extension relates, be construed and have effect in accordance with the extension'. This appears to me to mean that when an Applicant makes a request to the Planning Authority to extend the time for dealing with an application and where the Planning Authority so consents then the appropriate period is extended for whatever period the Planning Authority determines since it is they who extend the period in question. There is nothing in this subsection to indicate that not more than one extension of the appropriate period can be granted. It seems to me that once the first extension is granted that extends the appropriate period. This new extended period is now "the appropriate period" and it in turn can be extended further." 48. While the wording of Section 20 is not precisely the same as that of Section 26 (4)(A) it seems to me that the principle involved is the same. Under Section 20 once the Minister has by his order granted an extension of time then the extended period becomes the period of review of the Development Plan and if necessary a further extension may be sought and with the Minister's approval be granted. There is nothing in the wording of Section 20 (1A) which would indicate that not more than one extension of the period of review would be granted. 49. It may be noted that the general practice appears to be that repeated extensions of time are granted. Regular full five yearly reviews are in practice carried out by only a minority of Councils. In her book, "Environmental and Planning Law", Ms Yvonne Scannell points out at page 87 that "a survey by An Foras Forbartha in 1983 found that only 24% of Planning Authorities had made the requisite four plans between October 1964 and July 1983, while 22% had made only two plans. 34% of the plans were over five years old." 50. The author is critical of this situation and of the shortage of suitably qualified personnel in many Planning Authorities and goes on to remark "the fact that there is a statutory obligation to review Development Plans at least every five years implies that Development Plans must be up to date and reflect changing conditions. Decisions based on anachronistic Development Plans, particularly decisions restricting private property rights, could possibly be unconstitutional." 51. However undesirable the practice of repeated extensions of time may be, it does not appear to me to be impermissible under the section. 52. The next issue that arises is as to whether an application to the Minister for extension of time under Section 20 (1A) is subject to the provisions of Section (6) in regard to the giving of notice of the making of such an application and allowing for objections. There is no specific provision for such notice in Section 20 . The Applicant argues that it is contrary to the constitutional principles of fair procedures that the ordinary members of the public should not be put on notice that the review of the Development Plan for their area is to be delayed; therefore the provisions of Section 19 (6) ought also to apply to an extension under Section 20 (1A). While such a position might well be desirable it seems doubtful that it reflects the intention of the Oireachtas in framing Section 20 (1A). This subsection was inserted in Section 20 by Section (1)(f) of the Local Government (Planning and Development) Act of 1976. It would have been a simple matter for the Oireachtas to include a provision applying Section 19 (6)(B) and (C) to Section 20 (1A) at the time of the amendment but this was not done. It seems to me that it would be going beyond the norms of interpretation for this Court simply to import a provision which the Oireachtas has specifically omitted. 53. I now turn to the most crucial issue in regard to the interpretation of the relevant Sections - the question as to whether the provisions governing the extension of the period for the review and variation of Development Plans are mandatory or merely directory. If the provisions are merely directory it would be possible for the Court to disregard the obvious fact that the County Council adopted the Blessington Plan at a time when the previous extension granted by the Minister had expired and a new extension had not been granted. If, on the other hand, the provisions are mandatory, the adoption of the Blessington Plan by the County Council on the 9th September, 1996 could well be invalid. 54. Counsel for the first and second named Respondents and for the Notice Party agree in their submission that the requirement for the extension of time by the Minister is directory only. Counsel for the Notice Party presented a particularly full book of authorities on this point to the Court, including a considerable number of older English cases in which the distinction between mandatory (or imperative) and directory is discussed. For example, in The Queen -v- Rochester Corporation [1856] 7 E and B 910, the Mayor and assessors of Rochester had refused to revise the burgess list for a particular parish on the ground that the list had not been fixed in some public place in the Borough for a week. It was held that the provisions of the Municipal Corporation Reform Act, 5 & 6 W.4c.76 as to the time at which the burgess list were to be revised were directory only. The criteria used in deciding that the enactments were directory are set out at pages 904 to 905 of the report as follows:- "By Section 48 if any Mayor or assessor, who shall be in office at the time herein appointed for the revision by them of the burgess list under this Act , shall neglect or refuse to revise such burgess list, every such Mayor shall forfeit and pay £100. The intention of the legislature is that these enactments should be directory and not imperative. The language is affirmative only and there is no enactment that any of the proceedings shall be void if not carried out according to the provisions; and there is a penalty imposed for disobedience of the directions. According to the ordinary canons of construction, these are reasons for holding enactments to the only directory. There is also a reason more peculiar to this class of cases, which has been styled ex-necessitate, founded on the inconvenience and injustice of any other interpretation to persons affected by negligence over which they have no control. If the enactments were not held to be directory only, and the present remedy were held to be inapplicable, the voters would be disfranchised without redress." In R -v- Ingall [1876] 2 QBD 199 it was held that delay in making, depositing, transmitting, and approving the valuation list within the times prescribed by Section 42 of the Metropolis (Valuation) Act, 1869 did not make it a nullity, for the provisions of that Section were directory and not imperative. In his judgment Mellor J. (with whom I have considerable sympathy) began by stating that his mind "had fluctuated a great deal in the course of the argument" and concluded by holding that the "more reasonable construction" was to hold that the terms of Section 42 were only directory and that the valuation list was, after its final approval, a valid instrument. On the other hand, in Howard -v- Boddington [1877] 2 PD 203 , where notice of allegations of illegality against a clergyman were not served upon him within the time limits set out in the Public Worship Regulation Act, 1874, it was held that the time limit provisions were imperative and that the proceedings against the clergyman were void. In the cases surveyed various indicators such as whether a penalty is prescribed or not are used but in the end it is clear that considerable discretion is exercised by the Court in deciding what was described by Mellor J. as "the more reasonable construction". 55. As far as the modern law in this jurisdiction is concerned a somewhat similar pattern emerges. The question is helpfully discussed in the second edition of Hogan and Morgan's "Administrative Law in Ireland" at page 361 et seq. Under the heading "Formal and Procedural Requirements" the authors state:- "As we have seen nearly every question pertaining to jurisdiction turns on a question of statutory interpretation. This is especially true in the case of the disregard of procedural and formal requirements laid down by statute. When the Oireachtas stipulates that certain formal and procedural requirements should be observed before an administrative decision is arrived at, it rarely states what consequences follows non-compliance with these statutory requirements. Of course, to this general rule there are exceptions; Section 5 of the Adoption Act, 1976 , for example, states that an adoption order shall not be declared invalid solely on the grounds that certain statutory pre-requisites have not been complied with. Nevertheless, it is true to say that the Courts are, for the most part, left to their own devices as far as the non-compliance of procedural requirements is concerned. Whether a statutory provision which on the face appears to be obligatory is to be regarded truly mandatory or is merely to be regarded as directory in nature, depends on the statutory intent and whether compliance with the provision can fairly be said to be essential to the general object intended to be secured by the Act . The relevant test has been stated in the following terms: 'If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intentment, the Courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.' The State (Elm Developments) -v- An Bord Pleanala [1981] ILRM 108 at 110 per Henchy J. But even in the case of directory provisions, the Courts will not readily sanction a radical departure from what the legislature has ordained. Thus, even provisions which are directory as to precise compliance are generally mandatory as to substantial compliance. .... in addition, in view of the fact that in nearly all cases the remedy sought will rely on the discretion of the Court, there is increasing evidence that the crucial factor is probably whether the irregularity will cause real prejudice. If the party aggrieved cannot show that he has been 'wrong-footed or damnified' or that the 'spirit and purpose' of the statutory provisions have not been breached 'then relief may be withheld on discretionary grounds.'" 56. Hogan and Morgan go on to refer to two important Supreme Court decisions in the area of planning which they say have "somewhat blurred" the distinction between mandatory and directory provisions, as follows (at page 363):- "The conventional distinction between mandatory and directory provisions has, perhaps, been somewhat blurred, however, by two Supreme Court decisions even though the traditional language is employed both cases. In Monaghan UDC -v- Alf-A-Bet Promotions Limited the Respondent developer sought planning permission which would enable him to convert a drapery store into a betting office and an amusement arcade. The relevant regulations required the developer to publish a notice in a newspaper stating the 'nature and extent of the development', the developer's notice referred only to 'alterations and improvements'. The Supreme Court held that the notice did not convey the nature and extent of the proposed development. Inclusion in the notice of information as to the nature and extent of the proposed development was vital to the proper orientation of the statutory scheme for the grant of planning permission. The misleading notice that was published was held to be non-compliance with the mandatory provision, and such compliance was held to be fatal to the developer's case. In view of the fact that planning permission could radically affect the rights and amenities of others, and substantially benefit or enrich the grantee of the permission, Henchy J. considered that the Courts should not countenance deviation from that which had been deemed obligatory by the Oireachtas save on an application of the de minimis rule: 'what the legislature has prescribed in such circumstances as necessary should be treated as nothing short of necessary and deviations from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial or so technical, or of so peripheral or otherwise so insubstantial that on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.' This matter was further considered by the Supreme Court in The State (Elm Developments Limited) -v- An Bord Pleanala. A developer sought and obtained a grant of planning permission from a Local Authority. An appeal was lodged by local residents against the grant of such permission. The developer claimed that failure by the residents to state the grounds of appeal in writing at the actual time of filing a notice of appeal rendered such appeal a nullity in law. The Court concluded that the requirement that the grounds of appeal be stated contemporaneously with the notice of appeal was directory rather than mandatory in nature. The purpose of the regulations was informative in nature: the Board was quite entitled to listen to points other than those mentioned in the grounds of appeal. Furthermore, in the instant case grounds of appeal had been furnished to the satisfaction of the Board within a few weeks of the appeal, and Henchy J. concluded that the developer could not say that he had been in any way 'wrong-footed or damnified' or that the 'spirit or purpose' of the planning acts and regulations had been breached. In addition, perhaps the fact that the Courts are traditionally less zealous in classifying statutory provisions as mandatory where they have been ignored by a private individual rather than by a public body was also an (unarticulated) factor in this decision." 57. The learned authors conclude (at page 365) that:- "In practice this conventional distinction (between mandatory and directory provisions) has proved difficult to draw and, increasingly, the Courts seek to examine all the circumstances of the case in order to ascertain whether the disregard of procedural requirements in that particular context has caused real prejudice." 58. And again at page 365 "Perhaps the best way of regarding these cases is to say that they demonstrate a change of emphasis. The Courts will no longer pronounce a statutory provision to be either mandatory or directory in isolation from the facts of a particular case but will examine its effect on the parties to see if compliance has worked prejudice. Moreover, the Courts seem more prepared to excuse non-compliance on the part of a private litigant than is the case with public bodies." 59. In regard to legislation prescribing formal procedures Hogan and Morgan refer to the example of Ahern -v- Kerry County Council [1988] 1ILRM 382 as follows (at page 365):- "Where legislation requires that an administrative or judicial body must follow a set or prescribed procedure before arriving at its decision, non-compliance will often be fatal to the validity of an order, especially where the prescribed procedure is designed to ensure compliance with the requirements of a fair hearing. Thus, in Ahern -v- Kerry County Council , a Councillor complained that the Local Authority had not complied with Section (1) of the City and County Management (Amendment) Act, 1955 in considering the estimates of expenditure for the following year. Section 10 (1) requires the Authority to consider all estimates of expenditure and Blayney J. held that it was not sufficient compliance for the Councillors simply to consider some of the estimates. It followed that the resolution adopting the estimates was invalid, as Blayney J. said: 'Once a statute prescribes what is to be done at a meeting, it seems to me that what is prescribed must be observed at the meeting by the Local Authority if the resolution that was passed at that meeting is to be valid.' It will be noted that strict compliance with procedural requirements will be insisted on even where those requirements go further than what is required by constitutional justice." 60. It appears to me that this discussion admirably summarises the principles of law applicable to this type of question and I have no difficulty in adopting the views of the learned authors, based as they are on judgments of the Supreme Court and of this Court. 61. The framework and scheme of planning legislation contained in the Local Government (Planning and Development) Act, 1963-1993 is an integral and carefully balanced system. The interests of both private and commercial developers are balanced against the interest of the general public who have a crucial involvement in the maintenance of the physical, historical and cultural environment and the proper development of the area in which they live. The Planning Authority, both by the making and reviewing of Development Plans and by the controlled granting of planning permissions, has the duty of holding the balance between these interests. The legislation provides for differing methods of supervision of the Planning Authority in carrying out its functions. In regard to the granting of planning permissions An Bord Pleanala has a supervisory role through the appeals procedure. In regard to the making and reviewing of development plans the Minister for the Environment has a supervisory role in ensuring that plans are made and later reviewed and brought up to date within a proper time-scale. All of these elements in the planning legislation interact with each other and form part of a coherent whole. The requirement that it is for the Minister to decide whether to extend the five year period for review of the Development Plan was specifically introduced into Section 20 of the 1963 Act by Section 43 (1)(f) of the 1976 Act. It seems more than likely that this was for the particular purpose of introducing Ministerial supervision and control over a situation where time limits were not being adhered to. In the instant case the Minister clearly took this duty seriously. Wicklow County Council applied for an extension of time by letter dated 30th August, 1996. The Minister did not make his extending order until 19th December, 1996, some three and a half months later, and then granted an extension only until the end of 1997, rather than until September 1999 as requested by the Council. One may surmise that this reduction was to enable closer and more frequent scrutiny of the progress being made by the County Council in the review of the Development Plan. 62. In this balanced and integrated legislative scheme, is it right that the Court should hold that Section 20 is merely directory and that the County Council may disregard the time limit set, and the role of the Minister under Section (1A), with impunity? I think not. The adoption of the Blessington Plan with its controversial re-zoning amendments, was no mere formality. It was described by one of the Councillors who spoke at the meeting on 9th September, 1996 as being something that would divide the community. Yet the members of the Council proceeded to adopt it outside the statutory period for review and before the Minister had had an opportunity to reach a decision on providing a further extended period. This they did knowingly, since they themselves had on the 8th July, 1996 approved the making of a request to the Minister to extend the period of review from 6th September, 1996 to 6th September, 1999. It appears to me that the requirements of Section 20 , including Section 20 (1A) are mandatory in nature and that prima facie the adoption by Wicklow County Council of the Blessington Plan on the 9th September, 1996 was invalid. 63. I am strengthened in my view by the decision of the late Butler J. in an older case dealing with the statutory requirements of the 1963 Act. In Finn v. Bray Urban District Council [1969] IR 169 the learned Butler J. held that failure to notify the plaintiff of an amendment to a draft plan to which she had objected resulted in a declaration that the adoption of the development plan by the County Council was ultra vires. At page 176 of the report the learned Judge stated: "Certain statutory obligations are clearly and specifically imposed on the planning authority by these sections in relation to a plan; they must make a plan within the prescribed time or any longer time allowed by the Minister; the plan must include specified objectives and may include others; they must review the plan as occasion requires and, in any event, once every five years; when the plan is made notice of the making must be published which shall include a statement that the plan is available for inspection at a stated place and at stated times". 64. There is no suggestion here that any of the statutory requirements is directory and may safely be ignored. 65. However, I must also consider the effect of the Minister's order of 19th December, 1996. Counsel for the Respondents and the Notice Party argue that this order was retrospective in its effect, that it extended the review period not from 19th December onwards but from 6th September, 1996 to 31st December, 1997 - and that it retrospectively validated the County Council's adoption of the Blessington Plan on 9th September, 1996. On its face the Minister's order merely extends the Section 20 review period to 31st December, 1997. No specific mention is made of retrospectivity or back-dating. Counsel for the Applicant suggests that once the extended review period expired on 6th September, 1996 the Minister had no jurisdiction in any circumstances to re-extend it. To accept this would, however, be to create a position where the 1989 plan would remain in being indefinitely. Such an interpretation would be contrary to the entire system and spirit of the legislation and I cannot accept that it would reflect the intention of the Oireachtas in enacting Section 20 and subsequently Section (1A). I have no difficulty in accepting that the Minister's order of 19th December, 1996 is valid insofar as it effects the period from 19th December, 1996 to 31st December, 1997 and, indeed, that it is within the Minister's jurisdiction to extend that period further if there is good reason to do so. The question is whether the order of 19th December can retrospectively validate the adoption of the Blessington Plan on the 9th September, 1996. 66. There is a very considerable amount of settled law on statutory interpretation concerning the possible retrospective statutes. The leading case in this jurisdiction is Hamilton -v- Hamilton [1982] IR 466 in which the Supreme Court held against a retrospective operation of Section 3 of the Family Home Protection Act, 1976 . I have recently surveyed the question of retrospection at some length in the case of Nessan Quinlivan -v- The Governor of Portlaoise Prison and The Director of Public Prosecutions (unreported 9th December, 1997) and I see no necessity to go over the same ground here. The situation is briefly summed up in Maxwell's "Interpretation of Statutes" (12th edition) at page 215 as follows:- "It is a fundamental rule of English law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act , or arises by necessary and distinct implication." 67. The only exception to the rule against retrospectivity is where retrospection occurs as regards matters of procedure only. I think that I have already indicated that I do not consider the Minister's power of extension under Section 20(1A) to be a mere matter of procedure but to be in fact an integral part of the scheme of planning legislation. 68. The Minister's order of 19th December, 1996 is not of course itself legislation but a form of delegated legislation. It would therefore be all the more necessary, in my opinion, for it to include on its face specific words of retrospectivity if it were to operate retrospectively. I cannot accept that it does so operate. 69. Finally, should the Court in its discretion refuse the relief sought by the Applicant? The situation on the 9th September, 1996 was that the County Council both through its members and through its officials was well aware that the extended period of review had expired on the 6th September, 1996 and had not yet been renewed. Yet they did not hesitate to list the matter of the adoption of the Blessington Plan on the agenda for their meeting on 9th September, 1996, to discuss it, and to proceed to adopt the Plan (despite the high preponderance of objections from members of the public against the amended zoning). I feel I must also have regard to the fact that the Council had, in parallel with the Applicant, negotiated a settlement by both parties with the notice party of the Section 27 actions in the context of the zonings contained in the Draft Plan of January, 1994. Again, the Council must have at least suspected that the Applicant was unlikely to have accepted such a settlement had its members known that the Council was about to re-zone the area in a way directly favourable to the Notice Party. It seems to me that the Court should not use its discretion to refuse the primary relief sought by the Applicant. While the quashing of the resolution of 9th September, 1996 will not prevent Wicklow County Council from returning, during a period properly authorised by the Minister, to the adoption of a plan for the Blessington area as part of the general statutory review of the Development Plan for the Wicklow area, it will give the Council an opportunity, which I hope will be useful, to re-consider the zoning matters which arise on the plan in the light of any new information which has come to hand since September, 1996. 70. I turn now to the actual orders sought by the Applicant as set out in paragraph D of its application. I will deal with them in numerical order. 1. For the reasons set out above I will grant the Order of Certiorari sought in paragraph 1. quashing the decision of the first named Respondent to adopt a Development Plan for the Blessington area on the 9th day of September, 1996. 2. For the same reasons I will also grant a declaration that the adoption of the said Plan was made outside the period provided for under Section 20 of the Local Government (Planning and Development) Act, 1963 . 3. As I have stated above I do not consider that the second named Respondent lacks the jurisdiction set out in this paragraph and I refuse the declaration sought. 4. I will grant the declaration sought in this paragraph that the decision of the second named Respondent to extend the period provided for under Section 20 of the Local Government (Planning and Development) Act, 1963 does not operate retrospectively to validate the decision of the 9th September, 1996. 5. Since I have held that the provisions of Section 19 (6) do not apply to an extension of time under Section 20 (1A) I refuse the declaration sought at number 5. 6. It seems on the face of the minutes of the meeting of 9th September, 1996 (as amended by the minutes of 14th October, 1996) that the Chairman was factually incorrect in holding that the amendment proposed by Councillor Cullen was a simple negative and that therefore the Chairman's decision to refuse the amendment was contrary to standing orders. However, since I have decided the main issue on other grounds, I do not need to give full consideration to this issue or to decide on its effect. I therefore refuse the declaration sought. 7. From what I have already said in regard to the Minister's supervisory role under Section 20 I consider that it is for the Minister and not for this Court to ensure that a revised Development Plan for the administrative area of Wicklow is prepared and adopted with all reasonable diligence and speed. I have no doubt, given his attitude to the extension period requested by Wicklow County Council in 1996, that he will so ensure and I will therefore refuse the Order of Mandamus sought. 8. I must presume that this refers to the application for planning permission made by the Notice Party in January, 1997. Clearly if the Blessington Development Plan adopted on the 9th September, 1996 is invalid the said application cannot be considered under that particular plan. However, it would be a wholly wrongful invasion of the rights of the Notice Party to prevent the Planning Authority from considering the Notice Party's application for planning permission under either the present Development Plan or under any future plan that may be validly adopted and I refuse the Order sought under this heading. © 1998 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII