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Cite as: [2005] IEHC 406

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Judgment Title: Jerry Beades Construction Limited v The Right Honourable Lord Mayor Alderman and Burgesses of the City of Dublin & Ors

Neutral Citation: [2005] IEHC 406

High Court Record Number: 1995 283JR & 1996 1239P

Date of Delivery: 07/09/2005

Court: High Court

Composition of Court: McKechnie J.

Judgment by: McKechnie J.

Status of Judgment: Approved

Neutral Citation No. [2005] IEHC 406
RECORD Nos. 283/1995 JR
1996/1239 P
JUDGMENT of Mr. Justice William M. McKechnie delivered on 7th day of September, 2005.

1. Mr. Jerry Beades, who is the owner of the plaintiff company, has for more than 25 years, either personally or through a corporate entity, carried on the business of a building contractor and developer in the greater Dublin area. As he has exclusive control of that company, I have on occasions in this judgment, where the context permits, used his name and that of the plaintiff interchangeably. The first named Defendant is sued as the planning authority for its administrative area in Dublin with the second named Defendant being a party as the statutory body entrusted to hear and determine appeals, inter alia, from that planning authority. Ireland and the Attorney General have been joined to answer a challenge that a particular section of the then Local Government Planning and Development Act 1963 was unconstitutional. Though starting life as a judicial review application, this case, by direction of the court on the leave application, was converted into and thereafter continued by way of plenary proceedings.

2. The structure within the Planning Department of Dublin Corporation at the relevant time would appear to have been as follows. There was an Assistant City Manager with delegated power to make the ultimate decision on all planning applications. He was Mr. Derek Brady. There was a Dublin City Planner whose name was Mr. McCarron, who had a Deputy called Mr. Patrick McDonnell. Directly underneath Mr. McDonnell were three senior planners each of whom was assigned to a different section of the city. In this case at the relevant time the senior planner for the inner city, where the site in question was and is located, was Mr. Michael Gough. Junior to Mr. Gough were two senior executive planners one of whom was Mr. James Muldowney and more junior still were a number of executive planners and assistant planners. A Mr. Rory O’Byrne was a Planning Inspector. There was then a Principal Officer dealing with planning matters whose name was Mr. Joe Scully. There was also of course the Enforcement Section.
In addition, as part of its wider responsibility Dublin Corporation, which is now titled Dublin City Council had a number of teams or committees who in a variety of ways were involved in the planning and development of the city. One was the Development Coordinating Committee which met monthly and a second was the Development Advisory Team which usually held its meetings on a Tuesday. There were also other groups which met from time to time. Virtually all significant planning decisions and all matters of substance involving the proper planning and development of the city, were raised and discussed at one or other of these said meetings.
As senior planner for the inner city all planning applications for that area, once lodged, would find their way onto Mr. Gough’s desk. He would then have the power and responsibility to distribute them to his staff including his executive planners. Normally he himself did not deal with single applications but rather concentrated on the more substantial or technical ones. When dealing with a planning application it would be Mr. Gough’s usual practice to consider the documentation as submitted, to review any enforcement file in respect of the property in question or any planning file relative to an adjacent property to carry out a site inspection, to have discussions with the applicant or his agent if so requested, and thereafter, to make a written recommendation in respect of the application. That recommendation could contain a number of conditions whether he was disposed to grant or refuse the permission. It would then be sent to the “Decisions Unit” within the Planning Section. There it would be prepared for submission to the Assistant City Manager and would be accompanied by a “green form”, which in effect amounted to a draft manager’s order reflecting the recommendation contained in the report. The ultimate decision would then be made by the said Assistant City Manager.

3. In this case there are a variety of allegations made against Dublin City Council and its officials, in particular Mr. Muldowney and Mr. McDonnell. Broadly speaking it is claimed; firstly that by reason of bias and pre-judgement neither of these individuals should have been involved in the planning retention application made by Mr. Beades; secondly that they acted contrary to natural and constitutional justice in the manner in which they processed that application; thirdly that this unfair and discriminatory treatment heavily influenced the selective documentation which was sent to An Bord Pleanála, to whom Mr. Beades had appealed, and fourthly the Board, though completely innocent when making its decision, was nevertheless oblivious to the true circumstances.
All of this means, accordingly to the Plaintiff that both individually and/or collectively the decision making process adopted by the planning authority, and/or the decision of that body and/or the decision of An Bord Pleanála were all tainted with unlawfulness which in the circumstances of the case should attract from this court the relief sought.
In addition, at the commencement of these proceedings, the plaintiff company faced the not inconsiderable obstacle of the two month time limit imposed by s. 82 (3A) and (3B) of the 1963 Act as inserted by s. 19 (3) of the Local Government (Planning and Development) Act, 1992. As the judicial review papers were not lodged until 11 months after the decision of An Bord Pleanála and so evidently even longer after the decision of the planning authority, it was obvious that the defendants would raise this statutory time bar. Hence the constitutional challenge. However at the conclusion of the evidence it was noted that the High Court was about to deliver judgment on an identical point in the case of White v. Dublin Corporation [2004] 1 IR 545 and as a result, all of the parties requested this court to defer judgment, until that decision and any appeal therefrom, had been determined. In June 2004 the Supreme Court declared this time limit to be unconstitutional with the result that this statutory provision is not now relevant to this case. Accordingly whilst I have heard submissions from the parties on what consequences might follow from the White decision, I do not believe that the previously existing time bar has any further relevance and consequently in my view, this matter is no longer a live issue in the case.
4. At the junction of Dorset Street Lower and Hardwicke Place Dublin 1, there stands a licensed premises know as “Kavanaghs” or “The Temple”. Immediately adjacent towards the Hardwicke Place direction, there is a site known as No. 2 Hardwicke Place, which property is now the subject matter of this application. In 1992/1993 both properties were owned by Mr. Beades’ Mother-in-Law, though the public house was held in the name of her family company. Having carried out urgent and substantial works of repair, renovation and improvement to that premises, Mr. Beades was offered, in lieu of payment, site No. 2. This loose arrangement was sufficient to enable Mr. Beades to explore the development potential of the property. Accordingly, having engaged architects, a planning application was lodged with Dublin City Council on 6th May, 1993. Being aware of the adjacent Hardwicke Place flats, Mr. Beades always intended that the roof of any building on site No. 2 should be at least one floor level above the roof of the adjoining flats. This, so as to prevent access being gained, by way of the roof tops, and accordingly the developer saw this feature as a security measure. This view was reflected in the original drawings submitted to Dublin City Council.

5. In setting out the following, as a bald chronology of the formal dates and events surrounding this application, it is necessary to immediately indicate that these facts do not by themselves demonstrate the essence of the dispute between the parties. Further matters must be outlined and these appear later in this judgment.

· 6/5/1993: A planning application is lodged seeking “retention of existing archway and entrance door at ground floor and erection of two bedroom apartments at first second and third floors”, on the site in question. The reference to “retention” does not imply the existence of a previous planning application,
· 24/6/1993 & 30/6/1993: Revised plans are lodged including a significant alteration in roof space and style,
· 27/7/1993: Notification by Dublin City Council of its decision to grant permission subject to conditions,
· 15/9/1993: Actual grant of permission issued from the Council,
· 9/1993: Work started on the site,
· 12/93: During the course of construction certain alterations and variations were made to the building. It has always been agreed that the same are unauthorised and are not covered by the permission as granted,
· 13/5/1994: Planning retention application made by Mr. Beades. This covered an alteration in roof design, the construction of an additional apartment on the fourth floor facilitated by the raising of the roof, and other alterations to the elevation which include changes in the window style and in the security gate.
· 11/7/1994: Notification by the planning authority of its decision to refuse permission indicating four reasons therefor,
· 4/8/1994: Mr. Beades lodged an appeal to An Bord Pleanála,
· 11/8/1994: Letter from An Bord Pleanála to the planning authority requesting certain documents relevant to the appeal,
· 7/9/1994: The planning authority responded by way of submitting a report, unsigned but under the name of Mr. Muldowney as well as a covering letter which repeats the “additional comments” made by Mr. Muldowney in an attachment to this report (on the council’s internal documentation) both of which are dated 6th September, 1994.
· 30/11/1994: A report is made by Mr. Van Der Kamp who is a Senior Planning Inspector with An Bord Pleanála and
· 8/12/1994 An Bord Pleanála’s issues its decision to refuse permission for retention for the reasons set out in its said order.

6. In addition to the information above outlined, it is also necessary to consider the inter partes correspondence as well as internal events within the Planning Department as these unfolded throughout 1994 and 1995. Immediately prior to so doing however, I should mention the following matters which pre-date the first letter in the line of correspondence to which I am about to refer. On some unspecified date but within the statutory period permitted for determining the original application, Mr. James Muldowney who was dealing with the file, paid a site visit to No. 2 Hardwicke Place. There he spoke with Mr. Beades, who prior to that, had no regular contact with him. At most he was only a distant acquaintance through both families living nearby when growing up and also because Mr. Beades brother may have been, at some stage in the same class as Mr. Muldowney. In any event it became quite clear during the course of the resulting discussion, that the planner did not favour the application as made and in particular was adverse to the roof profile including its height, to any question of constructing an apartment on the fourth floor, to the ceiling height and to the window type and appearance. Whilst complaining about the planner’s tone and his constant linkage of the public house property with this site, Mr. Beades ultimately lodged revised plans in June of 1993 which reflected the views of Mr. Muldowney. It is claimed by the developer that he had no choice in this regard as in order to avail of certain tax incentives attaching to the site he was under time constraints to move the development forward. Notwithstanding the furnishing of these plans however Mr. Beades still foresaw a security problem given the proximity of the proposed building to the flats and also the ease of access from one roof to the other. Whatever may have been his reservations on these matters, I am, however, satisfied that the submission of the revised drawings can properly be described as the furnishing of “unsolicited information”. It was, of course on foot of these drawings that the original permission was notified in July 1993.

7. On 10th or 11th February, 1994 Mr. Muldowney had a phone conversation with Mr. Beades. During the course of that conversation it was made clear by the planner that he opposed the changes carried out in December 1993. These it will be recalled, involved the alterations which formed the subject matter of the later planning retention application. In defence of the position taken, Mr. Beades attempted to explain the reasons which prompted his decision. Essentially these were based on safety and security considerations. He voiced the concern that if constructed as originally designed, children could with ease move from one roof to another and indeed further onwards, and secondly, such children and others could also avail of this means of access, to break in or attempt to break in to a number of adjacent properties. The alterations, according to Mr. Beades, were not carried out with the intention of constructing a further apartment on the fourth floor, though incidentally the changes did facilitate this. Whether that be correct or not, it is alleged by Mr. Beades that the planner had no interest in this explanation and that he was most irate with him. Moreover and this is quite a significant point, it is claimed that on being informed of the developers intention to apply for a retention permission, Mr. Muldowney said “you do realise that in future your planning applications will be treated with the same contempt you have for me and the planning process”.

8. That conversation was followed by a letter dated 11th February, 1994 from Mr. Beades to Mr. Muldowney. Therein the developer alleged that when told of his intention to apply for retention, the planner responded by saying that “my planning application will be treated with contempt by the planning department in the future”. Notwithstanding the further complaint that the conversation was terminated by Mr. Muldowney hanging up the phone, a meeting was requested with him so as to discuss the current problem. No such meeting however ever took place.
On 14th February Mr. Muldowney by way of an internal memo recommended “that enforcement action be taken immediately so that the unauthorised portion of the roof be removed”.

9. On Friday 19th February Mr. Muldowney, without any prior notice, demanded access to the site from the manager of the adjoining public house. When he was informed of Mr. Beades absence, it is claimed that the planner’s response was to indicate the existence of legal means to gain access, as he deemed the manager’s response to constitute a technical refusal. On Monday 21st Mr. Beades sent a fax message informing Mr. Muldowney that he would be at the site on the following Wednesday if that would suit for inspection purposes. On that Wednesday Mr. Rory O’Byrne a Planning Inspector visited the site as did two people from the building control section of Dublin City Council. Whilst it is uncertain what precise role Mr. Muldowney played in this arrangement, it is clear from an internal memo dated the 6th December, 1995 that Mr. O’Byrne thought “it most unusual” that building control officers should have arrived contemporaneously with him to inspect the site. These events gave rise to another letter from Mr. Beades to Mr. Muldowney dated 23rd February, 1994 in which he states that “I regard these visits very seriously coupled with the threat issued on 11th February about any future applications of mine to the planning office”.

10. On 1st March Mr. Muldowney recommended that High Court proceedings be taken and that in order to expedite the matter an interim injunction should be applied for. Prior to that Mr. O’Byrne had also recommended High Court proceedings. On 4th March a letter was written to Mr. O’Brien informing him that an application to retain would be lodged in the coming weeks.

11. Having retained Mr. Brendan O’Mahony and Company Solicitors to act on his behalf, that firm wrote to the Planning Department on 11th March and requested a deferment of the enforcement proceedings in view of its client’s intention to apply for planning retention. On 21st April a Principal Officer, at the request of Mr. Muldowney, replied and informed the solicitor that proceedings would not be suspended. By this date a recommendation had been made to the Assistant City Manager (on 10th March) to commence High Court proceedings and Mr. Brady had made an order to that effect on 15th March. In fact for some extraordinary reason, never adequately explained, the s. 27 notice of motion did not issue until 8th September, 1995 and had its first return date on 16th October of that year.
Mr. Beades wrote a further letter, this time to the Principal Officer, Mr. Joe Scully, on 15th March, 1994. He complained of a “heavy handed approach” to the problems which he had encountered with the site and then said “I wrote to the planner concerned on 11th March and I have not received a reply or acknowledgement of that letter. It would appear from the actions of the planner in an unprecedented step of trying to get the other regulatory authorities to act against me. I feel that I am being victimised in view of what was said by Mr. James Muldowney in my last conversation with him. I request a meeting with yourself before I lodge my application as I am very concerned with the way I have been dealt with by the planner in this area”. To my knowledge no such meeting ever took place and no reply ever issued from Mr. Scully.

12. By letter dated 1st June, 1994 Mr. Beades wrote to Mr. Gough and referred to a letter dated 30th May in which the council’s law agent said that the s. 27 proceedings would continue. This it was claimed was contrary to what had been discussed and understood, if not agreed between Mr. Beades and Mr. Gough when they previously had met.
This meeting and the overall contact between Mr. Beades and Mr. Gough is dealt with later in this judgement.
As the planning retention application was lodged on 13th May, the inter partes correspondence virtually ends with the aforesaid letter.

13. Before I deal with the manner in which Mr. Beades believed that his planning retention application was being dealt with, and how in fact it was dealt with, as well as the involvement in the process of Mr. Muldowney and Mr. McDonnell, I should mention the following. Mr. Beades copied his letter of 11th February (see para 8 above) to a member of the Oireachtas who apparently then communicated with the Dublin City Planner. In turn Mr. McCarron wrote to Mr. McDonnell by way of internal memo on 22nd February and sought clarification of some of the matters raised in the letter of complaint, as well as directing that “the development proposed (be) considered further as a matter of urgency”. It would appear that Mr. McDonnell then took the matter up with Mr. Muldowney who denied, not only any discourtesy, but also any threat of treating Mr. Beades application with contempt. Apparently Mr. Muldowney himself made some contact with the public representative in question though the evidence in this regard is entirely hearsay and lacks precision. In any event Mr. Muldowney ultimately writes a letter dated 16th March, 1994 to Mr. Beades in which he denies the matters complained off in the letter dated 11th February, and furthermore claims that the “contempt allegation” is, to Mr. Beades acknowledge “wholly untrue”. In addition he says “I regard it as a slur on my personal character and professional standing within Dublin Corporation. … I am now seeking an unreserved retraction of the sentiments expressed in your letter”. Whilst sent by registered post I am satisfied that Mr. Beades never in fact received this handwritten letter and that no copy of it was attached to a further handwritten note sent by Mr. Muldowney on 25th March, 1994. This last mentioned letter was purely to inform Mr. Beades that the original letter could be collected at the post office but when he attended at Fairview Delivery Office he was told that the same had been returned to Mr. Muldowney. In essence Mr. Beades never received a single reply from Mr. Muldowney. In this context the letter sent to the Principal Officer, Mr. Scully, on 15th March, 1994 found its way to Mr. McCarron who made a handwritten notation thereon, on 21st March. He indicated that, although Mr. Muldowney had apparently taken legal advice on the complaint, he believed that a meeting with Mr. Beades would be desirable at which Mr. Muldowney, Mr. Gough/Mr. McDonnell would also attend. As Mr. Gough was on holidays during this period, this note was never received by him.

14. Against this background Mr. Beades was fearful that his planning retention application would not be dealt with fairly by Mr. Muldowney, a view contained in the aforesaid letter of 15th March to Mr. Scully. The developer spoke to Mr. Rory O’Byrne about these concerns. He was advised to contact Mr. Gough who was the senior planner for the area in question and was of course Mr. Muldowney’s immediate superior. He did so and met him on 11th May, 1994 some two days prior to lodging the application. During this meeting Mr. Beades outlined the planning history of the site, the security/vandalism problems encountered in December 1993, the acknowledged fact that the alterations required a further planning permission, the correspondence between himself and Mr. Muldowney, his belief that the respective families of the Beades and Muldowney may have known each other and also related other matters of concern vis-à-vis the impartiality of Mr. Muldowney. This information, together with what Mr. Rory O’Byrne had previously told Mr. Gough about the situation, led the latter to a belief that, as a customer of the corporation and as a client of the public, Mr. Beades was entitled to a guarantee of fairness in respect of his retention application. Accordingly, although the senior planner would not normally deal with a single site, Mr. Gough assured Mr. Beades that he personally would deal with the application and that enforcement proceedings would not proceed pending his determination thereof. As a result of this guarantee and these assurances, the furnishing of which were fully corroborated by Mr. Gough in evidence, the application to retain was submitted on 13th May, 1994.

15. Thereafter Mr. Gough dealt with the application in the normal manner. He looked at the enforcement file, reviewed the planning file with regard to the adjacent licensed premises, considered the application, carried out a site inspection and made a report dated 21st June, 1994 in which, subject to conditions he recommended that the application be granted. That report, if normally dealt with, would then be sent to the “decisions section” of the council which would process the same into an acceptable format so as to produce a draft manager’s order. The papers would normally then be sent to the Assistant City Manager for his ultimate decision. The entire process usually took three to five days.

16. On 5th July, at a meeting to deal with an entirely different site which was situated at Capel Street, Mr. Gough met Mr. Beades who enquired about the application. Mr. Gough was surprised as he had dealt with the matter more than two weeks previously. In returning to the office he went to a senior staff officer, a Mr. Sean Purcell who did not have the file readily available. He was requested to locate it as a matter of urgency. Having found the file the following meeting or discussion took place between Mr. Gough, Mr. Muldowney and Mr. McDonnell.

17. In the late afternoon of Friday 8th July, 1994 Mr. McDonnell went to Mr. Gough’s office and presented him with a copy of a report which Mr. Muldowney had drawn up in relation to the planning retention application. It is a fact that some days earlier, having found out that the application was in, Mr. Muldowney took the file from the “decisions section” and with the knowledge of Mr. McDonnell, though not of Mr. Gough, drafted his own report on the application. That recommended a refusal. At the meeting in question a discussion took place on the planning merits of the application. Mr. Gough was informed that he was being overruled by Mr. McDonnell who said that he was making the decision. Of course as Mr. Gough immediately pointed out he could not so do as that was a matter for the City Manager. After the meeting concluded Mr. McDonnell put his signature to the bottom of Mr. Muldowney’s report. That was the only report which went to the City Manager who made his decision on 11th July.

18. To finish this sequence of events Mr. Beades appealed to An Bord Pleanála on 4th August and the planning authority responded on 7th September to the Board request for documents which was dated 11th August. That response included Mr. Muldowney’s report which was redated 6th September, although the same was neither signed by him or countersigned by Mr. McDonnell. It also involved a covering letter which as previously indicated (see para. 5 above) repeated verbatim the contents of Mr. Muldowney’s “additional comments” also of the 6th September. Thereafter it is common case that the planning inspector did a report and recommended refusal, which refusal formed the subject matter of the Board’s decision of the 8th December, 1994.

19. There is one other piece of crucial evidence in this case. Referring back to the letter from Brendan O’Mahony and Company Solicitors dated 11th March, 1994 (see para 11 above), there is a handwritten note on some copies of that letter. It is dated 22nd March, 1994 and is signed by James Muldowney. It reads as follows:- “This matter has been considered at length and discussed with Mr. P. McDonnell D.D.P.O. The recommendation in relation to the extra apartment at roof level will be to refuse and similarly in relation to the top hung sash windows. James Muldowney 22.3.94”.
At no stage in the entire process did Mr. Gough, Mr. Brady, An Bord Pleanála’s planning inspector or the Board itself, become aware of this letter or indeed, apart from Mr. Gough, of the complaints made by Mr. Beades against Mr. Muldowney.

20. During the course of this case I heard oral evidence from Mr. Beades as well as Messrs. Gough, McDonnell, McCarron and Scully all of whom were called by the plaintiff company. The first named Defendant called Mr. Derek Brady. My views on the totality of the evidence including the oral evidence offered by these witnesses, can conveniently be dealt with immediately after I have outlined the submissions made by the respective parties.

21. Mr. James Dwyer S.C., on behalf of the plaintiff company, made the following submissions:-
      (1) Having reviewed the facts in a chronological manner, he identified several features of the evidence which he relied upon in order to support his legal submissions;
      (2) Every planning application he said must be heard and determined in a fair proper and unbiased way, with no distinction possible where the adjudication was on a retention application;
      (3) Dublin City Council, at the relevant time, had no formal procedure for dealing with complaints made by members of the public, including those participating in the process, against planning officials. The informal procedure, such as it was in this case, was seriously flawed in that little or no action was taken, in order to accept by way of verification or reject by way of conclusion, the complaints made by Mr. Beades;
      (4) These complaints, in accordance with the undisputed evidence, were unprecedented in the memory of many of the council’s officials and as such ought to have attracted from management a high degree of scrutiny;
      (5) The merits of the ultimate planning decision were entirely irrelevant to this case as was the issue as to whether or not Mr. Gough’s views were more preferable to those who held a contrary opinion. It was not the conclusion but the process which was being impugned in this action.
      (6) Mr. Gough’s report should have been transmitted to the Assistant City Manager so that he would have had available, at the time of his decision, the alternative opinion which existed within the planning department. Certainly it was not unusual for this to occur where such a difference of view existed.
      (7) The notation dated 22nd March, 1994 and signed by Mr. Muldowney, clearly indicated a pre-judgment on his part and on the part of Mr. McDonnell with regard to any planning retention application which Mr. Beades might make.
      (8) Neither the complaints made, or this note, or Mr. Gough’s contrary view, were ever transmitted to the Assistant City Manager.
      (9) As s. 82 (3A) and (3B) of the Local Government (Planning and Development) Act 1963 was no longer relevant, the only time constraints which were now material to this case, were those contained in the rules of court which provided for a six month period. Though the within proceedings were not instituted within this time, there was good, sufficient and compelling reason for this court to enlarge that period and in the circumstances it should do so.
      (10) Given the nature of the complaints and the other matters alleged against Mr. Muldowney and Mr. McDonnell, it was contrary to natural and constitutional justice for either of these individuals to have had any involvement with the planning retention application. Reliance in this regard was placed on In Re Haughey [1971] I.R. 217, Garvey v. Ireland [1981] I.R. 75 and McDonald v. Bord na gCon [1965] I.R. 217. Though the plaintiff company would be justified in asserting actual or subjective bias it did not have to do so. It therefore relied on the appearance of bias or on objective bias. McDonough v. Minister for Defence [1991] ILRM 115 at 120 was referred to where Lavan J. said “the commanding officer’s decision to delegate Captain Holmes to conduct the interview (was unreasonable) having regard to the applicant’s complaints against that officer”. It is claimed that this is particularly apt in the present case.
      (11) “Bias” may be either conscious or unconscious and does not necessarily denote “a corrupt state of mind”. Features such as personal attitudes, relationships, and beliefs of the decision maker may give rise to objective bias even where it is conclusively established that such bias did not in fact exist and otherwise did not influence the relevant decision.
      (12) Counsel heavily relied on the case of Dublin Well Woman Centre Ltd v. Ireland [1995] 1 ILRM 408 and in particular on the following passage from the judgment of Denham J. in the Supreme Court where she said at p. 423 “ … where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of
      pre-existing non judicial position and actions, it would be contrary to constitutional justice to proceed with a the trial”.
      (13) The test to be applied when bias is alleged in the decision making process is the existence of reasonable suspicion and real likelihood of bias. The following passage from the judgment of Murphy J., in Dublin and County Broadcasting Ltd v. IRTC (Unreported, High Court, 12th May, 1989) was open to this court. It reads as follows:
      “Certainly it does seem to me that the question of bias must be determined on the basis of what a right minded person would think of the likelihood, of the real likelihood of prejudice, and not on the basis of a suspicion which might dwell in the mind of a person who is ill informed and did not direct his mind properly to the facts … (But) I entirely accept that it would be irrelevant and immaterial in a case such as the present if it was established as a matter of fact that bias was non operative or that the particular person accused of the bias was out voted or whatever. If it is shown that they are on the facts circumstances which would lead to a right minded person to conclude that there was a re-likelihood of bias, this would be sufficient to invalidate the proceedings of the Tribunal”.
      (14) Reference was of course also made to Orange Ltd v. The Director of Telecommunications Regulation and Meteor (No. 2) [2000] 4 IR 159 and to Spin Communications Ltd v. IRTC [2001] 4 IR 411. In particular a passage from the judgment of the Chief Justice at p. 185 of the report in Orange was mentioned. Having expressed some doubts about the accuracy of the test propounded by Barron (J)., in that case, in so far as it dealt with the time requirement for the existence of bias and with the necessity for it to be external to the process in question, Mr. Dwyer S.C. nevertheless said that the pre-judgment in this case was in fact external as it was outside the actual merits of the action itself.
      (15) Moreover counsel felt that it was purely a semantic argument as to the distinction between bias and natural justice as the underlying requirement of both obliged the decision maker to deal with the issue at hand in a fair and reasonable manner.
      (16) No allegation of conscious wrongdoing was being alleged against An Bord Pleanála. The case against the Board was that it was misled by the planning authority’s failure to make known to it the complaints, the pre-judgment, and the existence of Mr. Gough’s report. Accordingly the Board acted under a misapprehension, and therefore for these reasons its decision was also unlawful.
      (17) The failure of the Council to make proper discovery which required this court on day 4 of the action to make an order for further and better discovery, was adversely commented upon by the Plaintiff Company, and finally,
      (18) Counsel also made some observations on the question of what the appropriate relief might be. These observations, however were not conclusive. It was said that a declaration to the effect that the decision making process of the planning authority was flawed would be of value and in its own right might be sufficient. That submission, however, is not entirely representative of the plaintiff’s view, with its final position being dependent on the ultimate findings made by this Court.

22. Mr. George Brady S.C. outlined the position of Dublin City Council. In the context of the following summary of these submissions, it must be remembered that originally the primary focus of this Defendant was on s. 82 (3A) and (3B) of the 1963 Act as inserted by s. 19(3) of the 1992 Act. Accordingly if my recital of Mr. Brady’s views should appear somewhat brief, the same do not truly reflect the very substantial submissions which were originally made. In any event counsel said:-
    (1). Though the two month time limit was no longer material, the decision of the Supreme Court in White v. Dublin City Council did not completely resolve the time factor in this case. Order 84 Rule 21(1) of the Rules of the Superior Court provides that any judicial review application shall be made “promptly” and in any event within three months or six months where certiorari is sought “unless the court considers that there is good reason for extending the period within which the application should be made”. As is clear from the timing of the events outlined earlier in this judgment these proceedings only commenced on the judicial review side on 7th November, 1995. That was well outside the 6 month period specified in Order 84 Rule 21(1) of the Rules and most certainly, it could not be said that the same had been instituted promptly. Therefore the onus was on the Plaintiff Company to establish good reason for obtaining an extension from this court. This the plaintiff had failed to do.

    (2). For the purposes of s. 26(4) of the 1963 Act, which contains the “default provisions”, the Supreme Court has decided that despite a decision of the planning authority being ultra vires, that decision, when notified within time, was nonetheless sufficient to prevent the default mechanism from applying. See the State (Abenglen Properties) v. Corporation of Dublin Supreme Court [1984] I.R. 381. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 Mr. Justice Costello held that a similarly flawed (but equally notified ) decision, was nonetheless a decision for the purposes of s. 26(5) of the 1963 Act, which contains the provision enabling an aggrieved party to appeal to An Bord Pleanála. Moreover the learned trial judge indicated that by virtue of his interpretation of this statutory provision, “the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what had happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose legal restraints, on the proceedings before the Board”. (See page 52 of the Report). Accordingly it is claimed that despite any infirmity attaching to the decision making process or to the planning authority’s actual decision of 11th July, 1994, the fact of Mr. Beades’ appeal, coupled with the Board’s determination of it in accordance with s. 26(5) of the 1963 Act, means that the resulting order of 8th December, 1994 is unimpeachable and remains legally valid. See also Inver Resources v Limerick Corporation [1988] I.L.R.M. 47 and Hogan and Morgan “Administrative Law in Ireland” 3rd ed., 456 321.

    (3). The decision of the planning authority was made by Mr. Derek Brady in respect of whom no allegation of pre-judgment or bias is made. In fact it can be said that strictly speaking, the retention application was not in fact dealt with by Mr. Muldowney at all: rather it was handled initially by Mr. Gough and only when his superior disagreed with his resulting recommendation did Mr. McDonnell have a discussion with Mr. Muldowney and accept the report of the latter. So both the report and the recommendation were those of Mr. McDonnell and not of Mr. Muldowney.

    (4). In any event what was complained of by Mr. Beades had the status of “allegations” only. These were never verified as being correct. Mr. Beades it is said is a person who has also made allegations against the planning inspector, Mr. Van Der Kamp and against Miss Patricia Hyde who was an official involved when the repairs were carried out to the public house. Given the fact that both Mr. McCarron and Mr. McDonnell had interviewed Mr. Muldowney in respect of the complaints, it was up to both of these to accept his denial and to conclude that there was nothing substantial in the allegations made. It would accordingly have been improper to remove the file from Mr. Muldowney.

    (5). In addition it must be remembered that Mr. Muldowney only found out accidentally about the planning retention application (when a report from another section passed his desk) and that Mr. Rory O’Byrne also recommended the taking of enforcement proceedings in this case.
    (6). Furthermore though he was not called to give evidence, Mr. Muldowney had denied all allegations on affidavit.
    (7). On what constitutes “bias” this court was referred to a number of decisions in particular to the Orange decision of the Supreme Court. See p. 185 of the judgment of the Chief Justice. According to Barron (J). it is necessary in order to establish bias to show that the factors relied upon pre-dated (either) the application for retention or the date of its determination, but that in any event such factors must be extraneous to the subject matter in question. This was not the situation in the present circumstances and accordingly there cannot be any question of bias having been established. See also the judgment of Murphy (J). in particular at p. 241, and Geoghegan (J). in particular at p. 252, all in the Orange case: and finally
    (8). Mr. Brady S.C., asked this Court to dismiss the entire claim of the plaintiff company.

23. The submissions advanced on behalf of An Bord Pleanála were made by its counsel, including Mr. James Connolly S.C. These can be summarised as follows:-
(1) the plaintiff company had failed to advance any “good reason” for extending the period specified in Order 84 Rule 21(1) of the Rules of the Superior Court for the institution of judicial review proceedings. In this context it is pointed out, that on the factual side Mr. Beades did not become aware of the existence of Mr. Gough’s report until their conversation on 11th October, 1995. No explanation is offered why such an enquiry by Mr. Beades could not have been carried out earlier. Moreover he was substantially aware of all of the existing facts by the time he lodged his appeal to An Bord Pleanála and certainly was so aware, no later than two months following the decision of that body, which was given on 8th December, 1994. And yet he failed to move until November 1995.
(2) Several decisions were extensively relied upon in the Board’s comprehensive submissions on this point. The judgment of Henchy (J). in the State (Cussen) v. Brennan [1981] I.R. 181 was referred to as were extensive sections from the judgments of Denham J. and Fennelly J. in deRoiste v. Minister for Defence [2001] 1 IR 190. In addition it was pointed out that the term “good reason” was analysed by Costello J. in O’Donnell v. DunLaoghaire Corporation [1991] ILRM 301 and was also reviewed by the Supreme Court in Dekra Éireann Teoranta v. The Minister for the Environment and Local Government [2003] 2 IR 270. Given the requirement of certainty in the planning code it is imperative to move promptly and in any event within the time specified for so doing in the Rules of the Superior Court. No extension was justified on the facts as presented in this case.
(3) The decision of Costello J., in O’Keeffe v. An Bord Pleanála [1993] I.R. 39, which is referred to above, was relied upon as establishing the jurisdiction of the Board to embark upon and determine a planning appeal. According to Costello J. the Board should not concern itself with the validity of the earlier decision or with the legal position adopted before or by the planning authority. Having conducted the appeal in a proper manner, which is evident from the report of the planning inspector, it is claimed that the decision of the 8th December, 1994 is “a stand alone” decision, unaffected by any previous infirmities, whether attaching to the process adopted by or before the planning authority or inherent in its decision of the 11th July of that year.
(4) As of July/August 1994 Mr. Beades was possessed of sufficient information which should at least have obliged him to make further enquiries with regard to, for example, the existence and availability of Mr. Michael Gough’s report. To that extent, knowledge of its existence can therefore be imputed to him as of that time. In any event even if the report had been available, the end result would have been the same. This was confirmed by Mr. Van Der Kamp who in evidence indicated that even if he had the report, which he subsequently read, his recommendation would not have changed. The court should therefore approach this matter in much the same way as the Supreme Court views a request for the introduction of fresh evidence. Is the material in question credible, will it make a substantial difference and could it have been available earlier, if reasonable enquiries had been made? As the relevant report in this case fails all three tests, this court should not be concerned with “due process” for the sake of it, as the result would not have differed.
(5) The case of Hynes v. An Bord Pleanála (High Court, 30th July, 1998, Unreported, McGuinness J.), was referred to as confirming the views of Costello J. in the O’Keeffe decision which is referred to above, and finally –
(6) On the issue of discretion, it was strongly urged that this court, even if so minded, should not grant any of the reliefs claimed. This was necessary in order to prevent any default situation arising and to ensure that Mr. Beades was not immune from the enforcement provisions of the planning code. Moreover there was a public element in supporting the existing situation. Accordingly no order should be made. See State (Abenglen Properties) v. Corporation of Dublin, [1984] I.R. 381, KSK Enterprises Lt. v. An Board Pleanála [1994] 2 I.R. 128, Cavern Systems Dublin Ltd. v. Clontarf Residents Association [1984] I.L.R.M. 24, Foras Aoiseanna Saothair v. Minister for Social Welfare, Supreme Court, 25th May, 1995.

24. Finally Ms. Hyland, Barrister at Law, made submissions on behalf of Ireland and the Attorney General. As will be recalled from an earlier part of this judgment, the constitutional question is no longer relevant following the decision in White. Counsel for the State however made submissions on the necessity to obtain an extension of time under the Rules of the Superior Courts. In this regard she reviewed the relevant facts and applied her resulting analysis to the appropriate principles of law. In so doing she came to a conclusion, which was advanced by way of argument, that the plaintiff company had singularly failed to elicit any or any sufficient information as would justify this court in granting the extension sought. Accordingly, in her submission no relief should be granted.

25. From the above description of the circumstances of this case, there is little doubt but that the main two protagonists are Mr. Jerry Beades and Mr. James Muldowney. I have had the benefit of oral evidence from the former but the latter, though in court for most of the trial and despite having produced for the first time, some relevant documents during the course of it, was not called. Subject to the question of credibility, the plaintiff company, having established in a prima facie way the most material facts upon which it seeks to rely, could hardly be criticised for not calling Mr. Muldowney. Whoever might or might not have called him, the fact of the matter is that this Court was deprived of the benefit of obtaining, first hand, his version of events and of course in the process it was denied the opportunity of seeing and observing him in the witness box. Accordingly the only evidence from Mr. Muldowney is via his affidavit which contains a denial of the most major allegations levelled against him.

26. In considering the credibility of Mr. Beades I have had regard to his repeated tendency in the witness box, of not only straying from the question asked but also of moving onto a totally different topic; which topic at any given time was entirely out of context to the sequence under discussion. Moreover he was quite often very direct and indeed abrasive. He also made a suggestion of bias against the planning inspector simply because Mr. Van Der Kamp, in a professional capacity had previously come across and had some contact with Mr. Muldowney. This allegation is of course entirely unjustified. In addition however there were two further facts which gave rise for concern. The first was his explanation for carrying out the alterations in the first place, which it will be recalled was based on safety and security grounds. This evidence is a feature of the case with which I have reservations. It is my belief, that right from the beginning, Mr. Beades was highly interested in so constructing his building that an additional apartment could be accommodated on the fourth floor. His initial instructions to his agents prove this. His agreement, reluctantly reached, to allow revised drawings to be submitted, most likely did not alter this aspiration. Whilst I appreciate that some undesirable activity might have been predicted, if the building was erected as per the original design, nevertheless it surely must have been the case that other options were available so as to satisfy any security or safety requirements. Furthermore I cannot accept that either urgency or pressure of time meant that he could not have discussed the situation with the planning authority prior to or immediately after the alterations were made. This he failed to do, a failure which contained right up to the time of the phone call with Mr. Muldowney on 11th February, 1994. As a result I have some not inconsiderable reservations, about the truth of this assertion as made by Mr. Beades.

27. The second matter arose in quite an unusual way. After the decision of the Supreme Court in White, but prior to having heard any submissions on what consequences that decision might have had for this case, I was assigned to deal with family law in the family courts. One day Mr. Beades, unannounced and without representation, attended at the court where I was sitting and made an enquiry about the judgment when in fact at that time the case had not even yet concluded. During the few moments of exchanges between both of us, he informed me that he was a member of the National Executive of a very prominent political party in this country. I asked him what relevance that had and wondered aloud as to why he had told me. Of course on the very next occasion on which the case was listed, I informed the parties, all of whom were represented, in open court of what had transpired.

28. I can only conclude that in volunteering this information he had hoped that it might favour his position. In fact, as one might have anticipated, it had the directly opposite effect. As a result of this and of the other matters above mentioned, I adopted an acutely cautious approach in my assessment and evaluation of the overall evidence given by him. It is in the context of that approach, that I have considered the substance of the allegations made by him in these proceedings.

29. Even however with these reservations, I have concluded that the essence of his allegations are correct and in many important respects the same have been corroborated either by correspondence or events, or by independent evidence such as that of Mr. Gough. In this context I consider that the affidavit denial by Mr. Muldowney is inadequate and insufficient to prompt me to reach a contrary conclusion. I therefore accept the core points of Mr. Beades complaints against Mr. Muldowney and also for the reasons hereinafter stated his allegations of pre-judgment and unfairness against Mr. McDonnell.

30. It is important I feel to again stress what these allegations are although the same are comprehensively set out earlier in the judgment. Could I say however, before so doing, that the plaintiff company and Mr. Beades have always acknowledged that the alterations made were not authorised by the original planning permission and that an application for retention would have to be made so as to regularise the position. Such matters therefore are not in issue in this case.

31. I now deal with these allegations and do so in the manner following:-
      (a) The first contact of relevance between the individuals in question appear to have occurred followed the lodging of the original planning application in May 1993. Mr. Beades makes the complaint that Mr. Muldowney, at that time, continuously linked the licensed premises with site No. 2 and also that he indicated what would and would not be acceptable to him as a planner. This, if he was to make a favourable recommendation on the then outstanding application. In my opinion these are the type of matters which can quite properly form the subject matter of discussions (frequently had) between planners and there making applications. I therefore see nothing objectionable about what occurred at this time and in addition I should also say that I entirely disregard any suggestion that Mr. Muldowney’s tone or attitude were inappropriate.
      (b) The phone call of 11th February, 1994, however, is in a different category as is the original letter of complaint dated the same day. In that a more serious allegation is made against Mr. Muldowney. It is claimed that when informed of Mr. Beades intention to apply, the planner said that such a retention application would be treated with contempt by the planning department. In fact the words given in evidence are slightly different from the phrase used in this letter but in essence the point of complaint is the same. For a developer who had considerable and repeated dealings with the planning authority, this must have been highly relevant, and indeed was treated so by Mr. Beades who in fact sent a copy of his complaint to a member of An Dáil Éireann and requested that T.D. to take the matter up with Mr. Muldowney. Whatever about its seriousness from Mr. Beades view, however it must surely have been a matter of deep and urgent concern to Mr. Muldowney. No attempt however was made by the latter to arrange the meeting as suggested by Mr. Beades and no reply issued to this letter for more than four weeks thereafter.
      (c) This delay I have to say I consider surprising. All the more so, because during this time Mr. Muldowney is recommending that enforcement proceedings should be taken immediately. See his memo of 14th February.
      (d) By letter dated 23rd February Mr. Beades again writes to Mr. Muldowney and further complains about events which took place on the previous Friday and also on that day. On 19th February he alleged that the planner threatened the manager of the public house with legal proceedings in order to gain access to site No. 2, as the former considered that he had been technically denied access. Whilst I am satisfied that this most probably occurred, I have, nonetheless, decided to ignore it given the absence of any direct evidence from the said manager. What is undoubtedly a fact however is that there was an inspection by two members of the building control section on 23rd February, and this at the same time as Mr. Rory O’Byrne, a Planning Inspector, was also present. Though he was informed by fax on the Monday that Mr. Beades would be on site on 23rd February, Mr. Muldowney himself did not show. However I believe that he was instrumental in having the building control unit make the inspection which it did on that occasion. Mr. O’Byrne, a colleague of his in the Planning Section, told an internal inquiry on 6th December, 1995 that “he thought it most unusual that the building control officers should have arrived to inspect No. 2 Hardwicke Place contemporaneously with him”. This document was admitted in evidence without formal proof.
      I can find no response to this letter and no satisfactory evidence has ever been given to explain these events. This is again surprising given the seriousness with which Mr. Beades had treated the situation and his contemporaneous commitment to writing in respect thereof.
      (e) On 1st March Mr. Muldowney recommended that High Court proceedings be taken and that before the building was complete, an interim injunction should be obtained so as to have the extra apartment removed.
      (f) The public representative above referred to wrote to Mr. McCarron and copied Mr. Beades’ letter of 11th February to the City Planner. That prompted Mr. McCarron to send a memo about the matter to Mr. McDonnell which he did on 22nd February. It is probable that the latter spoke with Mr. Muldowney, as he thinks that the executive planner telephoned Dáil Éireann and spoke with the said public representative and may also have spoken with Mr. Beades. In any event a memo was sent by Mr. Muldowney to the City Planner dated 10th March in which he denied any question of discourtesy as well as claiming that the contempt allegation was totally untrue. He considered the matter serious and intended seeking a retraction.
      (g) On 16th March Mr. Muldowney sent a registered letter to Mr. Beades which I am satisfied, that for entirely innocent reasons on both sides, was not received by him. Having quoted from the relevant portion of the letter of complaint dealing with the contempt allegation Mr. Muldowney in that letter said:
      “You know that this statement is wholly untrue. Furthermore, I regard it as a slur on my personal character and professional standing within Dublin Corporation. I have always treated you and your agent in a courteous fashion. I am now seeking an unreserved retraction of the sentiments expressed in your letter.”
      It is acknowledged that in or about this time Mr. Muldowney had obtained independent legal advice.
      (h) On 15th March, 1994 Mr. Beades wrote to the Principal Officer in the Planning Section namely Mr. Joe Scully. He referred to the visit on 23rd February by the Building Control Department. He alleged that “the actions of the planner (were) an unprecedented step of trying to get the other regulatory authorities to act against me”. He then claimed that he was being victimised by Mr. Muldowney. He requested a meeting and expressed concern at the way in which the senior executive planner would deal with the application which he intended to make for planning retention.

32. Accordingly at this time one had the following situation:
(a) the written allegation of discourtesy which is not highly significant,
(b) the written allegation of contempt which is highly significant,
(c) the most unusual events of 19th and 23rd February,
(d) the absence of the requested meeting by Mr. Beades,
      (e) the repeated indication by the plaintiff company of its intention to apply for planning retention (see also the letter to Mr. O'Byrne dated 4th March),
      (f) the written allegation that the Council was acting in a heavy handed manner, and
      (g) the most serious written allegation that Mr. Beades was being victimised by Mr. Muldowney in the planning process with the result, that the developer expressed acute concern at the way in which his planning retention application would be dealt with by that senior executive planner.
33. From Mr. Muldowney’s point of view the position was that:
(a) these allegations had been brought to the attention of the City Planner,
      (b) he in turn had requested Mr. McDonnell to take certain steps in respect thereof,
      (c) Mr. McDonnell, in response, speaks with Mr. Muldowney who denies the allegations contained in the letter of 11th February; though I cannot identify any reply to the intimidation allegation as contained in the letter of 15th March,
      (d) the Senior Executive Planner believes that these complaints are a personal slur on his character and also a slur on his professional standing within the Council, and
      (e) in respect thereof he seeks an unreserved retraction and also obtains independent legal advice on these issues.
34. Even with these facts alone I cannot but believe that a stage had been reached where, for whatever reason, there was a serious problem between these people, one that quite evidently reflected in both a professional and personal way on the independence and integrity of Mr. Muldowney. The situation demanded firm and decisive action by those at senior management level within the Department or even higher, but unfortunately such a response was not forthcoming. From this criticism I fully absolve Mr. Gough who in my view made the entirely correct decision to deal with the application himself. Regretfully events intervened and instead of matters being resolved in that way the situation from the Council’s point of view was to deteriorate further.

35. As subsequent events unfolded matters indeed deteriorated and did so significantly. A copy of Messrs Brendan O’Mahony and Company’s letter of 11th March, 1994, sent to the Planning Department, found its way to Mr. Muldowney. Thereon, under his hand the following notation appears:-
      “This matter has been considered at length and discussed with Mr. P McDonnell D.D.P.O. the recommendation in relation to the extra apartment at roof level will be to refuse and similarly in relation to the top hung sash windows.
      James Muldowney

36. In response to a claim that this was proof of pre-judgment, not only on the part of Mr. Muldowney but also on the part of Mr. McDonnell, the officials from the City Council who gave evidence furnished an almost identical explanation for the entry. It was said by then that the note must be looked at and considered in the context of enforcement proceedings and not purely from a planning point of view. Having been informed that it was the developer’s intention of applying for retention, it was relevant for the enforcement section to have a planning view before it finalised its reaction to such an application if and when it was submitted. It was claimed that such a view might also have an influence on how a court might exercise its discretion under s. 27 of the 1976 Act. It was therefore submitted that looked at in this way, the note was entirely different from, and should not be equated with, the holding of a pre-judgment view.

37. I must with respect entirely reject this explanation. Firstly, apart from Mr. McDonnell, the other Council witnesses who gave evidence on this point, namely Messrs. McCarron, Brady and Scully, were not a party to the underlying discussion between Mr. Muldowney and Mr. McDonnell. Therefore at best their evidence could only be of a general nature. Secondly, whilst Mr. McCarron knew of the letter of 11th February, 1994, and also of the allegation of intimidation contained in the letter of 15th March, he was not otherwise kept updated as matters progressed. Thirdly, Mr. Derek Brady had no knowledge whatsoever of the serious issues between Mr. Muldowney and Mr. Beades. Fourthly, Mr. McDonnell has a only vague recollection of whatever conversation Mr. Muldowney was referring to. Fifthly, the person who could have given first hand and direct evidence of this was never called. Sixthly, I have no evidence as to what was discussed “at length” between these planners, for example how much, and with what accuracy, did Mr. Muldowney inform Mr. McDonnell of the reasons advanced by the developer for the alterations carried out to his property. In addition as the wording itself clearly demonstrates, this was not the recording of any provisional or tentative view, rather it was categorily stating that the recommendation of the senior executive planner, now apparently approved by the Deputy City Planner, will be that any planning retention application will be refused (emphasis added). Therefore I am quite satisfied that this was far more than simple information gathering to help the enforcement section on what course that unit might take with the intended High Court proceedings. It was in my view a declared position on the issue.

38. It is also worth mentioning that there was nothing new in the solicitor’s letter of 11th March, 1994. As far back as the 11th February of that year, Mr. Beades had informed Mr. Muldowney of his intention to apply for planning retention. That intention was repeated on several occasions thereafter including the letter of the 4th March to Mr. O’Byrne. In addition the planning retention application had not been lodged at that time and indeed was not submitted for a further two months. Moreover there was no urgency from the enforcement section’s point of view, as is proved by the fact that the High Court proceedings were not issued until September of the following year. I therefore cannot hold with this suggested explanation.

39. As a matter of certainty some unauthorised works or uses must pre-exist a planning retention application and very often these come about in the context of an earlier planning permission which has not being fully adhered to. Therefore it must frequently be the case that some conflict exists between what is built and what is authorised. If a planning authority could legitimately have the view, as expressed in the aforesaid note, at a time when a planning retention application had not even been submitted and therefore the details not even outlined, there would in fact be no point in this statutory entitlement being afforded to a member of the public. Such a position could clearly circumvent the will of the Oireachtas and would be contrary to the duty imposed on planning authorities to consider and determine, on its merits, such an application and to do so in the same way as any other planning application. Any contrary position is in my view untenable. I therefore believe that this constitutes evidence of pre-judgment and of a declared position by both Mr. Muldowney and Mr. McDonnell.

40. Before I outline the manner in which the application itself was dealt with, could I make an observation on the corporate response to Mr. Beades complaints. As previously stated there was no formal method at that time for dealing with a complaint against a planner. That in itself is not crucial if the informal way was transparent and effective. Unfortunately this case shows that major shortcomings existed in how, or more accurately is how not, this matter was dealt with.

41. Could I immediately say that the conclusion which I have reached on the validity of these complaints has been made solely on the evidence before me. From the Council’s point of view I am satisfied that once these allegations appeared to be serious, at least prima facie so, and once they could not be described as groundless or without foundation, then that situation by itself was a sufficient basis for the City Council to have properly investigated, dealt with and reached a conclusion on such matters. This for the protection of Mr. Muldowney every bit as much as dealing with a member of the public. Unfortunately the Council did not discharge its responsibilities in this regard. In so saying I wish to make it quite clear that I am not imputing or implying any question of bad faith on the part of its officials. Rather I believe that this occurred by simple but serious omission along the lines of command and responsibility.

42. What the Council in fact did appears to have been as follows:-
      (a) On receipt of the complaints addressed to Mr. Muldowney the letters in question were sent to him by way of internal distribution and not copied to any senior member of staff. The city planner most likely would never have known about this matter unless the public representative had copied to him Mr. Beades’ letter of 11th February. His response was to write a memo to Mr. McDonnell on 22nd February, 1994. In that he sought certain information and directed that “the development proposed (be) considered further as a matter of urgency”. He was also aware of the victimisation claim as on his copy of that letter (dated 15th March, 1994) he made a handwritten note addressed to Mr. Scully which is dated 21st March. In that he suggested a meeting which never took place and what Mr. Scully’s response to the note was, remains quite unclear. Certainly Mr. McDonnell believes that he never saw it and neither does Mr. Gough. In any event I do not believe that Mr. McCarron ever received a reply to either his memo or his note. This, apart from a memo dated 10th March from Mr. Muldowney. Otherwise I do not think that the city planner was involved or that there was any follow up to his directions.
      (b) Mr. McDonnell spoke to Mr. Muldowney about the contents of this memorandum which, incidentally was never sent directly to Mr. Muldowney. He the Deputy City Planner thinks that a phone call was made to the public representative and also to Mr. Beades. I doubt strongly if matters were taken any further by Mr. McDonnell. This save perhaps from some vague conversation which he may have had with Mr. Muldowney.
      (c) With regard to the Senior Executive Planner, I am satisfied that he did not keep Mr. McDonnell informed in any progressive way, as to what was transpiring between himself and Mr. Beades.
(d) This is largely what the corporate response entailed.

43. Relating to the application itself, it would appear that following his contact with Mr. Rory O’Byrne a Planning Inspector, Mr. Beades was advised to go and see Mr. Michael Gough which he did. Apparently that meeting was arranged by the said Mr. O’Byrne who also had some conversation with the Senior Planner regarding his own feelings of unease about matters. As outlined above (see para. 14 supra) this meeting occurred on 11th May, 1994 at which Mr. Beades freely spoke to Mr. Gough about his concerns regarding fair treatment and also about the alterations to the building which had earlier been made. Having considered what was said, Mr. Gough gave as assurance to the plaintiff that he would receive fair play in the Planning Department and as a guarantee of that, he indicated that he himself would deal with the retention application. In my view this was a perfectly proper course for the Senior Planner to have adopted and in this context his decision not to speak with Mr. Muldowney about the application was fully justified.

44. In accordance with his word Mr. Gough dealt with the retention application and did so in the normal manner. His resulting report contained a recommendation to grant permission subject to conditions. He sent that and the “green form” to the Decisions Section of the Council which, having formatted the documents, would then, in the normal course of events, send the same on to the Assistant City Manager for his determination. This process usually takes between 3 and 5 days.

45. At this juncture could I say that much of the evidence tendered by the Council’s officials including the Assistant City Manager, was directed towards establishing that by far the better planning view was that arrived at by Mr. Muldowney. In addition Mr. Brady, Mr. McCarron and Mr. McDonnell were all very strongly of the opinion that the application should be refused. These matters even if correct, are in my opinion entirely irrelevant. I see it as no part of my responsibility to adjudicate on the merits on the planning application. What is at issue is the fairness and impartiality of the process. If that had existed then, as is freely admitted by the plaintiff company, the latter could have no complaint even if the decision was strongly adverse to its position and negative to its cause.

46. In any event following a meeting on the 5th of July with Mr. Beades on an unrelated matter, Mr. Gough returned to his office and instructed a Senior Staff Officer in the Decisions Unit to locate the file. It was then found. And the meeting of 8th July took place. Mr. Gough’s recall of events around this time is slightly different to that of Mr. McDonnell. And also on an important point his own version is in conflict with what he told an internal inquiry in late 1995. As part of this investigation, which was established following the institution of the judicial review proceedings, Mr. Gough stated and maintained that he only became aware of the planning refusal after it had been given.
He said that he had no forewarning before the Assistant City Manager made his decision. That however was not his evidence in court where he agreed that a meeting did take place on 8th July. Disregarding for a moment any distinction between “a recommendation” and the ultimate “decision”, (for knowledge purposes) I have, despite this inconsistency, nevertheless come to the conclusion that Mr. Gough is a truthful witness and his recall of the main events is largely correct.

47. At the meeting of 8th July, I am satisfied that Mr. Gough was shocked to discover what in fact had taken place. Even though his junior, Mr. Muldowney apparently had gone to the Decisions Unit, taken the file, saw the favourable recommendation, went to Mr. McDonnell and then drew up a report coming forcibly to a conclusion contrary to that of his superior. He may or may not have gone to Mr. Gough before 8th July though I have my doubts that he did. Mr. Gough informed the court that he had no difficulty in being overruled but it was the manner and way in which it had happened that caused him distress. I am satisfied that prior to this meeting both Mr. Muldowney and Mr. McDonnell had made a decision which effectively foreclosed on any real possibility of there being a meaningful exchange of views between planners, who held contrary opinions about this development. As Mr. Gough recalled, Mr. McDonnell told him that he had made the decision and not merely made a recommendation.

48. An extraordinary feature of the case then occurred. Mr. Gough’s report was removed from the planning file by a person who to this day, and despite the internal inquiry, has never been identified. It is admitted by Mr. McDonnell that this was wrong. In any event Mr. Gough describes his reaction to the situation as follows:-
(1) It was as if his report had been “airbrushed” out of history,
(2) for a junior to act as Mr. Muldowney had done, was unprecedented within the Council and was a situation which he had never previously encountered,
(3) his report, which was addressed to Mr. McCarron, should at least have been seen by the City Planner, and, as was not an uncommon practice where there were conflicting views of senior people, it should also have been sent to and seen by the Assistant City Manager,
(4) he felt embarrassed about the situation,
(5) he felt that he had failed Mr. Beades and that the latter had not obtained fair procedures,
(6) he also felt that he had got “mugged and muzzled”.
    49. This description is not my summary of the situation but largely is that of Mr. Gough himself. Mr. Gough, to my knowledge has no axe to grind and could not be described as a maverick in public life. At the time of the hearing he was a Director of Economic Development and Planning with Dun Laoghaire Rathdown County Council and had been in the public service for over 30 years. For a great deal of that time he had worked as a planner. I therefore treat his views as highly credible and in my opinion his conclusions are fully justified.

    50. I reject the suggestion put forward on behalf of the first named defendant in this context. I consider that prior to the 8th July meeting, the matter by way of firm recommendation, had been determined by Mr. Muldowney and Mr. McDonnell. No genuine opportunity existed for the conflicting views of the senior planner to be considered seriously or at all. Also I am satisfied that it is quite an incomplete representation of the situation to say, that the July report was in effect that of Mr. McDonnell. Although he countersigned it on 8th July I believe that this was largely a matter of formality. Mr. Muldowney played a very significant role in the process and did so at a time when the allegations made against him had not even been properly investigated let alone resolved one way or the other. Moreover this report of July is but a furtherance of the decision which both people had earlier made in March of that year. I believe that justice clearly demanded that neither of these individuals should have been involved in the adjudication of the planning retention application made by Mr. Beades.

    51. This last mentioned view of mine was not shared by Mr. McDonnell, Mr. McCarron or Mr. Brady. Not even on reflection or by way of best or preferred practice; they saw nothing even remotely troublesome about the process. Mr. McDonnell felt that one could separate (and therefore ignore) personal matters from one’s professional obligations as a planner. Both Mr. McCarron and the then Assistant City Manager felt that there were sufficient safeguards in existence in that Mr. Muldowney was reporting to a person who held a position in senior management. I regret but I cannot agree with these observations. It seems to me that this approach, putting it as modestly as possible, overlooks the critical attribute of not only carrying out one’s function in an objective way but also of being seen to so do. I do not believe that any reasonable, objective person would have confidence in a process where the structure not only permitted but also apparently approved of such working practices. Whilst it is true that the matters complained of were mere “allegations” they remained with the statute only because of the Council’s inactivity. On any interpretation of the events these were serious and could not lightly be dismissed as unfounded or groundless, and certainly could not be so considered, simply on the word of the person against whom the complaints were made. No one in authority ever even asked Mr. Beades about these matters. Until the same had been reasonably investigated and a conclusion reached, the file should have been dealt with in the manner suggested by Mr. Gough or in a comparable or similar manner. The note of the 22nd March, 1994 in my view negatives, virtually in its entirety, the alleged supervisory role of Mr. McDonnell, who incidentally most probably had not even read Mr. Gough’s report when he gave his unconditional approval to Mr. Muldowney’s involvement in July 1994. Therefore, despite the aforesaid views from these senior officials, I simply cannot agree with their conclusions and therefore remain of the opinion as outlined above.

    52. The report of Mr. Muldowney countersigned by Mr. McDonnell is then sent to the Assistant City Manager Mr. Derek Brady. On that he makes a decision to accept the recommendations contained within it and to refuse permission. When adjudicating on the application Mr. Brady had no knowledge whatsoever:-
    (a) of the contempt allegation,
    (b) of the intimidation allegation,
        (c) of the letters sent by Mr. Beades to various officials within the planning department,
        (d) of Mr. McCarron’s involvement,
        (e) of the fact that Mr. Muldowney had written to Mr. Beades categorising the complaints as constituting a serious slur on his personal and professional integrity and had sought a full retraction in respect thereof,
        (f) of the fact that Mr. Muldowney had obtained or was about to obtain legal advice,
        (g) of the existence of the note of 22nd March, 1994,
        (h) of Mr. Gough’s decision (for the reasons above stated) to personally deal with this file,
    (i) of the fact that Mr. Gough had so dealt with it,
        (j) of the circumstances in which his juniors involvement had come about,
        (k) of the existence of the contrary report,
    (l) of the fact that such report had been removed from the planning file,
    (m) of Mr. O’Byrne’s personal concerns about matters.
    In essence the Assistant City Manager was totally oblivious in virtually every respect, to what had transpired during the course of the process. Whatever personal knowledge Mr. Brady may legitimately have acquired previously about this development, and however strongly he felt that the proper planning decision was to refuse permission. Nevertheless I am firmly of the opinion that the process was entirely flawed and that his decision was based on an incomplete and screwed version of the true circumstances.

    53. Following the lodging of an appeal to An Bord Pleanála, the Board on 11th August, 1994 wrote to the Planning Department and sought certain information including “copies of any technical or other reports prepared by or for the planning authority in relation to the application”. The response, was to send a copy of the July report which was re-dated the 6th September. It was under the typed name of Mr. Muldowney but without his signature or the signature of Mr. McDonnell. In addition what has been referred to as the “additional comments”, again been those of Mr. Muldowney, were incorporated into the covering letter of 7th September. So both of these documents were sent to An Bord Pleanála. Further material and in particular Mr. Gough’s report were not forwarded and neither was any of the correspondence containing the complaints and allegations made by Mr. Beades. The Planning Inspector, like the Board, was entirely oblivious to the background and to the involvement of Mr. Gough. In that and in all respects both Mr. Van Der Kamp and the Board, with the material which had been supplied, acted quite properly. Unfortunately, however, without any wrongdoing on its part, the Board was deprived of significant documentation which in my view should have been sent to it either as part of the planning file or else separately. In fact all of the relevant correspondence and internal notation should have been on the planning file once the retention application was received. If that had happened it would have had to be forwarded to An Bord Pleanála.
    Whether or not the Inspector or the Board would have been influenced by the background or by Mr. Gough’s report is not in my view, at this juncture, relevant. I therefore do not consider as material the opinion of Mr. Van Der Kamp when he informed the court that having read Mr. Gough’s report, his conclusions would not have differed. One cannot determine this case in that manner. One also cannot say how the Board would have reacted to the allegations or to Mr. Gough’s report. I therefore believe that the documentation sent by the planning authority to the Board was grossly inadequate and incomplete.

    54. In addition complaint is made that Mr. Muldowney’s report and/or the covering letter of 7th September contained matters which were highly prejudicial, inaccurate and misleading. Whether that be a correct conclusion or not, is something which I do not have to decide. What is clear however from the Inspector’s report dated 30th November, 1994 is that Mr. Van Der Kamp had considerable regard to the planning authority’s views and extensively dealt with these in several passages throughout his report. One can only speculate at this point in time as to how much reliance, if any, would have been placed on the efficacy or reliability of Mr. Muldowney’s report, if the true facts had been disclosed and thus known to the Inspector or the Board.

    55. The first legal issue which I am required to deal with is the necessity for the plaintiff company to bring itself within Order 84 Rule 21(1) of the Rules of the Superior Courts. That Order reads as follows:-
        “21(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari unless the court considers that there is good reason for extending the period within which the application shall be made”.
    Though this time requirement was not raised until after the White decision nevertheless it is one which I think the defendants are entitled to have aired and accordingly I have received submissions thereon.

    56. On this point the submissions of An Bord Pleanála have been most helpful as these have set virtually all of the relevant authorities. On the assumption that one could argue that the judicial review proceedings were not brought “promptly” or within the time specified in Order 84 Rule 21(1), the court must therefore see whether there exists “good reason” for extending the period within which such an application can be made. In passing I note that no suggestion has been made that different considerations might apply, given the direction of Laffoy J. in February 1996 that this action should continue by way of plenary proceedings.

    57. In De Róiste v. Minister for Defence, Ireland and the Attorney General, [2001] 1 IR 190, this point was analysed by Keane C.J. who at p. 196 of the report summarised the relevant principles as follows:-
        “The courts have an inherent jurisdiction to dismiss proceedings where the party instituting them has been guilty of inordinate and inexcusable delay. However, even where the delay is both inordinate and inexcusable, the court must decide whether, having regard to the facts of the particular case, the balance of justice is in favour of, or against, its being permitted to proceed. Finally, as stated by Finlay C.J. in Toal v. Duignan (No. 1) [1991] 1 ILRM 135 at p. 139 …
        “those principles are of general application. In the case of proceedings by way of judicial review seeking an order of certiorari such as the present, it is also well established that the applicant for certiorari may be held to disentitle to relief where he has been guilty of unreasonable delay”.

    58. In her judgment in that case Denham J. deals extensively with this issue. For the purposes of this case it is sufficient to state firstly that the court, in pursuit of the requirement of justice, has an inherent discretion to extend or refuse to extend time, secondly, that this discretion is not absolute but must be exercised in accordance with principle and thirdly, that all the circumstances of any given case must be considered including the conduct of the parties, the effect which the impugned decision may have or may have had on third parties and the type of relief sought. At p. 208 of the report the learned judge, having set out a non exhaustive list of relevant considerations then said “it is clear from precedent that the discretion of the court has ever been to protect justice”.

    59. This matter was again considered by the Supreme Court in Dekra Eireann Teoranta v. The Minister for the Environment [2003] 2 I.R. 271. That case concerned Order 84A of the Rules of the Superior Courts as inserted by the Rules of the Superior Courts (No. 4) (Review of the Award of Public Contracts) 1998. Though the wording of Rule 4 is in part, different from Rule 21(1), and whilst clearly the underlying subject matter of that case is also different, nevertheless the general principles applicable are similar. For present purposes, however, it is not in my view necessary to trespass upon the comprehensive analysis of the relevant case law carried out by Denham J. and Fennelly J., save to indicate that, leaving aside the specific Rule at issue, the court did not otherwise alter, vary or change the law as outlined in De Róiste.

    60. There is one further case which I should refer to and that is O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301. Costello J. at p. 315 of the report said “that the phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend a time merely because an aggrieved party believed that he or she was justified in delaying the institution of the proceedings. What the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action …”

    61. In applying these principles it seems to me that it was reasonable for the plaintiff company to have pursued its appeal to An Bord Pleanála prior to embarking upon this process of litigation. A favourable result from that body would of course have avoided these proceedings. I accept the evidence of Mr. Beades that whilst he knew in July 1994 of the involvement of Mr. Gough, he was not aware at that time of the fact that a written report had been made by him, or that it had been placed on the planning file, or that it had been converted (with the green form) into what effectively was a draft manager’s order containing a notification to grant the permission sought. Whilst it is true that, from the planning file he could have seen the typed name of Mr. Muldowney on the report which went to the Board, he had no other means of ascertaining the true position unless he either took proceedings or else obtained some internal information from a knowledgeable Council official which may reasonably have led him to make further enquiries. If he had taken these judicial review proceedings much earlier he was seriously exposed to the criticism of permaturity. In that regard I believe that the advice of his lawyers, whom he consulted after the Board had made its decision, to move cautiously and to exercise restraint was both prudent and wise. In particular, this was so in view of the serious and personal nature of the complaints which he wished to advance. In addition to his own evidence it appears to me that he was fully justified in seeking some further evidence to support his contention. As I have just indicated it seems to me that in the absence of proceedings the most probable source of any such information was from some Council official who had an involvement in the process. This quite evidently would be both sensitive and difficult, given the continuing service with the Council of those who might have sufficient knowledge to assist. Though there is a certain amount of vagueness in the evidence with regard to timings, I am nevertheless satisfied that it was not until October 1995 that Mr. Beades obtained from Mr. Gough a much more comprehensive account of the latter’s involvement in the process and also of the involvement of Mr. Muldowney. Once Mr. Beades knew of Mr. Gough’s written report and the latter’s belief that it had been “pulled”, as well as having a greater understanding of Mr. Muldowney’s role, proceedings were instituted within a matter of weeks. It is not in my view a sufficient answer to suggest that he could have obtained this information from the planning file as evidently neither Mr. Gough’s report on the notation of the 22nd March, 1994 appeared on that file. Whilst I fully accept that proceedings cannot be deferred until an applicant is subjectively satisfied as to his “proofs”, nonetheless given the nature of the proceedings and the other circumstances outlined above, it seems to me that a deferment until November 1995 was in the circumstances of this case justified. In this context I do not believe that there are any third parties whose rights have been or will be adversely affected by this decision. Moreover given my findings on the substantive action I am firmly of the opinion that an enlargement of time is essential “to protect justice”.

    62. The second matter of law which arises relates to the flawed process which I have found to exist in the planning authorities consideration of this matter. Considerable debate was held on what precisely “bias” was and whether it could be said to have existed in this case. Several cases were referred to in argument including Dublin and County Broadcasting Limited v. IRTC, (Unreported, High Court, 12th May, 1989), Dublin Well Women Centre Limited v. Ireland [1995] 1 ILRM 408, Orange v. Director of Telecomms (No. 2) [2000] 4 IR 159 and Spin Communications Limited v. IRTC [2000] ILRM 98.

    63. The concept of bias in the words of O’Flaherty J. in O’Reilly v. His Honour Judge Cassidy and Others, [1995] 1 I.LR.M. 306 “is probably … as old as the common law itself …”. “It developed through cases considering material interest. It also arose in cases on prejudgment, prior involvement, and personal attitudes and beliefs. There are two fundamental streams of thought within this weather concept. Firstly that there should be no actual bias i.e. a subjective test and secondly that there should be no reasonable apprehension that there is bias, i.e. the objective test. Both of these streams of thought are equally important in the broad river of justice”. See the decision of Denham J., giving the judgment of the Supreme Court in Dublin Well Women Centre Limited & Others v. Ireland and the Attorney General & Others [1995] 1 ILRM 408. “Actual” bias is sometimes also known as “conscious” bias whereas objective bias is also known as “unconscious” or “perceived” bias. In whichever category it is alleged that bias exists, the court called upon to decide its presence or absence is not “in this slightest degree” concerned with the merits of the decision or, in the case of objective bias, with the manner in which the judge or Tribunal has reached that decision. See the judgment of Keane C.J. in the Orange case at p. 185 of the report. Immediately following on from that observation the Chief Justice said-
        “In such cases, the courts proceed on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside, although there is not the slightest indication that the decision maker was in fact actuated by any bias. That view of the law is also made clear by the recent decision of this court in Radio Limerick One Limited v. IRTC [1997] 2 I.R. 291. As it was pointed out in that case at p. 315, the bias may take a variety of forms:-
            ‘The decision maker may have a financial or propriety interest in the outcome of the litigation. He or she may be related by family, social or business ties to one of the parties. He or she may have on some other occasion so prejudged the matters in dispute as to be incapable of reaching a detached decision or, at all events, a decision which reasonable people would regard as free from even the suspicion of bias’.”
    The learned Chief Justice then formulates the test, when dealing with perceived bias, as being “(it is) that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias”.

    64. In the same case Mr. Justice Barron deals with this concept at pages 221 et seq. of the report. In law he said that bias “is any relationship, interest or attitude which actually did influence or might be perceived to have influenced a decision or judgment already given or which might be perceived would influence a decision or judgment yet to be given. The general nature of the relationship, interest or attitude is not capable of precise definition. The relationship may be family, social or business. The interest may be financial or propriety. The attitude may be one of goodwill or ill will”. The learned judge then described the test as being “ … that once there exists a relationship, interest or attitude for which bias may be established, it will be treated as established if a real risk, meaning a real possibility, exists that such factor influenced or would influence the decision even though it did not nor would do”. In addition Barron J. indicated with clear certainty, a view subscribed to by the other members of the court, that the bias alleged must predate the process or decision which is being impugned and cannot come into existence during the course of either. He also explained that any decision affected by objective bias is not allowed to stand because there is a perception that in the absence of the relationship, interest or attitude relied upon, the decision might have been different. With the result that in his view there were two basic matters to be considered, “first, has it been shown on the facts that a factor existed,(second) what weight must be given to such factor before it can be taken into account”.
    See also the judgment of Murphy J. and Geoghegan J.

    65. The importance of the requirement that bias must exist in a manner extraneous to the process was again fully dealt with by the Supreme Court, through the judgment of Murray C.J. (as he now is), in Spin Communications Limited v. IRTC and Another [2002] 1 ILRM 98. An admirable and accurate summary of that judgment appears from the head note which reads as follows:-
        “(1) in cases where objective bias on the part of a decision maker is alleged, the courts proceed on the assumption that the decision must be set aside if there is a reasonable apprehension of bias, although there is not the slightest indication that the decision maker was in fact actuated by bias. The test to be applied in determining what constitutes objective bias on the part of an adjudicator – whether in the context of judicial proceedings, administrative or quasi judicial proceedings before tribunals, or other administrative bodies – is whether there is a reasonable apprehension or suspicion that the decision maker might have been bias: i.e. whether, although there was no actual bias, there is an appearance of bias. In order to establish objective on the part of the adjudicator it must be shown that prior to the making of the decision, there existed some factor which was external or extraneous to the decision–making process and could give rise to a reasonable apprehension that the decision-maker might have been bias.
        (2) There is a clear distinction between the existence of factors external or extraneous to the decision-making process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. If a decision maker pursues a line of enquiry concerning a matter relevant to the decision to be made in a tendentious or unfair manner this does not in itself permit, as a matter of law, the decision to be impugned on the grounds of bias, but rather it falls to be reviewed in accordance with the requirements of fair procedures and natural justice. This is because the “factor” involved is internal and not external or extraneous to the decision-making process …”.

    66. As appears from the foregoing authorities:-
    (1) Justice must be done and must “manifestly be seen to be done”,
    (2) When dealing with an allegation of objective or perceived bias the decision will be set aside if there is a reasonable apprehension or suspicion that the decision maker might have been biased,
    (3) In adjudicating upon such an issue the court is not concerned with the merits of the decision,
    (4) For bias to be established there must exist a “factor”, (so termed by Barron J. in Orange see p. 222 of the report)) which but for its presence might have resulted in the decision being different,
    (5) That factor must predate the decision impugned or the process being challenged,
    (6) If, on the other hand such a factor comes into existence during the course of the process, the case falls to be determined in accordance with fair procedures and constitutional justice but not under the heading of bias,
    (7) There is no exhaustive definition, list or description of what might constitute such a “factor”, but
    (8) “ Inter alia”, prejudgment, pre-determined belief or outlook, prior involvement and personal attitudes and belief, all will be regarded as sufficient depending on the overall circumstances of each case.
      67. In determining whether the concept of bias applies to this case it is necessary to identify the time at which the matters relied upon first arose. As previously set out in an earlier part of this judgment, I have decided that the reference by Mr. Beades to his or his family’s acquaintance with Mr. Muldowney or his family, many years prior to any relevant event, was too vague and uncertain to form any basis for the application of this doctrine. Likewise I have held that all contact and discussions between Mr. Beades and Mr. Muldowney during the course of the original planning application were perfectly proper and therefore were of no significance in this context. Consequently prior to February 1994 I cannot see in the evidence any matters which assist the plaintiff in this regard.

      68. The first events of potential significance were the phone call of the 10th/11th February 1994 and Mr. Beades letter of the 11th. It will be recalled (see paras. 7 and 8 supra) that during the course of this conversation Mr. Muldowney told Mr. Beades that any retention application made by him would be treated with contempt. This in my opinion, is the first fact, in point of time, which could be relied upon as a foundation for establishing bias. And of course thereafter the multiple other matters outlined above followed, including the events of the 21st February, Mr. Muldowney’s assessment of Mr. Beades allegations, (as evidenced in his letter of 16th March) as well as the notation of 22nd March, 1994 (see para. 19). The events which occurred after the 13th May, most probably, can only be described as part of the retention process and therefore cannot be said to have predated that event. Whilst it is arguable that all matters which occurred prior to that date can be said to have predated the planning process, likewise it is arguable that once Mr. Beades had informed Mr. Muldowney of his intention to make the retention application, the relevant sequence of events commenced, albeit informally, at that time. That date is the date of their first contact in February 1994. Consequently if that be correct, all matters which the plaintiff relies upon, occurred within the retention application process itself or were so interconnected with that process that they ought properly to be regarded as part thereof. Being of the view that the latter position is probably more correct than the former, and also because of the uncertainty created by the fact that neither Mr. Muldowney nor Mr. McDonnell were personally the decision maker, I have decided against applying this doctrine to the facts of the instant case.

      69. That conclusion however in no way decides the matter. This because the principles of natural and constitutional justice are available and are quite appropriate in their application to the findings which I have already outlined. I have no doubt but that the retention application was not considered fairly or impartiality or on its merits. For whatever reason Mr. Muldowney had formed a fixed and immoveable determination to ensure, that irrespective of the rights and wrongs of the situation, the application would be refused. This approach, at least in part, was prompted by his driven desire to make certain that the integrity of what some Council officials described as the “negotiated permission” (referring to the original grant made in July 1993) would be upheld. This fatally comprised his duties as is evident from his remarks and actions which have been previously outlined as well as his written prejudgment of the application. Again for whatever reason, but with equal consequences, Mr. McDonnell pursued a similar goal. These infirmities, together with the manner in which the application itself was in fact dealt with, permeated the entire process including the decision of the Assistant City Manager who, save in the most unusual circumstances, would follow the advice of the Dublin Deputy City Planner. Accordingly I have no difficulty in concluding that both the process and the decision were reached in a manner contrary to fair procedures and involved a breach of natural and constitutional justice.

      70. If therefore the decision of the planning authority remained a valid decision I would have been prepared to quash it. However the provisions of s. 26(5) of the Local Government Planning and Development Act 1963 provide that where an appeal is taken and the Board issues a decision, that decision “shall operate to annul the decision of the planning authority as and from the time when it was given”. It is therefore argued that the decision of the City Council no longer exists and consequently is incapable of attracting an order of certiorari. In the State (Abenglen Properties Limited) v. Dublin Corporation [1984] I.R. 381 the Supreme Court decided that an ultra vires decision of a planning authority, (but notified within “the appropriate period”), was nonetheless a decision which prevented the operation of the “default provisions” of s. 26(4)(a)(b) of the 1963 Act. In circumstances analogous to the last mentioned case, Costello J. in O’Keeffe v. An Bord Pleanála and Others [1993] 1 I.R. 39 held that a similarly flawed decision, (but one again notified within time), was nonetheless a decision for the purposes of the appeal provisions contained in s. 26(5) of the 1963 Act. It is therefore suggested that once there has been an appeal to the Board and once the Board has issued its decision, then both the process and decision of the planning authority are immune from judicial scrutiny.

      71. In support of this view reliance has been placed on the following passage from the judgment of Costello J. in O’Keeffe which appears at p. 52 of the report. The learned judge said “… I will assume that it (the decision of the County Manager to grant permission) was made ultra vires and that as a matter of law he should have carried out the direction given to him by the Council’s elected members. But I think I should construe the section as meaning that even though he may have acted ultra vires the decision is valid for the purposes of the appeal provisions of subs. (5) just as it is valid for the default provisions of subs. (4). The Oireachtas clearly intended that if a notice of appeal was served within the statutory period then the Board should determine the application as if it had been made to it in the first place, and that it should not have any regard to what happened before the planning authority. It would follow that I should construe this statute as meaning that no defect in the proceedings before the planning authority should have any bearing, or impose legal constraints, on the proceedings before the Board. The Board had no jurisdiction to consider the validity from a legal point of view of the County Manager’s decision … and it seems to me to be contrary to the proper construction of the section now to hold that the Board lacked jurisdiction to entertain the appeal merely because the County Manager’s decision was ultra vires”.

      72. It seems to me that in the above quoted passage, Costello J. was dealing with an entirely different matter to that which presents itself in this case. In O’Keeffe, what the learned judge was deciding was whether or not An Bord Pleanála had jurisdiction to entertain an appeal notwithstanding the invalidity, on jurisdictional grounds, of the decision appealed from. That issue does not arise in this case. Secondly, as stated by Costello J. at p. 56 of the report, his decision was not one made on principle but rather was confined to the precise statutory provision in question. Thirdly, it is by no means certain, that even by analogy, the same legal outcome would follow where fair procedures and natural and constitutional justice have been successfully relied upon. Henchy J. adverted to this distinction in The State (Abenglen Properties) where having referred to s. 26(4)(a)(iii) of the 1963 Act he said “this section has no application to a case such as the present, where there is no violation of the requirements of natural justice and where…” This in my view is supportive of the view that in both The State (Abenglen Properties) and in O’Keeffe, the courts were dealing with the correct statutory interpretation of a particular provision of the 1963 Act and were not considering the consequences, for the process or decision of a planning authority, where both were unsustainable by reason of a failure to apply fair procedures and natural and constitutional justice. In any event the precise issue under discussion does not directly arise in the present circumstances as in my view the appeal process itself was also flawed.

      73. This conclusion is arrived at by reason of the planning authority’s failure to transmit to the Board full documentation. This failure had the direct consequences of neither the planning inspector or the Board having available to them a complete picture of the relevant events which had previously transpired including of course Mr. Gough’s report. Indeed the letter of 11th August, 1994, from the Board to the City Council, may well have included a request for this report where, at para. 8 thereof the Board requests “copies of any technical or other reports prepared by or for the planning authority in relation to the application”. Indeed, that report is also covered at least prima facie by s. 6(b) of the Local Government (Planning and Development) Act 1992. That sub-paragraph reads as follows:-
          “6. Where an appeal is made to the Board the planning authority concerned shall, within a period of 14 days beginning on the day on which a copy of the appeal is sent to them by the Board, submit to the Board –
          (b) a copy of any report prepared by or for the planning authority in relation to the planning application and …”
      As a result of these matters I believe that though entirely blameless the Board acted under a misapprehension regarding the true situation. In my view before it could come to a fully informed decision it would have to have information about the entire background, insofar as that was directly or indirectly relevant to planning issues, as well as in this case the report of Mr. Gough. In these circumstances the decision arrived at was not in my view one reached in accordance with law.

      74. There is one further matter that I feel obliged to comment upon. On day four of this case it emerged, without warning, that the City Council had conducted its own internal inquiry into this matter in 1995. Whilst it is not necessary to outline in detail the scope of that inquiry, it is immediately evident from the documentation gathered, and later discovered, that the same was quite extensive and far reaching. Virtually every player who was involved in this process was interviewed, on occasions twice or more and was asked a series of questions which had previously been prepared by management. None of this documentation was disclosed notwithstanding appropriate orders for discovery and ample time and opportunity to comply with such orders. It is impossible to appreciate why the same were not disclosed. Any argument on relevancy is not sustainable and even if some cloak of privilege could be claimed, the correct procedure for so doing was never adhered to. I am still at a loss to fully understand why.
      Having heard evidence on this issue however I am prepared to accept that any oversight which may have occurred in the Law Department, was purely that, with there being no intention directly or indirectly to avoid its responsibility to the plaintiff, to justice or to this court.

      75. Finally the question remains as to what appropriate orders should be made in response to the above judgment. In this context I note that Counsel on behalf of the plaintiff indicated to this Court that a valid planning permission was required and that a reference back for that purpose may be appropriate. I therefore do not understand that a default situation is being contended for. Accordingly I propose to receive further submissions from the parties on such orders and in this context would draw their attention to the decision of Smyth J., in Illium Properties v. An Bord Pleanála and Dublin City Council, High Court, Unreported, 16th December, 2004.

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