Friday, 30 October 2009

Courts body takes issue with John O'Connor

THE COURTS Service has taken issue with chairman of An Bord Pleanála John O’Connor’s suggestion that a High Court judge “made a wrong assumption” in a recent case.

A statement from the Courts Service referred to remarks made by Mr O’Connor at a meeting of the Oireachtas environment committee on Wednesday.

The comments related to the case of Usk and District Residents’ Association Ltd versus An Bord Pleanála. Judgment was given on July 8th by Mr Justice John MacMenamin.

“It was suggested that the trial judge made a ‘wrong assumption’ as to whether the board had received legal advice prior to making the decision found to be unlawful because it was objectively biased,” the Courts Service statement said.

“The remarks attributed to the chairman might be interpreted as meaning the judgment had been based on incorrect facts or inferences from the evidence. This is not so.” In the case referred to, the judge concluded that a decision of An Bord Pleanála to grant planning permission for an engineered landfill would give rise to a reasonable apprehension that there had not been an impartial decision-making process. The board’s decision was irrational and in excess of its jurisdiction, and should be quashed, he ruled.

At the Oireachtas committee, which was discussing the An Bord Pleanála annual report, Fine Gael Senator Paudie Coffey told Mr O’Connor the judgment stated “there is no evidence the board moved to obtain legal advice at all prior to embarking on the course of action”.

Mr Coffey said it was clear from the judgment “that there was a problem with regard to the board” and Mr O’Connor responded: “It’s not clear. The judge made a wrong assumption.” The Courts Service statement said the case was heard on affidavit evidence and the court may act only on evidence.

“Had the board wished to put in evidence any matter it considered of assistance to its case, or relevant to its decision it was entirely free to do so. There was no such material before the court – a fact which was accepted at the hearing.” The Courts Service said a comment from an An Bord Pleanála spokesman could lead to misinterpretation.

“The spokesman said the judge had no evidence on ‘the appeal file’ that it had taken legal advice prior to the unlawful decision. In fact there was no evidence in the entire proceedings that the board had either taken legal advice or had referred to it prior to its decision.”

Irish Times

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