THE HIGH COURT
			No.  1997/317JR
			JUDICIAL REVIEW
BETWEEN
ANNE HYNES 
			APPLICANT
AND
AN BORD PLEANALA PATRICK JOYCE AND THE MAYOR ALDERMEN AND BURGESSES OF THE COUNTY BOROUGH OF GALWAY, IRELAND AND THE ATTORNEY GENERAL
			RESPONDENTS
JUDGMENT of Mrs Justice McGuinness delivered the 30th day of July 1998
	In these Judicial Review proceedings the Applicant seeks an Order of Certiorari to quash a decision of the first named Respondent, An Bord Pleanala ("the Board") made on the 25th day of June, 1997 to grant planning permission to the second named Respondent ("the Developer"), together with certain ancillary Orders.  Leave to apply for Judicial Review was granted pursuant to Section 82 of the Local Government (Planning and Development) Act, 1963 (as amended) by Laffoy J., who gave Judgment on the 10th day of December, 1997.  The Order granting leave was made on the 19th day of December, 1997.  The grounds upon which the Applicant was given leave were those set out at N(i) to (xxv) in the originating Statement, to which I shall refer later.  

THE FACTS
	The chronology of events which led up to the decision of the Board of the 25th June, 1997 was succinctly and helpfully summarised by Laffoy J. in her Judgment of the 10th December, 1997 and I can do no better than to rely in the main on that Judgment in setting out the factual background to this application.  However, during the period which elapsed between that Judgment and the hearing of this matter before me in July, 1998, a number of further Affidavits were filed on behalf both of the Applicant and of the Respondents, with the result that some additional factual evidence was available to this Court at the hearing of the Judicial Review application.  I would summarise the factual background, therefore, as follows:- 
(a)	In or about the 26th day of April, 1996 Mr Gus McCarthy, Executive  	 Planning Officer of the third named Respondent ("the Corporation") was contacted by Michael Condon of M J Condon Limited, Architectural and Industrial Consultants, on behalf of Patrick Joyce, the Developer.  He discussed with Mr McCarthy the possibility of the development, by his client, of lands at Shangort, Knocknacarra, Galway, and informed Mr McCarthy that his client's lands adjoined land owned by Galway Corporation.  Mr McCarthy, who was unaware at the time of these lands, confirmed with the relevant section of the Corporation that the lands in question had in earlier years been acquired by Galway County Council by Compulsory Purchase Order for road widening purposes.  The land had come into the ownership of the Corporation due to a subsequent extension of the boundaries of Galway County Borough.  It appears that some of the land originally acquired had in fact been used for road widening purposes, but according to Mr McCarthy (in his Affidavit sworn the 19th March, 1998) the remaining lands were "never likely to be used for road improvement purposes and were in effect redundant."  On the 8th May, 1996 Mr McCarthy had a meeting with Mr Condon at which Mr Condon showed him a drawing of the proposed development, which at that stage referred only to the developer's own lands.  Mr McCarthy states that "it was agreed between myself and Michael Condon that it would be a good idea from the point of view of proper planning and development of the area that his clients would include the said lands belonging to Galway Corporation as part of their planning proposal.  I say and believe that this was a sensible approach to take from a planning point of view although in stating this I was not giving him any undertaking, promise or commitment that Galway Corporation would convey these lands to him."  In late May or early June, 1996 Mr Condon showed Mr McCarthy a further drawing which included proposals for the inclusion of the Corporation's land in the proposed development.  Mr McCarthy had no further input in the entire matter and at no stage was any account of these pre-application negotiations placed on the planning file of the application which was eventually decided by the Board on the 25th June, 1997.  I accept, however, that these discussions did take place and indeed Mr McCarthy's evidence as to the discussions is not challenged by the Applicant.  

(b)	On 15th July, 1996 the Corporation received an application for planning permission from the Developer.  The application which was dated 12th July, 1996 was on the Corporation's standard Planning Application Form.  The proposed development was briefly described as the erection of three detached houses, one manager's apartment, a community centre, shops/retail areas including related offices and storage, banking facilities and petrol filling station.  The postal address of the site was given as Shangort, Galway, and its area was given as 1.69 hectares.  Question 4 on the form required the Applicant to state the Applicant's legal interest in the estate or site (freehold, leasehold etc) and there followed a caveat that, if the Applicant was not the owner, to "enclose from owner a consent form to making of application".  The answer given to question 4 by the Developer was "owner".  The application was accompanied by six drawings, one of which, drawing 1, was a site plan.  This depicted a roughly triangular shaped site bounded on the north by Shangort Road, on the west by Clybaun Road and on the south by a road from Galway city centre to Barna - the Kingston Road.  Part of the area for development shown on the site plan was indicated as being represented by the letters a - b - c - d - a and as being "land subject of CPO by Galway County Council for future road widening".  The part in question is not easily identifiable (and indeed even with the additional evidence available at the full hearing it was clear that the demarcation of the Corporation's actual lands posed a considerable problem).  It constituted a strip of land on the Clybaun Road frontage widening out into a roughly triangular shaped area at the junction of Clybaun Road and Kingston Road.  The size of this triangular shaped area was indicated by Junior Counsel for the Applicant, Mr Comerford, as being not large enough to accommodate a house but possibly large enough to accommodate a kiosk.  The development, as depicted on the site plan, on this part, which I will refer to as "the Corporation lands", would have comprised a planted and grassed area and about a dozen car parking spaces.  It is common case that that area was not and is not owned by the Developer.  It was, as I have said, owned by the Corporation, having earlier been acquired by Galway County Council for road widening purposes and having subsequently devolved to the Corporation in consequence of the alteration of the County Borough Boundary.  The evidence adduced by the Applicant is that the overall area of the development site is 3.9 acres, and that the Corporation land measures about .75 acres.  The evidence adduced by the Corporation is that overall the development site comprises 4.176 acres whereas the Corporation lands measure .58 acres.  It is not necessary for me to resolve this conflict of fact as to the exact areas of land concerned.  It is sufficient to say that the Corporation land formed a relatively small proportion of the lands in question and that in the main it consisted of a narrow strip, in some places as little as two feet wide. 

(c)	There was very considerable interest in the Galway area in the Developer's application.  The evidence adduced by the Corporation that over 300 parties made representations to the Corporation in respect of the proposed development. The Applicant, who lives in the area and who believes that the implementation of the development would adversely affect her quality of life and that of her family, sent a letter of objection to the proposed development to the Corporation in or around the late summer of 1996.  There were also a number of letters sent to the Corporation by other members of the Applicant's family both in their personal capacity and on behalf of the Old Clybaun Road Residents' Association.  A number of these letters, in particular letters from Mrs Mary O'Murchú, the Applicant's daughter, drew attention to the proposed use of Corporation land for the Developer and objected to such use, largely on the grounds that the land had been purchased by the rate-payers of Galway through the Compulsory Purchase Order and should not be handed over free for the advantage of a private developer.

(d)	The development site was located in an area zoned for residential use in the Corporation's Development Plan 1991.  It is common case that the proposed development constituted a material contravention of the Development Plan and that the Corporation could only grant permission for the development if the requirements of Section 26(3) of the Local Government (Planning and Development) Act 1963 were complied with.  This, inter alia, required the passing of a resolution by the elected members of the Corporation requiring that a decision to grant permission be made, the resolution being passed by not less than three quarters of the total number of members of the Corporation, fractions being disregarded.

(e)	On 2nd December, 1996 Mr O'Neill, the acting Assistant Town Clerk of Galway, wrote to the Developer in connection with his planning application in the following terms "I wish to refer to earlier discussions regarding the above.  I am to confirm that Galway Corporation have no objections to you including land owned by Galway Corporation for the purpose of submitting the planning application.  Please note that this does not confer any right or legal title to the lands in question, and in the event of the Corporation disposing of the lands, the disposal will be subject to approval of the City Council and to normal statutory and legal procedures."  It is common case that this letter was not put on the Corporation's planning file, which by law is required to be open for public inspection, until 11th June, 1997.  While the letter to the Developer post-dated the Developer's application by more than four months, Martina Moloney, the Assistant Town Clerk, avers in an Affidavit sworn by her on 24th November, 1997 that the Developer's application was made with the approval of the Corporation from the outset, to ensure that if a development took place it would incorporate the Corporation lands "in the interests of proper planning and development".  This is borne out by the Affidavit evidence by Mr Gus McCarthy (see (a) above).  

(f)	The resolution under Section 26(3) of the Act of 1963 came before the City Council on 9th December, 1996.  While the resolution was passed, it was not passed by the three quarters majority required by Section 26(3).  One member of the City Council, Margaret Cox, has sworn an Affidavit in these proceedings in which she avers that at no stage up to and including the 9th December, 1996 was she aware that the lands the subject matter of the application for planning permission included lands owned by the Coporation.  Documentary evidence submitted to this Court establishes that had Councillor Cox researched the planning file, which was available to her, she would have become aware at least of the fact that Corporation land was included, but it may well be that her attention was not drawn to that fact by Council officials.  

(g)	On 10th December, 1996 the City Manager made an order refusing the grant of permission on foot of the Developer's application and the reason ascribed for the refusal was that the proposal would contravene the zoning provisions of the Galway County Borough Development Plan 1991.  

(h)	On 9th January, 1997 the Developer lodged an appeal with the Board against the decision of the Corporation.  

(i)	In early February 1997 Messrs Kennedy Fitzgerald, the Solicitors now acting for the Applicant on this application, commenced a correspondence with the Board on behalf of the Knocknacarra Combined Traders' Association and its members, for whom Messrs Kennedy Fitzgerald were also acting.  This correspondence, which lasted until May 1997, dealt in the main with the question as to whether the Board would conduct an oral hearing on the Appeal, and is not relevant to the issues argued before this Court at the hearing of the Application.  In the event the Board did not hold an oral hearing.  

(j)	The decision of the Board on the Developer's Appeal was made on 25th June, 1997.  That is the decision which it is sought to quash on this application.  It was a decision to grant permission for the Development in accordance with the plans and particulars but subject to 20 specified conditions.  The reason ascribed for the decision was that it was considered that the proposed development, by reason of its size, location and design, represented a suitable commercial development within this rapidly expanding suburban area and, subject to compliance with the stipulated conditions, would be acceptable in terms of traffic safety and convenience, would not seriously injure the residential amenities of the area or otherwise be contrary to the proper planning and development of the area.  The Board's decision was broadly consistent with the recommendation of its Inspector, Robert Ryan, Senior Planning Inspector, as set out in his report to the Board of 20th June, 1997.  

(k)	At a meeting of the City Council held on 6th October, 1997 the elected members approved in principle the facilitation of the Developer's development of the entire development site including the Corporation lands in accordance with the planning permission of 25th June, 1997, along the lines outlined at in a letter dated 1st October, 1997 circulated by the City Manager to the elected members.  

(l)	The Applicant commenced her Judicial Review proceedings by originating statement dated 21st August, 1997.  Statements of Opposition were filed by the Board on the 9th February, 1998, by the Developer on the 30th January, 1998, and by the Corporation on the 6th March, 1998.  

SUBMISSIONS OF COUNSEL
	Senior Counsel for the Applicant, Dr Forde, submitted that the planning application made by the Developer on 12th June, 1996 was fundamentally flawed from the very outset in that the Developer stated on the planning application form simply that he was the "owner" of the land in question.  No reference whatever was made on the form to the fact part of the land was owned by Galway Corporation, nor was there any indication as to whether the Corporation was consenting to a planning application being made in respect of its land.  The required content of a planning application is set out in Article 18 of the Local Government (Planning and Development) Regulations 1994 (S.I. No 86 of 1994).  Under Article 18(1)(d) it is provided that "a planning application shall - give particulars of the interest in the land or structure held by the Applicant and, if the Applicant is not the owner, state the name and address of the owner."  Counsel submitted that this regulation is mandatory rather than directory in nature and he referred to Monaghan U.D.C. -v- Alf-a-Bet [1980] ILRM 64.  
	Dr Forde also referred to the decision of the Supreme Court in Frescati Estates Limited -v- Walker [1975] IR 177, and in particular to the passage in the Judgment of Henchy J. (at page 190) where the learned Judge stated ".... I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question".  Counsel submitted that, on its face, the Developer's application was by this standard invalid.  No indication that the Corporation was consenting to the application appeared on the Planning File (the only documentation open to the public) until 11th June, 1997, when Mr O'Neill's letter dated 2nd December, 1996 was placed on the file.  This post-dated the Corporation's decision on the application and only shortly pre-dated the Board's decision of the 25th June, 1997.
	Dr Forde stressed the importance of public knowledge of, and participation in, the planning process, referring to the well know dictum of the late learned McCarthy J. in Attorney General (McGarry) -v- Sligo County Council [1991] 1 IR 99 at 113 where he described a development plan as being "an environmental contract between the Planning Authority, the Council, and the community, embodying a promise by the Council that it will regulate private development in a manner consistent with the objective stated in the plan and further, that the Council itself shall not affect any development which contravenes the plan materially.  The private citizen, refused permission for development on such grounds based upon such objectives, may console himself that it will be the same for others during the currency of the plan, and that the Council will not shirk from enforcing these objectives on itself."  The lack of information on the planning file meant that both the public at large and at least some of the City Councillors had been unaware that Corporation land was included in the proposed development.  Had they been fully appraised of this he argued that in all likelihood there would have been a far greater public outcry, the Corporation would have voted overwhelmingly against the proposed development, and the Board would have refused permission or would have imposed other conditions in its grant.
	He also argued that in order to consent to a planning application affecting its own land, the Corporation would have to accept, or at least envisage, the possible success of the application.  This they could not properly do, since the proposed application was a material contravention of the 1991 Development Plan.  Under Section 39(2) of the Act of 1963 the Corporation was forbidden by statute from effecting any development which materially contravened the Development Plan.  Since to consent to the application amounted, in effect, to consenting to the carrying out of the proposed development, it was ultra vires the Corporation to consent to the Developer's application insofar as it affected Corporation land.
	Dr Forde also submitted that because the proposed development was a material contravention of the Development Plan any consent to the application would require the agreement of the elected members of the Corporation.  Even the consent of the Corporation's Chief Executive would not suffice.  Since the plan was an environmental social contract with the community, the elected members would be acting in breach of that contract if they purported to consent to the planning application being made.  
	Counsel for the Applicant was extremely critical of the course of conduct of the Corporation officials, suggesting that they were conniving with the Developer in deliberately concealing from the elected members of the Corporation and from the public the inclusion of Corporation land in the development.  He also submitted that it was unlikely that either Mr McCarthy or Mr O'Neill had the City Manager's authority to consent on behalf of the Corporation to the Developer's application and that such lack of authority would in itself vitiate the consent.
	Counsel for Corporation, Mr Gallagher, supported by Counsel for the Developer and for the Board, not unnaturally objected strongly to these allegations.  I do not find it necessary to deal with the details of this argument.  It is sufficient to say that whatever criticism one might make of the management of the Planning File in this case, there is no evidence whatever of any wrongful connivance between the Developer, Mr Joyce, or his agents and the officials of Galway Corporation.  Nor is there any evidence that either Mr McCarthy or Mr O'Neill lacked proper authority for their actions.  On the contrary the vast majority of the correspondence which referred inter alia to the Corporation lands which was carried on by members of the Applicant's family from October to December of 1996 was directed to Mr Gavin, the City Manager.  On 4th December, 1996 Mr Gavin wrote as follows to Mrs O'Murchú, the Applicant's daughter, "I refer to your letter of 27/11/96 in connection with the above proposal, and wish to confirm that Galway Corporation has consented to the submission of an application by Mr Joyce in respect of a site, part of which comprises land 	owned by Galway Corporation.  This does not confirm any legal right or title to the lands in question and in the event of Galway Corporation disposing of these lands, the disposal will be subject to the approval of the elected members of Galway City Council and to other statutory and legal procedures."  In the absence of any evidence to the contrary, and with this evidence before me, I must accept that Mr McCarthy and Mr O'Neill were acting with proper authority.  	
	In any event, an argument that the alleged lack of authority vitiated the Corporation's consent to the Developer's application does not form part of the grounds for Judicial Review permitted by the Order of Laffoy J. and therefore cannot be considered by this Court.  
	Senior Counsel for An Bord Pleanala, Mr Collins, emphasised that the Order sought to be quashed in these Judicial Review proceedings was the Order of the Board.  It was for the Applicant to show that the Order of the Board was null and void, not that there were infirmities in the planning procedures of the Corporation.  The Corporation, as Planning Authority, had made a decision to refuse planning permission and it was that decision which gave jurisdiction to the Board to adjudicate on the Appeal.  Prior infirmities - if such there were - in the procedures of the Corporation were irrelevant to the jurisdiction of the Board and the validity of its decision.  He relied on the Judgment of Costello J. (as he then was) in the High Court in O'Keeffe -v- An Bord Pleanala [1993] 1 IR 39 at page 52.  In that case the County Manager had granted planning permission for a radio mast contrary to the direction of the elected members of the County Council.  The Applicant, a local resident, appealed to An Bord Pleanala, who also granted permission.  In Judicial Review proceedings the Applicant claimed that the Board lacked jurisdiction because the decision of the County Manager was itself ultra vires.  The relevant section of Costello J.'s Judgment was not appealed and was not dealt with in the subsequent Judgment of the Supreme Court and therefore, stands as having authority.  
	The learned Judge quoted Section 26(5) of the Act of 1963 and then went on to state: 
	"I draw attention to the following features of this sub-section:- 
	(I)	The Board is required to determine the application as if it had been made to it in the first instance.  This means that it is determining the matter de novo and without regard to anything that had transpired before the Planning Authority.  
	(II)	The Board's decision, whatever it may be, has the legal effect of 		annulling the decision of the Planning Authority.

	Turning then to the facts of this case I observe that there has been, as there had been in The State (Abenglen Properties Limited) -v- Dublin Corporation [1984] IR 381 a 'decision' made by the County Manager, that is, a decision on the 19th November, 1987 under Section 26 of the Act of 1963 to grant permission.  I will assume that it 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 that I should construe this section as meaning that even though he may have acted ultra vires the decision is valid for the purposes of the appeal provisions of subsection 5 just as it is valid for the default provisions of subsection 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 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 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 (see P & F Sharp Limited -v- Dublin City and County Manager [1989] IR 701) 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.  There is no logical inconsistency in this conclusion for it would mean that as a matter of law (a) the County Manager's order did not confer permission to develop but (b) did enable the appeal machinery to be brought into operation - a result which seems to me to be a reasonable construction of the statute and to produce a sensible result." 	

	Mr Collins, in reliance on this Judgment, submitted that both any defect in the original application and any defect in the procedures of the Corporation were irrelevant.  The decision of the Corporation made on the 10th December, 1996 to refuse planning permission gave jurisdiction to the Board to adjudicate on the Developer's appeal.  The Board could not go behind the decision of the Planning Authority even to consider the validity of the original application.  The Board properly considered the matter in the light of planning and development criteria and its decision on these criteria was not challenged on grounds of unreasonableness (see Judgment of Supreme Court in O'Keeffe -v- An Bord Pleanala).  The Board's decision was therefore valid.
	Mr Collins also submitted that Counsel for the Applicant was incorrect in arguing that the Corporation's purported consent to a planning application in respect of its own land was tantamount, or virtually tantamount, to accepting that the permission should be granted, and that because the proposed development was a material contravention the consent of the Corporation was ultra vires.   He argued that there was a very clear distinction between consent to the making of a planning application and an implied agreement to the granting of the permission.  It was perfectly possible that a land owner might consent to his neighbour making an application for planning permission to develop, say, a group of town houses and apartments on their joint lands but subsequently refuse to sell his land to his neighbour for the purpose of carrying out the development - perhaps because the price was not right.  Consent to an application did not imply consent to the carrying out of the development.  This was clearly borne out by the facts in this case; the Corporation consented to the application but went on to refuse planning permission.  
	Thirdly, Mr Collins submitted that the Developer's original application showed substantial compliance with the regulations and that on the authorities the requirement to state ownership of or interest in the land was directory rather than mandatory.  He referred to a number of cases where quite substantial mis-statements as to the title to the relevant land had not been held to render an application for planning permission or the granting of planning permission invalid - e.g. State (Toft) -v- Galway Corporation [1981] ILRM 439, Marry -v- Connaughton (unreported) 25th January, 1984,  McCabe -v- Harding [1984] ILRM 105, Grange Developments -v- Dublin County Council [1987] ILRM 753, Molloy -v- Dublin County Council [1990] 1IR 96.  
	He argued that the Frescati case must be understood in the context of its own facts - the Respondent, Mrs Walker, had no connection whatsoever with the lands in question, would not have been able to carry out any development on them, and had applied for permission purely to prevent the development desired by owners of the land.  Henchy J. in his Judgment was concerned to prevent vexatious applications by complete outsiders.  This was clear from the paragraph prior to that quoted by Dr Forde (at page 190): 

	"To sum up, while the intention of the Act is that persons with no legal interest (such as would-be purchasers) may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word 'Applicant' in the relevant sections is not given a restricted connotation.  The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could reasonably be said to be required, in the interests of the common good, for proper planning and development."
	
	With regard to Monaghan U.D.C. -v- Alf-a-Bet, he submitted that this case could be clearly distinguished on the facts.  A change of use from a drapery shop to a betting shop and amusement arcade would have a clear and considerable impact on local residents and the townspeople in general; a fairly minor mis-description of ownership in a planning application (where in fact the map showed the correct situation) was not at all comparable in its effect. 
	It also could not be said that any non-compliance with Article 18(1)(d) of the 1994 regulations materially affected the proceedings before An Bord Pleanala or the right of the public to participate in those proceedings.  By the time the matter was appealed to the Board it was clear both that land owned by the Corporation was involved and that the Corporation had consented to its inclusion in the application.  
	Senior Counsel for the Corporation, Mr Gallagher, adopted the submission of Mr Collins.  He re-emphasised that the onus lay on the Applicant to establish that the decision of An Bord Pleanala was void.  He also pointed out that the granting of planning permission did not of itself enable a development to be carried out - see Section 26(11) of the Act of 1963.  In some cases licensing conditions would have to be fulfilled, in others questions of ancient lights or nuisance might arise.  In the instant case agreement would have to be reached between the Developer and the Corporation in regard to any conveyance or use of the Corporation's land.  
	With regard to the Developer's application he submitted that it must be looked at as a whole, as it consisted of all the documents required by Articles 18, 19 and 23 of the 1994 Regulations.  The fact that Coporation land was involved was clear from the map.  He acknowledged that the Developer's statement on the application form that he was "owner" of the lands was insufficient, but submitted that the Court should bear in mind the application as a whole, the area of the Corporation lands in proportion to the whole development and the fact that the location of the Corporation's lands meant that they were not in themselves useful for other than road-widening purposes.  The "de minimis" rule should be applied to the mis-description on the form.
	Mr Gallagher also handed into the Court a number of letters and documents which had been on the Planning File which was available for inspection by the public and which was also available to An Bord Pleanala.  Included in these documents were a number of letters from the Applicant's daughter and other members of her family, together with submissions from Residents' Associations and other objectors to the proposed development.  These documents demonstrated that at least a fair number of members of the public in the immediate locality were aware that the proposed development included land owned by the Corporation.  This documentation covered the period October to December, 1996.  It included a letter from the Applicant's daughter dated 27th November, 1996 addressed to the City Manager, together with the City Manager's reply dated 4th December 1996, which I have already quoted above.  Neither of these last letters were, in fact, placed on the Planning File.  The documents also included two submissions to An Bord Pleanala, one from the O'Murchú family and one from the Old Clybaun Road Residents' Association, both of which raise objections to the use of "Corporation land obtained by CPO in 1982".  
	Mr Gallagher also submitted that the actual development work which was proposed to be carried out on the Corporation's land (road widening, tree planting, car parking) would not in fact be a material contravention of the 1991 plan.
	Senior Counsel for the Developer, Mr Macken, adopted the submissions of Mr Collins and Mr Gallagher.  He submitted that, in the terms of the Frescati case and the other authorities there was sufficient interest on the part of the Developer and sufficient consent on the part of the Corporation.  He agreed with Mr Collins in making a clear distinction between a planning application and the granting of permission or the carrying out of the development.  Section 39(2) of the Act of 1963 provided that the Corporation should not "effect" a development which materially contravened the development plan.  Mr Macken argued that the mere consent to inclusion of land in an application was not "effecting" a development.  In the McGarry -v- Sligo County Council case the County Council was actually carrying out the impugned development.  There was no illegality in the action of the Corporation in the instant case.  Mr Macken also submitted that grounds (v) to (ix) inclusive of the application sought to cast doubt on the validity of the consent given by Galway Corporation to the inclusion of the lands in the application by the Developer for planning permission.  He pointed out that no relief was sought in the proceedings against Galway Corporation, that no order was sought in the instant proceedings in respect of the consent actually given and nor had any other proceedings been commenced seeking to quash the consent given.  In the circumstances he submitted that the Applicant was not entitled to seek to cast doubt on the validity of the consent.  In the absence of any proceedings seeking to quash the consent of the Corporation or any order of the Court quashing the consent, An Bord Pleanala was entitled to take the consent as having been validly given for the purpose of determining the appeal by Patrick Joyce against the decision of Galway Corporation to refuse permission for the proposed development.  Article 29 of the 1994 regulations specifically placed it within the remit and jurisdiction of a planning authority to determine whether an application for planning permission was valid and in compliance with the regulations.  In the absence of any legal challenge being made to a decision of the Planning Authority in this regard or any objection being made to it as to the validity of an application under appeal, An Bord Pleanala was entitled to and indeed obliged to treat the application as having been validly made.  
	In reply on behalf of the Applicant Mr Comerford accepted that An Bord Pleanala was bound by the Act of 1963 (Section 26(5)(b)) to "determine the application as if it had been made to the Board in the first place".  However, the same subsection specifically provided that "the provisions of subsections (1) and (2) of this section shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under this section of an application by a planning authority".  Section 26(1) provides that "where - (a) application is made to a planning authority in accordance with permission regulations for permission for the development of land or for an approval required by such regulations, and (b) any requirement relating to the application of or made under such regulations are complied with, 
the authority may decide to grant the permission or approval subject to or without conditions or to refuse it;"
	The regulations in question in the instant case were the 1994 Regulations.  The Developer's application of 12th July, 1996 was manifestly in breach of Article 18(1)(d) of those regulations, and it was not open to An Bord Pleanala to ignore the consequent invalidity of the application.  The regulations, he submitted, were mandatory in nature; in this context he referred to Ms Yvonne Scannell's work "Environmental and Planning Law in Ireland" at page 165 where the author states: 
	
	"Article 18(1)(c) of the 1994 Regulations provides that a planning application 	shall give particulars (including the location or address as appropriate) of the 	land or structure concerned.  Article 18(1)(d) requires the application to give 	particulars of the interest in such land or structure held by the Applicant and, 	if the Applicant is not the owner, to state the name and address of the owner. 
 
	It is clear from these sub-Articles that a valid application may be submitted by 	a person who is not the owner of the land.  However, if an Applicant is not the 	owner, he must give the name and address of the owner.  It is likely that this 	requirement is mandatory."
	 
	Mr Comerford adopted the opinion of the author and submitted that, due to the invalidity of the original application, the decision of the Corporation to refuse planning permission could not give jurisdiction to An Bord Pleanala to adjudicate on the appeal.  
	
CONCLUSIONS
	 The relief which is sought by the Applicant in these proceedings is the quashing of the decision made by An Bord Pleanala on the 25th June, 1997.  No relief is sought against either Galway Corporation or the Developer, Patrick Joyce.  
	The jurisdiction of An Bord Pleanala is governed by statute.  As has already bee pointed out Section 26(5) of the Act of 1963 provides that the Board 
	"shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the Planning Authority as from the time when it was given; and the provisions of subsections (1) and (2) of this section shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under this section of an application by a planning authority."

	Section 26(1), leaving aside the provisions already quoted in regard to the actual application, provides that in 
	"dealing with any such application the Planning Authority shall be restricted to considering the proper planning and development of the area of the Authority (including the preservation and improvement of the amenities thereof), regard being had to the provisions of the Development Plan, the provisions of any special amenity area order relating to the said area and the matters referred to in subsection (2) of this section."
Subsection (2) deals with the type of conditions which may be attached to the planning permission.  
	It is well established that this Court may not interfere with the decisions of the Board with regard to proper planning and development criteria unless the Applicant establishes that the Board had no relevant material before it to support its decision (see O'Keeffe -v- An Bord Pleanala [1993] 1IR 39).  No such suggestion is made by the Applicant in these proceedings.
	The grounds upon which the Applicant relies refer, in summary, to alleged defects in the Developer's original application for planning permission and to alleged defects in the planning procedure of the Corporation in this case.
	I will deal first with the question of infirmities in the planning procedure of the Corporation.  This matter has been dealt with in the Judgment of Costello J. in The High Court in O'Keeffe -v- An Bord Pleanala.  The relevant passage of the learned Costello J.'s Judgment has already been quoted above.  The conclusion which he reached was that "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."  This, it appears to me, is an authoritative statement of the law and I accordingly accept it.  Therefore, I must hold that the various infirmities which affected the Corporation's planning procedure in this case are irrelevant to the validity or otherwise of the Board's decision of the 25th June, 1997.  
	I do not, however, feel that the procedure adopted by the Corporation should pass entirely without comment.  I have already accepted that there is no evidence of either wrongful connivance or of officials acting without proper authority.  Nevertheless, the management of this application left much to be desired.  When the original application was received by the Corporation steps should have been taken under Article 29 of the 1994 Regulations to amend and clarify the information with regard to ownership of the property involved.  I accept on the evidence of Mr McCarthy that the consent of the Corporation to the planning application existed from the beginning, but that fact should have been made clear on the Planning File.  At the very least Mr O'Neill's letter of 2nd December, 1996 should have immediately been placed on the Planning File; to leave it until 11th June, 1997 to place this crucial letter on the Planning File was most undesirable.  The situation with regard to the land owned by the Corporation should have been made crystal clear to all elected members of the City Council prior to the vote on the 9th December, 1996.  I accept that material existed on the Planning File which made it clear that some of the land was in the ownership of the Corporation, but the lack of clarity about the situation was bound to create an impression that the planning officials were less than open with both the elected members and the general public.  As I have said however, the jurisdiction of An Bord Pleanala stems not from the procedure but from the actual decision of the Corporation and the refusal of planning permission on the 10th December, 1996.  
	There remains the question of the validity of the Developer's original application.  While the Judgment of Costello J. in the O'Keeffe case makes it clear that it is the decision of the Planning Authority that founds the jurisdiction of An Bord Pleanala, no question of the validity of the original application arose in that case, and I would not interpret the Judgment as meaning (as suggested by Mr Collins) that An Bord Pleanala could simply ignore a situation where the original planning application was clearly invalid.  I accept that the primary duty of vetting a planning application and ensuring that it is in accordance with the relevant regulations lies with the Planning Authority but one must ask whether An Bord Pleanala would have jurisdiction to adjudicate on an appeal where the application on its face was one which would be considered invalid under the criteria set out by the Supreme Court in the Frescati case?  Surely the answer must be no, particularly bearing in mind the cross reference from Section 26(5) to Section 26 (1) of the Act of 1963.  It seems to me, therefore, that I should consider the validity or otherwise of the Developer's original planning application.  This may be looked at firstly in the context of the criteria established in Frescati -v- Walker and secondly in the context of the 1994 Regulations.  
	The Judgment of the Supreme Court in the Frescati case should, in common with other Judgments, be looked at in the context of its own facts.  This was recently stressed by Keane J. in the Supreme Court of the case of Keane -v- An Bord Pleanala and Ors (unreported 22nd April, 1998) - the Loran C mast case.  The learned Keane J. at page 9 of his Judgment stated: 
	
	"The decision in Frescati Estates Limited -v- Walker, which was referred to in the arguments, must be understood in the context of its particular facts.  The Plaintiffs had been refused permission for a development which would have involved the demolition of an historic building and had applied to the Planning Authority for compensation.  That body sought to avoid a liability for such compensation by giving an undertaking that they would grant permission for a development of the type contemplated, subject to conditions.  The Defendant, who was a member of a conservation body objecting to the demolition of the building, applied for outline permission for a development which would have involved the retention of the building.  This was done solely as a tactical manoeuvre in the hope that, if such permission was granted by the Planning Authority (as it was), the Plaintiffs could be restrained from carrying out another inconsistent development.  The Plaintiffs then instituted proceedings claiming an injunction restraining the Defendant from proceeding with her application and directing that it should be withdrawn.  Although it was found in the High Court that the Defendant had no intention or hope of acquiring any estate of any kind in the property or of developing it, it was also held that the application was lawful since the legislation did not require her to have any estate or interest in the land.  A different view was, however, taken in this Court.
	In the course of his Judgment, Henchy J. (with whom the other members of the Court agreed) drew attention to the consequences which could flow from a finding that a person with no legal estate or interest in a particular property could obtain a planning permission.  Under Section 9 of the principle Act, the occupier of the property could be required to furnish certain information to the Planning Authority and would be guilty of a criminal offence if he failed to comply with the relevant notice.  Furthermore, Section 83 enabled an authorised person to enter on land 'for any purpose connected with the (principal) Act'.  In connection with the latter provision, the learned Judge added 'if the (principal) Act had to be read as allowing that degree of intrusion at the behest of any individual who chooses to make a development application in respect of another person's property, the constitutionality of the statute would be very much in question.'
	These, and other considerations, led Henchy J. to the following conclusion 'To sum up, while the intention of the Act is that persons with no legal interest (such as would-be purchasers) may apply for development permission, the operation of the Act within the scope of its objects and the limits of constitutional requirements would be exceeded if the word 'Applicant' in the relevant section is not given a restricted connotation.  The extent of that restriction must be determined by the need to avoid unnecessary or vexatious applications, with consequent intrusions into property rights and demands on the statutory functions of planning authorities beyond what could be reasonably be said to be required, in the interest of the common good, for proper planning and development.  
	Applying that criterion, I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development, as relates to the property in question.  There will thus be sufficient privity between the Applicant (if he is not a person entitled) and the person entitled to enable the Applicant to be treated, for practical purposes, as a person entitled.'    
	It may be that the ratio of this decision is to be found in the first paragraph of this passage and that the second paragraph, to the extent that it suggests that an application for planning permission can only be made by or with the consent of a person entitled to a legal estate or interest sufficient to enable him to carry out the proposed development, should properly be regarded as obiter.  One could readily envisage circumstances in which an application could be made by some other person which could not possibly be described as either 'unnecessary' or 'vexatious'.  In the context of the present case, however, it is sufficient to say that the principle apparently laid down in Frescati Estates Limited -v- Walker must be strictly confined to cases in which the application is not made by or with the approval of a person who has legal estate or interest in the relevant property sufficient to enable him to carry out the proposed development."

	On the facts of the present case I consider that the Developer had, within the parameters of Frescati, sufficient interest in the property to make a valid application.  Given that I accept the evidence of Mr McCarthy, I consider that he also had sufficient consent.  The application therefore, is not rendered invalid under the criteria set out in the Frescati Judgment.  
	I now turn to the question of the 1994 Regulations.  Counsel for the Applicants submits that these regulations are mandatory and it is common case that the Developer is mis-described as "owner" in the application form.  In this context I am referred to the opinion of Ms Scannell in her work on environmental and planning law.  Counsel for the various Respondents submit that the regulations are directory rather than mandatory and that other documents included in the application clarify the situation.  Mr Collins in particular referred to a considerable number of cases where errors as to title in the planning application were held not to invalidate either the application or the subsequent planning permission.	
	It must be acknowledged that at a later stage in Ms Scannell's discussion of the question she gives example of case law which would indicate that the position is not entirely clear.  While in State (Finglas Industrial Estates) -v- Dublin County Council (Supreme Court unreported 17th February, 1983) the Supreme Court stated obiter that an unincorporated company could not validly submit a planning application, in Inver Resources Limited -v- Limerick Corporation [1987] IR159 Barron J. in the High Court upheld an application made by (and the permission granted to) an unincorporated company, taking the view that the Corporation knew that it was dealing with an application from a real person and that no harm had been done in the circumstances of that case.  In State (NCE) -v- Dublin County Council (Supreme Court unreported 14th May, 1980) the Supreme Court held that an application by a company using the name of an associate company was invalid when it was a ruse to mislead the public.  But in Thomas McDonagh -v- Galway Corporation (Supreme Court unreported 17th May, 1993) the Supreme Court excused an unintentional mis-statement attributing ownership to an associate company of the real owner since it did not have the effect of misleading anyone and could not possibly have been in any way to the disadvantage of either the Planning Authority or the public. 
	What appears to emerge from these cases - and indeed from the other cases quoted by Mr Collins - is that minor infringements of the regulations will not be fatal to the validity of the application provided the error does not deliberately mislead the public or work to the disadvantage of the Planning Authority or the public.  
	One of the most relevant cases is that of McCabe -v- Harding Investments Limited [1984] ILRM 105.  In that case the developer had not adhered to the terms of the original planning permission for an office block.  He then submitted a fresh planning application seeking permission to authorise what was being constructed.  Such permission was granted, and was later upheld by An Bord Pleanala.  In the application the developer had failed to comply with the requirements of the 1977 Planning Regulations in that it incorrectly stated its title to the site as being freehold.  The Plaintiff sought a declaration that the purported grant of planning permission was null and void.  The Supreme Court held that even if the description given of the Defendant's title lacked accuracy or particularity it was so insignificant and trivial as to be ignored.  In his Judgment (at page 109) O'Higgins C.J. considered the planning application form (which was similar to the form in the instant case insofar as relevant) and deduced that "it would appear that what the Planning Authority seek is a general idea of the Applicant's interest or estate in the lands and not a precise legal definition of what it is.  The concern of the Planning Authority is that the Applicant should have an interest in the lands sought to be developed."
	Henchy J. in his Judgment was critical of the developers but concluded that the mis-statement in the application must be over-looked.  He stated (at page 112): 

	"The techniques adopted by Harding Investments Limited, uncommendable though they were, proved successful.  On 25th June, 1981 Dublin Corporation granted them a planning permission for the office block which had been somewhat illegally built and, although a local Residents' Association appealed against that permission, An Bord Pleanala re-granted the permission on 10th November, 1981 with some slight variation of the conditions.  In those circumstances, even if the Court were to hold that permission to be bad for being based on a bad application, it is safe to assume that if Harding Investments Limited were to lodge a fresh application, the same or similar permission would issue.  Because of the planning permissions that have been granted, this office block must be treated as an accomplished fact in the eyes of the law.  While the statement in the planning application of 6th April, 1981 that Harding Investments Limited then had the freehold was not strictly correct, they had acquired it both when Dublin Corporation granted planning permission on 25th June, 1981 and when An Bord Pleanala granted that permission in a slightly varied form on 10th November, 1981.  Considering that both Dublin Corporation and An Bord Pleanala were prepared to overlook the questionable methods whereby Harding Investments Limited were able to apply for planning permission for a somewhat illegally erected building, I agree with Hamilton J. in his conclusion that the false statement in the planning application that the developers then had the freehold must be overlooked, particularly as we know that they acquired the freehold some seven weeks after making the application and before the application was dealt with."

	In the instant case the description "owner" was incorrect in that it did not cover all of the lands involved.  However, the accompanying map somewhat clarified the situation.  There is no evidence that the Developer himself wished deliberately to mislead the public, and the Corporation were at all times aware of the true situation.  By the time the appeal documentation reached An Bord Pleanala the inclusion of the Corporation land was clear and the consent of the Corporation was available on the Planning File.  On the authorities I consider that exact compliance with Article 18(1)(d) is not required in all cases, and I do not consider that the decision of An Bord Pleanala is rendered invalid by the mis-description contained in the planning application form.  
	In addition, the remedy of Certiorari is discretionary.  As was pointed out by the learned Henchy J. in the McCabe case, it would be open to the developer, if the Applicant succeeds in her proceedings, to lodge a fresh application, and there is no reason to suppose that, even if he failed at the Planning Authority stage, he would not again succeed on appeal to An Bord Pleanala.  This would involve very considerable delay and expense, without any ultimate gain to the Applicant and her fellow objectors.  Thus considerations of discretion would also weigh against a decision to quash the determination of An Bord Pleanala made on the 25th June, 1997.
	I would, therefore, refuse the Applicant the relief sought.