Blessington & District Community Council Ltd v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 01 January 1997
• Neutral Citation: 1996 WJSC-HC 2721
• Docket Number: [1996 No. 145 J.R.]
• Court: High Court
• Date: 01 January 1997

1996 WJSC-HC 2721

THE HIGH COURT

No. 145 J.R./1996

BLESSINGTON & DISTRICT COMMUNITY CO LTD v. WICKLOW CO COUNCIL

BETWEEN

BLESSINGTON & DISTRICT COMMUNITY COUNCILLIMITED

APPLICANT

AND

WICKLOW COUNTY COUNCIL

RESPONDENT

AND

AOSOG CENTRES LIMITED, IRELAND AND THE ATTORNEYGENERAL

NOTICE PARTIES

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 ILRM 1

SCOTT V BORD PLEANALA 1995 1 ILRM 424

O'DOWD V NORTH WESTERN HEALTH BOARD 1983 ILRM 186

MURPHY V GREENE 1990 2 IR 566

MACNAMARA V BORD PLEANALA 1995 2 ILRM 125

MULHALL V BORD PLEANALA (IRISH TIMES LAW REPORT 10.6.96)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 14

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 15

MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1

TOFT, STATE V GALWAY CORPORATION 1981 ILRM 439

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S8

LOCAL GOVT (PLANNING & DEVELOPMENT) (EXEMPTED DEVELOPMENT & AMDT) REGS 1984

CUNNINGHAM V BORD PLEANALA UNREP LAVAN 3.5.90 1992/1/160

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 PARA 47

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 23

Synopsis:

JUDICIAL REVIEW

Leave to apply

Applicant - Proofs - Evidence - Quantum - Planning decision - Validity - Challenge - Substantial grounds to be established by applicant - Various minor blemishes not fatal - Local Government (Planning and Development) Act, 1963 (No. 28), s. 82 - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19 - (1996/145 JR - Kelly J. 19/7/96) [1997] 1 IR 273

|Blessington & District Community Council Ltd. v. Wicklow County

Council|

PLANNING

Permission

Validity - Challenge - Review - Condition - Substantal grounds required for judicial review - Various minor mishaps insufficient - (1996/145 JR - Kelly J. - 19/7/96) [1997] 1 IR 273

|Blessington & District Community Council Ltd. v. Wicklow County Council|

1 Judgment of Mr. Justice Kellydelivered the 19th day of July, 1996

2 The Applicant is a company limited by guarantee which has as its principal objects the promotion of the cultural, environmental and economic well-being of the community that lives in the Blessington area of County Wicklow. In these proceedings, it seeks leave to apply for judicial review of a decision of Wicklow County Council dated the 22nd March, 1995 to grant planning permission to the first Notice Party, Aosog Centres Limited (Aosog). That permission authorised Aosog to demolish and reconstruct with enhanced facilities an existing outdoor youth centre at Laurel Lodge, Ballyknockan, County Wicklow. Aosog is also a company limited by guarantee and is a registered charity having as its principal objects, inter alia, the provision of facilities for youth work, education and training including the establishment of outdoor adventure centres.

3 This application was commenced by motion dated the 29th April,1996.

4 It is immediately obvious that the application is far outside the two month period prescribed by statute for the commencement of judicial review proceedings which seek to quash a planning permission. (See Section 19 of the Local Government (Planning & Development) Act, 1992).

5 That two month period is a rigid one and is not capable of enlargement by this or any other Court. As was said by Finlay C.J. is K.S.K. Enterprises Ltd, -v- An Bord Pleanala,( 1994 2 I.L.R.M. at 1):-

"The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested to (sic) the Court to extend the time."

6 Later in the same judgment, he considered what the intent of the legislature was in imposing this time limit and certain other restrictions on judicial review. He said:-

"... It is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should at a very short interval after the date of such decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision."

7 The limitation difficulty was recognised by the Applicant at the time that it commenced these proceedings. It seeks to surmount it, however, by seeking a declaration that the relevant statutory provisions which impose the time bar are repugnant to the Constitution.

8 Although the relief concerning the constitutionality of the statute is the first one prayed for, it is clear that it only arises for consideration if I am satisfied that the Applicant has, in the words of the same section 19, "substantial grounds" for contending that the decision is invalid or ought to be quashed. If I am so satisfied, then I must next consider whether the Applicant has made out a sufficient case to be permitted to apply for the declaratory relief concerning the constitutionality of the limitation provision. If the Applicant does not establish "substantial grounds", it will not have locus standi to raise the constitutional issue. In this regard, it is to be noted that the complaint of unconstitutionality is based upon the failure of the limitation provision to contain a saver clause whereby aggrieved parties, who are the victims of misrepresentation, fraud, equitable fraud, or mistake can, notwithstanding the expiry of the two month limitation, nonetheless seek to impugn the validity of a planning permission. I will return to this contention later in thejudgment.

9 I will now consider the non-constitutional complaints which are made by the Applicant with a view to ascertaining whether or not it has made out "substantial grounds for contending that the decision is invalid or ought to be quashed".

10 Before considering each of the complaints in detail, it is desirable that I should make reference to the jurisprudence which has built up on the construction to be given to the phrase quoted in the preceding paragraph which is taken directly from the relevant provisions of Section 19 of the Local Government (Planning & Development) Act, 1992.

11 In Scott & Others -v- An Bord Pleanala &Others. ( 1995 1 I.L.R.M. 424 at 428), Egan J. speaking for the Supreme Court posed himself the question:-

"What meaning should be given to the word"substantial"?"

12 He answered it as follows:-

"I gain little assistance from the views expressed by various Judges in O'Dowd -v- North Western Health Board . ( 1983 I.L.R.M 186) and Murphy -v- Greene. ( 1990 2 I.R. 566) as they were dealing in the main with allegations of factual matters whereas the present case is concerned with a contention of law. I fall back on a word which is so often used as a test in legal matters. It is the word "reasonable" and I suggest, therefore, that the words "substantial grounds"require that the grounds must be reasonable."

13 The matter fell for consideration in this Court before Carroll J. in MacNamara -v- An Bord Pleanala, ( 1995 2 I.L.R.M. 125 at 130). In that case, having quoted the passage from the judgment of Egan J. in Scott's case, Carroll J. said the following:-

"What I have to consider is whether any of the grounds advanced by the Appellant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are"substantial"."

14 Most recently in Mulhall -v- An Bord Pleanala(Irish Times Law Report, 10th June, 1996), McCracken J. cited with approval and followed the views expressed by Carroll J. in MacNamara'scase.

15 I am bound to follow the decision of the Supreme Court which I believe to have been correctly interpreted and applied by Carroll and McCracken JJ., in the two subsequent cases which I have cited, I therefore approach the case made by the Applicant in the light of these judicial interpretations of the provisions of Section 19 of the Act.

16 There are a number of grounds advanced by the Applicant and I will consider each in turn.

GROUND NO. 1

17 On the 2nd March, 1994 Aosog made an application to Wicklow County Council for permission to rebuild an existing house to a new plan for an outdoor youth centre and to replace a substandard septic tank with a new tank and peat filtration system. This application was governed by the provisions of the Local Government (Planning & Development) Regulations of 1977. Under Article 14, there was an obligation upon Aosog to publish notice of its intention to make such an application either in a newspaper circulating in the district in which the relevant land or structure was situate, or by the erection or fixing of a notice on the land or structure. Article 15 provided that a notice published in a newspaper should contain, as a heading, the name of the city, town or county in which the land or structure was situate and shouldstate:-

18 a "(a) the name of the Applicant,

19 (b) the location of the land or the address of the structure to which the application relates (as may be appropriate),

20 (c) the nature and extent of the development,

21 (d) where the application relates to the retention of a structure, the nature of the proposed use of the structure and the period of the proposed retention, or

22 (e) where the application relates to the continuance of any use the nature of such use."

23 Aosog caused to be published in the...