Brady v Donegal County Council

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-SC 1808
• Court: Supreme Court
• Date: 01 January 1989

1988 WJSC-SC 1808

THE SUPREME COURT

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

358/87

BRADY & ORS v. DONEGAL CO COUNCIL

WALTER BRADY AND ORS.

Plaintiffs/

Respondents

and

THE COUNTY COUNCIL OF THE COUNTY OF DONEGAL AND ANNABOYLE

Defendants

and

THE ATTORNEY GENERAL

Notice Party/

Appellant

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(a)

RSC O.60 r1

BRADY V DONEGAL CO COUNCIL UNREP COSTELLO 06.11.87

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S42

CRODAUN HOMES LTD V KILDARE CO COUNCIL 1983 ILRM 1

MURPHY V ROCHE & ORS 1987 IR 106

CAHILL V SUTTON 1980 IR 269

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

Synopsis:

SUPREME COURT

Jurisdiction

Appeal - Exercise - Condition precedent - Facts - Establishment by court of trial - Validity of enactment impugned by plaintiff - Plaintiff's ~locus standi~ - Plaintiff's status to impugn enactment dependent on particular fact - Enactment declared invalid by High Court - Essential fact not determined by High Court - Appeal by defendant - Procedure - Appeal allowed and action remitted to High Court for retrial - The plaintiff sought in the High Court a declaration that a certain planning permission granted by the defendant planning authority for a particular development was invalid by reason of the fact that the notice of the developer's application for that permission had been published in the "Derry Journal" which was not a newspaper circulating in the area of the development - The second defendant, who was the developer, pleaded that the plaintiff's claim was barred by s. 82, sub-s. 3A, of the Act of 1963 - The plaintiff replied that, if his claim was statute barred as alleged, the enactment was invalid having regard to the provisions of the Constitution since the plaintiff had no opportunity to challenge the defendants" planning permission within the period allowed by the enactment - The trial judge held that there was prima facie evidence of the fact that the said newspaper did not circulate in the area of the development and he declared (6/11/87) the provisions of the enactment invalid having regard to the provisions of the Constitution - The Attorney General, who was made a notice party, appealed against the order of the High Court and submitted that the plaintiff lacked ~locus standi~ to maintain his claim and that the High Court lacked jurisdiction to declare the enactment invalid since there had been no determination of the area of circulation of the "Derry Journal" - That submission was not made in the High Court - In addition, the Attorney General at the hearing of the appeal contended, for the first time, that the plaintiff's claim was not a property right within the meaning of Article 40.3.2. of the Constitution - Held that the affidavits of the parties, filed in relation to interlocutory motions, had been used at the trial of the constitutional issue by consent of the parties - Held that, although those affidavits contained prima facie evidence for and against the respective contentions of the plaintiff and the second defendant in relation to the area in which the "Derry Journal" circulated, there had been no determination by the trial judge of the essential issue concerning that area - Held that it was a fundamental principle in exercising the appellate jurisdiction of the Supreme Court that the Court does not decide issues which have not been raised and decided in the court of trial - Held, nevertheless, that, since the validity of an enactment of the Oireachtas had been impugned, the Court would determine whether or not the plaintiff had ~locus standi~ to challenge the validity of the enactment in the absence of a finding that the said newspaper did not circulate within the area of the development - Held that the plaintiff had no ~locus standi~ to challenge the validity of the enactment until it had been established that the said newspaper did not circulate in that area - Held, therefore, that the appeal would be allowed, the judgment and order of the High Court set aside, and the plaintiff's action would be remitted to the High Court for a retrial: ~Cahill v. Sutton~ [1980] I.R. 269 and ~Murphy v. Roche~ [1987] I.R. 106 considered - Local Government (Planning & Development) Act, 1963, s. 82 - (358/87 - Supreme Court - 13/10/88) - [1989] ILRM 282

|Brady v. Donegal County Council|

1 JUDGMENT delivered on the 13th day of October 1988by FINLAY C.J. [NEM DISS]

2 This is an appeal brought by the Attorney General as Notice Party against an Order of the High Court dated the 6th November 1987 wherein upon the trial of an issue it was declared that subsection (3 A) of section 82 of the Local Government (Planning and Development) 1963("the Act of 1963") was invalid, having regard to the provisions of the Constitution.

The Proceedings

3 By plenary summons issued on the 8th May 1986 the Plaintiffs sought against the Defendants a declaration that no valid planning permission exists in respect of certain lands the property of the Defendant Anna Boyle situate a Kill, Dunfanaghy, County Donegal, for the development of a caravan park or for any other development. The Plaintiffs also claimed certain consequential injunctions and damages.

4 The Defendants, the Donegal County Council, had on the 10th December 1985 purported to decide to grant planning permission to the Defendant Anna Boyle for the development of a caravan park on these lands and had purported to make the actual grant of such permission on the 10th January 1986.

5 The Plaintiffs" claim was based on an allegation that this purported decision and grant were both invalid because the Defendant Anna Boyle in applying for planning permission had given notice of her application only by inserting an advertisement in an edition of anewspaperentitled the "Derry Journal" which did not circulate in the district in which the lands are situate. It is alleged that the Plaintiffs, all of whom own houses adjoining the Defendant's lands did not as a consequence of this inadequate notice become aware of the granting of permission until well after it had occurred.

6 The Plaintiffs applied for an interlocutory injunction and filed affidavits in support of that application. The Defendant Anna Boyle filed affidavits in opposition. It would appear that at that time or shortly thereafter the proceedings against the Defendants the...