O Brien v Dun Laoghaire Rathdown County Council

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 01 June 2006
• Neutral Citation: [2006] IEHC 177
• Docket Number: [No. 138 JR/2004]
• Court: High Court
• Date: 01 June 2006

O'BRIEN v DUN LAOGHAIRE/RATHDOWN CO COUNCIL

JUDICIAL REVIEW

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000 AND IN THE

MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

SHIRLEY O'BRIEN

APPLICANT

AND

DUN LAOGHAIRE RATHDOWN COUNTY COUNCIL

RESPONDENT

And

FRANCIS SEARSON, GERALDINE SEARSON AND AN BORD PLEANÁLA

NOTICE PARTIES

[2006] IEHC 177

[No. 138 JR/2004]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Substantial interest

Planning permission - Demolition of protected structure - Exceptional circumstance - Member of An Taisce - Substantial ground established - Planning and Development Act 2000 (No 30), s 57(10)(b) -Leave refused (2004/138JR - O'Neill -1/6/2006) [2006] IEHC 177 O'Brien v Dun Laoghaire-Rathdown County Council

PLANNING & DEVELOPMENT ACT 2000 S50

LANCEFORT LTD v AN BORD PLEANALA (NO 2) 1999 2 IR 270

HARRINGTON v AN BORD PLEANALA UNREP MACKEN 26.7.2005 2005/29/5927

MCNAMARA v AN BORD PLEANALA 1995 2 ILRM 125

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT UNREP GEOGHEGAN 2.7.1999 1999/14/3977

KENNY v AN BORD PLEANALA (NO 1) 2001 1 IR 565

PLANNING & DEVELOPMENT ACT 2000 S57(10)(B)

PLANNING & DEVELOPMENT ACT 2000 S34(6)

PLANNING & DEVELOPMENT ACT 2000 S57(10)

PLANNING & DEVELOPMENT ACT 2000 S2

PLANNING & DEVELOPMENT ACT 2000 S50(4)(C)(II)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(C)(I)

PLANNING & DEVELOPMENT ACT 2000 S37(1)(A)

PLANNING & DEVELOPMENT ACT 2000 S37(6)

O'Neill J.

1 In these proceedings the applicant by a notice of motion seeks leave to apply, pursuant to s. 50 of the Planning and Development Act,2000, for judicial review of a decision of the respondent as Planning Application under Register Reference No. D03A/1038, whereby the respondent granted permission for:

"…demolition of existing buildings and the reinstatement of the original mews/coach house buildings and construct the following; the basement for use as wine storage vaults, extensions to the front and rear of the original mews buildings to contain two retailing units at ground floor level and two-bedroom apartments at first floor level with parking for two no. cars. Part of this development is within the curtilage of No. 6 Longford Terrace, a protected structure."

2 The applicant is by occupation an engineer and resides in a top floor flat at 15 Longford Terrace Monkstown in the County of Dublin. At paragraph 4 of her grounding affidavit she avers that she is a member of An Taisce and has been so for about three years and that she is a member of the Dun Laoghaire Association of An Taisce and an active member of the Planning Committee of the Dun Laoghaire Rathdown (East) Branch of An Taisce.

3 The respondents are the planning authority which granted the permission sought to be challenged in these proceedings. The first and second named notice parties were the applicants for the planning permission and the owners of the two mews premises at 6A and 7A Monkstown Crescent, the site of the proposed development. These premises consist of two mews buildings which in recent times have been used commercially, one as a retail wine shop and the other, though vacant for some time, as an outlet for supplying kitchens. The first named notice party has conducted for many years a now well established business in the wine retail trade from this premises and the primary objective of the development now proposed is to provide a basement or underground level wine cellar to service the demands of his business. This cellar would extend under what is now the two mews buildings. Ancillary to that purpose but nonetheless an important and indeed integral part of the development is the re-construction of the retail units and also two, 2 bed roomed residential apartments.

4 Whilst An Taisce were objectors to the grant of the planning permission, the applicant in this case did not in her personal capacity object to or make observations in relation to the planning application because her objections were expressed by the An Taisce objection.

5 Before the applicant can be given leave to apply for judicial review as sought, she must comply with the provisions of s. 50 of the Planning and Development Act,2000 and as a number of the provisions in this section are relevant to the issues that arise on this application it is well to set out the relevant parts of this section which are as follows:

"50(2) A person shall not question the validity of -"

(a) a decision of a planning authority -

(i) on an application for a permission under this Part, or

…

6 (b) a decision of the Board -

7 (i) on any appeal or referral

…

8 otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) ("the Order")…

9 a 4) (a) (i) Subject to subparagraph (iii), application for leave to apply

10 for judicial review under the Order in respect of a decision referred to in paragraph (a) (i) or (b) (i) of subsection (2), shall be made within the period of 8 weeks commencing on the date of the decision of the planning authority or the Board, as the case may be.

11 .....

12 (iii) The High Court shall not extend the period referred to in subparagraph (i) or (ii) unless it considers that there is good and sufficient reason for doing so.

13 (b) An application for leave to apply for judicial review shall be made by motion, on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) —

14 (i) If the application relates to a decision referred to in paragraph (a) of subsection (2), to the planning authority concerned and, with regard to a decision on an application for permission under this Part, to the applicant for the permission where he or she is not the applicant for leave

15 .....

16 and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.

17 (c) Without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that —

18 (i) the applicant-

19 (I) in the case of a decision of a planning authority on an application for permission under this Part, was an applicant for permission or is a prescribed body or other person who made submissions or observations in relation to the proposed development,

20 ....

or

21 (ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be.

22 (d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest…".

23 Thus the applicant in order to get leave must demonstrate firstly that there are substantial grounds for contending that the planning permission challenged is invalid; secondly that the applicant has a substantial interest in the matter which is the subject of that application, and thirdly that there are demonstrated good and sufficient reasons for the applicant not having made objections, submissions or observations in relation to the planning application. Finally, even if the applicant fails to demonstrate a substantial interest or good and sufficient reason for not having made objections submissions or observations in the planning application, it remains residually to consider whether the grounds for contending that the decision is invalid establish a clear breach of the law or abuse in the discharge of its responsibilities as a planning authority, on the part of the respondent, such that the matter so revealed should not be sheltered from judicial scrutiny, as was envisaged by Keane J. as he then was in the case ofLanceford Ltd. v. An Bord Pleanála (No. 2) [1999] 2 I.R. at 270, and likewise as discussed in the judgment of Macken J. in the case of Harrington v. An Bord Pleanála, Unreported, High Court 26th July, 2005.

24 I propose to deal with the issues that arise in this application in the order set out above.

25 The test to establish that the threshold of"substantial" is reached in regard to the grounds put forward has been discussed in a number of cases. In McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. Carroll J. held that "substantial grounds" meant:

"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 in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are "substantial". A ground that does not stand any chance of being sustained (for example where the point for being decided in another case could not be said to be substantial). I draw a distinction between the grounds and the arguments put forward in support of these grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined to this argument, at the next stage, to those which I believe may have some merit."

26 Geoghegan J. in the case ofJackson Way Properties Ltd. v. The Minister for the Environment, (Unreported, July 2nd 1999 said the following:

"I am satisfied that it was clearly intended by the Oireachtas that stricter criteria be applied to the granting of leave than would be applied on an ex parte application in an ordinary judicial review. Once a court has established that the point at issue...