Cavern Systems Dublin Ltd v Clontarf Residents Association

JurisdictionIreland
CourtHigh Court
JudgeJustice Costello
Judgment Date01 January 1984
Neutral Citation1983 WJSC-HC 74
Docket NumberNo.9712p/87
Date01 January 1984

1983 WJSC-HC 74

THE HIGH COURT

No.9712p/87
CAVERN SYSTEMS v. CORPORATION OF DUBLIN
CAVERN SYSTEMS DUBLIN LTD.
-v-
CLONTARF RESIDENTS ASSOCIATION AND THB DUBLIN CORPORATION

Subject Headings:

HIGH COURT: jurisdiction

PRACTICE: procedure; procedure

1

Justice Costello delivered on the 28th, day of February, 1983 .Mary P O'Donoghue Registrar

2

Cavern Systems Dublin Ltd ("the developers") applied to the Dublin Corporation for permission to construct an underground storage and handling facility incorporating caverns, above ground installations and pipelines for Liquid Petroleum Gas storage at Tolka Road Extension, Dublin. On the 28th July, 1982 the Corporation notified the developers off its intention to grant a planning permission in respect of the proposed development. The Clontarf Residents Association Ltd were dissatisfied with this decision and by letter of the 12th August they appealed to An Bord Pleanala on the grounds that the proposed development

"is contrary to proper and orderly planning, it will have a detrimental effect on the environmental, ecological and amenity aspects of the area and constitute a major hazard in a densely populated area"

3

and they requested that the appeal be conducted by way of oral hearing. An Bord Pleanala appointed three inspectors to hear the appeal; a preliminary hearing was held on 28th January, 1983; and the hearing of the appeal got under way on the morning of the 22nd February. At its commencement Counsel for the Residents Association (who are the Plaintiffs in the action before this Court and to whom I will hereinafter refer to. as "the Plaintiffs") informed the inspectors that the Plaintiffs were participating in the appeal "without prejudice". A transcript of a short-hand note of the hearing has been put in evidence and its accuracy has not been questioned. Counsel for the Plaintiffs was pressed, after the luncheon adjournment to explain what he meant by stating that he was appearing "without prejudice" and after some vigorous cross-questioning by Counsel appearing for other parties represented at the hearing he eventually disclosed that the Plaintiffs had instituted proceedings in the High Court which challenged the validity of the Corporations decision. Further questioning elicited the date on which the summons was issued (the 23rd September, 1982) and its record number, and an admission that it had not been served, Counsel declined to give the basis for the relief claimed in the proceedings, and eventually handed over a copy of the Plenary Summons but indicated that in doing so he was not to be taken as having served it.

4

The Summons named the developers and the Corporation as Defendants to the claim, and on the 22nd February both issued notices of motion to stay or dismiss the proceedings. I abridged the time for serving the motions and adjourned their hearing until the following day. On the 23rd February, the Plaintiffs filed an affidavit in reply and after hearing legal argument I reserved my judgment to todayÆs date.

5

The Defendants motions ask (a) that the proceedings be stayed for want of prosecution, but this claim is clearly unsustainable as the Summons has not yet been served; (b) that the proceedings be dismissed pursuant to Order 19 Rules 27 and 28, but the Court's jurisdiction under this Rule arises only when it can be shown from the pleadings themselves that the proceedings are vexatious or frivolous (see McCabe -v- Harding.Investments Ltd; Supreme Court, unreported, 27th October," 1982; Barry -v- Buckley 1981 I.R. 306) and this is clearly not the situation in the present case; (c) that pursuant to its inherent jurisdiction the Court should dismiss: the proceedings because they are an abuse of process of the Courts. That the Courts have the jurisdiction referred to in the Defendants notices of motion is incontrovertible and has not been challenged. The issue which I have to determine: is whether on the facts of this case it should be exercised in the Defendants favour.

6

The Plaintiffs" summons claims three declarations; one, that the developer's application for planning permission was not an effective one and is null and void; two, that the Corporations decision to grant planning permission is null and void; three, that the Corporations decision was made without jurisdiction and is null and void. They also claim a mandatory injunction directing the Corporation to send forth the record of the decision for the purpose of having it quashed by the High Court - in effect, they ask for an order of certiorari. I was told on the first day the matter was before me that the Plaintiffs" case was that the developers had no sufficient interest in the lands the subject matter of their application such as would justify their application for permission. On the adjourned hearing their case was explained in greater detail. The Plaintiffs' planning consultant swore an affidavit in which he deposed to the examination he made in September, 1982 of the maps and documents lodged in the planning office of the Dublin Corporation. He exhibited certain maps and made certain observations on them. Their Counsel summarised the basis for the Plaintiffs" claims as follows: (a) the developers had not the right to enter part of the site which they proposed to develop because part of the lands were situated under lands owned and occupied by Kosangas Ltd and Imperial Chemical Industries Ltd; (b) that part of the lands to be developed were outside the planning jurisdiction of the Dublin Corporation, and this vitiated the whole decision.

7

The developers do not presently own the land the subject matter of their planning application. They produced, however, a letter of the 25th January, 1982 from the Dublin Port and Docks Board in which the Board agreed in principle to lease them a site for the construction and operation of an underground refrigerated L.P.G. rock cavern facility, located on a drawing No. 28,669. The Plaintiffs do not submit that this agreement to grant a lease is insufficient to justify an application for planning permission - their case is a different one. They submit that the Dublin Port and Docks Board cannot grant the lease of part of the lands to which the application refers because of...

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