Chambers v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: McCarthy J.,EGAN J.
• Judgment Date: 01 January 1992
• Neutral Citation: 1991 WJSC-SC 1712
• Court: Supreme Court
• Docket Number: (174/91),[S.C. No. 174 of 1991]
• Date: 01 January 1992

1991 WJSC-SC 1712

THE SUPREME COURT

Finlay C.J.

Hederman J.

McCarthy J.

O'Flaherty J.

Egan J.

(174/91)

CHAMBERS v. BORD PLEANALA

BETWEEN/

DEREK CHAMBERS AND UNA CHAMBERS

Plaintiffs/Appellants

and

AN BORD PLEANALA AND SANDOZ (RINGASKIDDY)LIMITED

Defendants/Respondents

Citations:

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S42

ABENGLEN PROPERTIES, STATE V DUBLIN CORPORATION 1984 IR 381

LYNCH, STATE V COONEY & AG 1982 IR 337

EEC DIR 85/337

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 349/1989

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1990 25/1990

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE & ANOR V AN BORD PLEANALA UNREP SUPREME 15.2.91 1991/5/1137

CUSSEN, STATE V BRENNAN 1981 IR 181

EAST DONEGAL CO-OP V AG 1970 IR 317

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

MURPHY V GREEN UNREP SUPREME 18.12.1990

AIR POLLUTION ACT 1987

Synopsis:

PRACTICE

Parties

~Locus standi ~ - Planning - Appeal board - Decision - Review - Procedure - Plenary summons - Plaintiff's failure to invoke procedure under planning code - Plaintiff being an asthmatic living near proposed industrial development - Local Government (Planning & Development) Act, 1963, s. 82 - (174/91 - Supreme Court - 23/7/91) - [1992] 1 I.R. 134 - [1992] ILRM 296

|Chambers v. An Bord Pleanala|

1 Judgment delivered on the 23rd day of July 1991by EGAN J. [Finlay C.J. and O'Flaherty J. agr.]

2 The facts of this case are set out in the judgment of McCarthy, J. and need not be repeated in full.

3 In their Statement of Claim the plaintiffs claimed inter alia a Declaration that the decision of the first-named defendants (hereinafter called "the Board") given on the 24th day of July, 1990 granting permission to the second-named defendants (hereinafter called "Sandoz") for a development comprising the erection of a pharmaceutical manufacturing facility at Raheen,Ringaskiddy, Co. Cork, was ultra vires and invalid having regard to the requirements of E.E.C. Council Directive 89/337/E.E.C.

4 The action was taken pursuant to s. 82(3)(a) of the Act of 1963 as inserted by s. 42 of the Act of 1976 which provides that:-

5 A person shall not, by prohibition, certiorari or in any other legal proceedings whatsoever question the validity of:-

6 (a) a decision of the planning authority on an application for a permission or approval under Part IV of the Principal Act;

7 (b) a decision of the Board on any appeal or on any reference;

8 (c) a decision of the Minister on any appeal; unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given.

9 The relevant decisions in this case were given on the 24th July, 1990 as stated and the proceedings were instituted by Plenary Summons which was issued on the 21st September, 1990 and was accordingly within thestatutoryperiod. From then on the proceedings were subject to the control of the High Court to deal with matters such as delay but, in any event, it was made clear at the hearing before this Court that the defendants were not relying on complaints in respect of delay. Neither was there any argument that the plaintiffs had failed to comply with requirements of Rules of Court in relation to the seeking of leave to pursue a claim for Judicial Review although the matter was mentioned. In any event, in my opinion, it would be too late at this stage to consider such anargument.

10 It is perfectly clear, therefore, that a decision of the planning authority may be quashed or set aside by the High Court. This can arise for different reasons e.g. lack of jurisdiction, an improper exercise of jurisdiction or some other legal requirement essential to the exercise of its jurisdiction.

11 The statutory relief can be claimed by "a person". The plaintiffs are persons who reside with their largefamily within two miles of the proposed pharmaceutical factory and it is not seriously challenged that they have an interest and concern in the development planned. I have used the word "interest" in the sense in which any layman might use it and, for the moment, it is not intended to have any special meaning.

12 I should mention at this stage that on the 11th February, 1991 Blayney J. dismissed a motion by Sandoz that the Plenary Summons disclosed no cause of action or alternatively that the proceedings were frivolous and vexatious and were an abuse of the process of the Court. There was no appeal from this decision and the Statement of Claim was delivered one week later. By order of the Court on the 4th March, 1991 made on consent three preliminary issues were directed to be tried and the answers to three questions were sought. I need only mention one of them as it was the only one which was answered and which gives rise to the appeal before this Court. The question is as follows:-

13 (1) Do the plaintiffs have locus standi to prosecute this claim?

14 It was argued but the Court was not really pressed to hold that this question had been answered inferentially by Blayney, J. on the 11th February, 1990 when he refused the applications then before him. It is true that the Board did not join Sandoz in their claim but this would not necessarily, in my view, have prevented the matter from being res judicata. I have decided, however, that any inference to be drawn from the decision of Blayney, J. was effectively waived by the plaintiffs when they consented to the actual trial of the issue with which we are dealing. I would have thought that the plaintiffs would not have consented to the trial of the issue if they were satisfied that the issue had already been decided.

15 The argument most strongly urged in the case was based on the decision of this Court in The State (Abenglen Properties) v. Corporation ofDublin 1984 I.R. p. 381 where Henchy, J. stated as follows:-

"The second reason why I would refuse to quash therespondents" decision, even if it were made in excess of jurisdiction, is that the correct procedure for the correction of the legal errors complained of lay in an appeal to An Bord Pleanala (theBoard)".

16 He went on to set out details of the scope of the planning legislation and said "those and other features of the Acts envisage the operation of a self-contained administrative code, with resort to the Courts only in exceptional circumstances".

17 I am now convinced that although this decision in The State (Abenglen Properties) v. Corporation of Dublin was relied on by the defendants as part of their argument on the question of "locus standi", the decision was really relevant to the basis upon which discretion should be exercised by the courts in the granting or refusal of the remedy of certiorari. It is also interesting to note a distinction between the Abenglen case and the present case in regard to the "operation of the self-containedadministrative code". The appellants in the Abenglen case had failed to exercise the statutory right of appeal to the Board whereas this right was, in fact, exercised in the present case, albeit not by the plaintiffs. If the decision of the Board was ultra vires, it could only be challenged by recourse to the High Court.

18 The learned trial Judge was correct in finding that the plaintiffs were not named objectors in the application before Cork County Council but they were certainly involved with a body known as RICH ("Responsible Industry for Cork Harbour") who were objectors and who subsequently appealed to the Board. The plaintiffs stated that they left it to RICH to deal with the appeal and their attitude in this regard can readily be understood particularly as there were nineteen appellants in all.

19 I am pefectly satisfied on the evidence given by the plaintiffs that they had and have a "sufficient interest" in the matter within the meaning of the judgment given byWalsh, J. in The State (Lynch) v. Cooney and the AttorneyGeneral 1982 I.R. p. 337 and accordingly they have "locus standi". I hold therefore, that the question should be answered "Yes" and the appeal should be allowed.

20 JE7

21 Judgment of McCarthy J.delivered the 23rd day of July, 1991. [Hederman J. Conc., Finlay C.J. and O'Flaherty J. agr]

22 The Plaintiffs appeal against an Order of the High Court (Lavan J.) made the 26th April 1991 whereby it was held that the Plaintiffs do not have locus standi to prosecute this claim.

The Facts.

23 Mr. and Mrs. Chambers live with their children at Mount Rivers,...