Clinton v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY,Denham J.
• Judgment Date: 01 November 2006
• Neutral Citation: [2006] IESC 58
• Date: 01 November 2006
• Court: Supreme Court
• Docket Number: [S.C. Nos.

CLINTON v BORD PLEANALA & ORS

Between/

Paul Clinton

Applicant/Appellant

and

An Bord Pleanála Dublin City Council And by order the Attorney General

Respondents

and

Richard Quirke Dublin Pool and Juke Box Company Limited Baycross Developments Limited Carrolls of Dublin Limited Colm Carroll Regan Developments Limited Daniel Troy and Christopher Troy trading as Troy Brothers Doyles Stores Limited F.X. Buckley Limited Stephen Ross trading as Industria Simon Hart Limited John Corcoran James Cousins Limited Martina Investments Limited Peter Slattery Limited

Notice Parties

[2006] IESC 58

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Macken J.

[S.C. 348 of 2005]

[S.C. 347 of 2005]

THE SUPREME COURT

COURTS Jurisdiction Supreme Court - Right of appeal from High Court - Limitation of right of appeal - Point of law of exceptional public importance - Whether applicant confined to point of law certified - Whether applicant entitled to advance other points - People (Attorney General) v Giles [1974] IR 422 followed; Ashbourne Holdings Ltd v An Bord Pleanála [2003] 2 IR 114; CS v Minister for Justice [2004] IESC 44, [2005] 1 IR 343; Kenny v An Bord Pleanála (No 2) [2001] 1 IR 704; KSK Enterprises Ltd v An Bord Pleanála [1994] 2 IR 128; Scott v An Bord Pleanála [1995] 1 ILRM 424; People (DPP) v Gilligan (No 2) [2006] IESC 42, [2006] 3 I.R. and Milne v Commissioner of Police for the City of London [1940] AC 1 considered -

Court of Justice Act 1924 (No 10), s 29 - Planning and Development Act 2000 (No 30), s 50(4)(f) - Constitution of Ireland, 1937, Article 34.4 - Scope of appeal not limited (347/2005 & 348/2005 - SC - 1/11/2006) [2006] IESC 58; [2007] 1 ILRM 422

Clinton v An Bord Pleanála

CLINTON v AN BORD PLEANALA 2005 11 2219 2005 IEHC 84

PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)(i)

PLANNING & DEVELOPMENT ACT 2000 PART XIV

PLANNING & DEVELOPMENT ACT 2000 S219

PLANNING & DEVELOPMENT ACT 2000 S212

PLANNING & DEVELOPMENT ACT 2000 S213

PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)

CONSTITUTION ART 34.4.3

LOCAL GOVERNMENT PLANNING & DEVELOPMENT ACT 1992 S19(3)(b)

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 1993 S3(1)

TRANSPORT (DUBLIN LIGHT RAIL) ACT 1996 S12

WASTE MANAGEMENT ACT 1996 S43(5)(c)

FISHERIES (AMDT) ACT 1997 S73(3)

IRISH TAKEOVER PANEL ACT 1997 S13(6)

ELECTRICITY REGULATION ACT 1999 S32(3)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(a)

TRANSPORT (RAILWAY INFRASTRUCTURE) ACT 2001 S47(5)(a)

AVIATION REGULATION ACT 2001 S38(5)(a)

AG, PEOPLE v GILES 1974 IR 422

DPP, PEOPLE v GILLIGAN (NO 2) 2006 IESC 42

SCOTT v BORD PLEANALA 1995 1 ILRM 424 1994 13 4021

KENNY v BORD PLEANALA 2001 1 IR 704 2002 1 ILRM 68 2001 13 3736

KSK ENTERPRISES v BORD PLEANALA 1994 2 IR 128

ASHBOURNE HOLDINGS LTD v BORD PLEANALA 2003 2 IR 114 2003 2 ILRM 446 2003 3 564

S (C) & ORS v MIN JUSTICE & AG UNREP SUPREME 27.7.2004

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S50A(10)

AG, PEOPLE v CONMEY 1975 IR 341

A (B) v MINISTER FOR JUSTICE EQUALITY & LAW REFORM 2002 1 IR 296

RSC O 84

LOCAL GOVERNMENT PLANNING & DEVELOPMENT ACT 1992 S19(3)

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961 S3

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

MILNE v COMMISSIONER OF POLICE FOR THE CITY OF LONDON 1940 AC 1

CRIMINAL APPEAL ACT 1907 SS6 (UK)

LOCAL GOVERNMENT PLANNING & DEVELOPMENT ACT 1992 S19

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S49

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S50

CONSTITUTION ART 34.4

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

BENNION STATUTORY INTERPRETATION 4ED 2002

INSPECTOR OF TAXES v KIERNAN 1981 IR 117

1 1. An important preliminary issue has arisen on this appeal. The query is whether Paul Clinton, the applicant/appellant, hereinafter referred to as "the applicant", is confined in this appeal to the single ground of appeal arising from the point of law the subject of the High Court Certificate, or whether he is entitled to raise other grounds in the Notice of Appeal. It was submitted by the applicant that he was not so confined.

2 2. The Notice of Appeal filed on behalf of the applicant states that the appeal is from so much of the judgment of the High Court delivered on the 15th March, 2005 and order perfected on the 19th August, 2005 as refused the applicant the relief sought. The following was certified by the learned High Court judge pursuant to s. 50(4)f)(i) of the Planning and Development Act, 2000as a point of law of exceptional public importance in respect of which it was desirable in the public interest that an appeal should be taken to the Supreme Court, namely:

1 That the learned trial judge erred in law in his interpretation of section 213 of the Planning and Development Act, 2000, in particular by holding that having regard to section 213, An Bord Pleanála may lawfully confirm a compulsory purchase order made for "development purposes" without requiring the acquiring authority to specify the development it is proposed to carry out on the affected land and/or subjecting the said proposed developments to scrutiny, at an oral hearing or otherwise, in order to ascertain whether or not it has been established that all of the land affected by the compulsory purchase order is required to carry out the proposed development. In the premises, the learned trial judge erred in law in upholding the decision of the first named respondent to confirm the compulsory purchase order of the 11th December, 2001 (hereinafter "the CPO").

The applicant also raised the following grounds of appeal:

2 The learned trial judge erred in law in holding that the function of the first named respondent, when considering whether or not to confirm the CPO, was simply to determine if the exercise of the power of compulsory acquisition by the second named respondent was for a purpose for which that power is conferred by statute. In particular, the learned trial judge erred in law in not holding that the first named respondent had the function of considering: (i) whether or not the specific purpose of the exercise of the power was within a purpose for which statute has conferred a power of compulsory acquisition: and (ii) if so, whether or not the specific purpose was of sufficient importance to outweigh the property rights of affected landowners.

3 The learned trial judge erred in law in holding, in relation to a statutory purpose that an acquiring authority seeks to advance by way of compulsory purchase order, that the means of achieving that purpose are irrelevant to the function of the first named respondent in considering whether or not to confirm the compulsory purchase order.

4 Having regard in particular to section 213 of the Planning and Development Act, 2000; paragraph 1 of the Third Schedule to the Housing Act, 1966; and the Housing Act, 1966(Acquisition of Land) Regulations, 2000 (S.I. No. 454 of 2000), Form No. 6, the learned trial judge erred in law in holding that, when exercising its power of compulsory acquisition pursuant to section 213 of the Planning and Development Act, 2000, the second named respondent was not required to state on the face of the CPO, as the purpose of the CPO, any purpose other than a statutory purpose for which a power of compulsory acquisition is conferred by statute. The learned trial judge further erred in law in holding that the purpose of the CPO, as stated on the face of the same, constituted such a statutory purpose.

5 The learned trial judge erred in law in holding that the evidence given on behalf of the second named respondent to the oral hearing convened by the first named respondent was sufficient to allow the first named respondent to discharge its duty to weigh the alleged public interest in the compulsory acquisition of the land the subject of the CPO against the property rights of the applicant.

6 The learned trial judge erred in law in holding that the applicant was not entitled to advance the argument at trial that the CPO is invalid, having been confirmed for a purpose different from that for which it was made. Without prejudice to this, the learned trial judge erred in law in holding that the purpose stated on the face of the CPO (development purposes) and that stated on the face of the order of the first named respondent (facilitating the implementation of the Development Plan) were one and the same.

7 The learned trial judge erred in failing to determine the question of whether or not, having regard to section 10(2)(h) of the Planning and Development Act, 2000, the second named respondent was competent to make, and the first named respondent was competent to confirm, the CPO for the purposes of redevelopment of the land the subject thereof in circumstances where such land had not been identified as in need of regeneration in the 1999 Dublin City Development Plan.

8 In the alternative, if, on its true interpretation, section 213 of the Planning and Development Act, 2000permits a compulsory purchase order to be made for "development purposes" without further specification of the purpose in the order, and without identification, specification or investigation of the said purpose, the learned trial judge erred in law in holding that the said section 213 is valid having regard to the provisions of the Constitution, and in particular Articles 40.3 and 43 thereof.

9 In the further alternative, if the learned trial judge was correct in holding (if he did) that the CPO contained a sufficient statement of its purpose, having regard to the provisions of Part XIV of the Planning and Development Act, 2000, he erred in law in holding that the said Part XIV, and in particular sections 212 and 213 thereof, were not invalid having regard to Article 15.2 of the...