Connolly v Bord Pleanála & Meath County Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice Irvine |
| Judgment Date | 08 July 2008 |
| Neutral Citation | [2008] IEHC 224 |
| Court | High Court |
| Date | 08 July 2008 |
[2008] IEHC 224
THE HIGH COURT
COMMERCIAL
BETWEEN
AND
AND
PLANNING & DEVELOPMENT ACT 2000 S50
PLANNING & DEVELOPMENT (AMDT) ACT 2002
RSC O.84 r20(7)(a)
RSC O.19 r28
BARRY v BUCKLEY 1981 IR 306
SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425
RYANAIR LTD v BORD PLEANALA & ORS UNREP CLARKE 11.1.2008 2008 IEHC 1
OLYMPIA PRODUCTIONS LTD v CAMERON MACINTOSH 1992 ILRM 204
O'NEILL v RYAN 1993 ILRM 557
LYTTELTON TIMES CO LTD v WARNERS LTD 1907 AC 476
HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005/29/5917
FULHAM FOOTBALL CLUB LTD & ORS v CABRA ESTATES PLC 1994 1 BCLC 363
PRACTICE AND PROCEDURE
Strike out proceedings
Inherent jurisdiction - Judicial review proceedings - Proceedings amount to abuse of process - Procedure to be adopted - Whether procedure adopted to dismiss flawed - Whether applicant required to issue separate plenary proceedings - Whether court had jurisdiction to consider application to dismiss in absence of plenary proceedings - Burden of proof - Principles to be applied - Ryanair Ltd v An Bord Pleanála [2008] IEHC 1, (Unrep, Clarke J, 11/1/2008) applied; Barry v Buckley [1981] I.R. 306, Sun Fat Chan v Osseous Ltd [1992] 1 I.R. 425, Olympia Productions Ltd v Mackintosh [1992] ILRM 204, Harrington v An Bord Pleanála [2005] IEHC 344, [2006] 1 I.R. 388, Fulham Football v Cabra Estates [1994] 1 BCLC 363 and O'Neill v Ryan (No 1) [1993] ILRM 557 considered; Lyttelton Times Co Ltd v Warners Limited [1907] AC 476 not applied - Planning and Development Act 2000 (No 30), s 50 - Rules of the Superior Courts 1986 (SI 15/1986) O. 19 r 28 and O.84 r. 20 (7)(a) - Proceedings dismissed (2008/509JR - Irvine J - 8/7/2008) [2008] IEHC 224
Connolly v An Bord Pleanála
Facts: the applicant entered into a contract with the notice party whereby he sold certain lands to it. The notice party obtained planning permission to develop the said lands. The applicant sought leave to institute judicial review proceedings in respect of the decision of the respondent to grant planning permission to the notice party on the ground that the respondent failed to take into account the effect of a variation of the county development plan which had the effect, he alleged, of restricting the number of units that could be developed upon certain lands. The notice party brought a motion seeking to dismiss the proceedings on the basis that they were not maintainable by virtue of special condition 13 of the contract which provided, inter alia, that the “vendor undertakes that he will not object directly and/or indirectly to any planning application to be made by the purchaser in respect of the lands in sale” and were an abuse of process. The applicant claimed that the application to dismiss was irregular and that the notice party should have instituted plenary proceedings seeking an injunction instead.
Held by Ms Justice Irvine in dismissing the proceedings that it was in the interest of all parties that proceedings be disposed of in an efficient manner and that to seek to enforce the provisions of the contract by the notice party’s motion to dismiss avoided the delay, which could lead to a potential loss to the applicant. The High Court had an inherent jurisdiction to dismiss any proceedings where they amounted to an abuse of process, however that jurisdiction should be exercised sparingly. That proceedings which concerned the interpretation of a contract were more amenable to the exercise of the court’s jurisdiction to dismiss proceedings as an abuse of process that cases where the extent of the evidence that may be available at the trial was less clear. That special condition 13 of the contract was unambiguous and the proceedings were an indirect objection to the notice party’s planning application and should, therefore, be dismissed.
Reporter: P.C.
Ms. Justice Irvine delivered the 8th day of July, 2008
The applicant in these proceedings is a retired businessman who is the owner of certain lands at Donacarney House, Mornington, Co. Meath. The respondents to the action are An Bord Pleanála and Meath County Council. The within litigation was instituted as a result of a decision of An Bord Pleanála (hereafter "the Board") dated 5 th March, 2008, to grant to the notice party planning permission in respect of a site comprising 20 hectares/ 50 acres of land which is situated 5km south east of Drogheda Town Centre and 300m to the north of the centre of Donacarney Village. The lands the subject matter of the planning permission were sold by the applicant to The Notice Party by contract for sale dated 28 th October, 2003 (hereafter "the Contract") for a sum of €14, 250, 000.00. At the time of the said sale the applicant retained for his own use some 7.6 hectares/17 acres of land upon which Donacarney House is located. The purchasers formed a partnership (hereafter "the Rybo Partnership")(the Notice Party) for the purposes of developing the said lands and Michael Ryan, of the Notice party herein is now the beneficial owner of all of the assets of the Rybo Partnership.
The within proceedings were instituted by the applicant on 28 th April, 2008 and the affidavit seeking leave to apply for judicial review is one sworn by the applicant on that date. Given that the intended judicial review proceedings seek to impugn the decision of the Board to grant planning permission to the Notice Party, that partnership is the notice party to the within proceedings.
The statement required to ground the application for judicial review makes it clear that the applicant wishes to challenge the decision of the Board to grant planning permission for the development of some 713 dwellings on the lands purchased under the Contract. The basis for the potential challenge to the validity of the decision of the Board relates to the alleged failure on the part of the Board, at the time of making its decision, to take into account the effect of Variation 2 of the Meath County Development Plan dated the 4 th February, 2008. This variation, according to the applicant, had the effect of restricting the number of units that might be developed upon certain lands which included those of the parties hereto and also introduced a requirement that any such development would occur on a phased basis. The applicant maintains that had this variation been taken into account by the Board that it would have been forced to conclude that the notice party's proposed development for the lands in question was in material contravention of the Development Plan.
If the present judicial review proceedings are successful the Board will be obliged to reconsider its earlier decision and on the applicant's account of events this might result in the Boards refusal to grant the planning permission sought by the notice party. If this were to occur, the applicant would have an opportunity to submit an application for planning permission for his own lands, something he cannot do at the moment as the potential development of his lands has been rendered, according to the applicant, sterile by reason of the manner in which the notice party approached its application for planning permission.
The applicant is aggrieved at what has occurred since the execution of the Contract in October, 2003 in circumstances where he states it was the clear intention of both parties that they would proceed to develop their relevant holdings at a future date. He states that if the present decision of the Board stands he will be precluded from developing his lands during the life span of the Meath County Development Plan until at least the year 2011.
The within proceedings were admitted to the Commercial Court by order of Kelly J. on 26 th May, 2008. On that date the learned judge granted liberty to the notice party to return a motion before the court on 24 th June, 2008 for the purposes of applying to dismiss or strike out the within proceedings on the grounds that they were not maintainable by reason of Special Condition 13 of the Contract. It is this application which is the subject matter of the present judgment.
In this motion of the notice party Michael Ryan, who is now the owner of the assets of the notice party, seeks an order dismissing the within proceedings on the grounds that they cannot be properly maintained by reason of the Contract made between the applicant and the notice party on 28 th October, 2003. The notice party asks the court to invoke its inherent jurisdiction and contends that the proceedings are an abuse of the process of the court.
The application of the notice party was heard by the High Court on 24 th June, 2008 in the course of which the court heard oral submissions and received written submissions on behalf of the notice party and also on behalf of the applicant. The respondents to the proceedings, namely the Board and the Planning Authority, did not participate in the hearing and agreed to abide by the determination of the court.
In response to the present application the applicant has made a number of arguments which can be conveniently be summarised as follows:-
1. That the procedure adopted by the notice party for the purposes of seeking to dismiss these judicial review proceedings is irregular and thus fundamentally flawed.
2. That even if the procedure adopted by the notice party is considered regular by the court that the notice party has not discharged the required burden of proof to have the...
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