Construction Industry Federation v Dublin City Council

JurisdictionIreland
CourtSupreme Court
JudgeMr Justice McCracken
Judgment Date18 March 2005
Neutral Citation[2005] IESC 16
Docket Number[2003
Date18 March 2005

[2005] IESC 16

THE SUPREME COURT

Murray CJ

Fennelly J

McCracken J

223/2004
CONSTRUCTION INDUSTRY FEDERATION v DUBLIN CITY COUNCIL

Between:

Construction Industry Federation
Applicant/Appellant

AND

Dublin City Council
Respondent/Respondent

PLANNING & DEVELOPMENT ACT 2000 S48

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372

PLANNING & DEVELOPMENT ACT 2000 S48(1)

PLANNING & DEVELOPMENT ACT 2000 S49

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

RSC O.84 r20(4)CAHILL v SUTTON 1980 IR 269

STATUTE OF LIMITATIONS 1957

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401

MULCREEVY v MIN FOR ENVIRONMENT & DUN LAOGHAIRE/RATHDOWN CO COUNCIL 2004 1 IR 72 2004 1 ILRM 419

INLAND REVENUE COMMISSIONERS & NATIONAL FEDERATION OF SELF-EMPLOYED & SMALL BUSINESSES LTD 1982 AC 617 1981 2 WLR 1981 2 AER 93

R v INSPECTORATE OF POLLUTION EX-PARTE GREENPEACE LTD (NO 2) 1994 4 AER 329

PRACTICE AND PROCEDURE

Judicial review

Locus standi - Unincorporated trade association - Sufficient interest - Whether trade association had sufficient interest -Whether members of association were members affected - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 20(4) -Respondent's appeal dismissed

1

Mr Justice McCrackendelivered the 18th day of March 2005

2

This was an application by way of judicial review by the Appellant for an order of certiorari quashing a decision made by the Respondent on 1st December 2003 to make a Development Contribution Scheme pursuant to s.48 of the Planning and Development Act 2000, and for certain consequential declaratory and other relief. The relief sought was refused by the High Court (Gilligan J) on its merits, but an issue was also raised before the High Court as to the locus standi of the Appellant, which issue was determined by the learned trial Judge in favour of the Appellant. Although no cross-appeal or application to vary has been made by the Respondent, this Court ruled at the commencement of the hearing of this appeal that the Respondent was entitled to argue the question of locus standi, on the authority of the decision in AA v. Medical Council [2003] 4 IR 302, without the necessity for such notice of cross appeal or application to vary. The Court further ruled that the issue of locus standi should be argued as a preliminary issue. Accordingly, this Court is not concerned at this stage with the judgment of the learned High Court Judge on the substantive issue, or with the merits of the application save in so far as it may affect locus standi. Nevertheless, it is necessary to consider briefly the nature of the order sought.

3

Section 48(1) of the Planning and Development Act 2000provides:-

"A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of funding for the infrastructure and facilities)."

4

Subsequent subsections of s.48, and certain provisions of s.49, contain more detailed provisions in relation to such schemes, and also provide for a supplementary development contribution scheme, but these provisions are not relevant to the issue now before the Court.

5

Prior to the 2000 Act, a local authority could impose conditions requiring financial contributions to a grant of planning permission under s.26 (2) of the Local Government (Planning and Development) Act 1963, but these contributions had to relate to the specific planning application before the planning authority. Under s.48 the planning authority may draw up a contribution scheme based on its overall requirements within its functional area, or within specific parts of its functional area, and may then require payment of equally calculated contributions from all applicants for planning permission either generally or in respect of a certain class of development. The order sought in these proceedings related to a specific decision of the Respondent of 1st December 2003 to make a development contribution scheme pursuant to s.48.

6

In the statement of grounds, the Appellant is described as "anunincorporated trade association representing the interests of parties involved in the construction business". Its membership includes most of the major construction firms and property developers in the State and it is a long-standing and respected spokesperson for the construction industry. However, it is not a corporate body, and it does not itself engage in any development or construction projects.

7

Order 84 of the Rules of the Superior Courts contains the rules of procedure in relation to judicial review applications. Rule 20 (4) of that order provides:-

"The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

8

The question of locus standi was considered in depth in Cahill v.Sutton [1980] IR 269 in relation to a purported constitutional challenge to a section of the Statute of Limitations. While this is not a constitutional case, and the test applied was slightly different from that set out in Order 84, nevertheless the principles seem to me to be very relevant to judicial review proceedings, and have been considered in such proceedings in a number of cases.

9

There is a general principle set out in a judgment of Henchy J in Cahill v. Sutton at page 283 as follows:-

"While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring proceedings to have a particular statutory provision declared unconstitutional, there are contravening considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is essentially another person's case...

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