Cooper v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Maurice Collins |
| Judgment Date | 07 December 2022 |
| Neutral Citation | [2022] IECA 278 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2021/320 |
and
[2022] IECA 278
Costello J.
Collins J.
Allen J.
Record Number: 2021/320
High Court Record Number: 2021/218JR
THE COURT OF APPEAL
Judicial review – Planning and development – Point of law – Appellant appealing against an order striking out the proceedings – Whether the issue raised in the certified question properly arose
Facts: Dundrum Retail GP DAC, on 7 February 2020, applied to the notice party, Dún Laoghaire Rathdown County Council (the Council) for planning permission for the installation of a large outdoor screen at the Dundrum Town Centre, for use for open-air cinema events. The appellant, Mr Cooper, lived in close proximity to the Dundrum Town Centre. He was concerned with the impact of the proposed development, particularly as regards noise in the evening and at night. Mr Cooper made a submission to the Council objecting to the proposed development. The Council decided to grant the permission sought, subject to a number of conditions, on 8 December 2020. On 1 January, 2021, the Council issued a formal grant of planning permission in accordance with its earlier decision of 8 December 2020. On 16 March 2021 Mr Cooper filed a statement of grounds and notice of motion in the Central Office seeking an order of certiorari setting aside the permission granted by the Council. A motion of the respondent, An Bord Pleanála (ABP), issued on 1 June 2021, returnable for 5 July 2021. ABP invoked Order 19, Rule 28 RSC and/or the inherent jurisdiction to seek an order striking out Mr Cooper’s judicial review proceedings on the basis that they were out of time pursuant to s. 50 of the Planning and Development Act 2000 (as amended, the PDA), did not disclose a reasonable cause of action, were improperly constituted and/or were bound to fail. On 17 November 2021, the High Court (Barrett J) made an order striking out the proceedings. Mr Cooper lodged an appeal to the Court of Appeal in December 2021. ABP proposed a formulation of the point of law in correspondence which was subsequently approved by the Court of Appeal, as follows: “Where an appeal from a decision of the planning authority is received by An Bord Pleanála (the Board) from an appellant(s) outside of the ‘appropriate period’ of four weeks from that decision (as defined in section 37(1)(d) of the Planning and Development) Act 2000) is the Board obliged to invalidate the appeal by virtue of section 127(1)(g) of the Planning and Development Act 2000 or is there a de minimis principle which would allow the Board to accept a late appeal outside of the appropriate period, because of circumstances outside of the control of the appellant(s) and/or the Board?” (the Certified Question).
Collins J held that, in view of the Judge’s finding that the proceedings disclosed no cause of action against ABP, it was difficult to understand how he took the view that the Certified Question arose, still less that it satisfied the requirements for certification in s. 50A PDA (assuming the application of s. 50A). Collins J held that, on the Judge’s own analysis, the issue of the interpretation and effect of s. 127 did not properly arise (and he did not appear to think that there was any uncertainty about that issue in any event) and in purporting to certify a point of law addressed to that issue, the Judge was effectively certifying an entirely academic or theoretical issue, whose determination – either way – could not affect the appropriate disposition of ABP’s strike-out application. The purported certification of such an issue was, in Collins J’s view, wholly at odds with the statutory regime. Collins J held that the Court of Appeal’s function in hearing a certified appeal is to determine a live controversy, not to give an advisory opinion.
Collins J held that as the issue raised in the Certified Question did not properly arise and Mr Cooper did not seek to address any other issue or advance any argument to the effect that the Judge’s findings were otherwise in error, his appeal must fail.
Application refused.
JUDGMENT of Mr. Justice Maurice Collins delivered on 7 December 2022
This appeal presents a variety of procedural tangles. Even so, its appropriate disposition appears clear.
On 7 February 2020, Dundrum Retail GP DAC applied to the Notice Party (hereafter “ the Council”) for planning permission for the installation of a large outdoor screen at the Dundrum Town Centre, for use for open-air cinema events (Ref D20A/102). That use had been permitted under an earlier permission granted by the Council to a related applicant (Ref D18A/140). 1
The Appellant (“ Mr Cooper”) lives in close proximity to the Dundrum Town Centre. He was concerned with the impact of the proposed development, particularly as regards noise in the evening and at night. At the hearing of this appeal. Mr Cooper told the Court that the area of the Town Centre nearest to his residence had previously been used for fashion outlets but has been transformed into what the Town Centre operator has apparently described as “ a vibrant nightlife hub”, with adverse impact on his residential amenities. In any event, Mr Cooper made a submission to the Council objecting to the proposed development. However, the Council decided to grant the permission sought, subject to a number of conditions. The Council made that decision on 8 December 2020.
By virtue of Article 31 of the Planning and Development Regulations 2001 ( SI 600 of 2001) the Council was obliged to notify the Appellant of that decision within 3 working days and did so by letter sent on the following day, 9 December 2020. However, Mr Cooper says that he only received that notification on 12 January 2021.
Mr Cooper wished to appeal the Council's decision to the Respondent, An Bord Pleanála (“ ABP”). Section 127(1) of the Planning and Development Act 2000 (as amended, the “ PDA”) sets out the requirements for such appeals, including that they “ be made within the period specified for making the appeal” (section 127(1)(g)). Section 37(1)(a) PDA provides that appeals to ABP may be brought “at any time before the expiration of the appropriate period” and section 37(1)(d) then provides that for that purpose “ appropriate period” means “ the period of four weeks beginning on the day of the decision of the planning authority”. Section 127(2) PDA provides that an appeal that does not comply with section 127(1) “ shall be invalid”.
Mr Cooper lodged his appeal with ABP on 14 January 2021. He says that he contacted the Council on 14 January 2021 (after he received the notification of its decision to grant permission) and was told by a staff member he had until 5 pm that day to lodge his appeal. 2 However, on 19 January 2021 ABP determined that Mr Cooper's appeal had not been made within the specified appeal period, on the basis that that period had expired on 13 January 2021. I should explain that section 251 PDA provides that the period between 24 December and 1 January is to be disregarded in calculating any appropriate period or other time limit in the Act. That effectively extended the statutory appeal period to 13 January 2021. As Mr Cooper's appeal was received on 14 January 2021, ABP determined that the appeal was invalid. Mr Cooper was notified of ABP's decision by letter of 20 January 2021. 3
On the following day, 21 January, 2021, the Council issued a formal grant of planning permission in accordance with its earlier decision of 8 December 2020 (hereafter “ the Planning Permission”).
On 16 March 2021 Mr Cooper filed a Statement of Grounds, Notice of Motion and Affidavit in the Central Office. The Statement of Grounds and Notice of Motion sought an order of certiorari setting aside “ permission granted by DLRCC, 8th December 2020”. In fact, the Planning Permission was not granted on 8 December 2020 but on 21 January 2021, in accordance with the decision to grant permission that the Council had made on 8 December 2020. Reliefs were also sought directed to the use of the screen. However, such reliefs were misconceived and could never have been granted in proceedings such as these. They were, in any event, wholly unsupported by the grounds set out in the Statement of Grounds. Nothing further will be said here about those reliefs.
Notwithstanding the fact that the only substantive relief sought was directed to the Council's decision to grant permission, ABP rather than the Council was named as the Respondent, with the Council named as a Notice Party only. Furthermore, despite its obvious interest in the proceedings – it was, after all, the applicant for and grantee of the Planning Permission – Dundrum Retail GP DAC was not named as a party. It clearly ought to have been named as a Notice Party: BUPA Ireland Ltd. v. Health Insurance Authority (No. 1) [2006] 1 IR 201 (per Kearns J at para 26).
The grounds for relief set out in the Statement of Grounds did not identify any alleged invalidity in the Planning Permission. Rather, the Statement recites the fact that Mr Cooper had lodged an appeal with ABP on 14 January 2021 but was later told that the appeal was lodged too late. It states that Mr Cooper did not receive notification of the decision to grant permission until 12 January 2021 and that he contacted the Council on 14 January 2021 and was informed by it that the final day for lodging an appeal was that day. It also says that the post office had said that they had delivered the Council's notification on 14 December 2021 but that that was “ incorrect”. That was, it was said, “ the outline of this case.”
Sections 50 and 50A PDA govern challenges to planning decisions made by planning authorities and ABP. These provisions apply ( inter alia) to “any decision made or other act done...
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