Cumann Tomás Daibhís and Others v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Neill,Mr. Justice Roderick Murphy
• Judgment Date: 14 December 2007
• Neutral Citation: [2007] IEHC 426,[2007] IEHC 118
• Court: High Court
• Date: 14 December 2007

[2007] IEHC 118

The high court

[No 429 JR/2006]

CUMANN THOMAS DAIBHIS v SOUTH DUBLIN CO COUNCIL

Judicial Review

Between

Cumann Thomas Daibhis

Applicant

and

South Dublin County Council

Respondent

and

SHAMROCK ROVERS FOOTBALL CLUB LIMITED

Notice party

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S179

PLANNING & DEVELOPMENT REGS 2001 PART VIII SI 600/2001

PLANNING & DEVELOPMENT ACT 2000 S179(3)

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

PLANNING & DEVELOPMENT ACT 2000 S50(4)(c)(ii)

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

HARRINGTON v BORD PLEANALA & ORS UNREP MACKEN 16.3.2006 2006 IEHC 110

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA & ORS 1995 2 ILRM 125

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT UNREP GEOGHEGAN 2.7.1999 1999/14/3977

KENNY v BORD PLEANALA & ORS 2001 1 IR 565 2000 11 4343

HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005 29 5917 2005 IEHC 344

O'BRIEN v DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP O'NEILL 1.6.2006 2006 IEHC 177

PLANNING & DEVELOPMENT ACT 2000 S179(4)

PLANNING & DEVELOPMENT ACT 2000 S179(4)(b)

PLANNING & DEVELOPMENT ACT 2000 S179(4)(C)

INTERPRETATION ACT 2005 S18

DUFFY v WATERFORD CORP UNREP MCGUINNESS 21.7.1999 1999/10/2462

Abstract:

Planning and Development Law - Judicial Review - Leave - Substantial Interest affected - Planning permission for development of stadium - Carrying out works - Exclusion of GAA - Size of local population and needs - S.50 Planning and Development Act 2000

Facts: The applicant sought leave for judicial review for a declaration that the vote taken by the respondent purporting to agree to the development of a stadium was null and void and sought to prohibit the carrying out of works at the stadium. The issue arose as to whether the applicant had a sufficient interest to challenge the works or the resolution, being technical or procedural in nature.

Held by O’Neill J., in granting leave, that as the applicant was a club with the most immediate connection to the stadium and as the club most likely to derive benefit from access to the stadium, the applicant had a substantial interest in quashing the resolution.

Reporter: E.F

1 Judgment of Mr. Justice O'Neill delivered on the 30th day of March 2007

2 The applicant is a GAA club located in the Tallaght area. In these proceedings the applicant seeks leave pursuant to s. 50 of the Planning and Development Act 2000, to take these judicial review proceedings against the respondents.

3 The reliefs sought by way of judicial review are the following:-

4 2 "1. A declaration that the vote taken by the members of the respondent at their meeting held on 13th February 2006, purporting to agree to proceed with the development of the stadium at Whitestown Way, Tallaght, Co. Dublin is null and void and of no effect.

5 2. An order of prohibition by way of judicial review prohibiting the respondent from carrying out any works to the stadium at Whitestown Way, Tallaght, in the County of Dublin save in accordance with the resolution passed by the respondent at its meeting held on 12th December 2005.

6 3. An order of certiorari by way of judicial review quashing the purported decision made by the respondent at its meeting on 13th February 2006."

7 By order of this court made on 26th June 2006, Shamrock Rovers Limited was joined as a notice party to the proceedings.

8 The background to this matter is as follows.

9 On 10th February 1997, the respondents passed a resolution approving of the disposal of a site at Whitestown Way, by way of a lease to provide a stadium for Shamrock Rovers. On 14th January 1998, planning permission was granted to Shamrock Rovers to build a football stadium and on 24th March 2000, the respondents granted a lease of the site to Mulden International Limited. Under the terms of that lease Mulden International Limited were required to commence building works in accordance with the said planning permission within six months of 24th March 2000. On 20th October 2000, Mulden International Limited assigned their interest under the lease in that portion of the leased land comprising eight acres upon which the stadium was to be built, to an associated company, Sloan Park Company Limited, thereby transferring their obligation to build the stadium to Sloan Park Company Limited. Work on the stadium commenced in October 2000 and progressed well for twelve months. Construction works ceased on the site in November 2001 and there has been no work done since. The building contractor is still in possession of the site. In July 2003 Shamrock Rovers applied for and was granted an extension of the planning permission for a period of one year to 31st October 2004, to enable them to complete the stadium. No work was carried out during that twelve month period. In October 2004 Shamrock Rovers applied for a further extension for a period of one and a half years to complete the stadium. On 14th December 2002, the respondents as planning authority refused that application.

10 The respondents considered the terms and conditions of the lease under which Mulden International Limited and Sloan Park Company Limited held their respective interest in the stadium site and decided that the objective of the respondents in making the site available to Shamrock Rovers had not been met. The respondents took the view that the interest of Shamrock Rovers and the public would best be served by a repossession of the lands and the formulation of a separate agreement for the completion of the stadium. On 4th January 2005, a Managers Order authorised the service of a notice of forfeiture of the lease. On 11th April 2005, an examiner was appointed by the High Court to Shamrock Rovers Football Club then trading as Branvard Limited with the view to putting together a financial package to prevent the liquidation of the club. The respondents engaged in discussions with the examiner with regard to the completion of the stadium and its use by Shamrock Rovers when completed. The following terms were offered to the examiner by the respondents to cater for Shamrock Rovers need for playing facilities as well as assisting its income stream:-

11 · The pitch and stand to be made available to the club for up to forty home games per annum.

12 · Advertising revenue derived from the stadium to be shared on a fifty fifty basis between the club and the respondent.

13 · The respondent to retain ownership of the stadium following its completion from public funds and to maintain and manage the stadium grounds including the pitch.

14 · The respondent to make available a site within the grounds to enable the club to provide its own clubhouse.

15 · The respondent to purchase the clubhouse at cost in the future should the club decide to relocate.

16 · The respondent to construct or to provide financial assistance to enable Shamrock Rovers to provide modern changing facilities (to include two changing rooms, showers toilets, referees room, some storage facilities) on off site grounds to assist in the promotion of soccer; and the respondent to be provided with a deed of covenant for a period of ten years protecting this investment in the event of the lands being sold within that period.

17 · In addition to the above the club was to have the following options:

18 (a) The use of the adjacent training pitch which was to be upgraded to all-weather specification.

19 (b) Liberty to negotiate on a match per match basis or for specific other functions, the use of the main pitch and/or facilities contained within the stand.

20 (c) The use, subject to demand and availability, of other soccer pitches proved by the Council in its public parks.

21 Because of the fact that the planning permission for construction of the stadium had expired and the development was to be completed as a local authority project the respondent initiated a public consultation process in accordance with s. 179 of the Planning and Development Act 2000, and Part 8 of the Planning Development Regulations 2001- 2003.

22 The respondent published a notice on 18th July 2005, in which it was proposed to complete the stadium based on the plans which had already received planning permission from An Bórd Pleanala and these plans were placed on public display in accordance with the notices published in the Irish Independent on 18th July 2005, and the Echo newspaper on 21st July 2005, and a further notice published on 15th August 2005, when the time for receipt of submissions was extended to 26th September 2005, to allow for the summer holiday period.

23 After the expiration of the period for submissions and observations a written report pursuant to s. 179(3) of the Planning and Development Act 2000, was prepared by Thomas Doherty, Deputy Manager of the respondents. This report recommended that the proposed development comprising the completion of this stadium should proceed and the report was submitted to the full members of the respondent on 12th December 2005.

24 On 12th December 2005, the respondents adopted a resolution to modify the proposed development by making modifications to the design of the stadium to provide for an increase in the playing area and some alterations to the stand facilities to facilitate other sports and uses. The resolution thus passed by the respondents was in the following terms:-

"That the manager's report be adopted subject to the playing pitch being increased to 140 by 85 metres and to appropriate modifications to increase the changing room accommodation. The stands to be extended either in the current phase or in a future phase in line with the increased length of the playing surface and adequate car parking provided on site and if necessary in the area previously approved by An Bórd Pleanala for stadium car parking referred to as Site...