David Cooper v an Bord Pleanála

JudgeMr Justice Max Barrett
Judgment Date12 July 2021
Neutral Citation[2021] IEHC 483
Docket Number[2021 No. 218 JR]
CourtHigh Court
David Cooper
An Bord Pleanála


Dun Laoghaire Rathdown County Council
Notice Party

[2021] IEHC 483

[2021 No. 218 JR]



This is a successful application to strike out the within proceedings. This summary forms part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 12 th July 2021 .

Summary Chronology of Events

. On 7 th February 2020, an application was made to the Council for permission for the use of a digital screen on the premises of Dundrum Shopping Centre. Thereafter, the following chronology ensued:

08.03.2020. Mr Cooper, who lives in the immediate vicinity of the Shopping Centre, makes a submission to the Council in respect of the application.

25.05.2020. Council requests further information of the applicant for planning permission.

16.11.2020. Applicant for permission provides further permission.

08.12.2020. Council decides to grant the permission sought.

09.12.2020. By letter of this date the Council notifies Mr Cooper of its decision.

12.01.2021. Date on which Mr Cooper claims to have received the Council's letter of 09.12.2020.

13.01.2021. Time within which Mr Cooper may bring an appeal against the Council's decision expires.

14.01.2021. Mr Cooper lodges his appeal with the Board. He claims that he called the Council (not the Board) on this date and was told that the last date for bringing an application was this date. Beyond his bare averment to this effect, there is no evidence to support this claim. Moreover, what the Council may or may not have said counts as nought vis-à-vis the Board.

19.01.2021. Council determines that the appeal is invalid.

20.01.2021. Letter of this date sent by Council to advise Mr Cooper that the appeal is invalid.

21.01.2021. Council's final grant of permission issues.

16.03.2021. Notice of Motion, Statement of Grounds, and Affidavit filed by Mr Cooper. No leave of the court was obtained for the filing of same. It remained the case, when this application came on for hearing on 6 th July 2021, that no application for leave had yet been made.

07.04.2021. The letter of 20 th January 2021 states that the date for the appeal expired on 13 th December 2020 and the appeal was received on 14 th December 2020. The Board has explained that these references were typographical errors and that the letter ought to have referred to 13 th January 2021 and 14 th January 2021. On 7 th April 2021, a letter issued to Mr Cooper from solicitors for the Board explaining the just-mentioned typographical error.

Mr Cooper's Notice, Statement, and Affidavit

. As mentioned in the summary chronology, on 16 th March 20201 a notice of motion, a statement of grounds, and an affidavit were filed by Mr Cooper. No leave of the court was obtained for the filing of same, and it remained the case, when this application came on for hearing on 6 th July 2021, that no application for leave had yet been made.


. The notice of motion states that the relief being sought is:

An order of certiorari

1. To set aside [the] permission granted by DLRCC…[on the] 8 th December 2020….

2. To restrict the amplified noise after 9 pm.

3. To restrict the use [of] amplified sound as…[no] speakers appear in the planning application.

4. To restrict the use of outside noise after 9 pm and the use of outside earing. These restrictions….[have] been imposed on previous planning applications.”


. The statement of grounds repeats the reliefs sought and offers the following by way of statement of grounds:

On 14 th January [2021], I lodged an appeal with An Bord Pleanála against the decision of DLRCC….On the 20 th January I received a letter from An Bord Pleanála telling me my appeal was lodged too late. In the letter, copy enclosed, An Bord Pleanála have mixed up all their dates. The dates they quote for December are incorrect. I didn't receive the grant or permission notice until 12 th January 2021. On the morning of 14 th January I contacted planning at DLRCC. They informed me the 14 th January was the final date for lodging my appeal, I proceeded to lodge the appeal to be told [that] …it was lodged too late in the letter of the 20 th January. I contacted the post office. They said they delivered the grant letter on the 14 th [of] December. This is incorrect. The 12 th [of] January is the date I received it. This is the outline of this case.”


. In the grounding affidavit, Mr Cooper avers as follows:

  • 1. I, David Cooper, objected to a planning application from early 2020….

  • 2. Under the provisions of the 1 st lockdown the planning authorities or the Government allowed for an extension of time to object to planning applications.

  • 3. I have been informed by staff at the planning office in DLRCC that no such extension has been allowed for further lockdowns.

  • 4. I received a letter from DLRCC dated the 9 th [of] December 2020 of a decision reached on the 8 th [of] December 2020. I received this letter on the 12 th [of] January 2021. However, this letter was sent by registered post and I have spoken to the postmaster at my local delivery office and he informed me that the letter was delivered to me on the 14 th [of] December 2020. I can't explain how the Post Office records state [that] I received the registered letter on the [14 th of] …December [when] …I in fact received it on the [12 th of] January 2021.

  • 5. Upon getting the letter on the [12 th of] …January 2021, I contacted DLRCC planning department….[o] n the [14 th of] …January 2021 to be informed by the staff member in the planning office that I had until 5 o'clock that day to lodge my planning appeal.

  • 6. I got a letter dated 20 th January 2021 from An Bord Pleanála. The letter stated that it appeared I wish to make an appeal of the planning decision of the [8 th of] …December 2020. The letter went on to say [that] the last date of appeal was the…[13 th of] December 2020. It went on to say that my appeal was received on 14 th December 2020 and it is regretted that it is therefore regarded as invalid in accordance with section 127…of the [Planning and Development] Act as not having made within the period specified for making an appeal….

  • 7. I would submit to the court that in the very least the letter refusing to accept my appeal against the planning decision of the [8 th of] …December must in the very least because of the incorrect information sent to me. Also I received notification from DLRCC planning department that the last day of submitting my appeal was the 14 th [of] January 2021 before 5 pm. I submit a copy of the submitted documents dated, stamped and timed that shows my appeal application was received at 3.15 pm on 14 th January 2021 by An Bord Pleanála.

  • 8. In respect of the planning application I have suffered noise issues for the last 20 years, living beside [what was] formerly a building site and [is] now a shopping centre where …building site machinery [was] …operated at unreasonable hours. The other issue that occurred was that since 2008/2010 amplified noise has become a big issue on the adjacent area to my property. I have two residential properties in which I live [at address stated] and the other residents of my other property are my wife and three children [at address stated] ….I would beg the court to look at the possibility of restricting the amplified noise in the evenings as has been previously done by previous planning applications by the Town Centre. On weekends and holidays they have been restricted to cease usage at 7pm. On other days they [are required] …to cease usage at 9 pm. However, in this planning application no such condition has been inserted and I beg the court to follow the guidelines of the previous restrictions”.

Some Issues Presenting

. In his proceedings, Mr Cooper is seeking an order of certiorari to quash the decision of the Council dated 8 th December 2020 to grant planning permission for the installation of a digital screen and use as an outdoor cinema. Mr Cooper is also seeking to restrict the ‘amplified sound’ of the development generally, especially post-9 pm. The Board is named as respondent; however, no grounds of relief have been sought against the Board specifically and the Council has not been named as a respondent.


. The reliefs pleaded by Mr Cooper do not lie against the Board and the Board is not the appropriate legitimus contradictor as what is sought is to set aside a decision of the Council. The Council would be and is the appropriate respondent and the proceedings as brought are bound to fail as they disclose no cause of action against the Board. In passing, the court notes that Dundrum Retail GP DAC, as general partner of Dundrum Retail LP, being the recipient of the grant of permission has not been named as a notice party.

The Present Motion

. By notice of motion of 1 st June 2021, the Board comes seeking, inter alia, the following principal relief:

1. An Order pursuant to Order 19, Rule 28 of the Superior Courts…and/or the inherent jurisdiction of [the court] …striking out the proceedings on the basis that they are out of time pursuant to s.50 of the Planning and Development Act 2000…and/or do not disclose a reasonable cause of actions and/or are improperly constituted and/or bound to fail”.


. Order 19, Rule 28 RSC provides as follows:

The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

Some Applicable Principles

. The following points/principles fall usefully to be brought to bear in the context of the within application:

  • 1. Acting pursuant to O.19 RSC and/or the inherent jurisdiction of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT