David Kelly, Julie Kelly, Tony Dalton, Mary Dalton, Sean Mooney, Grainne Mooney, Maire Forrestor, Rosalind Mathews v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Holland
• Judgment Date: 28 April 2022
• Neutral Citation: [2022] IEHC 238
• Docket Number: 2021 No 771JR

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

David Kelly, Julie Kelly, Tony Dalton, Mary Dalton, Sean Mooney, Grainne Mooney, Maire Forrestor, Rosalind Mathews

Applicants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Atlas GP Limited

Notice Party

[2022] IEHC 238

2021 No 771JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Strategic housing development – Notice party seeking an order setting aside the grant of leave to seek judicial review – Whether the application for judicial review was brought for an improper and/or collateral purpose

Facts: The High Court (Holland J), by order made the 14th of December 2021, on foot of an ex parte application in substance moved that day, granted to the applicants, Mr and Ms Kelly, Mr and Ms Dalton, Mr and Ms Mooney, Ms Forrestor and Ms Mathews, leave to seek judicial review of the decision (the Impugned Permission) of the respondent, An Bord Pleanála (the Board), made the 8th July 2021 to grant to the notice party, Atlas GP Ltd (Atlas), planning permission for the construction of a strategic housing development (SHD) of 255 residential units, a childcare facility and associated works at lands of about 2.5 hectares off Church Road, Killiney, County Dublin. In doing so Holland J gave the applicants liberty to amend in certain respects the grounds upon which a formal application had been made on 12th August 2021 to “stop the clock” for purposes of the statutory time limit for the making of an application for leave to seek judicial review. Holland J also stayed development on foot of the impugned permission pending further order and in contemplation of an inter partes application for such a stay in due course. By notice of motion dated 23 December 2021, Atlas sought the following reliefs: an order setting aside the grant of leave to seek judicial review; and an order pursuant to the inherent jurisdiction of the Court striking out the application for judicial review as an abuse of the SHD process and/or as being brought for an improper and/or collateral purpose. While the notice of motion did not seek to set aside Holland J’s order as to amendment of the statement of grounds, the contemporaneous affidavit grounding that notice of motion did so.

Held by Holland J that the applicants need not show that they are personally affected by each individually of the grounds on which they rely, once they have shown standing in the general sense of proximity and prior participation. Holland J held that the applicants’ standing is not delegitimised by reference to their subjective attitude to the specific grounds marshalled in support of their legitimate purpose of preventing development on foot of the Impugned Permission; their purpose and their grounds may ultimately fail, but that does not make them illegitimate in the sense for which Atlas contended, such that leave should be set aside in whole or in part. Holland J held that there are limits on the applicants’ standing to raise grounds not raised before the Board, but these are subject to many exceptions including, for example, the “Homework” principle identified by Humphreys J in cases such as Reid v An Bord Pleanála [2021] IEHC 230 and Atlantic Diamond Ltd v An Bord Pleanála & EWR Innovation Park Ltd [2021] IEHC 322. Having regard to those principles and to factual analysis, Holland J considered that it was not “very plain” as to the proceedings generally, or as to any specific ground, that leave to seek judicial review should not have been granted and he refused to set leave aside in whole or in part. Holland J refused the application to disallow the amendments.

Holland J dismissed Atlas’s application in all respects. Holland J’s provisional view was that the applicants should have their costs of the motion as following the event of its dismissal.

Application dismissed.

Contents

JUDGMENT OF MR JUSTICE HOLLAND delivered the 28 th of April 2022	2
INTRODUCTION & BACKGROUND	2
THE MOTION TO SET ASIDE LEAVE	10
Introduction	10
Setting Leave Aside – the “Very Plain” test – Adam & Iordache, Gordon & other cases	13
Standing – “Sufficient Interest”	20
Harrington	20
Harding & Commission v Ireland	23
The return to “Sufficient Interest” & Commission v Germany	28
Grace & Sweetman	31
Conway	33
Issue-Specific Standing – Points not Raised before the Board — M28, Reid & Atlantic Diamond	34
Issue-Specific Standing — Motive and Interest — Kides, Atlantic Diamond, Mount Cook, Independent v I.A. & Fladgate Fielder	38
THE FACTS & COMMENT THEREON	43
2018 & 2021 Proposals – Table of Comparison & Applicant Submissions to Board in 2021	43
DLRCC Report to Board	46
Individual Grounds & Comment thereon	48
Affidavit of Pat Crean & Affidavits in Motion to Set Aside Leave.	53
Conclusions On Standing	56
THE MOTION TO SET ASIDE AMENDMENT OF GROUNDS	56
CONCLUSION	62

JUDGMENT OF Mr Justice Holland delivered the 28 ^th of April 2022

INTRODUCTION & BACKGROUND

1 By Order made the 14 ^th of December 2021, in these proceedings and on foot of an ex parte application in substance moved that day, I granted to the Applicants leave to seek judicial review of the decision 2 (“the Impugned Permission”) of the Respondent (“the Board) made the 8 ^th July 2021 to grant to the Notice Party (“Atlas” – a company in the Martlet Property Group 3) planning permission for the construction of a strategic housing development 4 of 255 residential units, a childcare facility and associated works at lands of about 2.5 hectares off Church Road, Killiney, County Dublin (“the Site”). In doing so I gave the Applicants liberty to amend in certain respects the Grounds upon which a formal application had been made on 12 ^th August 2021 to “stop the clock” for purposes of the statutory time limit for the making of an application for leave to seek judicial review. I also stayed development on foot of the impugned permission pending further order and in contemplation of an inter partes application for such a stay in due course. No Statements of Opposition have yet been filed.

2 The Applicants are local residents living near the Site and all participated in the planning process before the Board.

3 This judgment was to address two motions heard together. The papers in the two motions are relatively brief but the parties are agreed that I may have regard to such other papers in the proceedings as I find of assistance. As Hardiman J said in Adam & Iordache 5, any order made ex parte is provisional only. It is subject to being set aside on foot of an inter partes hearing. Atlas issued a motion to set aside the leave which I had granted. The Applicants issued a motion for a stay, pending trial of these proceedings, of development on foot of the Impugned Permission. The Board played no part in either motion. During the hearing, the parties agreed to adjourn the motion for a stay to the trial of the action. I did so on terms which need not be recorded here. Accordingly, this judgment addresses only the motion to set aside leave.

4 These proceedings are part of a series of litigation. Since the clock was stopped in judicial review, Atlas has commenced plenary proceedings as follows:

• • Proceedings 2021/5608P served 30 ^th September 2021 against the Applicants alleging defamation and seeking injunctions accordingly. These proceedings arise out of the contents of a “flyer” which sought to raise community support for opposition to Atlas's proposed development. While I have seen only the Statement of Claim in that case, it seems clear on the affidavits to hand that all relevant matters are likely to be in issue – including the identity of the publishers of the flyer.

• • Proceedings 2021/6059P issued on 2 ^nd November 2021, against the Applicants Sean and Grainne Mooney, claiming damages for defamation of title, nuisance, breach of restrictive covenant, breach of easement and claiming that the Mooneys are estopped from challenging the Impugned Permission. These proceedings assert that the Mooneys, as owners of a home built on land formerly held with the Site by Atlas's predecessors in title and sold by those predecessors to the developers of what is now the Mooneys' home, are bound by a covenant, in a deed of sale dated 22 ^nd November 2000 from Atlas's predecessors in title to those developers, that those developers would not object to any planning permission in respect of the site.

• • Proceedings 2021/6260 issued on 11 ^th November 2021 against the Applicants alleging champerty and maintenance by way of the illegal funding of these proceedings by third parties – essentially and allegedly other local residents and residents' associations — and seeking injunctions restraining the prosecution of these proceedings and the identification of the alleged third parties. A motion for interlocutory injunctive relief is for trial in May 2022 in the Chancery list. Those allegations remain to be considered in those proceedings and did not form part of the basis on which Atlas, in these proceedings, sought to set aside leave.

5 As to the proceedings against the Mooneys, Atlas's grounding affidavit in the motion to set aside leave, asserts that “the purchasers of Nos. 1 – 5 St Matthias' Wood, [including the Mooneys] were on notice that the Site would be developed out on scale and that they further covenanted that they would not object to the application for planning for the Site.” This repeats an identical averment by Pat Crean, a director of Atlas, by Affidavit sworn 11 ^th August 2021. Mr Crean had exhibited the deed alleged to contain such covenant and Atlas's grounding affidavit exhibits it again. In such circumstances of repetition, it...