Deerland Construction Ltd v Westmeath County Council
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE PETER KELLY |
| Judgment Date | 12 December 2006 |
| Neutral Citation | [2006] IEHC 420 |
| Court | High Court |
| Docket Number | Case No. 2006/1013JR |
| Date | 12 December 2006 |
[2006] IEHC 420
THE HIGH COURT
DUBLIN
and
and
PLANNING & DEVELOPMENT ACT 2000 S50(4)
PLANNING & DEVELOPMENT ACT 2000 S50
PLANNING & DEVELOPMENT ACT 2000 S50(2)
PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)
PLANNING & DEVELOPMENT ACT 2000 S50(4)(c)
PLANNING & DEVELOPMENT ACT 2000 S50(4)(c)(ii)
HARRINGTON v BORD PLEANÁLA & ORS 2006 1 IR 388
HARDING v CORK CO COUNCIL & BORD PLEANÁLA UNREP CLARKE 12.10.2006 2006 IEHC 295
MORIARTY v SOUTH DUBLIN CO COUNCIL UNREP HIGH HANNA 24.11.2005 2005/39/8212
BRADY & ORS v DONEGAL CO COUNCIL & DOYLE 1989 ILRM 282
PLANNING AND ENVIRONMENTAL LAW:
Locus standi
Judicial review - Submissions to planning process - Failure to make submissions - Good and sufficient reason for failure - Whether any explanation offered - Whether applicant having locus standi - Planning and Development Act 2000 (No 30), s 50(4)(C) - Application dismissed (2006/1013JR - Kelly J - 12/12/2006) [2006] IEHC 420 Deerland Construction Ltd v Westmeath County Council
section 50(4)(c) of the Planning and Development Act 2000 provides, inter alia, that “…leave shall not be granted to an applicant [to issue judicial review proceedings in relation to a grant of planning permission] unless the applicant shows to the satisfaction of the High Court that the applicant is a person who made submissions or observations in relation to the proposed development.” The respondent had granted planning permission to the notice party to change the use of its building. The applicant had not objected or made submissions to the respondent in relation thereto. The applicant then applied to the High Court for leave to quash that decision pursuant to section 50 of the Act of 2000. It contended that it had failed to make submissions or observations to the respondent on the basis that it was reasonably entitled to assume that the respondent would have refused planning permission on the grounds that to do so would have been a material contravention of its development plan.
Held by Mr Justice Kelly in refusing leave that it was appropriate to address the issue of an applicant’s locus standi prior to considering the grounds of challenge and where the court was satisfied that the applicant did not have a sufficient interest to meet the test in section 50(4)(c) of the Act of 2000, it was not appropriate to consider whether there were substantial grounds for the challenge. There were n valid reasons forwarded by the applicant for its failure to make submissions or observations or objections to the respondent in relation to the grant of permission.
Reporter: P.C.
MR. JUSTICE KELLY: On the 23rd October 2006, I admitted this case to the Commercial List and on the same day directed the trial of a preliminary issue to be heard today. This is my judgment on that preliminary issue.
The question for determination is whether or not the Applicant has locus standi to bring or maintain these proceedings having regard to the provisions of Section 50(4) of the Planning and Development Act2000. The issue, if decided in a manner adverse to the Applicant, will be dispositive of the entire application.
The Applicant is the owner of Harbour Place Shopping Centre in Mullingar, Co. Westmeath. The Notice Party is a rival to the Applicant at Grand Parade, Mullingar, Co. Westmeath. In these proceedings the Applicant will, at the next stage, if permitted, seek leave to apply for judicial review of a decision of Westmeath County Council of the 29th June of this year. If granted such leave it will at the full hearing seek certiorari directed to Westmeath County Council in respect of that decision.
The decision of Westmeath County Council granted permission to the Notice Party to change the use of three units of a retail development at Grand Parade, Mullingar, from bulky goods to general retail. It is common case that the application for a judicial review is covered by Section 50 of the Planning and Development Act2000.
Section 50(2) mandates that a person shall not question the validity of a planning permission, such as the one in suit, otherwise than by an application for judicial review under order 84 of the Rules of the Superior Courts.
Section 50(4) fixes a short time within which such an application must be brought. It is 8 weeks. Whilst there is a jurisdiction vested in the Court to extend that time, the Court is forbidden to do so unless it considers that there is good and sufficient reason for doing so. The application for leave must be made on notice per section 50 (4)(b) and the Court is prohibited from granting such leave unless there are:
"Substantial grounds for contending that the decision is invalid or ought to be quashed and that the Applicant has a substantial interest in the matter which is the subject of the application".
Section 50(4)(C) reads, insofar as it is relevant to this application, as follows:
"Without prejudice to the generality of paragraph (B) leave shall not be granted to an Applicant unless the Applicant shows to the satisfaction of the High Court that the Applicant is a person who made submissions or observations in relation to the proposed development."
It is accepted by the Applicant that it did not make submissions or observations to Westmeath County Council in relation to the proposed development. It follows that in such circumstances the Court is prohibited from granting leave to apply for judicial review save where an Applicant can show that he, she, or it falls within the saving provisions of section 50 (4)(c)(ii). That provides that a person who, such as the Applicant, did not make submissions or observations to the Planning Authority may be given locus standi to apply for leave for judicial review if, "there were good and sufficient reasons for his or her not making objections, submissions or observations as the case may be."
Having read the papers in advance of the hearing I was unable to find any information or explanation in the affidavit evidence as to why and in what circumstances the Applicant had failed to object to Westmeath County Council in respect of the permission sought by and ultimately granted to the Notice Party. Still less could I find any reason for such failure. When I queried this with Counsel for the Applicant he accepted, with commendable candour, that there was in fact no reason whatsoever advanced nor was one being advanced for this failure.
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