Dunlea v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 14 May 2024
• Neutral Citation: [2024] IEHC 295
• Court: High Court
• Docket Number: Record No. 2019/315JR

Between/

Sandra Dunlea

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Dermot Griffin, Breda Griffin, Micheal Griffin and Kerry County Council

Notice Parties

[2024] IEHC 295

Record No. 2019/315JR

THE HIGH COURT

Ex tempore JUDGMENT of Mr. Justice Conleth Bradley delivered on the 14 ^th day of May 2024

INTRODUCTION

Preliminary

1 This is an application by the Second, Third and Fourth Named Respondents (“the State Respondents”) seeking to dismiss the reliefs claimed by the Applicant as against the State Respondents for want of prosecution because of inordinate and inexcusable delay pursuant to my inherent jurisdiction and/or for want of prosecution within the time periods referred to in Order 122, rule 11 of the Rules of the Superior Courts, 1986, as amended (“RSC 1986”).

2 A minor procedural application is also applied for, due to the change in the name of the Second Named Respondent from ‘ The Minister for the Environment, Heritage and Local Government’ to ‘ The Minister for Housing, Local Government and Heritage’ since the date of the order of this court (Noonan J.) granting leave to apply for judicial review on 27 ^th May 2019. I shall accede to the change of name application and this is also reflected in the description of the Second Named Respondent in the title of this ex tempore judgment.

3 The proceedings relate to the Applicant's challenge to a decision of An Bord Pleanála (“the Board”) dated 25 ^th April 2019 allowing an appeal against the initial decision dated 14 ^th December 2018 of Kerry County Council to grant planning permission to the Applicant for the construction of a dwelling house, installation of wastewater treatment unit and soil polishing filter, new entrance and access road and associated site works at Barleymount West, Killarney, County Kerry. The Applicant's central challenge is to the decision of the Board.

4 Insofar as the Applicant seeks reliefs as against the State Respondents, if the Applicant fails in her challenge to the decision of the Board, it is pleaded and alleged that (a) the Sustainable Rural Housing Guidelines 2005 and National Policy Objective 19 should be interpreted having regard to the property and family rights of the Applicant under the Constitution and (b) they represent an impermissible restriction on the property rights of the Applicant and her family, and are thereby unconstitutional and an interference in the Applicant's family life.

5 Anthony McBride SC (with Niall Handy SC) appeared for the State Respondents and, as explained later in this judgment, there was no appearance by or on behalf of the Applicant. As the motion was enjoined as between the State Respondents and the Applicant only, the Board and the Notice Parties did not participate in this application.

Chronology

6 The Applicant's Statement of Grounds and verifying Affidavit are dated 23 ^rd May 2019. These are the central documents for an applicant in any judicial review application. At paragraph F of the Statement of Grounds, the Name and Registered Place of Business of the Solicitors for the Applicant is recorded as Terence F. Casey, 99 College Street, Killarney, County Kerry and at paragraph G of the Statement of Grounds, the Applicant's Address for Service within the Jurisdiction is recorded as ‘ Upon her Solicitors.’

7 The order granting the Applicant liberty to apply for judicial review from Noonan J. is dated 27 ^th May 2019. The Board's Statement of Opposition and verifying Affidavit are dated 18 ^th November 2019. The State's Statement of Opposition and verifying Affidavit of Colin Ryan are dated 9 ^th February 2021.

SERVICE & NOTIFICATION OF THIS APPLICATION

8 The Affidavit of Siobhán McNamee (State Solicitor in the Office of the Chief State Solicitor), sworn on 17 ^th April 2024, confirms service of the State's dismissal application comprising the Notice of Motion dated 28 ^th March 2024, which was returnable to 24 ^th April 2024, and the grounding Affidavit of Siobhán McNamee dated 28 ^th March 2024, together with exhibits A, B and C on Sandra Dunlea (the applicant in these proceedings) on 5 ^th April 2024 confirms the posting of a true copy of these documents to Ms. Dunlea at Saint Andrews Street Post Office, Dublin 2 in a registered prepaid envelope addressed to Terence F. Casey & Company Solicitors, 99 College Street, Killarney. Ms. McNamee exhibits the Official Post Office Certificate of Posting, proof of delivery and confirms that this documentation has not been returned by the Postal Authorities marked undelivered. Ms. McNamee further states that on 11 ^th April 2024, within three days after the service of the documents, she endorsed on the Notice of Motion the day, week and month of such service.

9 The further Affidavit of Ms. McNamee, State Solicitor sworn on 13 ^th May 2024 states that she notified the Applicant's solicitors by letter dated 25 ^th April 2024 of the hearing date on 13 ^th May 2024 of the State's motion to dismiss the Applicant's claims as against the State Respondents. This letter was served by e-mail and DX on 25 ^th April 2024 and was also sent by registered post on 26 ^th April 2024 on the Applicant, Ms. Dunlea, by posting a true copy of the letter at Saint Andrews Street Post Office, Dublin 2 in a registered prepaid envelope addressed to Terence F. Casey & Company Solicitors, 99 College Street, Killarney, County Kerry. Ms. McNamee exhibits the Official Post Office Certificate of posting of the registered envelope and confirms that the documents have not been returned by the Postal Authorities marked undelivered.

10 Ms. McNamee, State Solicitor, further states that she served a true copy of her letter dated 3 ^rd May 2024 by e-mail and by DX on the Applicant's solicitors, notifying them again of the hearing date of the State Respondents' motion to dismiss on 13 ^th May 2024, along with the submissions filed on behalf of the State Respondents and received a confirmed delivery receipt from postmaster@tfcasey.ie on 3 ^rd May 2024 at 17:02. The letter of 3 ^rd May 2024 and the State Respondents' submissions were also sent by registered post on 8 ^th May 2024 on the Applicant's solicitors by posting true copies of these documents at Saint Andrews Street Post Office, Dublin 2 in a registered prepaid envelope addressed to Terence F. Casey & Company Solicitors, 99 College Street, Killarney, County Kerry. Ms. McNamee exhibits the Official Post Office Certificate of posting of the registered envelope and confirms that the documents have not been returned by the Postal Authorities marked undelivered.

11 Ms. McNamee states that she served a true copy of her letter dated 9 ^th May 2024 by e-mail and by DX on the Applicant's solicitors, notifying them again of the hearing date of the State Respondents' motion to dismiss on 13 ^th May 2024 and further informing them that the State Respondents' application to dismiss was called on before Ms. Justice Hyland in Court 6 (Four Courts) and that the application would be heard on Monday 13 ^th May 2024. Ms. McNamee states that she received a confirmed delivery receipt from p...