Fagade Retention? Standing of Incorporated Persons to Challenge Planning Permission
| Author | Oran Doyle |
| Position | Senior Sophister Law Student, Trinity College Dublin |
| Pages | 106-123 |
FAI
ADE
RETENTION?
STANDING
OF INCORPORATED
PERSONS
To
CHALLENGE
PLANNING
PERMISSIONS
ORAN
DOYLE*
Introduction
The
Issue
Traditionally,
the Irish
courts
have
taken
a
relaxed
approach
to
the issue
of
standing with
regard
to
the
judicial
review
of
planning decisions.
Scannell
accurately
summarised
the
law
by
observing:
The
locus
standi
rules
are
therefore
essentially
a
matter
for
the
court's
discretion
but
all
indications
in
environmental
cases to
date
support
the view
that
standing
for
judicial
review
in
these.
cases will
rarely
be
denied.'
However,
the comments
of
Lynch
J.
in
Malahide
Community
Council Ltd.
v.
Fingal
County
Council
cast
some
doubt
on
the
traditionally
broad
approach
to
standing, particularly
with
reference
to
the
standing
of
incorporated
persons
to
challenge
planning
permissions:
I
find
it
difficult
to
see
how
a
limited
company incorporated
under
the Companies
Acts,
1963
to
1995
can
be
affected
by
planning
objections, decisions
or
applications.
As
an
artificial
body
or
person
lacking
the five senses
of
human
persons, it can
never experience
the
pleasure
of
open
spaces,
beautiful
gardens
and
woods
or the
physical
satisfaction
of
sports
facilities:
it
can
never
be
nauseated
by
foul
smells
nor
deafened
by
noisy
industry
or
loud
and
raucous
music
nor
have
a
cherished
view
of
open spaces
obstructed by
new
buildings.
Good,
bad or
indifferent
planning
decisions cannot
affect
this
artificial corporate body
in
any
way,
except
by
increasing
or
*
Senior
Sophister
Law Student, Trinity
College
Dublin.
The
author
is
grateful for
the
helpful
comments
of
Professor
Yvonne
Scannell
on
an
earlier
draft
of
this
article.
Scannell,
Environmental
and
Planning
Law
in
Ireland
(Round
Hall
Press,
1994),
at
108.
2
383.
©
1999
Oran
Doyle
and
Dublin University
Law
Society
Faqade
Retention
diminishing
its
asset value
if
it
owns land or
buildings
favourably
or
unfavourably affected
by
such
decisions.
In
the
absence
of
economic
interests
it
seems
to me
that
a
limited
company
is
not
an
appropriate
body
to
litigate
matters arising
from
the
Local
Government
(Planning
and
Development)
Acts,
1963
to
1993.
3
These
comments
evidence
a
very
different approach
to
the
question
of
standing.
They
raise
important questions
of
planning
law,
administrative
law
and
company
law. The
remarks seem
to
have
acted
as
an
invitation
to
litigate,
and
this
particular
standing issue has now
been raised
directly
before
the
courts
on
a
number
of
occasions.
Following
the decision
of
the
Supreme
Court
in
Lancefort
v.
An
Bord
Pleandla,
4
there
is
now
a
situation
in
which
standing will
be denied
to
applicants
for
judicial
review
of
planning
permissions.
It
is
the
purpose
of
this
article
to
examine
critically
the
reasoning
employed
in
the
Lancefort
case
so
as
to
ascertain
exactly
what thiat
situation
is.
5
An
Outline
of
the
Lancefort
Litigation
Following
the
grant
by
An
Bord
Pleandla
of
planning
permission
for
a
hotel
in
central
Dublin,
a
number
of
parties who
had
participated
in
the
planning
appeal
incorporated
a
company
limited
by
guarantee,
named
Lancefort,
to challenge
the
decision
in
the
courts by
way
of
judicial
review.
of
the
as
amended
by
of
the
1992,
provides
that
leave to
apply
for
judicial
review
shall
not
be
granted
unless
the High
Court
is
satisfied that
there
are
substantial
grounds for
contending that
the
decision
is
invalid
or
ought
to
6
be
quashed.
In
Lancefort,
Morris
J.
held,
inter
alia,
that
the applicant
company
had
shown substantial
grounds and
that
it
had standing
to
bring
the
application.
7
This
decision
was
appealed
by
Lancefort,
Ireland
and
the
3Ibid.,
at
400,
per
Lynch
J.
4
401.
5
The
purpose
of
the
criticism
is
to
highlight
the
different
approaches
to
the issue
and
to
attempt
to
elucidate
principles
on
which
future
consideration
of
the
issue
might
be based.
6
It
also
provides
that
applications
for
judicial
review
of
planning
decisions
must
be
taken
within
two
months
of
the
2
ILRM
508.
Although
Morris
J.
identified
a
number
of
substantial
grounds,
only
one
of
these
was still
being
argued
by
the
applicant
by
the stage
of
the
Supreme
Court
appeal.
This
argument
was
that
An
Bord Pleandla was under
an
obligation
(arising
from
the
terms
of
Council
25
June
1985
on
the
assessment
of
the
effects
of
certain public
and
private projects
on
the
Environment,
OJ
L175/40,
5
July
1985,
hereinafter
referred
to
as
the
"EIA
where
convenient)
to
consider
whether
an
environmental
impact
assessment
(EIA)
was
necessary
in
the
circumstances
of
the case. Hereinafter, this
argument
1999]
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