HARDING v CORK COUNTY COUNCIL & Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 31 January 2007
• Neutral Citation: [2007] IEHC 31
• Court: High Court
• Date: 31 January 2007

[2007] IEHC 31

THE HIGH COURT

[No. 1323 J.R./2005]

HARDING v CORK COUNTY COUNCIL & BORD PLEANALA

BETWEEN

THOMAS HARDING

APPLICANT

AND

CORK COUNTY COUNCIL AND AN BORD PLEANÁLA

RESPONDENTS

AND

ECES PROJECTS LIMITED NOW KNOWN AS KINSALE DEVELOPMENTS LIMITED

NOTICE PARTY

HARDING v CORK CO COUNCIL & BORD PLEANALA 2006 2 ILRM 392

PLANNING & DEVELOPMENT ACT 2000 S50

RSC O.84 r20(7)

RSC O.84 r25

GEE COMMERCIAL INJUNCTIONS 5ED PARA 23.036

KETCHUM INTERNATIONAL PLC v GROUP PUBLICATIONS HOLDINGS 1997 1 WLR 4 1996 4 AER 374

ERINFOLD PROPERTIES v CHESHIRE CO COUNCIL 1974 CH 261

WILLIAMS v MIN FOR ENVIRONMENT & HERITAGE 2003 199 ALR 352

RYAN PROPERTY TRUST LTD v DU CANE COURT LTD 1962 1 WLR 1085

Abstract:

Practice and procedure - Judicial review - Planning and Development Law - Substantial interest - Whether appropriate for court to grant a stay pending appeal preventing Board from processing appeal - S. 50 Planning and Development Act 2000

The applicant had brought previous proceedings to challenge a grant of planning permission to the notice party. The question arose whether it was appropriate for the High Court to grant a stay or injunction pending an appeal to the Supreme Court that would have the effect of preventing An Bord Pleanala from processing an appeal in the planning process. The standing of the applicant was also challenged to bring proceedings.

Held by Clarke J., that the court had jurisdiction to make such an order. The standing of the applicant was a matter to be determined by the Supreme Court.

Reporter: E.F.

1. Introduction

2 2 1.1 These proceedings have already been the subject of three judgments of this court. The applicant ("Mr. Harding") seeks to challenge a decision of the first named respondent ("Cork Council") in which it gave notice of intention to grant a planning permission to the notice party ("Kinsale Limited"). So far as the decision of this court is concerned those proceedings are now at an end and have been dismissed.

3 3 1.2 That decision is however, subject to a certificate which permits an appeal to be brought to the Supreme Court and, in those circumstances, the question which now arises is as to whether it is appropriate to grant a form of stay or injunction pending that appeal which would have the effect of preventing the second named respondent ("The Board") from processing an appeal in the planning process ("the planning appeal") pending the outcome of the appeal in the judicial review proceedings ("the court appeal"). This judgment is directed to that issue.

2. Procedural History

2 2 2.1 The first significant determination of this court in these proceedings was made on 28th February, 2006 when Kelly J. delivered a judgment (2006) IEHC 80 in which, for the reasons set out, an order was made which had the effect of staying the planning appeal pending the result of the judicial review proceedings in this court.

3 3 2.2 On 12th October, 2006 I delivered a judgment ("the leave judgment") in relation to Mr. Harding's application for leave to bring judicial review proceedings. For the reasons set out in that judgment I concluded that Mr. Harding had failed to meet the "substantial interest" threshold for standing as imposed by s. 50 of the Planning and Development Act 2000. The parties sought time to consider the text of the written judgment which was delivered on that date. When the matter next came before me it was indicated on behalf of Mr. Harding that it was his intention to seek the necessary certificate so as to enable an appeal to be brought to the Supreme Court. Other ancillary matters such as the costs of the leave application were also raised.

4 4 2.3 The case was then put back for further consideration in relation to whether or not it was appropriate to grant the certificate required by s. 50 of the 2000 Act so that an appeal could be brought. For the reasons set out in a further judgment of 30th November, 2006, ("the certification judgment") I decided that it was appropriate to give such a certificate. As a result Mr. Harding is now entitled to pursue an appeal to the Supreme Court. As soon as I indicated that I was prepared to give such a certificate, counsel for Mr. Harding raised the question of the continuance of the order made by Kelly J. (which would in effect prevent the Board from considering the planning appeal) pending the resolution of the appeal to the Supreme Court of the refusal to give leave to seek judicial review. For a variety of reasons, which it is not necessary to specify here, it took some little time before argument could be addressed on that issue. When argument was addressed, one significant issue of principle was raised which led me to the view that I should consider the matter further and this reserved judgment is the result of those deliberations.

5 5 2.4 The issue of principle raised concerned the jurisdiction of this court to make an order of the type sought. Before going on to consider that matter I should note that the Board adopted a neutral position in respect of this application just as it had in respect of the original application which was the subject of the judgment of Kelly J.

3. The Jurisdiction

2 2 3.1 Counsel for Kinsale Limited argues that this court does not have a jurisdiction to make an order of the type sought. In substance it is contended that this court's jurisdiction in relation to the case is spent when it delivers judgment. In the circumstances it is suggested that any entitlement to make an order, which would have the effect of preventing the planning appeal going ahead pending the court appeal, is a matter for the Supreme Court.

3 3 3.2 In the stay judgment Kelly J. had to consider the jurisdictional basis for the order then sought from him which, as I have pointed out, was designed to prevent the planning appeal going ahead pending the hearing of the judicial review...