Harding v Cork County Council

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 02 May 2008
• Neutral Citation: [2008] IESC 27
• Court: Supreme Court
• Docket Number: Record No. 18/07,[2005 No. 1323 JR]
• Date: 02 May 2008

BETWEEN

THOMAS HARDING

APPELLANT/APPLICANT

and

CORK COUNTY COUNTIL AND AN BORD PLEANALA

RESPONDENTS

and

XCES PRODUCTS LIMITED NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LIMITED

NOTICE PARTY

Chief Justice

Kearns J.

Finnegan J.

Record No. 18/07

THE SUPREME COURT

Abstract:

Judicial review - Locus standi - Substantial interest - Decision making process - Right to participate in planning process - Substantial grounds test - Whether existence of substantial grounds to seek judicial review of itself conferring substantial interest in subject matter of judicial review - Whether applicant having substantial interest in subject of application for judicial review - Whether applicant entitled to leave to seek judicial review - Planning and Development Regulations 2001 (SI 600), art 35 - Planning and Development Act 2000 (No 30), s 50(4)

Facts: Section 50(4) of the Planning and Development Act 2000 provides, inter alia, 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 be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application." Article 35(1) of the Planning and Development Regulations 2001 provides that where a planning authority receives further information or material in relation to an application and it considers that that further material contains significant additional data it is required to notify any person who made a submission in relation to the planning permission as soon as may be indicating that such significant further information or material has been furnished to it and provides for a further submission or observation being made by the person concerned in relation to the further information or other material. The applicant had made objections, pursuant to art 29 of the Regulations of 2001, to the respondent concerning an application for planning permission for a building project. He lived some three kilometers from the proposed project. Following the receipt of further information from the builder, the respondent notified the applicant thereof by registered post to the address he had provided to the respondent. The applicant complained that, as he was on a boat at the time, he only received the information two days prior to the deadline for making further submissions thereon and that his right to participate in the planning process had been unlawfully restricted thereby. The High Court refused the applicant leave to seek judicial review of the decision of the respondent to grant permission on the basis that he had failed to show a substantial interest in the matter the subject of the application. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray CJ and Kearns J: Finnegan J concurring) in dismissing the appeal:

that, to establish a substantial environmental interest, an applicant had to establish that he had an interest in the building project the subject of the proceedings which was peculiar and personal to him and that that interest was significant and weighty in the sense that he has a demonstrable stake in the project, perhaps shared with others, deriving from the proximity and connectedness of his interest to the proposed development and its likely or probable effects;

that the right to make submissions pursuant to art 35 of the Regulations of 2001 was a right vested in such a person by law and was one which was personal and peculiar to him and if an individual was denied such a statutory right he had, potentially, a "substantial interest" in seeking a judicial remedy including by way of judicial review, with a view to impugning a decision made in breach of that right. However, the requirement in art 35 that notification be given "as soon as may be" had to be interpreted in light of the fact that it was an administrative procedure and requirements as to time had to be interpreted having regard to the ordinary burdens of administration in any organization and, on the facts, no wrongful act on the part of the respondent adversely affected the applicant's rights or interests in that regard.

(per Kearns J) that the two concepts of "substantial grounds" and "substantial interest" in s 50 of the Planning and Development Act 2000 should not be conflated and that the existence of substantial grounds to seek a judicial review did not confer on an applicant locus standi where no substantial interest existed.

Reporter: P.C.

1 Judgment of Mr Justice Finnegan delivered on the 2nd May 2008

2 The questions certified by the learned High Court judge pursuant to the Planning and Development Act 2000 section 50(4)(f)(i) raises important and complex issues on the construction of section 50(4)(b) and in particular the criteria by reference to which a person may be said to have a substantial interest in the matter which is the subject of the application. I have had the benefit of reading the judgments of the Chief Justice and Mr Justice Kearns. Insofar as the criteria for establishing an environmental interest is concerned I concur fully with the judgments. In the context of an environmental interest the appellant has failed to establish a substantial interest and I would dismiss the appeal.

3 It is also contended by the appellant that there was a procedural deficit in the proceedings of the Planning Authority and that as a participant in the planning process he has a substantial interest in the regularity of the procedures which attended the application in issue in these proceedings. He alleges numerous breaches and non-compliances by the Planning Authority with the Planning and Development Regulations 2001. I agree with the judgments of the Chief Justice and Mr Justice Kearns that with one exception the breaches and non-compliances relied upon do not involve any interest peculiar or personal to the appellant and could not therefore satisfy the statutory requirement of substantial interest. The exception is his contention that there was a failure to comply with the Planning and Development Regulations 2001 Article 35(1). Having regard to the provisions of the Planning and Development Act 2000 section 250, however, it is clear that the Planning Authority was not in breach of Article 35(1) of the Regulations. The Regulations in Article 29(1)(b) require that any submission or observation in relation to a planning application shall state the name and address of a person making the same. Section 250(1) provides that a notice required by the Act or any Regulation to be served or given to any person may be served or given by sending it by post in a pre-paid registered letter addressed to him or her at the address for service which has been furnished and that is what occurred here.

4 It being the case that the appellant has not established any procedural deficit or irregularity whatsoever which is substantial it is not necessary that the court on this appeal to determine whether, should there have been a breach of Article 35(1) or other requirement of the Act or Regulations, the appellant would have been entitled to challenge by judicial review the decision of the Planning Authority on the basis that his participation in the process could give him a substantial interest. I would leave over for determination on an appeal in which such a breach has been established the determination of whether any breach of the Act or Regulations could be the basis of an application for judicial review and if so the criteria by reference to which it could be said that a person relying on the same has a substantial interest. I am, however, satisfied that mere participation in the planning process of itself is insufficient to constitute such an interest. If such participation could constitute an interest for the purposes of section 50 the interest identified of necessity would have to be one peculiar or personal to the applicant for judicial review to meet the requirement of being substantial. I would leave over consideration of this issue and, if appropriate, the criteria to a future case in which these issues require to be determined.

5 THE SUPREME COURT

6 JUDICIAL REVIEW

7 Murray C.J.

Kearns J. Finnegan J.

8 [S. C. No. 18/07]

9 BETWEEN

10 THOMAS HARDING

11 APPELLANT/APPLICANT

12 AND

13 CORK COUNTY COUNCIL

14 AND

15 AN BORD PLEANALA

16 RESPONDENTS

17 AND

18 XCES PROJECTS LTD. NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LTD.

19 NOTICE PARTY

20 JUDGMENT of Mr. Justice Kearns delivered the 2nd day of May, 2008

21 The applicant is a sailor and retired merchant seaman who lives in the town of Kinsale. He has lived all his life in Kinsale and grew up in the Ballymacus area where the notice party has been granted planning permission for a substantial hotel, golf and leisure resort at Ballymacus Head and Preghane Point at the entrance to Kinsale Harbour.

22 Mr. Harding is totally opposed to this development on environmental grounds, although he lives some three kilometres away from the site of the proposed development. Members of his extended family still reside in the Ballymacus area and his uncle, Charles Harding, owns a portion of the headland itself. In his various affidavits sworn in the proceedings, Mr. Harding asserts that he has over the years maintained a constant and continuous interest in the area and visits it frequently. He visits the area both by land and sea and contends that for these reasons he has a substantial interest in the development project as the same is defined at s. 50 of the Planning and Development Act, 2000.

23 While the applicant was an objector to the proposed development and participated in the planning process, the first named respondent made a decision on 1st October, 2005 to grant planning permission to the notice party for the proposed...