Harding v Cork County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 October 2006
• Neutral Citation: [2006] IEHC 295
• Judgment citation (vLex): [2006] 10 JIC 1203
• Court: High Court
• Date: 12 October 2006

[2006] IEHC 295

THE HIGH COURT

[No. 1323 J.R./2005]

HARDING v CORK CO COUNCIL & BORD PLEANALA

COMMERCIAL

BETWEEN

THOMAS HARDING

APPLICANT

AND

CORK COUNTY COUNCIL AND AN BORD PLEANÁLA

RESPONDENTS

AND

XCES PROJECTS LIMITED NOW KNOWN AS KINSALE HARBOUR RESORT DEVELOPMENTS LIMITED

NOTICE PARTY

HARDING v CORK CO COUNCIL 2006 2 ILRM 392

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 381

BALLINTUBBER HEIGHTS LTD v CORK CORPORATION UNREP O CAOIMH 21.6.2002 2003/5/898

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)(iv)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(d)

HARRINGTON v AN BORD PLEANALA UNREP MACKEN 26.7.2005 2005/29/5927

O'SHEA v KERRY CO COUNCIL 2003 4 IR 143

RYANAIR v AER RIANTA 2004 2 IR 344

O'BRIEN v DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP O'NEILL 1.6.2006 2006/44/9478

LANCEFORT v AN BORD PLEANALA 1999 2 IR 270

KINSELLA v DUNDALK TOWN COUNCIL UNREP KELLY 3.12.2004 2004/26/6127

EIRCELL v LEITRIM CO COUNCIL 2000 1 IR 479

STEFAN v MIN JUSTICE 2001 4 IR 203

HAVERTY, STATE v BORD PLEANALA 1987 IR 485

JERRY BEADES CONSTRUCTION LTD v DUBLIN CORPORATION UNREP MCKECHNIE 7.9.2005 2005/32/6641

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 44

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 34(4)

PLANNING & DEVELOPMENT ACT 2000 S247

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35(1)(b)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 35(1)(c)(iv)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 94

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART 10

EEC DIR 85/337

EEC DIR 97/11

PLANNING & DEVELOPMENT ACT 2000 S34(4)(a)

PLANNING & DEVELOPMENT ACT 2000 S34(10)(b)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 33(4)

ILLIUM PROPERTIES LTD v AN BORD PLEANALA & DUBLIN CITY COUNCIL UNREP HIGH COURT SMYTH 16.12.2004 2004/22/5171

PLANNING AND ENVIRONMENTAL LAW:

Planning permission

Judicial review - Application for leave to apply - Locus standi - Substantial grounds -Sufficient interest - Local government - Decision of planning authority - Whether substantial interest sufficient to give applicant locus standi - Whether existence of alternative remedy ground to refuse leave - Harrington v An Bord Pleanála [2005] IEHC 344 (Unrep, Macken J, 26/7/2005); O'Shea v Kerry Co Co [2003] 4 IR 143; Ryanair Ltd v An Bord Pleanála [2004] IEHC 52, [2004] 2 IR 344 and O'Brien v Dun Laoghaire-Rathdown Co Co [2006] IEHC 177 (Unrep, O'Neill J,1/6/2006) followed - State (Abenglen) v Dublin Corporation [1984] IR 381; Lancefort v An Bord Pleanála [1999] 2 IR 270; Kinsella v Dundalk Town Council [2004] IEHC 373 (Unrep, Kelly J, 3/12/2004); Eircell Ltd v Leitrim Co Co [2000] 1 IR 479; Stefan v Minister for Justice, Equality and Law Reform [2001] 4 IR 203; Jerry Beades Construction Ltd v Dublin City Council [2005] IEHC 406 (Unrep, McKechnie J, 7/9/2005) and Ballintubber Heights Ltd v Cork Corporation (Unrep, Ó Caoimh J, 21/6/2002) considered -Planning and Development Act 2000 (No 30),s 50(4) - Planning and Development Regulations 2001 (SI 600/2001), regs 33, 34and 35 - Leave refused (2005/1323JR -Clarke J - 12/10/2006) [2006] IEHC 295

Harding v Cork County Council

: The Applicant sought to challenge the decision of the respondent as to its notice of intention to grant planning permission of a tourist resort. Two preliminary questions were raised that were submitted as requiring determination prior to the consideration of whether substantial grounds existed to challenge the Council decision: firstly as to the adequacy of an appeal as a remedy and secondly as to the standing of the applicant to qualify him to seek judicial review. The applicant further contended that he had been improperly excluded from a reasonable opportunity to involve himself in the planning process.

Held by Clarke J., that whilst it had not been established that an appeal would necessarily amount to an adequate remedy, the applicant had not established a sufficient substantial interest to give him standing by way of an appropriate degree of connection and so leave would be refused.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Clarkedelivered 12th October, 2006.

1. Introduction

2 2 1.1 In these proceedings the applicant ("Mr. Harding") seeks to challenge a decision of the first named respondent ("Cork Council"). Cork Council has given notice that it intends to grant the notice party ("Kinsale Ltd.") a planning permission for the erection of what is described an "integrated tourism resort comprising of hotel, a conference building, a resort centre building with guest reception, offices, restaurant, bar and ancillary features, three storey spa building, overlapping terraced car parking facilities, hotel support services building, 18 hole golf course and driving range, golf academy, starter hut, golf clubhouse, no. 4 maintenance buildings, equestrian centre with no. 19 lodges outside the outside arena, indoor arena, amenity block with second indoor arena, stables, workshop, feed store building, no. 192 resort lodges/apartments, car parking, no. 3 ESB sub-stations, demolition of one residential property, waste water treatment facility, under ground biocycle treatment plant, irrigation tank, foul pumping station, site development and landscaping works".

3 The proposed development is at Preghane, Ballymacus, Kinsale in Co. Cork and subject to planning reference register 04/9262. The location is at a headland some little distance from Kinsale town. The relevant decision of Cork Council was made on 17th October, 2005. Mr. Harding was one of a number of persons and bodies who made observations as part of the planning process, directed towards persuading Cork Council to refuse permission. Some of those persons (but not Mr. Harding) have appealed the notice of intention to grant permission to the second named respondent ("the Board"). That appeal is now stayed pending the resolution of this application. The reasons for that stay are to be found in the judgment of Kelly J. in Harding v. Cork County Council [2006] 2 ILRM 392.

4 2 1.2 The application with which I am currently concerned is an application for leave to seek judicial review which, by virtue of s. 50(4)(b) of the Planning and Development Act 2000(as amended)("the 2000 Act") can only be granted where there are (1) "substantial grounds for contending that the relevant decision is invalid or ought to be quashed" and also where (2) it can be shown that the applicant concerned "has a substantial interest in the matter which is the subject of the application".

5 3 1.3 Counsel for Cork Council and counsel for Kinsale Ltd. have raised two preliminary questions which, it is contended, ought to be determined in advance of a consideration of whether there are substantial grounds for seeking to challenge the decision of Cork Council. It is said that if either, or both, of those preliminary issues are resolved against Mr. Harding, it will be unnecessary to consider the substantive leave application.

6 4 1.4 Those issues stem from contentions that:-

7 (a) Mr. Harding does not have a substantial interest in the subject matter of the application, sufficient to qualify him to be enabled to seek judicial review of the decision under s. 50(4)(b); and

8 (b) The challenge, being one to the decision of a planning authority, gives rise to circumstances where an appeal to the Board is the appropriate remedy placing reliance on the decision of the Supreme Court in State (Abenglen) v. An Bord Pleanála [1984] I.R. 381.

9 5 1.3 In addition this application raises a significant number of issues in respect of the substantive judicial review itself which will, in the event that the applicant succeeds in overcoming those preliminary objections, require to be resolved.

2. Should the Preliminary Issues be Tried First

10 2 2.1 The first question which needs to be addressed is as to whether objections to standing and objections based on the adequacy of an appeal to the Board as a remedy are, indeed, matters which should be determined before embarking upon a consideration of whether an applicant has established substantial grounds. In Ballintubber Heights Ltd v. Cork Corporation (Unreported, High Court, Ó Caoimh J., 21st June, 2002) Ó Caoimh J. noted that the planning acts envisaged that standing issues should be determined at the leave stage.

11 3 2.2 Subject to one caveat, I am satisfied that it is appropriate to address standing before going on to consider the grounds of challenge. Subject to a similar caveat, I am satisfied that an issue as to the adequacy of appeal should also be dealt with prior to considering whether there are substantial grounds for challenge. If a planning authority or the Board or, indeed, a notice party can satisfy the court that the person seeking judicial review does not have a sufficient interest to meet the test set out in s. 50, then it does not seem to me to be appropriate for the court to go any further in a consideration of whether there are substantial grounds for the challenge. Furthermore in cases where those parties persuade the court that an appeal to the Board would be an adequate remedy then it is, again, unnecessary to consider whether there are substantial grounds. In either case a decision as to whether there are, or are not, substantial grounds would be redundant. In such circumstances it would be unnecessary for the court to embark on a consideration of the strength of the grounds put forward for suggesting that the decision under challenge is invalid.

12 4 2.3 It seems to me, however, that while the above should generally be the approach of the court in such circumstances, it should not be adopted as a rigid or inflexible rule and there may be...