Irish Hardware Association v South Dublin County Council & Barkhill Ltd

JurisdictionIreland
JudgeKeane C.J.
Judgment Date23 January 2001
Neutral Citation[2001] IESC 5
CourtSupreme Court
Date23 January 2001

[2001] IESC 5

The Supreme Court

Keane C.J.

Denham J.

Murphy J.

Murray J.

McGuinness J.

266/2000
IRISH HARDWARE ASSOCIATION v. SOUTH DUBLIN CO COUNCIL & BARKHILL LTD

BETWEEN:

IRISH HARDWARE ASSOCIATION
Applicant/Appellant

and

SOUTH DUBLIN COUNTY COUNCIL
Respondent

and

BARKHILL LIMITED
Notice Party/Respondent

and

THE ATTORNEY GENERAL
Notice Party

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

CONSTITUTION ART 34.4.3

IRISH ASPHALT LTD V BORD PLEANALA 1996 2 IR 179

MOGUL OF IRELAND V TIPPERARY (NR) CO COUNCIL 1976 IR 261

AG V RYANS CAR HIRE LTD 1965 IR 642

BROWNE, STATE V FEARON 1967 IR 147

AG, PEOPLE V CONMEY 1975 IR 341

HANAFIN V MIN FOR ENVIRONMENT 1996 2 IR 321

Synopsis

Planning

Planning; development plan; original application altered; planning permission granted by respondent; no appeal lodged within the prescribed time; applicant unaware of the alteration in the plans; leave to apply for judicial review granted; applicant's claim for certiorari dismissed; applicant applied for certificate that his decision involved a point of law of exceptional public importance; application for certificate refused; refusal to grant certificate appealed; whether appeal lies to the Supreme Court on refusal to grant certificate; s.19, Local Government (Planning and Development) Act, 1992.

Held: Relief refused.

Irish Hardware Association v. South Dublin County Council - Supreme Court: Keane C.J., Denham J., Murphy J., Murray J., McGuinness J. - 23/01/2001 - [2001] 2 ILRM 291

The applicant had brought proceedings seeking to have the planning permission that was granted to the notice party quashed. Butler J held that a planning authority was entitled to grant the planning permission in question and refused the relief sought by the applicant. The applicant then sought a certificate pursuant to section 19 of the Local Government (Planning and Development) Act, 1992 that the point of law involved was of exceptional public importance. This application was refused in the High Court and the applicant appealed. Keane CJ, delivering judgment, held that the High Court had the power alone to issue such a certificate. The appeal would be dismissed.

1

JUDGMENT of the Court delivered the 23rd day of January 2001 by Keane C.J.

2

The history of this matter is as follows. On the 18th March 1998, the notice party applied to the respondent for permission for a development consisting of retail warehousing at Liffey Valley Town Centre, Fonthill Road, Clondalkin, Co. Dublin. The original application was for five retail warehousing units amounting to some 12,165 square metres, all of which units were to be accommodated under one roof. The respondent sought further information from the notice party and, in its reply, the latter proposed a significant alteration to the former plan in that, instead of five retail warehouse units, there was now to be one "giant unit" of some 9,650 square metres with, on one side, a garden centre of some 2,100 square metres and on the other side a dry goods store of some 1,912 square metres. On the 19th May 1999, the respondent issued a notification of its decision to grant permission and, as no appeal was lodged within the prescribed time, a grant of permission was issued on the 1st July 1999.

3

The applicant was unaware of the alteration in the plans until shortly before the institution of these proceedings.

4

On the 11th October 1999, the High Court (Barr J.) gave the applicant leave to apply by way of an application for judicial review for an order of certiorari quashing the decision of the respondent to grant planning permission for the development. While leave was given on a number of grounds, those most strongly relied on by the applicant were:

5

(1) That the development for which permission was granted was significantly different from the development which was the subject of the application and that, accordingly, the decision to grant permission was unlawful and ultra vires;

6

(2) That, before deciding to grant any such permission, the respondent should have required the notice party to notify the public of the alterations in the plans for the development;

7

(3) That the respondent, in dealing with the application, failed to take into account the criteria laid down for such developments in the relevant statutory instrument, because of what was claimed to be a mistaken assumption on their part that, permission having already been granted for the use of the site as a retail park by a permission granted in 1997, the planning issues had thereby been resolved.

8

Statements of opposition having been filed on behalf of the respondent and the notice party, the application for judicial review came on for hearing before Butler J. In a reserved judgment delivered on the 19th July last, he dismissed the applicant's claim, holding inter alia that the development for which permission was granted was not materially different from that which was the subject of the application but that, in any event, a planning authority was entitled to grant permission for a development substantially different from that originally applied for. The learned trial judge also said that he was satisfied that anyone interested in retail warehousing in the area in question was properly put on notice that application was being sought for a permission for retail warehousing and that information as to the modified plans was available to the public. He also said that he was satisfied that the respondents took into account the substance of the policy criteria laid down in the relevant statutory instrument.

9

The applicant then applied to the learned High Court judge for a certificate that his decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court. That application was refused by the learned High Court judge on the 31st July last.

10

The applicant then brought this motion in this court in which it seeks

11

(1) an order directing the learned High Court judge to grant a certificate that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to this court;

12

(2) alternatively, an order directing that issues identified in an appendix attached to the notice of motion should be remitted to the High Court for a decision in circumstances where, it was stated, the applicant had not had the benefit of a decision of the High Court;

13

(3) in the event of both these reliefs being refused, an order directing the learned High Court judge to give reasons for his decision not to certify that the decision of the High Court involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

14

The application was heard by this court on the 19th December last, on which day the court announced that it would refuse to grant the...

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7 cases
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    • November 11, 2016
    ...36 While the cases of Irish Asphalt v. An Bord Pleanála [1996] 2 I.R. 179, and Irish Hardware Association v. South Dublin County Council [2001] IESC 5 were decided on narrower grounds, that is the right of the High Court alone to certify an appeal on grounds involving a point of law of ex......
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