K.S.K. Enterprises Ltd v an Bord Pleanála

 
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1994 WJSC-SC 1176

THE SUPREME COURT

FINLAY C.J.

O'FLAHERTY J.

EGAN J.

BLAYNEY J.

DENHAM J.

70/94
KSK ENTERPRISES LTD v. BORD PLEANALA
K.S.K. ENTERPRISES LTD.
Applicant

and

AN BÓRD PLEANALA LOWSTRAND PROPERTIES LTD. AND THE ATTORNEY GENERAL
Respondents

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3B)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

RSC O.52 r1

RSC O.52 r2

RSC O.84

Synopsis:

PLANNING

Board

Decision - Appeal - Method - Judicial review - Application - Time limit - Application to be made within two months of date of decision - Statute - Interpretation - Relevant factors for determining when application was made - Leave and certificate of High Court required for appeal to Supreme Court - Rules of the Superior Courts, 1986, order 52, rr. 1, 2 - Local Government (Planning and Development) Act, 1963, s. 82 - Local Government (Planning and Development) Act, 1992, s. 19 - (70/94 - Supreme Court - 24/3/94) - [1994] 2 I.R. 128 - [1994] 2 ILRM 1

|K.S.K. Enterprises Ltd. v. An Bord Pleanala|

PRACTICE

Appeal

Time limit - Motion - Service - Necessity - Planning - Appeals from decisions of planning authority or planning board - Procedure - Application for leave to apply for judicial review - Whether application made within prescribed period - (70/94 - Supreme Court - 24/3/94) - [1994] 2 I.R. 128 - [1994] 2 ILRM 1

|K.S.K. Enterprises Ltd. v. An Bord Pleanala|

1

JUDGMENT delivered on the 24th day of March 1994 by Finlay C.J. [NEW DISS]

2

This is an appeal brought by the Applicant against an Order made by Flood J. in the High Court on the 16th of February 1994 whereby he dismissed an application made by the Applicant pursuant to Section 19(3B) (a) of the Local Government (Planning and Development) Act, 1992 (the 1992 Act) for liberty to issue judicial review proceedings in a planning matter. The grounds on which the learned High Court Judge dismissed the application was that on a preliminary point taken by the Respondents the application was time barred he ruled that it was so time barred and therefore could not be maintained.

3

In the course of the Order made by him in the High Court, Flood J. certified pursuant to the said subsection that his decision on this preliminary issue 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 the Supreme Court from his decision in the High Court.

4

By virtue of Section 19(3) of the Act of 1992, Section 82 of the Local Government (Planning and Development) Act 1963 was amended by the substitution for Section (3A) [which had been inserted by the Local Government (Planning and Development) Act of 1976] of two new subsections concerning the bringing of applications for judicial review of planning decisions.

5

The relevant provisions of the new subsections of Section 82 thus inserted with regard to the facts of this case are as follows -

"(3A) A person shall not question the validity of -"

6

(b) a decision of the Board on any appeal .......

7

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (hereinafter in this section referred to as the Order).

8

(3B) (a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this Section shall -

9

(i) be made within the period of two months commencing on the date on which the decision is given, and

10

(ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to -

11

(II) if the application relates to a decision referred to in subsection (3A) (b) of this section, the Board and each party or each other party, as the case may be, to the appeal.

12

(III) any other person specified for that purpose by order of the High Court,

13

(b) (i) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court certifies that its 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 the Supreme Court."

14

In this case An Bórd Pleanála dismissed an appeal by the Applicant against a decision by the Dublin Corporation to grant to the second-named Respondent (the developer) planning permission, and decided to grant such permission subject to conditions. This decision was made on the 1st day of December 1993.

15

A document entitled Notice of Motion which is dated the 29th January 1994 was apparently filed on the 31st January 1994 in the High Court and was by the Central Office, thereof made returnable on the 14th February 1994. This "Notice of Motion" was accompanied by a statement required to ground an application for judicial review and an affidavit in support of the same which constituted documents grounding the application in the manner specified in Order 84 in respect of an ex parte motion for leave to issue judicial review proceedings.

16

The learned trial judge after argument before him came to the conclusion as stated in his judgment as follows:

"In my opinion the section requires that the application actually be moved to the Court or at least that it be available in the Court list to be heard if the Court can deal with it and accordingly I am of the opinion that the matter is time barred so I am dismissing the...

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