Keelgrove Properties Ltd v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice Quirke
Judgment Date27 August 1999
Neutral Citation[1999] IEHC 193
CourtHigh Court
Docket Number[1999 No. 262 J.R.]
Date27 August 1999

[1999] IEHC 193

THE HIGH COURT

No. 262 J.R./1999
KEELGROVE PROPERTIES LTD v. AN BORD PLEANALA & ORS
JUDICIAL REVIEW

BETWEEN

KEELGROVE PROPERTIES LIMITED
APPLICANT

AND

AN BORD PLEANALA
RESPONDENT
AND
DUBLIN CORPORATION, SHELBOURNE DEVELOPMENTS LIMITED AND AN TAISCE
THIRD PARTIES

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(i)

KSK ENTERPRISES LTD V BORD PLEANALA 1994 IR 128

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

INTERPRETATION ACT 1937 S18

FREENEY V BRAY UDC 1982 ILRM 29

MURPHY, STATE V DUBLIN CO COUNCIL 1970 IR 253

FLYNN V O'FLAHERTY 1997 2 IR 558

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(4)

HEGARTY & HORGAN V LABOUR COURT 1999 ELR 198

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1993 ILRM 665

CRAIES ON STATUTE LAW 7ED 65

MAXWELL INTERPRETATION OF STATUTES 12ED 28

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(8)

Synopsis

Planning

Planning; judicial review; statutory interpretation; determination of preliminary issue as to when leave to apply for judicial review was sought by applicant; applicant seeks order of certiorari to quash decision of respondent dismissing applicant's appeal against an earlier decision of Dublin Corporation; whether application for leave to seek judicial review was "made" within period of two months commencing on date upon which decision by respondent was "given"; whether date upon which a decision is "given" is the date upon which parties affected by the decision have been notified of it; s.(3B)(a) of s.82, Local Government (Planning and Development) Act, 1963, as inserted by Local Government (Planning and Development) Act, 1976, and amended by s.19, Local Government (Planning and Development) Act, 1992.

Held: Construing the words in their "ordinary and natural sense", the date upon which a planning decision is "given" within the meaning of s.(3B)(a) of s.82, is the date stated upon the Order which gives effect to the decision unless the contrary can be proved; application for leave to apply for judicial review not served within statutory period of two months from the date when decision was "given"; applicant barred from bringing judicial review proceedings.

Keelgrove Properties Limited v. An Bord Pleanala - High Court: Quirke J. - 27/08/1999 - [2000] 1 IR 47 - [2000] 2 ILRM 168

Construing the words in their 'ordinary and natural sense', the date upon which a planning decision was 'given' within the meaning of section 82 sub-section (3B)(a) of the Local Government (Planning and Development) Act, 1963, as amended, was the date stated upon the order which gave effect to the decision unless the contrary can be proved. Therefore the application for leave to apply for judicial review in this case was not served within the relevant statutory period of two months. The High Court so held in finding that the applicant was not entitled to seek liberty for relief by way of judicial review.

1

Judgment of Mr. Justice Quirke delivered on the 27th day of August, 1999

2

An application was made to the High Court (Geoghegan J.) on the 26th day of July, 1999 by the Applicant for leave to apply by way of Judicial Review for various reliefs including relief by way of an Order of Certiorari quashing the decision of An Bord Pleanala dated the 13th day of May, 1999 and bearing the An Bord Pleanala reference number PL29N107418.

3

This decision comprised a decision by the Respondent to dismiss an appeal by the Applicant against an earlier decision of Dublin Corporation made on the 2nd day of July, 1998 to grant, subject to various conditions, a permission to Shelboume Developments Limited for the development of certain property located in Parnell Street, Moore Street, O'Rahily Parade and Moore Lane in the City of Dublin 1 as a hotel, bar, restaurant, leisure centre and for retail, car-parking and other commercial use.

4

On the 26th day of July, 1999 when the application was made to Geoghegan J. on behalf of the Applicant for leave to apply by way of Judicial Review as outlined above it was indicated to the Court and agreed by all the parties that a preliminary point (described somewhat colourfully as a "knockout point") required to be determined which, if decided in favour of Shelboume Developments Limited and An Bord Pleanala, would have the effect of resolving all outstanding issues in the case since it would comprise a determination that the Applicant was not entitled to bring the proceedings before the Court or to seek the relief which it claims herein.

5

Accordingly, Geoghegan J., with the consent of all the parties (including the Applicant) made an Order that the preliminary point concerned (and that point alone) should be determined by this Court during the Summer Recess, since all of the parties concerned agreed that the matter could be appropriately dealt with during the Recess, and it was duly fixed for hearing by this Court on the 24th day of August, 1999.

6

The point which this Court has been required to determine is whether or not, having regard to the provisions of Section (3B)(a) of Section 82 of the Local Government (Planning and Development) Act, 1963(as inserted by the Act of 1976 and amended by the Act of 1992), the application for leave to apply for Judicial Review which has been made by the Applicant, Keelgrove Properties Limited, herein has been made ".... within the period of two months commencing on the date on which a decision...." was "given".

7

The following matters adduced in evidence are not in dispute:-

8

1. A document headed "An Bord Pleanala" and bearing the planning register reference number 1755/97 referring to the appeal by the Applicant and bearing the words:-

"DECISION: Pursuant to the Local Government (Planning and Development) Acts, 1963– 1998it is hereby decided.... to grant permission for the said development... in accordance with.... plans and particulars...."

9

The document goes on to describe the property and the development, impose conditions and give reasons and it is dated the 13th day of May, 1999.

10

2. By letter which was date stamped the 14th of May, 1999 which refers to an appeal in relation to the premises which are the subject of these proceedings, Dublin Corporation was notified by An Bord Pleanala of the making of an Order by the Board and the document referred to in the preceding paragraph herein was enclosed with the letter and stated to comprise the Order concerned.

11

3. On the 9th day of July, 1999 the Applicant attempted to effect service of the Notice of Motion, Grounding Affidavit and a Statement grounding the application for Judicial Review herein on the parties who are required by statute to be served with such documents.

12

On the said 9th day of July, 1999 true copies of the document concerned were served by hand on the following, that is to say:-

13

• - the Secretary of An Taisce,

14

• - Mr. O'Keeffe from the Law Department of Dublin Corporation,

15

• - Mr. Diarmuid Collins of An Bord Pleanala.

16

On the said 9th day of July, 1999 trae copies of those documents were sent by ordinary prepaid post to the Secretary of Shelbourne Developments Limited and to Messrs. Sheehan & Company, Solicitors at No. 1 Clare Street, Dublin who were the Solicitors acting on behalf of Shelbourne Developments Limited in respect of the appeal to An Bord Pleanala by the Applicant.

17

The true copies of the said documents were not received by Messrs. Sheehan & Company, the Solicitors on behalf of Shelbourne Developments Limited, until the 13th day of July, 1999 and were not received at the registered offices of Shelbourne Developments Limited at 21 Fitzwilliam Place, Dublin 2 until Tuesday, the 13th day of July, 1999 and as a matter of practice, whilst 80% of letters which are posted in the Dublin 2 area on Fridays will be delivered on the following Monday, some 20% of those letter will not be delivered until the following Tuesday and it is not unusual for a letter which is posted on a Friday not to be received until the following Tuesday.

18

4. It has been properly conceded and acknowledged by Shelbourne Developments Limited and An Bord Pleanala that the other parties affected by the decision herein and required by statute to be served with the Notice and further documentation grounding this application has been served within the time limited in that behalf by statute and in particular by Section (3B)(i) of the 1963 Act as inserted and amended.

19

It is expressly acknowledged and very properly conceded on behalf of the Applicant that having regard to the principles set down by the Supreme Court (Finlay C. J.) in the case of K.S.K. Enterprises Limited -v- An Bord Pleanala & Ors.. (1994) I.R. 128 that "... if the Notice of Motion is not served on all the parties provided for mandatorily within the meaning of Section 82, Sub-section (3B) of the Act of 1963 as distinct from the power of the Court at a later stage to order the service of additional parties, the application has not been made within the time limited by Section 82" and accordingly if the Notice of Motion and accompanying documents grounding the application herein were not served upon Shelboume Developments Limited or its Solicitors within the period of two months from the date when the "decision" of An Bord Pleanala was "given" then the Applicant is barred from bringing these proceedings and from claiming the relief which it seeks, notwithstanding adequate service within the time limited by statute in that behalf upon all of the other parties who are required by statute to be so served.

20

As I have already indicated, the point which this Court has been required to determine relates to Section (3B)(a) of Section 82 of the Local Government (Planning and...

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