Kenny -v- An Bord Pleanála, [2017] IESC 55 (2017)

Docket Number:38/2009
Party Name:Kenny, An Bord Pleanála
 
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THE SUPREME COURT[Supreme Court Appeal No. 38/2009]

[High Court Record No: 2000/ 532 JR]

Denham C.J.

MacMenamin J.

O’Malley J.

BETWEEN:

JAMES KENNYAPPELLANTAND

AN BORD PLEANÁLARESPONDENT

JUDGMENT of Ms. Justice O’Malley delivered the 19th day of July 2017.

Introduction1. On the 4th August, 2000, the respondent (“the Board”) issued a decision granting planning permission to Trinity College Dublin (“Trinity”) for a development intended for student accommodation on a site in Dartry, Dublin. Mr. Kenny, in common with a number of other residents of the area, had objected to the development and sought leave to seek judicial review of the Board’s decision with a view to quashing it. Since it was a planning case the proceedings commenced by way of a contested leave application in the High Court (before McKechnie J.). The application for leave was unsuccessful and the Board’s costs were awarded against the applicants.

  1. While Mr. Kenny has initiated multiple proceedings over the intervening years concerning the development (which has long since been completed), this appeal is concerned only with that award of costs of those original judicial review proceedings. Mr. Kenny has many other appeals pending before this Court. I have therefore refrained as far as possible from discussion of proceedings not directly relevant to the issue to be determined in this matter.

  2. In a case of this nature, by virtue of s.82(3A) of the Local Government (Planning and Development) Act 1963, as amended, an applicant for leave must demonstrate “substantial grounds” for contending that the decision in question was invalid or ought to be quashed. Trinity, as the developer, was a notice party to the application.

  3. McKechnie J. delivered a reserved judgment on the 15th December, 2000, (see Kenny v. An Bord Pleanála (No. 1) [2001] 1 I.R. 565). He categorised the grounds for the proposed challenge under four headings which may be summarised as follows.

  4. The first ground related to one of the conditions attached to the planning permission, requiring the developer to submit revised drawings to be agreed by the planning authority. It was argued on behalf of Mr. Kenny that this amounted to an unlawful delegation of its powers by the Board to the planning authority.

  5. The second ground related to the boiler house facilities which the development would require. It was contended that the plans and drawings as submitted did not give any indication of the nature of the boiler facilities; that a suggestion as to the location of the facilities had been made at the oral hearing that had not been previously proposed; and that the environmental impact statement had mentioned a centralised system whereas at the oral hearing a decentralised system was proposed. It was contended that there was, therefore, insufficient information before the Board to enable it to exercise its jurisdiction. It is recorded in the judgement that a claim had been mentioned, but not pursued, that there was no material before the Board which could justify its decision in this respect.

  6. The third ground concerned the adequacy of the environmental impact statement (“the EIS”) submitted by the developer. It was alleged to suffer from such...

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