Kenny v Provost, Fellows & Scholars of University of Dublin, Trinity College & Michael McNamara & Company

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Feeney
Judgment Date15 April 2011
Neutral Citation[2011] IEHC 202
Date15 April 2011

[2011] IEHC 202

THE HIGH COURT

[No. 72 MCA/2002]
Kenny v Provost, Fellows & Scholars of University of Dublin, Trinity College & Michael McNamara & Company
IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000 AND IN THE MATTER OF AN APPLICATION BY JAMES KENNY

BETWEEN

JAMES KENNY
APPLICANT

AND

THE PROVOST, FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE

AND

MICHAEL McNAMARA & COMAPNY
RESPONDENTS

PLANNING & DEVELOPMENT ACT 2000 S160

PLANNING & DEVELOPMENT ACT 2000 S160(1)

LOCAL GOVT (PLANNING AND DEVELOPMENT) ACT 1976 S27

MAHON v BUTLER 1997 3 IR 369

RSC O.19 r28

SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425

AER RIANTA CPT v RYANAIR LTD 2004 1 IR 506

BARRY v BUCKLEY 1981 IR 306

SUPERMACS IRELAND LTD v KATESAN (NAAS) LTD 2000 4 IR 273

FAY v TEGRAL PIPES LTD 2005 2 IR 261

CARROLL v RYAN 2003 1 IR 309

WOODHOUSE v CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

BULA LTD (IN RECEIVERSHIP) v CROWLEY & ORS UNREP SUPREME 3.4.2009 2009 IESC 35 2009/6/1340

HENDERSON v HENDERSON 1843 HARE 100

KENNY v DUBLIN CITY COUNCIL UNREP SUPREME 5.3.2009 2009 IESC 19 2009/31/7599

CORK CO COUNCIL v CLIFTONHALL LTD & ORS UNREP FINNEGAN 6.4.2001 2001/4/825

O'CONNELL v DUNGARVAN ENERGY LTD UNREP FINNEGAN 27.2.2001 2001/18/5119

LEVER (FINANCE) LTD v WESTMINSTER CORPORATION 1973 AER 496

KENNY v AN BORD PLEANÁLA (NO.1) 2001 1 IR 565

CMSN v IRELAND C-215/06 ECJ 2009 ENV LR D3 2008 ECR I-4911

PRACTICE & PROCEDURE

Dismissal of proceedings

Enforcement proceedings - Issues already determined - Overlap of issues - Failure to identify issues still in dispute - Court's inherent jurisdiction to dismiss - Constitutional right to commence and prosecute claim - Right of access to courts - Interests of defendant - Integrity of judicial system - Abuse of process - Issues not previously raised - Whether proceedings moot, res judicata or bound to fail - Whether frivolous, vexatious and abuse of process - Whether claim had no rational basis or reasonable cause of action - Whether claim could not possibly succeed - Whether ulterior or improper purpose - Whether plaintiff seeking to re-open litigation - Whether matters already decided - Whether planning breach trivial or minor - Mahon v Butler [1997] 3 IR 369; Sun Fat Chan v Osseous Ltd [1992] 1 IR 425; Aer Rianta cpt v Ryanair Ltd [2004] IESC 23, [2004] 1 IR 506; Barry v Buckley [1981] IR 306; Supermacs Ireland Ltd v Katesan (Naas) Ltd [2000] 4 IR 273; Fay v Tegral Pipes Ltd [2005] IESC 34, [2005] 2 IR 261; Carroll v Ryan [2003] 1 IR 309; Woodhouse v Consigna [2002] 1 WLR 2558; Bula Ltd (In receivership) v Crowley [2009] IESC 35, (Unrep, SC, 3/4/2009); Henderson v Henderson (1843) 3 Hare 100; Kenny v Dublin City Council [2009] IESC 19, (Unrep, SC, 5/3/2009); Cork County Council v Cliftonhall Ltd (Unrep, Finnegan J, 6/4/2001); O'Connell v Dungarvan Energy Ltd (Unrep, Finnegan J, 27/2/2001); Lever (Finance) Ltd v Westminster Corporation [1973] All ER 496; Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565 and Case C - 215/06 Commission v Ireland considered - Planning and Development Act 2000 (No 30), s 160 - Rules of the Superior Courts 1986 (SI 15/1986) O 19, r 28 - Proceedings struck out (2002/72MCA - Feeney J - 15/4/2011) [2011] IEHC 202

Kenny v Trinity College Dublin

1

Judgment of Mr. Justice Feeney delivered on the 15 day of April, 2011.

2

1. The first named respondent (T.C.D.) has by notice of motion dated 6 th November, 2009 sought an order pursuant to the inherent jurisdiction of the Court dismissing and/or striking out the proceedings as being moot, res judicata and/or bound to fail following the determination of the Supreme Court of proceedings titled James Kenny v. Dublin City Council, Respondent, and the Provost, Fellows and Scholars of the University of Dublin, Trinity College, Notice Party, bearing Record No. 2002/383 J.R. and/or as being frivolous and vexatious and an abuse of process. The proceedings before the Court were commenced by James Kenny on the 17 th July, 2002 wherein relief is sought pursuant to s. 160 of the Planning and Development Act, 2000 (herein after referred to as the Act). Section 160 of the Act provides for injunctions in respect of unauthorised development. Under that section an application can be made to Court for orders in respect of unauthorised development. Section 160(1) of the Act provides that an application may be made by a planning authority or any other person whether or not the person has an interest in the land. Mr. Kenny has sought to invoke the provisions of that section in respect of a development carried out by T.C.D. at Trinity Hall, Dartry Road, Rathmines. Proceedings under s. 160 are commenced by way of originating notice of motion and the procedure is a summary procedure. The scheme provided for under s. 160 makes no provision for the exchange of pleadings between the parties and the formal pleading is the originating notice of motion. Section 160 is a successor of s. 27 of the Local Government (Planning and Development) Act 1976. The nature and extent of s. 27 applications was considered by the Supreme Court in Mahon v. Butler [1997] 3 I.R. 369 and the Supreme Court in its judgment identified that the remedy under s. 27 (the precursor of s. 160) was a statutory injunction which was distinct from the general equitable jurisdiction of the High Court and that in making an order under that section, the Court could not exceed the jurisdiction conferred by that section. The Court identified the summary nature of the procedure and indicated that the procedure was not appropriate where the issues involved complex facts and law where judicial review proceedings were more appropriate. Denham J. in her judgment (at p 380) identified among the factors which would carry weight in the exercising of the Court's discretion in considering a s. 27 application that one of the matters was

"… the complexity of the facts and law involved in that litigation which mirrors the issues on the existing or any proposed s. 27 application."

3

In this case as in other s. 160 applications there has been no formal exchange of pleadings but the nature of the case made by the applicant and the first named respondent's reply thereto are disclosed in the affidavits which have been filed.

4

2 1.2 The background giving rise to these proceedings stems from a development that T.C.D. carried out at Trinity Hall, Dartry Road, Rathmines and from the planning permission obtained from An Bord Pleanála on 4 th August, 2000 for that development. Conditions contained within that planning permission required that certain matters be agreed between the first named respondent (T.C.D.) and Dublin City Council prior to the commencement of the development. Mr. Kenny sought leave to judicially review the grant of planning permission and leave was refused by order of the High Court made on 15 th December, 2000. The conditions attached to the planning permission which Mr. Kenny sought to have judicially reviewed provided that a number of items were to be agreed between Dublin City Council and T.C.D.. This resulted in T.C.D. making a compliance submission to Dublin City Council in August 2001 together with a further addendum thereto which was submitted on behalf of T.C.D. in October 2001. Dublin City Council issued a compliance order on 4 th January, 2002. In July 2002 Mr. Kenny instituted two further Court proceedings. On the 3 rd July, 2002 Mr. Kenny applied for judicial review in respect of the compliance order and on 17 th July, 2002 these proceedings, that is the s. 160 proceedings under the Act, were instituted. Mr. Kenny obtained leave to seek judicial review of the compliance order on 3 rd July, 2002. After these proceedings were instituted on 17 th July, 2002 due to the fact that those proceedings and the 3 rd July, 2002 proceedings both related to the compliance order of 4 th January, 2002 they were listed together. This resulted in both proceedings coming on for hearing in March of 2004. In recognition of the fact that the outcome of the judicial review proceedings would have repercussions on the proceedings commenced under s. 160, the judicial review proceedings were dealt with first in the High Court hearing in March of 2004. Following the hearing, judgment was reserved. On the 19 th of October, 2004, the High Court gave judgment refusing Mr. Kenny's application for judicial review of the compliance order. That order was appealed by notice of appeal dated 5 th January, 2005 and the appeal was heard by the Supreme Court in October 2008 and the judgment of the Court was delivered by the Supreme Court on 5 th March, 2009 resulting in an order dismissing the appeal and affirming the order of the High Court. Central to T.C.D.'s claim in this application is that the issues the subject matter of these proceedings have been determined as a result of the judgment of the Supreme Court delivered on 5 th March, 2009. These proceedings have been brought by way of originating notice of motion and by summary procedure where there has been no formal exchange of pleadings and where the nature of the claim and the response thereto are to be identified from the affidavits which have been filed by the parties.

5

3 1.3 Mr. Kenny has been involved over a number of years in various legal proceedings which have sought to have declared invalid the decision of An Bord Pleanála granting planning permission to T.C.D. for the development of student residences at Trinity Hall. That development has now long since been completed. As indicated above, Mr. Kenny applied for leave for judicial review of the decision of An Bord Pleanála and on 15 th December, 2000 he was refused leave to judicially review the grant of permission. An application was made for a certificate to appeal the High Court's decision and that application was...

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