Kenny v Provost, Fellows & Scholars of the University of Dublin, Trinity College and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke,MR. JUSTICE FRANK CLARKE
• Judgment Date: 17 October 2008
• Neutral Citation: [2006] IEHC 131,[2008] IEHC 320
• Court: High Court
• Date: 17 October 2008

KENNY v TRINITY COLLEGE DUBLIN & BORD PLEANALA

DUBLIN

JAMES KENNY

Applicant

and

THE PROVOST, FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND AN BORD PLEANÁLA

Respondents

[2006] IEHC 131

No. 2005/3320P

THE HIGH COURT

Abstract:

Practice and procedure - Application to strike out proceedings - Isaac Wunder order - Whether the plaintiff’s claim was bound to fail and therefore ought to be struck out.

Facts: The defendant sought to strike out the plaintiff’s claim for an order setting aside the judgment of Mr Justice McKechnie, whereby the learned judge refused to grant leave to the plaintiff to judicially review the decision of An Bord Pleanala granting planning permission to the first named defendant. The defendant sought to strike out the proceedings as being frivolous and vexatious, disclosing no cause of action and being bound to fail. In addition the defendant sought an Isaac Wunder Order.

Held by Clarke J. in striking out the proceedings: That in the circumstances of this case, the proceedings were bound to fail and accordingly they ought to be dismissed. Furthermore, subject to certain specified conditions an order was made preventing the plaintiff from instituting any further proceedings against the defendants save with the leave of the court and the costs of this application were awarded to the defendants.

Reporter: L.O’S.

PLANNING & DEVELOPMENT ACT 2000

BOLAND v BORD PLEANALA 1996 3 IR 435

WAITE v HOUSE OF SPRING GARDENS UNREP BARRINGTON 26.6.1985 1985/6/1592JONESCO v BEARD 1930 AC 298

BARRY v BUCKLEY 1981 IR 306

RIORDAN v AN TAOISEACH (AHERN) & ORS 2001 3 IR 365

CARNEY v IRELAND UNREP MURRAY (EX TEMPORE)

LONDON & GLOBAL LTD (IN LIQUIDATION) v LAMB UNREP PEART 15.11.2004 2004/28/6520

1 JUDGMENT OF MR. JUSTICE FRANK CLARKE ON THURSDAY, 30TH MARCH 2006

2 JUDGMENT WAS DELIVERED BY MR. JUSTICE CLARKE, AS FOLLOWS, ON THURSDAY, 30 MARCH 2006:

3 MR. JUSTICE CLARKE: These proceedings are brought by Mr. Kenny in relation to a planning permission obtained by Trinity College in respect of the premises at Trinity Hall, Dartry. Trinity College applied for planning permission to Dublin Corporation, as it then was, for development at Trinity Hall in April 1999. The planning permission was granted on 14th November 1999. A number of parties, including Mr. Kenny, subsequently appealed to An Bord Pleanála. An Bord Pleanála granted planning permission. Mr. Kenny commenced proceedings on 3rd October 2000 seeking leave to judicially review the decision of An Bord Pleanála. That leave was refused by McKechnie J on 15th December 2000. It is in respect of that judgment that Mr. Kenny seeks in these proceedings an order setting aside the judgment on the grounds of fraud. I will return in more detail to the basis upon which he seeks such an order in due course.

4 It should also be noted that a number of proceedings which were not directly concerned with a challenge to the planning permission, but in respect of which the planning permission was relevant, have also been brought in the intervening period by Mr. Kenny.

5 Mr. Kenny obtained leave to seek judicial review of a separate decision, being a compliance order, on 4th July 2002. In those proceedings, Trinity College were notice parties and Dublin City Council was the respondent. The proceedings were determined by Murphy J in a judgment of 19th October 2004 in which Mr. Kenny's application for judicial review was refused. A Notice of Appeal has been brought to those proceedings, which I understand is still pending.

6 In July 2002, Mr. Kenny commenced proceedings under Section 160 of the Planning and Development Act 2000 in which proceedings he contended that Trinity College had failed to comply with the provisions of the planning permission. Those proceedings are still pending and are, as I understand it, currently awaiting a date.

7 It should also be noted that in respect of a variety of the proceedings which I have outlined to date, costs orders have been made which are not the subject of any stay and have at least in some cases been the subject of taxation with the costs not as yet being discharged.

8 Returning to direct challenges to the planning permission itself, I should also note that in March 2001, McKechnie J had refused Mr. Kenny the certificate necessary to enable him to appeal the original challenge to the planning permission to the Supreme Court. On 7th November 2002, Mr. Kenny instituted proceedings against Trinity and the City Council seeking to have the original judgment and order of McKechnie J set aside.

9 In those proceedings, it was alleged that Trinity had perpetrated a fraud on the Court in relation to the failure to disclose the lodgment of a fire safety certificate which indicated the location of boilers at a different location to that indicated to the Court. It was accepted in those proceedings that Trinity had not disclosed the fire safety certificate, but it was contended on Trinity's behalf that that issue was irrelevant to the matters which were before the Court.

10 Trinity sought to have those proceedings struck out on the grounds that they were frivolous, vexatious and disclosed no cause of the action and were therefore bound to fail. In this Court, the President took the view that the pleadings did not disclose a cause of action, but on the basis of extraneous material, took the view that Mr. Kenny had crossed the threshold necessary to be allowed continue with the proceedings.

11 However, an appeal was brought against that finding, and those set-aside proceedings were struck out by order of the Supreme Court on 20th June 2003 on the basis that they failed to disclose a cause of action. Costs were also awarded in respect of that application.

12 Mr. Kenny commenced a second set of proceedings seeking to have the order of McKechnie J set aside on 3rd July 2003. In those proceedings, an express plea of fraud on the Court was made. Those proceedings were struck out by Murphy J on 24th March 2004. An appeal was brought by Notice of Appeal dated 28th April 2004 against the decision of Murphy J to strike out. It should also be noted that Trinity had, in the same application in which it sought so strike out those proceedings, sought an order, frequently referred to as an Isaac Wunder order, which would preclude Mr. Kenny from bringing any further proceedings save with leave of the Court. Mr. Justice Murphy had refused that order and as against that refusal, Trinity College had cross-appealed.

13 The instant proceedings were commenced against both Trinity and the board on 5th October, and the matter which is currently before the Court is a motion in which Trinity College seeks an order striking out the proceedings as being frivolous and vexatious, disclosing no cause of action and being bound to fail and in addition renews its application for a so-called Isaac Wunder order.

14 The central contention upon which these new proceedings are based is an allegation made by Mr. Kenny that four photomontages that were submitted with the original Environmental Impact Statement to the board as part of the original planning process were, as he described it, manipulated and, it is contended, so done for the purposes of disguising the height of the buildings. Upon that basis, it is contended that a fraud was perpetrated on the Court, and that in substance, the judgment and order of McKechnie J was secured by fraud. It should be said that that allegation is strenuously denied by Trinity, but it does not seem to me at this stage that it is a matter for me to determine the validity or otherwise of that contention.

15 Before going on to deal with the specific issues that arise in a motion such as that brought by Trinity in this case, it seems to me that I should identify what the role of this Court is in relation to planning matters. That applies not only to the matter which is currently before me but in all matters of which the Court's jurisdiction is invoked in respect of planning matters.

16 This Court is not a court of appeal upon the merits or otherwise of planning decisions made by the appropriate planning authorities. Still less is this Court a tribunal of inquiry charged with looking into whether planning permissions have been properly dealt with. The Oireachtas has determined in the planning legislation, most recently the 2000 Act, that planning decisions are primarily a decision for the planning authority, or where there is an appeal against the decision of the planning authority, for An Bord Pleanála. It is neither right nor proper for this Court to in any way take away from the proper jurisdiction of those bodies to make decisions in the planning process.

17 However, where there is significant noncompliance with planning law or where there are significant failures in the planning process, this Court can, on what are sometimes referred to as judicial review principles, intervene. But it is important to note that, again, the Oireachtas has determined that by virtue of the provisions of the 2000 Act, any challenge to a planning permission must be by way of judicial review and must also comply with strict time limits which can, of course, be extended in an appropriate case. But it is clear from that view of the role of the Courts, that any challenge brought before the Court is limited to a consideration by the Court of the particular issues that are put forward by the applicant who invokes the Court's jurisdiction. The Court is not involved in a general consideration of the validity of the planning permission, let alone the appropriateness of planning permission having been granted in the first place.

18 The Court's role in any planning challenge is narrowly confined to a consideration of whether, applying appropriate judicial review...