Kenny -v- TCD, IESC [2008] 18 (2008)

Docket Number:168/03
Party Name:Kenny, TCD
Judge:Fennelly J.
 
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THE SUPREME COURT[S.C. No: 168/03]

Fennelly J.

Macken J.

Peart J.

Between

James Kenny Plaintiff/Respondent and

The Provost, Fellows and Scholars of the University of Dublin, Trinity College Defendants/Appellants

Judgment delivered the 10th day of April 2008 by Fennelly J.

1. This is an appeal by the above named defendants and appellants against the order of the High Court (Finnegan P) dated 2nd April 2003, refusing an application to dismiss the plaintiff's proceedings for failure to disclose a reasonable cause of action or, alternatively, under the inherent jurisdiction of the court. For ease of reference, I will refer to defendants and appellants as "Trinity" and the plaintiff and respondent as Mr Kenny.

2. The appeal forms part, though a central one, in a saga of litigation in which Mr Kenny, through a multiplicity of proceedings, contests the validity of a planning permission granted to Trinity in 1999 to redevelop Trinity Hall, the University's hall of residence in Dartry.

3. In the present action Mr Kenny seeks to overturn a High Court order (McKechnie J) refusing him leave to apply for judicial review of the principal planning decision. He pleads that McKechnie J was misled by fraud on the part of Trinity. It is necessary to trace the planning history and the earlier litigation insofar as it bears on this contention.

Planning history

4. In April 1999, Trinity applied for planning permission for a development consisting of the construction of new student halls of residence at Trinity Hall. The project comprised approximately 25,000 square meters including three new student residences and ancillary facilities.

5. Mr Kenny and others, including the Dartry and District Preservation Association, opposed the development.

6. On 11th November 1999, Dublin Corporation (now Dublin City Council) made a decision to grant planning permission subject to 14 conditions.

Mr Kenny and the Association appealed the decision to An Bórd Pleanála ("the Board"). The Board held an oral hearing between 24th and 26th May 2000 at which Mr Kenny was represented. On 4th August 2000 the Board made a decision to grant permission subject to 19 conditions.

7. On 3rd October 2000, Mr Kenny and the Association commenced an application for leave to apply for judicial review by way of certiorari of the Board's decision dated 4th August 2000 (High Court reference number 2000 No. 532JR.) I will refer to those proceedings as the "first judicial review."

8. Following a four-day hearing, and consideration of seven affidavits and many exhibits, McKechnie J, gave judgment on 15th December 2000, reported at [2001] 1 I.R. 565, refusing leave to apply for judicial review. In the present proceedings, Mr Kenny seeks to have that decision set aside. He asks that the first judicial review be reheard. I will need to refer to the reasons of McKechnie J later.

9. On 2nd March 2001, McKechnie J made an order refusing the application of Mr Kenny for a certificate, pursuant to s. 82(3B)(b) of the Local Government (Planning and Development) Act, 1963 as amended by insertion by s. 19(3) of the Local Government (Planning and Development) Act, 1992, granting leave to appeal his decision to this Court. McKechnie J also awarded costs against Mr Kenny.

10. I mention one only of the other proceedings instituted by Mr Kenny, as it has an indirect relevance to the present proceedings. On 4th January 2002, Dublin City Council issued a Compliance Order to the Appellants bearing the reference P.0022 confirming satisfactory compliance by Trinity with certain conditions of the planning permission granted by the Board. Mr Kenny on 3rd July, 2002 was granted leave to apply for judicial review to quash that Compliance Order. Mr Kenny, in those proceedings, claims, inter alia, a declaration that the installation of the boilers and boiler rooms in the roof spaces and the omission of the plant rooms from the buildings as indicated on revised plans submitted to the planning authority on 7th October 1999 is an unlawful material alteration to the development permitted by the planning permission. By order of the High Court of 19th October 2004 (Murphy J) that application for judicial review was dismissed. Mr Kenny has appealed the decision of the High Court to this Court. The appeal is pending.

The first judicial review

11. In order to understand the issues in the present proceedings, it is necessary to identify a core area of dispute concerning the planning application. It concerns the location of boilers throughout the development. The importance which Mr Kenny attaches to this issue was disclosed by a letter written, after the decision of McKechnie J, by his then solicitor on 1st March 2002: "It is clear from my client's instructions that your client misled the court with regard to its true intentions and plans for the location of boilers as of the dates on which the affidavits were filed and the case heard."12. The essential facts are not in dispute.

13. Neither the original application nor any revision of drawings or plans during the planning process identified the location of boilers. A number of drawings, however, indicated the location of "plant rooms." In addition, the original Environment Impact Statement provided by Trinity and a revised version indicated that the development would be serviced by a centralised boiler plant.

14. The adequacy of the treatment of this issue by Trinity and by the Board in its decision was at the heart of the first judicial review. Mr Kenny complained that, although Trinity had indicated during the planning process that it sought to develop boiler house facilities, it had provided no plans or drawings to the Board. In his Statement to Ground the application for judicial review, Mr Kenny mentioned that Trinity had said that it might place the boiler house facility in basements under the buildings of the proposed development and that it might construct a central boiler house facility on the site of the proposed development. The Board, he claimed, should have required Trinity to supply sufficient information. Thus, it was claimed, the Board had insufficient information and could not lawfully exercise its jurisdiction to determine the planning application resulting in the Board's decision being invalid.

15. There were other grounds for the first judicial review, not now relevant. It is the boiler issue which connects the present proceedings with the first judicial review and it is only that issue, as addressed by McKechnie J, which now needs to be considered.

16. Mr Kenny's key complaint, as described by McKechnie J in his judgment was that there was insufficient information before the Board to enable it to exercise its jurisdiction. Mr Kenny quibbles with that statement only to the extent that he says that there was no information at all on the issue.

17. That was the basic submission relating to the boiler-house issue, made by Mr Kenny to McKechnie J in the first judicial review. He also pointed out that a centralised boiler system had been mentioned in the Environmental Impact Statement, whereas, at the oral hearing, a decentralised system had been mentioned as the preferred option. (see page 570 of the judgment). Furthermore, he pointed out that: "…during the oral hearing, an attempt was made by the applicant for planning permission, [Trinity], to have the boiler house facilities sited in the basement, which suggestion had not previously made or considered, much less evaluated or analysed."18. McKechnie J acknowledged that "some confusion ha[d] arisen with regard to the boiler house facilities." (page 577). He then observed: At the oral hearing two suggested modifications to this were advanced. Firstly, it was urged upon the Inspector that these facilities could properly be placed in the basement, this being the first time that such a location was mentioned with no real consideration having been given to the quantity of excavation involved or the effect on the tree roots or on the water table. Rightly so in my view,…… the Inspector emphatically ruled out any further debate on this possibility. ……The learned judge explained the second modification as follows: "In the Service Engineers Reports, originally given and as revised, plant rooms are listed for all three buildings. In the revised plans and in particular Drgs. 213A, 214 and 215, all dated September 1999, plant rooms are again shown, though it should be said that one could not readily identify all such rooms, without an explanation that the floor plan was but a typical or representative one."19. He noted: "At the oral hearing there was very considerable debate on this question. Every interested person made a contribution. Some such persons were for and some against the development including those witnesses specifically called on behalf of the Applicant."20. McKechnie J expressed his own concluded view on this issue in the following terms: "Notwithstanding this confusion and despite the entry in the EIS and the floating of the basement solution, what is abundantly clear however, is that at the Oral Hearing, as per the Design Architect ……a decentralised system was in fact being sought on behalf of the developer."21. The learned judge analysed the nature of the dispute. He found, (see page 578) that, at the oral hearing, everyone present knew of this proposal and indeed made comment on it. His final conclusion was that: "Examples of matters in dispute were, - the precise location of the plant rooms - (this being essential it was claimed to determine the emanating noise); the fact that one such room was shown next to a living area, whether the dimensions of such areas were sufficient, what should be the height of the flue, its location etc. Whilst I am satisfied that all of these matters were adequately dealt with at the oral hearing and that many are also suitable to be dealt with by agreement with the local authority, in addition could I...

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