Kenny v Trinity College

JurisdictionIreland
JudgeMs. Justice Iseult O’Malley
Judgment Date14 August 2020
Neutral Citation[2020] IESC 54
CourtSupreme Court
Docket Number[Supreme Court Appeal No: 2011/297]
Date14 August 2020
BETWEEN:
JAMES KENNY
APPELLANT
-AND-
PROVOST FELLOWS & SCHOLARS OF THE UNIVERSITY OF DUBLIN TRINITY COLLEGE
RESPONDENTS

[2020] IESC 54

MacMenamin J.

O’Malley J.

Baker J.

[Supreme Court Appeal No: 2011/297]

THE SUPREME COURT

Planning and development – Strike out – Abuse of process – Appellant appealing against the decision of the High Court to strike out the appellant’s application for an order under s. 160 of the Planning and Development Act 2000 – Whether continuation of the litigation amounted to an abuse of process

Facts: The appellant, Mr Kenny, appealed to the Supreme Court against the decision of the High Court (Feeney J) to strike out the appellant’s application for an order under s. 160 of the Planning and Development Act 2000. As explained in the judgment of Feeney J, he considered that the issues raised by the appellant had either been definitively decided in the course of related proceedings, or should have been raised earlier, or were insignificant, to the point that continuation of the litigation amounted to an abuse of process ([2011] IEHC 202). Counsel submitted that there were significant factual disputes between the parties and that in those circumstances the jurisdiction to strike out could not be deployed.

Held by O’Malley J that the primary view taken by the Court in the compliance judicial review was that the appellant had failed to show any respect in which Dublin City Council’s decision was not within the scope of the authority given to it by An Bord Pleanála. O’Malley J held that the case made by the appellant could not be seen as anything other than an attempt to re-open the issue as to whether the compliance decision came within the scope of that authority, based on new arguments that were available to him from the start but not previously pursued.

O’Malley J held that in the circumstances it would be entirely contrary to the principle of finality of litigation, and to what was described in McCauley v McDermott [1997] I.L.R.M. 486 as the general interest of the community in the termination of disputes and the finality and conclusiveness of judicial decisions, to permit this litigation to proceed further. O’Malley J considered that Feeney J was correct in finding that to do so would be to permit an abuse of process. O’Malley J therefore dismissed the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Iseult O’Malley delivered on the 14th day of August 2020.
Introduction
1

This appeal relates to the development by Trinity College Dublin of Trinity Hall, a complex providing accommodation for students in the Dublin suburb of Dartry. It is a large development of some 25,000m 2, with apartments provided over three to seven floors in three new buildings (referred to as Buildings 1, 2 and 3) in the grounds of the existing listed building. The appellant has been engaged in litigation about the development, with this respondent and with other parties, for over 20 years.

2

The appeal is against the decision of the High Court (Feeney J.) to strike out the appellant's application for an order under s. 160 of the Planning and Development Act 2000. As explained in the judgment of Feeney J., he considered that the issues raised by the appellant had either been definitively decided in the course of related proceedings, or should have been raised earlier, or were insignificant, to the point that continuation of the litigation amounted to an abuse of process (see [2011] IEHC 202).

3

There have already been a great many written judgments in the course of the appellant's pursuit of litigation about the Trinity Hall development. I do not propose to summarise them all here, or to provide a full history of all of that litigation, but it is necessary to examine in detail some of steps taken and judgments delivered for the purpose of analysing certain of the arguments made in this appeal. For the avoidance of doubt, I stress that I am not attempting to provide a full account, but am selecting here only such details as I consider relevant for the purposes of this judgment.

4

To put what follows in context, it is necessary to bear in mind that the application is one for relief under s.160 of the Act. as amended. The section applies where an “unauthorised” development has been, is being or is likely to be carried out or continued. In such circumstances a planning authority or any other person may apply to the High Court or to the Circuit Court, depending upon market value, and the court may make any order it considers necessary to ensure, as appropriate, that the unauthorised development is not carried out or continued, or that the land is restored to its previous condition, or that the development is carried out in conformity with the permission pertaining to that development. An application for an order under the section is made by way of motion and there is no provision for formal pleadings in the absence of a direction, where considered necessary, by the court.

5

The making of an order is a matter within the discretion of the court. In Meath County Council v. Murray [2018] 1 I.R. 189 and An Taisce v. McTigue Quarries [2018] IESC 54 this Court identified the following factors as matters to be taken into account :–

a. the nature of the breach, which may range from minor, technical and inconsequential up to material, significant and gross;

b. the conduct of the developer, its attitude to planning control and its engagement or lack thereof with the process;

c. the reason for the infringement, which may range from general mistake, through to indifference, and up to culpable disregard;

d. the attitude of the planning authority – this is a factor which may be important although not necessarily decisive;

e. the public interest in upholding the integrity of the planning and development system;

f. the public interest in relation to, for example, employment for those other than the transgressor, or the importance of the structure or activity in question (such as infrastructural facilities or services);

g. The conduct and. if appropriate, the personal circumstances of the applicant;

h. The issue of delay on the part of the applicant, even if the application is made within the statutory period, and of acquiescence;

i. The personal circumstances of the respondent; and

j. The consequences of any such order, including the hardship and financial impact on the respondent and third parties.

Background
6

Planning permission for the development was granted, subject to a number of conditions, by Dublin Corporation (now Dublin City Council, and referred to hereafter as “the Council”) in November 1999. Trinity had originally sought permission for ten buildings, but the basis for the permission ultimately granted was the revised plans, for three buildings, submitted by Trinity in October 1999. The appellant, along with some other local residents, objected to the proposal and appealed to An Bord Pleanála. On the 4 th August 2000 the Board also decided to grant permission, subject to 19 conditions.

7

It may be noted at this point that the conditions included, at No. 1, a standard stipulation that the development was to be carried out in accordance with the revised plans submitted in October 1999 save where otherwise required by the other conditions. This condition was imposed in the interest of clarity. Condition No. 8 required the submission by the developer of revised drawings, with floor plans and elevations corresponding in detail, to be agreed by the planning authority prior to the commencement of the development in the interest of orderly development. Condition No. 2 was the only one that referred specifically to any of the new buildings. It required the omission of the first floor of the western arm of Building No. 3, in the interest of visual amenity.

8

It is of some tangential relevance that one of the conditions imposed by the Council would have required a design alteration to the profiles of the buildings, to provide for “stronger roof profiles with pitched surfaces”. The Board disagreed with that proposal, and no redesign in this regard was necessitated by its permission.

9

The appellant then sought leave to apply for judicial review of the Board's decision to grant permission. Leave was refused, after a full inter partes hearing, in a judgment delivered on the 15 th December 2000 by McKechnie J. (see Kenny v. An Bord Pleanála (No.1) [2001] 1 I.R. 565) on the basis that the arguments raised did not meet the necessary threshold of “substantial grounds” under s.82(3)(a) of the Local Government (Planning and Development) Act 1963. McKechnie J. later refused leave to appeal against his decision.

10

The appellant subsequently expended a great deal of fruitless effort, over many years, in attempting to have this judgment, and various related and mounting costs orders, set aside on grounds ranging from allegations of fraud to claims that permission for the development was given in breach of EU law. These efforts led in 2006 to the making (by Clarke J.) of an Isaac Wunder order against the appellant, precluding him from bringing any further proceedings against Trinity or the Board without the leave of the court. However, that order obviously did not affect proceedings and appeals that were already in being.

11

In the meantime, in 2001. Trinity had made a compliance submission to Dublin City Council in relation to the conditions attached to the permission. The Council issued a compliance order on the 4 th January 2002, confirming that Trinity had complied with the terms of the permission. On the 3 rd July 2002 the appellant was granted leave to seek judicial review in respect of this decision (“the compliance judicial review”). Later that month, on the 17 th July 2002, he issued the instant proceedings seeking orders under s.160 of the Act (“the s.160 application”).

12

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