Lancefort Ltd v an Bord Pleanála, Ireland and Attorney General (No. 2)

JurisdictionIreland
JudgeMrs. Justice Denham,Keane, J.
Judgment Date01 January 1999
Neutral Citation[1998] IESC 14
Date01 January 1999
CourtSupreme Court
Docket Number[S.C. Nos.
LANCEFORT LTD v. AN BORD PLEANALA & TREASURY HOLDINGS

BETWEEN

LANCEFORT LIMITED
APPLICANTS/APPELLANTS

AND

AN BÓRD PLEANÁLA, IRELAND AND THE ATTORNEYGENERAL
RESPONDENTS

AND

TREASURY HOLDINGS LIMITED
NOTICE PARTY

[1998] IESC 14

Hamilton C.J.

Denham J.

Barrington J.

Keane J.

Lynch J.

No 94/98
No 104/98
No 106/98

THE SUPREME COURT

Synopsis

Planning

Locus standi; judicial review; planning permission; environmental impact statement; certiorari; requirement of locus standi to challenge the decision of a public body; whether applicant has sufficient interest in the decision; whether appellants established "substantial grounds" for challenging decision; whether locus standi should be considered as a threshold issue or on the hearing of the substantive application; whether the court, in determining the issue of standing, should consider the merits of an application; whether the appellants acted bona fide in forming the company; whether a company can have locus standi to challenge a decision made before the company was formed; whether the alleged failure to consider the possibility of requiring an EIS could have an adverse effect on the attainment of the objectives of the Directives and Regulations; whether alleged irregularities amounted to an abuse of process or default in procedure sufficiently grave to justify awarding locus standi to the appellants; s.82 Local Government (Planning and Development) Act, 1963; s.14(8) Local Government (Planning and Development) Act, 1976; s.19(3) Local Government (Planning and Development) Act, 1992; EU Council Directive 85/337/EEC; European Communities (Environmental Impact Assessment) Regulations 1989 (SI 349 of 1989); Local Government (Planning and Development) Regulations (SI 1986 of 1994); O.84, r.4, Rules of the Superior Courts Held:Applicant must establish substantial grounds for challenging such a decision, as well as proving it has a sufficient interest in the matter; no irregularities sufficiently grave to justify affording locus standi to the appellants; cross appeal allowed (Lancefort Ltd. v. An Bord Pleanála - Supreme Court: Hamilton C.J., Denham J.(*dissenting), Barrington J., Keane J., Lynch J. - 21/07/1998) - [1999] 2 IR 270 - [1998] 2 ILRM 401

The criteria for locus standi require that a person have "a sufficient interest", not that the applicant be a "person aggrieved". This particularly applies in cases of challenge by way of certiorari. But the courts are bound to have serious regard to the concern of the Oireachtas that the judicial review procedure should not be used as a form of further appeal against planning decisions by An Bord Pleanála. Whether a person has "sufficient interest" depends on the particular circumstances of the case. A limited company may be entitled to locus standi, even though the impugned decision may not affect its property or economic interests. The requirements of national law on locus standi may sometimes have to yield to the paramount obligation to uphold EU law. If there was any irregularity by the Board in this case in relation to the possible requirement for an Environmental Impact Assessment, it was not a sufficiently grave abuse of power or default of procedure to give the appellants locus standi.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(3)

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

EEC DIR 85/337 ART 2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

SPUC V COOGAN 1989 IR 734

CAHILL V SUTTON 1980 IR 269

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(8)

COMPANIES ACT 1963 S390

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(b)(i)

CONSTITUTION ART 43

BLESSINGTON HERITAGE TRUST LTD V WICKLOW CO COUNCIL & ORS UNREP MCGUINNESS 21.1.1998 1998/2/425

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998

FISHERIES (CONSOLIDATION) ACT 1959 S294

RSC O.84 r20(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LYNCH, STATE V COONEY 1982 IR 337

EAST DONEGAL CO-OP V AG 1970 IR 317

MCGIMPSEY & MCGIMPSEY V IRELAND & ORS 1988 IR 567

CROTTY V AN TAOISEACH 1987 IR 713

CHAMBERS V BORD PLEANALA 1992 ILRM 296

R V HAMMERSMITH & FULHAM LBC EX-PARTE PEOPLE BEFORE PROFIT LTD 1980 LGR 325

R V INSPECTORATE OF POLLUTION EX-PARTE GREENPEACE LTD (NO 2) 1994 4 AER 329

AANNEMERSBEDIJF PK KRAAIJEVELD V GEDEPUTEERDE STATEN VAN ZUID-HOLLAND 1996 ECR 1–5403

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

LOCAL GOVT ACT 1976 S14(8)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982

TREATY OF ROME ART 177

EEC DIR 85/337 ART 4

EEC DIR 85/337 ART 42

EUROPEAN COMMUNITIES ACT 1972 S3

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 56

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3)(A)

ELECTRICITY SUPPLY BOARD (ESB) V GORMLEY 1985 IR 129

INLAND REVENUE COMMISSIONERS & NATIONAL FEDERATION OF SELF-EMPLOYED & SMALL BUSINESSES LTD 1982 AC 617 1981 2 WLR 1981 2 AER 93

WADE ADMINISTRATIVE LAW 7ED 712

R V SECRETARY OF STATE FOR FOREIGN AFFAIRS EX-PARTE WORLD DEVELOPMENT MOVEMENT LTD 1995 1 AER 611

COMMISSION V BELGIUM

R V SECRETARY OF STATE FOR TRANSPORT EX-PARTE FACTORTAME 1990 ECR 1- 2433

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S32

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S33

MALAHIDE COMMUNITY COUNCIL LTD V FINGAL CO COUNCIL 1997 3 IR 383

1

Mrs. Justice Denhamdelivered on the 21st day of July, 1998.

1. ISSUE
2

The question for determination is (standing) of Lancefort Limited (hereinafter referred to as Lancefort) in these proceedings. At issue is whether or not Lancefort has the necessary standing, whether Lancefort has access to the courts, a right to be heard, in the matter. There is no constitutional limitation on Lancefort's access to the courts but the rules of court, statutory law and common law impose limitations.

2. HISTORY OF THE CASE
3

An Bórd Pleanála (hereinafter referred to as the Board) granted Treasury Holdings Limited (hereinafter referred to as the Developer) permission to develop a site bounded by Fleet Street, Westmoreland Street and College Street in the City of Dublin for the construction of a hotel, office accommodation and a retail bank on 11th December, 1996. That permission followed a vote of the City Council on 13th May, 1996 in accordance with Section 26(3) Local Government (Planning and Development) Act, 1963which provides for the procedures to be followed in granting a planning permission which materially contravenes the Development Plan. The Developer appealed to the Board against some of the conditions which the Planning Authority had attached to its decision, in particular the developer was concerned with condition 16(a) which required it to omit the proposed sixth floor, and 16(b) which required the omission of a portion of the fifth floor of the proposed development. An Taisce also appealed the decision of the Planning Authority on the grounds, inter alia, that it involved demolition and interference with listed buildings and that it was too high and of poor quality.

4

An oral hearing was conducted by the Board between 25th and 27th September, 1996. An inspector's report was produced and submitted to theBoard.

5

The Board did not require an Environmental Impact Assessment (hereinafter referred to as an EIA) the law on which is to be found in European Communities (Environmental Impact Assessment) Regulations, 1989 ( S.I. No. 349 of 1989) (hereinafter referred to as the Regulations) and Council Directive 85/337/EEC (hereinafter referred to as theDirective).

6

The proceedings initiated by Lancefort on 10th February, 1997 also proceeded on a number of related issues. The Developer alleged that Lancefort had failed to comply with the Planning Acts in that they failed to serve documents in time, that a court in considering the obligations of an applicant seeking to challenge a decision of the Board by way of judicial review must construe the obligations strictly, and that there was not proper service. On none of the points did the developer succeed; see judgment of Morris J. (as he then was) 13th May,1997.

7

On 6th June, 1997 Morris J. gave judgment on the application by Lancefort seeking liberty to apply for judicial review. The hearing had lasted six days. The matters to be determined were whether Lancefort had locus standi to challenge by way of judicial review and whether it had established substantial grounds within the meaning of Section 82 Local Government (Planning and Development) Act, 1963.

8

On the locus standi point there was the additional question as to whether the matter was to be determined at the initial application for judicial review or at the substantive hearing. Morris J. decided to determine the issue at the initial stage stating:

"In the first instance I am satisfied that the parties had a full opportunity to argue the issue of locus standi: Secondly, in the particular circumstances of the procedures to be followed as provided for by Section 82 of the 1963 Act, all parties have been present in the Court from the outset. I see no advantagein postponing dealing with this issue until the second stage of the hearing. Thirdly, the Supreme Court has pointed out in K.S.K.Enterprises Limited v. An Bórd Pleanála [1994]21.L.R.M. 1, it is essential that the developer know with the minimal possible delay where he stands with regard to his proposed development. To postpone a decision on this issue until the second part of the two-part procedure would involve significant delays which are manifestly undesirable."

9

Accordingly, he dealt with the issue at that stage and stated:

"I am satisfied that in this case Mr. Michael Smith and the group of people associated with him are genuinely and honestly concerned and have devoted significant efforts in the past for the protection of listed and historical buildings and have a...

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