LANCEFORT Ltd v an Bord Pleanála & ATTORNEY GENERAL

• Jurisdiction: Ireland
• Judge: Mr. Justice Morris
• Judgment Date: 13 May 1997
• Neutral Citation: [1997] IEHC 83
• Docket Number: Record No. JR 49 1997
• Court: High Court
• Date: 13 May 1997

LANCEFORT LTD v. AN BORD PLEANALA & ATTORNEY GENERAL

JUDICIAL REVIEW

BETWEEN

LANCEFORT LIMITED

APPLICANT

AND

AN BORD PLEANALA, IRELAND AND THE ATTORNEYGENERAL

RESPONDENTS

AND BY ORDER

THE MINISTER FOR THE ENVIRONMENT AND TREASURY HOLDINGSLIMITED

NOTICE PARTIES

[1997] IEHC 83

Record No. JR 49 1997

THE HIGH COURT

Synopsis:

Planning

Judicial review; service of notice of motion and grounding documentation; two month limitation period for service of notice under s.82, Local Government (Planning & Development) Act, 1963; whether time limit contained in Ord. 122, r.9, R.S.C. 1986 applicable to s.82; whether service of documents on agent of company limited by guarantee at personal residence sufficient Held: Service sufficient; time limit in Ord. 122 inapplicable to s.82; service on agent declared sufficient under Ord. 9, r. 15, R.S.C., 1986 as party adequately informed and not prejudiced High Court: Morris J. 13/05/1997

Lancefort Ltd. v. An Bord Pleanala & Ors.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S82(3)(a)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S82(3)(b)(a)

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 ILRM 1

RSC O.122 r9

INTERPRETATION ACT 1937 S11(h)

COMPANIES ACT 1963 S379

COMPANIES ACT 1963 S7

RSC O.9 r15

1 Mr. Justice Morrisdelivered the 13th day of May, 1997.

2 This judgment is given on a preliminary issue which has arisen on the hearing of this application. It relates to the time and manner of the service of the Grounding Notice of Motion and supporting documentation. It is alleged by Treasury Holdings Limited that the Applicant Company has failed to comply with the provisions of the Planning Acts in thattheyfailed to serve the Notice of Motion in sufficient time or in the alternative properly upon the required parties to the proceedings and they accordingly ask that the Court should refuse to entertain theapplication.

3 The matter comes before the Court on an application by the Applicant Company for leave to apply for an Order of Judicial Review of a decision made by An Bord Pleanala and accordingly the relevant legislation is Section 82 of the Local Government (Planning and Development) Act, 1963as amended by Section 19 of the Local Government (Planning and Development) Act, 1992.

4 Section 19(3) of the 1992 Act provide:-

"(3) Section 82 of the Principal Act is hereby amended by the substitution for subsection (3)(a) (inserted by the Act of 1976) of the following subsections."

5 a (3)(a) A person shall not question the validity of

6 (a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act or

7 (b) a decision of the Board on any appeal or on any reference.

8 otherwise than by way of an application for Judicial Review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereinafter in this section referred to as "theOrder").

9 a (3)b(a) An application for leave to apply for Judicial Review under this Order in relation to a decision referred to in subsection (3)(a) of this section shall:-

10 (i) be made within the period of two months commencing on the date on which the decision is given and

11 (ii) be made by Motion on Notice (grounded in the manner specified in the Order in respect of an ex-parte Motion for leave)

12 (1) if the application relates to a decision referred to in subsection (3)(a)(a) of this section, the planning authority concerned and, where the Applicant for leave is not the Applicant for permission or approval under Part IV of this Act the Applicant for such permission or approval.

13 (2) if the application relates to a decision referred to in subsection (3)(a)(b) of this section the Board and each party or each other party as the case may be, to the appeal or reference.

14 (3) any other person specified for that purpose by Order of the HighCourt."

15 It is common case that there was an obligation on the Applicant in this case to lodge the Notice of Motion and supporting documentation in the High Court on or before the 10th February, 1997 and it is common case that the Applicant did comply with this obligation.

16 It is also common case that there was an obligation on the Applicant to give notice of the application to An Bord Pleanala, Ireland and the Attorney General, Dublin Corporation, An Taisce and Treasury Holdings Limited on or before that date. In the case of An Bord Pleanala, Ireland and the Attorney General, Treasury Holdings Limited andDublinCorporation it is accepted that the relevant documents were served on them on that date but after 5.00 p.m.. In the case of An Taisce while it is accepted that documents were handed to a Mr. Michael Smith, it is denied that this constituted effective service to comply with the provisions of the section.

THE FIRST POINT

17 It is submitted by Counsel on behalf of Treasury Holdings Limited that a Court in considering the obligations of an applicant seeking to challenge a decision of An Bord Pleanala by way of Judicial Review must construe these obligations strictly. He points to K.S.K.Enterprises Limited -v- An Bord Pleanala. 1994 2.I.L.R.M. as authority for the proposition that there must be absolute certainty in planning applications and the rules must be strictly interpreted and adhered to. He refers to that part of the judgment of the Supreme Court at paragraph 3 on page 2 of the report as follows:-

"Because of the importance of notification to the recipient of a planning permission and the planning authorities, an application could not be made within two months merely by filing the Notice of Motion in the Court office."

18 Moreover:

"It was the intention of the legislature to ensure that within a short interval the recipient of a planning...