Lancefort v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 12 March 1998
• Neutral Citation: [1998] IEHC 199
• Docket Number: No. 49 J.R./1997
• Court: High Court
• Date: 12 March 1998

LANCEFORT LTD v. TREASURY HOLDINGS LTD

BETWEEN

LANCEFORT LIMITED

APPLICANT

AND

AN BORD PLEANALA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

TREASURY HOLDINGS LIMITED

NOTICE PARTY

[1998] IEHC 199

No. 49 J.R./1997

THE HIGH COURT

Synopsis

Planning

Judicial review; locus standi; constitutionality; environmental impact statement; site inspection reports; whether the applicant had locus standi to bring judicial review proceedings against the planning decision; whether a body corporate has locus standi to challenge the constitutionality of legislation; whether the applicant has sufficient interest in the proceedings to challenge the validity of the legislation; whether the respondent must be shown to have considered the requirement for an environmental impact assessment; whether the site inspector is required to include an account of his inspection in his report to the Bord; s. 82 Local Government (Planning and Development) Act 1963; ss. 23 and 14(8) Local Government (Planning and Development) Act 1976; s. 19(3) Local Government (Planning and Development) Act 1992; art. 56(2) Local Government (Planning and Development) Regulations 1994

Held: Applicant had locus standi to maintain judicial review proceedings generally; grounds of challenge fail; no locus standi to challenge the constitutionality of the legislation

Lancefort Ltd v. An Bord Pleanala - High Court: McGuinness J. - 12/03/1998

Citations:

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

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

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

EEC DIR 337/85 ART 4(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S23

CONSTITUTION ART 43

TENNYSON V CORPORATION OF DUN LAOGHAIRE 1991 2 IR 527

BLESSINGTON HERITAGE TRUST LTD V WICKLOW CO COUNCIL , MIN FOR ENVIRONMENT & ROADSTONE (DUBLIN) LTD UNREP MCGUINNESS 21.1.1998 1998/2/425

WICKLOW HERITAGE TRUST LTD V WICKLOW CO COUNCIL UNREP MCGUINNESS 5.2.1998

SCANNELL ENVIRONMENTAL & PLANNING LAW 108

MALAHIDE COMMUNITY COUNSEL V FINGAL CO COUNCIL 1997 3 IR 383

MCBRIDE V MAYOR OF GALWAY 1998 1 IR 485

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

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 56(2)

EEC DIR 337/85 ART 2

EEC DIR 337/85 ART 3

COMMISSION V BELGIUM

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

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

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

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/ 1994 CH 11

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

COMHALTAS CEOLTEORI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(5)

KILLINEY & BALLYBRACK DEVELOPMENT ASSOC LTD V MIN FOR LOCAL GOVT & TEMPLEFINN ESTATES LTD 112 ILTR 69

CAHILL V SUTTON 1980 IR 269

MACMATHUNA V AG 1989 IR 404, 1995 1 ILRM 69

MADIGAN V AG 1986 ILRM 137

PMPA LTD V AG 1983 IR 339

CHESTERFIELD PROPERTIES LTD V GLACKEN 1993 3 IR 35

IARNROD EIREANN V AG 1995 2 ILRM 161

SPUC V COOGAN 1990 ILRM 70, 1989 IR 738

MCGARRY V SLIGO CO COUNCIL 1989 ILRM 768

PMPS LTDV AG 1983 IR 339

KELLY IRISH CONSTITUTION 3ED 434–448

EAST DONEGAL CO-OP V AG 1970 IR 317

SPUC V COOGAN 1989 IR 734

CONSTITUTION ART 40.3.3

LYNCH, STATE V COONEY 1982 IR 337

TREATY OF ROME ART 177

1 JUDGMENT of Mrs. Justice McGuinness delivered the 12th day of March, 1998

2 In these proceedings the Applicant, which is a company limited by guarantee, seeks by way of Judicial Review an Order of Certiorari quashing a decision of the first named Respondent, An Bord Pleanala, bearing planning register reference number 0040/96 and PL 29S.099165 dated the 11th December, 1996 granting permission for a mixed hotel and office development to the Notice Party, Treasury Holdings Limited. The Applicant in addition seeks a Declaration that Section 14(8) of the Local Government (Planning and Development) Act, 1976is repugnant to the Constitution and void.

3 The Applicant's Notice of Motion and Statement grounding application for Judicial Review were issued and served on the 10th February, 1996. Following on a number of preliminary applications and hearings on procedural points the substantive question of the application for leave to issue Judicial Review proceedings came on for hearing pursuant to the provisions of Section 82 of the Local Government (Planning and Development) Act, 1963(as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992before the learned Morris J., now President of this Court. The hearing lasted some six days and in a reserved Judgment delivered the 6th day of June 1997 the learned President granted leave to the Applicant to issue the present Judicial Review proceedings on specific and limited grounds. He accepted that the Applicant possessed locus standi to issue the proceedings; he also rejected a number of the grounds put forward in the Applicant's original Statement grounding the application.

4 The second and third named Respondents and the Notice Party had issued Motions seeking security for costs and these Motions were heard by the learned Morris P. on the 16th June, 1997. In a further reserved Judgment of the 23rd June, 1997 Morris P. awarded security for costs in favour of those parties in the amounts of £15,000 and £25,000 respectively.

5 The Applicant wished to appeal the refusal of Morris P. to grant leave to seek Judicial Review on the ground that An Bord Pleanala had failed to comply with the provisions of European Council Directive 337/85/EEC on environmental impact assessments and it applied to the Court pursuant to Section 82 of the Local Government (Planning and Development) Act, 1963for a certificate enabling such an appeal to the Supreme Court on the grounds that the matter involved a point of law of exceptional public importance and that it was in the public interest that such an appeal be taken. The second and third named Respondents similarly sought a certificate to appeal the decision of this Court regarding the Applicant's locus standi. The hearing of the applications for the said certificates took place before Morris P. on 21st and 22nd July, 1997 and in a further reserved Judgment delivered on 23rd July, 1997 the learned Judge granted the certificates. The Notice Party then on 25th July, 1997 brought a Notice of Motion to the Supreme Court seeking to restore all these matters to the High Court. By Orders dated 27th July and 29th July, 1997 the Supreme Court remitted all matters to the High Court for hearing.

6 At the hearing before me I was provided with a transcript of the proceedings before the Supreme Court on 29th July, 1997. It is clear from this transcript that the learned Chief Justice repeatedly made the point that all issues in the matter were to go back to this Court and that all issues were to be tried in this Court including, it appears, the issue of locus standi. At page 3 of the transcript the learned Chief Justice states:-

"What this Court decided last Friday was that all issues go back to the High Court and its a matter for the High Court to decide what they are going to do, the way they do it, what they have to do, it is purely a matter for the High Court."

7 Counsel for the Applicant submitted to the Supreme Court that the High Court should not again consider the matter of locus standi which had already been decided by Morris P. The Chief Justice replied: "That is a matter for the High Court. He may change his mind."

8 It is clear from the above that it was open to this Court to consider all the matters which arose both in the original hearing before Morris P. and in the appeals to the Supreme Court.

9 At the hearing before me the Applicant submitted that the matter of locus standi had already been decided by the learned Morris P. and was therefore res judicata. The Respondents and the Notice Party submitted that it was open to this Court to reconsider the matter of locus standi, in particular the locus standi of the Applicant to seek to impugn the constitutionality of Section 14(8) of the 1976 Act.

10 The Respondents and the Notice Party submitted that the Applicant had substantially altered its grounds for seeking Certiorari on the environmental impact assessment point and that this was not permissible under the time limits set out in Section 82 of the 1963 Act. The Applicant asserted that it had relied on these grounds at all of the earlier stages of the proceedings.

11 Bearing in mind the attitude of the Supreme Court at the hearing on the 29th July, 1997, and in particular the dicta of the Chief Justice, I considered that the correct course was to permit both the issue of locus standi and the environmental impact assessment point as then formulated by the Applicant to be argued before this Court and I accordingly did so.

12 The basic facts of the case are succinctly set out by Morris P. at page 2 of his Judgment of the 6th June, 1997, as follows:

13 2 "1. An Bord Pleanala granted Treasury Holdings Limited (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 retail bank on the 11th December, 1996. The Developer appealed to the Bord as it was unsatisfied with the permission granted to it by the Planning Authority. The permission followed a vote of the City Council on the 13th May, 1996 in accordance with Section 26(3) of the Local Government (Planning and Development) Act, 1963which provided for the procedures to be followed granting a permission which materially contravenes the development plan.

14 2. The Developer appealed to the Bord against some of the conditions which the Planning Authority had attached to its decision. In...