Lennon v Cork City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Smyth
• Judgment Date: 19 December 2006
• Neutral Citation: [2006] IEHC 438
• Court: High Court
• Date: 19 December 2006

LENNON v CORK CITY COUNCIL

BETWEEN

John V. Lennon

PLAINTIFF

AND

Cork City Council

DEFENDENT

[2006] IEHC 438

Record No. 2005/347SP

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW:

Practice and procedure

Locus standi - Substantial interest - Professional fees if development goes ahead - Delay - Failure to comply with time limits - Extension of time - Delay not explained - Application not brought promptly - Whether O 84 applicable - Waiver of entitlements - Participation in process - Default permission - Whether entitled to default permission - Whether relief capable of any useful purpose - Claim dismissed (2005/347Sp - Smyth J -19/12/2006) [2006] IEHC 438 Lennon v Cork City Council

The plaintiff who was a Consultant Civil Engineer by profession claimed a declaration that Maria Lennon made a valid application to the defendant as the Planning Authority for outline permission to construct a bridge with a commercial centre and residential development across the River Lee in Cork. Ms. Lennon’s initial application for planning permission was deemed to be incomplete by the defendant and consequently she submitted a second application, which was ultimately unsuccessful. Ms. Lennon appealed that refusal to An Bord Pleanala but withdrew her appeal before it was determined, contending that outline permission had been granted by default as a result of a decision of this Court in a separate Judicial Review application. The plaintiff submitted that he had locus standi to bring these proceedings arising out of his contingent professional fee on a successful valid application.

Held by Smyth J. in dismissing the claim:

1. That the plaintiff was not the applicant for planning permission nor did he have any legal interest in the lands situated on either side of the river Lee. Consequently, the plaintiff had no standing to bring these proceedings as a contingent professional pecuniary interest in the outcome of a planning application by an advisor to an applicant did not amount to an interest in the property. Ms. Lennon would not have locus standi to bring these proceedings either.

2. That notwithstanding the lack of standing in these proceedings, the proceedings ought to be struck out on the grounds of delay. Furthermore, Ms Lennon had waived any entitlement she might have had to claim relief by participating fully in the planning process. In any event, she would not be entitled to default planning permission and therefore no useful purpose would be served by granting the declaratory relief sought.

Reporter: L.O’S.

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 17(2)LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 14(1)LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 14(1)(a)

RSC O.84 r20(4)

FRASCATI ESTATES LTD v WALKER 1975 IR 177

LENNON v LIMERICK CO COUNCIL UNREP LAFFOY 3.4.2006 2006/34/7201 2006 IEHC 112

CORRIGAN v IRISH LAND COMMISSION 1977 IR 317

TYNAN, IN RE 1969 IR 1

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 207(1)

GOONERY v MEATH CO COUNCIL & ORS UNREP KELLY EX TEMPORE 15.7.1999 1999/12/2990

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509 2004/50/11423

A v GOVERNOR OF ARBOUR HILL PRISON UNREP SUPREME 10.7.2006 2006/1/19 2006 IESC 45

CUSSEN, STATE v BRENNAN 1981 IR 181

DE ROISTE v MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 IR 128

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360

O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 301

ABENGLEN PROPERTIES v DUBLIN CORPORATION 1984 IR 381 1982 ILRM 590 1982/1/1

CLARKE v CHADBURN 1985 1 AER 211

TRANSPORT SALARIED STAFF' ASSOCIATION v CIE 1965 IR 180

ARDOYNE HOUSE MANAGEMENT CO LTD v BARDAS ATHA CLIATH & LEGIS LTD 1998 2 IR 147

PINE VALLEY, STATE v DUBLIN CO COUNCIL 1984 IR 407

ZAMIR & WOOLF THE DECLARATORY JUDGMENT 3ED 2002 4.093

PLANNING & DEVELOPMENT ACT 2000 S34(8)(f)

PLANNING & DEVELOPMENT ACT 2000 S34(11)(ii)(a)

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

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82(3b)

1 JUDGMENT of Mr. Justice Smyth delivered on Tuesday 19th December, 2006

2 The plaintiff's claim is for a declaration that Maria Lennon made a valid application on 10th August 1998 to the defendant, as Planning Authority, for outline permission for a bridge with a commercial centre and residential development across the Lee in the City of Cork between St. Patrick's Quay and Anderson's Quay.

3 This bold and imaginative scheme of development had as its inspiration the Ponte Vechio in Florence. The plaintiff who appeared in person on this hearing (and conducted the case with great skill and courtesy) is a Consultant Civil Engineer by profession with a professional reputation built up over 40 years or thereabouts.

4 In the course of the presentation of his case he described the meticulous pains he had taken in matters of measurement in formulating a design to give effect to the concept that would do credit to Benvenuto Cellini. The plaintiff, like the great 16th century goldsmith and sculptor, has lived in Florence and thence moved to Rome.

5 The factual history to these proceedings, which is of importance because of the range of arguments and submissions, stretches over a decade and a half.

6 The dates relevant to this application are as follows:

FACTS:

7 27th July 1998: Maria Lennon publishes notice of a forthcoming application for planning permission in the Evening Echo newspaper.

8 10th August 1998: Maria Lennon applies for outline planning permission to construct 48 apartments and a commercial arcade on a new bridge over the River Lee between Anderson's Quay and St. Patrick's Quay.

9 It is noteworthy that neither Ms. Lennon nor the plaintiff appears to have any consent or legal interest in the lands of the north and south banks of the river.

10 Although it is true that the Department of the Marine and Natural Resources has no objection to an application being made, acquiescence is passive, consent is positive, it is not so expressed in the letter of the Department of the Marine and Natural Resources of 8th September 1997. Furthermore, the application does not deal at all with the construction of the bridge.

11 17th August 1998: The defendant wrote to Ms. Lennon pursuant to Article 17(2) of the Local Government (Planning and Development) Regulations 1994 (hereinafter referred to as the 1994 regulations) stating that the application was incomplete on the basis that the defendant understood that Article 14(1) of the 1994 regulations, which requires a notice to be given "…within the period of two weeks before the making of a planning application" had not complied with, as the defendant understood that the notice of 27th July 1998 was not made within that time period.

12 24th August 1998: Ms. Lennon publishes a newspaper notice in The Examiner newspaper.

13 4th September 1998: The defendant registers Ms. Lennon's application for outline planning permission.

14 29th October 1998: The defendant decides to refuse the application for outline planning permission.

15 19th November 1998: Ms. Lennon appeals this decision to An Bord Pleanala.

16 11th February 1999: An Bord Pleanala advises that it has decided to determine the appeal without an oral hearing on the basis that it could be dealt with adequately through written procedures. This letter is of some significance and is referred to in Exhibit JO'D 8. As well as indicating that the Board had decided to determine the appeal without an oral hearing, the letter goes on to set out certain provisional views of the Board as to the merits of the application (see paragraphs numbered 1 to 5) having regard to which it appears inevitable that the appeal would fail. Though that of course is a matter of speculation. It was that, presumably, that prompted the withdrawal of the appeal.

17 9th March 1999: John Paul Lennon & Company, Consulting Engineers, of which the plaintiff is the Principal, representing Ms. Lennon, advises An Bord Pleanala that Ms. Lennon was withdrawing her appeal, contending that outline planning permission had been granted by default on 10th October 1998. This letter is at Exhibit JO'D9.

18 11th November 1999: The plaintiff institutes proceedings against the defendant in relation to another planning permission (one made by the plaintiff himself) seeking a declaration for the period of two weeks referred to in Article 14(1)(a) of the 1994 regulations did not include the day upon which the application was made. Those proceedings are Record No. 1999/ 475SP.

19 6th October 2000: Those proceedings are heard and determined by the High Court and the Plaintiff was granted a declaration that the period of two weeks does not include the day upon which the application was made.

20 6th October 2000 to 2nd November 2004: The defendant receives no contact from either the plaintiff or Ms. Lennon in relation to the application of the instant case.

21 2nd November 2004: John Paul Lennon & Company, Consulting Engineers, write on behalf of Ms. Lennon, 9 asserting that, on the basis of the decision of Barr J. of 6th October 2000 (in the earlier proceedings). The application of 10th August 1999 was a valid application and that a decision to grant outline planning permission should be regarded as having been given on 19th October 1998, i.e. two months thereafter.

22 10th June 2005: Ms. Lennon purports to apply to the defendant for "permission consequent on the grant of Outline permission" on the basis of a default outline...