Lennon v Limerick City Council

 
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[2006] IEHC 112

THE HIGH COURT

No. 569 SP/2005
LENNON v LIMERICK CO COUNCIL
BETWEEN/
JOHN V. LENNON
APPLICANT

AND

LIMERICK CITY COUNCIL
RESPONDENT

2005/569SP - Laffoy - High - 3/4/2006 - 2006 34 7201 2006 IEHC 112

PLANNING & DEVELOPMENT ACT 2000 S154

PLANNING & DEVELOPMENT ACT 2000 S15(1)

LANNING & DEVELOPMENT REGS 2001 SI 600/2001

RSC O.19 r28

PLANNING & DEVELOPMENT ACT 2000 S50

FRASCATI ESTATES LTD v WALKER 1975 IR 177

PLANNING & DEVELOPMENT ACT 2000 S50(2)

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

PLANNING & DEVELOPMENT ACT 2000 PART III

FAY v TEGRAL PIPES LTD & ORS 2005 2 IR 261

JOHN v LENNON v LORD MAYOR, ALDERMAN, & BURGESSES OF CITY OF CORK UNREP HIGH COURT HERBERT 1999 (NO 475 SP)

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

PRACTICE AND PROCEDURE

Abuse of process

Strike out - Planning law - Planning permission - Unauthorised development -Locus standi - Delay - Frascati Estates v Walker [1975] IR 177 and Fay v Tegral PipesLtd [2005] 2 IR 261 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 19, r28 - Planning and Development Act 2000(No 30), s 50 - Claim struck out (2005/569SP - Laffoy J - 3/4/2006) [2006] IEHC 112 Lennon v Limerick City Council

Facts: The respondent sought an order pursuant to O.19 r.28 RSC striking out the applicant’s claim for a declaration that his client made a valid application for retention planning permission, on the basis that the claim was unsustainable, frivolous, vexatious and an abuse of process. The respondent submitted that the proceedings were unsustainable on the basis that the applicant had no locus standi.

Held by Laffoy J. in striking out the applicant’s claim: That as the applicant had no estate or interest in the property he could not and did not make a valid application for planning permission, and consequently he had no standing to bring proceedings seeking a declaration as to the validity of the application for retention permission.

Reporter: L.O’S.

Miss Justice Laffoy
1

The undisputed facts which have given rise to these proceedings are as follows:

2

• On 23rd July, 2004 the respondent, as planning authority, issued an Enforcement Notice pursuant to s. 154 of the Planning and Development Act,2000 (the Act of 2000) to Domanska, t/a The Locke Bar and Restaurant and Richard Costello, requiring them to remove an unauthorised development comprising of an unauthorised canopy at No. 3 George's Quay, Limerick City. The Enforcement Notice was not complied with. An application was made to the District Court for enforcement thereof and on 18th March, 2005 Domanska Limited was fined the sum of €500, together with €400 costs and €150 expenses. The District Court also made an order pursuant to s. 15(a) of the Act of 2000 directing that the works referred to in the Enforcement Notice be carried out. The decision of the District Court has been appealed to the Circuit Court and the appeal is still pending.

3

• Following the service of the Enforcement Notice, on 31st August, 2004 the applicant, acting as engineer on behalf of Richard Costello, submitted a planning application to the respondent for retention of the canopy. On 24th September, 2004 the respondent returned the planning application, in accordance with the Planning and Development Regulations, 2001 (the Regulations), as it did not constitute a valid planning application, stipulating seven separate deficiencies. Correspondence ensued between the applicant and the respondent, the applicant taking issue with the respondent in relation to the alleged deficiencies. However, the respondent stood over and still stands over the invalidity of the planning application.

4

Against that background, these proceedings were initiated by way of special summons which issued on 11th November, 2005. In the special endorsement of claim, the applicant, who issued the special summons in person and appeared at the hearing in person, claimed:

"A declaration that Richard Costello made a valid application on the 31st day of August, 2004 for permission to retain the existing canopy at No. 3, George's Quay, Limerick City."

5

He also claimed expenses. The special summons was grounded on the affidavit of the applicant, who averred that he is a member of John Paul Lennon and Company, Consulting Engineers, "which is acting on a contingency (Pro Bono) basis" for Richard Costello in his planning application made on 31st August, 2004, that the respondent purported to invalidate Mr. Costello's application for permission by letter dated 24th September, 2004 and that there had been voluminous correspondence subsequently between the respondent and the firm of John Paul Lennon and Company, and its subsidiary, Brunel Management Company, which was exhibited. The applicant stated his belief that a dispute existed between the parties which could only be resolved by a declaration of the court and he sought such declaration. A replying affidavit sworn by Kieran Reeves, a Senior Executive Planner in the planning department of the respondent, was filed on 26th January, 2006. In the affidavit, it was intimated that, as the respondent had been advised that the proceedings are unsustainable, it was intended to bring an application under O. ...

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