Linehan and Others v Cork County Council
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 19 February 2008 |
| Neutral Citation | [2008] IEHC 76 |
| Judgment citation (vLex) | [2008] 2 JIC 1901 |
| Docket Number | [No. 692 J.R./2007] |
| Court | High Court |
| Date | 19 February 2008 |
[2008] IEHC 76
THE HIGH COURT
COMMERCIAL
AND
AND
PLANNNG & DEVELOPMENT ACT 2000 S50
PLANNNG & DEVELOPMENT ACT 2000 S50A
PLANNNG & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13
PLANNNG & DEVELOPMENT ACT 2000 S50(2)
RULES OF THE SUPERIOR COURTS SI 15/1986 O.84
PLANNNG & DEVELOPMENT ACT 2000 S50A(3)(a)
G v DPP 1994 1 IR 374
RSC O.84 r20
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19(4)
PLANNING & DEVELOPMENT REGS 2006 SI 685/2006 ART 8
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 18
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 19
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 17(1)
PLANNNG & DEVELOPMENT ACT 2000 S7
PLANNNG & DEVELOPMENT ACT 2000 S7(2)(a)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 27
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 27(5)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 27(5)(b)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 27(5)(a)
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 26
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29
PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 29(3)
O'CONNOR & ORS v CORK CO COUNCIL UNREP MURPHY 1.11.2005 2005/47/9816 2005 IEHC 352
PLANNNG & DEVELOPMENT ACT 2000 S50(6)
PLANNNG & DEVELOPMENT ACT 2000 S50(8)
PLANNING AND DEVELOPMENT
Planning permission
Fair procedures - Applicants contending deprivation of opportunity to make submissions - Notice of planning application - Computerised system operated by respondents used by applicants to enquire as to existence of application - Input error in computer system - Disclaimer - Alternative means of enquiring as to planning applications available to applicant - Delay - Whether use of computerised system relieved applicants of further obligation to ascertain whether application had been made - Whether appropriate to determine disputed fact in the course of leave application - Whether necessary for affidavits to identify which matters within deponent's own knowledge - Whether breach of respondent's statutory obligations - Whether substantial grounds made out - Whether time limit ran from decision to refuse applicants' submissions or from grant of planning permission - G v DPP [1994] 1 IR 374 considered; O'Connor v Cork County Council [2005] IEHC 352 (Unrep, Murphy J, 1/11/2005) distinguished - Planning and Development Act 2000 (No 30), ss 7, 50 and 50A - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 - Planning and Development Regulations 2001 (SI 600/2001) - Rules of the Superior Courts 1986 (SI 15/1986), O 84 -Leave to seek judicial review refused (2007/692JR and 2007/127COM - Finlay Geoghegan J - 19/2/2008) [2008] IEHC 76
Linehan v Cork County Council
Facts: The applicants sought an order of certiorari quashing the decision of the respondent to grant planning permission for wind turbines. The applicants were residing in the vicinity of the proposed construction site. The applicants contended that they had been wrongfully denied their right to make submissions. The issue arose as to whether they had substantial grounds for judicial review, pursuant to s. 50A(3)(a) Planning & Development Act 2000, on the basis that they had carried out a search that did not reveal the application made.
Held by Finlay Geoghegan J. that the searches conducted did not relieve the applicants of their obligations to search. The applicants had not made out substantial grounds for review and an order would be made dismissing the application for judicial review.
Reporter: E.F.
delivered the 19th day of February 2008.
By notice of motion issued on 14th June, 2007 and served on the respondent and notice party on 19th June, 2007, the applicants seek leave to apply by way of judicial review for an order of certiorari quashing the decision of the respondent of 2nd May, 2007, to grant planning permission to the notice party under planning reference no. 06/12438.
The application was admitted to the Commercial List by order of Kelly J. of 22nd October, 2007. The parties agreed that, in the event that the Court granted leave to seek judicial review, the full hearing of the substantive judicial review action would be heard immediately thereafter. The respondent filed a notice of opposition without prejudice to its contention that the applicants were not entitled to leave on 14th December, 2007. The notice party did not file any notice of opposition but did file an affidavit indicating opposition to the granting of leave and substantive relief and at all stages indicated that it would participate in the proceedings.
The only relief in respect of which leave was sought at the hearing was for the order ofcertiorari referred to above. The decision being challenged is a decision of the respondent to grant permission to the notice party for the construction of two wind turbines of up to 85m hub height and up to 80m blade diameter, two transformers, site tracks and associated works at Lacka Cross, Lackanastooka, Ballydesmond, County Cork. The application for such permission was made to the respondent on 20th November, 2006.
The applicants are all persons who reside in the vicinity of the site on which it is proposed to construct the wind turbines. The single ground upon which they seek leave to challenge the validity of the decision of the respondent is set out at para. 13 of the statement of grounds:
"13. The Applicants as interested parties who wished to make observations and submissions regarding the said application for the placing of wind turbines at the location specified by the Notice Party have been denied their legal rights by the actions of the servants or agents of the Respondent and in the circumstances the said application is invalid and ought to be quashed and/or the Respondent acted ultra vires their powers in considering the application in the absence of consideration of the submissions and observations of the Applicants. Further, the Applicants wish to have their observations and submissions regarding Application 06/ 12438 considered prior to any decision by the Respondent regarding the merits of the application and whether it accords with the proper planning and development of the area concerned."
The respondent and notice party have objected to the form of the statement of grounds as only reciting facts and not disclosing the ground upon which is it contended that the decision of the respondent is invalid. I do not accept that objection. It is clear from para. 13 that the applicants contend that the decision is invalid as it wasultra vires the respondent to take the decision in factual circumstances (set out in the earlier paragraphs of the statement of grounds) where they contend they were wrongfully denied their legal right to make submissions/observations on the application of the notice party and have those considered by the respondent.
This application is subject to ss. 50 and 50A of the Planning and Development Act,2000, as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act, 2006 (hereinafter referred to as the Act of 2000). The following portions of those sections are relevant to the issues in the leave application:
"…"
2 50(2) A person shall not question the validity of any decision made or other act done by-
(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,
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) (the 'Order').
(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.
(8) The High Court may extend the period provided for in subsection ( 6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that-
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.
2 50A(2) An application for section 50 leave shall be made by motion on notice (grounded in the manners specified in the Order in respect of anex parte motion for leave)-
(a) if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under this Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave.
(3) The Court shall not grant section 50 leave unless it is satisfied that-
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b) (i) the applicant has a substantial interest in the matter which is the subject of the application, or
(4) A substantial interest for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other...
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