Moriarty v South Dublin County Council

• Jurisdiction: Ireland
• Judge: Mr Justice Hanna
• Judgment Date: 24 November 2005
• Neutral Citation: [2006] IEHC 109
• Docket Number: [No. 98 JR/2005]
• Court: High Court
• Date: 24 November 2005

[2006] IEHC 109

HIGH COURT

[No. 98 JR/2005]

MORIARTY v SOUTH DUBLIN CO COUNCIL

BETWEEN

LUKE MORIARTY

APPLICANT

-and-

SOUTH DUBLIN COUNTY COUNCIL

RESPONDENT

PLANNING & DEVELOPMENT ACT 2000 S34(6)

SOUTH DUBLIN CO COUNCIL DEVELOPMENT PLAN 1998 (http://www.sdublincoco.ie/notemplate/developmentplan/index.htm)

PLANNING & DEVELOPMENT ACT 2000 S12(17)

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

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA & ORS 1995 2 ILRM 125

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT UNREP HIGH COURT GEOGHEGAN 2.7.1999 1999/14/3977

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

PLANNING & DEVELOPMENT ACT 2000 S50(4)(c)(ii)

SPRINGVIEW MANAGEMENT CO LTD v CAVAN DEVELOPMENTS LTD & SOUTH DUBLIN CO COUNCIL 2000 1 ILRM 437

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Locus standi - Failure to participate - Whether grant of leave determined issue of locus standi - New development plan - Whether irrelevant consideration - Applicant beneficial owner of company - Whether lacking standing - Corporate veil - Springview Management Co Ltd v Cavan Development Ltd [2000] 1 ILRM 437 followed - Planning and Development Act 2000 (No 30), ss 12(17), 34(6) and 50(4) - Application refused (2005/98JR - Hanna J - 24/11/2005) [2006] IEHC 109

Moriarty v South Dublin County Council

Facts: The applicant sought by way of judicial review an order of certiorari quashing the decision of the respondent granting planning permission to the notice party herein. The applicant submitted that the court could not revisit the issue of locus standi, which was determined in his favour at the leave stage.

Held by Hanna J. in refusing the application: That the applicant did not have a substantial interest in the matter. Furthermore, the applicant failed to demonstrate that he had a special interest in the matter or that there were good and sufficient reasons for his failure to challenge the application at an earlier stage in the planning process.

Reporter: L.O’S.

Mr Justice Hanna

1 In this case, the applicant describes himself as a shop keeper of Palmerston in the county of Dublin. In his affidavit of the 2nd February 2005 he avers that he owns and operates a super value supermarket premises in Palmerston aforesaid.

2 Insofar as the applicant's ownership of the said business is material to the matters under consideration, it appears that this is a less than accurate description of the applicant's position.

3 The business and premises as it happens are leasehold premises leased to Ladgrove Stores Limited. The applicant is a director and the secretary of that company, holding a 99.4% shareholding. Nevertheless, the legal owner of the leasehold interest and operator of the premises and business is Ladgrove Stores Limited.

4 The respondent is the planning authority for the relevant area and the first named notice party with the former owner of the lands, with which we are concerned; they have no continuing interest in the said lands and have been discharged from the proceedings.

5 The second named notice party, Lidl Ireland, is the current owner of the material lands at Cherry Orchard Industrial Estate, Ballyfermot, Dublin 2. It is their intention, subject to the same being lawfully authorised, to construct, develop and maintain a retail outlet in the order of 1,645 square metres including some 1,200 square metres approximately of sales area.

6 The chronology of this case is roughly as follows: firstly, on the 3rd of February 2004, and during the currency of the 1998 South Dublin Development Plan, there was a decision of South Dublin County Council to grant planning permission arising from an application brought by on behalf of the notice party, Lidl Ireland Limited. On the 19th March 2004 an appeal against that decision was submitted to An Bord Pleanála on behalf of the applicant.

7 On the 3rd September 2004, An Bord Pleanála refused permission on grounds of material contravention of the development plan, being the development plan dated 1998.

8 On the 8th October 2004, a second application, which is the subject matter of this judicial review application, was made for a discount food store by M&J Gleeson & Co, being the former owners of the land.

9 On the 10th November 2004, South Dublin County Council adopted what was referred to as the South Dublin County Development Plan for 2004 to 2010.

10 On the 30th November 2004, the decision to grant planning permission by South Dublin County Council was made with regard to the application, the second application which was made on the 8th October 2004.

11 On the 8th December 2004, a matter of days after the decision to grant permission, the South Dublin County Development Plan 2004 to 2010 came into effect, four weeks having elapsed since it was voted into being by South Dublin County Council.

12 Thereafter, judicial review proceedings were bought by the present applicant. I will return to those but I think it is notable to refer to a somewhat curious twist which then occurred in that planning permission was applied for subsequent to all of these proceedings and this was granted and confirmed on appeal by An Bord Pleanála within the past seven days.

13 Accordingly, the situation is that the notice party now does have planning permission, on foot of what appears to be a valid planning permission affirmed by An Bord Pleanála, subject of course to the matter being scrutinised by Mr Galligan on behalf of his client.

14 This grant did not feature at all in any of the papers and I suppose it's rather like Banquo featuring at a well known Shakespearean dinner party. Mr Galligan will in due course no doubt peruse this but one has to take account of the fact that strictly speaking there is no evidence of what had transpired subsequent to the JR proceedings apart from a photocopy of this decision of An Bord Pleanála.

15 However, its authenticity has not been challenged and I suppose, were I to proceed to the matter of exercising discretion, it is something that might be taken into account. One might be concerned that we have been engaged in some sort of moot, while indeed other litigants were turned away from this court, but overall it seems to me that the outcome could only have a bearing, as far as this case is concerned, were I to turn to the question of discretion.

16 This arose on the foot of a motion dated the 2nd February 2005 and by order made the 4th April 2005. Quirke J gave liberty to seek an order of certiorari quashing the decision of the 30th November 2004 granting planning permission to the notice party to a declaration that the proposed declaration would amount to a material contravention of the South Dublin County Development Plan 1998 and that it was ultra vires the powers of the council in the absence of the initiation of the procedures under section 34(6) of the Planning and Development Act2000.

17 Thirdly, a declaration that the proposed development was similar in all respects to that refused by An Bord Pleanála and the planning authority was bound by that authority.

18 ...