Kenny v Provost, Fellows & Scholars of the University of Dublin, Trinity College & Anor, [2006] IEHC 131 (2006)

Docket Number:2005 3320P
Judge:Clarke J.
 
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THE HIGH COURT

DUBLIN No. 2005/3320P

JAMES KENNY Applicant

and

THE PROVOST, FELLOWS AND SCHOLARS OF THE

UNIVERSITY OF DUBLIN, TRINITY COLLEGE

AND AN BORD PLEANÁLA Respondents

JUDGMENT OF MR. JUSTICE FRANK CLARKE

ON THURSDAY, 30TH MARCH 2006

JUDGMENT WAS DELIVERED BY MR. JUSTICE CLARKE, AS FOLLOWS, ON THURSDAY, 30 MARCH 2006:

MR. JUSTICE CLARKE: These proceedings are

brought by Mr. Kenny in

relation to a planning permission obtained by

Trinity College in respect of the premises at

Trinity Hall, Dartry. Trinity College applied for

planning permission to Dublin Corporation, as it then

was, for development at Trinity Hall in April 1999.

The planning permission was granted on

14th November 1999. A number of parties, including

Mr. Kenny, subsequently appealed to An Bord Pleanála.

An Bord Pleanála granted planning permission.

Mr. Kenny commenced proceedings on 3rd October 2000

seeking leave to judicially review the decision of

An Bord Pleanála. That leave was refused by

McKechnie J on 15th December 2000. It is in respect

of that judgment that Mr. Kenny seeks in these

proceedings an order setting aside the judgment on

the grounds of fraud. I will return in more detail

to the basis upon which he seeks such an order in due

course.

It should also be noted that a number of proceedings

which were not directly concerned with a challenge to

the planning permission, but in respect of which the

planning permission was relevant, have also been

brought in the intervening period by Mr. Kenny.

Mr. Kenny obtained leave to seek judicial review of a separate decision, being a compliance order, on

4th July 2002. In those proceedings, Trinity College

were notice parties and Dublin City Council was the

respondent. The proceedings were determined by

Murphy J in a judgment of 19th October 2004 in which

Mr. Kenny's application for judicial review was

refused. A Notice of Appeal has been brought to

those proceedings, which I understand is still

pending.

In July 2002, Mr. Kenny commenced proceedings under

Section 160 of the Planning and Development Act 2000

in which proceedings he contended that

Trinity College had failed to comply with the

provisions of the planning permission. Those

proceedings are still pending and are, as I

understand it, currently awaiting a date.

It should also be noted that in respect of a variety

of the proceedings which I have outlined to date,

costs orders have been made which are not the subject

of any stay and have at least in some cases been the

subject of taxation with the costs not as yet being

discharged.

Returning to direct challenges to the planning

permission itself, I should also note that in

March 2001, McKechnie J had refused Mr. Kenny the

certificate necessary to enable him to appeal the original challenge to the planning permission to the

Supreme Court. On 7th November 2002, Mr. Kenny

instituted proceedings against Trinity and the City

Council seeking to have the original judgment and

order of McKechnie J set aside.

In those proceedings, it was alleged that Trinity had

perpetrated a fraud on the Court in relation to the

failure to disclose the lodgment of a fire safety

certificate which indicated the location of boilers

at a different location to that indicated to the

Court. It was accepted in those proceedings that

Trinity had not disclosed the fire safety

certificate, but it was contended on Trinity's behalf

that that issue was irrelevant to the matters which

were before the Court.

Trinity sought to have those proceedings struck out

on the grounds that they were frivolous, vexatious

and disclosed no cause of the action and were

therefore bound to fail. In this Court, the

President took the view that the pleadings did not

disclose a cause of action, but on the basis of

extraneous material, took the view that Mr. Kenny had

crossed the threshold necessary to be allowed

continue with the proceedings.

However, an appeal was brought against that finding,

and those set-aside proceedings were struck out by order of the Supreme Court on 20th June 2003 on the

basis that they failed to disclose a cause of action.

Costs were also awarded in respect of that

application.

Mr. Kenny commenced a second set of proceedings

seeking to have the order of McKechnie J set aside on

3rd July 2003. In those proceedings, an express plea

of fraud on the Court was made. Those proceedings

were struck out by Murphy J on 24th March 2004. An

appeal was brought by Notice of Appeal dated 28th

April 2004 against the decision of Murphy J to strike

out. It should also be noted that Trinity had, in

the same application in which it sought so strike out

those proceedings, sought an order, frequently

referred to as an Isaac Wunder order, which would

preclude Mr. Kenny from bringing any further

proceedings save with leave of the Court.

Mr. Justice Murphy had refused that order and as

against that refusal, Trinity College had

cross-appealed.

The instant proceedings were commenced against both

Trinity and the board on 5th October, and the matter

which is currently before the Court is a motion in

which Trinity College seeks an order striking out the

proceedings as being frivolous and vexatious,

disclosing no cause of action and being bound to fail

and in addition renews its application for a

so-called Isaac Wunder order.

The central contention upon which these new

proceedings are based is an allegation made by

Mr. Kenny that four photomontages that were submitted

with the original Environmental Impact Statement to

the board as part of the original planning process

were, as he described it, manipulated and, it is

contended, so done for the purposes of disguising the

height of the buildings. Upon that basis, it is

contended that a fraud was perpetrated on the Court,

and that in substance, the judgment and order of

McKechnie J was secured by fraud. It should be said

that that allegation is strenuously denied by

Trinity, but it does not seem to me at this stage

that it is a matter for me to determine the validity

or otherwise of that contention.

Before going on to deal with the specific issues that

arise in a motion such as that brought by Trinity in

this case, it seems to me that I should identify what

the role of this Court is in relation to planning

matters. That applies not only to the matter which

is currently before me but in all matters of which

the Court's jurisdiction is invoked in respect of

planning matters.

This Court is not a court of appeal upon the merits

or otherwise of planning decisions made by the

appropriate planning authorities. Still less is this

Court a tribunal of inquiry charged with looking into

whether planning permissions have been properly dealt

with. The Oireachtas has determined in the planning

legislation, most recently the 2000 Act, that

planning decisions are primarily a decision for the

planning authority, or where there is an appeal

against the decision of the planning authority, for

An Bord Pleanála. It is neither right nor proper for

this Court to in any way take away from the proper

jurisdiction of those bodies to make decisions in the

planning process.

However, where there is significant noncompliance

with planning law or where there are significant

failures in the planning process, this Court can, on

what are sometimes referred to as judicial review

principles, intervene. But it is important to note

that, again, the Oireachtas has determined that by

virtue of the provisions of the 2000 Act, any

challenge to a planning permission must be by way of

judicial review and must also comply with strict time

limits which can, of course, be extended in an

appropriate case. But it is clear from that view of

the role of the Courts, that any challenge brought

before the Court is limited to a consideration by the

Court of the particular issues that are put forward

by the applicant who invokes the Court's

jurisdiction. The Court is not involved in a general

consideration of the validity of the planning

permission, let alone the appropriateness of planning

permission having been granted in the first place.

The Court's role in any planning challenge is

narrowly confined to a consideration of whether,

applying appropriate judicial review principles, the

issues which are alleged to have tainted the planning

process or the planning decision are well made out,

and in the case of an application for leave, the

Court is concerned whether substantial grounds for

any such contention have been made out.

The original hearing before and decision of

McKechnie J was therefore limited in that way to the

issues which were raised before him, and so far as

the facts had to be considered by him, it was only

those facts which were relevant to the issues which

had been raised before him which were material to his

consideration.

In passing, I should note that it is common practice

in planning challenges for the parties to place

before the Court, for completeness, the totality of

the planning documents which were before the relevant

planning authority, be it the local planning

authority or the board. That does not mean that all

of all such documents are relevant to the Court's

consideration. I should also make it clear that I am

not in any way criticising the practice which I have

just identified. It is appropriate, lest perhaps

issues that were not absolutely clearly material

become important, that the Court should have all

relevant documentation before it. But the fact that

documents are before...

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