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

Docket Number:2005 3320P
Judge:Clarke J.

THE HIGH COURTDUBLIN No. 2005/3320PJAMES KENNY ApplicantandTHE PROVOST, FELLOWS AND SCHOLARS OF THEUNIVERSITY OF DUBLIN, TRINITY COLLEGEAND AN BORD PLEANÁLA RespondentsJUDGMENT OF MR. JUSTICE FRANK CLARKEON THURSDAY, 30TH MARCH 2006JUDGMENT WAS DELIVERED BY MR. JUSTICE CLARKE, AS FOLLOWS, ON THURSDAY, 30 MARCH 2006:MR. JUSTICE CLARKE: These proceedings arebrought by Mr. Kenny inrelation to a planning permission obtained byTrinity College in respect of the premises atTrinity Hall, Dartry. Trinity College applied forplanning permission to Dublin Corporation, as it thenwas, for development at Trinity Hall in April 1999.The planning permission was granted on14th November 1999. A number of parties, includingMr. Kenny, subsequently appealed to An Bord Pleanála.An Bord Pleanála granted planning permission.Mr. Kenny commenced proceedings on 3rd October 2000seeking leave to judicially review the decision ofAn Bord Pleanála. That leave was refused byMcKechnie J on 15th December 2000. It is in respectof that judgment that Mr. Kenny seeks in theseproceedings an order setting aside the judgment onthe grounds of fraud. I will return in more detailto the basis upon which he seeks such an order in duecourse.It should also be noted that a number of proceedingswhich were not directly concerned with a challenge tothe planning permission, but in respect of which theplanning permission was relevant, have also beenbrought in the intervening period by Mr. Kenny.Mr. Kenny obtained leave to seek judicial review of a separate decision, being a compliance order, on4th July 2002. In those proceedings, Trinity Collegewere notice parties and Dublin City Council was therespondent. The proceedings were determined byMurphy J in a judgment of 19th October 2004 in whichMr. Kenny's application for judicial review wasrefused. A Notice of Appeal has been brought tothose proceedings, which I understand is stillpending.In July 2002, Mr. Kenny commenced proceedings underSection 160 of the Planning and Development Act 2000in which proceedings he contended thatTrinity College had failed to comply with theprovisions of the planning permission. Thoseproceedings are still pending and are, as Iunderstand it, currently awaiting a date.It should also be noted that in respect of a varietyof the proceedings which I have outlined to date,costs orders have been made which are not the subjectof any stay and have at least in some cases been thesubject of taxation with the costs not as yet beingdischarged.Returning to direct challenges to the planningpermission itself, I should also note that inMarch 2001, McKechnie J had refused Mr. Kenny thecertificate necessary to enable him to appeal the original challenge to the planning permission to theSupreme Court. On 7th November 2002, Mr. Kennyinstituted proceedings against Trinity and the CityCouncil seeking to have the original judgment andorder of McKechnie J set aside.In those proceedings, it was alleged that Trinity hadperpetrated a fraud on the Court in relation to thefailure to disclose the lodgment of a fire safetycertificate which indicated the location of boilersat a different location to that indicated to theCourt. It was accepted in those proceedings thatTrinity had not disclosed the fire safetycertificate, but it was contended on Trinity's behalfthat that issue was irrelevant to the matters whichwere before the Court.Trinity sought to have those proceedings struck outon the grounds that they were frivolous, vexatiousand disclosed no cause of the action and weretherefore bound to fail. In this Court, thePresident took the view that the pleadings did notdisclose a cause of action, but on the basis ofextraneous material, took the view that Mr. Kenny hadcrossed the threshold necessary to be allowedcontinue 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 thebasis that they failed to disclose a cause of action.Costs were also awarded in respect of thatapplication.Mr. Kenny commenced a second set of proceedingsseeking to have the order of McKechnie J set aside on3rd July 2003. In those proceedings, an express pleaof fraud on the Court was made. Those proceedingswere struck out by Murphy J on 24th March 2004. Anappeal was brought by Notice of Appeal dated 28thApril 2004 against the decision of Murphy J to strikeout. It should also be noted that Trinity had, inthe same application in which it sought so strike outthose proceedings, sought an order, frequentlyreferred to as an Isaac Wunder order, which wouldpreclude Mr. Kenny from bringing any furtherproceedings save with leave of the Court.Mr. Justice Murphy had refused that order and asagainst that refusal, Trinity College hadcross-appealed.The instant proceedings were commenced against bothTrinity and the board on 5th October, and the matterwhich is currently before the Court is a motion inwhich Trinity College seeks an order striking out theproceedings as being frivolous and vexatious,disclosing no cause of action and being bound to failand in addition renews its application for aso-called Isaac Wunder order.The central contention upon which these newproceedings are based is an allegation made byMr. Kenny that four photomontages that were submittedwith the original Environmental Impact Statement tothe board as part of the original planning processwere, as he described it, manipulated and, it iscontended, so done for the purposes of disguising theheight of the buildings. Upon that basis, it iscontended that a fraud was perpetrated on the Court,and that in substance, the judgment and order ofMcKechnie J was secured by fraud. It should be saidthat that allegation is strenuously denied byTrinity, but it does not seem to me at this stagethat it is a matter for me to determine the validityor otherwise of that contention.Before going on to deal with the specific issues thatarise in a motion such as that brought by Trinity inthis case, it seems to me that I should identify whatthe role of this Court is in relation to planningmatters. That applies not only to the matter whichis currently before me but in all matters of whichthe Court's jurisdiction is invoked in respect ofplanning matters.This Court is not a court of appeal upon the meritsor otherwise of planning decisions made by theappropriate planning authorities. Still less is thisCourt a tribunal of inquiry charged with looking intowhether planning permissions have been properly dealtwith. The Oireachtas has determined in the planninglegislation, most recently the 2000 Act, thatplanning decisions are primarily a decision for theplanning authority, or where there is an appealagainst the decision of the planning authority, forAn Bord Pleanála. It is neither right nor proper forthis Court to in any way take away from the properjurisdiction of those bodies to make decisions in theplanning process.However, where there is significant noncompliancewith planning law or where there are significantfailures in the planning process...

To continue reading