Springview Management Company Ltd v Cavan Developments Ltd & South Dublin County Council

• Jurisdiction: Ireland
• Judge: JusticeO'Higgins
• Judgment Date: 29 September 1999
• Neutral Citation: [1999] IEHC 29
• Date: 29 September 1999
• Docket Number: No.360 J.R./1999
• Court: High Court

[1999] IEHC 29

THE HIGH COURT

No.360 J.R./1999

SPRINGVIEW MANAGEMENT COMPANY LTD v. CAVAN DEVELOPMENTS LIMITED & SOUTH DUBLIN CO. COUNCIL

JUDICAL REVIEW

IN THE MASTER OF SPRINGVIEW MANAGEMENT COMPANYLIMITED

APPLICANT

AND

CAVAN DEVELOPMENTS LIMITED AND SOUTH DUBLIN COUNTYCOUNCIL

RESPONDENTS

Citations:

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

BLESSINGTON & DISTRICT COMMUNITY LTD V BORD PLEANALA 1997 1 IR 273

MONAGHAN UDC V ALF-A-BET PROMOTION LTD 1980 ILRM 64

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16

ROAD TRAFFIC ACT 1961

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S2

SIMONS "LANCEFORT LTD V BORD PLEANALA" 1998 IPELJ 131

LANCEFORT LTD V BORD PLEANALA 1998 2 ILRM 401

Synopsis

Planning

Planning; judicial review; locus standi; application for leave to seek judicial review by way of certiorari in relation to planning decision; applicant complained of defects in site notice, positioning of same, other matters concerning site notice itself and non-compliance with planning permission; whether planning permission the proper subject of the judicial review proceedings; whether prejudice accrued to applicant or any members of the applicant company by virtue of any defects in the notice; whether plans available for public inspection during requisite period; whether requirement that date be in site notice; whether site notice would have alerted any vigilant or interested party as to what was being contemplated; whether the notice was fixed in a conspicuous position on or near the main entrance to the land from the public road as required by Article 16, Local Government (Planning and Development) Regulations, 1994; whether applicant had shown there to be a substantial and arguable case to be tried; whether applicant had locus standi; whether fact that company was formed after event complained of could be taken into consideration in deciding whether or not it has locus standi; whether the company had a property right or public interest right in the matter.

Held: Application dismissed. Applicant did not have locus standi. Applicant failed to show substantial grounds for judicial review on the merits of the case.

Springview Management Company Limited v. Cavan Developments Limited - High Court: O'Higgins J. (ex tempore) - 29/09/99 - [2000] 1 ILRM 437

The applicant had sought leave by way of judicial review to challenge a planning decision. Most of the grounds submitted by the applicant were in connection with the relevant statutory site notice. The applicant complained that there were a number of defects in the site notice that had the effect of misleading the public. This included an allegation that the proposed development had been insufficiently described. It was also contended that the contents of the notice did not conform to the relevant statutory regulations. O'Higgins J rejected the arguments of the applicant holding that the grounds advanced by the applicant were not substantial. Accordingly leave to seek judicial review was refused.

1 JusticeO'Higginsdelivered on Wednesday the 29th day of September1999.

2 This is an application for leave to seek judicial review by way of Certioran in relation to a certain planning decision.

3 In McNamara -v- An Bord Pleanala 1995 ILRM 125 at p.130 Carroll J. said as follows:-

"what I have to consider is whether any of the grounds advanced by the applicant are substantive grounds for contending that the board's decision was invalid. In order for a ground to be substantial it must be reasonable, must be arguable, it must be weighty. However I am not concerned with trying to ascertain what the eventual result would be. I belive I should go no further than to satisfy myself that the grounds are substantial."

4 That dictum has been approved by the Supreme Court and that is the criterion which I have to apply in this particular case.

5 The applicant's complaints can be divided into a number of: firstly in relation to defects in the site notice: Secondly, in relation to the positioning of same and thirdly in relation to other matter concerning the site notice itself. There are also a number of complaints of non-compliance with the planning permission which have been set out in the affidavit of the application.

6 As I have already indicated non-compliance with the planning permission is not the proper subject matter of these judicial review proceedings. It is open to an aggrieved party to bring the appropriate proceeding under section 27 of the local government (Planning and Development) Act 1976and I am making no adjudication on any matters of alleged non-compliance with planning permission.

7 The defects in the site notice were alleged to have been asfollows:-

8 That there was no date on the site notice.

9 That there was a misleading reference to a previous application.

10 That there was no reference number and

11 There was no sufficient description of the terraced house.

12 It is argued cogently by Ms.Walley that these defects had &potential to mislead members the public.

13 It seems to me that mater has been clearly decided in the judgement Kelly J., in the Blessington and District Community -v- An Bord Pleanala [1997] 1 I.R. 273 to which I was referred. There is no evidence that the applicant was misled by any defects in the notice. That is common case; it is uncontradicted. The applicant company was not in existence, and therefore it was impossible for the applicant company to be misled. Nor were the residents, or the people who are now members of the applicant company misled. They do not make that case: their case is that they did not see the notice that was put up. No prejudice accrued to the applicant or any members of the applicant company byany defects in the notice, and in the absence of such prejudice I do not consider that the applicant has a substantial ground for judicialreview.

14 I was also referred to later passage in the judgement of Kelly J.(at p.289/90) and it was pointed out by counsel that those observations were obiter as indeed they were. But the necessity of the applicant to show he was misled does form part of decision of Kelly J., with which I am in full agreement. It would seem to me (even were there not such an authority) to be self evident that you cannot be misled by something that you did not see. That finding covers quite a number of the arguments that have been raised by the applicants. It also covers another matter which was touched upon this morning, that is, the contention that the plans were not available for public inspection during the requisite period when they should have been. I have no difficulty at all in accepting the affidavit evidence concerning what happened when Mr. Ian McDonnell went to the office of the county council on the 3rd September 1999, concerning what he saw and what he did not see. I am asked to infer that because certain documents and plans were not presented to him or available for him on the 3rd September 1999, that during the requisite period when they should have been on display to the public, they were not on display. I cannot make such an inference in view of the affidavit evidence that I had this morning that the file was merely for inspection during the requisite period (leaving aside the oral evidence, which was for clarification purpose).

15 I think the explanation given by the official of the council is more than likely to be correct, and I find as a mater of fact that on the balance of probabilities just insofar as I have to find facts on a threshold, that the file was there for inspection. The inference sought to be raised by the applicant by virtue of what happened on the 3rd September 1999 has been rebutted by such evidence, In any event, I consider that neither the actual applicant(nor the members of the company) could have been prejudiced by that because they did not look for the plans during the relevant time. The argument, in my view, is only available for somebody in the real world and not in the abstract. If the file was not there public inspection (and I am quite satisfied that it was) that fact cannot be availed of by someone who did not and see whether it was there and accordingly was not prejudiced by its absence in any way. In other words, it seems to me that it is a technical objection only and not a weighty objection in the...