Talbotgrange Homes Ltd v Laois County Council and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 02 December 2009
• Neutral Citation: [2009] IEHC 535
• Court: High Court
• Date: 02 December 2009

[2009] IEHC 535

THE HIGH COURT

[No. 636 J.R./2007]

Talbotgrange Homes Ltd v Laois Co Council & Ors

[2009] IEHC 535

BETWEEN

TALBOTGRANGE HOMES LIMITED

APPLICANT

AND

LAOIS COUNTY COUNCIL, THE MINISTER FOR ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

RSC O.84 r20

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT ACT 2000 S31

CONSTITUTION ART 40.3.2

PLANNING & DEVELOPMENT ACT 2000 S31(2)

PLANNING & DEVELOPMENT ACT 2000 S31(3)

PLANNING & DEVELOPMENT ACT 2000 S31(4)

PLANNING & DEVELOPMENT ACT 2000 S50(6)

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

RSC O.84 r24

RSC O.84 r21

PLANNING & DEVELOPMENT ACT 2000 S31(5)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001

PLANNING & DEVELOPMENT (STRATEGIC ENVIRONMENTAL ASSESSMENT) REGS 2004 SI 436/2004

G v DPP & JUDGE KIRBY 1994 1 IR 374 1994/3/724

PLANNING & DEVELOPMENT ACT 2000 S50A(2)(A)

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING & DEVELOPMENT ACT 2000 S50(8)

RSC O.84 r21(1)

SCOTT & ORS v BORD PLEANALA 1995 1 ILRM 424 1994/13/4021

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA 1995 2 ILRM 125 1995/3/1122

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT & ORS UNREP GEOGHEGAN 2.7.1999 1999/14/3977

PLANNING & DEVELOPMENT ACT 2000 S13

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD (NO 2) 2000 4 IR 159 2000/15/5538

MCDONALD v BORD NA GCON & AG (NO 2) 1965 IR 217 1966 100 ILTR 89

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & CMSR OF AN GARDA SIOCHANA 1997 2 IR 489 1997 2 ILRM 321 1997/4/1431

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

GOLDING & ORS v LABOUR COURT 1994 ELR 153 1994/3/804

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNICATIONS UNREP KELLY 9.9.2008 2008/11/2331 2008 IEHC 289

MULHOLLAND & KINSELLA v BORD PLEANALA 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

PLANNING & DEVELOPMENT ACT 2000 S34(10)(B)

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

PLANNING & DEVELOPMENT ACT 2000 S12

PLANNING & DEVELOPMENT ACT 2000 S12(3)

PLANNING & DEVELOPMENT ACT 2000 S55

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

NI EILI v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

PLANNING & DEVELOPMENT ACT 2000 S50A(6)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317 1970 104 ILTR 81

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

RSC O.84 r20(4)

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

PLANNING & DEVELOPMENT ACT 2000 S10(8)

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381

KELLY v LEITRIM CO COUNCIL & BORD PLEANALA 2005 2 IR 404 2005/34/6980 2005 IEHC 11

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

O'BRIEN v MR JUSTICE MORIARTY 2006 2 IR 221 2005 2 ILRM 321 2005/45/9458 2005 IESC 32

O'DONNELL v DUN LAOGHAIRE CORP 1991 ILRM 301

NOONAN SERVICES LTD & ORS v LABOUR COURT UNREP KEARNS 25.2.2004 2004/36/8316 2004 IEHC 42

POWER & ORS v MIN FOR SOCIAL & FAMILY AFFAIRS 2007 1 IR 543 2007 1 ILRM 109 2006/49/10354 2006 IEHC 170

SOLAN v DPP & JUDGE WINE 1989 ILRM 491 1988/10/3025

HARDING v CORK CO COUNCIL & BORD PLEANALA 2008 4 IR 318 2008 2 ILRM 251 2008/28/6094 2008 IESC 27

VEOLIA WATER UK PLC & ORS (T/A VEOLIA WATER CONSORTIUM) v FINGAL CO COUNCIL (NO 1) 2007 1 IR 690 2007 1 ILRM 216 2006/57/12157 2006 IEHC 137

PLANNING AND ENVIRONMENTAL LAW

County development plan

Variation - Ministerial direction - Whether valid - Certiorari - Whether substantial grounds - Locus standi - Whether applicant had sufficient interest to bring proceedings - Time limit for bringing application - Delay - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; De Roiste v Minister for Defence [2001] 1 IR 190; O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; East Donegal Co-Operative v Attorney General [1970] IR 317 applied; Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453; Henderson v Henderson (1843) 3 Hare 100; AA v Medical Council [2003] 4 I.R. 302; Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 followed; G v DPP [1994] 1 IR 374; Scott v An Bord Pleanála [1995] 2 ILRM 424; McNamara v An Bord Pleanála [1995] 2 ILRM 125; Jackson Way Properties Ltd v Minister for the Environment 4 IR 608; Orange Ltd v Director of Telecoms (No 2) [2004] 4 IR 159; McDonald v Bord na gCon (No 2) [1965] IR 217; McCormack v Garda Síochána Complaints Board [1997] 2 IR 489; O'Donoghue v An Bord Pleanála [1991] ILRM 750; Golding v Labour Court [1994] ELR 153; Deerland Construction v Aquaculture Licences Appeal Board [2008] IEHC 289, [2009] 1 IR 673; State (Keegan) v Stardust Compensation Tribunal [1986] IR 642; NíÉilí v Environmental Protection Agency (Unrep, SC, 30/7/1999); State (Abenglen Properties) v Corporation of Dublin [1984] 1 IR 383; Kelly v Leitrim County Council [2005] IEHC 11, [2005] 2 IR 404; O'Brien v Moriarty [2005] IESC 32, [2006] 2 IR 221; Noonan Services Ltd v Labour Court [2004] IEHC 42 (Unrep, Kearns J, 25/2/2004); Power v Minister for Social and Family Affairs (Unrep, Blayney J, 9/7/87); Power v Minister for Social and Family Affairs [2007] 1 IR 543; Harding v Cork County Council [2008] IESC 27, [2008] 4 IR 318; Veolia Water UK plc v Fingal County Council (No 1) [2006] IEHC 137, [2007] 1 IR 690 considered - Planning and Development Act 2000 (No 30), ss. 50 and 50A - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 20 - Leave to apply for judicial review refused (2007/636JR - McCarthy J - 2/12/2009) [2009] IEHC 535

Talbotgrange Homes v Laois County Council

Facts The applicant sought, inter alia, an order of certiorari quashing the decision of the second respondent to issue the Planning and Development (Laois County Development Plan) Direction 2006 pursuant to s. 31 of the Planning and Development Act 2000 directing the first respondent to vary the County Laois Development Plan and the decision of the first respondent to vary the Development Plan pursuant to the said ministerial direction, such that part of his lands which had been re-zoned for building would be re-instated to their original agricultural zoning. The applicant's principal complaint was that there had been a lack of specificity in the reasons given and no reason was given for the selection of its lands, in particular, for de-zoning. The applicant was outside the time limits for bringing the proceedings and sought an extension of time pursuant to Order 84 of the Rules of the Superior Courts 1986 and section 50 of the Act of 2000 respectively.

Held by Mr. Justice McCarthy in refusing the relief sought that the actual delay was quite significant and was a relevant factor when considering whether an extension of time for bringing proceedings should be granted. Neither had the applicant proffered a satisfactory explanation for the delay, which was another factor. Another factor was the policy of the planning code which was to achieve early certainty with respect to planning decisions. Accordingly, the applicant was out of time for bringing the proceedings and had not shown good cause for extending the said time limit.

That, as generally public notice sufficed in the realm of planning law, the applicant had not established arguable grounds that fair procedures were breached in his failure to be perasonally consutled about the decisions in issue.

That the applicant had such information before it which was necessary and appropriate for it to consider whether it had a reasonable chance of succeeding in judicially reviewing the decision of the second respondent, the information armed it for such a review and there was evidence that the second respondent directed his mind adequately to the issues he was obliged to consider when making the direction.

That, whilst the rationale generally of changing zoning in respect of the area as a whole was clear, the reasons did not ratioanlly explain why the applicant's lands within that area had been singled out for de-zoning whilst other lands had not.

Reporter: P.C.

Relief sought

1 These proceedings concern an application for leave to apply for judicial review pursuant to O. 84, r. 20 of the Rules of the Superior Courts 1986 and under ss. 50 and 50A of the Planning and Development Act 2000, as amended, for the following principal reliefs as set forth in the applicant's amended notice of motion, made returnable for the 18 ^th June, 2007:-

1 An order of certiorari quashing the decision of the second named respondent of the 24 ^th October, 2006, to issue the Planning and Development (Laois County Development Plan) Direction 2006 pursuant to s. 31 of the Planning and Development Act 2000directing the first named respondent to vary the Development Plan for the County of Laois for the period 2006-2012 and/or such part or provisions thereof ("the said part thereof") as affects the lands owned by the applicant more particularly described in the affidavit of Michael Raggett herein.

2 An order of certiorari quashing the decision of the first named respondent by way of order of the County Manager dated the 31 ^st January, 2007, to vary the Development Plan for the County of Laois for the period 2006-2012.

3 A declaration that the Planning and Development (Laois County Development Plan) Direction 2006 made pursuant to s. 31 of the Planning and Development Act...