Village Residents Association Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 05 November 1999
• Neutral Citation: [1999] IEHC 258
• Court: High Court
• Docket Number: [1999 No. 238 J.R.]
• Date: 05 November 1999

[1999] IEHC 258

THE HIGH COURT

No. 238 J.R. 1999

VILLAGE RESIDENTS ASSOCIATION LTD. v. AN BORD PLEANALA & ORS

BETWEEN

THE VILLAGE RESIDENTS ASSOCIATION LIMITED

APPLICANT

AND

AN BORD PLEANALA AND

MCDONALDS RESTAURANTS OF IRELAND LIMITED

RESPONDENTS

AND

KILKENNY CORPORATION

NOTICE PARTY

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

MCNAMARA V BORD PLEANALA (NO 1) 1995 2 ILRM 125

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S14(8)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 REG 16(4)(d)

LANCEFORT LTD V BORD PLEANALA 1998 2 ILRM 401

CHAMBERS V BORD PLEANALA 1992 1 IR 134, 1992 ILRM 296

Synopsis

Planning

Planning; leave to apply for judicial review; substantial grounds; development plan; locus standi; respondent granted planning permission to McDonalds for the development of a standard McDonalds restaurant; permission had originally been refused by planning authority on the ground, inter alia, that the grant would have amounted to a material contravention of the development plan; applicant company, limited by guarantee, formed after impugned decision; no members of company were official objectors before the respondent, though two promoters did lodge objections which were one day late and therefore rejected; applicant applied for leave to apply for judicial review seeking to quash decision of respondent; whether applicant had locus standi; whether applicant had substantial grounds to claim that decision was irrational; whether applicant had substantial grounds for contending that property in question is included in the boundary of a liquor licence; whether applicant had substantial grounds for contending that respondent had failed to give adequate reasons for decision, in particular, why respondent had deviated from development plan; whether applicant had substantial grounds for contending that procedural irregularities were fatal to the entire application; s. 82 (3A) and (3B), Local Government (Planning and Development Act), 1963, as inserted by s. 19 (3), Local Government (Planning and Development) Act, 1992; s. 14 (8), Local Government (Planning and Development) Act, 1976; article 16(4)(d), Local Government (Planning and Development) Regulations, 1994.

Held: Leave granted; applicant did not have locus standi to contend that failure to mention on site notice that planning application could be inspected at the offices of the planning authority was fatal to application; this could only be done by somebody who tried to satisfy the Court that he was misled and did not realise that he could inspect the planning application documents in the offices; applicant had locus standi under Lancefort v. An Bórd Pleanála in respect of other arguments; members of applicant company could not have raised issue of whether or not respondent should give reasons explaining why planning permission in material contravention of the development plan was being granted since that did not become an issue until after respondent's decision; no substantial grounds for contending that decision was irrational; respondent had ample material before it with which to justify decision ultimately taken; no substantial grounds for contending that property in question was included in the boundary of a liquor licence; grant of planning permission does not render something which would otherwise be unlawful, lawful; if either works carried out or user enjoyed pursuant to the planning permission were contrary to the Intoxicating Liquor Acts, then McDonalds could not go ahead with development without taking steps to ensure that the property was no longer licensed property; substantial grounds for contending that whenever respondent invokes its power to grant planning permission in material contravention of the development plan, it must give reasons for the decision.

Village Residents Association Ltd. v. An Bórd Pleanála - High Court: Geoghegan J. - 05/11/1999 - [2000] 1 IR 65 - [2000] 2 ILRM 59

As planning is an area of great public importance the Court should take a liberal view in relation to the question of locus standi and no inference should be drawn in this case that the company was formed for the purpose of avoiding costs liability. The High Court so held in granting the applicant leave to apply for an order of certiorari on the basis that the first respondent did not give adequate reasons for its decision and further saying that no arguable case was made out that the first respondent had acted irrationally.

1 Mr. Justice Geoghegan delivered the 5th day of November, 1999.

2 This is an application for leave to bring Judicial Review proceedings seeking to quash a decision of An Bord Pleanala ("the Board")to grant a planning permission to McDonalds Restaurants of Ireland Limited ("McDonalds") for a development of a standard McDonalds restaurant cum take-away in the borough of Kilkenny subject to certain conditions set out in the decision. The permission had originally been refused by Kilkenny Corporation and one of the main grounds of refusal was that the inclusion of a take-away facility was contrary to the Kilkenny development plan. It is of course accepted that under the Planning Acts the Board is not bound by a planning authority's development plan.

3 Essentially the grounds on which the Applicant seeks to impugn the decision are the following:-

4 1. That the decision was irrational.

5 2. That there was a failure to give adequate reasons for the decision and in particular a failure to state why the Board had deviated from the development plan.

6 3. Certain procedural irregularities which are alleged to be fatal to the entire application.

7 The application for leave is being opposed by both the Board and McDonalds. But quite apart from alleging that there are no substantial grounds for Judicial Review it is strongly contended that the Applicant has no locus standi. The Applicant is a company limited by guarantee which was formed after the decision of the Board. The members of the company are local people including the principals of two schools who oppose the permission. Although none of the members of the company were official objectors before the Board, two of them who were prime movers in the establishment of the company did lodge objections which were one day late and were therefore not accepted. It is suggested that I should draw an inference that the sole purpose of the application being made in the name of this company is to avoid the effects of an expensive costs order if the application was unsuccessful. Although it is conceded that there would probably be good grounds for making an order for security for costs, it is suggested that traditionally the security for costs represents only about one-third of the full costs.

8 As is frequently the case, the issue of locus standi is intimately tied in with the substance of the case itself and I have decided that I will deal first with the question of whether there would be substantial grounds for Judicial Review or not, assuming that there was an appropriate applicant and if there are substantial grounds then the question of whether the Applicant company is an appropriate applicant or not, or in other words whether it has locus standi, can be determined. I will return now to the three main headings under which the decision of the Board is sought to be impugned.

IRRATIONALITY

9 In my view no arguable case is made out that the Board acted irrationally. But of course for the Applicant to get leave it must go still further than establishing an arguable case. Under Section 82(3A) and (3B) of the Local Government (Planning and Development) Act, 1963(as...