High Court of Ireland Decisions

1. 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.

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

1. That the decision was irrational.

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.

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

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.

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

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 inserted by Section 19(3) of the Local Government (Planning and Development) Act, 1992) the High Court must be satisfied that there are "substantial grounds" for contending that the decision is invalid or ought to be quashed. I adopt and follow the well known passage in the judgment of Carroll J in McNamara v An Bord Pleanala (No 1) [1995] 2 ILRM 125 at 130:-

"In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than to satisfy myself that the grounds are 'substantial'. A ground that does not stand any chance of being sustained (for example where the point has already been decided in another case) could not be said to be substantial."

The points made in paragraphs 6 and 10 of the legal submissions on behalf of McDonalds are well made. In paragraph 6 it is pointed out that the affidavits filed establish that there was ample material before the Board to justify its decision and in particular the submission of Auveen Byrne & Associates, planning consultants, the traffic report prepared by Ove Arup & Partners Ireland, the submission of the planning authority and the inspector's report. I also agree with the observation made in the same paragraph that care must have been exercised by the Board in relation to its consideration of these matters in view of the fact that one of the conditions attached to the decision is that a drive-thru aspect of the development must not be proceeded with. In paragraph 10 it is argued, again correctly in my view, that two substantive issues in the appeal, namely residential amenity and traffic, are addressed in the decision both in the first schedule and in the conditions and the reasons therefor/ Insofar as leave is sought on grounds of irrationality, it would have to be refused. A point has been made by the Applicant that the property in question is included in the boundary of a liquor licence. I am not altogether clear whether this point is intended to be covered by the irrationality argument or is a free standing point but I would prefer to deal with it independently of any question of irrationality. I am of the view that on no basis is this a substantial point grounding a Judicial Review. The granting 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 the development without taking the necessary steps to ensure that the property was no longer licensed property. I therefore reject this as a ground for leave also.

FAILURE TO GIVE ADEQUATE REASONS

Counsel for the Applicant strongly argues that the proposed development contravenes materially the development plan for Kilkenny. The development plan outlawed take-away facilities in the particular area. But there is an ambiguity in that the plan does not define take-away facilities and it could be open to the construction that it was referring to premises which exclusively provided take-away facilities and not to a restaurant such as McDonalds where only 20% of its business was take-away. Counsel for the Board, Ms Butler, has referred me to Section 14(8) of the Local Government (Planning and Development) Act, 1976. That sub-section reads as follows:-

"The Board may in determining an appeal under Section 26 or 27 of the principal Act decide to grant permission or approval even if the proposed development contravenes materially the development plan or any special amenity area order relating to the area of the planning authority to whose decision the appeal relates."

Counsel for McDonalds, Mr Collins, makes a somewhat different argument. He says that the prohibition on take-aways in the development plan should be construed as a prohibition only on exclusive take-aways and secondly or alternatively he points out that the inspector as is clear from his report took the view that the prohibition on take-aways in the development plan for Kilkenny was for a particular purpose which was not relevant to the case in hand. He argued that residential amenity was not one of the purposes. Mr Collins therefore says that there was no material contravention of the development plan in the Board's decision and that therefore the provisions of Section 14(8) of the 1976 Act do not arise.

These are all interesting arguments and I am satisfied that at this stage I should not enter into them. It seems to me that the Applicant has crossed the threshold necessary to get leave. There is a substantial argument to be made that take-aways of all kinds were prohibited by the development plan particularly having regard to the planning history and to Kilkenny Corporation's own interpretation more than once of its own plan including its interpretation of it in this instance. Clearly Kilkenny Corporation itself considered that its plan applied to restaurants with take-away facilities as well as to exclusive take-aways. If the Applicant were to succeed in that argument it would have substantial grounds for further arguing that the decision of the Board constituted a material contravention of the plan. Again if the Applicant were successful in both arguments there are in my view substantial grounds for arguing that in cases where a planning authority invokes its powers under Section 14(8) of the 1976 Act, it should include its reasons for doing so as part of its reasons for granting the planning permission. In expressing this view I am obviously making no adjudication whatsoever on the merits of the counter-arguments by Ms Butler and Mr Collins but I believe that the arguments of Mr Hardiman for the Applicant have substance and that therefore if the Applicant has locus standi leave on this ground ought to be granted.

STATUTORY IMPROPRIETIES

In this heading I am adopting the expression used by Counsel for the Applicant, Mr Hardiman. The first of the alleged statutory improprieties is that the original planning notice referred to a change of user from an hotel user in circumstances where the premises had never been used as an hotel. The mistake arose because planning permission had been granted for an hotel but had never been availed of I do not think that this could constitute a substantial ground for Judicial Review in that nobody either reading the advertisement or inspecting the site notice would or could have been misled as to the property, the subject matter of the proposed planning application.

The second point taken is a more serious one. The site notice omitted the provision that the planning application could be inspected in the offices of the planning authority. This is an express requirement under Regulation 16(4)(d) of the Local Government (Planning and Development) Regulations, 1994. I think that this could in some circumstances be a substantial ground but only at the suit of a person with a particular locus standi and I will therefore return to this question when I deal with locus standi. The third alleged statutory impropriety is that a revised application was prepared and lodged between the decision of the planning authority and the consideration of the matter by the Board. I accept the arguments of Mr Collins on this matter. I do not think that any arguable case could be made out that the Board was not dealing with the original application. The revised documentation was merely in the nature of a kind of clarification but it obviously could not have the status of a statutory planning application as there are no procedures for an application to be made in that manner. I must assume that the Board could not have viewed the revised documents in the light suggested by the Counsel for the Applicant. This could not be a ground for Judicial Review in my opinion.

I turn now to locus standi. I am quite satisfied that the Applicant has no locus standi to seek Judicial Review on the grounds of the defective site notice. That could only be done by somebody who tried to satisfy the Court that he or she was misled and did not realise that they could inspect the planning application documents in the offices. There is no such suggestion in this case and I must therefore hold that the Applicant has no locus standi to raise this point.

The remaining question to be considered is whether the Applicant has locus standi to seek Judicial Review on the grounds that adequate reasons were not given. I have come to the conclusion that on the principles enunciated by Keane J in his judgment in the Supreme Court appeal in Lancefort Limited v An Bord Pleanala [1998] 2 ILRM 401 the Applicant does have sufficient locus standi. Planning is a matter of great public importance and it is not just of interest to the particular parties involved in a particular planning permission. A liberal view should therefore be taken in relation to locus standi: On the other hand of course, having regard to the restricted statutory grounds on which Judicial Review can be sought and having regard to the well established general reluctance of Courts to interfere with decisions of statutory Tribunals, a restrictive view must be applied to the determination of the actual Judicial Review itself. This seems to be in line with the view of the Supreme Court in Lancefort. I am being asked by Counsel for McDonalds to infer that the sole purpose for which the Applicant company was formed after the decision of An Bord Pleanala was as I indicated earlier on in this judgment for the purpose of avoiding costs liability and that even though security for costs might be given that would probably only be on the basis of one-third of the full costs. I have no doubt that there may have been mixed motives but I do not think that I should draw any such inference. Clearly the company in its membership consists of a number of people genuinely concerned about the permission and it is unwieldy and unwise to try and mount litigation in the name of or on behalf of an unincorporated association. It would seem to me that it would have been sensible that a company should be formed quite independently of any costs saving consideration. Furthermore, I do not think that I should pay any attention to the argument based on the practice of the Master of the High Court in fixing security for costs. It may well be that the Master would in fact fix adequate security or alternatively if he applied some rigid rule of practice to the contrary, McDonalds or the Board might be entitled to appeal that decision. At any rate, I do not think that there is an invariable practice that the security is confined to one-third of the costs. But if this is a problem, it is a problem to be resolved at the stage of the application for security for costs and it is not a ground for this Court holding that the Applicant has no locus standi unless the Court was to find that as a matter of probability there was nothing but an abuse of the process here in forming the company and in naming the company as the Applicant.

The concerns of the members of the Applicant company which is a company limited by guarantee would give them as individuals a sufficient interest to bring Judicial Review proceedings and in the circumstances it is appropriate to lift the corporate veil and regard the company which has been formed only for the particular purpose as having the sufficient interest. At p 440 of his judgment in Lancefort, Keane J observed as follows:-

"It is clear, as was held by this Court in Chambers v An Bord Pleanala [1992] 1 IR 134; [1992] ILRM 296 that the fact that a person affected by a proposed development did not participate in the appeals procedure is not of itself a reason for refusing locus standi. It may even be that a company which came into being after the decision which it is sought to challenge may in particular circumstances, be in a position to assert locus standi, as held by Comyn J in the case to which I have already referred. But it would, in my opinion, be a significant injustice to a party in the position of the notice party to be asked to defend proceedings on the ground of an alleged irregularity which could have been brought to the attention of all concerned at any time prior to the granting of permission, but which was not relied on until the application was made for leave to bring the proceedings."

This case is quite different in that the ground on which this Court is prepared to grant leave is not a ground which could have been raised during the hearing. The Applicant company and its members simply do not know why the Board deviated from the development plan if, as is suggested, the Board did so. Of course there is a suggestion by Mr Collins that the reasons are implied in the express reasons given for the granting of the permission. But while that might be an argument which could legitimately be made at the hearing of the Judicial Review, I do not think that it is an argument which can defeat the granting of leave.