High Court of Ireland Decisions

Judgment Title: Deerland Construction Limited v Westmeath County Council

Neutral Citation: [2006] IEHC 420


High Court Record Number: 2006 1013JR

Date of Delivery: 12 December 2006

Court: High Court

admitted this case to the
Commercial List and on the same day directed the trial
of a preliminary issue to be heard today. This is my
judgment on that preliminary issue.


The question for determination is whether or not the
Applicant has locus standi to bring or maintain these
proceedings having regard to the provisions of Section
50(4) of the Planning and Development Act 2000. The
issue, if decided in a manner adverse to the Applicant,
will be dispositive of the entire application.


The Applicant is the owner of Harbour Place Shopping
Centre in Mullingar, Co. Westmeath. The Notice Party
is a rival to the Applicant at Grand Parade, Mullingar,
Co. Westmeath. In these proceedings the Applicant
will, at the next stage, if permitted, seek leave to
apply for judicial review of a decision of Westmeath
County Council of the 29th June of this year. If
granted such leave it will at the full hearing seek
certiorari directed to Westmeath County Council in
respect of that decision.




The decision of Westmeath County Council granted
permission to the Notice Party to change the use of
three units of a retail development at Grand Parade,
Mullingar, from bulky goods to general retail. It is
common case that the application for a judicial review
is covered by Section 50 of the Planning and
Development Act 2000.

Section 50(2) mandates that a person shall not question
the validity of a planning permission, such as the one
in suit, otherwise than by an application for judicial
review under order 84 of the Rules of the Superior
Courts.

Section 50(4) fixes a short time within which such an
application must be brought. It is 8 weeks. Whilst
there is a jurisdiction vested in the Court to extend
that time, the Court is forbidden to do so unless it
considers that there is good and sufficient reason for
doing so. The application for leave must be made on
notice per section 50 (4)(b) and the Court is
prohibited from granting such leave unless there are:

"Substantial grounds for contending
that the decision is invalid or ought
to be quashed and that the Applicant
has a substantial interest in the
matter which is the subject of the
application".


Section 50(4)(C) reads, insofar as it is relevant to
this application, as follows:


"Without prejudice to the generality of
paragraph (B) leave shall not be
granted to an Applicant unless the
Applicant shows to the satisfaction of
the High Court that the Applicant is a
person who made submissions or
observations in relation to the
proposed development."


It is accepted by the Applicant that it did not make
submissions or observations to Westmeath County Council
in relation to the proposed development. It follows
that in such circumstances the Court is prohibited from
granting leave to apply for judicial review save where
an Applicant can show that he, she, or it falls within
the saving provisions of section 50 (4)(c)(ii). That
provides that a person who, such as the Applicant, did
not make submissions or observations to the Planning
Authority may be given locus standi to apply for leave
for judicial review if, "there were good and sufficient
reasons for his or her not making objections,
submissions or observations as the case may be."


Having read the papers in advance of the hearing I was
unable to find any information or explanation in the
affidavit evidence as to why and in what circumstances
the Applicant had failed to object to Westmeath County
Council in respect of the permission sought by and
ultimately granted to the Notice Party. Still less
could I find any reason for such failure. When I
queried this with Counsel for the Applicant he
accepted, with commendable candour, that there was in
fact no reason whatsoever advanced nor was one being


advanced for this failure.

The Court is therefore left with no explanation, still
less good and sufficient reason, for the failure to
object or to make observations to Westmeath County
Council. That is a remarkable state of affairs
particularly when one considers that when an earlier
application for a change of use for one of the units
from a bulky goods retail warehouse to catalogue retail
store was made, the Applicant submitted to Westmeath
County Council that such a proposed change of use would
be in material contravention of the Westmeath County
Council development plan. That submission was not
accepted by Westmeath County Council and permission was
granted.


What then is the basis for contending that the
Applicant has locus standi by reason of section
50(4)(c)(ii)? It is sworn to at paragraph 6 of Mr.
Phillips's affidavit of, I believe the 18th October
2006, though it is not entirely clear from the jurat as
to whether that is the precise date of swearing. In
any event at paragraph 6 of that affidavit he says:

"I say that whilst it is true that the
Applicant did not make an observation
to the planning authority within the
period of 5 weeks from the date of
receipt of the relevant Planning
Application the Applicant was
reasonably entitled to assume that the
Respondent Planning Authority would
either refuse planning permission in
relation to the said application on the
grounds that the proposed development
would be in material contravention of

the development plan, or if the Manager
was minded to grant permission for the
said development the material
contravention procedure would have been
invoked."

It is to be noted that this case of material
contravention of the development plan sought to be made
is the same argument as was made to Westmeath County
Council by the Applicant on the earlier application for
the change of use of one of the units.

I am quite satisfied that the Court could not consider
this material, sworn to at paragraph 6 of that
affidavit, as a good and sufficient reason for not
making objections and submissions on the part of the
Applicant to Westmeath County Council within the
meaning of Section 50(4)(c)(ii). To do so would dilute
the statutory language and the legislative intent to a
point where it would be meaningless and leave the
judicial review procedure open to abuse.

The thrust of the legislative intent over recent years
in respect of judicial review in planning matters is
clear. It was referred to by Macken J in Harrington v
An Bórd Pleanála, 26th July 2005, where she said:

"As has been stated in several cases
consideration of the legislative scheme
makes it clear that the Oireachtas
intended that Section 50 be stricter
than the equivalent section of the
earlier local Government Planning and
Development Act 1992 which itself
adopted a stricter set of criteria
applicable to challenges to the grant
of planning permissions than previously
existed. This is because there is in
place an extensive statutory scheme

under which members of the public may
object to the original grant before a
planning authority and may also appeal
to and be heard by an independent
appeal body, namely the Board. To that
appeal scheme the Statute also provides
for the nomination of certain
designated parties who have an
to ensuring wide ranging representation
in planning matters from diverse
interests Groups."

Later she observed:
"The foregoing extracts relevant to the
issues in these proceedings demonstrate
clearly that the Oireachtas has now
adopted an evermore stringent set of
obligations which must be met before
the High Court should permit an
Applicant to commence judicial review
proceedings to challenge the validity
of planning permissions."

Similar observations were made by Clarke J in Harding v
Cork County Council 12th October of this year, where he
said:
"It is clear, therefore, that the 2000
Act introduced a stricter set of
criteria than had been in place under
the 1992 Act and those authorities
which stem from the period when that
latter Act was in force need to be
viewed against that background."

To approach the case, as I am invited to by the
Applicant, would defeat that legislative policy as well
as run counter to the wording of the Act. The gist of
the Applicant's argument is that I should overlook the
failure to give any reason for not making objection to
Westmeath County Council but go on and assume that the
development was, in fact, in material contravention of
the development plan thereby triggering the statutory
procedure which would enable the Applicant to make
observations on that question.

I am unable to accept that approach. It upends the
statutory scheme and involves me doing what ought not
to be done.

There is much to be said for deciding locus standi
if such can be done conveniently and justly. I agree
with the views of Clarke J in Harding to that effect.
There at paragraph 2.1 he said:

"The first question which needs to be
addressed is as to whether objections
to standing and objections based on the
adequacy of an appeal to the Board as a
remedy are, indeed, matters which
should be determined before embarking
upon a consideration of whether an
applicant has established substantial
grounds. In Ballintubber Heights Ltd v.
Cork Corporation (Unreported, High
Court, Ó Caoimh J., 21st June, 2002)
Ó Caoimh J. noted that the Planning
Acts envisaged that standing issues
should be determined at the leave
stage."

Clarke J says:

"Subject to one caveat, I am satisfied
that it is appropriate to address
standing before going on to consider
the grounds of challenge."

I agree with that approach.

I do not disagree with him when later in the judgment
at paragraphs 2.3 and 2.4 he says the following:



"It seems to me, however, that while
the above should generally be the
approach of the Court in such
circumstances, it should not be adopted
as a rigid or inflexible rule and there
may be circumstances where, for a
variety of reasons, it may be
appropriate for the Court to adopt a
different approach. One example of such
circumstances arises, at least, in this
case."

At paragraph 2.4 he says:

"In order to determine the standing of
an Applicant to challenge a decision in
the planning process it is, amongst
other things, arguably necessary to
consider the basis of the proposed
challenge with a view to assessing
whether the applicant has standing to
raise the grounds sought to be relied
on."

The passage which he refers to at 2.3 is that which
occurs at paragraph 2.2, where he says:

"Subject to one caveat, I am satisfied
that it is appropriate to address
standing before going on to consider
the grounds of challenge. Subject to a
similar caveat, I am satisfied that an
issue as to the adequacy of appeal
should also be dealt with prior to
considering whether there are
substantial grounds for challenge. If a
planning authority or the Board or,
indeed, a Notice Party can satisfy the
Court that the person seeking judicial
review does not have a sufficient
interest to meet the test set out in
s.50, then it does not seem to me to be
appropriate for the Court to go any
further in a consideration of whether
there are substantial grounds for the
challenge. Furthermore in cases where
those parties persuade the Court that
an appeal to the Board would be an
adequate remedy then it is, again,
unnecessary to consider whether there are substantial grounds. In either case a decision as to whether there are, or
are not, substantial grounds would be
redundant. In such circumstances it
would be unnecessary for the Court to
embark on a consideration of the
strength of the grounds put forward for
suggesting that the decision under
challenge is invalid."

The observations which he makes at paragraph 2.3 and
2.4 appear to me to apply only in exceptional
circumstances. This case most certainly is not such an
exception. The general approach of the Court should be
that outlined in paragraph 2.2. of his judgment.

There is in this case no valid reason given for the
failure on the part of the Applicant to make submission
or observations or objections to Westmeath County
Council. It seems to me that this case has many
similarities with that which was decided by Hanna J in
Moriarty v South Dublin County Council, 24th November
2005. There he said at page 10 of the reserved
judgment:
"The applicant, having previously
objected successfully to an almost
identical application by the Notice
Party and engaged the planning
consultants in the process, would be,
if anything, on a higher state of alert
than an ordinary member of the public
but this cannot be held to give him a
greater right than such ordinary member
of the public. Accordingly, no good and
sufficient reasons have been
demonstrated."

Here there is a track record of the Applicant objecting
to a previous application, unsuccessfully, but no
explanation whatsoever is forthcoming as to why it was

not done in the present case.

Consequently, I am not satisfied that the statutory
grounds have been made out and it follows that there is
no locus standi to make this application. Before
concluding I should observe, insofar as there were
submissions made by reference to the case of Brady v
Donegal County Council, 1989 I.L.R.M., that this case
simply bears no resemblance to the issues which fell
for determination in that case. In my view, it is not
apposite for consideration here.

My conclusion is, therefore, that the Applicant not
having made submissions or observations or objections
to Westmeath County Council has not demonstrated to
this Court that there are good and sufficient reasons
for the Applicant not having made such and,
consequently, this Court is mandated to refuse leave.
That is dispositive of the entire application. There
is no locus standi to make it and, consequently, the
application for leave to apply for a judicial review is
refused and the application dismissed.