Cumann Thomas Daibhis (applicant) v South Dublin County Council (respondent) and Shamrock Rovers Football Club Ltd (notice party)
Judicial review - Application for leave - Planning - Decision to revert to an older resolution without invoking consultation procedures - Whether "substantial interest" and "substantial grounds" - Whether "interest" must be peculiar or personal - Planning and Development Act 2000 s.50
The High Court (Mr Justice O'Neill); judgment delivered 30 March 2007
In order to obtain leave to bring judicial review proceedings an applicant must establish that there are substantial grounds for contending that the impugned decision is invalid or ought to be quashed and that an applicant has a substantial interest in the matter which is the subject of the application. In determining whether or not an applicant has a substantial interest one must look at what precisely is the subject matter of the application. The concept of "substantial interest" is a broad one and one that is difficult to define. However, the change to "substantial interest" from the previous requirement of "sufficient interest", indicates and has been held, to necessitate an interest of significantly greater weight or personal connection of the applicant to the subject matter of the application. Any such "interest" must be "peculiar or personal".
The High Court so held in granting leave to apply for judicial review.
Robert Barron, SC, for the applicant; Dermot A. Flanagan, SC, with Carol O'Farrell, BL, for the respondents; Maurice Gerard Collins, SC, and Rory White, BL, for the notice party.
Mr Justice O'Neill opened his judgment by stating that the applicant is a GAA club located in the Tallaght area. The applicant sought leave pursuant to s.50 of the 2000 Act to take judicial review proceedings against the respondents. The relief sought by way of judicial review were the following:
1. A declaration that the vote taken by the members of the respondent at their meeting held on February 13th, 2006, purporting to agree to proceed with the development of the stadium at Whitestown Way, Tallaght, Co. Dublin is null and void and of no effect
2. An Order of prohibition by way of judicial review prohibiting the respondent from carrying out any works to the stadium at Whitestown Way, Tallaght in the County of Dublin save in accordance with the resolution passed by the respondent at its meeting held on December 12th, 2005.
3. An order of certiorari by way of judicial review quashing the purported decision made by the respondent at its meeting on February 13th, 2006.
By order of June 26th, 2006, Shamrock Rovers Ltd was joined as a notice party to the proceedings. Mr Justice O'Neill set out the background to the case. On February 10th, 1997, the respondents passed a resolution approving of the disposal of a site at Whitestown Way, by way of a lease to provide a stadium for the notice party. On January 14th, 1998, planning permission was granted to the notice party, to build a football stadium, and on March 24th, 2000, the respondent granted a lease of the site to Mulden International Ltd. Under the terms of that lease Mulden International Ltd were required to commence building works in accordance with the said planning permission within six months of March 24th, 2000. On October 20th, 2000, Mulden International Ltd assigned their interest under the lease in that portion of the leased land comprising eight acres upon which the stadium was to be built, to an associated company, Sloan Park Company Ltd, thereby transferring their obligation to build the stadium to Sloan Park Company Ltd. Work on the stadium commenced in October 2000 and progressed well for 12 months. Construction works ceased on the site in November 2001 and there had been no work done since. The building contractor was still in possession of the site. In July 2003, the notice party applied for, and was granted, an extension of the planning permission for a period of one year to October 31st, 2004, to enable them to complete the stadium. No work was carried out during that 12-month period. In October 2004 the notice party applied for a further extension for a period of one and a half years to complete the stadium. On December 14th, 2004, the respondents, as the planning authority, refused that application.
Mr Justice O'Neill said that in reaching this decision, the respondents having considered the terms and conditions of the lease under which Mulden International Ltd and Sloan Park Company Ltd held their respective interests in the stadium site decided that the objective of the respondents in making the site available to the notice party had not been met. The respondents took the view that the interest of the notice party and the public would best be served by a repossession of the lands, and the formulation of a separate agreement for the completion of the stadium. On January 4th, 2005, a managers order authorised the service of a notice of forfeiture of the lease. On April 11th, 2005, an examiner was appointed by the High Court to the notice party football club, then trading as Branvard Ltd, with a view to putting together a financial package to prevent the liquidation of the club. The respondent then engaged in discussions with the examiner with regard to the completion of the stadium, and its use by the notice party when completed.
Mr Justice O'Neill said that given that the planning permission for the construction of the stadium had expired, and that the development was to be completed as a local authority project, the respondents then initiated a public consultation process in accordance with section 179 of the Act of 2000, and Part 8 of the Planning Development Regulations 2001-2003. Following this, the respondents published a notice on the July 18th, 2005, in which it was proposed to complete the stadium based on the plans which had already received planning permission from An Bórd Pleanala. These plans were placed on public display in accordance with the notices published in the Irish Independent and the Echo newspaper. A further notice was published on the August 15th, 2005, when the time for receipt of submissions was extended to the September 26th, 2005, to allow for the summer holiday period. After the expiration of the period for submissions and observations, a written report pursuant to section 179(3) of the 2000 Act, was prepared by Thomas Doherty, deputy manager of the respondents. This report recommended that the proposed completion of the stadium should proceed and the report was submitted to the full members of the respondent on December 12th, 2005. On that date the respondents adopted a resolution to modify the proposed development by making modifications to the design of the stadium in order to provide for an increase in the playing area, and some alterations to the stand facilities to facilitate other sports and uses. In particular the pitch size was to be increased to 140 by 85 meters to enable GAA games to be played on the pitch. This resolution had previously been passed by the Tallaght Area Committee of the respondent.
Mr Justice O'Neill said that by letter dated December 21st, 2005, the respondents informed the Department of Arts, Sports and Tourism of their resolution to modify the proposed development, and requested clarification on funding for the development. On January 24th, 2006, the respondents received a letter from Mr Con Haugh, of the Department of Arts, Sports and Tourism, stating that the Minister could not agree to make funding available to the modified development. On receipt of this letter the respondents presented a further report to its members at a meeting on February 13th, 2006, recommending, that having regard to the Minister's response on funding, the development as originally proposed, minus the modifications, in the manager's report, should be proceeded with. Following discussions the respondent's members agreed by a vote of 22 to four to proceed with the development of the stadium as originally proposed. It was this decision to proceed with the development, without the modifications, that the applicant sought to challenge by way of judicial review; the applicant being a GAA club located in the Tallaght area. Accordingly the applicant, pursuant to section 50 of the 2000 Act, sought leave to take judicial review proceedings against the respondents. Mr Justice O'Neill said that the applicant was qualified to bring the application, they having made submissions or observations in the consultation process conducted under section 179 of the Act.
In ascertaining whether or not the applicant had a substantial interest Mr Justice O'Neill said that one must look at what precisely was the subject matter of the application. Having considered the factual background to this case, Mr Justice O'Neill went on to examine the legal requirements to be established in order to obtain leave. It was noted that to be successful under section 50(4)(b) of the Act 2000, the applicant had to establish that there were substantial grounds for contending that the decision challenged is invalid or ought to be quashed. Furthermore, the applicant must show that it has a substantial interest in the matter which is the subject matter of the application. First, Mr Justice O'Neill considered the latter of these requirements holding that:
"in ascertaining whether or not the applicant has a substantial interest one must look at what precisely is the subject matter of the application in this case".
It was noted that, in the instant case, the applicant was seeking to challenge the resolution of the February 13th, 2006, which had the effect of rescinding the resolution of December 12th, 2005. Thus whatever benefit had accrued under the resolution of December 12th, 2005, to the applicants, was withdrawn by the resolution of February 13th, 2006. In practical terms the resolution of December 12th, 2005, made possible the playing of GAA games in the proposed development, whereas the smaller pitch proposed in the original proposal makes it impossible to play GAA games, except at underage level. The applicant averred on affidavit that the proposed stadium was to be located in the geographical area serviced for the purposes of the GAA by the applicant. Further, the applicant as a club was established in 1887 making it one of the oldest clubs in Dublin and easily the oldest in Tallaght. It was added that as a result of the population growth in this area there were now six GAA clubs in the Tallaght region; all of which service different parishes and have their own separate primary catchment area. Mr Justice O'Neill said that the applicant club was and remains located in the central Tallaght area comprising of three different parishes, and as a result, it is the closest GAA club to the proposed stadium, and the one which would be most affected by the stadium being used exclusively for soccer. Also of note was the fact that, during the 1970s and 1980s the applicant had three GAA pitches on the area in which the proposed partially completed stadium currently stands. The applicant gave up these pitches at the request of the respondent, because, the respondent proposed that the area would be developed as a leisure park for the entire community and commitments were given for replacement pitches elsewhere. It was further averred, that within the code of the GAA, the applicant club was the appropriate club to protect the interests of the GAA in the immediate area of the proposed stadium. Similarly, it was averred that, the applicant had its own particular interest in having access to the stadium given that, the stadium would be the main sporting facility in the area, and if it was reserved exclusively for soccer then that would put the applicant at a significant disadvantage in attracting young people in the area to participate in the games and other activities of the GAA. In addition, the applicant was of the opinion that, access to the stadium would be of great importance for the staging of a variety of games, including important club matches, school competitions, and some inter county games. The applicant contended that any such access that they might enjoy in this facility would not interfere with the proposed use of the facility by the notice party.
Mr Justice O'Neill noted that both the respondent and the notice party disputed that the applicant had any substantial interest in the subject matter of the application. Their main objection related to the applicant's challenge of the resolution of February 13th, 2006, namely the resolution to revert to the original proposed stadium. It was argued by the respondents and notice party that the applicant's challenge was of a purely technical and procedural nature and further that, the applicant was not prejudiced by the resolution. In order to make this point the respondents and the notice party argued three grounds. First, that it was never intended that the applicants would have access to this stadium as at all times it was planned as a soccer only stadium. Secondly, the use the applicant suggested would be made of the stadium, would be made by other elements in the GAA organisation, namely the Dublin County Board, for the purpose of inter county matches, and other clubs for their games, and, therefore, the interest thus advanced by the applicant was an interest shared by a great many GAA clubs in the Tallaght area and generally in South County Dublin. Hence, the interest advanced by the applicant was not one which was personal or peculiar to them. Thirdly, the fact that the Minister for Arts, Sports and Tourism had refused funding for the development as modified by the resolution of 12 December 2005, meant that the development thus modified could not go ahead, and hence, even if the applicant were to be successful in having the resolution of 13 February 2006, quashed, there would be no benefit whatever to the applicant.
Having heard all of the submissions, Mr Justice O'Neill then considered the concept of "substantial interest" noting that flowing from section 50(4)(d), the concept was a broad and difficult one to define. Mr Justice O'Neill cited with approval the dictum of Miss Justice Macken in Harrington v An Bord Pleanála (High Court, March 16th, 2006, unreported) in which she stated that:
"While I accept the applicants argument and the Act make its clear such substantial interest may be wider than an interest in land, or other financial interests, and therefore, in theory, it can cover a wide variety of circumstance, I consider that the substantial interest which the applicant must have is one which he has already expressed as being peculiar or personal to him . . . ".
Turning to apply this to the instant case, Mr Justice O'Neill held that in his view "the requirement that an interest must be 'peculiar or personal' to an applicant does not mean that if some other party has the same or similar interest in the subject matter of the application that both are thereby excluded from having a "substantial" interest. If this were so it would have the bizarre consequence of excluding householders from an estate of houses for having a "substantial" interest in a development taking place adjoining their estate. Clearly this could not be so".
In addition it was held that what the phrase "peculiar or personal" imports is that, the proposed development the subject matter of the application is one which affects the applicant personally or individually in a substantial way, as distinct from any interest which the wider community, not so personally and individually affected, might have in the proposed development. Thus, as in the case of a housing estate many people might be affected substantially in this way and have a "substantial" interest. In the instant case the resolution of December 12th, 2005, had as its primary and sole objective an alteration of the proposed development so as to enlarge the pitch so that GAA games could be played on it. The resolution of February 13th, 2006, had the opposite affect. With this in mind, Mr Justice O'Neill held that "the subject matter of the impugned decision namely that of the February 13th, 2006, is such as to individually and indeed exclusively affect the GAA. As the constituent part of that organisation with the most immediate connection to the stadium, i.e. the club in whose area the stadium, is located, and as the GAA club who would be likely to derive the most immediate and frequent benefit from access to the stadium, in my view the applicant has clearly discharged the onus which is on them to demonstrate that they have a "substantial" interest in the subject matter of this application which is the quashing of the resolution of the February 13th, 2006".
Mr Justice O'Neill then continued to consider the second requirement to obtain leave, namely that, the applicant shows it has substantial grounds for contending that the resolution of February 13th, 2006, should be quashed. Mr Justice O'Neill went on to approve of the dicta in several cases which discussed the test for establishing "substantial grounds". In the instant case, Mr Justice O'Neill noted that, the applicants challenge to the validity of the resolution of February 13th, 2006, was on the basis that this impugned resolution was beyond the powers of the respondents as prescribed in section 179(4) of the 2000 Act. Accordingly, Mr Justice O'Neill set out the wording of that subsection as follows:
"(4)(a) The members of a local authority shall, as soon as maybe, consider the proposed development and the report of the manager under sub-s(3). (b) Following the consideration of the manager's report under paragraph (a), the proposed development maybe carried out as recommended in the manager's report, unless the local authority, by resolution, decides to vary or modify the development, otherwise then as recommended in the manager's report, or decides not to proceed with the development. (c) A resolution under paragraph (b) must be passed not later than six weeks after the receipt of the manager's report."
In this regard, the case being put forward by the applicant was such that, the respondents, having decided by resolution of December 12th, 2005, to modify the proposed development pursuant to section 179(4)(b) of the 2000 Act, did not have the authority to carry out the development otherwise than in accordance with that resolution, unless of course the respondents were to repeat the consultation process pursuant to section 179 of the Act. Specifically the case was made that section 179(4)(c) expressly provided that a resolution under paragraph (b) must be passed not later than six weeks after receipt of the manager's report. Manifestly, the resolution of February 13th, 2006, was outside this six-week period, and hence it was submitted by the applicant that, having regard to the mandatory terms of section 179(4)(c) this resolution was prohibited by the express terms of section 179(4)(c), and hence was ultra vires the powers of the respondents.
In response the respondents and the notice party argued that, the applicant had failed to argue that there was any substantial departure from the requirements of the procedures as set out in section 179 of the Act of 2000, or that there was a failure of compliance with underlying democratic principles. It was further argued that the term "resolution", as expressed in the singular in section 179(4) of the Planning and Development Act 2000, contemplated, pursuant to section 18 of the Interpretation Act 2005, the "plural", hence permitting the resolution of 13 February 2006. In addition, counsel for the respondents and notice party argued that in the absence of any complaint concerning the carrying out of the section 179 consultation procedure, that a repetition of it would be futile insofar as that the same proposal would be the subject matter of a fresh consultation procedure, and as the applicant and indeed all others had ample opportunity to make submissions, these having been received and considered in the manager's report, no legitimate interest would be served by a repetition of the process.
Having considered the various arguments, Mr Justice O'Neill concluded that the applicant had raised a substantial ground concerning the issue of whether or not the respondents had the power to pass a resolution outside the six-week period, after the receipt of the manager's report, as provided for in section 179(b) of the 2000 Act. Mr Justice O'Neill granted to the applicant, leave pursuant to section 50 of the 2000 Act, to bring judicial review proceedings.
Solicitors: McCartan & Burke (Dublin) for the applicant; Adrian O'Gorman (Dublin) for the respondents; Patrick G. Flynn (Dublin) for the notice party.
Michèle Rayfus, barrister