Joseph O'Connor (applicant) v Nenagh Urban District Council (respondent) and Dunnes Stores Limited (notice party).
Judicial review - Certiorari - Applicant - Test to determine applicant's locus standi - Whether application brought in circumvention of statutory limitation periods - Court's discretion to refuse relief by way of judicial review.
The High Court (before Mr Justice Geoghegan); judgment delivered 16 July 1996.
IN determining whether an applicant has the appropriate locus standi to make an application for Judicial review, a court should inquire whether the applicant has a legitimate interest in the application rather than whether the application has been brought by reason of an improper motive.
A Court should, for reasons of public policy, exercise its discretion to refuse an application for judicial review where the effect of acceding to the application would be to circumvent statutory limitation periods save in circumstances where there is evidence of fraud or mala fides.
Mr Justice Geoghegan so held in refusing an application for an order of certiorari in respect of a certificate issued by the respondent to the notice party certifying that the respondent had no objection to the manner in which a property had been developed.
Philip O'Sullivan SC, John Peart SC and Patrick Treacy BL for the applicant; Liam MacKechnie SC and Frank Quirke BL for the respondent; Hugh O'Neill SC and Eoin McCullough BL for the notice party.
MR JUSTICE GEOGHEGAN said that the applicant sought an order of certiorari against the respondent quashing a certificate issued by the respondent's Town Clerk which certified the correctness of certain information given to the notice party at the time of an intended purchase by the notice party of a supermarket premises. In the alternative, the applicant sought a declaration that certain statements contained in the information and certified to be true were not true.
Outlining the facts of the case, Mr Justice Geoghegan said that, in 1974, the notice party's predecessor in title to the premises had obtained planning permission from the respondent to erect a supermarket. He had not acted immediately on the permission and, in 1981, had sought permission for an altered development. This latter application was refused by the respondent and, on appeal, by An Bord Pleanala. The applicant claimed that the predecessor in title had gone on to erect the supermarket in reliance upon the permission granted in 1974 but that the resulting premises did not comply with that permission but resembled the planned development in respect of which permission was refused in 1981.
The applicant further claimed that, when the supermarket was sold to the notice party, the impugned certificate was issued by the respondent. The certificate was in a standard form issued by the respondent for the benefit of buyers and stated, inter alia, that the respondent was unaware of breach or non compliance with the permission, that it was unaware of any unauthorised structure on the property and that it had no objection to the property as developed. It was the applicant's submission that the respondent could not have regarded the development as complying with the 1974 permission and therefore, could not reasonably have made the statements that it did. Mr Justice Geoghegan said that the application was opposed both by the respondent and the notice party on a number of grounds including, inter alia, that the applicant did not have locus standi, that the application was out of time in that the impugned certificate was issued in September 1994, that the document was not sufficiently public in nature to be susceptible of certiorari or declaratory relief by way of judicial review and that, as a matter of discretion, the relief ought to be refused because the applicant, a competitor of the notice party, was motivated by a desire to put the notice party out of business and because the use by the applicant of judicial review was merely a method designed to circumvent the statutory limitation periods which had long since expired. Mr Justice Geoghegan expressed doubt as to the applicant's locus standi but, noting that the applicant was a member of the respondent council, believed that he had a legitimate interest to ensure that its functions were being properly carried out. The issue of locus standi depended not upon an applicant's motive but on whether or not, in an objective sense, he had a legitimate Merest in the matter. With respect to the certificate, Mr Justice Geoghegan said that it was of a sufficiently public nature to be the subject of judicial review. He noted that it had been issued under a system adopted by each of Tipperary's local authorities and, in its nature and appearance, was likely to be given the status of a planning permission in practice, as such, the certificate was more than a mere reply to an ordinary letter following an inquiry by a potential buyer of a premises. Notwithstanding these determinations, Mr Justice Geoghegan was satisfied that the applicant ought not to be granted the relief sought in this case. He noted that there were important public policy considerations behind the imposition by the Oireachtas of statutory limitation periods and said that, in the absence of evidence of fraud or mala fides, a court should not circumvent those time limits by providing reliefs which would take the form of querying planning permission by judicial review. Mr Justice Geoghegan said that there was no evidence in the instant case of mala fides on the part of the respondent in the issuing of the certificate in those circumstances, it would be improper for the court to enter into a consideration whether the views expressed in the certificate were justifiable. Furthermore, this was not a case where it would be appropriate to extend the time for the institution of judicial review proceedings, in view particularity, of the public policy embodied in the relevant statutes imposing strict time limits in relation to all aspects of planning enforcement.
Solicitors: James O'Brien & Co. (Nenagh) for the applicant; David Hodgins & co. (Nenagh) for the respondent Matheson Ormsby Prentice (Dublin) for the notice party.
