Vera O'Connor (applicant) v The Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin (respondents) and Borg Developments (notice party).
Judicial Review - Planning - Application for certiorari and declaration - Whether orders are a decision for purposes of statute - Orders made by Dublin Corporation were in excess of jurisdiction - Leave to apply for judicial review ex parte and outside statutory limitation period - Rules of the Superior Courts, Order 84 - Local Government (Planning and Development) Act 1963, section 82 - Local Government (Planning and Development) Act 1976, sections 14(4) and 14(9) - Local Government (Planning and Development) Act 1992, section 19(3) - Local Government (Planning and Development) Regulations 1994.
The High Court (Mr Justice Kelly); judgment delivered 26 May 2000.
Where a condition attached to planning permission requires a developer to submit certain details to the planning authority for agreement, an order made by the planning authority signifying its agreement with the details submitted is not a "decision" given on an application for a permission or approval under Part IV of the Local Government (Planning and Development) Act 1963. An application for leave to apply for judicial review in respect of an order so made is governed by Order 84 of the Rules of the Superior Courts 1986, and not Section 82 of the 1963 Act.
Mr Justice Kelly so held in refusing the application brought by the respondents and notice party to set aside an order made ex parte by Mr Justice Lavan giving the applicant leave to commence judicial review proceedings.
Frank Callanan SC and Colm MacEochaidh BL for the applicant; John Rogers SC and Carol O'Farrell BL for the respondents; Hugh O'Neill SC, Rory Brady SC and Michael O'Donnell BL for the notice party.
Mr Justice Kelly said that the respondents (Dublin Corporation) and the notice party (Borg) were applying to set aside an order made ex parte by Mr Justice Lavan on 7 April 2000, giving the applicant leave to commence judicial review proceedings. The respondent and the notice party claimed that Mr Justice Lavan acted in breach of section 83 of the Local Government (Planning and Development) Act 1963 (the 1963 Act) as amended by section 19(3) of the Local Government (Planning and Development) Act 1992 (the 1992 Act) in granting the applicant leave to apply for judicial review.
Mr Justice Kelly said that on 20 March 1991, An Bord Pleanala (the Board) granted planning permission for a major development at George's Quay in Dublin. The applicant was a resident of Townsend Street, one of the streets surrounding the development. Mr Justice Kelly noted that the planning permission was granted subject to thirteen conditions, some of which required the developers to submit plans and particulars for "agreement" to the planning authority either prior to commencing the development or, in some cases, prior to incorporation into the proposed development. Mr Justice Kelly further noted that some of these conditions further provided that, in default of agreement, the matter might be submitted to the Board for determination whereas other conditions made no express provision regarding what was to happen in the absence of agreement.
Mr Justice Kelly further noted that condition number 2 required the developer to submit a proposal and detailed layout of Block A of the development and that "approval" of same be obtained prior to commencing its construction. Mr Justice Kelly said that the "approval" contemplated by this condition was sought and granted on 20 November 1991, and details of same were entered on the planning register.
Mr Justice Kelly considered the two orders that the applicant sought to impugn. Mr Justice Kelly said that, on 7 January 2000, a principal officer in Dublin Corporation (to whom the appropriate powers had been delegated) made an order directing that the developers be informed that the details submitted by them, in respect of the conditions requiring agreement, were acceptable to the corporation. Mr Justice Kelly quoted from the order which narrated, inter alia, the fact that the details required by the conditions were submitted on 2 December 1999; that the Dublin City Planning Officer, Mr McDonnell BL, stated that the details were satisfactory and compliant with conditions 1, 3-7, and 9-13 of the permission and recommended that the applicant be so informed. The order further contained the principal officer's endorsement of the recommendation and his signature.
Mr Justice Kelly noted that the second order was made on 11 February 2000, and was signed by a Dublin Corporation official to whom the appropriate powers had been delegated. Mr Justice Kelly noted that this order again recited, inter alia, that the details required by the conditions were submitted on 22 December 1999, in respect of Block A of the development; that the Dublin City Planning Officer, Mr McDonnell BL, stated that the details were satisfactory and compliant with conditions 1 to 13 and recommended that the applicant be so informed. This order also contained the assistant principal officer's endorsement of the recommendation. Following upon this, the order was made by the appropriate official.
Mr Justice Kelly said Mr Justice Lavan gave leave to seek judicial review in respect of these two orders and that the relief sought by the applicant included certiorari and declarations that Dublin Corporation acted in excess of jurisdiction in making same.
Mr Justice Kelly said that the application for leave was made ex parte to Mr Justice Lavan on 3 April 2000, and was adjourned to 4 April 2000. Judgment was delivered on 7 April 2000 and on 11 April 2000 the applicant served a notice of motion on Dublin Corporation seeking the reliefs in respect of which leave was given.
Mr Justice Kelly noted that Dublin Corporation and Borg submitted that the two orders made by Dublin Corporation were "decisions" within the meaning of section 82 of the 1963 Act as amended by section 19(3) of the 1992 Act. Mr Justice Kelly said that, if this were so, the validity of the orders could not be questioned otherwise than by way of an application for judicial review in accordance with those statutory provisions. Mr Justice Kelly noted that it was further contended that the applicant did not comply with the provisions in that she failed to seek leave to apply for judicial review within two months of the making of the orders and failed to make her application on notice.
Mr Justice Kelly referred to section 19(3) of the 1992 Act which substitutes section 82(3A) of the 1963 Act (as inserted by the 1976 Act) with a new section 82(3A) and section 82(3B). The new section 82(3A) provides that a person shall not question the validity of a decision of a planning authority on an application for a permission or approval under Part IV of the Act, or a decision of the board on any appeal or on any reference, otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts 1986. The new section 82(3B) provides, inter alia, that an application for leave to apply for judicial review under Order 84, in respect of a decision referred to in subsection (3A), must be made within two months of the date of the relevant decision. It further provides that where the application relates to the validity of a decision of a planning authority on an application for a permission or approval under Part IV of the 1963 Act, it must be made on notice to the planning authority and, where the applicant for leave to apply for judicial review is not the applicant for the relevant permission or approval, the applicant for the permission or approval must also be on notice.
Mr Justice Kelly noted that in KSK Enterprises Limited v An Bord Pleanala [1994] 2 IR 128, at page 135, the then Chief Justice, Mr Justice Finlay, said in respect of the section: "From these provisions it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision."
Continued in (Part 2) below
