The Village Residents Association Limited (applicant) v An Bord Pleanala and McDonalds Restaurants of Ireland Limited (respondents) and Kilkenny Corporation (notice party).

Judicial Review - Certiorari - Whether An Bord Pleanala must give reasons for granting planning permission which materially contravenes relevant development plan - Locus standi - Security for costs - Local Government (Planning and Development) Act 1963, section 82(3A) and (3B) - Local Government (Planning and Development) Act 1976, section 14(8).

The High Court (Mr Justice Geoghegan); judgment delivered 5 November 1999.

Where An Bord Pleanala relies on its statutory authority to grant planning permission in contravention of a development plan, there are susbstantial grounds for arguing that its reasons for so doing should be included in its reasons for granting the permission and an applicant with locus standi is entitled to leave to seek judicial review of the Board's decision for failure to give adequate reasons.

Security for costs is not a matter for consideration in determining locus standi unless the court found as a matter of probability that there was an abuse of process in forming the company and naming it as the applicant.

The High Court so held in granting the applicant leave to bring judicial review proceedings seeking an order of certiorari quashing the decision of An Bord Pleanala.

David Hardiman SC and Patrick Treacy BL for the applicant; Nuala Butler BL for the first respondent; Michael Collins SC and Garret Simons BL for the second respondent.

Mr Justice Geoghegan said that this was an application for leave to bring judicial review proceedings seeking to quash a decision of An Bord Pleanala (the Board) to grant planning permission to McDonalds Restaurants of Ireland Limited (McDonalds) for the development of a standard McDonalds restaurant and take-away in Kilkenny, subject to certain conditions.

The grounds upon which the applicant challenged the decision were as follows: that the decision was irrational; 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; and certain procedural irregularities were fatal to the entire application.

Mr Justice Geoghegan said that the applicant was a company limited by guarantee which was formed after the Board made its decision and its members comprised local people who opposed the permission. None of the members of the company were official objectors before the Board although two members had lodged late objections that were not accepted. Mr Justice Geoghegan said that one of the main grounds on which Kilkenny Corporation (the Corporation) had originally refused the permission was that the inclusion of a take-away facility was contrary to the Kilkenny development plan but he noted that it was accepted that the Board was not bound by a planning authority's development plan.

Mr Justice Geoghegan said that, apart from alleging that the there were no substantial grounds for judicial review, McDonalds and the Board questioned the applicant's locus standi and suggested that it should be inferred that the application was made by the company for the sole purpose of avoiding the effect of an order for costs in the event of the application proving unsuccessful. Mr Justice Geoghegan noted that, while it was conceded that there would probably be good grounds for making an order for security for costs, it was suggested that such security traditionally only represents about one-third of the full costs.

Having acknowledged that the issue of locus standi was tied in with the substance of the case, Mr Justice Geoghegan decided to first consider whether or not there were substantial grounds for judicial review and, if so, to return to the issue of locus standi.

Mr Justice Geoghegan held that the applicant failed to make an arguable case that the Board's decision was irrational. He noted that the applicant was required to go further than this and satisfy the court that there were "substantial grounds" for the contention that the decision was invalid or ought to be quashed: see 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). As regards the appropriate interpretation of "substantial grounds", Mr Justice Geoghegan approved a passage from McNamara v An Bord Pleanala (No. 1) [1995] 2 ILRM 125 at 130 wherein Miss Justice Carroll, at page 130, said "in order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty". Miss Justice Carroll further said that the ground must not be trivial or tenuous and that, while the court ought not attempt to ascertain what the eventual result would be, a ground that does not stand any chance of being sustained could not be said to be substantial.

Mr Justice Geoghegan noted that the legal submissions made on behalf of McDonalds pointed out that there was ample material before the Board to justify its decision, particularly the submissions of the planning consultant and the planning authority, the traffic report and the inspector's report. He agreed with McDonalds' observation that the care exercised in considering these matters was evidenced by the Board having attached a condition to its decision requiring that a drive-through aspect of the development ought not proceed. Mr Justice Geoghegan was further satisfied with the contention that two substantive issues in the appeal, namely residential amenity and traffic, were addressed in the Board's decision and the reasons therefor. On this basis, Mr Justice Geoghegan declined to grant leave on grounds of irrationality.

As an independent matter, Mr Justice Geoghegan said that the point raised about the relevant property being within the boundary of a liquor license was not a substantial ground for a judicial review. He said that the grant of planning permission does not render lawful something which would otherwise be unlawful and that, if any development pursuant to the permission would contravene the Intoxicating Liquor Acts, McDonalds would have to ensure that the property was no longer licensed before proceeding with the development.

As regards the contention that the proposed development materially contravened the Kilkenny development plan, Mr Justice Geoghegan noted that, while the plan prohibited take-away facilities in the relevant area, the prohibition was ambiguous for failure to define "take-away". This could be construed as referring to premises operating exclusively on a take-away basis and such an interpretation would not include a restaurant like McDonalds where only 20 per cent of its business was take-away.

Mr Justice Geoghegan referred to the Board's contention that, in determining an appeal against a decision of a planning authority, Section 14(8) of the Local Government (Planning and Development) Act 1976, permitted it, inter alia, to grant permission even if the proposed development materially contravened the development plan of the relevant planning authority. He also noted the points made by McDonalds on this issue. Mr Justice Geoghegan was satisfied that there was a substantial argument to be made that all kinds of take-aways were prohibited by the development plan, particularly having regard to the planning history and the Corporation's interpretation of its own plan on more than one occasion, including the present case. He said that, if the applicant succeeded in this argument, it would have substantial grounds for further arguing that the Board's decision constituted a material contravention of the plan. Mr Justice Geoghegan said that, if the applicant succeeded in both arguments, there would be substantial grounds for arguing that, where a planning authority invokes 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. Mr Justice Geoghegan said that, in expressing this view, he was not adjudicating upon the counter-arguments made but that he believed the applicant's arguments had substance and leave ought to be granted if the applicant had locus standi.

As to this third ground upon which the applicant challenged the Board's decision, Mr Justice Geoghegan noted that the first alleged statutory impropriety was that the original planning notice referred to a change of user from a hotel whereas the premises had never been so used. While this mistake arose from the fact that permission for user as a hotel had been granted but never availed of, this was not a substantial ground for judicial review because no one who read the advertisement or inspected the site notice would or could have been misled as to the relevant property.

The second alleged statutory impropriety concerned the failure to state on the site notice that the planning application could be inspected in the planning authority's offices. Mr Justice Geoghegan noted that Regulation 16(4)(d) of the Local Government (Planning and Development) Regulations 1994 expressly required such a statement and he considered that such failure could, in some circumstances, be a substantial ground for judicial review. However, because Mr Justice Geoghegan opined that this would only arise at the suit of a person with a particular locus standi, he declined to deal with this point until he considered the issue of locus standi.

The third alleged statutory impropriety was that a revised application was prepared and lodged subsequent to the planning authority's decision and prior to the Board's decision. Mr Justice Geoghegan accepted the contention of McDonalds that no arguable case could be made that the Board was not dealing with the original application. He noted that, while the revised documentation was merely a clarification, it could not have the status of a planning application as there were no statutory procedures for same and he assumed that the Board could not have reviewed the revised documents in the manner suggested by the applicant.

Returning to the question of locus standi, Mr Justice Geoghegan held that the applicant did not have locus standi to seek judicial review on the grounds of the defective site notice because such an argument could only be raised by one who attempted to satisfy the court that he or she had been misled and did not realise that the application could have been inspected. This did not arise in the present case. Having regard to the principles enunciated by Mr Justice Keane in the Supreme Court decision in Lancefort Ltd v An Bord Pleanala [1998] 2 ILRM 401, however, Mr Justice Geoghegan was satisfied that the applicant had locus standi to seek judicial review on the grounds that adequate reasons were not given for the decision. Mr Justice Geoghegan considered that the fact that planning is a matter of great public interest required that a liberal view be taken in relation to locus standi. He also acknowledged that, having regard to the restricted statutory grounds on which judicial review can be sought and the 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 and he considered that this was in line with the Supreme Court's view in Lancefort.

Mr Justice Geoghegan accepted that there may well have been mixed motives in forming a company to challenge the Board's decision. However, he refused to infer that the sole purpose for its formation was to avoid potential liability for costs and that even though security for costs might be given it would probably only be on the basis of one-third of the full costs. Mr Justice Geoghegan noted that the company's members consisted of persons genuinely concerned about the permission and he considered that it was sensible to form a company for the purpose of attempting to mount the litigation, independent of any costs saving mechanism. Furthermore, Mr Justice Geoghegan declined to consider any argument based on the practice of the Master of the High Court in fixing security for costs. He noted that, it might well be that the Master would fix adequate security or, alternatively if the Master applied some rigid rule of practice to the contrary, McDonalds or the Board might be entitled to appeal that decision. Mr Justice Geoghegan said that he did not think that there was an invariable practice that security was confined to one-third of the costs but that, if this was a problem, it was one to be resolved at the application for security of costs. It was not an issue for consideration in determining the applicant's locus standi unless the court were to find, as a matter of probability, there was nothing but an abuse of process in forming the applicant company.

Mr Justice Geoghegan held that the concerns of the members of the applicant company would, as individuals, give them a sufficient interest to bring judicial review proceedings and he considered it appropriate to lift the corporate veil and regard the company, formed only for this purpose, as having the sufficient interest.

Mr Justice Geoghegan referred to the decision Lancefort, wherein Mr Justice Keane observed, at page 440, that it was clear from the Supreme Court decision in Chambers v An Bord Pleanala [1992] IR 134 [1992] ILRM 296 that the fact that a person affected by a proposed development did not participate in the appeals procedure was not, of itself, a reason for refusing locus standi and that a company, formed after the making of the decision being challenged, might be in a position to assert locus standi as occurred in Chambers. However, Mr Justice Keane did opine that it would be a significant injustice to require the defence of 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. Mr Justice Geoghagan distinguished the case before him on the basis that he was not granting leave on a ground that could have been raised during the hearing because, if the Board deviated from the development plan, the applicant and its members did not know why. While he accepted that it might legitimately be argued at the hearing that the reasons were implied in the express reasons given for the decision, Mr Justice Geoghegan did not consider that such an argument could defeat the granting of leave.

Mr Justice Geoghegan granted the applicant leave to bring judicial review proceedings seeking an order of certiorari quashing the determination of the Board on the grounds that it did not give adequate reasons for granting the permission in that the reasons given did not provide an explanation or adequate explanation as to why it made a decision which would constitute a material contravention of the development plan.

Solicitors: Michael Lanigan & Co (Kilkenny) for the applicant; T. T. L. Overend McCarron & Gibbons (Dublin) for the first respondent; McCann Fitzgerald (Dublin) for the second named respondent.