Lancefort Ltd. v. An Bord Pleanala [1997] IEHC 90; [1997] 2 ILRM 508 (6th June, 1997)

Judgment of Mr. Justice Morris delivered the 6th day of June, 1997 . 1. This matter comes before the Court as an application seeking liberty to apply for Judicial Review in respect of a decision of An Bord Pleanala bearing planning register reference number 0040/96 and PL29S.099165 dated the 11th December, 1996 granting permission for a mixed hotel and office development to Treasury Holdings Limited. 2. As the matter comes within the scope of Section 82 of the Local Government (Planning and Development) Act, 1963 (as amended by Section 19 (3) of the Act of 1992) the application is made on notice to An Bord Pleanala and the other parties to the appeal heard and determined in the case. 3. The basic facts of this case are contained and shortly and accurately set out in the Applicant's statement. They are as follows:- (1) An Bord Pleanala granted Treasury Holdings Limited (the developer) permission to develop a site bounded by Fleet Street, Westmoreland Street and College Street in the City of Dublin for the construction of a hotel, office accommodation and retail bank on the 11th December, 1996. The developer appealed to the Board as it was unsatisfied with the permission granted to it by the planning authority. The permission followed a vote of the City Council on the 13th May, 1996 in accordance with Section 26 (3) of the Local Government (Planning and Development) Act, 1963 which provided for the procedures to be followed granting a permission which materially contravenes the development plan. (2) The developer appealed to the Board against some of the conditions which the planning authority had attached to its decision. In particular the developer was concerned with Condition 16(a) which required it to omit the proposed 6th floor of the proposed development and 16(b) which required the omission of a portion of the 5th floor of the proposed development. (3) An Taisce appealed the decision of the planning authority. Briefly stated, An Taisce's objection to the proposed development was that it involved demolition and interference with listed buildings and that it was too high and of poor quality. (4) An oral hearing was conducted by the Board between the 25th and 27th September, 1996. The Inspector's report was produced and submitted to the Board. (5) The decision of the Board is dated the 11th December, 1996 and it granted permission to the developer subject to conditions. 4. The hearing of this application which lasted for six days, took the following form. Counsel for the Applicant made submissions to show that the Applicant company had the required locus standi to challenge by way of Judicial Review the decision of the Board and to argue that the decision was invalid and should be quashed. He then sought to establish that the Applicant had a "substantial case" within the meaning of Section 82 of the 1963 Act. 5. These submissions were replied to by the Respondents and the Notice Party. 6. For the convenience of the parties and the Court, it was decided to deal separately with the issues arising on the application to seek a Declaration that the provisions of Section 14 (a) of the Local Government (Planning and Development) Act, 1976 were repugnant to the Constitution and were void. 7. I propose to deal with the case in the same way. I propose to deal with the constitutional aspect of the case later in this judgment. 8. With regard to the first of these issues, that is to say, the issue of the Applicant's locus standi, a preliminary submission has been made to me on behalf of the Applicant that this is an issue that should not be determined by the Court until the subsequent hearing of this matter. Authorities have been opened to me to support the proposition that this is, what has been described as, a two-part procedure and that the Applicant's locus standi falls to be determined only at the second stage. 9. In the particular circumstances of this case it appears to me to be inappropriate to follow that course. In the first instance I am satisfied that the parties have had a full opportunity to argue the issue of locus standi. Secondly, in the particular circumstances of the procedures to be followed as provided for by Section 82 of the 1963 Act, all parties have been present in Court from the outset. I see no advantage in postponing dealing with this issue until the second stage of the hearing. Thirdly, the Supreme Court has pointed out in K. S. K. Enterprises Limited -v- An Bord Pleanala , 1994 2 I. L. R. M. 1, it is essential that the developer know with the minimal possible delay where he stands with regard to his proposed development. To postpone a decision on this issue until the second part of the two-part procedure would involve significant delays which are manifestly undesirable. 10. Accordingly, I propose to deal with this issue at this stage. 11. I am satisfied that in this case Mr. Michael Smith and the group of people associated with him are genuinely and honestly concerned and have devoted significant efforts in the past for the protection of listed and historical buildings and have a legitimate concern for the historical building heritage of Dublin and throughout the country. I accept that, as is said in Mr. Smith's Affidavit, this group has worked tirelessly and frequently without pay towards this end. Mr. Smith, a prominent member of an Taisce in which company he has held a number of prestigious offices, was the person to whom An Taisce delegated the function of opposing this development. He, inter alia, filed objections, canvassed the support of public representatives, attended at the oral hearing and voiced an Taisce's opposition to the development. He was the person with whom An Bord Pleanala communicated. I do not accept that Mr. Smith or any of his associates fall within the category of persons contemplated by Henchy J. in Cahill -v- Sutton , 1980 I. R. 269 which he described as "the crank, the obstructionist, the meddlesome, the perverse (and) the officious man of straw". 12. I accept that after the decision of An Bord Pleanala consideration was given by An Taisce to the possibility of seeking to challenge the decision by way of Judicial Review but that a decision was made by An Taisce to devote their funds otherwise. I also accept that Mr. Smith and his associates, as he says in his Affidavit, "reached a consensus that the achievement of shared objectives and aims would best be secured by the co-ordination of joint action through the contemplated company limited by guarantee to which such individuals would subscribe and through which they would actively work thereby pooling their efforts to the optimum effect. I further say that I and my fellow subscribers perceived the Applicant as fulfilling, predominantly an active public interest role similar to that of bodies such as Cork Environmental Alliance Limited which co-ordinates public efforts for environmental protection in the Cork area and the Sierra Club in the United States of America". 13. It was in those circumstances that the Applicant company, a company limited by guarantee, came into existence and was incorporated on the 18th December, 1996. 14. The locus standi of the Applicant has been challenged on a number of grounds. It is submitted that a limited company incorporated only on a date subsequent to the decision of An Bord Pleanala and only for affording the true Applicants a shield against an award of costs should not, in the exercise of the Courts discretion, be given leave to seek Judicial Review since, prima facie, (although this fact is formerly denied in Replying Affidavits), it would appear that the company is without assets or property and has not and cannot suffer any loss as a consequence of the decision of the Board. In support of this proposition I have been referred to the decision of Mr. Justice Lynch in the Supreme Court (unreported 14th May, 1997) in Malahide Community Council Limited -v- Finglas County Council and Gannon Homes Limited and Nassana Limited and Comeragh Properties Limited in which Mr. Justice Lynch, while making it clear that his pronouncements are obiter, says as follows:- "I find it difficult to see how a limited company incorporated under the Companies Act, 1963 /1995 can be affected by planning objections, decisions or applications. As an artificial body or person lacking the five senses of human persons, it can never experience the pleasure of open spaces, beautiful gardens and woods or physical satisfaction of sports facilities: it can never be nauseated by foul smells or deafened by noisy industry or loud and raucous music nor have a cherished view of open spaces obstructed by new buildings. Good bad or indifferent planning decisions cannot affect this artificial corporate body in any way except by increasing or diminishing asset value if it owns lands or buildings favourably or unfavourably affected by such decision. In the absence of economic interest it seems to me that a limited company is not an appropriate body to litigate matters arising from Local Government (Planning and Development) Act, 1963 /1993. I doubt therefore that the Applicant has any locus standi to maintain these proceedings." 15. The Chief Justice observed in his judgment that he wished to reserve his position until this matter was argued fully before him. 16. On behalf of the Applicant it has been submitted to me that by forming a limited liability company and bringing the application in its name, Mr. Smith and his associates have done no more and no less than the Notice Parties have in this case. They incorporated Treasury Holdings for the purpose of an association with the Hilton Hotel Group with the ultimate objective of, through this company, constructing a hotel for financial advantage to the shareholders. It is submitted that the Applicant should be in no less favourable position than the Third Party in this application. 17. I accept as the law the statements of the Supreme Court in S. P. U. C. -v- Coogan , 1989 I. R. 734 and Cahill -v- Sutton , 1980 I. R. 269 and from this it is clear, I believe, that circumstances may exist and can arise where the Court would permit the right to be invoked on behalf of other parties. A clear case of this was in S. P. U. C. -v- Coogan where it was held that a limited company might move the Court on behalf of the unborn. However, I do not see this as imposing limits on this right. Chief Justice O'Higgins, in the course of his judgment in Cahill -v- Shannon warned against the danger of making "the Courts the happy hunting ground of the busy-body and the crank" but Henchy J. in the course of his judgment dealt with circumstances in which the want of locus standi on the part of the person questioning the constitutionality of the statute may be overlooked "if in the circumstances of the case there is a transcendent need to assert against the statute the constitutional provision that has been invoked". (See p. 285). Having given a number of examples Henchy J. proceeds: "However, those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if, in the particular circumstances of the case, the Court finds that there are weighty contravening considerations justifying the departure from the rule". 18. In the present case a decision has been taken by a number of conscientious concerned persons to seek the protection of the Court through a limited company. It is required that these proceedings be commenced within a period of two months from the date of the delivery of the decision. To rule that the company had no locus standi would have the effect of depriving these persons of access to the Courts. I am of the view that they have demonstrated their bona fide interest in these proceedings by the work and effort which they have given in the past to this project and I am satisfied of their commitment. I think that it would be improper to rely upon the rule of locus standi to deprive them of the opportunity of access to the Court and I believe that there are, in the words of Mr. Justice Henchy, weighty countervailing considerations justifying the departure from the rule. 19. Accordingly, I believe that the Applicant company does possess the locus standi necessary to move this application. 20. With regard to the submission that the Applicant company is without assets - I am aware that an application for security for costs has been made and awaits hearing. This aspect of the matter will, no doubt, be of importance at the hearing of that application. 21. With regard to the second part of the case, that is to say, the consideration of whether the Applicant has established a "substantial case" within the meaning of the Act , I adopt the approach of Miss Justice Carroll in McNamara -v- An Bord Pleanala , 1995 2 I. L. R. M. when she said:- "What I have to consider is whether any of the grounds advanced by the Applicant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result will be. I believe I should go no further than satisfy myself that the grounds are substantial." 22. It has been submitted to me that no matter how important an issue may be involved, a ground cannot be "substantial" if it cannot succeed. For example, if the matter is already res judicata. I accept this submission and if therefore I am satisfied that a ground which has no prospect of succeeding is being relied upon, then leave to seek Judicial Review should not be given. 23. On the basis of the foregoing therefore I embark on the consideration of the grounds advanced by the Applicant to ascertain if any one or more of them is "substantial". 24. The Applicant advances four grounds in addition to the challenge on the constitutionality of the section. GROUND A [that contained in paragraphs 6(i), (ii), (iii)]. 25. The Applicant alleges that there was an obligation upon An Bord Pleanala to have before it and consider the contents of an Environmental Impact Assessment (E. I. A.) in determining this appeal. 26. The Applicant puts the submission on this point in the following way. 27. Council Directive 85/337/EEC provides at Article 4 that "subject to Article 2(3) projects of the class listed in Annex 1 shall be subject to an assessment in accordance with Articles 5 to 10". 28. The Article goes on to provide that:- "Projects of the classes listed in Annex 2 shall be made subject to an assessment in accordance with Articles 5 to 10 where member states consider their characteristic so required. To this end Member States may, inter alia, specify certain types of projects as being subject to an assessment or may establish the criteria and or thresholds necessary to determine which of the projects of the classes listed in Annex 2 are to be the subject of an assessment in accordance with Articles 5 to 10." 29. The effect of the Council Directive is that it treats the projects listed in Annex 1 as "certain to have a significant effect on the environment and accordingly always requires an E. I. S./E. I. A.". In contrast projects in Annex 2 may not necessarily require an E. I. S./E. I. A. and the question of whether or not they will or will not so require is left to be determined at national level. 30. Article 56 of the Local Government (Planning and Development) Regulations, 1994 (S. I. 86 of 1994) provides that the Board shall require an E. I. S./E. I. A. in the case of Annex 2 projects even if the project falls below thresholds provided in Article 24 of the Local Government (Planning and Development) Regulations, 1989 where it considers that it is likely to have significant effect on the environment. The Applicant submits, however, that this provision does not cure its improper transportation because the Board is only required to seek an E. I. S. in these circumstances where the planning authority did not itself require the project to be assessed. Thus, where an Applicant for planning permission in respect of an Annex II project, falling below the threshold in the 1989 Regulations, is required by the planning authority to submit an E. I. S./E. I. A. and where such permission is refused, the Applicant may appeal to An Bord Pleanala who will not be obliged to require an E. I. S./E. I. A. in respect of the appeal even if it is likely to have significant effects on the environment. 31. Counsel has referred to Commission -v- Germany , 1996 1 C. M. L. R. 879, Commission -v- Belgium , Case C 133/94, Kraaiveleld , Case C 72/95 (judgment 24th October, 1996) as authority in support of his proposition and as examples of where in other jurisdictions a failure of transposing the Directive has occurred. 32. In my view even if it be the case that Ireland has not adopted all measures which ensure that all projects likely to have significant effects on the environment are subject to an E. I. S./E. I. A., this fact does not and could not entitle the Applicant to seek the relief which would result in condemning a decision of An Bord Pleanala legitimately reached in accordance with existing legislation. I am satisfied that the remedies available to the Applicant by way of Judicial Review are limited to the decision making process and nothing that has been advanced on behalf of the Applicant demonstrates that there has been a failure on the part of the Board in this regard. On the contrary Regulation 56 of the Local Government (Planning and Development) Regulations, 1994 (S. I. 86 of 1994) provides for circumstances where "in the opinion of the Board" an E. I. A. should be sought and imposed on the Board an obligation in these circumstances to require the Applicant to submit one to the Board. This is an obligation which only arises when the Board reaches the opinion that an E. I. S. is appropriate. In the present case the Board was not of this opinion and so the obligation did not arise. 33. The distinction to be drawn in this case is that the Applicant has argued with considerable conviction that the State has not gone far enough in the manner in which it has implemented Council Directive 85/337/EEC. Even if he is correct in this, it does not form the basis of an application for Judicial Review as nothing has been shown, in the decision of the Board, which contravenes existing legislation. GROUND B [that contained in paragraph 7(i), (ii) (vi)]. 34. The submission of the Applicant on this ground can be summarised as follows:- Section of the Local Government (Planning and Development) Act, 1976 provides that the Board has a duty "as far as may in the opinion of the Board be necessary for the performance of his functions, to keep itself informed of the policies and objectives for the time being of the Minister, planning authorities and any other body which is a public authority whose functions have or may have a bearing on the proper planning and development (including the preservation and development of amenities) of cities, towns and other areas whether urban or rural". 35. It is submitted on behalf of the Applicant that in the course of the oral hearing references were made to "the programme for a Government of renewal to improve the protection of listed buildings" and extracts from a Government publication entitled "Strengthening the Protection of Listed Buildings" were read. The Applicant complains that the Inspector did not record the Government's policy as stated in the programme for Government and he did not record certain submissions made by An Taisce. On the strength of these matters and on the strength of exchanges between the Appellant and the Inspector, it is submitted that the Inspector misdirected himself in the assessment of the State of Government Policy on Listed Buildings and so misdirected the Board and consequently the Board's consideration of Government policy on the project of listed buildings in the context of this appeal was inadequate. 36. Allowing that the Applicant's factual statements are correct, these facts could not, in my view, go any distance towards establishing that there was a failure on the part of the Board "to keep itself informed of the policies and objectives for the time being of the Minister, Planning Authority and any other body which is a public authority whose function......may have a bearing on proper planning and development". In my view, nothing in either the Applicant's submissions or the Inspector's Report goes any distance towards establishing a failure on the part of the Board to perform the statutory duties imposed on it by Section 5 of the 1976 Act. Accordingly, I reject this ground. GROUND C (that contained in paragraph 10(i) and (ii)). 37. The Applicant's submission on this ground can be summarised as follows. It is submitted that under Section 23 of the Local Government (Planning and Development) Act, 1976 requires the Inspector, where he has inspected the site, to include an account of his inspection in his report to the Board. It is submitted on behalf of the Applicant that the Inspector did not allude to his site inspection at any time during the course of the hearings nor did he make any report of the site inspection to the Board as required. It is submitted that the Board did not have this statutorily required account at the time it decided the appeal and it is therefore submitted that the decision is void. 38. Section 23 of the 1976 Act provides:- "23. Where in connection with either the performance by the Minister of any of the functions assigned to him under the Local Government (Planning and Development) Acts, 1963 and 1976 or the performance by the Board of its functions an inspection is carried out or an oral hearing is conducted on behalf of the Minister or the Board as the case may be by a person appointed for the purpose by the Minister or the Board, the person so appointed shall make to the Minister or the Board as may be appropriate a written report on the inspection or hearing as the case may be and shall include in his report a recommendation relating to the matter with which the inspection or hearing was concerned, and the Minister or the Board as may be appropriate shall before determining the matter in relation to which the inspection was carried out or the hearing was conducted consider the report including any recommendation contained therein." 39. I am of the view that this section may be interpreted in more than one way. The core provisions of the section read:- "Where..... an inspection is carried out..... on behalf of the Board.... by a person appointed for the purpose..... the person so appointed shall make to the Board..... a written report on the inspection..... who shall consider it." 40. Another interpretation would be that the section imposes on the inspector an obligation, when he holds an oral hearing, to report on this oral hearing and that the obligation to report to the Board on an inspection does not then arise but only arises when the application is determined without an oral hearing. 41. In my view the second of these interpretations is not sufficiently clear to justify a finding that the Applicant has not raised a substantial case and accordingly I will allow the relief claimed under this heading. 42. Where the former interpretation would accord with the Court's decisions in Murphy -v- Corporation of Dublin , 1972 I. R. 215 and Geraghty -v- Minister for Local Government, 1976 I. R. 153 is not clear. GROUND D (that contained in paragraph 12(i) and (iv)). 43. The Applicant's submissions on this ground can be summarised as follows. It is submitted that under Section 82(3) of the Local Government (Planning and Development) Act, 1963 the Board is required to have regard to the provisions of the development plan. It has been submitted that the Board did have regard to the provisions of the development plan for a designated area but it failed to have regard to other relevant provisions of the development plan. 44. This submission is based on the assumption that because in the first schedule the Board states that it had regard to "the location of the site in an area where it is the policy of the planning authority, as expressed in the current Dublin City Development Plan, to consolidate and re-enforce the established central business area", that it did not have regard to other aspects of the development plan. There is no evidence whatever to support this presumption. There is no obligation upon the board to include every minute detail in the recitals and the fact that it is not contained or recited in the first schedule does not constitute evidence that full consideration was not given to other aspects of the development plan. I reject this submission. GROUND E (that contained in paragraph 15(e)(ii)). 45. I now come to consider the final ground, that is to say, the Applicant's submission that Section 14(a) of the Local Government Act, 1976 is repugnant to the Constitution and void. 46. The grounds upon which this relief is sought are that it is provided by Section 14(a) of the 1976 Act that "the Board may..... decide to grant permission or approval even if the proposed development contravenes materially the development plan in relation to the area of the planning authority to whose decision the appeal relates". 47. It is submitted therefore that as a result of the section the Board can override and disregard the development plan which has been formulated and has come into existence as a result of an elaborate democratic process whereby the objections and views of the members of the public have been taken into consideration in the formation of the plan. It is submitted that the Board, who have not been democratically elected, may override the wishes of the public by granting a permission which contravenes materially this development plan and put the democratic process to nought. It is submitted that such a provision is contrary to Article 40.3 of the Constitution. 48. The law in relation to the rights of a limited company to seek to condemn legislation on the grounds that it is contrary to Article 43 of the Constitution is, in my view, far from settled. 49. When she was considering this matter in Private Motorist Provident Society Limited -v- Attorney General , 1983 I. R. 339, Miss Justice Carroll considered this issue in relation to Article 40.3 and Article 43 of the Constitution. In her judgment at page 349 she summarises the matter as follows:- "The first issue to be determined is whether the Society, as such, can claim that its constitutional rights under Article 40.3 and under Article 43 of the Constitution had been infringed. The property rights which are guaranteed by Article 40.3 are those stated in Article 43; see page 176 of the report of Attorney General -v- Southern Industrial Trust Limited . In Article 43.1.1º the State acknowledges that man by virtue of his rational being, has the natural right antecedent to positive law to the private ownership of external goods. The remainder of Article 43 flows from that statement. In Article 43.1.2º the words 'accordingly' shows a reference back to S.1.1º of that Article. Article 43.2.1º specifically refers to the rights mentioned in the foregoing provisions of the Article and S.2.2º of the Article which refers to 'the said rights'. In my opinion the provisions of Article 43.1.1º cannot be construed as acknowledging or conferring a constitutional right on a corporate body - itself a creature of positive law. The right protected by Article 43 is the right of a human person. Therefore, insofar as a claim is made by the Society that its constitutional rights under Article 40.3 or Article 43 had been infringed by the Act, the claim is unsustainable as the Society does not have such rights. This view is in accord with the views expressed, in respect of Article 40.1 by the Supreme Court at p. 14 of the report in Quinns Supermarket -v- Attorney General , 1972 I. R. 1." In Chestvale Properties Limited -v- Glakin , 1993 3 I. R. 35, Murphy J. considered a claim by a limited company that certain provisions of the Companies Act, 1990 were an unjust attack on the company's property rights and were invalid by reason of the provisions of Article 40.3 of the Constitution. In the course of his judgment he says:- "As the rights guaranteed by Article 40.3 are the personal and property rights of citizens, the respondent and the Attorney General contended that an argument based on this subsection was not available to the corporate applicants........ whilst I accept that the Court should be astute to protect the rights of citizens even when they are attacked only indirectly through particular corporate structures, it does seem to me that in the particular circumstances of this case the absence of an individual Irish citizen asserting his own constitutional rights is fatal to the argument based on the constitutionality of the 1990 legislation." 50. The foregoing judgments would appear to have clarified the law, however, in his judgment in Iarnrod Eireann -v- Ireland , 1995 2 I. L. R. M., Keane J., having reviewed the judgment of O'Higgins C. J. in Blake -v- Attorney General , 1982 IR 117 concludes at p. 183:- "It is, accordingly, clear that the rationale on which Carroll J. based her rejection of the locus standi of the corporate plaintiff in the P. M. P. A. case can no longer be supported." And goes on:- "Article 43 undoubtedly treats the general right of private property, the abolition of which in its entirety is expressly prohibited, as one invested in 'man in virtue of his rational being' and in that sense as being 'antecedent to positive law' include in the Constitution itself. But it does not necessarily follow that the property rights of the individual citizen which are protected against 'unjust attack' by Article 40.3 are confined to rights enjoyed by human persons. Had the framers of the Constitution wished to confine the comprehensive guarantee in Article 40.3 in that manner there was nothing to prevent them from including a similar qualification to that contained in Article 40.1" And at page 184:- "I am satisfied that the expression 'every citizen' is not confined in Article 40.3.2 to citizens in their individual capacity as human persons and that artificial legal entities must also be protected by the law of the State against unjust attack on their property rights. In the case of injustice done, it is peculiarly the role of the Courts to vindicate the property rights of such entities in accordance with Article 40.3.2." 51. There is of course a distinction between the cases referred to above and the present case, namely, that the Applicant has invoked only Article 43 and not Article 40. In his judgment in Blake -v- Attorney General , 1982 IR 117 , O'Higgins C. J. at page 42 said:- "Article 43 does not state what the rights of property are. It recognises private property as an institution and forbids its abolition. The rights in respect of particular items of property are protected by Article 40.3.2º by which the State undertakes by its laws to protect from unjust attack and in the case of injustice done to vindicate the property rights of every citizen." 52. Accordingly, it does not appear to me that the fact that the Applicant relies only on Article 43 is material in determining his entitlement to the relief if such an entitlement arises. 53. In view of the foregoing I am of the view that the Applicant company has made out a substantial case both to establish his locus standi and to challenge the constitutionality of the section and I accordingly give leave to the Applicant to seek a Declaration by way of an application for Judicial Review, that Section 14 (a) of the Local Government (Planning and Development) Act, 1976 is repugnant to the Constitution and void. © 1997 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII