FINGAL COUNTY COUNCIL, GLENKERRIN HOMES, AODHAN Ó RIORDÁN, DEERPARK & CLAREMONT RESIDENTS GROUP, DARA HURLEY, AVERIL POWER AND ANN ACHESON
2016 No. 10655P
GLENKERRIN HOMES (IN RECEIVERSHIP) AND MICHAEL MCATEER AND PAUL MCCANN
JUDGMENT of Mr Justice Max Barrett delivered on 1st June, 2017.
1. Glenkerrin Homes applied for planning permission to Fingal County Council on 4th August, 2015. That application related to lands which included lands not in the ownership of the developer, a not unusual scenario that was referred to in the application materials (which were accompanied by the requisite letters of consent from the relevant land-owners, being Fingal County Council and Dublin City Council). Various submissions were made as part of the standard planning application process. Fingal County Council made its decision to grant planning permission on 22nd January, 2016. This was appealed to An Bord Pleanála by the developer (a first-party appeal) and by various third parties, including Mr Morris. An Bord Pleanála appointed an inspector who prepared a report dated 3rd June, 2016. An Bord Pleanála then made its decision on 20th June, 2016. The said decision granted permission to Glenkerrin Homes for a mixed-use development on lands at Howth Road, Howth, comprising 200 residential units (including houses and apartments), as well as commercial units, a crèche and a community centre with associated works and developments, including the prior demolition of existing on-site structures.
2. Mr Morris has commenced judicial review proceedings against An Bord Pleanála in relation to the making of the above decision by the Board. Separately, Mr Morris has issued a plenary summons seeking mandatory injunctive relief against Glenkerrin Homes and Messrs McAteer and McCann (as receivers) and a later notice of motion seeking interlocutory mandatory injunctive relief. The nature of the injunctive relief sought in both instances would effectively require a clean-up of a site in the ownership of Glenkerrin Homes and the demolition of certain properties thereon.
3. Mr Morris appeared in person, argued his points well, and was notably succinct in his arguments and courteous in his treatment of both his opponents and the court; regrettably for him, however, the court was coerced as a matter of law to find against him on all points in both proceedings. The court indicated on the hearing-date that it would return at a later date with written reasons for its conclusions; these are provided below.
II. The Judicial Review Proceedings
4. Strict time limits apply when it comes to commencing judicial review proceedings in the planning context and require to be strictly observed. That this should be so is not because the Oireachtas has unthinkingly sought to aid developers and hinder objectors but rather because our elected lawmakers have recognised that court involvement in the planning process, though it cannot altogether be excluded, brings additional expense and delay to the expeditious completion of duly authorised developments, and thus its availability as a means of recourse ought to be curtailed in time. As Kearns J., giving judgment for the Supreme Court in Harding v. Cork County Council 4 IR 318, 345 observed:
“There is an obvious public policy consideration driving this statutory restrictive code. Where court proceedings are permitted to be brought, they may have amongst their outcomes not merely the quashing or upholding of decisions of planning authorities but also the undesirable consequences of expense and delay for all concerned in the development project as the court process works its way to resolution. The [Planning and Development] Act of 2000 may thus be seen as underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible.”
5. Similar sentiments appear in the judgment of Finlay C.J., in KSK Enterprises Ltd v. An Bord Pleanála  2 IR 128, when addressing an earlier incarnation of the current scheme of planning law. Further observations as to the strict time limits arising are to be found, for example, in Linehan v. Cork County Council IEHC 76, MacMahon v. An Bord Pleanála IEHC 431, and, more recently, in South West Regional Shopping Centre v. An Bord Pleanála IEHC 84.
6. While a natural human sympathy arises when it comes to the application of time periods which see a person foreclosed from proceeding with an application that he strongly believes in, as Mr Morris clearly does, the court must, of course, do as the law requires. And, unfortunately, Mr Morris hits a very real issue when it comes to the timelines applicable in the within proceedings. It helps to recite a brief chronology of the relevant events before turning to the applicable law:
20.06.2016. An Bord Pleanála makes its impugned decision.
24.06.2016 Mr Morris writes to An Bord Pleanála stating that he “is now proceeding with an ex parte application to the High Court for leave to seek judicial review”.
08.08.2016 It appears that Mr Morris appeared before the vacation judge and was given permission to return on 10.08.2016 to make an ex parte application to seek leave for judicial review.
09.08.2016 Statement of Grounds and Affidavit filed in Central Office. The statement of grounds is effectively blank. The affidavit states, inter alia, that “the matter is not urgent” and that, in light of the summer vacation Mr Morris was seeking that the “entire case be immediately adjourned until commencement of the new term”. Significantly, on his own averments, Mr Morris was not seeking to move the application for leave but was expressly seeking an adjournment.
10.08.2016 It appears that the application was adjourned on this date to 10th October, 2016. Mr Morris has since averred in an affidavit of 7th December, 2016, that the court, on 10th August, 2016, extended time for seeking leave until 10th October, 2016. However, there is no record of any order extending time. (Moreover, the court notes that any such order could only have been granted in accordance with s.50(8) of the Planning and Development Act 2000, as amended, and (a) there is no evidence in any affidavit directed towards satisfying that provision, and (b) if such an order had been made, it would have been open to An Bord Pleanála to seek to set it aside, though again there is no record of such order having been made).
06.10.2016 Further affidavit filed by Mr Morris; it appears that there was also a second statement of grounds to hand around this time and it may be that this statement was before the High Court on 10th October and thereafter.
10.10.2016 Mr Morris appears in court and the matter is adjourned to 7th November, 2016.
07.11.2016 Leave for judicial review is granted. Leave is given to amend the statement of grounds (it seems the second statement of grounds).
15.11.2016 Statement of Grounds now relied upon is filed with supporting affidavit.
7. The circumstances in which the adjournment of 10th August occurred present an unfortunate difficulty for Mr Morris. In many cases, parties strapped for time in moving a leave application in the planning law context will file their papers, then open the application in short form and seek to have the application adjourned to some future time. Critically, however, this process only works where the applicant has, within eight weeks, filed the papers outlining the grounds that it wishes to pursue. So, for example, in Casey v. An Bord Pleanála (Unreported, Murphy J., 14th October, 2003), the court had to consider whether an application for leave was out of time in circumstances where (a) having filed a statement of grounds and supporting affidavit one day out of time, (b) the applicant then filed three further significant affidavits one month later. Murphy J. made clear, at 16, that “All the facts relied on [for the application] must be before the Court within the time limit prescribed unless otherwise allowed by the Court.” In the within proceedings, nothing of substance was filed in the eight-week period. This had the result that, as of 10.08.2016, there was nothing to adjourn, save the application as it then stood. If Mr Morris wished (and he clearly wished) to introduce new grounds and affidavits to substantiate his application, then it fell to him to make a suitable application under s.50(8). This, regrettably for him, he did not do. For the reasons aforesaid, the court has concluded that Mr Morris is out of time to pursue the grounds of complaint now being pursued: no extension of time has ever been sought or granted for those grounds to be pursued outside the eight-week period.
8. To the extent that reliance is sought to be placed by Mr Morris (if it is sought to be placed; it was not clear that it was) on the decision in McCreesh v. An Bord Pleanála IEHC 394, the court can side-step the legal difficulties which counsel contended to arise in respect of that decision because, even post-McCreesh, it remains the case that, in an application such as that now presenting, a full case must be before the High Court within eight weeks. A blank statement of grounds with no supporting affidavit which is then subject to major amendment without any formal extension of time being sought or granted under s.50(8) of the Act of 2000, that being the situation which pertains here, does not pass muster in this regard.
ii. Grounds of Objection Considered.
9. Notwithstanding the conclusion just reached, the court proceeds, if only from a desire for completeness and to meet the demands of courtesy, to consider briefly such grounds of objection as were canvassed in the within application.
a. Land Not Owned by Applicant
10. Mr Morris appears to take objection to the fact that lands owned by Fingal County Council and Dublin City Council were the subject of the application made by Glenkerrin Homes. However, there is no legal difficulty with a person applying for planning permission over land not owned by that person, provided that the person who does own the land consents to the making of the relevant planning application. Thus, under Art. 22(1) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (as introduced by Art. 8 of the Planning and Development Regulations 2006 (S.I. No. 685 of 2006)), “A planning application under section 34 of the Act shall be in the form set out at Form No. 2 of Schedule 3, or a form substantially to the like effect”, and under Art. 22(2) “A planning application referred to in sub-article (1) shall be accompanied by…(g) where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make application.” Why would the architects of the planning regime introduce such a requirement? Perhaps for two reasons. First, to satisfy the requirements of the common law, as identified, for example, in Frascati Estates v. Walker  IR 177 and Keane v. An Bord Pleanála  2 ILRM 241. Second, at a more functional level, for the reason identified by Herbert J. in McCallig v. An Bord Pleanála IEHC 60, para. 67, being “to enable the planning authority to be satisfied before considering an application for planning permission that the applicant is either the legal owner of all the land or has written consent from the owner of every part of the land subject to the application”.
11. In the within case, the application materials were accompanied by the requisite letters of consent from the relevant land-owners (being Fingal County Council and Dublin City Council). It was suggested that because the consent from Fingal County Council was headed “Without Prejudice” that this somehow tainted the consent or rendered it less than a consent. In point of fact, there has never been any doubt that Fingal County Council was satisfied to consent, gave its consent, and, in affidavit evidence now before the court, affirms that consent. Why the words “Without Prejudice” were placed at the head of the letter of consent is unclear; if the court were to speculate, it suspects that the words were placed there as a matter of course and without too much thought. But regardless of why they are there, the fact that the words are there has no effect: the document is not one that arises in the context of a bona fide attempt to settle a dispute (a fundamental requirement, per Costello J. in O’Flanagan v. Rey-Ger Ltd (Unreported, High Court, 28th April, 1983), 14). So with or without the words “Without Prejudice”, the consent from Fingal County Council is what it purports to be and what Fingal County Council has always represented it to be: a letter evincing a consent that existed at the time of writing and which at all times since has remained extant.
12. It is not clear whether objection was taken by Mr Morris to the inclusion of the words “Subject to Contract/Contract Denied” at the head of the consent issued by Dublin City Council, but it is as well to touch upon the issue. Why these words were placed at the head of the consent is unclear; again, if the court were to speculate, it suspects that they were placed there as a matter of course and without too much thought. But regardless of why they are there, the fact that the words are there has little if any effect. Yes, they prevent the consent from being treated as a note or memorandum capable of satisfying the re-enacted provisions of the Statute of Frauds 1695 contained in s.51 of the Land and Conveyancing Law Reform Act 2009. But in truth that risk, on the facts presenting, appears limited; the words “Subject to Contract/Contract Denied” have little if any meaning of especial import in relation to the function of a document which issued simply to evince the written consent required under the Planning and Development Regulations.
13. In short, there is no legal deficiency presenting in the fact that lands owned by Fingal County Council and Dublin City Council were the subject of the application made by Glenkerrin Homes; there has been complete compliance with Art. 22 of the Planning and Development Regulations.
b. Confiscation or Sterilisation of Lands
14. Mr Morris appears to contend that the decision of An Bord Pleanála necessarily involves some transfer of lands to Glenkerrin Homes or some sterilisation of the lands in issue. This is not so. As Mr Simons notes in his learned text, Planning and Development Law (2nd ed.), 215, “[T]he grant of planning permission merely confirms that the provisions of the planning legislation have been complied with and does not per se authorise the development to proceed.” And as Keane J., as he then was, noted in Keane v. An Bord Pleanála  2 ILRM 241 “A planning permission does no more than assure the applicant that, quoad the planning legislation, his development will be lawful.” The decision of An Bord Pleanála does not transfer any title or interest and on this fundamental point all of the arguments made by Mr Morris concerning land ownership, confiscation, sterilisation, etc. must and do, respectfully, fail.
c. The Role of An Bord Pleanála and the Separation of Powers
15. The issues under this heading appear to be twofold:
- first, Mr Morris appears to be aggrieved that An Bord Pleanála did not consider issues of legal title to property. But that is an issue which is irrelevant to the questions of planning with which An Bord Pleanála is properly concerned. For An Bord Pleanála to stray into issues of title would be to wander beyond the confines of statute; and this the Board, as a statutory body, just cannot do. As MacMenamin J. observed in Murphy v. Cobh Town Council and anor IEHC 324, “[F]or the Board to properly conduct its affairs there must be strict compliance with statutory procedure….The Board is not entitled, as a creature of statute, to operate outside the four corners of the legislation which governs its powers”;
- second, Mr Morris initially appeared to contend that for An Bord Pleanála to make a finding of fact involves a breach of Article 34.2 of the Constitution; the court understands that in fact what is contended for is a breach of Art. 34.1 (and proceeds on this basis). Suffice it to note that there is no authority to support the proposition that fact-finding is an exclusive judicial function such that no other party can do it for fear of usurping the judicial power. Indeed, such a proposition were it to be accepted (and it is not) would likely bring the activities of many administrative agencies of government to a shuddering halt. The parameters of the judicial power are well travailed (see, inter alia, McDonald v. Bord na gCon  IR 217, Goodman v. Hamilton  2 IR 542, and Haughey v. Moriarty 3 IR 1); and it is decidedly not the case that the power to find facts is an exclusive judicial function.
d. Oral Hearing
16. Mr Morris appears to object to the fact that An Bord Pleanála refused his request to hold a public hearing of the appeal before issuing its decision of 20th June, 2016. Under s.134(1) of the Act of 2000, An Bord Pleanála enjoys an “absolute discretion” as to whether or not to conduct an oral hearing of the appeal. To the uninitiated, the just-quoted terminology would suggest that the Oireachtas intended to confer a Louis Quatorze-style freedom of action on An Bord Pleanála in this regard. The courts have held, however, that the actions of An Bord Pleanála, even in this regard, are reviewable - though Laffoy J. in Hynes v. An Bord Pleanála (No. 1) (Unreported, High Court, 10th December, 1997) indicates, at para. 25, that the applicant there had conceded, and Laffoy J. appears herself to accept also, that the issue of whether a decision not to hold an oral hearing was unreasonable would fall to be gauged by reference to the principles outlined by the Supreme Court in O’Keeffe v. An Bord Pleanála  1 IR 39. In truth, the wording of the statute, and the spirit that informs it, suggest that, at the very least, the Oireachtas intended that quite remarkable circumstances would need to present before a court could find that a determination of An Bord Pleanála in this area of its statutory remit should not have been reached. In the within case, following the request for an oral hearing, a memorandum of 11th April, 2016, was prepared for An Bord Pleanála as to whether to hold such a hearing, and then, on 22nd April, 2016, An Bord Pleanála considered this memorandum and the submissions on file and decided against holding such a hearing, this decision being communicated to Mr Morris on 22nd April, 2016. The court finds nothing objectionable in this sequence of events; nothing has been pointed to by Mr Morris that would justify an alternative conclusion.
III. The Application for Injunctive Relief
17. Mr Morris has issued a plenary summons seeking mandatory injunctive relief against Glenkerrin and Messrs McAteer and McCann (as receivers). He has also issued a notice of motion seeking interlocutory mandatory injunctive relief. The injunctive relief sought in both instances would effectively require a clean-up of a site in the ownership of Glenkerrin Homes and the demolition of certain properties thereon. So in granting the interlocutory injunctive relief, were it to be granted, the nature of that relief is such as would render the substantive proceedings effectively redundant.
18. Unfortunately for Mr Morris, he fails at the very first hurdle in terms of seeking injunctive relief in that he does not have any legal interest on which to give him standing to seek that relief. The mere fact of property being unsightly or in a state of ruin or unfit for any proper purpose or even hazardous, without more, does not confer jurisdiction on the court to make orders as to works to be carried out on or in relation to that property, at the instance of members of the public who have suffered no compensable loss or damage and who own no adjoining property damaged or capable of being damaged by that property. There is no evidence that the site in its present condition or the buildings thereon constitute any actual or impending nuisance to any property owned by Mr Morris or even to other lands, public roads or pavements over which he might pass. No grant of planning permission has commenced pursuant to which there is an outstanding obligation to demolish any of the buildings on the site. (Indeed, the only planning permission in place is that at issue in the judicial review proceedings which has yielded the ironic situation that, as the applications now under consideration have proceeded in tandem, Mr Morris was, in one application, seeking a set-aside of a planning permission which allows a development involving, inter alia, a demolition of the on-site buildings, and, in the other application, seeking in effect a carrying out, inter alia, of the demolition works permitted by that planning permission). A not-to-be understated further factor rendering objectionable the granting of the injunctive relief now sought is that the effect of the court’s order were it to be granted (and it will not be granted) would be to require the carrying out of works that would ordinarily require planning permission. It would be an affront to the law and a departure from that comity of purpose which ought always to exist between the great organs of state, if an unelected court was, through the granting of interlocutory mandatory injunctive relief, to acquiesce in an effective by-passing of the carefully calibrated planning scheme settled upon by our elected lawmakers through the medium of legislation.
19. To borrow from the wording of Henchy J. in Cahill v. Sutton  IR 269, 283, Mr Morris has failed entirely to identify “concrete personal circumstances pointing to a wrong suffered or threatened”. Even if the court is mistaken in the foregoing and Mr Morris falls, solely through his commencement of his judicial review proceedings, to be treated as a person with sufficient interest as to give him the standing to seek the interlocutory mandatory injunctive relief now sought (and, on the facts of this case, the court does not consider that the out-of-time and substantively weak judicial review application commenced by Mr Morris suffices to endow him with that standing), the court in any event concludes, by reference to the factors identified in the preceding paragraph, that Mr Morris comes nowhere close to establishing that “strong case that he is likely to succeed in the hearing of the action” which Fennelly J. indicates in Maha Lingham v. Health Service Executive  17 E.L.R. 137, 139 to be the “first leg” of an application for mandatory interlocutory injunctive relief. Relevant also to the court’s considerations in this regard, given that were the court to grant the interlocutory relief now sought that would dispose of the ultimate proceedings, are the observations of May LJ in Cayne v. Global Natural Resources plc  1 All ER 225, 238, as relied upon by Laffoy J. in Jacob v. Irish Amateur Rowing Union  4 IR 739, that “There may be cases where the plaintiff’s evidence is so strong that to refuse an injunction and to allow the case to go through to trial would be an unnecessary waste of time and expense and indeed do an overwhelming injustice to the plaintiff. But those cases would, in my judgment, would be exceptional”. The court respectfully agrees with the just-quoted assessment and finds no trace of the requisite exceptionality to present in the application now before it.
20. At hearing, Mr Morris effectively indicated that he had now done what he could to address the state of the site and that the responsibility rests with others, if an accident is now to occur. But, with every respect, that responsibility has always lain other than with Mr Morris. The local authority, if sufficiently concerned about the state of the site, could act or have acted, for example, under the local government or derelict sites legislation - and tellingly perhaps as to the want of concern on the part of the local authority regarding the condition of the site, no such action had been taken to the date of hearing. Moreover, Glenkerrin Homes remains potentially liable for any untoward events that may occur at the site; that is a potential liability which doubtless guides its actions as regards the up-keep of the site. And in passing, the court cannot but note that Mr Morris could always have confined the actions that he took, pursuant to his doubtless well-intentioned sense that something ought to be done about the state of the site that is the subject of the within application, to writing a letter of concern to any or all of the defendants, the local authority, local public representatives and local newspaper. The writing and sending of such a letter, it seems at least to the court, would likely be perceived by many, if not most, as sufficient to satisfy the demands of conscience, and would have avoided putting the defendants to the cost of defending an application for interlocutory mandatory injunctive relief that, in truth, never had any prospect of success, and which the court must and has respectfully refused.
21. Howth is a beautiful corner of Dublin. So it is perhaps inevitable that a significant building development in the area would excite both interest and perhaps even some level of concern among existing local residents such as Mr Morris. However, for the reasons stated above, the court, as indicated at hearing, was and is coerced as a matter of law into finding that Mr Morris’ judicial review application and his application for interlocutory injunctive relief must fail.