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Lancefort Ltd. v. An Bord Pleanala [1997] IEHC 83 (13th May, 1997)

THE HIGH COURT

JUDICIAL REVIEW

Record No. JR 49 1997

BETWEEN

LANCEFORT LIMITED

APPLICANT

AND

AN BORD PLEANALA, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

AND BY ORDER

THE MINISTER FOR THE ENVIRONMENT AND

TREASURY HOLDINGS LIMITED

NOTICE PARTIES

Judgment of Mr. Justice Morris delivered the 13th day of May, 1997 .

1. This judgment is given on a preliminary issue which has arisen on the hearing of this application. It relates to the time and manner of the service of the Grounding Notice of Motion and supporting documentation. It is alleged by Treasury Holdings Limited that the Applicant Company has failed to comply with the provisions of the Planning Acts in that they failed to serve the Notice of Motion in sufficient time or in the alternative properly upon the required parties to the proceedings and they accordingly ask that the Court should refuse to entertain the application.

2. The matter comes before the Court on an application by the Applicant Company for leave to apply for an Order of Judicial Review of a decision made by An Bord Pleanala and accordingly the relevant legislation is Section 82 of the Local Government (Planning and Development) Act, 1963 as amended by Section 19 of the Local Government (Planning and Development) Act, 1992.

Section 19(3) of the 1992 Act provides:-

"(3) Section 82 of the Principal Act is hereby amended by the substitution for subsection (3)(a) (inserted by the Act of 1976) of the following subsections.

(3)(a) A person shall not question the validity of

(a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act or

(b) 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 (S.I. No. 15 of 1986) (hereinafter in this section referred to as "the Order").

(3)b(a) An application for leave to apply for Judicial Review under this Order in relation to a decision referred to in subsection (3)(a) of this section shall:-

(i) be made within the period of two months commencing on the date on which the decision is given and

(ii) be made by Motion on Notice (grounded in the manner specified in the Order in respect of an ex-parte Motion for leave)

(1) if the application relates to a decision referred to in subsection (3)(a)(a) of this section, the planning authority concerned and, where the Applicant for leave is not the Applicant for permission or approval under Part IV of this Act the Applicant for such permission or approval .

(2) if the application relates to a decision referred to in subsection (3)(a)(b) of this section the Board and each party or each other party as the case may be, to the appeal or reference.

(3) any other person specified for that purpose by Order of the High Court."

3. It is common case that there was an obligation on the Applicant in this case to lodge the Notice of Motion and supporting documentation in the High Court on or before the 10th February, 1997 and it is common case that the Applicant did comply with this obligation.

4. It is also common case that there was an obligation on the Applicant to give notice of the application to An Bord Pleanala, Ireland and the Attorney General, Dublin Corporation, An Taisce and Treasury Holdings Limited on or before that date. In the case of An Bord Pleanala, Ireland and the Attorney General, Treasury Holdings Limited and Dublin Corporation it is accepted that the relevant documents were served on them on that date but after 5.00 p.m.. In the case of An Taisce while it is accepted that documents were handed to a Mr. Michael Smith, it is denied that this constituted effective service to comply with the provisions of the section.

THE FIRST POINT

5. It is submitted by Counsel on behalf of Treasury Holdings Limited that a Court in considering the obligations of an applicant seeking to challenge a decision of An Bord Pleanala by way of Judicial Review must construe these obligations strictly. He points to K.S.K. Enterprises Limited -v- An Bord Pleanala , 1994 2. I.L.R.M. as authority for the proposition that there must be absolute certainty in planning applications and the rules must be strictly interpreted and adhered to. He refers to that part of the judgment of the Supreme Court at paragraph 3 on page 2 of the report as follows:-

"Because of the importance of notification to the recipient of a planning permission and the planning authorities, an application could not be made within two months merely by filing the Notice of Motion in the Court office."

Moreover:

"It was the intention of the legislature to ensure that within a short interval the recipient of a planning permission should be in a position to act with safety upon the knowledge of that decision and be legally protected against subsequent challenge to the decision."

6. Again, at page 6 of the Report the Chief Justice says:-

"The vital and important thing is that within a very sharply defined time scale the parties concerned, and it would seem to me very particularly the person who had received the decision for committing him to develop, must be aware of the challenge which it is sought to bring by way of Judicial Review for the validity of that decision".

7. That being so, it is submitted, there is no room for flexibility in the interpretation of the section.

8. Counsel refers to Order 122, Rule 9, of the Superior Court Rules which provides:-

"Service of summonses, pleadings, notices, orders and other proceedings shall be effected before the hour of 5 o'clock in the afternoon except on Saturdays when it shall be effected before the hour of 1 o'clock in the afternoon. Service effected after 5 o'clock in the afternoon on any weekday except Saturday shall for the purposes of computing any period of time subsequent to such service be deemed to have been effected on the following day. Service effected after 1 o'clock in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday."

9. Counsel submits that there was a clear intention on the part of the legislature to tie in this rule with Section 82 of the Principal Act since it refers to the fact that the Motion on Notice is to be "grounded in the manner specified in the Order in respect of an ex-parte Motion for leave".

10. I do not accept Counsel's submission on this point. The Act is, in my view, clear in imposing the time limit and in defining that time and limit as being "within the period of two months". If it was meant to reduce the time limit so as to have it expire at 5 o'clock on the last day of the two month period then in my view it would have expressly said so. The ordinary interpretation of the statute under the Interpretation Act of 1937 provides that at Section 11(h) that the period of time, where it is intended to end on a particular day, that "that day shall unless contrary intention appears be deemed to be included in such period". It appears to me to follow that the whole of the day of the 10th February must be regarded as part of the limitation period since no contrary intention appears in the section.

THE SECOND POINT

11. It is submitted by Counsel on behalf of Treasury Holdings Limited that what occurred in this case did not constitute proper service upon An Taisce. Counsel submits that even though An Taisce makes no complaint about the manner in which service was effected upon it and is perfectly willing to accept such service as was effected upon it as satisfactory nevertheless there is a statutory obligation cast upon the Applicant and a failure to comply with that statutory obligation precludes him from seeking the relief of the Court.

12. It is necessary to summarise the facts to which this point relates.

13. An Taisce is a Company limited by guarantee. Mr. Michael Smith says that he received the Notice of Motion and supporting documents at 5 o'clock on Monday the 10th February, 1997 and he regarded them as notice to and service upon An Taisce. He says that he has been a member of the Dublin City Association of An Taisce since 1993 and has been Chairman of that Committee. He is a member of An Taisce's National Council since 1995. The Dublin City Association of An Taisce delegated to him the responsibility to write and lodge the original objection to the development to which this application relates and Mr. Smith was responsible for all correspondence in relation to the application. Following the original decision taken by the Counsellors on this development, Mr. Smith's Committee met and sought permission from An Taisce at national level to appeal the decision. This permission was given and to Mr. Smith was delegated the complete control to draft the appeal and to lodge it which he did. Thereafter he was in direct correspondence and communication with An Bord Pleanala on behalf of An Taisce. The decision of The Bord on this appeal was communicated direct to his home.

14. In paragraph 13 of his Affidavit of the 18th March, 1997, Mr. Smith says:-

"I further say that I regarded receipt of the said pleadings in the manner aforesaid as notice to and service thereof on An Taisce because of my intimate connection with the matters at issue in the said proceedings as An Taisce's agent and the position I hold on its National Council which controls An Taisce. I say that I was on the date aforesaid a member of that body's National Council and I say and believe that I was duly authorised to accept service and take receipt of the said pleadings on its behalf."

15. In paragraph 12 of his Affidavit sworn the 18th March, 1997 Mr. Frank Convery, National Chairman of An Taisce, says:-

"I say that any receipt of the Notice of Motion, the Statement required to ground application for Judicial Review and Affidavit in support of same in the proceedings herein by the said Michael Smith on the afternoon of the 10th February, 1997 was regarded by An Taisce as constituting service of the said proceedings of An Taisce. I say that on the said date the said Michael Smith as a member of An Taisce's National Council and as An Taisce's agent in the manner aforesaid was authorised to be served with and or to take receipt of the said proceedings. The delegation of authority by An Taisce to Michael Smith in all matters pertaining to its involvement in the appeal to An Bord Pleanala was absolutely complete and Michael Smith had full authority to do any act or thing for that purpose on behalf of An Taisce including authority to accept service of any proceedings or documents."

16. It is submitted by Counsel that the only ways in which a company may be served are:-

(a) as provided by Section 379 of the Companies Act.

(b) by service on the company's Solicitors.

17. Counsel submits that as the alleged service in this case does not comply with any of these methods of service it is ineffective, notwithstanding that An Taisce raises no objection.

18. What is required by Section 82 of the Act is that the application should be made "by Motion on Notice" to the Board and to each party. Section 7 of the 1963 Act provides that notices are to be served on the "ordinary residence" of Notice Parties and subsection (3) of the section provides that the registered office of a company is deemed to be its ordinary residence.

19. Order 9, Rule 15, of the Rules of the Superior Court Rules provides that:-

"In any case the Court may, upon just grounds, declare the service actually effected sufficient."

20. I am left in no doubt whatever that since the purpose and object of achieving proper service in Court proceedings is to ensure that the party concerned is adequately informed of the matters contained in the notice so as to suffer no prejudiced and since it is abundantly clear that An Taisce was so informed and that no possible prejudice arises in the case, even if I were to hold that the service on Mr. Michael Smith did not comply strictly with the statutory provisions, I would unhesitatingly declare that the service was sufficient under Order 9, Rule 15 and accordingly I reject this submission.