High Court of Ireland Decisions

1. In these proceedings the Applicant, which is a company limited by guarantee, seeks by way of Judicial Review an Order of Certiorari quashing a decision of the first named Respondent, An Bord Pleanala, bearing planning register reference number 0040/96 and PL 29S.099165 dated the 11 December, 1996 granting permission for a mixed hotel and office development to the Notice Party, Treasury Holdings Limited. The Applicant in addition seeks a Declaration that Section 14(8) of the Local Government (Planning and Development) Act, 1976 is repugnant to the Constitution and void.

The Applicant's Notice of Motion and Statement grounding application for Judicial Review were issued and served on the 10 February, 1996. Following on a number of preliminary applications and hearings on procedural points the substantive question of the application for leave to issue Judicial Review proceedings came on for hearing pursuant to the provisions of Section 82 of the Local Government (Planning and Development) Act, 1963 (as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992 before the learned Morris J, now President of this Court. The hearing lasted some six days and in a reserved Judgment delivered the 6 June 1997 the learned President granted leave to the Applicant to issue the present Judicial Review proceedings on specific and limited grounds. He accepted that the Applicant possessed locus standi to issue the proceedings; he also rejected a number of the grounds put forward in the Applicant's original Statement grounding the application.

The second and third named Respondents and the Notice Party had issued Motions seeking security for costs and these Motions were heard by the learned Morris P on the 16 June, 1997. In a further reserved Judgment of the 23 June, 1997 Morris P awarded security for costs in favour of those parties in the amounts of £15,000 and £25,000 respectively.

The Applicant wished to appeal the refusal of Morris P to grant leave to seek Judicial Review on the ground that An Bord Pleanala had failed to comply with the provisions of European Council Directive 337/85/EEC on environmental impact assessments and it applied to the Court pursuant to Section 82 of the Local Government (Planning and Development) Act, 1963 for a certificate enabling such an appeal to the Supreme Court on the grounds that the matter involved a point of law of exceptional public importance and that it was in the public interest that such an appeal be taken. The second and third named Respondents similarly sought a certificate to appeal the decision of this Court regarding the Applicant's locus standi. The hearing of the applications for the said certificates took place before Morris P on 21 and 22 July, 1997 and in a further reserved Judgment delivered on 23 July, 1997 the learned Judge granted the certificates. The Notice Party then on 25 July, 1997 brought a Notice of Motion to the Supreme Court seeking to restore all these matters to the High Court. By Orders dated 27 July and 29 July, 1997 the Supreme Court remitted all matters to the High Court for hearing.

At the hearing before me I was provided with a transcript of the proceedings before the Supreme Court on 29 July, 1997. It is clear from this transcript that the learned Chief Justice repeatedly made the point that all issues in the matter were to go back to this Court and that all issues were to be tried in this Court including, it appears, the issue of locus standi. At page 3 of the transcript the learned Chief Justice states:-

"What this Court decided last Friday was that all issues go back to the High Court and its a matter for the High Court to decide what they are going to do the way they do it, what they have to do, it is purely a matter for the High Court."

Counsel for the Applicant submitted to the Supreme Court that the High Court should not again consider the matter of locus standi which had already been decided by Morris P. The Chief Justice replied: "That is a matter for the High Court. He may change his mind."

It is clear from the above that it was open to this Court to consider all the matters which arose both in the original hearing before Morris P and in the appeals to the Supreme Court.

At the hearing before me the Applicant submitted that the matter of locus standi had already been decided by the learned Morris P and was therefore res judicata. The Respondents and the Notice Party submitted that it was open to this Court to reconsider the matter of locus standi, in particular the locus standi of the Applicant to seek to impugn the constitutionality of Section 14(8) of the 1976 Act.

The Respondents and the Notice Party submitted that the Applicant had substantially altered its grounds for seeking Certiorari on the environmental impact assessment point and that this was not permissible under the time limits set out in Section 82 of the 1963 Act. The Applicant asserted that it had relied on these grounds at all of the earlier stages of the proceedings.

Bearing in mind the attitude of the Supreme Court at the hearing on the 29 July, 1997, and in particular the dicta of the Chief Justice, I considered that the correct course was to permit both the issue of locus standi and the enviromental impact assessment point as then formulated by the Applicant to be argued before this Court and I accordingly did so.

The basic facts of the case are succinctly set out by Morris P at page 2 of his Judgment of the 6 June, 1997, 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 11 December, 1996. The Developer appealed to the Bord 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 13 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 Bord 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 sixth floor of the proposed development and 16(B) which required the omission of a portion of the fifth 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 Bord between the 25 and 27 September, 1996. The inspector's report was produced and submitted to the Bord.

5. The decision of the Bord is dated the 11 December, 1996 and it granted permission to the Developer subject to conditions."

The issues before this Court appear to me to be as follows:

1. Whether the Applicant company had locus standi to pursue judicial review proceedings generally and, more particularly, whether it had locus standi to challenge the constitutionality of Section 14(8) of the Local Government (Planning and Development) Act, 1976.

2. Whether, as alleged by the Applicant, An Bord Pleanala did not follow the correct procedures in reaching its decision by reason of its failure to consider whether an environmental impact assessment was required, bearing in mind the nature, scale and impact of the proposed development.

3. Whether, pursuant to Section 23 of the 1976 Act the Bord's inspector should have included an account of his inspection of the site of the proposed development in his report to the Bord.

4. Whether Section 14(8) of the 1976 Act is repugnant to Article 43 of the Constitution and void.

It was agreed by Counsel that, as is well established law, the Court firstly should decide all other issues and only if then necessary should pass to consideration of a constitutional issue.

Before considering any of the issues, however, I should have regard to the role of the Court in the scheme of planning legislation. This has been well described by the learned Barr J in Tennyson v Corportion of Dun Laoghaire [1991] 2 IR 527. At page 534 the learned Judge stated:

"Where a decision is made by a planning authority on an application made to it by a developer under Section 26 of the Act of 1963 for permission to proceed with a proposed development, it may be open to challenge on two broad grounds. First, on purely planning criteria (as, for example, a contention that the decision of the authority to exclude certain units from a proposed development was erroneous in that it was unnecessary and did not accord with good planning practice) and, secondly, that the decision is ultra vires the power of the planning authority. The latter category of dispute includes issues relating to the meaning of the development plan relating to the particular application. The Oireachtas has provided in the planning code a forum for the adjudication of appeals from decisions of planning authorities within the first category ie, those relating to planning matters per se. Such appeals are heard and determined by An Bord Pleanala which is a tribunal having the benefit of a special expertise in that area. The court is not an appropriate body to adjudicate on such matters and in my view it ought not to interfere in disputes relating to purely planning matters. However, where the dispute raises an issue regarding a matter of law such as the interpretation of the wording of the development plan in the light of relevant statutory provisions and the primary objective of the documents, then these are matters over which the Court has exclusive jurisdiction. An Bord Pleanala has no authority to resolve disputes on matters of law."

I am in complete agreement with the learned Barr J in regard to the distinction which he makes between the role of An Bord Pleanala and the role of the court and I shall endeavour not to trespass into matters of planning expertise which the Oireachtas has placed firmly within the jurisdiction of An Bord Pleanala.

In regard to the issue of locus standi, it is clear that the learned Morris P took the view that it was desirable to have this matter decided at the "leave" stage of the proceedings. He pointed out that, in the first instance, he was satisfied that the parties had had a full opportunity to argue the issue of locus standi. Secondly, he felt that in the particular circumstances of the procedures to be followed, as provided for by Section 82 of the 1963 Act, all parties had been present in court from the outset. He could see no advantage in postponing dealing with this issue until the second stage of the hearing.

While I consider that I was bound by the directions of the Supreme Court to permit further submissions on this issue, I would, nevertheless, attach considerable weight to this view of the learned Morris P, and indeed to his general view on the matter of the Applicant's overall locus standi in the matter of these Judicial Review proceedings.

I have also had the advantage of considering the locus standi of companies limited by guarantee of a type similar to the present applicant in two recent cases -- the case of Blessington Heritage Trust Limited v The County Council of the County of Wicklow, the Minister for the Environment and Roadstone (Dublin) Limited in which I gave judgment on the 21 January, 1998 and the case of Wicklow Heritage Trust Limited v Wicklow County Council in which I gave judgment on the 5 February 1998. I do not think it necessary to repeat in full here what I set out in those Judgments or indeed to quote at length the careful consideration which was given to the matter at the "leave" stage in the instant case by the learned Morris P.

In the Wicklow Heritage Trust case I pointed out that traditionally locus standi in planning cases had been interpreted widely by the courts and I quoted from Ms Yvonne Scannell's book "Environmental and Planning Law" where she describes the situation thus (at page 108):-

"It is submitted that because planning legislation envisages the involvement by members of the public in all stages of the planning process and because many judicial decisions have, in varying ways, suggested that 'in all planning matters there are three parties: the developer, the planning authority (or An Bord Pleanala in the case of an appeal) and the members of the public' locus standi to challenge what McCarthy J described in the Supreme Court as 'an environmental contract between the planning authority . . . and the community' (McGarry v Sligo County Council [1989] ILRM 768) is very wide indeed and is certainly not confined to persons whose proprietary interests are affected. It probably extends to all members of the public liable to be affected by the provisions of the development plan unless there are countervailing factors. Thus, for example, if the nature and gravity of the allegations made are serious, a very wide range of persons will be accorded locus standi, whereas if they are trivial, it may well be denied. The nature of the remedy sought may also influence the courts discretion: it may be easier for an ordinary member of the public to obtain a declaration than an enforceable Order of Mandamus. The locus standi rules are therefore essentially a matter for the courts discretion but all indications in environmental cases to date support the view that locus standi for Judicial Review in these cases will rarely be denied."

In the earlier cases I contrasted what was stated obiter by the learned Lynch J in the Supreme Court in the case of Malahide Community Counsel v Fingal County Council (unreported) 14 May, 1997 (which was referred to also by Counsel in the instant case) and the view taken by the learned Morris P in his Judgment of 6 June, 1997. Both in the Blessington case and in the Wicklow case I preferred to follow the decision of the learned Morris P and in this context I said (at page 33) of my Judgment in the Blessington case):-

"The framework and scheme of our legislation on local government planning and development is essentially one of balance between a number of interests -- those of the developer (ranging from the individual developer to the major development company), those of the local planning authority in promoting proper planning and development in its administrative area, those of the Minister (of the Environment) in maintaining central supervision under the legislation, and last but by no means least those of the ordinary members of the public who reside in the environment which is vitally effected both by overall development plans and by individual planning decisions. The rights of all these individuals and groups are carefully and in detail spelt out in the planning legislation and the courts should at all times endeavour to maintain the balance envisaged in the legislation. In McGarry v Sligo County Council [1989] ILRM 768 the learned McCarthy J famously described the development plan thus:

'When adopted, it forms an environmental contract between the planning authority, the Council and the community, embodying a promise by the Council that it will regulate development in a manner consistent with the objectives stated in the plan and, further, that the Council itself shall not effect any development which contravenes the plan materially.'

In cases like the instant case it may well be argued as it was in the Lancefort case that companies such as the applicant company have been incorporated simply to afford the true applicants 'a shield against an award of costs' to use the words of the learned Morris J I have no doubt that this is a relevant factor and one which must cause concern to a developer such as the Notice Party. However, it could also be argued that in cases such as the present the individual member of the public may in practice be denied access to the courts -- or at least have that access made much more difficult -- by the danger of an award of costs against him in a case where his opponent is a large development company with the resources which enable it to pursue lengthy and costly litigation with comparative impunity. Over-reliance on the incorporation of companies such as the Applicant in this case may tip the balance too far in favour of objectors or concerned local persons: on the other hand blank refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well resourced developer. It seems to me that the balance is best preserved by the course followed by the learned Morris J. The court should look at the factual background in each case and, if necessary, maintain the balance by the making of an Order for security for costs. I therefore conclude that the Applicant company has locus standi in the present proceedings".

I see no reason to alter the opinion which I expressed in these two earlier cases and I am encouraged by the fact that in holding this view I find myself in agreement with the views of the learned President of this Court. I therefore consider that the Applicant in the instant case does possess the necessary locus standi to maintain judicial review proceedings in regard to planning matters generally.

However, I would accept that somewhat different consideration may arise in regard the Applicant's locus standi to challenge the constitutionality of Section 14(8) of the 1976 Act, and that there is a wide range of relevant authorities on this point. I note also that at page 19 of his Judgment of the 6 June, 1997 Morris P states in regard to the constitutional aspect of the case:

"In view of the foregoing I am of the view that the Applicant company has made out a substantial case both to establish its locus standi and to challenge the constitutionality of the Section". (my emphasis).

I propose to leave over consideration of what I might describe as the "constitutional locus standi" as it is not strictly necessary to consider it at this point.

THE ENVIRONMENTAL IMPACT ASSESSMENT GROUND

The first ground upon which the Applicant relies in its challenge to the decision of An Bord Pleanala was originally set out in its Statement of Grounds as follows:

"(i) the Bord failed to require the submission of an environmental impact assessment with respect to the proposed development as required by the European Communities (Environmental Impact Assessment) Regulations 1989 (SI No 349 of 1989) and Council Directive 85/337/EEC.

(ii) submission of an environmental impact assessment where required under either the European Communities (Environmental Impact Assessment) Regulations 1989 or Council Directive 85/337/EEC is a pre-condition to the exercise of the Bord's jurisdiction.

(iii) having regard to the provisions of the European Communities (Environmental Impact Assessment) Regulations 1989 and Council Directive 85/337/EEC and to the nature and scale and impact of the proposed development, the Bord should have required the submission of an environment impact assessment. In failing so to do the Bord acted without jurisdiction in hearing and determining the said appeal and its decision thereon is a nullity."

At the leave stage it was apparently argued before Morris J (as he then was) that Ireland had failed properly to transpose the 1985 Directive into domestic law so as to ensure that all projects likely to have significant effects on the environment would be subject to an EIS/EIA. A part of this argument was, it appears, that in the event of failure properly to transpose the Directive the Directive itself should have direct effect in Irish law. Morris J in his Judgment of 6 June, 1997 rejected this entire ground, but subsequently on 23 July, 1997 certified as a point of law for appeal to the Supreme Court the question:

"whether An Bord Pleanala is obliged to have regard to the provisions of Council Directive 85/335/EEC notwithstanding the inadequate transposition of its provisions into domestic legislation".

The contention that Article 4(2) of the 1985 Directive (which is also the Article in issue in the instant case) should have direct effect in Irish law has been comprehensively and carefully considered by Quirke J in his Judgment in McBride v Mayor, Aldermen and Burgesses of Galway (unreported 31 July, 1997). Quirke J stated (at page 33 of his Judgment) that he was:

"satisfied that the requirements imposed by Article 4(2) of the 1985 EIA Directive were not directly applicable".

I am, of course, aware that the Judgment of Quirke J has been appealed to the Supreme Court, that the appeal has been heard and that Judgment has been reserved. For the present I would be inclined to find the reasoning of Quirke J persuasive on this matter.

However, in the interim between the hearing of the Motion in the instant case before the Supreme Court in July 1997 and the substantive hearing before me the Applicant radically altered its approach to the EIA Directive ground. Counsel for the Respondents argued cogently that pursuant to Section 82 of the Local Government (Planning and Development) Act, 1976 it was not permissible for the Applicant to introduce new grounds once the statutory two months limitation period has elapsed. However, on account of the liberal attitude taken by the Supreme Court in its decision on the 29 July, 1997 I decided to permit the Applicant to vary its argument on this point.

In the proceedings before me the Applicant accepted that the requirements of the 1985 EIA Directive had been transposed into Irish law through the operation of the European Commission (EIA) Regulations 1989 (SI 349 of 1989) as complemented by Article 56(2) of the Local Government (Planning and Development) Regulations 1994 (S186 of 1994). Senior Counsel for the Applicant, Ms Finlay, submitted that the 1989 Regulations and Article 56(2) of the 1994 Regulations, read in the light of the 1985 EIA Directive and the relevant European case law, created a situation where An Bord Pleanala in dealing with the appeals before it in the instant case should, as an essential first step, have considered whether or not an environmental impact assessment of the proposed development was required, bearing in mind its nature, size and location. If such a consideration was in fact carried out by the Bord and a decision made not to require an EIA, then that consideration and decision should have been properly recorded in a form such as to render it amenable to Judicial Review. The Applicant submits that neither the official records of the Bord nor any evidence before the Court whether oral or on affidavit establishes that the Bord ever considered in any way the desirability or otherwise of requiring an EIA; that such consideration and decision was an essential pre-requisite for the making of a decision on the appeal before it; and that in the absence of such consideration the Bord's decision of the 11 December, 1996 is void. Ms Finlay summarised this argument by saying that it was a pre-condition to An Bord Pleanala's making a decision on the appeal that they satisfied themselves as to whether or not they were required to seek an environmental impact assessment.

Before turning to the contrary submissions made to this Court by Counsel for the Respondents and the Notice Party it is necessary to refer to the terms of the 1985 EIA Directive and of the 1989 and 1994 Regulations.

The main purpose of the 1985 Directive is set out in Article 2:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia of their nature, size or location are made subject to an assessment with regard to their effects."

Article 3 provides:

"The environmental impact assessment will identify describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4-11, the direct and indirect effects of a project on the following factors:

-- human beings, fauna and flora,

-- soil, water, air, climate and the landscape,

-- the interaction between the factors mentioned in first and second indents,

-- material assets and the cultural heritage."

Article 4 deals with the classes of projects which should be made subject to anenvironmental impact assessment. Projects which must in all cases be made subject to an environmental impact assessment are listed in Annex 1. Article 4.2 provides:

"Projects of the classes listed in Annex 2 shall be made subject to an assessment, in accordance with Articles 5-10, where Member States consider that their characteristics so require.

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 subject to an assessment in accordance with Articles 5-10."

It is thus left to the Member State to establish criteria and thresholds in regard to projects covered by Annex 2. The Member State is not, however, entirely free in its fixing of such criteria and thresholds. It may not exclude entire categories of projects from the necessity for an environmental impact assessment; nor may it fix thresholds at such a level that the practical effect is to exclude all projects in this particular category. (see Commission of the European Communities v Kingdom of Belgium (C-133/94); Aannemersbedrijf PK Kraaijeveld BV/O is Gedeputeerde Staten van Zuid-Holland (C-72/95); 1996 ECR I-5403).

In the Irish jurisdiction the categories set out in Article 4 Annex 1 and 2 are dealt with in Part V and the Schedules of the European Commission (Environmental Impact Assessment) Regulations 1989 ("the 1989 Regulations"). An environmental impact assessment is mandatory for all projects listed in Part I of the First Schedule, which corresponds with Annex 1 of the Directive. Part II of the First Schedule sets out the thresholds applying to various types of project. An environmental impact assessment is required where a project exceeds the threshold provided. Part II, therefore, corresponds to Annex 2 of the Directive. In the context of the instant case the relevant thresholds are:

"10(b) Urban development projects which would involve an area greater than fifty hectares in the case of projects for new or extended urban areas, and an area greater than 2 hectares within existing urban areas."

and

"11(a) Holiday villages involving more than one hundred holiday homes, stationary caravans or trailers; hotel complexes having an area of twenty hectares or more or an accommodation capacity exceeding four hundred beds."

At an earlier stage in the case attempts were made by the Applicant through affidavit evidence to show that in fact the Notice Party's project exceeded four hundred beds and therefore fell above the threshold but this argument was abandoned in the proceedings before me.

Under the 1989 Regulations, therefore, it is clear that this proposed development prima facie does not require an environmental impact assessment to be carried out.

Chapter 11 of the Local Government (Planning and Development) Regulations 1994 ("the 1994 Regulations") deals with appeals against decisions of planning authorities on planning applications. Article 56(2) provides as follows:

"Where an appeal is against a decision of a planning authority on a planning application which relates to development which would be of a class for the time being specified under Article 24 of the Environmental Assessment Regulations (or under any provision amending or replacing the said Article 24) but for not exceeding a quantity, area or other limit specified in relation to that class and which is not development referred to in sub-Article (1)(b), and where the planning authority did not require the Applicant, in accordance with Article 26, to submit an environmental impact statement the Bord shall where it considers that the development would be likely to have significant effects on the environment, require the Applicant to submit to the Bord an environmental impact statement."

Article 56(2), therefore, places it within the jurisdiction of the Bord to decide whether or not to require the Applicant to submit an EIS in respect of a particular project. This is perfectly compatible with the general scheme of planning legislation as described by the learned Barr J in the Tennyson case quoted at the beginning of this Judgment. The Applicant, the Court, and indeed the general public may disagree profoundly with the Bord's decision not to seek an EIS, but it is a decision taken within jurisdiction. As such it is not susceptible to Judicial Review unless it is so unreasonable that it flies in the face of ordinary reason and common sense (O'Keeffe v An Bord Pleanala [1993] 1 IR 39). Such unreasonableness is, quite correctly, not pleaded in the instant case.

The Applicant's argument as set out above is a different one -- that the Bord must, to fulfil the terms of Article 56(2), consider whether the development is likely to have such significant effects on the environment that it requires the submission of an EIS, must decide whether or not it does so require, and must make a proper record of this decision.

Counsel for the first named Respondent, Mr Macken, who was supported in his submissions by the other Respondents and the Notice Party, pointed out that the Applicant's argument required all projects to be assessed as to whether an EIS was required, even where the project fell below the thresholds set by the Member State under Article 4(2). This was to ignore the distinction made in the Directive between Annex I projects, which must in all cases be assessed, and Annex II projects which "may not have significant effects on the environment in every case" but which "should be assessed where the Member States consider that their characteristics so require". The Directive expressly allowed Member States to set thresholds to define the characteristics of projects under Annex II which would require an EIS under national law. He accepted that Article 56(2) of the 1994 Regulations gave an additional discretion to An Bord Pleanala where reliance on thresholds would be inadequate. However, the exercise of this discretion was within the jurisdiction of An Bord Pleanala and the Bord could not be challenged in the exercise of its discretion unless it could be shown to have acted unreasonably. As can be seen from what I have already said, I accept this submission as correct, as also I accept Mr Macken's distinction between the instant case and The Commission v Belgium and Kraaijeveld cases. The essential point in both those cases was that the relevant Member States had incorrectly transposed the provisions of Article 4 of the 1985 Directive into domestic law.

As far as the actual evidence before this Court is concerned, David Soden, Solicitor for the Applicant, in his affidavit sworn the 18 March, 1997 deposes to his perusal of a number of documents from the flies of An Bord Pleanala concerning the proposed development. He states that none of these documents, which cover the period July to December 1996, make any reference to an EIA or EIS. Some of the documents have spaces or boxes marked EIS but no entry is made in these boxes. From this he deduces that in its consideration of the appeal before it An Bord Pleanala did not consider whether an EIA/EIS was required, and made no decision on the matter. There is also no reference to the question of an EIA/EIS in the minutes of the meeting of An Bord Pleanala held on the 3 December, 1996 when a decision was made to grant the planning permission subject to conditions. These minutes, as is the case with a number of public bodies, are brief and purely formal.

It is clear from these documents that An Bord Pleanala did not decide to require an EIA/EIS in regard to the project. One cannot, however, with certainty draw the conclusion that the Bord considered and rejected the possibility of requiring an EIA/EIS.

In his affidavit sworn the 29 July, 1997 Mr Diarmuid Collins, secretary to An Bord Pleanala, deposes as follows:

"I say that in all of the circumstances the first named Respondent did not form the opinion that the said development would have a significant effect on the environment and the first named Respondent believes that an environmental impact assessment was not and is not required for the said development. I say that in the circumstances it was not appropriate for the first named Respondent to exercise its discretion under Article 56(2) of the Local Government (Planning and Development) Regulations 1994."

Mr Collins was cross-examined and re-examined on his affidavit. He admitted that neither he nor any other member of the staff of An Bord Pleanala actually attended the Bord meeting and therefore could not give evidence of his own knowledge that the question of environmental impact assessment had been discussed. However, he referred to the general practice and procedure of the Bord and stated that the question as to whether an EIA/EIS might be required under Article 56(2) would be considered by the staff when giving advice to the Bord. In the alternative the inspector could advise the Bord on the matter and at times the Bord itself decided on the requirement of an EIA.

While I have no doubt whatsoever as to the bona fides of Mr Collins' evidence, it does not fully establish that the Bord actually considered the possible requirement for an EIA/EIS under Article 56(2). Certainly there is no specific record of any such consideration or decision.

Senior Counsel for the Notice Party, Mr Brady, submitted that the Applicant's argument relying on the absence from the records of An Bord Pleanala of evidence of a decision not to require an EIS to establish that no decision was in fact made was misconceived. There was, in fact, no obligation of a general nature to maintain such records. He referred to the Judgment of Finlay CJ in O'Keeffe v An Bord Pleanala [1993] 1 IR 39 at page 77 where the learned Chief Justice stated:

"The requirement that a decision making authority should keep minutes sufficient to allow proof of the material before it in the event of a judicial review, which is contained in the decision of this Court in P & F Sharpe Limited v Dublin City and County Manager [1989] IR 701 must, I am satisfied, be read in its precise terms in the light of the body and the decision which was concerned in that case . . . that decision should not be taken, in my view, to mean that minutes contemporaneously made of the meeting of members of a board or of a tribunal are a necessary or the only method of establishing the material that was before them."

In the Sharpe case the body concerned was a local authority and it is contrasted with a statutory body of the type of An Bord Pleanala. Counsel for the Notice Party submitted that there was sufficient evidence before the Court to enable it to infer that the Bord did address the question whether an EIS was required and that there was no actual evidence that it did not address the question.

Counsel for the Notice Party also submitted that where the evidence as to whether a statutory body entrusted by the legislature with a particular function did nor exercise its statutory duties there is a presumption of validity in favour of the decision under attack. He referred to the Judgment of Finlay P (as he then was) in re Comhaltas Ceolteoiri Eireann (High Court unreported 14 December, 1977) where he said (at pages 3-4 of the transcript of his Judgment):

"A planning authority is a public authority with a decision making capacity acting in accordance with statutory powers and duties. In my view, there is a rebuttable presumption that its acts are valid."

This would clearly apply as much to An Bord Pleanala as to a planning authority.

It appears to me that this submission by the Notice Party is well founded. The onus of proof in establishing that An Bord Pleanala did not consider the question of environmental impact assessment pursuant to Article 56(2) of the 1994 Regulations, and thereby rebutting the presumption of validity of the Bord's decision, lies squarely on the Applicant. That burden of proof, it seems to me, has not been fully discharged.

In addition, the Court has discretion in regard to Orders sought by way of judicial review. In this case, the Bord had before it ample material on which to make its decision. The report of the inspector raises and refers to many of the matters which would also be covered in an environmental impact assessment. Finally, no participant in the oral hearing suggested that an environmental impact assessment was required. Mr Michael Smith, a leading member of the Applicant company, played a major part in the oral hearing on behalf of An Taisce. The Applicant has relied on a form of lifting of the corporate veil to establish locus standi in this judicial review; it must also accept a similar lifting of the corporate veil in drawing attention to the fact that Mr Smith did not at any stage during the oral hearing raise the matter of a possible environmental impact assessment.

Bearing all these matters in mind I would be reluctant to exercise my discretion in favour of the Applicant on this point.

This ground, therefore, must fail.

THE INSPECTOR'S REPORT

The second ground on which the Applicant relies in seeking an Order of Certiorari concerns the report made to An Bord Pleanala by its inspector, Mr Kent, subsequent to the oral hearing held from 25-27 September, 1996. The Applicant submits in its original Statement of Grounds that 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 Bord. At the hearing Counsel for the Applicant argued that Section 23 of the 1976 Act required an inspector who had conducted a site inspection to file a site inspection report with An Bord Pleanala. In the present case a site inspection was carried out and an oral hearing was also conducted. The inspector who conducted the oral hearing made a report of that hearing to An Bord Pleanala but no separate site inspection report was made to the Bord.

The Applicant submitted that it Would have been open to the inspector to include a site inspection report with the oral hearing report. Such a report would have clearly stated that a site inspection had been conducted and would have recorded the inspector's independent assessment of the site and of the condition of the listed buildings and the buildings in a conservation area on the site. It is suggested that no reasonable objective reader of the inspector's report in the present case could ascertain the inspector's impressions of the site and the buildings thereon. The Applicant contended that the legislative intent behind Section 23 of the 1976 Act was to provide An Bord Pleanala with an independent assessment of the site and of the impact of the proposed development on the site. The failure of the inspector to file such a report deprived the Bord of this information.

Counsel for An Bord Pleanala submitted that this was a complete misconstruction of the powers and duties of an inspector in relation to an oral hearing. In this argument he was supported by Counsel for the Notice Party.

Section 82(5) of the the Local Government (Planning and Development) Act, 1963 (which pre-dated the establishment of An Bord Pleanala) provides that:

"A person conducting an oral hearing of any reference or appeal may visit and inspect any land to which the reference or appeal relates."

Section 23 of the the Local Government (Planning and Development) Act, 1976 provides as follows:

"Where in connection with either the performance by the Minister of any of the functions assigned to him under the the Local Government (Planning and Development) Acts, 1963 and 1976 or the performance by the Bord of its functions an inspection is carried out or an oral hearing is conducted on behalf of the Minister or the Bord as the case may be by a person appointed for the purpose by the Minister or the Bord, the person so appointed shall make to the Minister or the Bord 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 Bord 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."

The phraseology of Section 23 is somewhat ambiguous. It refers to a situation where:

"An inspection is carried out or an oral hearing is conducted . . . by a person appointed for the purpose by the Bord, the person so appointed shall make to the . . . Bord . . . a written report on the inspection or hearing as the case may be."

This could be interpreted to mean that where both a site inspection was carried out and an oral hearing was conducted the inspector should report on both to the Bord, either in separate reports or in a joint report. This is the interpretation canvassed by the Applicant. The first named Respondent supports the alternative interpretation -- that where there is an inspection only there should be a report on the inspection but that where there is an oral hearing only a report on the oral hearing is required.

If an inspector himself carries out a site inspection and subsequently makes a report on it to the Bord, it is clear that such a report would (and should) reflect the independent views of the inspector. This is accepted, and indeed emphasised, by Counsel for the Applicant, who argues that the Bord should have before it the independent views of the inspector based on his inspection.

The situation that arises when there has been an oral hearing is, however, somewhat different. The Bord will then have before it the inspector's report on the evidence and submissions of the various parties which have appeared at the oral hearing. Should it, in addition, have before it the independent views of the inspector?

A similar issue arose in the case of Killiney and Ballybrack Development Association Limited v The Minister for Local Government and Templefinn Estates Limited 112 ILTR 69. The facts in that case were that Dun Laoghaire Corporation granted planning permission to Templefinn Estates Limited for a housing development at Hackettsland, Seafield Road, Killiney, Co Dublin, subject to certain conditions. The Plaintiffs, an Association of Residents of Killiney and Ballybrack, appealed against that decision to the Minister for Local Government, and the public hearing was held on the 12 and 13 April, 1972 before an inspector of the Department of Local Government.

An important point of controversy at the hearing of the appeal centred on the adequacy or inadequacy of the existing sewerage facilities to cope with existing and future demand. The objectors alleged that existing facilities were seriously overloaded and could not, therefore, cope with the demand which would be created by the proposed development.

In his report to the Minister the inspector stated that he had discussed the matter with sanitary inspectors at the Department of Local Government and had made enquiries with the relevant local authority. He had also visited the area and "recently and carefully" walked along a stream and river which the Plaintiffs alleged was heavily polluted with sewage. The inspector included in his report an account of his personal observations, stating, inter alia, that the stream did not appear to contain raw human excreta. The Minister for Local Government granted planning permission. The Plaintiffs challenged the Minister's decision on a number of grounds, including that the report of the inspector contained two specific references to facts and evidence not presented at the hearing.

With regard to this ground Finlay P (as he then was) held that an inspector conducting an oral hearing has power to inspect the land to which the reference or appeal relates, but only so that he will be in a position fully and clearly to understand the evidence which was given before him and appreciate the nature of the submissions being made and thus faithfully and accurately report on both these matters to the Minister. He held that the inspector had no power to report the results of his inspection to the Minister since this would be to include in his report material not disclosed at the hearing. In the Killiney case this inclusion in his report of a factual account of what he saw and did not see on the occasion of his visit was capable of influencing the Minister and therefore the decision based on that report was invalid.

At page 75 of the report the learned President referred to the inspector's account of his personal inspection of the stream and river, which he quotes, and comments:

"This undoubtedly constitutes a statement of facts by Mr Cassidy of the results of a visual observation by him of the area in respect of which the issue with regard to pollution and sewerage arose. There is no indication in the report that the fact of this visit or the observations or results of the observations made by Mr Cassidy were disclosed by him at the public hearing and prima facie this falls within the definition of material not disclosed at the hearing."

The learned Finlay P went on to say:

"Its relevance and importance to any decision which the Minister had to make with regard to this question of pollution arises from the fact that Professor Fitzgerald, a witness called on behalf of the Plaintiff, is recorded at page 21 of the report as having stated in evidence that there were signs of sewage, rubbish etc, along the beach and that there also signs of raw sewage. Mr Jones on the other hand, in the portion of his evidence which I have already quoted, stated that on a number of visits there was no sign of raw sewage. A situation had thus arisen in the reported evidence that there was a direct conflict of fact in regard to this question and it is possible to construe the account given by Mr Cassidy of the result of his own visit and observations in the area as corroborating the evidence of Mr Jones and aiding in the contradiction of the evidence of Professor Fitzgerald."

Finlay P went on to comment on the power to inspect as set out in Section 82(5) of the 1963 Act (quoted above) and said (at page 76 of the report):

"It appears to me quite reasonable and logical that the Section should be construed as providing a right of inspection for the person holding the oral hearing so that he would be in a position fully and clearly to understand the evidence which was being given before him and appreciate the nature of the submissions being made and thus faithfully and accurately report on both of these matters to the Minister. It seems to me further, as I have indicated, necessary to construe it in this way and with this purpose only so as to ensure that the decision of the Minister will be one reached by him acting within the bounds of constitutional justice. If it were to be construed as the Defendants contend then the Minister in considering the report of a visual inspection would be acting on what is in fact evidence not disclosed at the oral hearing and which the party concerned had not opportunity to refute or challenge."

The learned President went on to conclude that the inclusion of the account by Mr Cassidy in his report of the results of his visual inspection of the area adjoining the land to be developed was fatal to the validity of the decision of the Minister.

Since the enactment of the Local Government (Planning and Development) Act, 1976, the appeals functions which formally attached to the Minster for Local Government have been transferred to An Bord Pleanala. I do not, however, consider this in any way affects the validity of the principles enunciated by Finlay P in the Killiney and Ballybrack case. It appears to me that the correct interpretation of Section 23 of the 1976 Act is that the Bord may direct either an inspection or an oral hearing. If an inspection is directed then the inspector is to provide An Bord Pleanala with a written report of his inspection.

If, however, an oral hearing is directed, the inspector holding the oral hearing may himself inspect the site so as to be:

"in a position fully and clearly to understand the evidence which was being given before him and appreciate the nature of the submissions being made and thus faithfully and accurately report on both those matters to the Minister." (now the Bord)

However, his primary task is to hold the oral hearing in a fair and judicial manner, to report "faithfully and accurately" to An Bord Pleanala on the evidence given and the submissions made at the hearing, and to make his recommendations. He should not supplement the evidence given at hearing with material drawn from his own inspection of the site.

It seems to me, therefore, the Applicant's claim in the instant case that the inspector should have either provided a separate site inspection report to An Bord Pleanala or included material from such a site inspection report in the report of the oral hearing is incorrect. This ground, also, fails.

LOCUS STANDI AND THE CONSTITUTIONAL RELIEF

I now turn to the final relief sought by the Applicant -- a declaration that Section 14(8) of the Local Government (Planning and Development) Act 1976 is repugnant to the Constitution and void. Earlier in this Judgment I have accepted that the question of locus standi fell to be reconsidered by this Court on account of the specific return of all issues (including locus standi) from the Supreme Court to this Court at the hearing on 29 July, 1997.

As far a Judicial Review of decisions within the planning procedure is concerned. I have found myself both in this case and in previous cases in agreement with the Judgment of the learned Morris P in the instant case which he delivered on the 6 June 1996. It seems to me, however, that the issue of locus standi in challenging the constitutionality of a post-1937 statute is a different matter and one which requires further consideration. In his Judgment of 6 June, 1997 the learned President went no further than to state that "the Applicant company has made out a substantial case both to establish his locus standi and to challenge the constitutionality of this Section". This appears to me to imply that the Applicant has locus standi to obtain leave to seek the relevant declaration, but that the question of locus standi may be revisited at the stage of the full hearing. This is, of course, reinforced by the dictum of the Chief Justice at the Supreme Court hearing referred to earlier. It is also, I believe, reinforced by the fact that both this Court and the Supreme Court have over the years carefully examined the locus standi of those who seek this particular type of constitutional relief.

In the submissions before me this particular issue of locus standi was chiefly dealt with by Senior Counsel for the second, third and fourth named Respondents (ie Ireland, The Attorney General and the Minister for the Environment), Mr Connolly, -- as indeed was to be expected. Mr Connolly submitted that there was a substantial distinction between having sufficient interest to make a particular type of application and establishing that there is an interest which has been materially affected sufficiently to warrant a particular legislative provision being established as unconstitutional at the behest of a particular applicant. This I accept. In dealing with the question of sufficient interest Mr Connolly went on to submit that it was incumbent on the person seeking to have a statutory provision declared to be unconstitutional that such a person should show damage to his or her own material interests which would warrant him or her having a sufficiency of interest to seek this declaratory relief. He argued that a factual basis would have to be established for the Applicant in the present case to satisfy the Court that its constitutional rights had been compromised. He pointed out that the facts as found by the learned Morris P were that the limited liability company in question had a number of members of established environmental interest but that it had no assets and that one of the purposes of its incorporation was to maintain litigation such as the instant case. The Applicant company had no assets and moreover it was not an objector to the original application for planning permission by Treasury Holdings for the development of a hotel and office premises. The company was not incorporated at the time for the making of objections nor at the time of the making of the decision by An Bord Pleanala on 11 December, 1996. On this factual basis he submitted that the Applicant company fell well short of establishing that it had a material interest sufficient to warrant them having a right to challenge the constitutionality of Section 14(8) of the 1976 Act. In making this submission Counsel for the second, third and fourth named Respondents relied on Cahill v Sutton [1980] IR 269, MacMathuna v Attorney General [1989] IR 504 and [1995] 1 ILRM 69 and Madigan v Attorney General [1986] ILRM 136.

Counsel for the second, third and fourth named Respondents also referred to the corporate nature of the Applicant and argued that on the facts the granting of the relevant planning permission would not cut across the rights of the Applicant company to earn a livelihood or to make profit nor did the Applicant company own any property or occupy any premises in the vicinity which were capable of being affected by the planning decision. Mr Connolly went on to refer to the law in regard to constitutional challenges brought by corporate bodies asset out in such cases as PMPA Limited v Attorney General [1983] IR 339, Chestvale Properties Limited v Glacken [1993] 3 IR 35 and Iarnrod Eireann v Attorney General [1995] 2 ILRM 161.

In these submissions Mr Connolly was supported by Counsel for An Bord Pleanala and Counsel for the Notice Party. Counsel for An Bord Pleanala referred also to the decision of the Supreme Court in SPUC v Coogan [1990] ILRM 70 which he distinguished from the present case on the ground that the unborn, whose right to life was protected under Article 40.3.3 of the Constitution, could never be in a position to assert their own rights before the Court. Counsel for the Notice Party laid particular stress on the decision of the Supreme Court in Cahill v Sutton and referred also to the Iarnrod Eireann case.

In reply Senior Counsel for the Applicant, Mr Callan, reiterated that the issue of locus standi had already been decided by Morris P and was therefore res judicata. He emphasised the public interest that was involved and referred to the dictum of the learned McCarthy J in McGarry v Sligo County Council [1989] ILRM 768 where he referred to the development plan as forming an environmental contract between the planning authority, the council and the community.

In his Judgment of 6 June, 1997, Morris P referred in some detail to the question as to whether a limited company had the right "to seek to condemn legislation on the grounds that it is contrary to Article 43 of the Constitution" -- a question which, in his view, was "far from settled". (page 16 onwards of the Judgment). He referred in particular to Private Motorists' Provident Society Limited v Attorney General [1983] IR 339, where Carroll J held that the provisions of Article 43.1.1 of the Constitution could not be construed as acknowledging or conferring a constitutional right on a corporate body, to Chestvale v Glacken [1993] 3 IR 35, which dealt with personal and property rights under Article 40.3 of the Constitution, and also to Iarnrod Eireann v Attorney General [1995] 2 ILRM 161 where Keane J was satisfied that:

"artificial legal entities must also be protected by the law of the State against unjust attack on their property rights"

and that

"it was peculiarly the role of the courts to vindicate the property rights of such entities in accordance with Article 40.3.2."

In the instant case a difficulty may arise in that the Applicant in its Statement of Grounds refers only to Article 43 and not to Article 40.3. In his Judgment in Blake v Attorney General [1982] IR 117 O'Higgins CJ 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 40.3.2 by which the State undertakes by its laws to protect from unjust attack an in the case of injustice done to vindicate the property rights of every citizen."

However, this distinction, in my view, does not in principle impinge greatly on the issue of locus standi.

Essentially it appears to me that there are two separate but inter related questions which arise in regard to the Applicant's locus standi to challenge Section 14(8), firstly, whether a corporate body as such can have the required locus standi and secondly, whether, on the facts, the Applicant company has sufficient interest to give it locus standi for this particular challenge.

The first question is, as was said by Morris P, far from settled. The whole area of locus standi of a party wishing to challenge the validity of an Act of the Oireachtas or the constitutionality of a pre-Constitution statute is surveyed at pages 434-448 of the Third Edition of Kelly's "The Irish Constitution" (Ed Hogan and Whyte). In regard to the specific question of juristic persons the learned author summarised the position (at page 437) as follows:

"Questions of nationality aside, there is no clear authority on whether any distinction is to be drawn, for purposes of locus standi to challenge Acts, between citizens as natural persons on the one hand, and artificial or juristic persons on the other. Such a distinction has been drawn, in the constitutional context, so far only in the area of Article 40.1 and the guarantee of equality before the law, and there seems no reason whatever to extend it to the sphere of judicial review of legislation generally. However, in East Donegal Co-Operative v Attorney General [1970] IR 317 O'Keeffe P adverted inconclusively to the idea when he said that 'artificial persons may possibly not be entitled to rely on the constitutional guarantees' . . . In Private Motorists' Provident Society Limited v Attorney General [1983] IR 339 the Supreme Court reserved the question whether or not an artificial legal person could rely on individual constitutional guarantees (such as the right to private property or free association) but this question may not be of much practical importance as O'Higgins CJ pointed out that an individual shareholder is entitled to complain "If the impugned legislation interferes with any of his personal rights". In many ways, this is curious reasoning. If the Oireachtas elects to vest artificial persons with legal personality to sue and be sued, it is not easy to see why -- at least as a general rule -- such corporate entities should not have standing to rely on the Constitution in an appropriate case . . . Perhaps the decision in Society for the Protection of Unborn Children (Ireland) Limited v Coogan [1989] IR 734 will presage a more relaxed judicial attitude to this question. Here the Supreme Court held that a corporate entity could sue to enforce Article 40.3.3 provided it could show that it had a genuine "bona fide concern and interest" subject always to the reservation expressed by Finlay CJ to the effect that a corporate body could not acquire the necessary standing to sue "merely by reason of its Articles and Memorandum of Association"

In his Judgment in Iarnrod Eireann v Attorney General delivered on the 28 April, 1995 and reported at [1995] 2 ILRM 161 (therefore post-dating the commentary by Kelly, Hogan & White) Keane J comprehensively surveyed the law on this question. In the Iarnrod Eireann case an individual shareholder, Mr Dowling, had been joined as a co-Plaintiff in order to guard against locus standi difficulties. This had previously been done in other cases. However, Mr Dowling was the merely nominal holder of one share in the company. At page 183 of the report the learned Keane J comments on the general position thus:-

"The present case demonstrates that the restriction on the property rights of the citizen which would logically result from confining the protection of Article 40.3 to individual citizens would not necessarily be eased in every case by joining the shareholders as Plaintiffs in the proceedings. If this case were to depend on the locus standi of Mr Dowling it would appear that his property rights as an individual arising out of his ownership of one share in Iarnrod Eireann are of so nominal a nature as not afford him any such locus standi. It is unnecessary at this point to consider how many other corporate bodies would be in a similarly impotent state, although they would clearly include some in the private sector, such as companies limited by guarantee. It is sufficient to say that, although the strategy adopted in the PMPA's case of joining the shareholder as a Plaintiff was accepted by the Supreme Court as obviating any constitutional difficulty that might have arisen in that case, it is of critical importance that the Court expressly refrained from holding that the corporate Plaintiff had no locus standi. In the result, I consider that I am not bound to hold that where as here it is not possible to make effective use of such a strategy, the claim of a corporate Plaintiff must necessarily fail'

The learned Judge went on to accept that Iarnrod Eireann had locus standi to question the validity of the relevant sections of the Civil Liability Act, 1961.

The Supreme Court when dealing with the Iarnrod Eireann case on appeal expressly refrained from dealing with this particular point. However, I find the learned Keane J's survey and analysis both impressive and convincing and I would accept that in principle a corporate body, or juristic person, can possess locus standi to impugn legislation by invoking the relevant provisions of the Constitution.

However, that is not the end of the matter. The second question then arises as to whether the Applicant in the present proceedings has "sufficient interest" in the proceedings in the sense used in Cahill v Sutton [1980] IR 269 to acquire the necessary locus standi. This aspect of the law is again summarised in Kelly's "Irish Constitution" (at page 434-5) as follows:

"The question of locus of a party wishing to challenge the validity of an Act of the Oireachtas (or the constitutionality of a pre-Constitution statute) has received much consideration in a series of recent decisions. Although the law in this area is still evolving and lacks precision, the following principles seem to emerge. First, the courts will only entertain a constitutional challenge where it is demonstrated that the litigant's rights have either been infringed or are threatened. Secondly, the courts will only listen to arguments based on the Plaintiff's own personal situation and will generally not allow arguments based on a jus tertii. However, since 'every member of the public has an interest in seeing that the fundamental law of the State is not defeated' the courts will permit a citizen to challenge an actual or threatened breach of a constitutional norm where there is no other suitable Plaintiff or where the threatened breach is likely to effect all citizens in general."

In Cahill v Sutton the learned Henchy J who gave the main Judgment in the Supreme Court pointed out (at page 283) that:

"While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury to bring proceedings to have a particular statutory provision declared unconstitutional, there are countervailing considerations which make such an approach generally undesirable and not in the public interest."

The learned Judge went on to deal with the interrelationship between the legislature and the courts as follows:

"In particular, the working inter-relation that must be presumed to exist between Parliament and the judiciary in the democratic scheme of things postulated by the Constitution would not be served if no threshold qualification were ever required for an attack in the courts on the manner in which the legislature has exercised its law-making powers. Without such a qualification the courts might be thought to encourage those who have opposed a particular Bill on its way through Parliament to ignore or devalue its elevation into an Act of Parliament by continuing their opposition to it by means of an action to have it invalidated on constitutional grounds . . . it would not accord with the smooth working of the organs of State established by the Constitution if the enactments of the National Parliament were liable to be thwarted or delayed in their operation by litigation which could be brought at the whim of every or any citizen whether or not he had a personal interest in the outcome."

The ratio of the Supreme Court's decision is briefly expressed by Henchy J thus (at page 286):

"The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he has been deemed by the Court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person's interests have been adversely effected, or stand in real or imminent danger of being adversely effected, by the operation of the statute."

The test laid down in Cahill v Sutton has been applied in many subsequent cases. In The State (Lynch) v Cooney [1982] IR 337 at page 369 the learned Walsh J in the Supreme Court stated:

"The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is a greater importance to be attached to the facts because it is only by examination of the facts that the Court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates."

There have, of course, been exceptions as is pointed out in the extract from Kelly's "Irish Constitution" quoted above. However, the exceptions have been in cases where the particular facts justified them. The classic example of this is SPUC v Coogan where the Plaintiff company sought to uphold the rights of the unborn and was therefore acting in a situation where there could never be an individual Plaintiff whose rights were directly affected.

In the instant case the Applicant seeks to rely on Article 43 of the Constitution. While in its Statement of Grounds the Applicant relies on the reference in Article 43.2 to the concepts of social justice and the common good, this must be seen in the context of the main purpose of the Article which is to uphold the right of private property and to forbid its abolition. The Applicant is a company limited by guarantee with effectively no assets. It maintains no commercial or profit making activity which could enable it to acquire property. It owns no property in the area affected by the proposed development -- or indeed anywhere else. It was not an objector to the planning permission at the time nor did it take any part in the oral hearing by the inspector appointed by An Bord Pleanala. It was not even in existence at the time of An Bord Pleanala's decision on 11 December, 1996. At the time of An Bord Pleanala's decision, therefore, the Applicant was neither a property owner in the area effected by the development nor an upholder of social justice and the common good which was affected by that decision. The Applicant cannot be compared with SPUC in the SPUC v Coogan case: it is by no means impossible that a Plaintiff whose actual property interests were affected by this or any other decision of An Bord Pleanala could mount a challenge to the impugned section. In the context of social justice and the common good there were a number of individual objectors to both the planning authority's decision and to An Bord Pleanala' decision who could as Plaintiffs challenge the Section.

The Applicant also cannot be compared with Iarnrod Eireann, the corporate plaintiff in the case of that name. Iarnrod Eireann was definitely and seriously financially affected by the legislation which it sought to challenge.

It does not appear to me that the Applicant has established the proper interest to provide it with locus standi to challenge Section 14(8) of the 1976 Act. This ground for Judicial Review must also fail.

Finally, during the course of the hearing before me, it was suggested by Counsel for the Applicant that I should make an Article 177 reference to the European Court of Justice in regard to the question of the need for an environmental impact assessment. While during the hearing this point was from time to time referred to as "the European point" it appears to me that the environmental impact assessment issue in these proceedings in the main involves the interpretation of domestic law as set out in the 1989 and 1994 Regulations and the planning legislation generally. While I am very conscious of the possible environmental impact of the proposed development I am also conscious of the need to achieve finality in a planning decision such as this. I do not consider that there is any basis for this court to embark on an Article 177 reference.

It is obvious that the individual members of the Applicant company deeply disagree with the decision made by An Bord Pleanala on the 11 December, 1996. Even if this Court were to be satisfied, as was stated in O'Keeffe v An Bord Pleanala, that the case against the decision made by An Bord Pleanala is much stronger than the case for it, the Court cannot permit judicial review proceedings to become what is, in essence, an appeal against the decision of the Bord.

Accordingly I must refuse the Orders sought by the Applicant.