High Court of Ireland Decisions

1. What has come before this Court is a preliminary question as to whether an application on notice for leave to seek Judicial Review of a decision of An Bord Pleanála to grant a planning permission is now out of time having regard to the provisions of Section 19(3) of the Local Government (Planning and Development) Act, 1992 amending Section 82 of the Local Government (Planning and Development) Act, 1963. In brief, what happened was that a planning permission was granted by South Dublin County Council and an appeal was brought to An Bord Pleanála by three objectors, one of whom is the proposed Applicant in the intended Judicial Review proceedings. An Bord Pleanála upheld the decision of South Dublin County Council and the Applicant claims that the decision is invalid and can be judicially reviewed. He brought the motion on notice required under the new procedure and served it on Alan McGrath as representative of Shamrock Rovers Football Club, the developer and South Dublin County Council, the Planning Authority but the motion was not served on the two original co-appellants on the appeal to An Bord Pleanála. They are waiving any objection to non service and are not interested in participating in the proceedings. Furthermore, both of them have sworn affidavits stating that the substantive point at issue in the proposed Judicial Review application does not concern them and does not relate to any of the submissions they made at the appeal before An Bord Pleanála. Nevertheless, the Respondent and the two Notice Parties are all arguing that the application for Judicial Review is out of time and cannot be heard because those two co-appellants on the appeal to An Bord Pleanála were not served with the application for leave to bring the Judicial Review proceedings within the prescribed statutory time. They base this argument on the following:-

2. The Respondent and the Notice Parties contend that as the two co-appellants were parties to the appeal to An Bord Pleanála within that definition the motion for leave to bring Judicial Review proceedings was not properly constituted at the end of the time limit in the absence of service on them.

3. Counsel for the Applicant, Mr. Gallagher on the other hand says that this is a misreading of the statutory requirements and an over literal interpretation of the Supreme Courts' decision in the K.S.K. Enterprises case. He points out that under the inserted subsection (3A) of Section 82 of the 1963 Act, a person is prohibited from questioning the validity of a decision of An Bord Pleanála on any appeal "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)". The Oireachtas, therefore, in enacting the 1992 Act was not intending to introduce some new kind of Judicial Review application in relation to planning matters different from Judicial Review applications in relation to all other matters. It was merely altering the procedures and requirements for obtaining leave. Prior to the Act, if Judicial Review proceedings had been brought in identical circumstances to this case, An Bord Pleanála would undoubtedly be a necessary Respondent and Alan McGrath and South Dublin County Council would be necessary Notice Parties but it would have been totally unnecessary and indeed inappropriate to join as Notice Parties the original co-appellants who had no interest in bringing Judicial Review proceedings. Mr. Gallagher argues that it was never the intention of the 1992 Act that parties who would not have been necessary parties under the old procedure had to be added in as parties under the new procedure. Indeed, such a contention would run counter to the purpose of the 1992 Act which, as the Supreme Court pointed out, was to severely limit the right to Judicial Review and for all practical purposes to discourage it. It is unthinkable that the Oireachtas would ever have contemplated that the 1992 legislation would have had the effect of adding unnecessary parties. Although in this particular case the proposed additional parties have no desire to participate that might not be the case in other instances. One could have a situation where there might have been a hundred objectors who all appealed and they might all demand to be heard at Judicial Review proceedings if they were brought in as Notice Parties. This would delay the Judicial Review proceedings and defeat the purposes of the 1992 Act. Unless I am compelled to interpret the statutory provisions in the manner contended for by the Respondent and the Notice Parties, I should not do so. Counsel for the Respondent and the Notice Parties fully concede that there is no rational purpose in having the co-appellants as parties. It is simply a technical objection they are taking to the application.

4. I am firmly of the view that I should not regard the K.S.K. Enterprises Limited case as authority on this point. I have carefully read and reread the judgment of Finlay, C.J. and I do not believe that the problem which has arisen in this case was ever contemplated by the Supreme Court. What the Supreme Court was referring to was the relevant parties to the Judicial Review proceedings and, in my opinion, it was far from the Court's thinking that irrelevant parties would have to be served. Having regard in particular to the fact that the relevant statutory provision specifically refers to Order 84 of the Rules of the Superior Courts, I am satisfied that the word "parties" should be interpreted as meaning relevant parties.

5. I therefore hold that the application for leave is properly constituted and can be proceeded with accordingly.

6. Having regard to the view which I have taken, the question of whether the delay in service is cured by a waiver of any objection on the part of the party who ought to have been served does not arise. But having regard to the Supreme Court's view as to the importance of providing certainty in relation to the time limits in ease of the person who has been granted a planning permission particularly, I am inclined to the view that relevant parties must be served within the time and that a waiver of objection afterwards does not operate to prevent the statute bar but I do not find it necessary to make any definitive decision on the point as it does not arise in the light of the interpretation of the section which I have adopted.