High Court of Ireland Decisions

1. This is an application for leave to seek judicial review by way of Certiorari in relation to a certain planning decision.

2. That dictum has been approved by the Supreme Court and that is the criterion which I have to apply in this particular case.

3. The applicant’s complaints can be divided into a number of parts: firstly in relation to defects in the site notice; secondly, in relation to the positioning of same and thirdly in relation to other matters concerning the site notice itself. There are also a number of complaints of non-compliance with the planning permission which have been set out in the affidavit of the applicants.

4. As I have already indicated non-compliance with the planning permission is not the proper subject matter of these judicial review proceedings. It is open to an aggrieved party to bring the appropriate proceedings under Section 27 of the Local Government (Planning and Development) Act, 1976 and I am making no adjudication on any matters of alleged non-compliance with planning permission.

5. The defects in the site notice were alleged to have been as follows:-

6. That there was no date on the site notice.

7. That there was a misleading reference to a previous application.

8. That there was no reference number and

9. There was no sufficient description of the terraced houses.

10. It is argued cogently by Ms. Walley that these defects had a potential to mislead members of the public.

11. It seems to me that this matter has been clearly decided in the judgment of Kelly J., in the Blessington and District Community Ltd. -v- An Bórd Pleanala [1997] 1 I.R. 273 to which I was referred. There is no evidence that the applicant was misled by any defects in the notice. That is common case; it is uncontradicted. The applicant company was not in existence, and therefore it was impossible for the applicant company to be misled. Nor were the residents, or the people who are now members of the applicant company, misled. They do not make that case; their case is that they did not see the notice that was put up. No prejudice accrued to the applicant or any members of the applicant company by any defects in the notice, and in the absence of such prejudice I do not consider that the applicant has a substantial ground for judicial review.

12. I was also referred to a later passage in the judgment of Kelly J., (at p. 289/90) and it was pointed out by counsel that those observations were obiter as indeed they were. But the necessity of the applicant to show he was misled does form part of the decision of Kelly J., with which I am in full agreement. It would seem to me (even were there not such an authority) to be self evident that you cannot be misled by something that you did not see. That finding covers quite a number of the arguments that have been raised by the applicants. It also covers another matter which was touched upon this morning, that is, the contention that the plans were not available for public inspection during the requisite period when they should have been. I have no difficulty at all in accepting the affidavit evidence concerning what happened when Mr. Ian McDonnell went to the offices of the county council on the 3rd September 1999, concerning what he saw and what he did not see. I am asked to infer that, because certain documents and plans were not presented to him or available for him on the 3rd September 1999, that during the requisite period when they should have been on display to the public, they were not on display. I cannot make such an inference in view of the affidavit evidence that I had this morning that the file was available for inspection during the requisite period (leaving aside the oral evidence, which was merely for clarification purposes).

13. I think the explanation given by the official of the council is more than likely to be correct, and I find as a matter of fact that on the balance of probabilities just insofar as I have to find facts on a threshold, that the file was there for inspection. The inference sought to be raised by the applicants by virtue of what happened on the 3rd September 1999 has been rebutted by such evidence. In any event, I consider that even if the evidence were not forthcoming from the second named respondent’s testimony that neither the actual applicant (nor the members of the company) could have been prejudiced by that because they did not look for the plans during the relevant time. The argument, in my view, is only available for somebody in the real world and not in the abstract. If the file was not there for public inspection (and I am quite satisfied that it was) that fact cannot be availed of by someone who did not go and see whether it was there and accordingly was not prejudiced by its absence in any way. In other words, it seems to me that it is a technical objection only and not a weighty objection in the context of the admitted or proven facts in the case.

14. One of the complaints is in relation to the absence of the date from the notice. There is no requirement that the date be in the notice. The number of houses was, in my view, for what it is worth, (because I am not deciding the case on it’s merits) sufficiently specified by implication in the notice. It seems to me frivolous in the extreme to say, because it did not say 25, it merely said nos. 70 to 94, that the number of houses was not specified. That argument, even if it is technically correct, is trivial and spurious and not real or weighty.

15. Concerning the failure to describe the houses as being terraced houses, that matter is the subject of settled law. The notice would, as is required, have “alerted any vigilant or interested party to what was being contemplated”. That was the view of the criterion adopted by Kelly J., in Blessing & District Community Ltd to which I have already referred, where he in turn referred to a decision of Griffin J., in Monaghan UDC -v- Alf-a-bet Promotion Ltd. [1980] I.L.R.M.64. If the applicant’s members wanted to have further information as to precisely what was envisaged, they could have inspected the plans submitted with the application.

16. Therefore, even if I am wrong in deciding that it was not open to the members to complain about defects in the notice, because they were not misled by them, the applicant is still not entitled to seek judicial review, because I do not consider the points related to the defects in the application are substantial and weighty matters. In coming to that conclusion, it seems to me that I am entitled to have regard to the fact that there was also a newspaper advertisement.

17. The next, and perhaps most important leg of the applicant’s case, concerns the positioning of the site notice. There are some allegations of mala fides on behalf of the respondents, insofar as it said that certain matters were done “in a manner calculated to mislead”. I have to say there is not any evidence before me of mala fides on anybody’s part. Obviously, that is something that I would take into account in the exercise of discretion if other matters were proved.

18. The regulations themselves set out specifically what the requirements are. Article 16 of the Local Government (Planning & Development) Regulations, 1994 provide, “that the notice be securely erected or fixed in a conspicuous position on or near the main entrance to the land from a public road or on any other part of the land or structure adjoining the public road so as to be clearly visible or legible by persons using the public road”.

19. The main entrance to the land from the public road was where the notice was fixed. It seems to me incontrovertible and not subject to argument, that the public road is Esker Road (with a bus on it in the photographs). I have no doubt about that whatsoever, and I believe that, were the notice fixed elsewhere, it may not have been in compliance with the regulations. The notice was affixed, in my view, beyond argument, “in a position on or near the main entrance to land from the public road”as required by the regulations. That involves saying what constitutes the public road and again I think the applicant in this case was under, or perhaps still is under, a misconception as to what is the public road. As far as the road is concerned, it is again clear beyond any doubt, that the road includes the footway. It includes the footpath. The measurements taken and proffered by the applicant were on a different basis. They considered the road to be the road surface without including the footpath. The footway, as it is called in the Road Traffic Act, 1961 and adopted by Section 2 of the Local Government (Planning and Development) Act, 1963, is part of the road. I do not think there is any legal ambiguity about that and I do not think the matter is arguable; I think it is perfectly clear. I think to some extent, in that part of their argument, the applicants were going on a misconception.

20. As to whether the notice was in a conspicuous place, it seems that the only argument that can be advanced against that is, that because there were other notices there, a person might have missed them. Again, in my view, as a finding on the threshold, the place where they were affixed, the pillar itself, was screamingly obvious and screamingly conspicuous and could not be missed by anybody. That is not seriously in dispute. The argument is, that the presence of other notices affixed on the said pillar, might have rendered the relevant notice inconspicuous, or more accurately, it might have made the place inconspicuous. I cannot go along with that argument and I do not think there is any reality in it. There might have been a reality in it if somebody said “I saw all those notices, but I did not think they affected me”. There has been no such evidence.

21. The notice was in a prominent place. There is evidence in the respondent’s affidavit that some people saw it. Unfortunately, none of the people who made up the applicant company saw it. That, in my view, was not due to any act or default of the respondent. It was there to be seen and it complied with the requirements of law. It complied with specifically, the requirements of the regulations.

22. There is yet another argument, which also I think is spurious, and that is that the notice should have been visible from the roadway by people passing by in a car. I accept the argument advanced by Mr. Brady, that it is sufficient that if it is visible to people on the footpath and, it seems to me, quite unreasonable to say that it should be visible to people who are driving by in a motor car. I think that would be a quite unreasonable way to read the section. I have already dealt with the question of legibility; it is legible from the footpath but not from the road.

23. Concerning the applicant’s claim, it seems to me, on the merits of the case, they have failed to show me that there is a substantial and arguable case to be tried. They have not attained that threshold. Since a considerable amount of argument was addressed to the question of locus standi , however, I think it is appropriate that I should give my view. In my view, the applicant does not have locus standi in this particular case. I say so for a number of reasons. I agree with the applicant’s counsel, Ms. Walley, that it would appear that there is a question of mixed law and fact involved in locus standi , and that, (as has been pointed out by a learned author [1998] S I.P.E.L.J. 131), it seems that the distinction between the merits and locus standi have been elided somewhat by the judgment of the Supreme Court in Lancefort Ltd. -v- An Bórd Pleanala [1998] 2 ILRM 401. That seems to be, to me, implicit or almost explicit, in the majority judgment in the Supreme Court so I reject Mr. Brady’s submission in that regard and I consider that the merits do impinge somewhat according to the Supreme Court in the question of locus standi.

24. Assistance can be gleaned from the minority judgment of Denham J., in Lancefort Ltd. as well as from the majority judgment. The question of locus standi or having sufficient interest arose in the context of public interest. The decisions make it clear that it grew in an analogous form to the right of individuals in constitutional actions. It seems to me that the question of locus standi of the company is inextricably bound up with the public interest requirement. I think that is very clear in Denham J.’s judgment. She mentions it on a number of occasions in the judgment. She says at p.417/8:-

25. There are a number of criteria in deciding whether a company has locus standi . Just because a company is formed after the event complained of, it is not of necessity or ipso facto, shut out from having locus standi . That fact, however, is one of a number of factors to be taken into consideration. In this case, a considerable weight should be attached to that factor because it was only on the 25th August 1999 that the company was incorporated; some weeks after, not only the grant of the planning permission (29th July 1999), but the commencement of the works themselves. That is disclosed in the affidavit, and while the Memorandum and Article of Association is silent, that date is stamped on it. The date of formation of this company is of relevance in that context. It would be idle to argue (and it has not been argued) that one of the primary, if not the primary reason, why this company was set up concerned the present litigation. It is deposed to that there are other legitimate objects involved, such as the good regulation of the area. The word “catalyst” has been carefully chosen in the affidavit filed on behalf of the applicant to describe the effect of the litigation.

26. The age of the company is something to be taken into account; but it is not an absolutely conclusive factor. I am entitled, according to Lancefort Ltd. , or perhaps obliged, to have regard to the objects of the company. While it is not altogether the determining factor, it is relevant to note that the objects of the company do not have a public dimension. It is not argued, nor indeed could it be, that this case involves people trying to vindicate public rights. The company is not trying to vindicate public rights, it is trying to protect private rights and the question of locus standi , in my view, is inextricably bound up with that.

27. I am also entitled to have regard to the bona fides of the company. I have no doubt whatsoever of the bona fides of the members of the company. The issue in this case is whether the respondents did not comply with the law and that therefore the applicants were prejudiced.

28. Concerning the question of locus standi there is a clear distinction between the protection of public rights and the protection of private interests. While I can look at the bona fides of the company and its members and, as I say, I do not doubt them for one second as being decent people, concerned with their own rights and interests in a legitimate fashion but that does not give the company property rights. If I can “lift the veil”, as has been argued, that does not allow me to find that, because the members of the company have property rights that, therefore, in some way the company has a property right in this matter. In my view it does not.

29. It has no property right in this matter and it has no public interest right. It came into being long after the planning permission was given. In my view, the company does not have the requisite locus standi . I only say that because arguments and serious arguments were advanced to me in relation to this quite important question. As I have already indicated, on the merits of the case, the applicants have failed to reach the requisite threshold.