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Cite as: [2000] IEHC 123

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Seery v. An Bord Pleanála [2000] IEHC 123 (2nd June, 2000)

THE HIGH COURT

No. 1999 J.R.448

BETWEEN

GERARD SEERY AND YVONNE SEERY

APPLICANTS

AND

AN BORD PLENALA

RESPONDENT

AND

OFFALY COUNTY COUNCIL

FIRST NAMED NOTICE PARTY

AND

NATHY McINTYRE, JARLAITH McINTYRE AND CHARLES BAILEY

TRADING AS CARRICKHALL DEVELOPMENTS

SECOND NAMED NOTICE PARTY

AND

MARTIN KEARNEY

THIRD NAMED NOTICE PARTY

JUDGMENT of Finnegan J delivered the 25th day of January 2001

1. In this matter I have already granted to the Applicants leave to apply for Judicial Review being satisfied that they had established substantial grounds within the meaning of the Local Government (Planning and Development) Act 1963 as amended. The second and third named Notice Parties thereupon sought an undertaking as to damages from the Applicants and I adjourned the matter for argument on that issue.

2. The approach which the Court should adopt in exercising its discretion as to whether an undertaking as to damages should be required under the Rules of the Superior Courts Order 84 Rule 20 sub-rule (6) was considered by Laffoy J in Broadnet Ireland Limited -v- The Office of the Director of Telecommunications Regulation and Eircom plc unreported 13th April, 2000 in the following terms:-

“In considering whether or not to exercise the discretion under sub rule (6) to require an undertaking as to damages as a condition of the grant, or the continuance, of leave to apply for Judicial Review, the essential test is whether such requirement is necessary in the interests of justice or, put another way, whether it is necessary to mitigate injustice to parties directly affected by the existence of the pending (Judicial Review) application. If, in substance, the existence of the application has an affect similar to the affect of an interlocutory junction in private litigation - that activity which would otherwise be engaged in is put “on hold” pending final determination of the controversy, with resulting loss and damage - in my view, it is appropriate for the Court to adopt the approach traditionally adopted in private law litigation in determining whether an interlocutory injunction should be granted or not. The High Court should require an Applicant to give an undertaking to make good that loss and damage if it is ultimately found that the applicant’s case is unsustainable, provided there is no countervailing factor arising from the public nature of the jurisdiction it exercises under Order 84 which precludes it from adopting that approach.”

3. I am satisfied that the granting of leave in this case has the like effect upon the Notice Parties of an interlocutory injunction: it would be commercial folly to embark upon the development envisaged by the Planning Permission sought to be impugned while these proceedings are pending. Of necessity the development must be put “on hold” pending final determination of these proceedings. This may well result in loss and damage to the Notice Parties. It is then necessary to consider whether this application for Judicial Review has the necessary public nature which would justify the Court exercising its discretion in favour of the Applicants in not seeking an undertaking as to damages. The whole tenor of the Applicants’ objection to the proposed development before the planning authority and An Bord Plenala and on the application for leave before me related to a small portion of the proposed development which would overlook the applicants’ dwelling house. In these circumstances it seems to me that this application does not have the necessary public nature to constitute a countervailing factor such as to justify my exercising my discretion in favour of the Applicants and not seeking an undertaking as to damages.

4. Insofar as it has been submitted on behalf of the Applicants that a distinction must be drawn between applications for Judicial Review where the provisions of the Local Government (Planning and Development) Act 1992 Section 82 (3a) and (3b) apply and other applications for Judicial Review I can find no basis for drawing such a distinction either in the wording of the Act or in the Rules of the Superior Courts. Order 84 Rule 20 (6) of the Superior Courts Rules applies to all applications for Judicial Review. On an application for interlocutory relief by way of injunction the Court would not attempt to resolve conflicts of fact or questions of law or otherwise evaluate the strength or weakness of the respective positions of the parties: Westman Holdings Limited -v- McCormack (1992) 1 IR 151 . As the existence of an application for Judicial Review is of the like effect in the present case to an interlocutory injunction in considering an Application for an undertaking as to damages upon leave to apply for Judicial Review being granted the Court should apply the same principles and adopt the same approach as on an application for an interlocutory injunction and therefore should not have regard to the relevant strength of the cases of the respective parties. There is nothing in the Local Government (Planning and Development) Act 1992 Section 82 (3a) and (3b) or in the Rules of the Superior Courts which would require the Court to adopt a different approach where the application for leave is in relation to a planning matter. In these circumstances it is appropriate in the present case that I should require of the Applicant an undertaking as to damages as a condition of their continuing the application for Judicial Review.

nd(JR448)JF