High Court of Ireland Decisions

O’Shea v. Kerry County Council & Ors [2003] IEHC 51 (01 September 2003)
 
THE HIGH COURT

[Record No. 2003/129JR]

BETWEEN

MARGARET O'SHEA

APPLICANT

AND
THE COUNTY COUNCIL OF THE COUNTY OF KERRY

RESPONDENT

AND
ELMPATH LIMITED AND ELMPATH HOLDINGS LIMITED

NOTICE PARTIES

JUDGMENT of Mr. Justice Aindrias O Caoimh delivered the 1st September, 2003.

The applicant resides at Greenane, Kenmare, County Kerry and describes herself as a widow and seeks the following reliefs:

1. An order by way of certiorari quashing the grant of planning permission which issued by the respondent on the 19th November, 2002.

2. A declaration that the respondent acted ultra vires in deciding to grant and then subsequently granting the aforesaid planning permission to the first named notice party in circumstances where the respondent knew or ought to have known that the site notice was not erected or fixed on the lands, the subject matter of the application in accordance with art. 14(1)(b) of the Local Government (Planning and Development) Regulations, 1994 or at all.

3. A declaration that the respondent acted ultra vires in granting the aforesaid planning permission to the notice party in circumstances where the respondent

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knew or ought to have known that the site notice was not maintained in position on the said lands for a period of at least one month after the making of the planning application in accordance with the provisions of arts. 16(1), (4) and (5) of the Local Government (Planning and Development) Regulations, 1994.

4. A declaration that the respondent acted ultra vices in granting the aforesaid planning permission to the notice party in circumstances where the respondents knew or ought to have known that the position of the site notice on the land or structure concerned was shown in a manner that did not comply with the provisions of arts. 16 (1) to (5), where the site notice was positioned (and shown to be so positioned on the plan accompanying the planning permission) so as it was not easily visible and legible to persons outside the land or structure or was not securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from the public road, or in any other part of the land or structure on the public road, so as to be easily visible and legible for persons using the public road.

The grounds upon which the application is sought include the following:-

1. The notice party Elmpath Limited applied for a planning permission to the respondent for permission to build 29 "ancillary" holiday homes with a proprietary treatment system at Greenane, Templenoe, in the County of Kerry in December, 2001.

2. Article 14 (1) (b) of the Local Government (Planning and Development) Regulations, 1994 (which apply herein) provided that, not later than the

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making of the planning application, the applicant give notice of the application by the erection and fixing of a site notice in accordance with art. 16.

3. Article 16.1 specifies that "A site notice erected or fixed on any land or structure pursuant to art. 14(1)(b), (a) shall be painted or inscribed, or printed and affixed on a durable material, and (b) subject to sub-article (2), shall be securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road."

4. Article 16(2) provides "where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure."

5. Article 16(3) provides; "the position of the site notice on the land or structure concerned shall be shown on a plan accompanying the planning application."

6. Article 16(4) provides that the contents of the site notice shall indicate that the planning application may be inspected at the offices of the planning authority.

7. Article 16(5) provides that a site notice shall be maintained in the position on the land or structure concerned for a period of at least one month after the making of the planning application and shall be renewed or replaced if it is removed or becomes defaced or illegible in that period.

8. The first named notice party herein failed to provide a site notice in accordance with arts. 14 and 16 of the Regulations of 1994. In particular the site notice was positioned in such a way that it was not in a conspicuous position or near the main entrance to the land or structure concerned from a

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public road, or in any part of the land or structure adjoining the public road so as to be easily visible and legible by persons using the public road and further, even if an argument can be made that the land or structure to which the planning application related did not adjoin the public road, the site notice was not erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible for persons outside the land or structure as provided by art. 16(2).

9. The positioning of the said notice was marked on a plan accompanying this planning application and was shown to be at a point 23 metres from the nearest boundary and hundreds of yards from the public road.

10. The said site notice was not close to any public road and was not easily visible or legible by persons using the public road or in the alternative was not easily visible or legible by persons outside the land and structure.

11. In the premises the notice party failed to erect or fix a site notice on the said lands in accordance with art. 14.1 (b) of the Local Government (Planning and Development) Regulations or at all.

12. There was a complete failure to comply with the provisions of art. 16(5).

13. The respondent failed to request or require that the notice party erect and fix a proper site notice in accordance with arts. 14 and 16 on the lands, the subject matter of the planning application.

14. Notwithstanding that there was a clear and flagrant breach of art. 14(1)(b) and art. 16. (1) to (5) of the Local Government (Planning and Development) Regulations, 1994 and further notwithstanding that no request was made by the respondent to the notice party to erect and fix the said notice on the said lands in accordance with the provisions of arts. 14 and 16, the respondent

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proceeded with the planning application which culminated in the grant of a planning permission to the notice party in respect of the said lands on the 10 November, 2002 which said decision was dated the 17th October, 2002.

15. The applicant herein is a neighbouring landowner to the said land. The sole access to these lands is provided by a right of way granted by the applicant's son, Donal O'Shea, to the company known as Trentdale Limited which is the owner and operator of the Ring of Kerry Golf Club and its assigns.

16. The said right of way does not confer any rights to exercise the right of way in respect of the building of houses of the nature, type and amount that is envisaged and provided for in the said planning application and planning decision.

17. The applicant was completely unaware of the planning application because the mandatory provisions stipulated by the 1994 Regulations had not been complied with.

18. The applicant would have objected to the said application.

19. In the premises the applicant contends that the site notice was positioned so as to prevent persons interested in objecting to the planning application or making representations in respect of the said planning application from so doing, and the position of the said site notices was meant to defeat the intention of the 1994 Regulations.

20. The applicant and other persons in the locality have no right of access onto the said lands which are private lands and the applicant did not see any such site notice.

21. In the premises, the first named notice party's failure to erect a proper site notice on the lands, the subject matter of the planning application, and the

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respondent's failure to require a site notice to be erected, the respondent's failure to halt the planning application, their decision to continue with the planning application and their decision to grant planning permission and notify the grant of planning permission in respect of the said lands was unlawful, ultra vires and by reason thereof the applicant had been wrongfully denied her right to make submissions to the respondent on the said planning application and further has been denied her rights to appeal the respondent's grant of planning permission.

22. The decision by the respondent to continue with and conclude the application for planning permission at a time when it was aware that no appropriate site notice had been erected or fixed to the site is in breach of arts. 14.1 (b) and 16(1) to (5) of the 1994 Regulations (the said breach being identified in the plans accompanying the planning application) was ultra vires, void and wrong in law and grossly prejudicial to the rights of the third parties, such rights having been clearly acknowledged by the Oireachtas when passing into law the 1994 Regulations and in particular arts. 14 and 16 dealing with the erection and fixing of site notices on lands the subject matter of planning applications.

23. The applicant is a person substantial in the bringing of this application being a neighbouring landowner whose rights and interests are being affected by the said decision (including a decision to grant permission where access is specifically identified as coming over a right of way granted by the applicant to Trentdale Limited being the owner of the Ring of Kerry Golf Club whose assign it must be assumed is the first named notice party. The applicant has in the premises substantial grounds for contending that the decisions are invalid and ought to be quashed. The applicant further states that she shall if

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necessary rely on the provisions of s.54 (4) (c) (ii) of the Planning and Development Act, 2000 and shall seek the liberty of this Court to extend the time for the bringing of this application.

24. It is stated that the applicant was wholly mislead and deceived by the nature and positioning of the site notice and there is in the premises good and sufficient reason for extending the time for the bringing of this application.

Affidavits have been sworn by the applicant in verification of the statement of grounds of application herein. In her affidavit, the applicant states that she owns certain lands situated at Greenane, Templenoe, Kenmare, County Kerry. A map of these lands is held and exhibited by her and it appears that the lands in question are near to the lands the subject matter of the proposed development herein but separated from same by the Ring of Kerry Golf Club. She says that a number of years ago, Trentdale Limited a company involved in the development of a golf course, specifically the Ring of Kerry Golf Course, purchased certain lands from her late son, Donal for the development of a golf course. She states that as part of the overall agreement between her son and the company he granted a right of way over part of the land which she now owns. Trentdale Limited are the owners and operators of the golf club. The impugned decision refers to the construction of 29 holiday homes and the installation of a proprietary sewage system at Greenane, Templenoe, Kenmare. She says that the right of way to this development is the same right of way which her son granted to Trentdale Limited. She says that had she been aware of the planning application she would have objected to same and would have appealed the grant of any planning permission to An Bord Pleanala. However she admits that at no stage was she aware of this planning application. She says that she and her neighbours

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were not aware of the planning application. It appears that the site notice in question was erected on the subject lands but it is contended that it was not erected at or near the boundary of the proposed development and that it was not erected or maintained in a position that was clearly visible and could be read by persons outside the land or by persons using the public roadway. The applicant in her affidavit says that she believes that the intention of the notice party herein was to deny the rights of objectors who might have legitimately objected to the development. She says that she only became aware of the planning permission when neighbours told her on or about the 30th January, 2003 that the same had been granted. She says that in these circumstances she was unable to bring these proceedings within two months of the date of the grant of planning permission or the date of notification of the grant of planning permission. She contends that she had at all times substantial grounds for opposing the planning permission and she contends that she has a substantial interest in bringing this application. The applicant relies upon the fact that the site notice identified on the planning application appears to indicate that it was positioned within the area of the proposed development and was 23 metres from the nearest boundary. She contends that the respondent should have required the proper positioning of a proper and adequate site notice but failed to do so. She says that no such site notice was provided in the manner as laid out in the regulations. The applicant contends that no other site notice was erected. She states that she is extremely aggrieved by the manner in which this application was made and furthermore, by the manner in which Kerry County Council decided to grant planning permission in the light of clear evidence that the site notice requirements had not been complied with. She says that the place where the site notice was erected cannot be seen from the public road or cannot be seen or read from adjoining lands and was certainly not seen by her

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neighbours. She says that the development is a highly significant development to which she would have strenuously objected.

An affidavit has been sworn by Mr. Gerard O'Keeffe, an engineer on behalf of the applicant, in which he indicates that he inspected the planning file in the office of the respondent. From an inspection of the drawings accompanying the application he says that it showed that the location of the planning notice was north east of holes numbers two, ten and eight on the existing golf course and was within the area of the proposed development and the planning notice was located 27 metres from the edge of the site boundaries. He says that the site location map lodged showed the location of the planning notice as being within the area for the proposed development and being 28 metres from this boundary. He says there was no other site notice on any of the drawings submitted. He refers to the fact that there was a revised planning notice placed in the Irish Examiner on the 14th February, 2002. Mr. O'Keeffe says that if the site notice was placed as per the drawings submitted, then the notice was not clearly visible and legible by persons outside the boundaries of the proposed development.

Further affidavits have been sworn on behalf of the applicant by her solicitor Colm Murphy. In his affidavit he indicates that the applicant contacted him on the 30th January, 2003 when she had discovered that a planning permission had been granted by the respondent herein. He indicated that the steps taken by him included an examination of the file and writing of letters to Trentdale Limited, Hayes and Sons, Solicitors, whom he knew acted for Trentdale Limited, and to the Planning Section of Kerry County Council and to Elmpath Limited. He retained the services of Mr. O'Keeffe, the engineer, to inspect the planning file and to ascertain the distance between the planning notice and the boundary of the area of the proposed

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development. Mr. Murphy indicates that he carried out a company search of Elmpath Limited and learned that it was registered in the United Kingdom and had been dissolved in 1998. He indicates that a further search noted that the only company still in existence that included the words Elmpath in its title was a company registered in Ireland under company registration number IR275193. The name of this company was Elmpath Holdings Limited. He indicated that he does not know and cannot tell from the planning file whether the correct notice parry in this case is Elmpath Limited or Elmpath Holdings Limited or both. He says that if the name of the company used for the planning application was the name of a dissolved company with whom the actual applicants or the beneficial owners of the land had no knowledge or contact than the entire planning application and consequently the decision should be void. He says that from enquiries that he has made he has not met one single person who was aware of the planning application until well after the decision had been granted.

An affidavit has been sworn by Mr. Dominic Reid the company director of Elmpath Holdings Limited, who resides in London, England. In his affidavit Mr. Reid points out that the applicant's challenge to the respondent's decision was made over eighteen weeks after the original decision on the 17th October, 2002. Mr. Reid indicates that site notices were erected at the time the application was submitted to Kerry County Council. He says that one notice was identified on the site plan and the other was placed at the main road boundary which is some three quarters of a mile from the site and was not covered by the same site map. He says that this latter site notice was erected just west of the stone wall entrance to the golf club and was clearly visible from the road. He states that the site notice was erected by Mr. Peter Kopik, consulting engineer. The second site notice was placed beside the entrance to the golf club as it was deemed the most appropriate location fronting the main road. He says

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that the signs remained in situ for at least three months and were replaced on the 14th February, 2002 when revised notices were advertised. He says that these revised notices were necessary due to an error with the townland name on the original application. He says consequently it was necessary to place a fresh notice in the newspaper on the 14th February, 2002 and both site notices were replaced with amended notices. Mr. Reid says that planning inspectors from the respondent County Council visited the site on at least five occasions and advised as to where the site notices should be located. The notices were placed in accordance with their advice. The planning application was extensively discussed with public representatives, auctioneers and other people in the area and the plans were available for inspection in the club house of the golf club. He says that the proposal for the construction of the holiday homes was marketed throughout 2002 and he believes that it was common knowledge throughout the area. The proposals were also advertised on the golf club's website throughout 2002 when the application was being considered and a substantial database with inquiries was compiled. Mr. Reid contends that a wide number of other persons in the County were aware of the application and the decision was published in The Kerryman at the time. He said that it received headline coverage in the newspapers planning section and it generated a lot of enquiries and comments at the time. He says that all local representatives and T.D.s were aware of the application as was Dromquinna Manor Hotel which is based one mile from the golf club entrance and with whom there were various meetings concerning the joint marketing of the site.

Mr. Reid points out that the golf club's vice captain is married to the applicant's cousin and was aware of the application from the outset and spent a lot of time negotiating with the applicant's neighbours on behalf of the notice parties for an

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alternative access for construction traffic over adjoining lands. He points out that these negotiations involved a number of neighbours of the applicant including the Falveys who are first cousins of the applicant. He then points out that these are all neighbouring landowners of the golf club. He says that all the local auctioneers were informed of the planning application, as were some of the contractors who would be interested in the construction work. Mr. Reid points out that the application for planning permission took eleven months to go through and, during this period from the date of the application until the end of March, 2002 a sign was placed at the front entrance to the golf club. He expresses the belief that the applicant would have had to pass this sign on a large number of occasions when she left her residence between December, 2001 and March, 2002. He says that in the circumstances, if the applicant failed to notice the sign, this was due to her own inadvertence. Mr. Reid points out that he met with Mr. O'Keeffe the applicant's engineer and his own engineer in May, 2002 when the proposals of the planning application were discussed. He contends that a large number of people in the county were aware of the application. With regard to the true identity of the applicant company he points out that the applicant's name is Elmpath Holdings Limited an Irish registered company rather than Elmpath Limited but that as a result of a mistake the application was inserted in the name of Elmpath Limited.

Mr. Reid contends that should this court grant leave to the applicant to extend time to challenge the decision of the respondent, the notice party would suffer considerable prejudice. He indicates the steps taken to date in regard to the development of the site.

Mr. Reid points out that significant bank loans have been drawn down by the development company and associated companies and the directors in order to fund the

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development. He says that any delay in the development would have significant financial implications for the notice party and for the directors of the company. Secondly he says that in order to comply with the Finance Acts governing the scheme for the development of holidays homes, it would have been necessary for the entire development to be finished by December, 2004. He says that this is the latest date for completion. Any delay to the work will cause severe prejudice to the notice parties in seeking to complete the development prior to that date. He says that the notice party could be forced into receivership if the scheme is not completed by December, 2004. Much of the affidavit of Mr. Reid is taken up with matters which are argumentative in nature and I do not propose to refer to same. Mr. Kopik has sworn an affidavit in which he indicated that in August, 2001 a meeting was held with planners of the respondent county council at which the signage for the planning application was discussed. He says that to avoid any confusion, the planners from the respondent counsel agreed on the position of the planning application notice directly on the development site in question. He says that this was identified on the 1 to 500 site plan for the development. He says that he put up this notice in the agreed location. He says that he also placed another notice on the main road boundary immediately west of the ring of Kerry Golf Club main entrance which was clearly visible from the road. He exhibits a copy of a photograph of the front of the golf club and has indicated by means of an X where he says he placed the site notice. Mr. Kopik points out that due to an error with the townland's name on the original application, it was necessary to place a fresh notice in the newspaper on 14th February, 2002 and, for this purpose, he replaced both site notices with the correct amended notices required under the new application. Mr. Kopik has exhibited a copy of the site notices which besides containing the clerical error with regard to the name of the company Elmpath

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Holdings Limited indicates that the application was for the erection of 35 ancillary holiday homes.

The applicant has sworn a supplemental affidavit in which she addresses the affidavit of Mr. Reid. She concedes that she never saw the site notice that was allegedly erected at the main road boundary. She says that the gate at the main road boundary is the way into her house. She passes this way on a regular basis and on at least a number of occasions each week. She says that she never saw the site notice that was allegedly based there. While this affidavit is essentially argumentative in nature, the applicant again indicates her lack of awareness of the planning application and contends that she is not aware of any person who was aware of the planning application while it was going on. Again the applicant contends that had she been aware she would have made a planning objection to the proposal and would have appealed the matter to An Bord Pleanala in the event that the permission was granted by Kerry County Council. She concedes that the use of an incorrect name did not confuse or mislead her during the course of the application as she was simply not aware of the application. Had she been aware of the application she states that her inquiries would have lead her to discover the use of the incorrect name and she would have used this as part of her objections. A number of affidavits have been sworn by other residents in the area who indicate that they did not observe this notice at the entrance to the golf club and that they pass that way on a regular basis. They contend that no planning notice was ever erected.

A further affidavit has been sworn by Mr. Reid which is entirely argumentative in nature.

On behalf of the notice parry an affidavit has been sworn by Mr. Ian Morton of Garranes, Bonane, Kenmare, Co. Kerry. He says that he is a green keeper for the

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Ring of Kerry Golf Club. He says that he was responsible for the maintenance and upkeep of the notice which was located at the entrance to the golf club. He says this was slightly to the west of the stone wall entrance and was clearly visible from the road. He points out that this site notice remained in situ for a period of three months and was replaced on 14th February, 2002 when revised notices were necessitated owing to an error in the description of the townland's name on the original application. He confirms that the revised site notice was erected and maintained in this position until the end of March 2002.

Submissions.

On behalf of the applicant it is submitted by Mr. James Macken S.C. that the site notices in question did not comply with the requirements of the planning regulations. In particular reference is made to precise terms of the regulations and the fact that by reference to the location of the notice on the site of the development it would have been illegible from the boundary of the said lands. On this basis it is contended that the notice in question was insufficient to comply with the provisions of art. 16 of the 1994 regulations. It is submitted that the applicant has shown a certain interest and substantial grounds.

On behalf of the respondent council it is submitted by Mr. Dermot Flanagan S.C. that the role of the county council is to act as a watchdog and not as a bloodhound. It is submitted that the applicant must discharge the requirement to show her potential interest and substantial grounds. It is submitted that the applicant cannot have been mislead by the terms of the notice in question insofar as she never saw the notice in the first place. It is submitted that the purpose of a site notice is to put the public on inquiry. It is submitted that the site notice such as that erected on the lands

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to be developed would have put someone on notice of inquiry presuming they saw the notice. Counsel refers to the decision of Kelly J. in Blessington and District Community Council v. Wicklow County Council [1997] 1 I.R. 273 in which criticism of the newspaper notice was raised. In that case Kelly J. stated that the notice would alert any vigilant interested party to see what was contemplated. He continued:

"If they wish to have further information as to precisely what was envisaged, they could have inspected the plans submitted with the planning application."

Further reference is made to the fact that in that case Kelly J. observed that the ignorance of the applicant and its supporters was not caused or contributed to by the Act wrongful or otherwise of the developer. They simply never saw the newspaper notices in question. Mr. Flanagan furthermore refers to the decision in the case of Springview Management Company Limited v. Cavan Development Limited [2000] 1 ILRM 437. In that case O'Higgins J. observed that a notice in respect of which complaint has been made in relation to its detail, would have alerted any vigilant or interested party to what was being contemplated and that any person, who wanted further information as to precisely what was envisaged, could have inspected the plan submitted with the application.

It is submitted that the applicant in the instant case has not discharged the requirement of showing substantial grounds. Counsel further refers to the requirement in s.50 of the Act of 2000 that the applicant show a substantial interest. It is submitted that this is something that the applicant has failed to show. Counsel refers to the fact that the applicant did not see either notice and that both statutory notifications passed her by. It is submitted that she relies on ex post facto non compliance. Counsel refers to the fact that the applicant complains that she is

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aggrieved by the manner in which the application was made and would have objected strenuously to the application had it been known to her.

On this basis it is submitted that the applicant has failed to show anything more than the interest of the general member of the public and has in particular failed to show a substantial interest in the matter. Counsel refers to the fact she does not indicate what the effect on her would have been had she seen the site notice. On this basis it is submitted that she has not been directly effected. Counsel refers to the fact that the relief sought by the applicant is purely discretionary relief. Counsel refers to the case of the State (Doyle) v. Carr [1970] I.R. 87 and in particular to a passage of the judgment at p. 93 thereof in which Henchy J. referred to the fact that the prosecutor in those proceedings did not rank as a person aggrieved such as to be entitled to certiorari other than as a matter of discretion and was not entitled to the relief ex debito justitiae. On this basis it is submitted that the court should address the issue of discretion and should refuse the applicant the leave which she seeks.

On behalf of the developer, the notice party herein submitted by Mr. Maurice Collins S.C. that mere ignorance is not of itself ground for giving leave or extending the grounds.

Paragraph 16 of the principle affidavit of the applicant is referred to, in which the applicant contends that the intention of the notice party herein was to defeat the right of objectors who might have legitimately have objected to the development. It is submitted that there is no basis for this contention. Reference is made to the notice as published in the Irish Examiner newspaper, the site notice having been erected in terms agreed and at a location agreed with the planning authority, and submits that there has been no suggestion of any inadequacy in the terms of the notice with regard to the description of the proposed developments. Counsel refers to the fact that it is

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disputed that the consultations with councillors and T.D.'s in the area or that the decision to grant planning permission received extensive publicity at the time and that the plans for the development were published in the clubhouse at the golf club. Counsel refers to the fact that the applicant's case is constructed entirely by reference to the planning file, in seeking to ascertain whether the site notice was erected at a position either 23 metres or 27 metres from the boundary to the lands to be developed. It is submitted that if the site notice was the only notice in question the applicant would not have any grounds of complaint as she never saw the notice in any event. It is submitted that the applicant could not argue that she had been prejudiced either by the location of same on the land or by its terms. It is submitted that the applicant has failed to show any prejudice having been suffered by her by reference of the location of the site notice. Counsel asserts to the fact that it is of some importance that the location in question of said notice was an agreed location with officers of the respondent's Planning Department. On this basis it is submitted that there was no concealment on the part of the notice party in its planning application. It is submitted that the applicant's contention is therefore vexatious. It is submitted that the evidence put before the Court by the applicant and by witnesses on her behalf, to show that they did not see the site notice or the notice published at the entrance to the golf club, in no way disposes of the evidence put before the court by Mr. Reid and by Mr. Morton to the effect that there was in fact a notice erected at and maintained at the entrance to the golf club. On this basis it is submitted that this evidence is sufficient to refute the applicant's case.

With regard to the issue of time counsel refers to the fact that the application was not bought until four months after the date of the decision in question. Counsel refers to the consideration of extensions of time, and submits that this is a matter of

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discretion for the Court. It is submitted that the objection raised on behalf of the applicant is entirely technical in nature. With regard to the assertion on the part of the applicant that had she known of the application she would have objected to same and had the application been allowed she would of appealed same to An Bord Pleanala it is submitted that this is insufficient.

It is submitted that it is necessary for the applicant to show a substantial interest in the matter having regard to the requirements of s.50 of the Act of 2000. It is submitted that the applicant has failed to establish any evidence of prejudice on her part. She states that she owns land nearby but does not state anything more in this regard or give details as to how the development would affect her. Counsel refers to the obligation to move in a timely fashion and refers to a number of authorities in this regard. Counsel refers to the prejudice that would be suffered by the notice party if the development in question is stopped at this stage. In this regard counsel submits that while the court has a discretion to enlarge time, the prejudice alleged should be taken into account by the court in assessing whether it should in its discretion enlarge the time for the applicant to bring this application.

It is submitted that the applicant has failed to show substantial grounds in support of her contention that the decision in question should be quashed. Counsel refers to the fact that the right of way to the golf club was one granted by the applicant's son in favour of Trentdale Limited. Counsel stresses that this court cannot grant the applicant leave unless it is satisfied that she has shown substantial grounds and furthermore that she has a substantial interest in the matter.

In reply Mr.Macken on behalf of the applicant refers again to the applicant not having seen the site notice and would have objected had she seen same and would of appealed to An Bord Pleanala had she been aware of the decision to grant planning

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permission. With regard to the issue of time it is submitted that some delay was contributed to by the time taken in establishing the true identity of the notice party. It is submitted that what is relied upon by the applicant is what was found on the file which shows that the one statutory notice on the lands was not in accordance with the requirements of the planning regulations. Counsel referred to the mandatory purpose of the site notice. With regard to Blessington and District Community Council v. Wicklow County Council [1997] 1 I.R. 273 as relied upon by counsel for the respondent, it is submitted that this case does not address the issue of notice incorrectly placed on the lands. Counsel refers to the fact that the applicant does not believe that a notice was erected and maintained at the entrance to the golf club. Counsel also refers to Kenny v. An Bord Pleanala [2001] 1 IR 565 in which it is indicated that a court in considering whether to grant leave may make some evaluation of the factual basis of the case. Counsel refers to the fact that there is a plain conflict whether there was a notice in question erected here. Counsel submits that had a notice been erected it would have been seen by the applicant or the witnesses who have sworn affidavits on her behalf.

With regard to the question of time and any extension time, counsel refers to s.50 of the Act, 2000. With regard to the position of the applicant it is submitted that the applicant is stated to be an adjoining land owner and she is the person over whose property a right of way exists. On this basis it is submitted that she has shown sufficient interest and that she has shown good and sufficient reasons why she should be granted the relief that she seeks.

It is submitted that either s. 50 applies with the two month time limit therein, subject to the court's discretion to enlarge the time or, alternatively, that the time limit

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is one of six months having regard to the decision in question of this court in White v. Dublin Cooperation (Unreported, High Court, O'Caoimh J., 25th May, 2001.)

With regard to the inadequacy of the notice, it is submitted that the notice requirement is of a mandatory nature.

Conclusions.

In the first place it must be realised that under the terms of the Planning and Development Act, 2000 the applicant has a number of hurdles to surmount if this court is to grant leave to her to institute these proceedings to challenge the decision of the respondent County Council.

Section 50 of the Act of 2000 provides that any application such as this should be brought within the period of eight weeks commencing on the date on which notice of the decision was first published.

While this Court has jurisdiction to extend the period of eight weeks, section 50 (4) (a) (iii) provides:

"(iii) The High Court shall not extend the period referred to in subparagraph (i) or (ii) unless it considers that there is good and sufficient reason for doing so."

Two further conditions remain to be satisfied by the applicant as provided for in s.50 (4) (b) (iv), which provides, inter alia:

"...leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application."

It is clear that in the instant case the applicant's failure to make submissions to the local authority in the first place or to appeal the decision at issue to the Board relates to her ignorance of the planning application or the decision at the relevant time. This is at the heart of these proceedings.

The applicant concedes that she was not aware of the planning application and rests her case on the basis of her submission that the same was not properly notified in

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accordance with the applicable regulations, being the Local Government (Planning and Development) Regulations, 1994 and in particular art. 16 thereof which provides:

"16. (1) A site notice erected or fixed on any land or structure pursuant to article 14(1) (b)-

(a) shall be painted or inscribed, or printed and affixed, on a durable material, and

(b) subject to sub-article (2), shall be securely erected or fixed in a conspicuous position on or near the main entrance to the land or structure concerned from a public road, or on any other part of the land or structure adjoining a public road, so as to be easily visible and legible by persons using the public road.

(2) Where the land or structure to which a planning application relates does not adjoin a public road, a site notice shall be erected or fixed in a conspicuous position on the land or structure so as to be easily visible and legible by persons outside the land or structure.

(3) The position of a site notice on the land or structure concerned shall be shown on a plan accompanying the planning application."

In the instant case it is clear that the lands in question do not adjoin a public road and accordingly the applicable site notice was one to be placed on the land in a conspicuous position so as to be easily visible and legible by persons outside the land or structure. Accordingly, the regulations did not require the placing of any site notice on the lands of the golf club adjoining the public road as the same were owned by and in the occupation of a third party.

It is clear that while the actual placing of the notice on the lands was at a location agreed by officers of the planning authority, the location of same may not have been such as to make the same legible by persons outside the lands in question. However, it has not been suggested that the notice in question would not have been visible from outside the lands and no case has been made by the applicant that she was prevented from reading the notice in question by reason of its location.

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It is furthermore apparent that the applicant has failed to advance any evidence to show or even suggest that had the notice in question been placed closer to the boundary of the land in question she would have observed same as no case has been made that she attended at any time at or near the boundary to the land in question.

With regard to the further notice adjacent to the entrance to the golf club, the evidence adduced by and on behalf of the applicant is that neither she, nor the other witnesses, who have sworn affidavits on her behalf, observed same, while the contrary evidence is that the same was erected at the location denoted and maintained in that position for a number of months.

With regard to the identity of the applicant for planning permission, it is clear that no case has been sought to be made by or on behalf of the applicant that she was mislead by reason of the misdescription of the notice party.

Accordingly, the applicant's case reduces to an assertion, based upon reference to the planning file, that the location of the site notice at a point agreed with the planning officials, which may not have rendered the notice easily legible and visible to persons outside the lands in question, is such as to amount to the establishment of substantial grounds that the impugned decision is invalid or ought to be quashed. However, it is clear that the applicant cannot show that she was damnified by the location of the site notice in question.

As indicated previously, the provisions of s.50 of the Act of 2000 introduce a new requirement on the part of an applicant who seeks to impugn a planning decision and who seeks the leave of the court to institute judicial review proceedings to that end. This is the requirement that the applicant shows that he or she has a substantial interest in the matter the subject matter of the application.

As this is a new provision in the Planning Code it has not been the subject matter of any prior decision whereby assistance can be given as to its construction. However, by reference to the provisions of s.50 (4) (d) of the Act of 2000, it can be seen that the term "substantial interest" is not to be narrowly construed. The sub-section reads as follows:

"(d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest."

Clearly different circumstances may arise giving a substantial interest to the applicant concerned. For example, an applicant may be able to show that he or she is directly affected by the proposed development. I am satisfied that the fact that a member of the public may have an interest in seeing that the law is observed is not such as to amount to the existence of a "substantial interest" within the terms of the section.

Can it be said that the applicant in the instant case has shown a substantial interest? The applicant has indicated that she is the owner of the land over which a right of way exists to the golf club. No particular point has been made by the applicant showing how she will be affected by the proposed development. She has confined herself to indicating that had she been aware of the application for planning permission she would have objected to same and would have appealed to An Bord Pleanala had a decision been made in favour of the grant of planning permission and had she been aware of same. I am satisfied, however, that the applicant has failed to show in what manner, if any, she will be affected by the proposed development and in this regard I am satisfied that she has failed to show a substantial interest in the matter.

I am also satisfied in the circumstances of this case, that the matters complained of by the applicant with regard to the notification of the planning application do not amount to "substantial grounds for contending that the decision is invalid or ought to be quashed", especially where the applicant has not been damnified by the matters complained of which are essentially technical in nature.

With regard to the time within which these proceedings should be initiated, I am satisfied that the provisions of s.50 of the Act of 2000 govern the matter as that enactment had come into force at the time of the making of the impugned decision. The proceedings should have been taken within a period of eight weeks of the publication of the decision. It is conceded that this period had elapsed at the time of the bringing of these proceedings. It is also clear that when the applicant first became aware of the impugned decision the period had expired. The applicant accordingly

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must satisfy this court that there are good and sufficient reasons for extending the time concerned. While some confusion may have resulted from the misdescription of the applicant for planning permission by the absence of the word "Holdings" in the name of the applicant for planning permission, it is clear that the applicant in these proceedings cannot and has not sought to suggest that the entire of the delay in bringing this application is referable to same.

In all of the circumstances the applicant has failed to satisfy this court that she has established substantial grounds or that she has a substantial interest, and in the circumstances outlined by the applicant I am not satisfied that she has advanced good and sufficient reason why I should extend the time for the bringing of this application. In these circumstances I refuse the applicant the leave which she seeks.