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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Monopower Ltd. v. Monaghan County Council [2006] IEHC 253 (10 July 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H253.html
Cite as: [2006] IEHC 253
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Neutral Citation Number: [2006] IEHC 253
[2005 No. 1284JR]
BETWEEN
PLAINTIFF
DEFENDANT
EX TEMPORE JUDGMENT OF MR JUSTICE HERBERT delivered on the 10th day of July, 2006
There are two motions on notice before the court. The first dated the 30th of March 2006, by a number of named persons, reduced at the commencement of the application to seven with an application to increase that number by the addition of two further persons who are not named in the notice of motion, seeks two reliefs of the court:
1. That they be served with the applicant's notice of motion seeking judicial review pursuant to the provisions of order 84 rule 22 subrule 2 of the Rules of the Superior Courts, and,
2. That they be entitled to be heard in relation to the applicant's notice of motion seeking judicial review pursuant to the provisions of order 84 rule 26 of the Rules of the Superior Courts.
Before going on to deal with the particular rules of the court I draw the attention of the parties to a number of problems that seem to be arising on this motion and which might have to be dealt with. The first matter is that there is no primary evidence before the court that any of these people had consented to and were seeking to be joined as individual notice parties in this application.
The court cannot, of course, go behind the instructions given to a solicitor by that solicitor's clients, but it seems to me that it is not nearly sufficient to offer to the court the provisions of section, 68 of the Solicitors Act 1994 as a sufficient authority for the court to be satisfied that each of these persons wishes to be joined in this judicial review application as a notice party with all the possible consequences of being so joined.
It seems to me that, in an application of this nature, it is necessary for the court to have evidence on affidavit exhibiting a consent of each of these persons to being joined as an individual notice party which consent I think, should go so far as to state that the consequences of being so joined had been explained to him or to her.
I was particularly concerned because, I was told at the very start of this application, that five of the parties named in the notice of motion no longer wished to be joined as notice parties and I was told that two additional parties who are not named in the notice of motion wished to be joined.
Counsel, on behalf of the applicant, for judicial review pointed to the fact that this list of persons who were anxious to be joined or said to be anxious to be joined has already changed twice historically. I was concerned that the question of costs which might conceivably arise at the end of this application for judicial review, if the court should hold that it is open to the court to grant an order for costs against a notice party could be a matter of very serious import to each of these people. However, I think this is a matter which could be corrected by a supplemental affidavit exhibiting proper consents from each of these individual persons.
The second procedural aspect of the matter which concerned me was the question of possible oppression, both to the applicant and to the respondent. If I was to make the order sought there would be nine individual notice parties added to this particular application and that is excluding the application by the Minister for the Environment, Heritage and Local Government to be joined in the application.
No application was made for a form of representative order under order 15 rule 9 of the Rules of Superior Courts or an application that a single individual or a number of individuals should be joined as notice parties to represent the interests and arguments of all these persons.
Counsel, on behalf of the applicant, for judicial review criticised the application of these persons to be joined on the grounds that insufficient details were given in the grounding affidavit sworn the 30th of March 2006 by the solicitor for the applicants, of their individual interests. However on a superficial reading of that affidavit there is prima facie evidence that the interests of some or all of these parties is the same. There certainly may be differences between the people living in County Monaghan and the people living in County Tyrone, but essentially it would appear that the interests of people living in those two particular counties would be the same. In such circumstances it might be oppressive as against both Monopower Limited and Monaghan County Council to make an order in the form in which it was sought.
But to return to the principal issue, rule 22 subrule 2 of order 84 of the Rules of the Superior Courts provides as follows:
"The notice of motion or summons must be served on all persons directly affected and where it relates to any proceedings in or before a court and the object of the application is either to compel the court or an officer of the court to do any act in relation to the proceedings or to quash them or any order made therein. The notice or summons must also be served on the clerk or registrar of the court and where any objection to the conduct of the judge is to be made on the clerk or registrar on behalf of the judge."
It seems to me, that the vital word in this subrule is "directly". The rule does not say "must be served on all persons affected". It says "must be served on all persons directly affected". So persons who might have a vital interest in the outcome of this particular application for judicial review, but who are only indirectly affected do not come within the terms of order 84 rule 22 subrule 2.
A considerable discussion took place before me as to the particular test for joining a person in judicial review proceedings. It seems to me that this motion is divided into two parts: one seeking relief under order 84 rule 22(2) dealing with the right to be served with the proceedings; and the other seeking relief under order 84 rule 26 subrule 1 dealing with a right to be heard in the course of the proceedings. I think that these are two separate and severable matters.
As to the first matter, I am not satisfied that any of these people fall within the definition of persons "directly affected".
In the present case I am quite satisfied on the affidavit evidence that the individual persons seeking to be joined as notice parties have undoubtedly a vital interest in this whole matter, but I think it is erroneous to conclude from that that ipso facto that they are 'directly affected by the application'.
It seems to me that they are undoubtedly indirectly affected, but in my judgment the party directly affected is Monaghan County Council, the respondent. It seems to me that the Monaghan County Council is an intervening party, if I can use that term, between these applicants seeking to be joined as notice parties and Monopower Limited, the applicant, seeking judicial review.
Monopower Limited are, in effect, seeking what is commonly referred to as a default permission. This would appear from the statement to ground an application for judicial review and the amended statement of opposition to involve a construction of the planning and development legislation on essentially uncontrovertible facts, and facts which relate solely to the manner in which the planning application was dealt with by Monaghan County Council. These facts appear to be summarised at paragraph E(i) of the statement to ground application for judicial review which provides as follows:
"The applicant lodged an application for planning permission on the 12th of June 2003. On the 19th day of June the application was acknowledged as being valid. On the 6th of August 2003 a request for further information was made which was replied to on the 5th of November 2003. The respondent had a statutory obligation to determine the application within eight weeks of that date. The application remained in abeyance until 1st December 2004 when a further request for further information in or about 55 weeks subsequent to the receipt of the further information. This information was replied to on the 26th of May 2005 and as of the 28th of November 2005, some 24 weeks later, the application has still not been determined."
Various legal issues are raised, on foot of these facts such as whether a transboundary referral raises an indefinite stay. However it appears that the facts in issue are matters entirely between Monopower Limited, the applicant, and Monaghan County Council and, as I have said, appear to be generally uncontrovertible. They certainly do not appear to involve in any way matters to which the proposed applicants, the applicants seeking to be joined as notice parties, could add or subtract anything.
It seems to me that the only party "directly affected" by this controversy is Monaghan County Council. It is undoubtedly so, as I have said, that the people seeking to be joined as notice parties may be indirectly affected if Monaghan County Council are unsuccessful in opposing this application and if the proposed development proceeds. But that is very much an indirect result and order 84 rule 22 subrule 2 specifically refers to persons "directly affected".
In the case of O'Keefe v. An Bord Pleanála, Radio Tara Limited was clearly a party which was directly affected because it was the applicant for planning permission in that case.
I was referred to a decision in BUPA Ireland Limited, and BUPA Insurance Limited, applicant/respondents and The Health Insurance Authority, The Minister For Health and Children, Ireland and the Attorney General respondent and Voluntary Health Insurance, notice party/appellant (Supreme Court, December 2nd, 2005).
It was accepted by counsel on behalf of the respondent that the decision of the High Court in that matter had not been upheld on appeal by the Supreme Court, but counsel argued that the material part of the judgment of the High Court on which they wished to rely, as stating the test for someone being joined in the proceedings, had not really been departed from by the Supreme Court.
He referred to page 18 of the decision of Mr Justice Kearns in the Supreme Court and stated that the test for whether a person should be joined was whether it was, "Necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause or matter." But it is clear from the next succeeding line of the judgment of the court that the Supreme Court was satisfied that the matters in issue were matters "directly affecting" the Voluntary Health Insurance Board.
I am satisfied that it is not sufficient that a person have a vital interest in the matter unless, as the rule requires, the person is also "directly affected".
The issue is not in this case what will come to pass depending on who wins or who loses the particular application. The issue here is whether or not in the circumstances which have arisen in this case a planning permission by default should be deemed to have been granted. That would, of course, be a planning permission without conditions which would have possibly a very serious impact on the residences of the particular applicants to be joined as notice parties, but probably no more serious impact than on thousands of others in the area. I accept, to a certain extent, the criticism made that there are no sufficient details in the affidavit evidence which show that these particular applicants to be joined are uniquely affected. The Supreme Court held that the party VHI would be "uniquely adversely affected", and "directly affected".
Mr Justice Kearns said (p. 18): "The VHI is a body both whose propriety or pecuniary rights are or may be directly affected by the proceedings, either legally or financially."
For those reasons it seems to me that the applicants to be joined as notice parties are not people who must be served with the proceedings pursuant to order 84 rule 22 subrule 2 of the Rules of Superior Courts 1986.
The second part of the relief sought in the motion is for an order under Order 84 rule 26 of the Rules of Supreme Courts directing that the particular persons are entitled to be heard in relation to the applicant's notice of motion seeking judicial review and that they be entitled to file opposition papers in relation to the said application.
It seems to me if they are not parties entitled to be served with the proceedings, they are certainly not parties who are entitled to serve a statement of opposition.
Order 84 rule 26 subrule 1 states as follows:
"On the hearing of any motion or summons under rule 22, any person who desires to be heard in opposition to the motion or summons and appears to the court to be a proper person to be heard shall be heard notwithstanding that he has not been served with notice of the motion or the summons."
It seems to me that the application in this respect is premature. This is not the hearing of the motion or summons.
The hearing will take place in due course and it seems to me it would be unfortunate if I were in some way to fetter in anticipation the jurisdiction conferred upon the judge hearing the application for judicial review.
It is for the judge hearing the application to decide in the circumstances which are then apparent to the judge whether a particular person who has not been served appears to be a proper person to be heard. That seems to give a considerable latitude to the judge to decide that any person who may have a significant contribution to make to the proceedings, but who may not come within the definition of a person "directly affected" might, if the judge thought that it would be necessary in the interests of justice to hear such a person, might still be heard.
It is difficult on the facts of the particular case before me to see how this might arise, but I don't think I should in any way attempt to pre-empt the judge hearing the application and I think I should say no more than that I do not think it a proper application to be made to this court at this time.
Circumstances may arise at that time when the judge is hearing the application for judicial review which would indicate that such a person should be heard because they do not necessarily appear to be caught by the restrictions of order 84 rule 22 subrule 2.
Rule 26 specifically states that they may be heard "notwithstanding that they have not been served with the notice of the motion or the summons". It is also confined, I notice, the class of persons who are opposing the application.
There may be an inherent jurisdiction in the court to hear persons in favour, of the application but the rule says "may be heard in opposition". But in any event it appears to me that it is not an application which should be made to me now as I am not hearing the application. This is an interlocutory application prior to the hearing of the application for judicial review.
It seems to me that for both those reasons I must refuse the relief sought in the motion on behalf of the various named applicants.
An application is made on behalf of the Minister for the Environment, Heritage and Local Government to be joined, firstly, as a party in the proceedings and; secondly, to be served by the applicant with a copy of the papers filed herein.
The application is grounded on the provisions of order 84 rule 22 and order 84 rule 26 of the Rules of the Superior Courts.
Order 84 rule 22 subrule 6 provides:
"If, on the hearing of the motion or summons, the court is of an opinion that any person who ought, whether under this rule or otherwise, to have been served has not been served, the court may adjourn the hearing on such terms (if any) as it may direct in order that the notice or summons may be served on that person."
It is contended on behalf of this applicant that the Minister should be joined as a respondent and not as a notice party in this application. It seems to me that the power of the court under rule 22 subrule 6 is to direct that the notice or summons be served on the particular party. These are proceedings by way of judicial review; they are not plenary proceedings. So it seems to me that the application contained in the letter of the 16th of May 2006 and in the letter of the 4th of May 2006, which were exhibited in the grounding affidavit of Mr Phillip Nugent, sworn on the 22nd of May 2006, to join the Minister for the Environment, Heritage and Local Government as a notice party was the correct application to be made if any application at all was correct.
However, it seems to me that the same problem that arose with regard to the other applicants also arises in this case. I am not satisfied that the Minister for the Environment, Heritage and Local Government is in any way "directly affected" by this application.
This is an application taken correctly against Monaghan County Council as the body required by the planning legislation to make a determination within the particular period of time and which is alleged not to have made that determination within the required time, as a consequence of which the applicant claims it is entitled to a planning permission by default without planning conditions.
One of the issues raised by this application seems to be the interpretation of article 130 of the Planning and Development Regulations 2001 in the context of the Planning Development Act of 2000.
It was submitted on behalf of the Minister that this is a matter which he should be permitted to address because it would fall to the Minister to address the consequences should it be found, as is alleged in the statement to ground the application for judicial review, that article 130 of the Regulations is inconsistent with the scheme of the Planning Development Acts 2002 to 2004. However it seems to me that this, once again, is an indirect interest only. The Minister is affected in the sense that, if the court should find that article 130 is inconsistent with the planning code, then it may fall to the Minister or to the Legislature to remedy the matter, but this does not mean that he is "directly affected" by the issue. In my judgment he is undoubtedly indirectly affected, but he is not directly affected by the issue.
The argument full squarely lies between Monopower Limited and Monaghan County Council. Monaghan County Council's interest and right to defend this application intervenes between the applicant's application for judicial review and the possible consequences for the Minister. The fact that such a consequence may arise does not give the Minister power to seek to be served with a notice of this application for judicial review because he is not a person "directly affected".
I think it is very important that the draftsman of the rules used the term "directly affected" which is a term not unknown in this sort of a situation to emphasise that it is only the parties who have a direct and immediate interest in the issue who should be parties to the application for judicial review. So it seems to me that the Minister is not a person "directly affected" and therefore is not entitled to seek to be served with the copy of the application and to file a statement of opposition. That means, in effect, that the other issue as to whether he should be joined in a particular capacity becomes otiose. If I had to determine that matter I would determine it on the basis that he should be joined as a notice party.
For this reason I also will refuse the application on behalf of the Minister for the Environment, Heritage and Local Government to be served with these proceedings and to be made a party in the proceedings either as a respondent or as a notice party.
Approved
Herbert J.