Supreme Court of Ireland Decisions

1. An Bord Pleanála (hereinafter referred to as the Board) granted Treasury Holdings Limited (hereinafter referred to as the Developer) permission to develop a site bounded by Fleet Street, Westmoreland Street and College Street in the City of Dublin for the construction of a hotel, office accommodation and a retail bank on 11th December, 1996. That permission followed a vote of the City Council on 13th May, 1996 in accordance with Section 26(3) Local Government (Planning and Development) Act, 1963 which provides for the procedures to be followed in granting a planning permission which materially contravenes the Development Plan. The Developer appealed to the Board against some of the conditions which the Planning Authority had attached to its decision, in particular the developer was concerned with condition 16(a) which required it to omit the proposed sixth floor, and 16(b) which required the omission of a portion of the fifth floor of the proposed development. An Taisce also appealed the decision of the Planning Authority on the grounds, inter alia , that it involved demolition and interference with listed buildings and that it was too high and of poor quality.

2. An oral hearing was conducted by the Board between 25th and 27th September, 1996. An inspector’s report was produced and submitted to the Board.

3. The Board did not require an Environmental Impact Assessment (hereinafter referred to as an EIA) the law on which is to be found in European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989) (hereinafter referred to as the Regulations) and Council Directive 85/337/EEC (hereinafter referred to as the Directive).

4. The proceedings initiated by Lancefort on 10th February, 1997 also proceeded on a number of related issues. The Developer alleged that Lancefort had failed to comply with the Planning Acts in that they failed to serve documents in time, that a court in considering the obligations of an applicant seeking to challenge a decision of the Board by way of judicial review must construe the obligations strictly, and that there was not proper service. On none of the points did the developer succeed; see judgment of Morris J. (as he then was) 13th May, 1997.

5. On 6th June, 1997 Morris J. gave judgment on the application by Lancefort seeking liberty to apply for judicial review. The hearing had lasted six days. The matters to be determined were whether Lancefort had locus standi to challenge by way of judicial review and whether it had established substantial grounds within the meaning of Section 82 Local Government (Planning and Development) Act, 1963.

6. Accordingly, he dealt with the issue at that stage and stated:

7. “I accept that after the decision of An Bord Pleanála consideration was given by An Taisce to the possibility of seeking to challenge the decision by way of Judicial Review but that a decision was made by An Taisce to devote their funds otherwise. I also accept that Mr. Smith and his associates, as he says in his Affidavit, “reached a consensus that the achievement of shared objectives and aims would best be secured by the co-ordination of joint action through the contemplated company limited by guarantee to which such individuals would subscribe and through which they would actively work thereby pooling their efforts to the optimum effect. I further say that I and my fellow subscribers perceived the Applicant as fulfilling, predominantly an active public interest role similar to that of bodies such as Cork Environmental Alliance Limited which co-ordinates public efforts for environmental protection in the Cork area and the Sierra Club in the United States of America.”

8. An application for security of costs had been made at that time and awaited hearing, as it had been submitted that Lancefort was a shield against costs, and was a company without assets. Morris J. accepted as the law the decision in S.P.U.C. v. Coogan [1989] 1 IR 734 and Cahill v. Sutton [1980] IR 269 and believed that circumstances may exist and can arise where the court would permit the right to locus standi to be invoked on behalf of other persons. He held:

9. On the second part of the case, as regards the consideration of whether Lancefort had established a “substantial case” within the meaning of the Act Morris J. adopted the approach of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 ILRM when she said:

10. Morris J. considered each of the grounds advanced by Lancefort to ascertain if any one of them was “substantial”. He gave a carefully reasoned analysis of all the grounds being proposed and concluded:

11. Lancefort thus obtained from the High Court leave to apply to the court by way of Judicial Review seeking to quash by way of Certiorari the decision of the Board of 11th December, 1996 and obtained leave to apply to the court by way of Judicial Review for a declaration that Section 14(8) Local Government (Planning and Development) Act, 1976 is repugnant to the Constitution.

12. On 23rd June, 1997 Morris J. gave judgment on an application for security for costs by the Developer and Ireland and the Attorney General against Lancefort. This application arose out of Section 390 Companies Act, 1963 which states:

13. Rejecting the submission that the case raises a question of law of public importance so that the court should not entertain a request for an order for security for costs Morris J. Held that no uncertainty of the law existed and that the Board could continue to operate without need of a court order. He stated:

14. The amount of security was fixed at £15,000 in respect of the second and third named Respondents and £25,000 in respect of the Developer. It was ordered that said sums be lodged in court. This was done and a date for the hearing of the action in the High Court set.

15. However, Lancefort and Ireland and the Attorney General sought leave to appeal to the Supreme Court. Section 82 Local Government (Planning and Development) Act, 1963

16. Morris J. in giving judgment on this motion on 23rd July, 1997 stated:

17. He adopted the point of law on which it was permitted to appeal to the Supreme Court as:

18. He also certified as points of law of exceptional public importance for appeal the locus standi of Lancefort and its right to invoke Article 43 of the Constitution.

19. The appeals were before the Supreme Court on 25th July, 1997 and again on 29th July, 1997 for clarification when it was ordered:

20. In the High Court the case was heard by McGuinness J.. All issues were before the court and a reserved judgment was given on 12th March, 1998. On the issue of locus standi the learned Trial Judge stated that while the court was bound by the directions of the Supreme Court to permit further submissions on this issue considerable weight would be accorded to the view of Morris P.. McGuinness J. referred to earlier decisions made by her on this matter.

21. “In cases like the instant case it may well be argued, as it was in the Lancefort case, that companies such as the Applicant company have been incorporated simply to afford the true Applicants “a shield against an award of costs” to use the words of the learned Morris J. I have no doubt that this is a relevant factor and one which must cause concern to a developer such as the Notice Party. However, it could also be argued that in cases such as the present the individual member of the public may in practice be denied access to the Courts - or at least have that access made much more difficult - by the danger of an award of costs against him in a case where his opponent is a large development company with resources which enable it to pursue lengthy and costly litigation with comparative impunity. Over-reliance on the incorporation of companies such as the Applicant in this case may tip the balance too far in favour of objectors or concerned local persons: on the other hand, blanket refusal of locus standi to all such companies may tip the balance too far in favour of the large scale and well-resourced developer. It seems to me that the balance is best preserved by the course followed by the learned Morris J.. The Court should look at the factual background in each case and, if necessary, maintain the balance by the making of an order for security for costs. I therefore conclude that the Applicant company has locus standi to maintain the present proceedings.”

22. McGuinness J. followed the opinion she had expressed in that judgment and in Wicklow Heritage Trust Limited v. Wicklow County Council (unreported judgment of 5th February, 1998) and stated:

23. I propose to leave over consideration of what I might describe as the “constitutional locus standi ” as it is not strictly necessary to consider it at this point”.

24. Lancefort did not proceed with the constitutional challenge to the validity of the legislation before the Supreme Court. The substantive issue was as to the nature of the obligation to require an environmental impact assessment under the Directive and Regulations.

25. Lancefort is a company limited by guarantee incorporated on 18th December, 1996. The liability of its members is limited to £1 each. Its Articles of Association were registered on 18th December, 1996. Michael Smith in his affidavit of 6th March, 1997 deposed:

26. Michael Smith, a Director of Lancefort, deposed that while Lancefort was not a party to the appeal before the Board, its members were vigorously active in lodging and pursuing legitimate objections to the proposed development and otherwise actively engaged in debate and action on matters giving rise to the application for leave to seek Judicial Review herein. Michael Smith was active throughout the appeal before the Board acting on behalf of An Taisce. When An Taisce decided not to proceed with a Judicial Review of the Board decision he proceeded as a Director of Lancefort.

27. Evidence of the members and directors of Lancefort was given on affidavit. Michael Smith has been a member of the Committee of Dublin City Association of An Taisce since 1993. He was Chairman of the Association Planning Sub-committee during the processing of the planning permission of the proposed development. He has been a member of An Taisce’s National Council since 1995. The Committee of the Dublin City Association of An Taisce decided to lodge an objection to the planning application of the Developer. Responsibility for the objection was delegated to Michael Smith. Following the decision taken by the Councillors in May 1996 An Taisce gave permission to appeal the decision and Michael Smith was delegated to draft the appeal, he also drafted the written submission prior to the oral hearing. He arranged for legal representation at the oral hearing and attended with a solicitor and barrister for An Taisce.

28. David Malone is a member of Lancefort. He is employed in the Environmental Section of the Midland Development Education Group since 1994. Since 1990 he has been a Senior Environmental Officer with the Leinster Angling Council which is a Provincial Council of the Trout Anglers Federation Ireland. He is a Water-keeper approved under Section 294 of the Fisheries (Consolidated) Act on stretches of the Rivers Barrow, Brosna, Erne and Boyne. He has registered over 15 complaints with the European Commission concerning non-compliance with the European Communities Regulations. He is a member of Lancefort to seek an improvement in the manner in which planning decisions are made.

29. Tim Crowley is a member of Lancefort and Secretary of Environmental Action Alliance - Ireland, a non-governmental organisation affiliated to the Leinster Angling Council which is a branch of the Trout Angling Federation of Ireland.

30. Uinseann MacEoin is a member of Lancefort and a qualified member of the Royal Institute of Architects of Ireland since 1946, an associate of the Royal Town Planning

31. Institute since 1948, a member of the Irish Planning Institute since 1975, was employed in Dublin Corporation’s planning and housing divisions from 1948 to 1955, acted as consultant to Dundalk Urban District Council from 1955 to 1965 and to Wicklow County Council from 1965 to 1975, he has advised on the restoration of buildings and has a keen interest in the preservation of the city skyline and listed buildings. He attended the oral public hearing before the Board in September, 1996 but did not speak as his views coincided with those put forward by Michael Smith.

32. Ian Lumley is a member of Lancefort and has a particular interest in the maintenance and preservation of historic and architecturally important buildings. He has been an active member of the Old Waterford Society, the Irish Georgian Society and An Taisce.

33. Garrett Kelly is a member and Secretary of Lancefort, he was a founding director of Green Street Trust Limited a non-profit company which was established to restore listed buildings for new uses, he was a member of Dublin Civic Trust, he was a governmental invitee to the consultative panel of the Dublin Transport Initiative, since 1995 he has been co-ordinator of Community Technical Aid Limited.

34. The objects of Lancefort (as amended on 7th February, 1997) are:-

35. It was on these and other facts that both Morris J. and McGuinness J. determined that Lancefort was bona fide , had a public interest in the environment relevant to the matters in issue and had sufficient interest in the matter to which the application relates.

36. These proceedings are by way of Judicial Review. The Rules of the Superior Courts Order 84 requires an application for an order of certiorari to be made by way of an application for judicial review in accordance with the provisions of that order. Applications for declarations may also be made by way of judicial review. Order 84 Rule 20(4) states that:

37. In addition to the procedural rules there are also specific statutory rules setting out requirements of Lancefort prior to their access to the court. Section 82(3)(a) of the Local Government (Planning and Development) Act, 1963 (as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992) states:

38. Thus statutory restrictions on access to the courts include that the application must be (a) made within two months, (b) by way of judicial review, and (c) it must be established that there are substantial grounds for contending the decision is invalid. By these, and the strict rule on appeal to the Supreme Court, legislation has created a very high threshold of entry to

39. The legislation indicates a clear policy to aid orderly planning and development and that it not be delayed inappropriately. Yet, access to the courts for interested parties is maintained.

40. The analogy of locus standi in cases challenging the constitutional validity of laws is helpful. This case is no longer about the constitutional validity of any legislation. However, decisions on the constitutional validity of statutes are useful as there has been a development from the concept of locus standi as victim related (the plaintiff proving a detriment actual or apprehended) to a jurisprudence where public interest parties have been adjudged to have standing. The victim related approach may be seen in Cahill v. Sutton [1980] IR 269 where Henchy J. stated at p. 286:

41. However, the importance of the circumstances of each case was stressed by Walsh J. in State (Lynch) v. Cooney [1982] IR 337 at 368 where (he was reviewing an application for certiorari) he stated:

42. “In Ireland it is sufficient to be “a person aggrieved” - a term to be generously interpreted - which is generally understood to include any person who has reasonable grounds to bring the proceedings. Broadly speaking the term would be the same whether one is proceeding for certiorari or for declaratory action. Each of these is a discretionary remedy but not in the sense that the grant or refusal may be at the whim of the court. The discretion of a court to refuse either of these remedies to a person aggrieved is very limited and, normally, they will issue ex debito justitiae .

43. The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is greater importance to be attached to the facts because it is only by an examination of the facts that the court can come to a decision as to whether there is sufficient interest in the matter to which the application relates.”

44. A step to include public interest parties may be seen in S.P.U.C. v. Coogan . The plaintiff was a company limited by guarantee with the object of protecting the right to life of the unborn child. It objected to the inclusion of material giving information on abortion and pertinent addresses in a book entitled “Welfare Guide 1988/89” to be published by the Students Union of University College Dublin. It sought undertakings from eight officers of the union and the printer and University College Dublin that they would refrain from publishing such material. A majority of the Supreme Court held that any party who had a bona fide concern and interest, which interest connoted approximately to an objective interest in the protection of the constitutionally guaranteed right to life of the unborn, had sufficient standing to invoke the jurisdiction of the courts to take such measures as would defend and vindicate that right. While the Attorney General as the holder of high constitutional office might be an especially appropriate person to invoke such jurisdiction of the courts, such recourse was not confined to him exclusively.

45. Finlay C.J. addressed the corporate status of the Plaintiff company directly stating:

46. These cases establish a useful analogy to Lancefort’s situation. The move from victim related standing to one of public interest is of particular relevance to environmental issues.

47. In certain public law cases and in actions reviewing the constitutionality of laws principles of locus standi have been developing to include persons acting in the public interest. Whilst this is not a case where the constitutionality of an Act is in issue the nature of the litigation (claiming to protect the environment) is analogous in that it is a public interest case. It is not similar to an action by an individual seeking to protect an individual right. In this case a legal person is seeking to protect the environment - for the public benefit. Consequently, principles which have enabled public interest litigants to litigate for the protection of the constitution are relevant also to litigation to protect other public interests such as the environment. Indeed, a progress from a principle of a “victim” locus standi to one where the public interest is an important factor may be seen in some cases relating to the environment.

48. In Environmental Law and Planning Law in Ireland by Yvonne Scannell it is stated at p.219:

49. The public aspect of environmental law in relation to locus standi was described at p.108 as:

50. “It is submitted that because planning legislation envisages the involvement by members of the public in all stages of the planning process and because many judicial decisions have, in varying ways, stressed that “in all planning matters there are three parties: the developer, the planning authority (or An Bórd Pleanála, in the case of an appeal) and the members of the public (See for example, Stafford v. Roadstone Ltd [1980] ILRM 1 ; Robinson v. Chariot Inns Ltd [1986] ILRM 621 ; Morris v. Garvey [1982] ILRM 177) locus standi to challenge what McCarthy J. described in the Supreme Court as “an environmental contract between Planning Authority . . . and the Community” ( McGarry v. Sligo County Council [1989] ILRM 768, 772) is very wide indeed and is certainly not confined to persons whose proprietary interests are affected. It probably extends to all members of the public liable to be affected by the provisions of a development plan unless there are countervailing factors. Thus, for example, if the nature and gravity of the allegations made are serious, a very wide range of persons will be accorded standing whereas if they are trivial, it may well be denied. The nature of the remedy sought may also influence the court's discretion: it may be easier for an ordinary member of the public to obtain a declaration than an enforceable order of mandamus. The locus standi rules are therefore essentially a matter for the court's discretion but all indications in environmental cases to date support the view that standing for judicial review in these cases will rarely be denied.”

51. Whilst this view might be somewhat optimistic on the common law of public interest parties it is rooted in precedent. A recent decision is consistent with that opinion. In Chambers v. An Bórd Pleanála [1992] 1 ILRM 296 the Supreme Court rejected a submission, inter alia , that as the plaintiffs had failed to be involved in the statutory planning appeal they had lost locus standi by their conduct. On the facts Egan J. held that the plaintiffs

52. In the United Kingdom a similar approach may be seen. In R. v. Hammersmith & Fulham LBC exparte People Before Profit Limited (1982) 80 LGR 322 an unincorporated association had appeared at a local public enquiry as objectors. The association subsequently formed themselves into a company limited by guarantee and then sought leave for judicial review of the relevant planning decisions. A preliminary issue was raised by the respondents that the applicant company was a separate legal entity to those members of the association who had participated in the public enquiry and as such did not have sufficient interest in the matter. Comyn J. held that the applicant company did have standing:

53. Indeed both the public interest and the benefit of corporations was addressed in R. v. Inspectorate of Pollution and another, ex parte Greenpeace Ltd. (No 2.) [1994] 4 ALL ER 329 . An issue was whether or not the limited company had locus standi in the judicial review, the law required it had “sufficient interest”. Otton J. stated:

54. This may well be an appropriate approach in certain cases. Environmental issues by their very nature affect the community as whole in a way a breach of an individual personal right does not. Thus the public interest element must carry some weight in considering the circumstances of environmental law cases and the locus standi of its parties.

55. A company is not barred per se from being a party to judicial review proceedings. A company may be formed for many reasons; once formed, it is a legal person with the right, inter alia , to litigate. The Developer in this case is a company, it is a vehicle. Lancefort is also being used as a vehicle for people to pursue environmental objects. The fact that Lancefort was established after the decision of the Board which is in issue does not exclude it per se from access to the courts, rather it is a factor for consideration in light of the history of the relevant events.

56. In analysing a company to see if it has the necessary locus standi the length of its existence may be relevant. The fact that it did not come into existence until after the Board’s decision in issue does not automatically exclude the company from access to the courts on the grounds that it has no standing. Both the Sierra Club and Greenpeace had to start sometime! The relevance of the age of the company will depend on the facts of the case. A long established company may not be granted locus standi in the circumstances of some cases. The age of the company is not a determining factor - it is a factor to be assessed in light of the relevant circumstances.

57. The financial state of the company may be relevant, together with the fact of whether or not there has been an order for security for costs. If the company is financially sound or if there has been an order for security for costs and monies lodged accordingly then financial impecunity itself cannot bar the company from locus standi . In this case there have been orders for security for costs and thus the financial status of Lancefort does not exclude it from access to court.

58. The formal documents of the company, Articles of Association, Memorandum of Association etc. will not of themselves create locus standi . They may be analysed, for example, to establish the objects of the company and other relevant factors. I am satisfied and agree with the learned High Court Judge that, inter alia , the documents of Lancefort establish its public interest objects.

59. Part of the analysis of whether or not there is locus standi involves the consideration of whether or not the party has made out a prima facie case that the authority has acted unlawfully, in this way the merits of the case form part of the analysis. However, the issue of merit must be analysed by reference to the nature of judicial review. Judicial review is a review of the decision making process, not an appeal on the merits. The case raises a quintessential judicial review point - as to the procedures of the Board.

60. Lancefort submitted that a legislative and regulatory scheme was established in Ireland to implement the Directive. Thresholds were set above which projects/developments were mandated to be the subject of an Environmental Impact Assessment. The Irish scheme for implementing the Directive recognised, however, that there would be projects below the thresholds which would be likely to have significant effects on the environment. It was submitted that a discretion was left to the Board to require an E.I.A. if it considered the project would have a significant effect on the environment. The exercise of this discretion. it was submitted, is a duty, a statutory obligation, of the Board. Reference was made to Aannemersbedrift P.K. Kraaijeveld B.V. and others, [1996] ECR 1-5403. It was submitted that applying this case means that projects which fall below the threshold yet are likely to have significant effects on the environment must be assessed by the Board. Thus, Lancefort submitted, an important matter under Irish and European Law as to the way a statutory authority gave consideration to and carried out its obligations was at issue.

61. Having so raised this issue Lancefort established their standing as required on this aspect of the analysis of the issue of locus standi . The burden on it insofar as the issue of locus standi is concerned is not such as requires it to prove a successful action.

62. Morris J. considered the grounds advanced by Lancefort to see if any one or more was “substantial”. On Ground A, the submission that there was an obligation upon the Board to have before it and consider the contents of an Environmental Impact Assessment (EIA), he determined that there was not a substantial case as he decided that nothing in the decision of the Board contravenes existing legislation. On Ground B, related to the duty of the Board to keep itself informed of the policies and objectives of the Minister, planning authorities and any other relevant body, the learned Trial Judge rejected the ground. On Ground C, which related to the issue of the Inspector having inspected the site including a report on the site, the learned Trial Judge allowed the relief claimed. On Ground D, relating to whether the Board is required to have regard to provisions of the development plan, the learned Trial Judge rejected the submissions. Ground E, on the applicant’s submission that Section 14(8) of the Local Government Act, 1976 is repugnant to the Constitution and void, the learned Trial Judge held that Lancefort had made out a substantial case.

63. In determining the action the nature of the remedies, the fact they give to the court a discretion, is relevant. Facts such as that Lancefort did not raise the matter of the E.I.A. at the public hearing, did not explain why the issue was not raised, did not explain fully what they considered could be achieved by an E.I.A. and E.I.S., did not anticipate in submissions concerns which could be met by the E.I.A., are matters which go to the action itself, and may relate to the exercise of the discretion of the court in the judicial review as to whether or not the remedy should be granted. Judicial review being a discretionary remedy the court weights such factors in the balance when coming to a conclusion.

64. It is important to distinguish the requirement that “substantial grounds” be established before leave is granted and the exercise of discretion by the court in determining the actions from the analysis of the locus standi of the parties. They are three separate issues. In this instance the question is as to the standing of Lancefort. The locus standi is a discrete issue.

65. I am satisfied that Lancefort has locus standi in this case. In making this decision I have considered all the circumstances, fact and law as set out previously in this judgment. The fact that Lancefort is a company does not bar it per se from the litigation, although its incorporation after the decision in issue by the Board must be considered carefully. Its bona fides , actions and documentation are all relevant. I agree with the trial judges that the veil of incorporation should be lifted and that the prior actions and involvement of the members be considered. On doing that, having also considered the documentation and actions of the company, I am satisfied that the company is acting bona fides . That alone does not give it standing. However, other facts in addition establish that fact. These include the participation by members of the company in the prior planning and development procedures. This establishes a connection. I agree with the trial judges that these are sincere and serious people who have been involved with the development. Also, there is no doubt that they have evinced a public interest. While not every person who declares a public interest may be considered to be acting in and for the public interest such aspiration must be analysed also in the circumstances of each case. I am satisfied in this case on the facts Lancefort has expressed a valid public interest in the environment. The issue of the environment presents unique problems, not only in the courts. In much litigation on e.g. personal injuries or as to individual constitutional rights, the party is obvious. In litigation on the environment, however, there are unique considerations in that often the issues affect a whole community as a community rather than an individual per se . This affects the concept of locus standi also. The “sufficient interest” required by the Rules and Statutes should be interpreted accordingly. The fact that a company is the vehicle for the action does not bar access - it is a valid vehicle.

66. Concerns that it is a shield from financial ruin for individuals and unfair to other parties have been met in this case by the orders for security for costs, thus financial impecunity does not block the standing of Lancefort. Lancefort established that there were “substantial grounds” sufficient for the High Court - whilst that is a separate issue on this aspect of locus standi it is a higher threshold than the prima facie case on the merits required in judicial review. Here Lancefort has raised an important issue as to the procedure being adopted by the Board to which the Regulations and Directive relate. It is not necessary to prove the case to establish locus standi . Lancefort raised an important issue as to the decision making process of a statutory body.

67. The common law on locus standi has been developed to aid the administration of justice. The crank, vexations litigant and stranger is excluded from the courts. Lancefort does not belong to any of these categories.

68. The principles of locus standi have been extended by the courts in some cases to situations where concerned citizens have sought to protect the public interest. The analogy of those cases, where the constitutionality of laws was queried, should be applied in this case. The track laid by S.P.U.C. v. Coogan, Crotty v. An Taoiseach and McGimpsey v. Ireland and environmental actions such as Chambers v. An Bórd Pleanála and R. v. Inspectorate of Pollution and another ex parte Greenpeace (No. 2) , is firm and the cases provide appropriate precedents. This approach is just, aids the administration of justice, would not permit the crank, meddlesome or vexatious litigant thrive, and yet enables the bona fide litigant for the public interest establish the necessary locus standi in the particular area of environmental law where the issues are often community rather than individual related. The administration of justice should not exclude such parties from the courts. Whether or not they succeed in their action is quite another matter - but they should not be excluded from the courts to litigate the

69. The subject matter of these proceedings is a site in the shape of a triangle in the centre of Dublin bounded by College Street, Westmoreland Street and Fleet Street. On the 11th December 1996 the first named Respondents (hereafter “the Board”) granted permission to the Notice Party to carry out a

70. The site is close to two of the most celebrated groups of buildings in Dublin, Trinity College and the Bank of Ireland. In addition, four of the buildings comprised in the site are listed for preservation in the Development Plan made by Dublin Corporation pursuant to the provisions of the Local Government (Planning and Development) Acts 1963 to 1992.

71. These are the buildings at No. 40/41 Westmoreland Street, known as the “Scottish Widows’ premises”, designed by Sir Thomas Deane about the year 1875, with their Venetian Gothic facade; the “Pearl Insurance Building” at No. 35/36 Westmoreland Street, dating from 1936, with its neo-classical facade and cupola; the former Provincial Bank building at No. 5 College Street with its impressive neo-classical facade; and the rear of the same building at No. 33/36 Fleet Street, again with a classical facade. The proposed development envisages the demolition of much of the buildings on the site, but also provides for the retention of the architectural features to which I have referred and of the magnificent banking hall in the Provincial Bank building which, unlike the other features, is not listed for preservation in the Development Plan.

72. It is not surprising that the proposed redevelopment of so sensitive and important a site in the centre of Dublin should have provoked controversy. Initially, permission for the development was refused by the City Manager of Dublin Corporation but granted by the Council, subject to certain modifications in the scheme. The Notice Party appealed to the Board in respect of certain of the conditions imposed by Dublin Corporation and a third party appeal against the granting of permission was brought by An Taisce.

73. The Board directed an oral hearing of the appeal to be held and this took place on the 25th and 26 ^th September 1996 before the designated inspector, Mr. Karl Kent. The hearing was attended by Mr. Michael Smith, the Chairman of the Dublin City planning committee of An Taisce, who subsequently took a prominent part in the formation of the Appellants, who had not been incorporated at the date of the hearing, and by junior counsel on behalf of An Taisce. In addition, observers were present on behalf of the Heritage Council, The Dublin Civic Group, The Irish Georgian Society and the Department of Arts, Culture and the Gaeltacht. Senior planning officials were also in attendance on behalf of Dublin Corporation. A number of architects, planning consultants and other experts gave evidence at the hearing on behalf of the various parties and observers.

74. Mr. Kent prepared a lengthy report dated the 21st November 1996. It emerges from it that the issues debated at the oral hearing were principally concerned with:-

75. Mr. Kent listed a number of options which he considered were open to the Board, including the refusal of the permission, the granting of permission for the development as proposed by the Notice Party (subject to amended drawings which had been lodged on the 12th June 1996 with the Board) and the granting of permission subject to further modifications. He advised against the refusal of the permission, but considered that it should only be granted subject to further modifications.

76. In its decision, the Board decided to grant permission subject to certain modifications, which were not as extensive as those recommended by Mr. Kent. The permission was subject to 15 conditions. The First Schedule to the grant of permission sets out the Board’s reasons for granting it as follows:-

77. The affidavits filed on behalf of the Appellants make it clear that, following the decision of the Board to grant permission, the Chairman of An Taisce informed Mr. Smith that he did not consider that any legal proceedings should be instituted in respect of the decision as he thought their modest resources could be more usefully employed in other areas.

78. The Appellants were incorporated on the 18th December 1996, i.e. a week after the date on which permission was granted. The circumstances in which they came into being were deposed to as follows by one of their members, Samantha Harding:

79. The objects of the Appellants as originally set out in the memorandum of association contained no reference to the objectives referred to by Ms. Harding.

80. However, they were amended by special resolution on the 7th February 1997 and stated to be inter alia

81. Affidavits were sworn by other members of the appellants, deposing to their interests in the objects as thus stated in the memorandum of association.

82. The history of the present proceedings is lengthy and somewhat complex and need not be set out in detail for the purposes of this judgment. Some features should, however, be noted. They began with the issuing of a notice of motion on the 10th February 1997 seeking:-

83. On the 26th February 1997, the Notice Party brought an application for security for costs, a similar motion being brought on behalf of the Respondents on the 11th March. Ultimately on the 23rd June, the applications for security were granted. The amount of the security was subsequently measured at £25,000 in respect of the Notice Party and £15,000 in respect of the other Respondents.

84. In the meantime, the application for leave to issue the proceedings had come on for hearing before Morris J, as he then was. In accordance with s.82 of the Local Government (Planning and Development) Act 1963 as inserted by the Local Government (Planning and Development) Amendment Act 1982, it was necessary for the application to be served on the respondents and for the Appellants to satisfy the court at that stage that there were “substantial grounds” for contending that the decision of the Board was invalid. At the

85. In a reserved judgment delivered on the 6th June 1997, Morris concluded that the Appellants had locus standi and granted leave to issue the judicial review proceedings on two grounds. The first ground was not pursued in the present appeal and therefore need not detain us. The second ground was that s. 14(8) of the Local Government (Planning and Development) Act 1976 was invalid having regard to the provisions of the Constitution, which again was not pursued in the present appeal.

86. The Appellants had also sought leave to issue the proceedings on the ground that an environmental impact assessment (hereafter an “EIA”) had not been carried out before the granting of the permission by the Board in breach, as it was claimed, of the requirements of the EU Council Directive 85/337/EEC. Morris J. rejected that ground but gave leave to the Appellants to appeal to this court from that decision, certifying the following point of law of exceptional public importance as arising:

87. He also gave leave to the Respondents to appeal to this court, certifying the following points of law of exceptional public importance as arising:-

88. On the hearing of the appeal, it was ordered by this court by consent that all issues be referred back to the High Court for that court to decide what issues were to be tried by that court and in what manner.

89. The application for judicial review itself then came on for hearing before McGuinness J.

90. In a reserved judgment, delivered on the 12th March 1998, she concluded, as had Morris J. that the Appellants had locus standi to maintain the judicial review proceedings, but rejected each of the grounds, other than the constitutional ground, on which judicial review of the Board’s decision was sought. She also concluded that the Appellants did not have locus standi to challenge the constitutionality of the impugned provision of the 1976 Act. She was also satisfied that there was no basis on which the court should seek a

91. McGuinness J. certified pursuant to s.82 of the 1963 Act that her decision involved points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court. In the case of the Appellants, the points certified were as follows:-

92. In the case of the Respondents, the points certified were as follows:-

93. As already noted, the challenge to the constitutionality of the impugned provision of the 1976 Act was not pursued and, accordingly, the only ground argued on the hearing of the appeal on behalf of the Appellants was that set out at 1 above. On behalf of the Board and the Notice Party, the point set out at 2 above was not seriously pressed and, accordingly, the arguments on their behalf were substantially confined to the locus standi of the Appellants and point 1 of the grounds certified in respect of the Appellants.

94. The Council Directive of the 27th June 1885 (85/337 EEC) (hereafter “the Directive”) was transposed into Irish law by the European Communities (Environmental Impact Assessment) Regulations 1989 (SI 349 of 1989)

95. The purpose of the Directive is explained by its opening recitals thus:

96. Article 4 requires that projects of classes listed in Annex 1 to the Directive are to be made subject to such an assessment. It is common case that the development the subject matter of these proceedings does not come within any of the classes listed in that Annex.

97. Article 4(2) provides that:

98. It is again common case that the only classes of development in Annex 2 to which the development in the present case could be regarded as belonging are the following:-

99. For the purpose of giving effect to the Directive, the Minister for the Environment, in exercise of the powers conferred on him by s.3 of the European Communities Act 1972, made the 1989 Regulations. Part II of the First Schedule to those Regulations lists the developments to which Annex 2 is to apply in this State and thus effectively fixes the thresholds at which an environmental impact assessment will be required. In the two relevant categories, they are as follows:-

100. It is common case again that the development in this case is below the thresholds thus fixed at which an environmental impact assessment is required.

101. It is thus clear, and again was common case, that the Board has power, in the case of a development coming within one of the classes specified in Annex 2 of the Directive but which is below the thresholds specified in Part II of the First Schedule to the 1989 Regulations, to require the submission of an environmental impact statement (hereafter “EIS”) where it considers that the development, although below the thresholds, would be likely to have significant effects on the environment.

102. Article 3 of the Directive provides that the environmental impact assessment is to:

103. It was submitted on behalf of the Appellants that the development in this case, although below the threshold fixed by the 1989 Regulations, would unarguably have a significant effect on the environment - specifically, the material assets and cultural heritage represented by the area where the development is envisaged - and that, accordingly, the Board were obliged, at the least, to consider whether they should exercise their admitted power under the 1994 Regulations to require the furnishing of an EIS by the Notice Party. It was further submitted on their behalf that the evidence did not establish that the Board had given any consideration as to whether such an EIS should be furnished and that this failure fatally vitiated the granted permission. It should be noted that the Appellants did not contend, as they had done at earlier stages of the proceedings, that the Directive had not been properly transposed into Irish law: their contention was that, properly construed in the light of the Directive, the Regulations not merely conferred a power on the Board to require such an EIS, but imposed a duty on them, at least in the case of a substantial development such as the present, to consider whether an EIS should be required. There was no evidence, it was urged, that any such consideration had been given in the present case to requiring an EIS and, additionally, there was no written record, as there should have been, of any decision by the Board to dispense with an EIS.

104. As already noted, the issue of locus standi initially arose in two contexts in the present proceedings, since the Appellants, in addition to claiming that the grant of permission was invalid, sought a declaration that s. 14(8) of the Local Government (Planning and Development) Act 1976 was invalid having regard to the provisions of the Constitution. The latter argument was not pursued on the appeal to this court, but some of the decisions of the superior courts which have dealt with the question of locus standi in constitutional challenges are of assistance in considering the objection on behalf of the Board and the Notice Party to the locus standi of the Appellants to challenge the grant of planning permission by the former body.

105. The authorities reflect a tension between two principles which the courts have sought to uphold: ensuring, on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies do not escape scrutiny by the courts because of the absence of indisputably qualified objectors and, on the other hand, that the critically important remedies provided by the law in these areas are not abused.

106. In the latter area, the courts have dwelt on occasions on the dangers of giving free rein to cranks and busy bodies. But it is to be borne in mind that the citizen who is subsequently seen to have performed a valuable service in, for example, bringing proceedings to challenge the constitutionality of

107. Nevertheless the requirement that, as a general rule, locus standi must be established where a person seeks to challenge the decision of a public body remains, although the criteria have changed over the years, a “sufficient interest” in the matter having replaced the somewhat more restrictive concept of a “person aggrieved”. In the particular case of challenges by way of certiorari, with which these proceedings are concerned, the insistence on the party having such an interest reflects the policy of the courts which is intended to ensure that this most potent and valuable of legal remedies is not resorted to by the merely officious or men or women of straw who have nothing to lose by clogging up the courts with ill founded and vexatious challenges.

108. In cases where certiorari is sought in respect of a decision by a planning authority on an application for a permission or a decision of the Board on any

109. At the same, it must be borne in mind that, as pointed out by Finlay C.J. in ESB v. Gormley [1985] IR 129 , where a challenge by a person afforded locus standi in a case such as this succeeds, the planning permission is set aside, not because any direct injury to the applicant has necessarily been

110. While it is thus clear that a person initiating such a challenge by way of judicial review must at the least have what the law regards as a “sufficient interest” in the subject matter of the impugned decision, whether he has such an interest can only be determined by reference to the circumstances of the particular case: see, in particular, the judgment of Walsh J. in The State (Lynch) v. Cooney [1982] IR 337. Since that decision, the requirement that the applicant for judicial review should be so qualified was reflected in Order 84 Rule 20(4) of the Rules of the Superior Courts as follows:-

111. That statement was cited with approval by Rose L.J. in R. v. Secretary of State for Foreign Affairs, Ex Parte World Development Movement Limited [1995] 1 All ER 611.

112. The tendency in England has thus been to treat the requirement of “a sufficient interest” as being met where the applicant has established unlawful conduct on the part of a public body, even though the conduct in question may not have affected any private interest of the applicant.

113. The facts of the two cases should, however, be borne in mind. In the first, the allegation (not established on the facts) was that the Inland Revenue had acted unlawfully in not pursuing claims for tax not paid. In the second, it was that the United Kingdom Foreign Secretary had exceeded his powers under relevant legislation by providing overseas aid to a hydroelectric project in Malaysia against the advice of his civil servants. It was accepted in both cases

114. It is also, the case that the requirements of national law as to standing may in some instances have to yield to the paramount obligation on national courts to uphold the law of the European Union. In this context, the decision of the Court of Justice of the European Union in Aannemersbedruijf PK Kraaijevld BV_& Ors. v. Gedeputeerde Staten Van Zuid-Holland is of some relevance, since it also concerned the Directive. In that case, a member state, the Netherlands, in transposing the Directive into its national law, established a threshold for works on dykes which, it was argued, was such that no dyke projects met the criteria and hence all dyke reinforcement projects remained outside the ambit of impact assessments. The Court of Justice, which had held in the earlier case of the Commission of the European Communities v. Kingdom of Belgium (C-33/94) that a member state could not fix the thresholds or criteria at such a level as to exempt in advance whole classes of projects listed in Annex 2, said that that principle of European Union law must be applied by national courts, not simply where the court was obliged to raise the matter of its own motion, but also where it had a discretion so to do. The court expressed its view as follows:-

115. In this case, there is no question of the State having exceeded the discretion conferred on it by Articles 2(1) and 4(2) of the Directive by defining the thresholds or criteria in such a manner as to exempt in advance a particular class of projects referred to in Annex 2 from the requirement of an EIA. Not

116. It was strenuously contended by the solicitors for the Notice Party when seeking security for costs in response to the institution of the proceedings that the Appellants had been incorporated as a company without assets solely in order to maintain the litigation with no risks to the members as to costs and that its formation was thus not bona fide .

117. In the light of the affidavits filed, I would accept, as did Morris J. and McGuinness J. in the High Court, that it should be assumed in their favour that the persons concerned in the formation of the company are genuinely

118. The Appellants relied on the decision in R. v. Hammersmith & Fulham London Borough Council & Anor., Ex Parte People Before Profit Limited (1982) 80 LGR 322 as supporting the proposition that a company need not be in existence at the time of the impugned decision to be entitled to locus standi . In that case, a number of people had formed themselves into an unincorporated association styled “People Before Profit” and had participated as objectors at a public inquiry into a controversial development by a local authority. Permission for the development having been granted, they then formed themselves into a company limited by guarantee and added the word “limited” to their existing title. On an application for leave to issue judicial review proceedings, Comyn J. held that, since the composition of the limited company was precisely the same as that of the unincorporated body and they had already made their objections at the inquiry, they should not be denied standing on the purely technical ground that they were in law a different body. Since, however, he

119. That case certainly suggests that there may be circumstances in which it would be wrong in principle to deny standing to a body which was not in existence at the time of the impugned decision. There are, however, other factors to be taken into account in this case which were not present in the case decided by Comyn J.

120. The claim that the permission was invalid rests solely on the alleged failure of the Board to consider whether an EIS was required in the circumstances of the present case. Such an EIS, it should be stressed, could have been required by the Board at any stage up to the granting of permission. Although Mr. Smith attended the hearing on behalf of An Taisce, as did junior counsel, they at no stage put forward the objection that an EIS had not been required by the planning authority or An Bord Pleanála. Nor was that suggestion made at any stage by any of the reputable conservation groups which attended the hearing or by any of the architects, planning consultants or other experts who were present. It must be assumed that some at least of those present were aware, at least in a general sense, of the circumstances in which an EIS and EIA were required. In the particular case of Mr. Smith and junior counsel representing An Taisce, no explanation was given at any stage of these

121. It is clear, as was held by this court in Chambers v. An Bord Pleanála [1992] 1 IR 134 , that the fact that a person affected by a proposed development did not participate in the appeals procedure is not of itself a reason for refusing locus standi . It may even be that a company which came into being after the decision which it is sought to challenge may, in particular circumstances, be in a position to assert locus standi as held by Comyn J. in the case to which I have already referred. But it would, in my opinion, be a significant injustice to a party in the position of the Notice Party to be asked to defend proceedings on the ground of an alleged irregularity which could have been brought to the attention of all concerned at any time prior to the granting of permission, but which was not relied on until the application was made for leave to bring the proceedings. That is not the only relevant consideration. I have already drawn attention in this judgment to the stated objectives of the Directive and the matters which, it is envisaged, will be the subject of an EIS. Neither the High Court nor this court were at any stage given any indication as to the respects in which it was alleged that the assessment carried out by the Board of the development in this case as part of the planning process failed to elicit data relevant to an assessment of the effects on the environment of the development.

122. Whether, as a matter of law, the Board were obliged to consider exercising their undoubted power to require an EIS is a separate issue. Assuming that they were under such an obligation and failed to consider whether an EIS should be required, it has not been shown that this had the slightest adverse effect on the attainment of the objectives of the Directive and the Regulations which implemented it in this State. It was urged that the Directive also envisages that the EIS will be available for public inspection and that this is reflected in the Regulations. Again, however, it is perfectly clear that the requirements of the planning legislation ensured that the public had access to the detailed plans lodged with the application for permission.

123. An examination of the merits of the case, accordingly, leads me to the conclusion that, if there has been any irregularity in the manner in which the Board discharged their functions, it could not possibly be regarded as constituting an abuse of power or a default in procedure sufficiently grave to justify affording locus standi to a body such as the Appellants. Not only were they not in existence at the relevant time and hence are in serious difficulties in contending that they had an interest in the subject matter: the procedural irregularity, if such it was, was of so little weight that neither Mr. Smith, the person who took the leading part in the formation of the Appellants, nor counsel appearing on behalf of An Taisce nor any of the experts who

124. Again, a comparison with the English decision in R. v. Inspectorate of Pollution, Ex Parte Greenpeace Limited (No. 2) [1994] 4 All ER 329 is illuminating. That case concerned the granting of authorisation to a company, BNFL, engaged in reprocessing spent nuclear fuel, to discharge radioactive waste from its premises at Sellafield in Cumbria. The case on behalf of the applicant for leave to challenge the granting of the authorisation, Greenpeace Limited, is summarised as follows by Otton J. at p.335:-

125. In that case, the court, although it concluded that the objection of Greenpeace was not legally well founded, rejected the challenge to their locus standi pointing out that they had a genuine interest in the matter raised and had 2,500 supporters in the area of the plant who might not otherwise have an effective means of bringing their concerns before the court. The contrast between a concern based on a failure by the operator of such a plant to engage in a process of public consultation before beginning the discharge of radioactive waste with the stated concern of the Appellants in the present case as to the absence of an EIS, in a case in which there has been an exhaustive and searching process of public consultation culminating in an oral hearing attended by the alter ego of the Appellants, hardly requires emphasis.

126. I do not arrive at the conclusion that the Appellants lacked standing solely because of the fact that they are a company limited by guarantee owning no property affected by the permission. I would accept, as a general proposition, that such bodies may be entitled to locus standi in proceedings of this nature, although they cannot point to any property or economic interests being affected by the relevant decision. In Blessington Heritage Trust Limited

127. I would agree with that approach, although not with its application by the learned High Court judges in the present case. It is, understandably, a matter of concern that companies of this nature can be formed simply to afford residents’ associations and other objectors immunity against the costs of legal challenges to the granting of planning permissions. Our law, however, recognises the right of persons associating together for non-profit making or charitable activities to incorporate themselves as limited companies and the fact that they have chosen so to do should not of itself deprive them in every case of locus standi . While shielding the members against an order for costs in the event of the company becoming involved in litigation may well be a consequence of limited liability, it is not necessarily the only reason why citizens concerned with issues as to the environment may decide to incorporate themselves as a company. It must also

128. I cannot agree, however, with the submission advanced on behalf of the Appellants that the fact that there were substantial grounds for contending that the decision was invalid necessarily leads to the conclusion that they had locus standi . Since the amendment effected by s.19(3) of the 1992 Act obliges the applicant in a case such as this to proceed by way of an application under s.84 and since the latter expressly requires that the applicant should have “a sufficient interest” in the matter, it must be presumed that the Oireachtas intended that an applicant, in addition to establishing substantial grounds for contending that the decision was invalid, must also show that he or she has such an interest. Moreover, in the present case, all of the grounds on which the Appellants were originally given leave (including a challenge to the constitutionality of one of the provisions of the 1976 Act) were abandoned with the exception of the point as to the absence of an EIS. For the reasons I have already given, when the legal and factual merits of that issue are analysed, it is clear that this was not a case in which the Appellants should have been recognised as having locus standi to mount such a challenge.

129. It is accordingly unnecessary to express any view on the first question certified by the learned High Court judge as involving an point of law of

130. I am in agreement with the judgment just delivered by Keane J. There is, however, one matter which I wish to emphasise. By the code of legislation embodied in the Local Government (Planning and Development) Acts, 1963 to 1992, the Oireachtas has established two tiers of independent and qualified bodies to administer the Acts and ensure proper standards of planning and development throughout the State. The first tier of such bodies comprises the local authorities and their planning departments staffed by qualified persons. They have the duty of ensuring proper standards of planning and development throughout their local areas. The second tier is of course An Bórd Pleanála which is the national authority charged with ensuring proper planning and development throughout the State when there is an appeal to them from decisions of the Local Planning Authorities. Again, An Bórd Pleanála is staffed by appropriately qualified people.

131. It is important to bear in mind that members of and persons employed by these bodies are required to act independently and impartially. By Section 32 of the Local Government (Planning and Development) Act, 1976 such persons must declare certain interests, for example, interests in land or dealings in land, and are subject to penalties if they fail to do so. By Section 33 if such persons find that they have an interest in a matter falling for decision by such authority that person must declare such interest and take no part in the decision and failure to do so is also subject to penalties. Section 34 provides for disqualifications from office on conviction of an offence contrary to Section 32 or Section 33.

132. In addition to these two tiers of planning authorities, the code of legislation has also given express recognition to certain well-established public interest organisations such as An Taisce, who keep a careful watch for planning decisions which prima facie may appear not adequately to

133. In the vast majority of cases, the decision of An Bórd Pleanála should be the end of the matter. Further proceedings by way of judicial review should be the rare exception rather than the rule and should be brought only on weighty grounds. In general and apart from very exceptional circumstances, I see no need for the incorporation of bodies such as Lancefort to engage as a further tier of scrutiny in planning matters. Certainly the proliferation of such companies is undesirable because their backers may thereby without financial risk to themselves

134. By way of footnote to all the foregoing I first raised this issue of locus standi in obiter remarks which I made at the end of my judgment in the case of Malahide Community Council Limited .v. Fingal County Counci l. I subsequently noted with interest in the issue of Iris Oifigiúil of the 7th April 1998 at page 317 an entry giving notice that a resolution for the winding up of Malahide Community Council Limited was passed on the 1st April 1998 at a general meeting of members. Costs had been awarded against Malahide Community Council Limited in that case but I have no information as to whether the company was solvent or not.

135. Subject to the foregoing remarks, I am in full agreement with the judgment of Keane J.