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Cite as: [2002] IESC 25, [2002] 2 ILRM 427

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Brick v. Burke [2002] IESC 25 (17th April, 2002)

THE SUPREME COURT

No. 8/02

Denham J.

Murray J.

McGuinness J.

BETWEEN/

JEREMIAH BRICK

APPLICANT/APPELLANT

and

RICHARD BURKE, AN BORD PLEANALA,

THE MINISTER FOR THE ENVIRONMENT AND LOCAL GOVERNMENT,

RESPONDENTS

and

KERRY COUNTY COUNCIL

NOTICE PARTY

Judgment delivered on the 17th day of April, 2002 by Denham J. [Nem Diss.]

1. This is an appeal by the applicant/appellant, hereinafter referred to as the applicant, against an order of the High Court (Kelly J.) dated 22nd October, 2001. That order recites:

“Upon Motion of Counsel for the Applicant pursuant to Notice of Motion dated the 28th day of July 2001 for

(1) An Order extending the leave granted herein on the 9th of July 2001 to include the following relief viz an Order of Certiorari quashing the decision of the second named Defendant dated the 4th of July 2001 confirming the compulsory purchase Order that is the subject of the proceedings.

(2) Further and other relief.

(3) Costs.

. . .

IT IS ORDERED that the said Motion do stand struck out and that the Applicant do pay to the first and second named Respondents and the Notice Party their costs of this Motion when taxed and ascertained.”

2. Against that order the applicant has appealed. Grounds of appeal include:

“1. Notwithstanding that-

The matter was only listed ‘for mention’ in a busy Monday morning motion list on 22 October 2001,
no prior notice of any kind (not even verbal) was given that either the first or second-named Respondents or the Notice Party would seek on that day to have the said application refused,
Appellant’s Counsel requested that, if such application were to be dealt with, that should be done on another occasion when there would be sufficient time and opportunity to fully deal with the issues,

The learned trial judge insisted on dealing with the Respondents’ and Notice Party’s application there and then; denial of audi alteram partem.

2. Because-

Leave had already been given on 9 July to challenge the first and second Respondents’ refusal to adjourn the c.p.o. hearing;
The said Respondents had been fully notified in advance in writing of the intention to so apply;
There were difficulties in getting from the Central Office of the High Court perfected orders, so that the said Respondents and Notice Party could be formally served within the prescribed time limits;
On learning that the C.P.O had been confirmed, the Appellant promptly sought to extend that leave to include an order of certiorari and fully notified the said Respondents also and the Notice Party of an intention to so apply on 31 July;
The learned trial judge on that day adjourned that application to extend the reliefs into the next legal term and, consequently, it could not be made prior to then; during the long vacation;
The time for challenging the C.P.O’s confirmation did not strictly begin running until 2 August (when that confirmation was first published);
There was neither evidence nor even a suggestion that the said Respondents or the Notice Party would suffer any particular prejudice if the application to extend the reliefs had been acceded to.

There was no good reason in law, justice or fairness for dismissing the application on 22nd October.

3. No reason or good reason was given for refusing the Appellant’s application to adjourn the unanticipated oral application by the said Respondents and Notice Party to refuse an expansion of the reliefs.

4. The reason given for refusing that expansion was erroneous, viz the legislation stipulates that the making of the c.p.o. can only be challenged by way of proceedings for certiorari.

5. The hearing was unsatisfactory and unfair.

6. Such other grounds as may be argued at the hearing of this appeal.”

3. The core issues presented by Dr. M. Forde, S.C., counsel for the applicant, were two, being:

(i) Whether Kelly J.’s insistence on hearing and determining the motion, which was in a ‘for mention’ list, in the circumstances, was a denial of audi alteram partem.

(ii) Whether it is permissible to seek certiorari of a c.p.o. in existing judicial review proceedings (by extending the reliefs) or whether it is necessary to commence entirely fresh proceedings.

4. Oral and written submissions were presented by counsel on behalf of the respondents and the notice party. Whilst they addressed many facts and much law, in essence their submission was that s. 50 of the Planning and Development Act, 2000 (hereinafter referred to as the Act of 2000) applied to the applicant’s application on the 22nd October, 2001 and that he had not complied with the mandatory statutory scheme.

5. S. 50 of the Act of 2000 provides, inter alia , as follows:

“. . .

(2) A person shall not question the validity of-

. . .

(b) a decision of the Board-

(i) on any appeal or referral,

(ii) under section 175 , or

(iii) under Part XIV ,

otherwise than by way of an application for leave to apply for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (‘the Order’).

. . .

(4)(a)(ii) Subject to subparagraph (iii ), application for leave to apply for judicial review under the order in respect of a decision referred to in paragraph (a) (ii) or (b) (ii) or (iii) of subsection (2 ), shall be made within 8 weeks commencing on the date on which notice of the decision was first published.

(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.

(b) An application for leave to apply for judicial review shall be made by motion, on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)-

(i) If the application relates to a decision referred to in paragraph (a) of

subsection (2) , to the planning authority concerned and, with regard to a decision on an application for permission under this Part, to the

applicant for permission where he or she is not the applicant for leave,

(ii) if the application relates to a decision referred to in subparagraph (i) of

subsection (2)(b) , to the Board and each party or each other party, as

the case may be, to the appeal or referral,

(iii) if the application refers to a decision referred to in subparagraph (ii) or (iii) of subsection (2)(b ), to the Board and to the planning or local authority concerned, and

(iv) to any other person specified for that purpose by order of the High ´ Court,

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.

. . .

(f) (i) The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

. . .

(5)(a) Where an application is made for leave to apply for judicial review, or an application is made for judicial review, in respect of -

(i)) a decision by a planning authority under section 34 of a class in relation to

which the Minister has given a direction under section 126(5) ,

(ii) a decision of the Board on an appeal of a decision of a class in relation to

which the Minister has given a direction under section 126(5) ,

(iii) a decision of a planning authority referred to in subsection (2)(a)(ii), or

(iv) a decision of the Board referred to in subsection(2)(b)(ii) or (iii),

the High Court shall, in determining the application, act as expeditiously

as possible consistent with the administration of justice.

(b) The Supreme Court shall as expeditiously as possible consistent with the administration of justice in determining any appeal made in respect of a determination by the High Court of an application referred to in paragraph (a) .

6. Appeal

On 22nd October, 2001 the motion in issue was listed for mention in the High Court. It was treated as an application in an ordinary judicial review case. There was a considerable degree of confusion. However, it is clear that the matter was treated as an application arising in an ordinary judicial review. Consequently, I would hear the appeal in this court, in the circumstances.

7. Audi Alteram Partem

Many facts are in dispute in this case. However, it is not in dispute that the motion was listed in the High Court for mention on the 22nd October, 2001, yet it was substantially dealt with on that day. Further, it was dealt with early on in the list. Counsel for the applicant applied for the matter to be put back so that he could collect his papers. This was refused.

I am satisfied that there was an absence of opportunity to counsel for the applicant to argue fully his case before the High Court prior to the motion being struck out. Prima facie there was a breach of audi alteram partem . However, that does not dispose of the application. All the circumstances of the case must be considered.

8. S. 50 Planning and Development Act, 2000.

There was confusion initially. However, the central issue that arises for decision has now crystallised. Was it open to the applicant to proceed as he did by seeking to extend his existing application for Judicial Review to include an application to quash the compulsory purchase order? Did this procedure, as submitted by Dr. Forde, in fact come within the terms of section 50 of the Act of 2000? Or, as submitted by the respondents, was the applicant required to bring separate judicial review proceedings in strict accordance with the terms of section 50 of the Act of 2000?

9. Facts

While the issue is one of law - as to whether the motion complies with s. 50 - it is helpful to put it in context. The applicant is a farmer who resides at Carbaragh, Tralee, County Kerry and farms land by the main Tralee-Killarney road, a few miles outside Tralee. On the 31st day of January, 2001 Kerry County Council made the N.21 Road Improvement Scheme Ratas to Ballycarty compulsory purchase order No. 1-2001. The schedule to the order includes 0.735 hectares of land owned by the applicant. By letter dated the 8th February, 2001 the applicant’s solicitors objected to the 2001 C.P.O An oral hearing in relation to the 2001 order was fixed for the 6th day of June, 2001. The applicant made a request for an adjournment, but this was refused by the inspector and the oral hearing proceeded on the 6th June, 2001. The applicant was represented by counsel at the oral hearing. On the 4th July An Bord Pleanála confirmed the C.P.O. The applicant’s solicitors were informed of this on the 12th July, 2001 by telephone. Meanwhile on the 9th July, 2001 the applicant had obtained leave to apply for judicial review challenging, inter alia , the conduct of the oral hearing and had sought declaratory relief and prohibition. On the 3rd August, 2001 the notice of the confirmation of the C.P.O. was published.

On the 3rd August, 2001 the motion in issue was filed in the Central Office. It was served in October, 2001. This motion seeks an order extending the leave granted on the 9th July, 2001 to include an order of certiorari quashing the decision of the second named respondent dated the 4th July, 2001 confirming the C.P.O. It was stated that this application:

“. . . will be grounded on the pleadings and proceedings already had herein, the 2nd affidavit of Risteard Pierse sworn on the 20th of July, 2001, the nature of the case and the reasons to be offered.”

The said affidavit of Risteard Pierse sets out the circumstances in which the application for leave to apply for judicial review was made on the 9th July, 2001. It sets out the reason why the approach then taken was pursued:

“2. On the 2nd of July 2001 last, when leave was first sought herein, the Honourable Mr. Justice Finnegan raised the question of whether the application was one that ought to be on notice. As my Counsel on the day was unsure of the position, the matter was adjourned for a week. On the 3rd of July, 2001 I sent by registered post a letter to An Bord Pleanala exhibited herein informing them of what was said, that my Counsel had concluded that notice was not needed and that the leave application would be renewed on the following Monday 9th July. On that day there was no appearance on behalf of An Bord Pleanala and the Honourable Mr. Justice Butler granted leave, having been informed of the letter I had sent to An Bord Pleanala on the 3rd of July, 2001. I beg to refer to true copies of the said letter of the 3rd of July, 2001 and registered post slip pinned together marked with the letter “A” and signed by me prior to the swearing hereof.

3. On the 12th of July, 2001 it was brought to the attention of my office for the first time (by Barry Doyle Solicitor for An Bord Pleanala) that on the 4th of July, 2001 An Bord Pleanala had confirmed the C.P.O. which is the subject of this application. In those circumstances to be effacious, (sic) it appears necessary that

the leave granted herein be extended to an Order quashing the said decision of the 4th of July, 2001 (exhibited herein). I also beg to refer to a true copy of the said transcript of the relevant part of the hearing (exhibited herein) Those two exhibits have been pinned together and marked with the letter “B” and signed by me prior to the swearing hereof.

4. I pray the Honourable Court for the relief set out in the Notice of Motion herein.”

The application was struck out by the High Court on the 22nd October, 2001, which order is the subject of this appeal. On the 5th November, 2001 a third affidavit of Risteard Pierse was open to the High Court. A further motion was brought by the applicant which was dealt with by Kelly J. on the 10th December, 2001. That motion sought an order extending time for applying for judicial review and an order granting leave to appeal. The motion was struck out on consent of the applicant with costs to An Bord Pleanála and Kerry County Council.

10. Law

The relevant law is s. 50 of the Act of 2000. In clear words it requires an application of the applicant seeking leave to apply for judicial review of the C.P.O. to be in accordance with the mandatory statutory scheme set out in s. 50. A motion in an ordinary judicial review case, to extend time, to apply for leave, grounded on papers filed previously, together with a short affidavit, does not meet the specific requirements of s. 50. Whilst the applicant may have wished to be efficacious, the application must be in accordance with the specific and plain terms of the mandatory statutory scheme set out in s. 50. Consequently the applicant was in error in proceeding as he did.

That leaves the matter of the audi alteram grounds of application. There has been a full hearing of the questions in issue in this court. While the manner of the hearing in the High Court was not appropriate the order was correct in law. A notice of motion in existing proceedings (where leave was granted ex parte ) to extend time is not a motion in accordance with s. 50, is not an application for judicial review as required by s. 50 and Order 84 of the Superior Court Rules. The mandatory statutory scheme applies to the applicant and he has no discretion (nor does the court) to make or accept an application in a shortened form. The motion does not meet the statutory requirements. Consequently, even if the motion was remitted to the High Court it could not give rise to a different decision in law and there is no merit in remitting the motion.

11. Conclusion

In conclusion, the case must be decided on the specific terms of the High Court order. The High Court was requested to extend the leave granted on the 9th July, 2001 to include the relief of an order of certiorari quashing the decision of the second named defendant dated the 4th July, 2001 confirming the compulsory purchase order that is the subject of the proceedings. The High Court struck out the application. That decision was not an error in law by the High Court as such an application must be made under s. 50 of the Act of 2000 and was not. To extend leave in an already extant judicial review does not meet the requirements of the mandatory statutory scheme, as set out in the said s. 50. Such application must meet the specific requirements set out in s. 50 and in the Rules of the Superior Courts. This includes the requirement that 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. In all the circumstances, in a situation where confusion has been spread liberally, I would dismiss the appeal. However, the way in which the case proceeded before the High Court on the 22nd October, 2001 is a matter of concern which may have some consequences in costs.

I would dismiss the appeal.