Supreme Court of Ireland Decisions

Judgment Title: Harding -v- Cork County Council & anor

Neutral Citation: [2008] IESC 27

Supreme Court Record Number: 18/07

High Court Record Number: 2005 1323 JR

Date of Delivery: 02 May 2008

Court: Supreme Court

I also endorse the views expressed by O’Neill J., in Cumann Tomás Daibhis –v- South Dublin County Council 2007 IEHC 118 when he stated

“In my view the requirement that an interest must be peculiar or personal to an applicant does not mean that if some other party has the same or similar interest in the subject matter of the application that both are thereby excluded from having a “substantial interest”. If this were so it would have the bizarre consequence of including householders from an estate of houses for having a “substantial interest” in a development taking place adjoining their estate. Clearly this could not be so. In my view what the phrase “peculiar or personal” imports is that the proposed development the subject matter of the application is one which affects the applicant personally or individually in a substantial way as distinct from any interest which the wider community, not so personally and individually affected might have in the proposed development. Thus, as in the case of a housing estate many people might be affected substantially in this way and have a “substantial interest”.

I also agree with Kearns J., for the reasons given in his judgment that on the facts of this case that the applicant has not established a “substantial interest” sufficient to satisfy the requirements of s. 50 by reason of his claimed interest in the impact or implications of the proposed development from an environmental perspective.

I consider that the applicant’s interests are too general and remote to be considered substantial.

I would just add, as I have already mentioned, the test laid down by the Oireachtas is vague and lacking in precision. It is left to the Courts to interpret and apply the notion of “substantial interest” as best they can having regard to the objective of the statutory provision to limit the range of persons who can bring judicial review proceedings and the requirement that the interest which they seek to protect is one which is of a substantial nature and thus peculiar and personal to them.

While certain delineations can be made in defining what “substantial interest” may or may not amount to, the phrase is not susceptible to a general or all embracing definition or formula covering all cases. Undoubtedly many cases will fall clearly within or without the notion of a “substantial interest” but there is likely to be at least a significant number of cases in which its application will be very much open to debate. Precisely how proximate must a person be to the effects of a planning development in order to have a “substantial interest”? If the residents of a housing estate are potentially affected by a proposed development so that they should be considered as having a “substantial interest” in it, does that include all those residing in a housing estate irrespective of the vastness of the area which it covers? Where is the line to be drawn? Inside the housing estate, on its perimeter or somewhere beyond that? Inevitably much will depend on the facts and circumstances of the case including the situation of an applicant and the nature and ambit of the proposed development. Not for the first time legislation seeking to limit litigation is drawn up in terms which are imprecise and likely to generate further litigation rather than less for Courts which are already heavily burdened.

In a case such as this, in addition to establishing that he or she has a “substantial interest” an applicant must also establish that they have substantial grounds for seeking judicial review and even if so the Court will consider, as the learned trial Judge in this case pointed out, whether an appeal to An Bord Pleanala would provide a sufficient remedy. These preliminary issues may have to be litigated in the High Court and then on appeal before the substantive issues of judicial review can be litigated in the High Court and then on appeal. In this case if the appellant had succeeded in his appeal it would be necessary for the High Court to have a further hearing on whether the grounds on which he relies, or any of them, in seeking leave to bring judicial review are substantial grounds and then if so whether in any event an appeal to An Bord Pleanala would provide a sufficient remedy.

I would finally add, in this context, that the learned trial Judge in the course of his judgment considered in detail the manner in which all these issues should be addressed at the application for leave stage without seeking to be definitive since this may vary according to the case. I fully agree with his excellent analysis of how the several issues that arise in an application of this nature could be addressed, as he correctly did in the circumstances of this case. It is of course desirable, where this is possible and more efficient in the circumstances of a case, that all issues preliminary to the granting of leave to bring judicial review proceedings are dealt with at the same time to avoid, as far as possible, successive hearings and successive appeals in relation to them.

Denial of Due Statutory Process

The appellant in this context claims that he was denied due process because of a number of legal vices in the manner in which the planning authority dealt with and decided upon the planning application.

It is contended that the appellant must be considered to have a “substantial interest” in the decision making process and therefore in the validity of the decision to grant planning permission because he has a statutory entitlement to participate in that process, a denial of which also amounts to a breach of fair procedures in breach of Article 40.3.1 of the Constitution.

It was also argued on behalf of the appellant that insofar as the interest of an applicant for judicial review of a decision to grant planning permission is contingent on the expression of that interest in the planning process, the deprivation of the opportunity to express that interest should logically confer on the applicant with a “substantial interest” for the purposes of the section. In support of his argument he relied, inter alia, on the statement of Clarke J., in his judgment of 12th October 2006 in this case where it was stated, at paragraph 5.12,

“If each of the complaints made in relation to this aspect of Mr. Harding’s case were to be made out then there would be grounds in my view, for taking the view that he had been improperly excluded from a reasonable opportunity to involve himself in that aspect of the process which resulted in a consideration of what, on any view, must be a development which is at least in some material respects different from that applied for. In addition, if other of the grounds which he contends are established, part of the reason why such exclusion may have occurred was by virtue of the need to maintain the tax status of the development by the grant of a permission on foot of the existing application rather than on foot of a new application incorporating the modifications required to make the matter acceptable to Cork County Council. While obviously the merits of the proposal as modified can be fully dealt with in the appeal process, I am not persuaded that in the event that Mr. Harding was to succeed in relation to all or many of the grounds which he puts forward and which I have briefly outlined above, it could not be said that there has been a sufficiently substantial failure in the public consultation process before the local authority such as would lead to a conclusion that Mr. Harding had been substantially denied an opportunity to involve himself in the process relating to those revised or modified plans.”

There is no doubt in my view that the appellant had a statutory right to participate in the planning process. That right, as previously indicated, stems from two provisions of the Planning and Development Regulation 2001.

Firstly, Article 29(1) of the Regulations permits any person or body, on the payment of the prescribed fee to make submissions or observations in relation to a planning application. The Article also requires the person to indicate the address to which any correspondence relating to the application should be sent.

Secondly, Article 35(1) provides that where a planning authority receive further information or evidence following a request under Article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to an application and it considers that this further material contains significant additional data it is required to notify any person who made a submission or observation in relation to the planning permission as soon as may be following the receipt of the further information or other material indicating that such significant further information or material has been furnished to it and that it is available for inspection or purchase at the offices of the authority.

Finally that Article provides for a further submission or observation being made by the person concerned to the planning authority in relation to the further information or other material that has been furnished to it.

The appellant has made no complaint concerning any infringement of his rights to make the initial observations or submissions pursuant to Article 29. He does however complain that the manner in which he was notified of such further significant information pursuant to Article 35 of the said Regulations denied him his statutory right to make further submissions or observations with regard to it. Every person who has made a submission or observation pursuant to Article 29 has a statutory right to be notified of such further significant information so as to be in a position to make further submissions or observations with regard to it.

As regards these grounds upon which the appellant relies to establish that he has a “substantial interest” in the decision to grant planning permission obviously the same considerations apply, namely, that he has an interest in the decision which is peculiar and personal to him and that the interest is significant and weighty.

It seems to me manifest that the right to make such submissions pursuant to Article 35 is a right vested in such a person by law and is one which is personal and peculiar to him or her.

If an individual is denied such a statutory right he or she has, potentially, a “substantial interest” in seeking a judicial remedy including by way of judicial review, with a view to impugning a decision made in breach of that right.

To hold that such a person could not have a “substantial interest” in a statutory planning decision taken in breach of his or her statutory rights would, it seems to me, render the right ineffective and deprive the Statutory Instrument of the quality of a law. That would simply undermine the rule of law by depriving the person of a remedy in circumstances where no other remedy is available.

Before dealing with the appellant’s ground of complaint for a breach of the foregoing statutory right I should refer to the other grounds of complaint regarding the alleged failure by the planning authority to observe the procedures laid down by Statute and Regulation.

The other grounds upon which the planning authority are alleged to have acted in breach of the relevant regulations and due process are numerous and include allegations that the applicant for planning permission had submitted further information and revised plans which were not a modification of the original application but a radical departure from it, there was a failure on the part of that developer to provide all the further information which was demanded by the planning authority or to do so in time, the developer’s failure to send an appropriate fee with the revised plan and the failure to erect a site notice in respect of that plan. He also alleges that the planning authority failed to provide the statement required by the Regulations indicating the main reasons for not accepting the recommendations contained in the report of the authority’s senior planner. The planning authority he says failed to observe the law in dealing with or addressing such matters.

In my view these grounds of complaint and the alleged breaches of statutory procedures (other than the alleged breach of his right to make further submissions and observations pursuant to Article 35) arise generally in relation to the planning application and the decision to grant permission. They are not issues which involve an interest which are peculiar or personal to him.

Only persons who have a “substantial interest” in the subject matter of the application, may seek leave to judicially review the validity of the decision to grant planning permission on those or other grounds. The mere fact that the appellant relies on such grounds cannot mean that he has a “substantial interest” for the purposes of s. 50 no more than the fact that he objects to the development on environmental grounds means that he must be deemed to have such a “substantial interest” . Absent a “substantial interest” the appellant is no more entitled to leave to bring judicial review proceedings than any other person whose interest in the development is simply a general one or too remote. As stated earlier in this judgment s. 50 makes it clear that being a person who made the submissions or observations pursuant to Article 29 of the Regulations does not absolve that person from demonstrating, in addition, that they have the “substantial interest” required.

I now turn to the question of whether the applicant has demonstrated that he has a “substantial interest” at least in vindicating a breach of right to make further observations pursuant to Article 35 of the Regulations of 2001 and thus in seeking to challenge the validity of the planning authority ‘s decision on that ground. If he establishes, prima facie, that such a right has been breached he may have such a “substantial interest”.

In this respect the appellant complained in his affidavit grounding his application for leave to bring judicial review that additional information provided by the developer was submitted to the planning authority on 23rd August 2005 and that it was not until 21st September 2005 that the decision was taken to the effect that the further information contained significant additional data thus requiring that the appellant, like other persons who may have made submissions pursuant to Article 25, be advised of their right to make observations in respect of the new information.

He goes on to point out at paragraph 26 of his affidavit, “In compliance with Article 35 the first named respondent sent me by registered post a letter dated 26th September 2005 notifying me that I was entitled to make submissions or observations in relation to the further information within a period of two weeks from the 26th September 2005.” He then complains that by reason of the fact that the letter was sent by registered post he did not receive the letter until or about 6th October 2005. He had been obliged to request that it be redirected by the Post Office to a boat called the Nimmo on which he was to collect it. This he complains resulted in him having approximately two working days notice of the fact that he could make further observations. He says by reason of the delayed arrival of the letter giving him the required notice he was not adequately prepared to make a full observation, although he did in fact make observations. He says he would like to have had the services of a town planner to assist him but was not in a position to do so given the time constraints. He also complains that he was entitled to receive the notice from the planning authority of their receipt of further information or revised plans “as soon as may be” and that the letter sent by registered post dated 26th September 2005 was not in accordance with that requirement in the regulations.

As stated above the appellant premised his assertion of a “substantial interest” on the fact that he had been “substantially denied an opportunity to involve himself in the process.”

As regards the latter point concerning the “as soon as may be” requirement it has to be borne in mind first of all that this is an administrative procedure and requirements as to time must be interpreted having regard to the ordinary burdens of administration in any organisation or body. It is not as if the matter in question was the only such matter with which the planning authority in question had to deal with. In particular the requirement in such a Regulation should not be interpreted as strictly as might be the case in criminal procedure where the personal rights of individuals in the administration of justice are directly in issue. As the appellant acknowledges it was on the 21st September that a decision was taken that the further information contained significant additional data and the letter notifying him of same was sent on 26th September 2005. In any event even if one looks at the passage of time from the 23rd August 2005, when the additional information was submitted, I cannot see that the letter duly notifying him of the submission of the additional information on the 26th September affected the appellant’s rights or affected his interests, to any significant extent, if at all.

The real complaint of the appellant in this regard is the late receipt by him of the letter in question, not long before the time for making further submissions expired. As regards the actual delivery of the letter it is clear from the exhibits lodged on behalf of the appellant that the letter was sent to the address which he gave, and was required to give, by the Regulations for the communication of any such notice by the planning authority when he made his original submissions to them. The reason he did not receive the letter in question earlier was because he was not there to receive the letter in the ordinary course of registered post. In fact his complaint seems to be that the planning authority ought not to have sent it by registered post. At paragraph 27 of the affidavit he says “by reason of the fact that they chose to do so by way of registered post this further delayed the receipt of the letters.” I do not see how the planning authority can be faulted for sending such a document by registered post to the address furnished by the appellant. On the contrary s. 250(1)(c) authorises a letter so notifying the appellant to be sent by ordinary prepaid registered post to that address.

In my view, although a person in the appellant’s position has potentially a “substantial interest” in vindicating a right to exercise the specific right to make observations vested in such a person under the Regulations, on the facts of this case, as put by the appellant himself, I am quite satisfied that no wrongful act on the part of the planning authority could be said to adversely affect the appellant’s rights or interests in this regard. His initial premise is not established prima facie, and he has not demonstrated that he has any “substantial interest” deriving from any alleged breach of his right to make observations.

I would add in passing that a person who complains of a complete denial of a statutory right vested personally in him or her by law (such as the right to make further submissions in respect of further significant information as envisaged by Article 35 of the Regulations) should not always just sit back and leave the process proceed at length until it reaches its final conclusion and then seek to impugn the final decision where it would have been properly open to such a person to seek a remedy at an earlier stage, such as by way of mandamus, requiring the authority to observe the statutory right in question. That is something which a Court would fully take into account when deciding whether or not to grant leave to bring judicial review. It may be otherwise where for example the decision was taken before the breach of the legal right could reasonably have been known or before there was an opportunity to seek any other properly available remedy. In this case the appellant states that the decision to grant planning permission was taken so soon after the expiry of the deadline for making further submissions that he had no opportunity of taking any step in relation to it before that decision was made. However, it is not necessary to address that aspect of the matter further in the light of the conclusions that I have come to above.

Allusion was also made in the course of argument to general rights of due process guaranteed by the Constitution. The entitlement of the appellant to participate in the planning process derives from the Regulations of 2001 and the process does not involve the determination of or adjudication on any personal rights of the appellant as a citizen. The statutory or regulatory rights vested in the appellant in this instance were the right to make observations in accordance with the Regulations and I have dealt with that above. No other broad constitutional issues arise. In so concluding for the purpose of considering whether the appellant could have a “substantial interest” within the meaning of s. 50 of the Act of 2000 it may also be inferred that the particular ground in question does not constitute a substantial ground. In the context of the appellant’s claim that his right to make observations had been breached, a consideration of whether the alleged breach was sufficient to give him a “substantial interest” for the purpose of s. 50 may indeed overlap with the kind of considerations that would be involved in determining whether it also constituted, distinctly and separately, a substantial ground. I just wish to make it clear that my considerations were not concerned with the latter issue, which is a distinct one notwithstanding the overlap of considerations that may be involved in the context of this particular point.

I also agree with the learned trial Judge’s conclusions that the appellant has not shown that he has been substantially denied an opportunity to involve himself in the process relating to the revised or modified plans, a conclusion which he also distinguished from a finding on the merits as such of the grounds.

The appellant having failed to demonstrate that he has a “substantial interest” in the matter the subject of his application I would dismiss the appeal.

NOTICE PARTY
Judgment of Mr Justice Finnegan delivered on the 2nd May 2008


The questions certified by the learned High Court judge pursuant to the Planning and Development Act 2000 section 50(4)(f)(i) raises important and complex issues on the construction of section 50(4)(b) and in particular the criteria by reference to which a person may be said to have a substantial interest in the matter which is the subject of the application. I have had the benefit of reading the judgments of the Chief Justice and Mr Justice Kearns. Insofar as the criteria for establishing an environmental interest is concerned I concur fully with the judgments. In the context of an environmental interest the appellant has failed to establish a substantial interest and I would dismiss the appeal.
It is also contended by the appellant that there was a procedural deficit in the proceedings of the Planning Authority and that as a participant in the planning process he has a substantial interest in the regularity of the procedures which attended the application in issue in these proceedings. He alleges numerous breaches and non-compliances by the Planning Authority with the Planning and Development Regulations 2001. I agree with the judgments of the Chief Justice and Mr Justice Kearns that with one exception the breaches and non-compliances relied upon do not involve any interest peculiar or personal to the appellant and could not therefore satisfy the statutory requirement of substantial interest. The exception is his contention that there was a failure to comply with the Planning and Development Regulations 2001 Article 35(1). Having regard to the provisions of the Planning and Development Act 2000 section 250, however, it is clear that the Planning Authority was not in breach of Article 35(1) of the Regulations. The Regulations in Article 29(1)(b) require that any submission or observation in relation to a planning application shall state the name and address of a person making the same. Section 250(1) provides that a notice required by the Act or any Regulation to be served or given to any person may be served or given by sending it by post in a pre-paid registered letter addressed to him or her at the address for service which has been furnished and that is what occurred here.
It being the case that the appellant has not established any procedural deficit or irregularity whatsoever which is substantial it is not necessary that the court on this appeal to determine whether, should there have been a breach of Article 35(1) or other requirement of the Act or Regulations, the appellant would have been entitled to challenge by judicial review the decision of the Planning Authority on the basis that his participation in the process could give him a substantial interest. I would leave over for determination on an appeal in which such a breach has been established the determination of whether any breach of the Act or Regulations could be the basis of an application for judicial review and if so the criteria by reference to which it could be said that a person relying on the same has a substantial interest. I am, however, satisfied that mere participation in the planning process of itself is insufficient to constitute such an interest. If such participation could constitute an interest for the purposes of section 50 the interest identified of necessity would have to be one peculiar or personal to the applicant for judicial review to meet the requirement of being substantial. I would leave over consideration of this issue and, if appropriate, the criteria to a future case in which these issues require to be determined.

JUDGMENT of Mr. Justice Kearns delivered the 2nd day of May, 2008

The applicant is a sailor and retired merchant seaman who lives in the town of Kinsale. He has lived all his life in Kinsale and grew up in the Ballymacus area where the notice party has been granted planning permission for a substantial hotel, golf and leisure resort at Ballymacus Head and Preghane Point at the entrance to Kinsale Harbour.
Mr. Harding is totally opposed to this development on environmental grounds, although he lives some three kilometres away from the site of the proposed development. Members of his extended family still reside in the Ballymacus area and his uncle, Charles Harding, owns a portion of the headland itself. In his various affidavits sworn in the proceedings, Mr. Harding asserts that he has over the years maintained a constant and continuous interest in the area and visits it frequently. He visits the area both by land and sea and contends that for these reasons he has a substantial interest in the development project as the same is defined at s. 50 of the Planning and Development Act, 2000.
While the applicant was an objector to the proposed development and participated in the planning process, the first named respondent made a decision on 1st October, 2005 to grant planning permission to the notice party for the proposed development subject to 72 conditions.
While the applicant had the option of bringing an appeal from this decision to An Bord Pleanála, he elected instead to seek leave to bring judicial review proceedings to quash the decision of the first named respondent on a variety of grounds. The application for leave was heard in the High Court (Clarke J.) who refused to grant such leave in a judgment delivered on 12th October, 2006. The learned trial judge found that the applicant had failed to demonstrate the necessary “substantial interest” required as a precondition for obtaining leave under s. 50 of the Planning and Development Act, 2000.
The applicant then applied for a certificate for leave to appeal to the Supreme Court. The learned trial judge granted such certificated by judgment delivered on 30th November, 2006 in respect of the following point of law:-

“What are the criteria by reference to which a person may be said to have a ‘substantial interest’ even though they do not have a financial or property interest within the meaning of s. 50 of the Planning and Development Act, 2000 and has this court properly applied such criteria to the instant case?”

“I cannot agree, however, with the submission advanced on behalf of the applicant 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 affected by s. 19 (3) of the Act of 1992 obliges the applicant in a case such as this to proceed by way of an application under O. 84 of the Rules of the Superior Courts 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.”

“Having regard to the legislative history and, in particular, to the increasingly strict provisions for commencing judicial review proceedings in planning matters put in place by the Oireachtas, it seems to me that in deciding what is intended by the phrase ‘substantial interest in the matter which is the subject of the application’, an equally rigorous approach must be adopted. The interpretation of that phrase in the proviso to s. 50 (4) of the Act of 2000 must be informed by the general approach found in the legislation to the question of appeals of this nature provided, however, that the legislation is not applied in such a restrictive manner that no serious legal issue legitimately raised by an applicant could be ventilated, or which would have as its effect the inability of the courts to check a clear and serious abuse of process by the relevant authorities, such that either event might thereby remain outside the supervisory scrutiny of the courts, a factor also considered by Keane J. in the case of Lancefort Ltd. v. An Bord Pleanála (No.2) [1999] 2 IR 270.”

“While I accept the applicant's argument that the Act makes it clear such substantial interest may be wider than an interest in land, or a financial interest and therefore, in theory, it can cover a wide variety of circumstances, I consider that the substantial interest which the applicant must have is one which he has already expressed as being peculiar or personal to him.”

“In my judgment, s. 50 of the Act of 2000 separates, even more clearly than under previous Acts, the applicant's interest, which is to be considered from the point of view of his having established the required substantial interest and the second requirement, being one under which the applicant must establish to the court that there are, objectively speaking, substantial grounds for contending that the decision is invalid.”

“The authorities reflect a tension between two principles which the courts have sought to uphold: insuring 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 an 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.”

“Whilst in Lancefort standing was considered under O. 84 r. 20(4) and not s. 50 of the Act of 2000 it appears that a construction of s. 50 of the Act of 2000 which is consistent with the constitutional right of access to the courts requires the court to have regard to the first principle referred to by Keane CJ. In practical terms, this seems to require the court to have some regard to the grounds on which the decision is challenged when deciding whether the applicant has satisfied the standing requirement of s. 50(4)(b). The wording of the section so permits. What the applicant must have is a substantial interest in “the matter which is the subject of the application”. In a judicial review application such as this, “the matter which is the subject of the application” is the challenge to the validity of the decision on specified grounds.”

“If a planning authority or the Bord or, indeed, a notice party can satisfy the court that the person seeking judicial review does not have a sufficient interest to meet the test set out in s. 50, then it does not seem to me to be appropriate for the court to go any further in a consideration of whether there are substantial grounds for the challenge. Furthermore in cases where those parties persuade the court that an appeal to the Bord would be an adequate remedy then it is, again, unnecessary to consider whether there are substantial grounds. In either case a decision as to whether there are, or are not, substantial grounds would be redundant. In such circumstances it would be unnecessary for the court to embark on a consideration of the strength of the grounds put forward for suggesting that the decision under challenge is invalid.”

“(1) (a) Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application.”

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

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

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

“While the requirements of s. 50 of the Act of 2000 include the obligation for an applicant to show "substantial interest", this has not been the subject of any significant judicial guidance to date. However, it is clear that the nature of the interest in question is not limited to an interest in land or other financial interest. It is also clear, however, that an applicant directly affected by a proposed development will in all probability have a "substantial interest".

“As has been stated in several cases, consideration of the legislative scheme makes it clear that the Oireachtas intended that s. 50 be stricter than the equivalent section of the earlier Local Government (Planning & Development) Act, 1992, which itself adopted a stricter set of criteria applicable to challenges to the grant of planning permission than previously existed. This is because there is in place an extensive statutory scheme under which members of the public may object to the original grant before a planning authority, and may also appeal to and be heard by an independent appeal authority, namely the first respondent [An Bord Pleanala]. To that appeal scheme the statute also provides for the nomination of certain designated parties, who have an automatic right to be heard, with the view to ensuring wide ranging representation in planning matters from diverse interest groups.”

“The next basis upon which the applicant contends that she has a substantial interest is by virtue of her membership of An Taisce and the Monkstown Salthill Residents Association and the interest which he has in the proper planning of the Monkstown area. Being interested in planning matters is wholly different to having an interest in the subject matter of a particular application. An interest even if it is a passionate interest in planning matters will not suffice to establish a substantial interest in the subject matter of a particular application. In this regard I would respectfully agree with the following dictum from the judgment of Macken J. in the case of Harrington v. An Bord Pleanála where she says: ‘I consider that the substantial interest which the applicant must have is one which he has already expressed as being peculiar or personal to him’.
Clearly a mere interest in planning matters falls far short of the kind of personal interest or interests peculiar to a person so as to amount to a substantial interest.
The fact that the applicant is a member of An Taisce and indeed of a residents association indicates she has an interest in planning matters, but her membership of An Taisce does not give her any kind of special status which would amount to a substantial interest for the purposes of s. 50.”

“In my view the requirement that an interest must be ‘peculiar or personal’ to an applicant does not mean that if some other party has the same or similar interest in the subject matter of the application, that both are thereby excluded from having a ‘substantial’ interest. If this were so it would have the bizarre consequence of excluding householders from an estate of houses for having a substantial interest in a development taking place adjoining their estate. Clearly this could not be so.
In my view what the phrase ‘peculiar or personal’ imports is that the proposed development the subject matter of the application is one which affects the applicant personally or individually in a substantial way as distinct from any interest which the wider community, not so personally and individually affected, might have in the proposed development. Thus, as in the case of a housing estate many people might be affected substantially in this way and have a ‘substantial’ interest.”

“Therefore it seems that the first criteria that must be considered is whether it can properly be said that the interests sought to be relied on as meeting the threshold have been asserted (or would, were it not for the contended breach of process have been asserted).
However, even where the interest contended for has been asserted, that does not, of itself, establish that the interest is ‘substantial’. Very many persons may have some sort of ‘interest’ in one sense of the word in any given planning application. To take but a simple example, an application for a significant housing development which, it is contended, might have an adverse effect on traffic, is something which might be of some relevance to a large number of persons. However the degree of relevance is dependent upon the extent to which it might reasonably be said that the person (or an organisation representing a group of persons) may be affected. The fact that one might, on occasion visit the relevant area (for, for example, personal, social or sporting reasons) might, in one sense, give one an interest in the traffic in that area but it could hardly be said to be a ‘substantial interest’. On the other hand a resident’s association representing an adjoining area who might wish to put forward an argument that there would be a very significant impairment of their ability to move in and out of their housing estate would undoubtedly have a much more significant interest.
Furthermore it should be noted that the nature of the proposed development itself, both as to its scale, and the extent to which it might be said to alter the area in which it is located, can have the potential to increase the range of persons who might legitimately be said to have a significant interest in the matter. For example a minor extension to an individual house located in an unobtrusive part of a provincial town would be unlikely to be of legitimate significant interest to any but those in its immediate vicinity. A major redevelopment of the town centre, which could have an effect on the way in which all of the residents of the town had an ability to enjoy the amenities of the town could, at least in principle, have the potential to give rise to a much wider range of persons having a significant interest in the development.”

“It seems to me, therefore that, having identified the interest which an applicant has either expressed (or might be taken to have been prevented from having expressed) the court should, by reference to that interest, identify the importance of the interest by reference to criteria such as:-

“However I am not satisfied that the degree of connection which he has set out in his affidavits meets the more stringent test introduced in the 2000 Act of a “substantial interest”. I have come to that view notwithstanding the fact that the development is, manifestly, of a significant scale and such as would, if it goes ahead, be likely to bring about a material alteration in the headland itself. Thus I would be inclined to the view that the scope of persons who might be able to establish that they have a substantial interest in this project would be wider than might be the case in respect of projects significantly smaller in scale or those which would not be likely to bring about significant change in the area in which they are located. However notwithstanding that I accept that the scale of and nature of the project extends the scope of those with a “substantial interest” to a wider boundary it does not seem to me that Mr. Harding comes within that extended scope. I accept that his interest is more than that of a mere bystander. I accept that his concerns in relation to the development of the headland are genuine. However it seems to me that the test of “substantial interest” requires something more than a familial connection with an area coupled with a pattern of visiting the area as a former native and as a sea faring person.”

(a) That he has an interest in the development the subject of the proceedings which is “peculiar and personal” to him.
(b) That the nature and level of his interest is significant or weighty

proposed development

“Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive”