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1. The Applicants are husband and wife and live together at 10, Park Lane, Chapelizod, Dublin. The Notice Party is a neighbour who lives in the adjoining property at no. 11 Park Lane, Chapelizod. The dwellinghouses situated at nos. 9, 10 and 11 Park Lane were constructed thirteen years ago on land originally acquired by Mr. White and his wife in 1986. The houses are adjacent to the Phoenix Park and part of this property is bounded by the Phoenix Park wall with the remainder of the property bounded by high walls to protect their privacy.

2. In November 1996 the Applicants obtained planning permission to construct an extension and conservatory to their house. The first floor of the extension was designed so as not to directly overlook the property of their adjoining neighbours. Two of the windows of the extension facing Park Lane overlook the Notice Party's property at an oblique angle. One window is a bathroom window containing opaque glass while the other window is a landing window that directly overlooks the car parking space of the property. The windows look out on the front of their property and do not impinge on the private space of the Notice Party.

3. The Applicants subsequently decided to build a larger conservatory and a planning permission was obtained in October, 1997 to carry out alterations to the earlier grant of permission.

4. The Notice Party was consulted by Mr. White in respect of this latter application and he was shown drawings detailing the alterations proposed of the conservatory as a proposal brought the conservatory closer to the boundary wall and the height of the conservatory exceeded that of the wall. The Notice Party did not have any objections to their building proposal.

5. In early June 1999, soon after the erection of a planning application site notice on the 9th June, 1999 the Notice Party Mr. Tracey informed Mr. White that he had applied for planning permission and that he wanted to show him the plans. They had a conversation across the boundary wall between their properties. Some minutes later Mr. Tracey came to the front door of Mr White’s house and gave him a set of drawings showing his proposed development. Mr. Tracey referred Mr. White to the drawings and specifically drew his attention to the East elevation of the development to indicate to him that there would be no windows on the elevation, which elevation would face towards the Applicants' property and to the South elevation to point out that the two of the windows on that elevation nearest to the Applicants' boundary wall would contain obscure glass.

6. The Applicants were concerned about the implications of the proposal on their property as the proposed development was much higher than their property and was close to their boundary wall. Mr. White consulted with Mr. Paul Kelly, Architect in respect of the proposed development and sought his advice. He states that Mr. Kelly advised him that the proposed development would not overlook or overshadow their property and he further advised, that in his opinion, the Notice Party, Mr. Tracey, was unlikely to obtain planning permission for the proposed development. The Applicants were anxious to maintain neighbourly relations with Mr. Tracey and they agreed that as no windows overlooked their property and they were not overshadowed, they could live with the development though they would have preferred that such a development did not take place.

7. Some ten to fourteen days after Mr. Tracey gave Mr. White the set of drawings he called to his door and asked for their return. When Mr. White returned the drawings either later that evening or the following evening he informed Mr. Tracey that they were unhappy with the planning application and they thought it was much too high. Mr. Tracey responded by saying that he was not going to change the plans, that they could object if they wanted but he had been assured in discussions with the planning department that he would get planning permission. He told Mr. Tracey that because they were not overlooked or overshadowed and because of their good relations in the past and the fact that he had facilitated them when they constructed their extension and conservatory, neither he nor his wife would object to his application.

8. It appears that after planning permission was sought on the 10th June, 1999 that a decision was made by Dublin Corporation refusing planning permission and thereafter a fresh application for planning permission was made by Mr. Tracey on the 17th September, 1999 which was for substantially the same dwellinghouse as had been shown to Mr White on the drawings furnished in early June, 1999, with some minor modifications in respect of the latter application.

9. On the 27th May, 2000 Mrs. White asked Mr. White to attend at the offices of the planning department of Dublin Corporation to inspect the planning file because she had concerns arising from Mr. Tracey's conversation with him on Friday 26th May, when he informed him that he had obtained a planning permission. On the 29th May he inspected the planning files. He only then became aware that revised drawings substantially different in character from the ones given to him in June, 1999 had been filed and that permission was granted on foot of these drawings.

10. He inspected the planning file in detail on Friday 2nd June and extracted the planning history. In the course of his inspection of the planning file he says that he did not see any letter of consent from Mr. Tracey to the planning department agreeing to an extension of time for the determination of the planning application by Dublin Corporation beyond the 31st January, 2000.

11. Mr. White says that he was shocked and amazed on reading the planning file to discover that the Notice Party had obtained planning permission to build a three storey house with six windows on the east elevation and two windows on the north elevation with side bays facing East, five of which would certainly overlook their conservatory and garden. He states that neither of the Applicants were aware before the 29th May, 2000 that Mr. Tracey had submitted revised drawings to the planning authority nor did they become aware until that date that the planning authority had granted Mr. Tracey planning permission for the development shown on the revised drawings. He states that there was no statutory public notice of the revised planning application or of the submission of revised drawings on the planning application.

12. Mr. White says that on the 31st May, 2000 he had a detailed conversation with Mr. Tracey about the planning permission he had obtained. He specifically referred to the evening when Mr. Tracey had called with the plans and pointed out the East and South elevations. Mr. Tracey responded by sating that he had kept his word but Dublin Corporation had forced him to change the plans. He stated that the plans lodged on the second planning application were the same as those lodged on the first application except for some minor modifications and accordingly he had not misled him. Mr. White pointed out to Mr. Tracey that the matter which concerned him was that nobody had drawn his attention to the changes requested by the Corporation or the revised drawings submitted to the Corporation and he was at all times under the impression that the original application was the one under consideration.

13. Mr. White says that because of a problem with a blocked drain between their respective properties which occurred about the week beginning the 21st February, 2000 he spoke to Mr. Tracey on at least five occasions in the period between the 21st February and the first two weeks in March. At no stage during this period did Mr. Tracey say either to him or to his wife that he had submitted revised drawings to Dublin Corporation. In the course of a conversation with him on the 26th May, 2000 he thought Mr. Tracey informed him that he had obtained planning permission. He did not say that it was for a development different to that shown on the plans he had furnished to him. Mr. White says that Mr. Tracey was very well aware that if the revised drawings were made available to the Applicants they would have objected to the development, unless the revised proposals were substantially modified. He states that the problem with the blocked drain occurred in or around the week beginning the 21st February, 2000. Mr. Tracey knew then that Dublin Corporation had made a request pursuant to Article 35 of the Planning Regulations and the revised drawings were submitted on that date and yet he chose not to tell Mr. White about them. Mr. White states that it is apparent from the documents and plans prepared and lodged by Mr. Tracey on his planning application that Mr. Tracey was aware of the importance of ensuring that his proposed development would not impact on the privacy of adjoining properties. He states that it is patently clear from the plans originally submitted that the proposed development would not overlook their property and the fact that the proposed development did not overlook the existing dwellinghouse was a matter specifically adverted to in the planning application. He points out that the outline description and specification dated the 8th June, 1999 prepared by Mr. Carr-Driver, Architect, states at paragraph 2 under the heading General Description of Site "Due to the location of the existing house and its neighbours, views are only permissible to the north and west from the proposed house in order to avoid overlooking." In the introduction to Mr. Tracey's planning appeal submission dated the 3rd September, 1999 to An Bord Pleanála it is stated at paragraph 3:

14. In the appeal submission under the heading Reason 3, the last paragraph states:

15. Mr. White says that by reason of the conduct of the Notice Party, he and his wife had been prevented and precluded from objecting to the revised drawings submitted by Mr. Tracey to the planning authority and as a result Mr. Tracey has obtained a planning permission to construct a dwellinghouse which is materially different from that which was originally applied for, which will seriously injure the amenities of their property and seriously disturb them in the use and enjoyment of their property. He says that the construction of the dwellinghouse will result in a significant loss of privacy to their property and will significantly reduce its value because it will be visually obtrusive and it will overlook their property to a significant degree.

16. Mr. White says that the revised drawings submitted by Mr. Tracey to the planning authority on the 21st February, 2000 showed revisions and alterations which went beyond mere modifications. The changes proposed materially altered the form and appearance of the development from that for which the Notice Party had sought permission and resulted in a planning permission for a dwellinghouse which would overlook the properties at no. 10 and no. 11 Park Lane. Mr. White says that he is advised that Dublin Corporation ought to have directed the Notice Party to bring a fresh planning application for the development proposed in the revised drawings. Alternatively, he states that Dublin Corporation knew or ought to have known from their inspection and consideration of Mr. Tracey's planning application that the revision outlined by them in their letter of the 14th February, 2000 to Mr. Tracey would result in a dwellinghouse which would impact more significantly on adjoining properties than the dwellinghouse proposed in the planning application lodged by Mr. Tracey and should have required Mr. Tracey to publish a newspaper notice and erect a site notice informing the public that revised plans had been submitted to Dublin Corporation and were available for inspection.

17. Mr. White says that the failure of Dublin Corporation to direct Mr. Tracey to bring a new planning application in respect of the development proposed on the revised drawings or alternatively to direct the Notice Party to re-advertise the said planning application and to erect a new site notice for the purpose of notifying adjoining property owners, including the Applicants and interested members of the public, of the submission of revised drawings on the planning application also precluded the Applicants from making objections to the dwellinghouse proposed in the revised drawings submitted by Mr. Tracey.

18. Mr. White says that, in consequence of the actions of Dublin Corporation and Mr. Tracey, neither he nor his wife became aware until the 29th May, 2000 of Dublin Corporation's decision which was made on the 20th March, 2000 to grant planning permission.

19. By letter of the 12th July, 2000 Messrs. Vincent and Beatty, Solicitors wrote on behalf of the Applicants to Mr. Tracey requesting him to furnish an undertaking in writing that he would consent to the revocation of the grant of permission and an undertaking in writing not to carry out any development under the grant of permission. This Mr. Tracey has refused to furnish and on the same day the Applicants' Solicitors wrote to the principal officer of the Planning and Development Department of Dublin Corporation requesting it to revoke the grant of permission made on the 20th March, 2000 and to issue the Notice Party, Mr. Tracey a grant of permission in accordance with the plans and particulars as submitted to them on the 17th September, 1999 by reason of their failure to notify a decision on the planning application to Mr. Tracey on or before the 31st January, 2000. He stated that Dublin Corporation did not reply to this letter. The apparent basis of this letter was the belief that no extension of time had been granted to Dublin Corporation in relation to the planning application that had been filed on the 17th September, 1999 and based upon this fact, if the same was true, the Notice Party would have been entitled to a default permission by the 1st February, 2000.

20. On the 7th July, 2000 copies of documentation on the planning file were obtained by Brady and Company, Law Agents and Searchers from the planning department of Dublin Corporation. Evidence has been furnished in the form of the documents contained on the Dublin Corporation planning files in respect of the planning applications made in June of 1999 and the subsequent planning application made in September of that year. It appears that while a considerable volume of documentation was furnished to Brady and Company, Law Searchers that a number of items were not included in the documentation furnished including letters of consent to extensions of time to the 10th November, 1999, the 17th December, 1999 and the 31st January, 2000. Nevertheless, the notes taken by Mr. White in relation to his inspection of the planning file in the first week of June, 2000 showed that items on the file included a letter of the 1st December, 1999 extending the time to the 31st January, 2000. At the same time the file indicated that the Notice Party, Mr. Tracey, was to be asked to submit revised drawings under Article 35 of the Planning Regulations and it was agreed that the following changes would allow for a favourable decision:

21. At the same time no direction was given to readvertise the planning application or to furnish a site notice relating to the revisions sought. It appears from the file that revised drawings were submitted on the 21st February, 2000 in response to the invitation in that behalf by Dublin Corporation.

22. This Court has been furnished with copies of all the relevant documentation available on the file at inspection by Brady and Company, Law Agents and Searchers.

23. The initial refusal of planning permission was based upon a report of a planning inspector of Dublin Corporation, Mr. Sean Murphy, to the Dublin planning officer Mr. P.F.A. McDonnell. In his report he recommended that the permission be refused for the following reasons:

24. These four reasons were incorporated in the notification of a decision to refuse permission of the 5th August, 1999. Thereafter Mr. Tracey appealed the decision of the planning authority to An Bord Pleanála on or about the 3rd September, 1999. With the appeal was a submission by Mr. Kevin Carr-Driver, Architect on behalf of Mr. Tracey to An Bord Pleanála. In the context of this appeal each of the four reasons advanced for refusing planning permission were addressed in turn. With regard to the third reason which was that the proposed property would be seriously injurious to the amenities of the immediately adjoining property through overshadowing and visual obtrusion, it was stated that it should be noted that the windows on the proposed house which faced towards the existing house have obscured glass in order to prevent overlooking.

25. Notwithstanding the decision to appeal the refusal of planning permission by appeal of the 3rd September, 1999 a fresh planning application was made to Dublin Corporation which was received on the 17th September, 1999. The description of the property in the site notice and in the advertisements in relation to this property were identical to those previously pertaining to the earlier planning application.

26. On the 14th February, 2000 a letter was sent on behalf of the Assistant City Manager to Mr. Tracey requesting him to submit revised plans in accordance with Article 35 of the Local Government (Planning and Development) Regulations 1994 (“The 1994 Regulations”) which shall make provision for the following:

27. It appears from the file that following this request fresh revised drawings were furnished to the planning department on the 21st February, 2000 by Mr. Kevin Carr-Driver on behalf of Mr. Tracey for the attention of Mr. Kieran Rose. A report on the file shows that Mr. Rose made a recommendation that planning permission be granted subject to a number of conditions following the submission of the revised drawings under Article 35. Mr. Rose in his report stated that the revised drawings were submitted on the 21st February, 2000 and are acceptable in principle. He states then "However the drawings are insufficiently detailed." The first of the conditions recommended by him is as follows:-

28. The notification of the decision to grant planning permission issued on the 20th March, 2000 and contained each and every condition and reason proposed by the planning officer in his earlier report.

29. Mr. Paul Kelly, Architect has sworn an affidavit on behalf of the Applicants. He states that in June of 1999 he was retained by Mr. White to advise on a planning application which had been lodged by his next door neighbour, Kevin Tracey for permission to build a new dwellinghouse in the side garden of his property at no. 11 Park Lane, Chapelizod, Dublin 20. He states that he inspected the planning application bearing reference no. 1822/99 and noted from the plans that there were no windows on the East elevation and obscure glass was illustrated in respect of those windows on the side of the house nearest no. 10 Park Lane. The East elevation drawing 012/A illustrated a vent, boiler and vent and the south elevation drawing 013/A illustrated ground floor windows with obscure glass, a first floor with obscure glass and an attic window with obscure glass. He states that he was of the view, and informed Mr. White that the planning permission would be refused for the dwellinghouse proposal in this planning application because it would be visually obtrusive on the proposed site having regard to its bulk, scale and mass and because it would impact to a significant degree on the amenities of the neighbouring properties at no. 10 Park Lane, which is owned by the Applicants, and the existing house at no. 11 Park Lane, which is owned by Mr. Tracey. He states that the proposal was an over-development of the site and the lack of sufficient open space around the curtilage of the dwellinghouse rendered it inconsistent with and contrary to the proper planning and development of the area. From the Applicants' perspective, the east elevation of the proposed dwellinghouse, which faced towards their property, comprised of a large blank gable wall, which in design terms was visually unattractive. However, the absence of windows on that elevation meant that their property would not be overlooked by the proposed development.

30. Mr. Kelly states that he was contacted by Mr. White on the 31st May, 2000 and was informed that planning permission had been obtained by Mr. Tracey to build a house in the garden of no. 11 Park Lane. Mr. White informed him that Mr. Tracey had been refused permission for his proposed development on planning file reference no. 1822/99 had then lodged a similar planning application in September of 1999 and had been granted permission for a dwellinghouse which was radically different from the dwellinghouse for which permission had been originally sought. He was requested by Mr. White to inspect the planning file and to advise the Applicants generally.

31. Mr. Kelly attended the planning department of Dublin Corporation on the 28th June, 2000 and requested to inspect the file reference no. 1822/99 and file reference no. 3006/99. He noted from his inspection of planning application reference no. 1822 that:

32. With regard to planning file reference no. 3006/99 he noted the following:

33. Mr. Kelly attended the office of the planning and development department on the 28th July, 2000 to inspect the drawings lodged on the planning applications and was advised that the file no. 3006/99 was missing. On the 2nd August, 2000 he was informed by an officer of the department that the file had been found and was available for inspection. He attended the office again on the 3rd August, 2000. Having examined the drawings submitted by Mr. Tracey on the planning applications he states that he is satisfied that the drawings submitted by him on planning application 3006/99 on the 17th September, 1999 illustrated the same dwellinghouse as shown on the drawings submitted under planning application no. 1822/99 save for some very minor modifications. He observed that the site notice erected in September, 1999 on the second planning application is in precisely the same terms as the site notice erected in June, 1999 on the first planning application. He states that from a comparison of the planning applications and the drawings lodged therewith he noted the following differences:

34. Mr. Kelly states that the differences that can be discerned from a comparison of the two planning applications are modifications of an extremely minor nature and are of such architectural and aesthetic insignificance that it seemed to him that these modifications were incorporated to ensure that the second planning application would be sufficiently different from the first planning application to allow Dublin Corporation to consider it as a new and different planning application. He states that in his opinion the permission sought by Mr. Tracey for the development proposed on planning application 3006/99 was to all intents and purposes the same as that comprised in the earlier planning application and accordingly it ought to have been refused. He states that the repositioning of the dwellinghouse one metre closer to the Park Lane boundary, the reduction of the footprint of the building by six inches and the reduction in the depth of the porch were the only dimensional modifications introduced on planning application 3006/99 and those minor changes were not adequate or sufficient to address or overcome the reasons given by Dublin Corporation for refusing permission for the development proposed on planning application 1822/99.

35. Mr. Kelly says that from his examination of the second planning application he is of the view that the application was not made in accordance with the Local Government (Planning and Development) Regulations, 1994 for the following reasons:

36. Mr. Kelly says that he is most surprised that Dublin Corporation took the view that the proposed development under planning application no. 3006/99 was acceptable subject to the changes outlined in their letter of the 14th February, 2000 to the Notice Party. He states that those changes provided for the re-positioning of the dwellinghouse closer to the street frontage, the redesign of the roof so as to confine the dormer element to the rear and the re-orientation of the ridge to a north-south line and, in his opinion, amounted to revisions and alterations which went beyond modifications as they changed the whole character of the proposed development and materially altered the planning application originally submitted by the Notice Party.

37. Mr. Kelly further states that these provisions and alterations were of such a degree as to warrant a fresh planning application as the revisions and alterations were material to the extent that they would impact on the amenities of adjoining properties. He expresses the opinion that the adjoining property owners would have wanted prior notification of those revisions and alterations in order to enable them to consider and understand their effects so as to decide whether or not they should make objections or submissions to the Respondents. He stated that the dwellinghouse illustrated in the drawings submitted with the second planning application had minimal impact on the Applicants' property as there were no windows on the East elevation, whereas the dwellinghouse proposed in the revised drawings submitted to the planning authority on foot of the Article 35 request, of which no public notice was given, contains six windows on the East elevation and two windows on the North elevation with the side bays looking East, which would result in a high degree of overlooking of the Applicants' property.

38. Mr. Kelly continues that the revised drawings submitted by the Notice Party showed revisions and alterations that went beyond the changes invited by Dublin Corporation by letter dated 14th February, 2000. The proposed dwellinghouse was completely redesigned so that the dwellinghouse for which planning permission had been granted is entirely different from that for which planning permission was sought. The dwellinghouse proposed by the Notice Party on the revised drawings was so comprehensively and significantly different in form and appearance from that applied for that it ought to have been the subject of a new planning application and should not, in his professional opinion, have been considered and permitted by the Respondents in the context of Article 35 of the Planning Regulations or without notice to the public. He states that the differences between the development applied for and that for which permission has been granted are too numerous to list but can be readily identified by a comparison of the drawings originally submitted on the planning application with the revised drawings submitted in February, 2000. In summary he states that the ground floor, first floor and attic have entirely different footprints and layouts. The fenestration is different in size, shape, design and location. The roof profile is different. The East elevation is entirely different in that it now comprises six windows, two of which are dormer windows. It is harder to draw comparisons between the development applied for and that for which permission has been granted. He states that it is his view they are limited to the fact that both are houses, the amount of accommodation provided, the use of similar materials and the fact of having the same site address.

39. Mr. Kelly says that he did not see on the planning file sufficient specifications for the development proposed on the revised drawings. He states that though some of the boundary distances and overall dimensions of the dwelling are set out in the revised drawings, the distances of the proposed dwelling to the Park Lane boundary and the detailed dimensions that one would expect to be provided are not set out on the revised plans and he notes that this insufficiency of detail did not go unnoticed or remarked upon in the planning officer's undated and unsigned report of this planning application.

40. Mr. Kelly states that it is clear from a comparison of the drawings originally submitted to the planning department on the 17th September, 1999 and revised drawings submitted on the 21st February, 2000 that such dimensions as were provided on the earlier drawings cannot apply to the development proposed on the revised drawings having regard to the fact that the revised drawings illustrate an entirely different development. In his opinion the development proposed on the revised plans ought not to have been considered and permitted by Dublin Corporation given the insufficiency of detail on those drawings and the absence of any information concerning the relationship of the proposed dwellinghouse to adjoining properties to enable the Respondents to give proper consideration to the impact of the proposed dwellinghouse on the properties.

41. Mr. Kelly further states that the decision of Dublin Corporation to grant the Notice Party planning permission for the development proposed by him is contrary to the proper planning and development of the area. He states that the proposed development, due to it height, size, position and orientation, will result in the high degree of overlooking and seriously injure the amenities of the adjoining properties as nos. 10 and 11 Park Lane. He states, moreover, that the proposed dwellinghouse is to be located in the garden area of no. 11 Park Lane and consequently there will be inadequate private open space to that property and the proposed dwellinghouse contrary to the proper planning and development of the area.

42. Mr. Kelly points out that the Dublin City Development Plan of 1999 states that:

43. It is a stated objective of that plan to protect residential amenity and privacy and to ensure that new development does not adversely affect the amenities of the neighbouring properties. The plan requires both qualitative and quantitative standards to apply in respect of residential development and states that good design in terms of housing layout, configuration of houses, relationship of houses to each other, to open space and to road systems should aim to achieve the provision of adequate open space and screening so as to be meaningful in terms of achieving freedom from observation.

44. Mr. Kelly points out that the plan provides that a standard of 15 metres sq of private open space per bed space be applied in respect of dwelling houses. All of the open space of the proposed development is overlooked so the reality is that the proposed dwellinghouse is deficient of private open space. He further points out that the plan further provides that a distance of at least 2.3 metres shall be provided between detached dwellinghouses. The proposed development does not comply with this standard as the distance between the proposed dwellinghouse and no. 11 Park Lane is shown as 1.84 metres on the revised drawings.

45. An affidavit has been sworn by Katherine Delahunt, solicitor of Vincent and Beatty Solicitors, solicitors for the Applicants. She points out that the Applicants retained her firm on the 19th June, 2000 to advise them in respect of the planning permission which had been obtained by Mr. Tracey for the construction of the dwellinghouse at no. 11 Park Lane, Chapelizod. She confirms that she was instructed that the Applicants first became aware on the 29th May, 2000 that the permission was not for the dwellinghouse originally proposed by the Notice Party but was for a different dwellinghouse shown on revised drawings lodged with the planning application in February, 2000 of which no notice was given to the Applicants.

46. Ms. Delahunt states that she was advised by Mr. White that he had made known his objections to the planning permission to Mr. Tracey on the 29th May, 2000 and again on the 31st May and that a meeting had been arranged between them and their respective architects on the 29th June, 2000 to see if a compromise could be reached. She is instructed that Mr. White had requested an earlier meeting but it had been impossible to schedule a meeting any earlier as Mr. Kevin Carr-Driver, the Notice Party's architect and Mr. Paul Kelly, the Applicants' architect had holiday arrangements for that month. She points out that the Applicants were very anxious to await the outcome of that meeting to see if the matter could be resolved amicably with the Notice Party before taking any steps to institute legal proceedings.

47. Ms. Delahunt states that she advised the Applicants to seek counsel's opinion on the legal issues that would arise in the event that proceedings were necessary. She says that in the course of a consultation with counsel on the 20th June, 2000, Mr. White was advised that proceedings challenging the validity of the planning permission would raise important, complex and technical legal issues and the second named Applicant was advised to obtain the opinion of senior counsel before instituting such proceedings.

48. She states that following the meeting on the 29th June, 2000 the Applicants considered the proposals put forward by Mr. Carr-Driver on behalf of Mr. Tracey and consulted her and Mr. Kelly for advice. Mr. Kelly was instructed by Mr. White to inform Mr. Carr-Driver that the proposals were unacceptable and to see whether some solution could be found. On the 3rd July, 2000 Mr. Kelly advised Mr. White that compromise could not be reached. The Applicants immediately instructed Ms. Delahunt to brief senior counsel and a consultation meeting was arranged with counsel on the 15th July, 2000.

49. Ms. Delahunt states that in order to brief counsel she instructed Brady and Company, Law Agents and Searchers to attend the planning department of Dublin Corporation to obtain copies of the documents on the planning files. On the 7th July, 2000 Dublin Corporation made available only part of those files to Brady and Company. In particular she states that they declined to furnish copies of the plans, drawings, maps and specifications submitted on these planning applications on the grounds that to do so would be an infringement of copyright. She states that by letter dated the 12th July, 2000 she requested Mr. Tracey to furnish within seven days an undertaking in writing that he would consent to the revocation of the grant of permission and an undertaking in writing not to carry out any development under the grant of permission. On the same day she wrote to the principal officer of the planning and development department of Dublin Corporation requesting the Corporation to confirm within seven days that the grant of permission made on the 4th May, 2000, (which date is in fact the date on which the grant issued, rather than that when the decision was made), would be revoked and a default permission would issue to the Notice Party in accordance with the plans and particulars submitted to them on the 17th September, 1999. During the course of July 2000 Senior and Junior Counsel requested consultations with Mr. Kelly to clarify certain matters concerning the drawings lodged on planning file reference no. 3006/99. Mr. Kelly was unable to deal with all the queries raised by Counsel during these consultations and advised that he would have to re-attend the planning office to inspect the drawings. On the 26th July, 2000 Counsel furnished Ms. Delahunt with draft Plenary proceedings for issuing and service on Mr. Tracey and advised that Judicial Review proceedings could not be settled until receipt of further instructions from Mr. Kelly in respect of queries raised during the consultation. It was intended to issue the Judicial Review and Plenary proceedings before the end of July 2000. However, as copies of the drawings and specifications could not be made available to the Applicants there was an inevitable delay in obtaining instructions for the Judicial Review proceedings and conveying them to Counsel. The instructions sought by Counsel in mid July could only be obtained from an examination of the drawings on the planning file by Mr. Kelly. She states that she was informed by Mr. Kelly that when he attended the planning office on the 28th July, 2000 to inspect those drawings he was informed, after a lengthy search had been undertaken, that planning file 3006/99 was missing. This was found on the 2nd August and Mr. Kelly re-attended the planning department on the 3rd of August but was unable to report on his inspection until the following week due to work commitments by which time Counsel were away on vacation until the end of August.

50. Based upon these facts Ms. Delahunt states that she believes that this delay as has occurred in issuing these Judicial Review proceedings is not unreasonable. She says that she believes that the Respondents are not prejudice by the delay and that the Notice Party has not commenced any development on foot of the grant of planning permission. On the 13th September, 2000 a law clerk in the firm of Vincent & Beatty served Notice of Motion seeking an Order granting the Applicants leave to apply for Judicial Review together with a copy of the affidavit of Michael White grounding same and exhibits referred to therein and a true copy of the statement required to ground the application for Judicial Review on the Law Agent of Dublin Corporation. On the same day the documentation was served on the Chief State Solicitor and on the Notice Party Mr. Kevin Tracey.

51. The Notice of Motion in question dated the 13th September, 2000 indicates that the Applicants will seek the following reliefs:

52. The relief sought in the statement required to ground the application for Judicial Review is for

53. In the alternative, stated to be strictly without prejudice to the foregoing, the Applicants seek

54. Other relief sought are:- Orders of Certiorari directed to the decision of the 20th March, 2000 and the grant Order of the 4th May, 2000; an injunction restraining the Notice Party from carrying out the developments authorised under the grant Order on the planning application in question; a declaration that Dublin Corporation had no jurisdiction or competence to consider the Notice Party’s planning application after the 31st January, 2000 and/or to make a request pursuant to Article 35 of the Local Government (Planning and Development) Regulations 1994 in respect of planning application reference no. 3006/99 and for a decision to grant permission to the Notice Party for the development described in the revised drawings submitted by him pursuant to the aforesaid request. Various items of additional relief are also set forth in the statement in question. The grounds upon which the relief is sought are set out at paragraph E of the statement. The initial grounds are related to the belief that the time when the decision of Dublin Corporation was made in February 2000 was a time when no extension of time existed in favour of Dublin Corporation and based upon this that the Notice Party was entitled to default permission after the 31st January, 2000.

55. In relation to the declaration sought that Section 82(3B)(a) of the Local Government (Planning and Development) Act 1963 is invalid having regard to the provisions of the Constitution, some 19 grounds are set forth in the statement. Relevant to the issues arising on this application are the grounds at

56. By Notice of Motion dated the 2nd October, 2000 the Applicants seek to amend the statement required to ground the application for Judicial Review in the terms of an amended draft. In the context of this amended draft, an Order is sought pursuant to Order of 84 Rule 21(1) of the Rules of the Superior Court extending the time for making this application for Judicial Review. By Notice of Motion dated the 6th October, 2000 Dublin Corporation sought

57. At the outset of the application to me I was told that the Applicant’s compliance or otherwise with the said time restriction was the issue to be tried at this stage of the proceedings and that this has been directed by an Order of the High Court. However, it transpired fairly early on that in fact no issue in fact arose in relation to the Applicants’ compliance with the time restriction outlined in Section 82 aforesaid as it was readily conceded on behalf of the Applicants that they had failed to comply with the time restriction outlined in the Section. It is in light of this fact in particular the Applicants seek to advance their claim that the provisions of Section 82 aforesaid are invalid having regard to the Constitution.

58. In addition to the documentation on file received by the Applicants, it appears that in the course of these proceedings that informal discovery of documents has been made by Dublin Corporation by means of the furnishing of certain documentation without any grounding affidavit. It has been represented to the Court that amongst the documents disclosed is an extension of time for the period subsequent to the 31st January, 2000 for a period including the period of the impugned decision made in March 2000.

59. On behalf of the Applicants it is submitted that they are entitled to challenge the constitutionality of Section 82(3B)(a) of the Local Government (Planning and Development) Act 1963 because (a) they have shown substantial grounds that the decision of Dublin Corporation at issue was ultra vires and (b) in these circumstances where a statute purports to preclude an application for Judicial Review of this Order it acts to exclude the Applicants’ right of access to the Courts guaranteed under the Constitution. While it is conceded that under Section 82(3B) of the Act 1963 as amended an Applicant seeking to challenge a planning decision must show substantial grounds, it is submitted that in the instant case where one seeks to challenge the constitutionaliy of the Act of the Oireachtas that a lesser standard is required at the outset in obtaining leave for Judicial Review and that is the standard of an ‘arguable case’ applied by the Supreme Court in the case of G -v- Director of Public Prosecutions [1994] 1 I.R. 374.

60. In line with the decision of this Court in the case of Blessington and the District Community Council Limited -v- Wicklow County Council [1997] 1 I.R. 273 where in those proceedings the Applicant acknowledged that it was outside the two month limit imposed by Section 82 (3B) but contended that this subsection was invalid having regard to the terms of the Constitution in that it did not contain any provisions to protect the rights of aggrieved parties who had been the victims of misrepresentation, fraud or mistake, this Court must establish whether the Applicant had shown “substantial grounds”. In that particular case Kelly J., in refusing the leave sought to apply for Judicial Review on the basis that the Applicants had failed to show substantial grounds, stated in the course of his judgment that had he concluded otherwise in respect of all or any of the contentions made by the Applicant, the question of the constitutionality of the time bar would remain to be determined. He said that in the course of the hearing before him the issue was touched upon, although he accepted that it was not fully argued. He referred to the decision of the Supreme Court in the case of Brady -v- Donegal County Council [1989] I.R.L.M. 282 at 293 where Finlay J addressed the issue of the locus standi of the Applicant in that case to mount a similar challenge. He stated that it appeared to him that the absence of any saver clause in the subsection had not damnified the applicant nor would its presence have been of advantage to it.

61. In this case it is contended on behalf of the Applicants that they have a sufficient interest to challenge the Section and that they have disclosed substantial grounds under the requirement in Section 82 aforesaid.

62. In light of this contention I considered it appropriate to hear Mr. Paul Gallagher, Senior Counsel for the Attorney General at this stage in the proceedings insofar as he wished to advance an argument on behalf of his client that the Applicants do not have the necessary locus standi to mount a challenge to the validity of the Section having regard to the provisions of the Constitution.

63. Mr. Gallagher indicated that whatever the approach taken by the Applicants in the instant case it did not avoid the necessity on their part of establishing the necessary locus standi . He referred to the affidavit and grounds relied upon in the Statement of Grounds in relation to the Constitutional challenge. He submitted that in essence the Applicants’ case was that the Section was unconstitutional where it did not address the situation where they did not know or could not have known of the circumstances of the planning decision sought to be impugned. He indicated that on the evidence the Applicants were aware of the decision in question on the 29th May but waited for a period of three and a half months before bringing this application to the Court. He said that if the Section were to read that one would have to move within two months from the date of knowledge that the Applicants would still be out of time because the lack of knowledge did not avail them insofar as they had waited three and a half months before moving to this Court. Particular reference in this regard was made to the grounds at (viii) and (ix) in the paragraph E of the Statement.

64. Mr. Gallagher referred in support of his contention to the averments contained in the affidavit of Mr. White at paragraph 8 and to the affidavit of Paul Kelly insofar as they indicated that the Applicants were aware of the essential situation on the 29th May, 2000. This is further supported by paragraph 3 of the affidavit of Catherine Delahunt. She indicates that delay ensued arising out of the fact that no compromise could be reached in circumstance where it was sought. This was something that arose by the 3rd of July and after two months from that date no application has been made to this Court. It is indicated that all the main events had well elapsed more than two months before the application was brought to this Court by Notice of Motion dated the 13th September, 2000. Mr. Gallagher has referred this Court to the decision in the case of Cahill -v- Sutton [1980] I.R. 269 in support of his contention that the Applicants in this case do not have the necessary locus standi . In particular Mr. Gallagher referred this Court to a passage in the Judgment of the Chief Justice at p. 276 of the report where he stated inter alia :-

65. Further reference was made to the Judgment of Henchy J in same case where at p. 286 of the report under part VII of his judgment he stated inter alia as follows:-

66. Later on in the same part of the Judgment Henchy J stated:-

67. It is submitted in the instant case that the absence of a saving clause related to the knowledge of the Applicants, if present in the Section, would not have availed of the Applicants, having regard to the fact that they had the necessary knowledge on the 29th May, 2000. It is submitted that what is of relevance is whether the Applicants could benefit from a consequential statutory amendment in the manner sought. It is submitted that in the instant case a saving clause would not have availed the Applicants.

68. Mr. Gallagher further refers this Court to the decision in the case of Brady -v- Donegal County Council [1989] I.L.R.M. 282 where in the course of his judgment Finlay CJ stated inter alia at p. 293 of the report:-

69. Mr. Gallagher further referred this Court to the decision in Tuohy -v- Courtney [1994] 3 I.R. 1; [1994] 2 I.L.R.M. 503. Counsel referred to portion of the judgment of the Supreme Court delivered by the Chief Justice where at p.40 of the report he dealt with the issue of locus standi, where on the facts of the case the plaintiff was held to have the necessary locus standi . In that case it was submitted that at law there must be imputed to the plaintiff a knowledge of the accrual of the action and of the nature of the loss in broad terms which he had suffered. It was submitted on behalf of the defendant that the Plaintiff was not a person who could assert, as he sought to assert, that he was not, and could not reasonably have been, aware of the accrual of the action until after the efflux of the time limit. Mr. Gallagher sought to contrast the facts in the Tuohy -v- Courtney case with the facts of the instant case.

70. Mr. Gallagher further referred to the fact that the Applicants have not claimed damages against Ireland in the instant case. At this point I should indicate that in fact a reading of the statement filed on behalf of the Applicants indicates that a relief being sought in the alternative to the primary relief is a claim for damages.

71. With regard to the standard of proof to be established by the Applicants at this stage it is submitted by Mr. Gallagher on behalf of the Attorney General that the Applicants have failed to show substantial grounds for challenging the constitutionality of the provisions of the Planning Act in question. Mr Gallagher submits, even if a lower test is applied, that, based upon the decision in Cahill -v- Sutton, the Applicants have still failed to show even an arguable case to challenge the constitutionality of this section and do not have the necessary locus standi.

72. On behalf of Dublin Corporation Mr. Conleth Bradley submitted firstly, that the Applicants seek to challenge the constitutionality of a provision which they also purportedly seek to invoke by way of an application for judicial review. Secondly, an examination of the affidavit of Mr. White reveals that he became aware of the issues on or about the 29th May and/or the 2nd June, 2000 . It is submitted that even if those dates were accepted as being the relevant dates, something which is not conceded by Dublin Corporation, the Applicants are manifestly out of the two month time period prescribed by Section 82 of the Local Government (Planning and Development) Act, 1963 as amended. Thirdly, it is submitted that in the circumstances the Applicants do not have standing either to challenge the constitutionality of Section 82 and are estopped from doing so by the delay in seeking to invoke Section 82 itself. Fourthly, it submitted that the judicial review procedure is an inappropriate vehicle for such a challenge. The essential submission made by Mr. Bradley is that the application in this case is misconceived.

73. In reply to the submissions put forward on behalf of the Attorney General and Dublin Corporation Mr. Rogers submitted on behalf of the Applicants that the purpose of judicial review was to challenge any illegality. He submitted that a citizen should have access to the courts. In this regard Mr. Rogers referred this court to portion of the judgment of Keane J in Lancefort Ltd -v- An Bord Pleanála (No.2) [1999] 2 IR 270 at 308 where the question of locus standi was addressed. Mr. Rogers further referred this court to the decision in Reg -v- I.R.C., ex. p. Federation of Self Employed [1982] AC 617 where the House of Lords indicated that the question of sufficient interest must be taken together with the legal and factual context of the application.

74. With regard to the particular submissions made by Mr. Bradley on behalf of Dublin Corporation, Mr. Rogers stated that the essential contention being advanced was that the impugned section was invalid having regard to the Constitution by the absence of a saver provision in effect to enable the courts to give an extension of time to an Applicant. He submitted that it would be wrong to construe the impugned section by reference to the mere question of a state of knowledge. He submitted that there was no basis for the submission advanced by Mr. Gallagher on behalf of the Attorney General. He stated that this could only apply if the Section had some mechanism for acknowledging the absence of knowledge. He said that he impugned this section on the basis of an absence of some mechanism for an extension of time. He said he was not restricting his attack to merely the absence of a two month time limit to run from the period of knowledge. By reference to the Statement of Grounds he stated that it was always the Applicants’ case that the section did not provide for an extension of time whether in the language of “for good and sufficient reason” or any other such language. In the instant case the Applicants were adversely affected and even if they brought their application for judicial review within two months of the date of the knowledge of the making of the decision by Dublin Corporation they would be still be out of time under the terms of the section itself. Mr. Rogers submitted that locus standi should not be based on rigid rules. In this regard reference was made to the case of the State (Lynch) -v- Cooney [1982] I.R. 337. Counsel referred this court to the judgments of O’Higgins C J and Walsh J and submitted in particular in relation to the latter that Walsh J did not permit of a restrictive rule of locus standi and that locus standi should not oust constitutional rights.

75. Mr. Rogers submitted that the State’s case here is based upon an argument that a saver relating to knowledge would not have solved the Applicants’ problem. He submitted that in the instant case the Applicants had never designed any particular saver. The essential submission, by reference to Section 82, is that it does not have any provision for an extension of time, such as in Order 84 of the Rules of the Superior Courts or otherwise. Mr. Rogers referred this court to a number of recent enactments providing for the High Court to grant an extension of time such as the Local Government (Planning and Development) Act, 2000 Section 50 subsection 4 (iii) where the words “for good and sufficient reason” are used. Mr. Rogers referred to other recent enactments providing similar language including the Illegal Immigrants (Trafficking) Act, 2000, The Irish Takeover Panel Act, 1997, and the Transport (Dublin Light Rail) Act, 1996.

76. With regard to the submissions made by Mr. Bradley on behalf of Dublin Corporation, where he submitted, because the Applicants had chosen to bring the instant proceedings by way of a challenge under Section 82 of the Local Government (Planning and Development) Act, 1963 as amended, that they could not at the same time impugn the section, Mr. Rogers submitted that the Notice of Motion in the instant case did not in fact invoke Section 82 at all. The initial relief sought is that of Mandamus based upon the belief that a default permission may have issued to the Notice Party. In default of that position, reference is made to Section 82. It is submitted that if Section 82 is invalid in the manner contended for, the Applicants should be entitled to proceed nevertheless with their challenge. It is submitted that the Applicants have put forward a case involving substantial grounds in impugning the planning decision granted. It is submitted that in the instant case the Applicants brought proceedings in an appropriate manner having regard to the breadth of the claims being made and which have to be made. While Counsel for Dublin Corporation did submit that the challenge should be brought by way of a Plenary action, counsel submitted that the facts of the instant case as set forth in the affidavits filed on behalf of the Applicants must be taken as agreed at this point, and that they show in this light that the application by way of judicial review is not an inappropriate means of challenging the invalidity of this section.

77. Mr. Brian Murray of Counsel in reply on behalf of the Attorney General queried whether the Statement of Grounds in the instant case shows locus standi. He submitted that some form of prejudice must be shown by the Applicants. Mr. Murray contended that the correct approach was that to be found in the authorities of Cahill -v- Sutton and Brady -v- Donegal County Council . Mr. Murray submitted that in the instant case the Applicants were not saying that the period of two months set forth in the section was too short and that that date had elapsed before they knew their cause of action had begun. He submitted that an argument had not been made out that in exercise of its general jurisdiction exceptional circumstances existed which should permit of an enlargement of time. He pointed out that the Applicant has not in fact challenged the two month period provided for in the section. It would be necessary for the Applicants to show that if time had begun to run that they would have moved within two months.

78. The underlying facts of this case demonstrates a decision making process with regard to the planning application by the Notice Party which was very far from transparent and appears to have been conducted in a manner to ensure that the Applicants would not be aware of the nature of the proposed grant of planning permission at a time prior to its grant. The terms of the ultimate grant of planning permission are very far removed from the initial application for planning permission or the subsequent modified application for planning permission made in September of 1999. The use in the instant case of the provisions of Article 35 of the 1994 Regulations, dealing with modifications results in a grant of planning permission which is very far from a mere modification of an earlier proposal having been made. While the provisions of Article 17(3) of the 1994 Regulations give a discretion to a local authority in relation to requirements to re-advertise or re-notify a planning application where

79. The exercise of this discretion must be viewed in the overall context of the Planning Acts and the need for transparency in the decision making process. While an incidental modification which may not affect the overall character of an earlier application for planning permission may of its nature not require the matter to be re-adertised or re-notified, in the context of what has transpired in the instant case, it is hard to envisage how a planning authority could not consider that re-notification or re-advertising was not necessitated in view of the very fundamental change effected between the planning permission sought and the ultimate decision to grant planning permission with the “modifications” . This must be contrasted with the terms of the planning permission in question itself which contains conditions including a condition in relation to advertising and notification in accordance with planning requirements.

80. In light of the uncontroverted evidence put forward by Mr. White and by his architect Mr. Kelly it is clear that substantial grounds exist for contesting the planning permission in question. Furthermore, it is clear that the passage of two months from the date of the decision in question to grant the planning permission and the becoming aware of the terms of the decision were such that the time limit provided for in Section 82 had elapsed before the Applicants became aware of the terms of the decision. In the absence of further notification or advertising in the terms of the ‘modifications’ sought under Article 35, the Applicants would have had to have been inspired to know of the terms of the decision in question before the two month period had elapsed. However, having regard to the terms of Section 82 itself, even if the Applicants had become aware of the decision in question one day after the expiry of the two month period in question the same factual position would essentially present itself to the Applicants as presented itself in fact to them in the summer of the year 2000. It is apparent from the state of the planning file that it was not clear to the Applicants what the status of the planning permission was in the absence of any indication of an extension of time having been given in favour of the local authority at a time prior to that decision being made where on inspection the planning file did not reveal the existence of any such extension of time.

81. With reference to the argument put forward to this court on behalf of the Attorney General, they are superficially attractive insofar as they suggest that the Applicants should have moved in any event within an period of two months from the date of becoming aware of the decision of the local authority. However, they were still out of time to bring any challenge to the planning decision in question.

82. In these circumstances no mechanism existed for a late application to be made outside of the two month time limit. This in effect calls into question the provisions of the section which was found by Costello J in the case of Brady -v- Donegal County Council to be unreasonable and therefore unconstitutional. Had the impugned section contained some provision enabling the court to enlarge the time it would be possible for the High Court on an application under Section 82 to adjudicate upon the issue as to whether such an extension of time should be granted. However, in the absence of any such provision it is idle to speculate what approach the Court might have taken in the event of such an application being made, had such a provision existed. Furthermore, if the section did contain a provision that the application had to be made within a period of two months of when the Applicants knew or ought to have known of the decision in question, the Applicants might well have found themselves to be in a position where they were out of time. However, in the instant case that is not the situation. The Applicants found themselves in a situation where the section made no provision whatsoever to deal with the situation in which they found themselves. It is on this basis that they seek to challenge the validity of the provision in question having regard to the Constitution. In conclusion, I believe that the Applicants have the necessary locus standi to bring a challenge to the provisions of Section 82 aforesaid in light of the uncontroverted evidence before this court. It is clear that in the context of any such challenge that the courts will have to consider whether the time limit contained in Section 82 was such as to undermine or compromise the substantive right guaranteed by the Constitution of access to the court.

83. With regard to the arguments put forward by counsel on behalf of Dublin Corporation it is clear that the Applicants have not confined themselves in these proceedings to a challenge pursuant to Section 82 of the Local Government (Planning and Development) Act, 1963 as amended. The essential aspect of the provisions of Section 82 which are impugned in the context of the constitutional challenge is the absence of a provision enabling the courts to enlarge the time within which the application may be brought. The remaining parts of the section are not impugned. Nevertheless, in the context of the constitutional challenge an issue may arise as to whether certain portions of the section are severable from the remainder. It is to be noted that on behalf of the Applicants it was submitted that the time limit contained in the section is severable from the remainder.