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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Lancefort Ltd. v. An Bord Pleanala (No.2) [1998] IESC 14; [1999] 2 IR 270; [1998] 2 ILRM 401 (21st July, 1998) URL: http://www.bailii.org/ie/cases/IESC/1998/14.html Cite as: [1998] 2 ILRM 401, [1999] 2 IR 270, [1998] IESC 14 |
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1. An
Bord Pleanála (hereinafter referred to as the Board) granted Treasury
Holdings Limited (hereinafter referred to as the Developer) permission to
develop a site bounded by Fleet Street, Westmoreland Street and College Street
in the City of Dublin for the construction of a hotel, office accommodation and
a retail bank on 11th December, 1996. That permission followed a vote of the
City Council on 13th May, 1996 in accordance with Section 26(3) Local
Government (Planning and Development) Act, 1963 which provides for the
procedures to be followed in granting a planning permission which materially
contravenes the Development Plan. The Developer appealed to the Board against
some of the conditions which the Planning Authority had attached to its
decision, in particular the developer was concerned with condition 16(a) which
required it to omit the proposed sixth floor, and 16(b) which required the
omission of a portion of the fifth floor of the proposed development. An Taisce
also appealed the decision of the Planning Authority on the grounds,
inter
alia
,
that it involved demolition and interference with listed buildings and that it
was too high and of poor quality.
2. An
oral hearing was conducted by the Board between 25th and 27th September, 1996.
An inspector’s report was produced and submitted to the Board.
3. The
Board did not require an Environmental Impact Assessment (hereinafter referred
to as an EIA) the law on which is to be found in European Communities
(Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989)
(hereinafter referred to as the Regulations) and Council Directive 85/337/EEC
(hereinafter referred to as the Directive).
4. The
proceedings initiated by Lancefort on 10th February, 1997 also proceeded on a
number of related issues. The Developer alleged that Lancefort had failed to
comply with the Planning Acts in that they failed to serve documents in time,
that a court in considering the obligations of an applicant seeking to
challenge a decision of the Board by way of judicial review must construe the
obligations strictly, and that there was not proper service. On none of the
points did the developer succeed; see judgment of Morris J. (as he then was)
13th May, 1997.
5. On
6th June, 1997 Morris J. gave judgment on the application by Lancefort seeking
liberty to apply for judicial review. The hearing had lasted six days. The
matters to be determined were whether Lancefort had
locus
standi
to challenge by way of judicial review and whether it had established
substantial grounds within the meaning of Section 82 Local Government (Planning
and Development) Act, 1963.
7. “I
accept that after the decision of An Bord Pleanála consideration was
given by An Taisce to the possibility of seeking to challenge the decision by
way of Judicial Review but that a decision was made by An Taisce to devote
their funds otherwise. I also accept that Mr. Smith and his associates, as he
says in his Affidavit, “reached a consensus that the achievement of
shared objectives and aims would best be secured by the co-ordination of joint
action through the contemplated company limited by guarantee to which such
individuals would subscribe and through which they would actively work thereby
pooling their efforts to the optimum effect. I further say that I and my fellow
subscribers perceived the Applicant as fulfilling, predominantly an active
public interest role similar to that of bodies such as Cork Environmental
Alliance Limited which co-ordinates public efforts for environmental protection
in the Cork area and the Sierra Club in the United States of America.”
8. An
application for security of costs had been made at that time and awaited
hearing, as it had been submitted that Lancefort was a shield against costs,
and was a company without assets. Morris J. accepted as the law the decision in
S.P.U.C.
v. Coogan
[1989] 1 IR 734
and
Cahill
v. Sutton
[1980] IR 269 and believed that circumstances may exist and can arise where the
court would permit the right to
locus
standi
to be invoked on behalf of other persons. He held:
9. On
the second part of the case, as regards the consideration of whether Lancefort
had established a “substantial case” within the meaning of the Act
Morris J. adopted the approach of Carroll J. in
McNamara
v. An Bord Pleanála
[1995] 2 ILRM when she said:
10. Morris
J. considered each of the grounds advanced by Lancefort to ascertain if any one
of them was “substantial”. He gave a carefully reasoned analysis of
all the grounds being proposed and concluded:
11. Lancefort
thus obtained from the High Court leave to apply to the court by way of
Judicial Review seeking to quash by way of
Certiorari
the decision of the Board of 11th December, 1996 and obtained leave to apply to
the court by way of Judicial Review for a declaration that Section 14(8) Local
Government (Planning and Development) Act, 1976 is repugnant to the Constitution.
12. On
23rd June, 1997 Morris J. gave judgment on an application for security for
costs by the Developer and Ireland and the Attorney General against Lancefort.
This application arose out of Section 390 Companies Act, 1963 which states:
13. Rejecting
the submission that the case raises a question of law of public importance so
that the court should not entertain a request for an order for security for
costs Morris J. Held that no uncertainty of the law existed and that the Board
could continue to operate without need of a court order. He stated:
14. The
amount of security was fixed at £15,000 in respect of the second and third
named Respondents and £25,000 in respect of the Developer. It was ordered
that said sums be lodged in court. This was done and a date for the hearing of
the action in the High Court set.
15. However,
Lancefort and Ireland and the Attorney General sought leave to appeal to the
Supreme Court. Section 82 Local Government (Planning and Development) Act, 1963
18. He
also certified as points of law of exceptional public importance for appeal the
locus
standi
of Lancefort and its right to invoke Article 43 of the Constitution.
19. The
appeals were before the Supreme Court on 25th July, 1997 and again on 29th
July, 1997 for clarification when it was ordered:
20. In
the High Court the case was heard by McGuinness J.. All issues were before the
court and a reserved judgment was given on 12th March, 1998. On the issue of
locus
standi
the learned Trial Judge stated that while the court was bound by the directions
of the Supreme Court to permit further submissions on this issue considerable
weight would be accorded to the view of Morris P.. McGuinness J. referred to
earlier decisions made by her on this matter.
21. “In
cases like the instant case it may well be argued, as it was in the Lancefort
case, that companies such as the Applicant company have been incorporated
simply to afford the true Applicants “a shield against an award of
costs” to use the words of the learned Morris J. I have no doubt that
this is a relevant factor and one which must cause concern to a developer such
as the Notice Party. However, it could also be argued that in cases such as the
present the individual member of the public may in practice be denied access to
the Courts - or at least have that access made much more difficult - by the
danger of an award of costs against him in a case where his opponent is a large
development company with resources which enable it to pursue lengthy and costly
litigation with comparative impunity. Over-reliance on the incorporation of
companies such as the Applicant in this case may tip the balance too far in
favour of objectors or concerned local persons: on the other hand, blanket
refusal of
locus
standi
to all such companies may tip the balance too far in favour of the large scale
and well-resourced developer. It seems to me that the balance is best preserved
by the course followed by the learned Morris J.. The Court should look at the
factual background in each case and, if necessary, maintain the balance by the
making of an order for security for costs. I therefore conclude that the
Applicant company has
locus
standi
to maintain the present proceedings.”
22. McGuinness
J. followed the opinion she had expressed in that judgment and in
Wicklow
Heritage Trust Limited v. Wicklow County Council
(unreported
judgment of 5th February, 1998) and stated:
23. I
propose to leave over consideration of what I might describe as the
“constitutional
locus
standi
”
as it is not strictly necessary to consider it at this point”.
24. Lancefort
did not proceed with the constitutional challenge to the validity of the
legislation before the Supreme Court. The substantive issue was as to the
nature of the obligation to require an environmental impact assessment under
the Directive and Regulations.
25. Lancefort
is a company limited by guarantee incorporated on 18th December, 1996. The
liability of its members is limited to £1 each. Its Articles of
Association were registered on 18th December, 1996. Michael Smith in his
affidavit of 6th March, 1997 deposed:
26. Michael
Smith, a Director of Lancefort, deposed that while Lancefort was not a party to
the appeal before the Board, its members were vigorously active in lodging and
pursuing legitimate objections to the proposed development and otherwise
actively engaged in debate and action on matters giving rise to the application
for leave to seek Judicial Review herein. Michael Smith was active throughout
the appeal before the Board acting on behalf of An Taisce. When An Taisce
decided not to proceed with a Judicial Review of the Board decision he
proceeded as a Director of Lancefort.
27. Evidence
of the members and directors of Lancefort was given on affidavit. Michael Smith
has been a member of the Committee of Dublin City Association of An Taisce
since 1993. He was Chairman of the Association Planning Sub-committee during
the processing of the planning permission of the proposed development. He has
been a member of An Taisce’s National Council since 1995. The Committee
of the Dublin City Association of An Taisce decided to lodge an objection to
the planning application of the Developer. Responsibility for the objection was
delegated to Michael Smith. Following the decision taken by the Councillors in
May 1996 An Taisce gave permission to appeal the decision and Michael Smith was
delegated to draft the appeal, he also drafted the written submission prior to
the oral hearing. He arranged for legal representation at the oral hearing and
attended with a solicitor and barrister for An Taisce.
28. David
Malone is a member of Lancefort. He is employed in the Environmental Section of
the Midland Development Education Group since 1994. Since 1990 he has been a
Senior Environmental Officer with the Leinster Angling Council which is a
Provincial Council of the Trout Anglers Federation Ireland. He is a
Water-keeper approved under Section 294 of the Fisheries (Consolidated) Act on
stretches of the Rivers Barrow, Brosna, Erne and Boyne. He has registered over
15 complaints with the European Commission concerning non-compliance with the
European Communities Regulations. He is a member of Lancefort to seek an
improvement in the manner in which planning decisions are made.
29. Tim
Crowley is a member of Lancefort and Secretary of Environmental Action Alliance
- Ireland, a non-governmental organisation affiliated to the Leinster Angling
Council which is a branch of the Trout Angling Federation of Ireland.
30. Uinseann
MacEoin is a member of Lancefort and a qualified member of the Royal Institute
of Architects of Ireland since 1946, an associate of the Royal Town Planning
31. Institute
since 1948, a member of the Irish Planning Institute since 1975, was employed
in Dublin Corporation’s planning and housing divisions from 1948 to 1955,
acted
as consultant to Dundalk Urban District Council from 1955
to
1965
and
to Wicklow County Council from 1965 to 1975, he has advised on the restoration
of buildings and has a keen interest in the preservation of the city skyline
and listed buildings. He attended the oral public hearing before the Board in
September, 1996 but did not speak as his views coincided with those put forward
by Michael Smith.
32. Ian
Lumley is a member of Lancefort and has a particular interest in the
maintenance and preservation of historic and architecturally important
buildings. He has been an active member of the Old Waterford Society, the Irish
Georgian Society and An Taisce.
33. Garrett
Kelly is a member and Secretary of Lancefort, he was a founding director of
Green Street Trust Limited a non-profit company which was established to
restore listed buildings for new uses, he was a member of Dublin Civic Trust,
he was a governmental invitee to the consultative panel of the Dublin Transport
Initiative, since 1995 he has been co-ordinator of Community Technical Aid
Limited.
35. It
was on these and other facts that both Morris J. and McGuinness J. determined
that Lancefort was
bona
fide
,
had a public interest in the environment relevant to the matters in issue and
had sufficient interest in the matter to which the application relates.
36. These
proceedings are by way of Judicial Review. The Rules of the Superior Courts
Order 84 requires an application for an order of
certiorari
to be made by way of an application for judicial review in accordance with the
provisions of that order. Applications for declarations may also be made by way
of judicial review. Order 84 Rule 20(4) states that:
37. In
addition to the procedural rules there are also specific statutory rules
setting out requirements of Lancefort prior to their access to the court.
Section 82(3)(a) of the Local Government (Planning and Development) Act, 1963
(as amended by Section 19(3) of the Local Government (Planning and Development)
Act, 1992) states:
38. Thus
statutory restrictions on access to the courts include that the application
must be (a) made within two months, (b) by way of judicial review, and (c) it
must be established that there are substantial grounds for contending the
decision is invalid. By these, and the strict rule on appeal to the Supreme
Court, legislation has created a very high threshold of entry to
39. The
legislation indicates a clear policy to aid orderly planning and development
and that it not be delayed inappropriately. Yet, access to the courts for
interested parties is maintained.
40. The
analogy of
locus
standi
in cases challenging the constitutional validity of laws is helpful. This case
is no longer about the constitutional validity of any legislation. However,
decisions on the constitutional validity of statutes are useful as there has
been a development from the concept of
locus
standi
as victim related (the plaintiff proving a detriment actual or apprehended) to
a jurisprudence where public interest parties have been adjudged to have
standing. The victim related approach may be seen in
Cahill
v. Sutton
[1980] IR 269 where Henchy J. stated at p. 286:
41. However,
the importance of the circumstances of each case was stressed by Walsh J. in
State
(Lynch) v. Cooney
[1982] IR 337 at 368 where (he was reviewing an application for
certiorari)
he stated:
42. “In
Ireland it is sufficient to be “a person aggrieved” - a term to be
generously interpreted - which is generally understood to include any person
who has reasonable grounds to bring the proceedings. Broadly speaking the term
would be the same whether one is proceeding for
certiorari
or for declaratory action. Each of these is a discretionary remedy but not in
the sense that the grant or refusal may be at the whim of the court. The
discretion of a court to refuse either of these remedies to a person aggrieved
is very limited and, normally, they will issue
ex
debito justitiae
.
43. The
question of whether or not a person has sufficient interest must depend upon
the circumstances of each particular case. In each case the question of
sufficient interest is a mixed question of fact and law which must be decided
upon legal principles but, it should be added, there is greater importance to
be attached to the facts because it is only by an examination of the facts that
the court can come to a decision as to whether there is sufficient interest in
the matter to which the application relates.”
44. A
step to include public interest parties may be seen in
S.P.U.C. v. Coogan
.
The plaintiff was a company limited by guarantee with the object of protecting
the right to life of the unborn child. It objected to the inclusion of material
giving information on abortion and pertinent addresses in a book entitled
“Welfare Guide 1988/89” to be published by the Students Union of
University College Dublin. It sought undertakings from eight officers of the
union and the printer and University College Dublin that they would refrain
from publishing such material. A majority of the Supreme Court held that any
party who had a
bona
fide
concern and interest, which interest connoted approximately to an objective
interest in the protection of the constitutionally guaranteed right to life of
the unborn, had sufficient standing to invoke the jurisdiction of the courts to
take such measures as would defend and vindicate that right. While the Attorney
General as the holder of high constitutional office might be an especially
appropriate person to invoke such jurisdiction of the courts, such recourse was
not confined to him exclusively.
46. These
cases establish a useful analogy to Lancefort’s situation. The move from
victim related standing to one of public interest is of particular relevance to
environmental issues.
47. In
certain public law cases and in actions reviewing the constitutionality of laws
principles of
locus
standi
have been developing to include persons acting in the public interest. Whilst
this is not a case where the constitutionality of an Act is in issue the nature
of the litigation (claiming to protect the environment) is analogous in that it
is a public interest case. It is not similar to an action by an individual
seeking to protect an individual right. In this case a legal person is seeking
to protect the environment - for the public benefit. Consequently, principles
which have enabled public interest litigants to litigate for the protection of
the constitution are relevant also to litigation to protect other public
interests such as the environment. Indeed, a progress from a principle of a
“victim”
locus
standi
to one where the public interest is an important factor may be seen in some
cases relating to the environment.
50. “It
is submitted that because planning legislation envisages the involvement by
members of the public in all stages of the planning process and because many
judicial decisions have, in varying ways, stressed that “in all planning
matters there are three parties: the developer, the planning authority (or An
Bórd Pleanála, in the case of an appeal) and the members of the
public (See for example,
Stafford
v. Roadstone Ltd
[1980] ILRM 1
;
Robinson
v. Chariot Inns Ltd
[1986] ILRM 621
;
Morris
v. Garvey
[1982] ILRM 177)
locus
standi
to challenge what McCarthy J. described in the Supreme Court as “an
environmental contract between Planning Authority . . . and the
Community” (
McGarry
v. Sligo County Council
[1989] ILRM 768, 772) is very wide indeed and is certainly not confined to
persons whose proprietary interests are affected. It probably extends to all
members of the public liable to be affected by the provisions of a development
plan unless there are countervailing factors. Thus, for example, if the nature
and gravity of the allegations made are serious, a very wide range of persons
will be accorded standing whereas if they are trivial, it may well be denied.
The nature of the remedy sought may also influence the court's discretion: it
may be easier for an ordinary member of the public to obtain a declaration than
an enforceable order of
mandamus.
The
locus
standi
rules are therefore essentially a matter for the court's discretion but all
indications in environmental cases to date support the view that standing for
judicial review in these cases will rarely be denied.”
51. Whilst
this view might be somewhat optimistic on the common law of public interest
parties it is rooted in precedent. A recent decision is consistent with that
opinion. In
Chambers
v. An Bórd Pleanála
[1992] 1 ILRM 296
the
Supreme Court rejected a submission,
inter
alia
,
that as the plaintiffs had failed to be involved in the statutory planning
appeal they had lost
locus
standi
by their conduct. On the facts Egan J. held that the plaintiffs
52. In
the United Kingdom a similar approach may be seen. In
R. v. Hammersmith & Fulham LBC exparte People Before Profit Limited
(1982)
80 LGR 322
an
unincorporated association had appeared at a local public enquiry as objectors.
The association subsequently formed themselves into a company limited by
guarantee and then sought leave for judicial review of the relevant planning
decisions. A preliminary issue was raised by the respondents that the applicant
company was a separate legal entity to those members of the association who had
participated in the public enquiry and as such did not have sufficient interest
in the matter. Comyn J. held that the applicant company did have standing:
53. Indeed
both the public interest and the benefit of corporations was addressed in
R. v. Inspectorate of Pollution and another, ex parte Greenpeace Ltd. (No 2.)
[1994] 4 ALL ER 329
.
An issue was whether or not the limited company had
locus
standi
in the judicial review, the law required it had “sufficient
interest”. Otton J. stated:
54. This
may well be an appropriate approach in certain cases. Environmental issues by
their very nature affect the community as whole in a way a breach of an
individual personal right does not. Thus the public interest element must carry
some weight in considering the circumstances of environmental law cases and the
locus
standi
of its parties.
55. A
company is not barred
per
se
from being a party to judicial review proceedings. A company may be formed for
many reasons; once formed, it is a legal person with the right,
inter
alia
,
to litigate. The Developer in this case is a company, it is a vehicle.
Lancefort is also being used as a vehicle for people to pursue environmental
objects. The fact that Lancefort was established after the decision of the
Board which is in issue does not exclude it
per
se
from access to the courts, rather it is a factor for consideration in light of
the history of the relevant events.
56. In
analysing a company to see if it has the necessary
locus
standi
the length of its existence may be relevant. The fact that it did not come into
existence until after the Board’s decision in issue does not
automatically exclude the company from access to the courts on the grounds that
it has no standing. Both the Sierra Club and Greenpeace had to start sometime!
The relevance of the age of the company will depend on the facts of the case. A
long established company may not be granted
locus
standi
in the circumstances of some cases. The age of the company is not a determining
factor - it is a factor to be assessed in light of the relevant circumstances.
57. The
financial state of the company may be relevant, together with the fact of
whether or not there has been an order for security for costs. If the company
is financially sound or if there has been an order for security for costs and
monies lodged accordingly then financial impecunity itself cannot bar the
company from
locus
standi
.
In this case there have been orders for security for costs and thus the
financial status of Lancefort does not exclude it from access to court.
58. The
formal documents of the company, Articles of Association, Memorandum of
Association etc. will not of themselves create
locus
standi
.
They may be analysed, for example, to establish the objects of the company and
other relevant factors. I am satisfied and agree with the learned High Court
Judge that,
inter
alia
,
the documents of Lancefort establish its public interest objects.
59. Part
of the analysis of whether or not there is
locus
standi
involves the consideration of whether or not the party has made out a
prima
facie
case that the authority has acted unlawfully, in this way the merits of the
case form part of the analysis. However, the issue of merit must be analysed by
reference to the nature of judicial review. Judicial review is a review of the
decision making process, not an appeal on the merits. The case raises a
quintessential judicial review point - as to the procedures of the Board.
60. Lancefort
submitted that a legislative and regulatory scheme was established in Ireland
to implement the Directive. Thresholds were set above which
projects/developments were mandated to be the subject of an Environmental
Impact Assessment. The Irish scheme for implementing the Directive recognised,
however, that there would be projects below the thresholds which would be
likely to have significant effects on the environment. It was submitted that a
discretion was left to the Board to require an E.I.A. if it considered the
project would have a significant effect on the environment. The exercise of
this discretion. it was submitted, is a duty, a statutory obligation, of the
Board. Reference was made to
Aannemersbedrift
P.K. Kraaijeveld B.V. and others,
[1996] ECR 1-5403. It was submitted that applying this case means that projects
which fall below the threshold yet are likely to have significant effects on
the environment must be assessed by the Board. Thus, Lancefort submitted, an
important matter under Irish and European Law as to the way a statutory
authority gave consideration to and carried out its obligations was at issue.
61. Having
so raised this issue Lancefort established their standing as required on this
aspect of the analysis of the issue of
locus
standi
.
The burden on it insofar as the issue of
locus
standi
is concerned is not such as requires it to prove a successful action.
62. Morris
J. considered the grounds advanced by Lancefort to see if any one or more was
“substantial”. On Ground A, the submission that there was an
obligation upon the Board to have before it and consider the contents of an
Environmental Impact Assessment (EIA), he determined that there was not a
substantial case as he decided that nothing in the decision of the Board
contravenes existing legislation. On Ground B, related to the duty of the Board
to keep itself informed of the policies and objectives of the Minister,
planning authorities and any other relevant body, the learned Trial Judge
rejected the ground. On Ground C, which related to the issue of the Inspector
having inspected the site including a report on the site, the learned Trial
Judge allowed the relief claimed. On Ground D, relating to whether the Board is
required to have regard to provisions of the development plan, the learned
Trial Judge rejected the submissions. Ground E, on the applicant’s
submission that Section 14(8) of the Local Government Act, 1976 is repugnant to
the Constitution and void, the learned Trial Judge held that Lancefort had made
out a substantial case.
63. In
determining the action the nature of the remedies, the fact they give to the
court a discretion, is relevant. Facts such as that Lancefort did not raise the
matter of the E.I.A. at the public hearing, did not explain why the issue was
not raised, did not explain fully what they considered could be achieved by an
E.I.A. and E.I.S., did not anticipate in submissions concerns which could be
met by the E.I.A., are matters which go to the action itself, and may relate to
the exercise of the discretion of the court in the judicial review as to
whether or not the remedy should be granted. Judicial review being a
discretionary remedy the court weights such factors in the balance when coming
to a conclusion.
64. It
is important to distinguish the requirement that “substantial
grounds” be established before leave is granted and the exercise of
discretion by the court in determining the actions from the analysis of the
locus
standi
of the parties. They are three separate issues. In this instance the question
is as to the standing of Lancefort. The
locus
standi
is a discrete issue.
65. I
am satisfied that Lancefort has
locus
standi
in this case. In making this decision I have considered all the circumstances,
fact and law as set out previously in this judgment. The fact that Lancefort is
a company does not bar it
per
se
from the litigation, although its incorporation after the decision in issue by
the Board must be considered carefully. Its
bona
fides
,
actions and documentation are all relevant. I agree with the trial judges that
the veil of incorporation should be lifted and that the prior actions and
involvement of the members be considered. On doing that, having also considered
the documentation and actions of the company, I am satisfied that the company
is acting
bona
fides
.
That alone does not give it standing. However, other facts in addition
establish that fact. These include the participation by members of the company
in the prior planning and development procedures. This establishes a
connection. I agree with the trial judges that these are sincere and serious
people who have been involved with the development. Also, there is no doubt
that they have evinced a public interest. While not every person who declares a
public interest may be considered to be acting in and for the public interest
such aspiration must be analysed also in the circumstances of each case. I am
satisfied in this case on the facts Lancefort has expressed a valid public
interest in the environment. The issue of the environment presents unique
problems, not only in the courts. In much litigation on e.g. personal injuries
or as to individual constitutional rights, the party is obvious. In litigation
on the environment, however, there are unique considerations in that often the
issues affect a whole community as a community rather than an individual
per
se
.
This affects the concept of
locus
standi
also. The “sufficient interest” required by the Rules and Statutes
should be interpreted accordingly. The fact that a company is the vehicle for
the action does not bar access - it is a valid vehicle.
66. Concerns
that it is a shield from financial ruin for individuals and unfair to other
parties have been met in this case by the orders for security for costs, thus
financial impecunity does not block the standing of Lancefort. Lancefort
established that there were “substantial grounds” sufficient for
the High Court - whilst that is a separate issue on this aspect of
locus
standi
it is a higher threshold than the
prima
facie
case on the merits required in judicial review. Here Lancefort has raised an
important issue as to the procedure being adopted by the Board to which the
Regulations and Directive relate. It is not necessary to prove the case to
establish
locus
standi
.
Lancefort raised an important issue as to the decision making process of a
statutory body.
67. The
common law on
locus
standi
has been developed to aid the administration of justice. The crank, vexations
litigant and stranger is excluded from the courts. Lancefort does not belong to
any of these categories.
68. The
principles of
locus
standi
have been extended by the courts in some cases to situations where concerned
citizens have sought to protect the public interest. The analogy of those
cases, where the constitutionality of laws was queried, should be applied in
this case. The track laid by
S.P.U.C.
v. Coogan, Crotty v. An Taoiseach
and
McGimpsey
v. Ireland
and environmental actions such as
Chambers
v. An Bórd Pleanála
and
R.
v. Inspectorate of Pollution and another ex parte Greenpeace (No. 2)
,
is firm and the cases provide appropriate precedents. This approach is just,
aids the administration of justice, would not permit the crank, meddlesome or
vexatious litigant thrive, and yet enables the
bona
fide
litigant for the public interest establish the necessary
locus
standi
in the particular area of environmental law where the issues are often
community rather than individual related. The administration of justice should
not exclude such parties from the courts. Whether or not they succeed in their
action is quite another matter - but they should not be excluded from the
courts to litigate the
69. The
subject matter of these proceedings is a site in the shape of a triangle in the
centre of Dublin bounded by College Street, Westmoreland Street and Fleet
Street. On the 11th December 1996 the first named Respondents (hereafter
“the Board”) granted permission to the Notice Party to carry out a
70. The
site is close to two of the most celebrated groups of buildings in Dublin,
Trinity College and the Bank of Ireland. In addition, four of the buildings
comprised in the site are listed for preservation in the Development Plan made
by Dublin Corporation pursuant to the provisions of the Local Government
(Planning and Development) Acts 1963 to 1992.
71. These
are the buildings at No. 40/41 Westmoreland Street, known as the
“Scottish Widows’ premises”, designed by Sir Thomas Deane
about the year 1875,
with
their Venetian Gothic facade; the “Pearl Insurance Building” at No.
35/36
Westmoreland
Street, dating from 1936, with its neo-classical facade and cupola; the former
Provincial Bank building at No. 5
College
Street with its impressive neo-classical facade; and the rear of the same
building at No. 33/36 Fleet Street, again with a classical facade. The
proposed development envisages the demolition of much of the buildings on the
site, but also provides for the retention of the architectural features to
which I have referred and of the magnificent banking hall in the Provincial
Bank building which, unlike the other features, is not listed for preservation
in the Development Plan.
72. It
is not surprising that the proposed redevelopment of so sensitive and important
a site in the centre of Dublin should have provoked controversy. Initially,
permission for the development was refused by the City Manager of Dublin
Corporation but granted by the Council, subject to certain modifications in the
scheme. The Notice Party appealed to the Board in respect of certain of the
conditions imposed by Dublin Corporation and a third party appeal against the
granting of permission was brought by An Taisce.
73. The
Board directed an oral hearing of the appeal to be held and this took place on
the 25th and 26
th
September 1996 before the designated inspector, Mr. Karl Kent. The hearing was
attended by Mr. Michael Smith, the Chairman of the Dublin City planning
committee of An Taisce, who subsequently took a prominent part in the formation
of the Appellants, who had not been incorporated at the date of the hearing,
and by junior counsel on behalf of An Taisce. In addition, observers were
present on behalf of the Heritage Council, The Dublin Civic Group, The Irish
Georgian Society and the Department of Arts, Culture and the Gaeltacht. Senior
planning officials were also in attendance on behalf of Dublin Corporation. A
number of architects, planning consultants and other experts gave evidence at
the hearing on behalf of the various parties and observers.
74. Mr.
Kent prepared a lengthy report dated the 21st November 1996. It emerges from it
that the issues debated at the oral hearing were principally concerned with:-
75. Mr.
Kent listed a number of options which he considered were open to the Board,
including the refusal of the permission, the granting of permission for the
development as proposed by the Notice Party (subject to amended drawings which
had been lodged on the 12th June 1996 with the Board) and the granting of
permission subject to further modifications. He advised against the refusal of
the permission, but considered that it should only be granted subject to
further modifications.
76. In
its decision, the Board decided to grant permission subject to certain
modifications, which were not as extensive as those recommended by Mr. Kent.
The permission was subject to 15 conditions. The First Schedule to the grant of
permission sets out the Board’s reasons for granting it as follows:-
77. The
affidavits filed on behalf of the Appellants make it clear that, following the
decision of the Board to grant permission, the Chairman of An Taisce informed
Mr. Smith that he did not consider that any legal proceedings should be
instituted in respect of the decision as he thought their modest resources
could be more usefully employed in other areas.
78. The
Appellants were incorporated on the 18th December 1996, i.e. a week after the
date on which permission was granted. The circumstances in which they came into
being were deposed to as follows by one of their members, Samantha Harding:
79. The
objects of the Appellants as originally set out in the memorandum of
association contained no reference to the objectives referred to by Ms. Harding.
80. However,
they were amended by special resolution on the 7th February 1997 and stated to
be
inter
alia
81. Affidavits
were sworn by other members of the appellants, deposing to their interests in
the objects as thus stated in the memorandum of association.
82. The
history of the present proceedings is lengthy and somewhat complex and need not
be set out in detail for the purposes of this judgment. Some features should,
however, be noted. They began with the issuing of a notice of motion on the
10th February 1997 seeking:-
83. On
the 26th February 1997, the Notice Party brought an application for security
for costs, a similar motion being brought on behalf of the Respondents on the
11th March. Ultimately on the 23rd June, the applications for security were
granted. The amount of the security was subsequently measured at £25,000
in respect of the Notice Party and £15,000 in respect of the other
Respondents.
84. In
the meantime, the application for leave to issue the proceedings had come on
for hearing before Morris J, as he then was. In accordance with s.82 of the
Local Government (Planning and Development) Act 1963 as inserted by the Local
Government (Planning and Development) Amendment Act 1982, it was necessary for
the application to be served on the respondents and for the Appellants to
satisfy the court at that stage that there were “substantial
grounds” for contending that the decision of the Board was invalid. At the
85. In
a reserved judgment delivered on the 6th June 1997, Morris concluded that the
Appellants had
locus
standi
and
granted leave to issue the judicial review proceedings on two grounds. The
first ground was not pursued in the present appeal and therefore need not
detain us. The second ground was that s. 14(8) of the Local Government
(Planning and Development) Act 1976 was invalid having regard to the provisions
of the Constitution, which again was not pursued in the present appeal.
86. The
Appellants had also sought leave to issue the proceedings on the ground that an
environmental impact assessment (hereafter an “EIA”) had not been
carried out before the granting of the permission by the Board in breach, as it
was claimed, of the requirements of the EU Council Directive 85/337/EEC. Morris
J. rejected that ground but gave leave to the Appellants to appeal to this
court from that decision, certifying the following point of law of exceptional
public importance as arising:
87. He
also gave leave to the Respondents to appeal to this court, certifying the
following points of law of exceptional public importance as arising:-
88. On
the hearing of the appeal, it was ordered by this court by consent that all
issues be referred back to the High Court for that court to decide what issues
were to be tried by that court and in what manner.
90. In
a reserved judgment, delivered on the 12th March 1998, she concluded, as had
Morris J. that the Appellants had
locus
standi
to
maintain the judicial review proceedings, but rejected each of the grounds,
other than the constitutional ground, on which judicial review of the
Board’s decision was sought. She also concluded that the Appellants did
not have
locus
standi
to
challenge the constitutionality of the impugned provision of the 1976 Act. She
was also satisfied that there was no basis on which the court should seek a
91. McGuinness
J. certified pursuant to s.82 of the 1963 Act that her decision involved points
of law of exceptional public importance and that it was desirable in the public
interest that an appeal should be taken to this court. In the case of the
Appellants, the points certified were as follows:-
93. As
already noted, the challenge to the constitutionality of the impugned provision
of the 1976 Act was not pursued and, accordingly, the only ground argued on the
hearing of the appeal on behalf of the Appellants was that set out at 1 above.
On behalf of the Board and the Notice Party, the point set out at 2 above was
not seriously pressed and, accordingly, the arguments on their behalf were
substantially confined to the
locus
standi
of
the Appellants and point 1 of the grounds certified in respect of the Appellants.
94. The
Council Directive of the 27th June 1885 (85/337 EEC) (hereafter “the
Directive”) was transposed into Irish law by the European Communities
(Environmental Impact Assessment) Regulations 1989 (SI 349 of 1989)
96. Article
4 requires that projects of classes listed in Annex 1 to the Directive are to
be made subject to such an assessment. It is common case that the development
the subject matter of these proceedings does not come within any of the classes
listed in that Annex.
97. Article
4(2) provides that:
98. It
is again common case that the only classes of development in Annex 2 to which
the development in the present case could be regarded as belonging are the
following:-
99. For
the purpose of giving effect to the Directive, the Minister for the
Environment, in exercise of the powers conferred on him by s.3 of the European
Communities Act 1972, made the 1989 Regulations. Part II of the First Schedule
to those Regulations lists the developments to which Annex 2 is to apply in
this State and thus effectively fixes the thresholds at which an environmental
impact assessment will be required. In the two relevant categories, they are as
follows:-
100. It
is common case again that the development in this case is below the thresholds
thus fixed at which an environmental impact assessment is required.
101. It
is thus clear, and again was common case, that the Board has power, in the case
of a development coming within one of the classes specified in Annex 2 of the
Directive but which is below the thresholds specified in Part II of the First
Schedule to the 1989 Regulations, to require the submission of an environmental
impact statement (hereafter “EIS”) where it considers that the
development, although below the thresholds, would be likely to have significant
effects on the environment.
102. Article
3 of the Directive provides that the environmental impact assessment is to:
103. It
was submitted on behalf of the Appellants that the development in this case,
although below the threshold fixed by the 1989 Regulations, would unarguably
have a significant effect on the environment - specifically, the material
assets and cultural heritage represented by the area where the development is
envisaged - and that, accordingly, the Board were obliged, at the least, to
consider whether they should exercise their admitted power under the 1994
Regulations to require the furnishing of an EIS by the Notice Party. It was
further submitted on their behalf that the evidence did not establish that the
Board had given any consideration as to whether such an EIS should be furnished
and that this failure fatally vitiated the granted permission. It should be
noted that the Appellants did not contend, as they had done at earlier stages
of the proceedings, that the Directive had not been properly transposed into
Irish law: their contention was that, properly construed in the light of the
Directive, the Regulations not merely conferred a power on the Board to require
such an EIS, but imposed a duty on them, at least in the case of a substantial
development such as the present, to consider whether an EIS should be required.
There was no evidence, it was urged, that any such consideration had been given
in the present case to requiring an EIS and, additionally, there was no written
record, as there should have been, of any decision by the Board to dispense
with an EIS.
104. As
already noted, the issue of
locus
standi
initially
arose in two contexts in the present proceedings, since the Appellants, in
addition to claiming that the grant of permission was invalid, sought a
declaration that s. 14(8) of the Local Government (Planning and Development)
Act 1976 was invalid having regard to the provisions of the Constitution. The
latter argument was not pursued on the appeal to this court, but some of the
decisions of the superior courts which have dealt with the question of
locus
standi
in
constitutional challenges are of assistance in considering the objection on
behalf of the Board and the Notice Party to the
locus
standi
of
the Appellants to challenge the grant of planning permission by the former body.
105. The
authorities reflect a tension between two principles which the courts have
sought to uphold: ensuring, on the one hand, that the enactment of invalid
legislation or the adoption of unlawful practices by public bodies do not
escape scrutiny by the courts because of the absence of indisputably qualified
objectors and, on the other hand, that the critically important remedies
provided by the law in these areas are not abused.
106. In
the latter area, the courts have dwelt on occasions on the dangers of giving
free rein to cranks and busy bodies. But it is to be borne in mind that the
citizen who is subsequently seen to have performed a valuable service in, for
example, bringing proceedings to challenge the constitutionality of
107. Nevertheless
the requirement that, as a general rule,
locus
standi
must
be established where a person seeks to challenge the decision of a public body
remains, although the criteria have changed over the years, a “sufficient
interest” in the matter having replaced the somewhat more restrictive
concept of a “person aggrieved”. In the particular case of
challenges by way of
certiorari,
with
which these proceedings are concerned, the insistence on the party having such
an interest reflects the policy of the courts which is intended to ensure that
this most potent and valuable of legal remedies is not resorted to by the
merely officious or men or women of straw who have nothing to lose by clogging
up the courts with ill founded and vexatious challenges.
108. In
cases where
certiorari
is
sought in respect of a decision by a planning authority on an application for a
permission or a decision of the Board on any
109. At
the same, it must be borne in mind that, as pointed out by Finlay C.J. in
ESB
v. Gormley
[1985] IR 129
,
where a challenge by a person afforded
locus
standi
in
a case such as this succeeds, the planning permission is set aside, not because
any direct injury to the applicant has necessarily been
110. While
it is thus clear that a person initiating such a challenge by way of judicial
review must at the least have what the law regards as a “sufficient
interest” in the subject matter of the impugned decision, whether he has
such an interest can only be determined by reference to the circumstances of
the particular case: see, in particular, the judgment of Walsh J. in
The
State (Lynch) v. Cooney
[1982]
IR 337. Since that decision, the requirement that the applicant for judicial
review should be so qualified was reflected in Order 84 Rule 20(4) of the Rules
of the Superior Courts as follows:-
111. That
statement was cited with approval by Rose L.J. in
R.
v. Secretary of State for Foreign Affairs, Ex Parte World Development Movement
Limited
[1995] 1 All ER 611.
112. The
tendency in England has thus been to treat the requirement of “a
sufficient interest” as being met where the applicant has established
unlawful conduct on the part of a public body, even though the conduct in
question may not have affected any private interest of the applicant.
113. The
facts of the two cases should, however, be borne in mind. In the first, the
allegation (not established on the facts) was that the Inland Revenue had acted
unlawfully in not pursuing claims for tax not paid. In the second, it was that
the United Kingdom Foreign Secretary had exceeded his powers under relevant
legislation by providing overseas aid to a hydroelectric project in Malaysia
against the advice of his civil servants. It was accepted in both cases
114. It
is also, the case that the requirements of national law as to standing may in
some instances have to yield to the paramount obligation on national courts to
uphold the law of the European Union. In this context, the decision of the
Court of Justice of the European Union in
Aannemersbedruijf
PK Kraaijevld BV_& Ors. v. Gedeputeerde Staten Van Zuid-Holland
is of some relevance, since it also concerned the Directive. In that case, a
member state, the Netherlands, in transposing the Directive into its national
law, established a threshold for works on dykes which, it was argued, was such
that no dyke projects met the criteria and hence all dyke reinforcement
projects remained outside the ambit of impact assessments. The Court of
Justice, which had held in the earlier case of the
Commission
of the European Communities v. Kingdom of Belgium
(C-33/94) that a member state could not fix the thresholds or criteria at such
a level as to exempt in advance whole classes of projects listed in Annex 2,
said that that principle of European Union law must be applied by national
courts, not simply where the court was obliged to raise the matter of its own
motion, but also where it had a discretion so to do. The court expressed its
view as follows:-
115. In
this case, there is no question of the State having exceeded the discretion
conferred on it by Articles 2(1) and 4(2) of the Directive by defining the
thresholds or criteria in such a manner as to exempt in advance a particular
class of projects referred to in Annex 2 from the requirement of an EIA. Not
116. It
was strenuously contended by the solicitors for the Notice Party when seeking
security for costs in response to the institution of the proceedings that the
Appellants had been incorporated as a company without assets solely in order to
maintain the litigation with no risks to the members as to costs and that its
formation was thus not
bona
fide
.
117. In
the light of the affidavits filed, I would accept, as did Morris J. and
McGuinness J. in the High Court, that it should be assumed in their favour that
the persons concerned in the formation of the company are genuinely
118. The
Appellants relied on the decision in
R. v. Hammersmith & Fulham London Borough Council & Anor., Ex Parte
People Before Profit Limited
(1982) 80 LGR 322
as
supporting the proposition that a company need not be in existence at the time
of the impugned decision to be entitled to
locus
standi
.
In
that case, a number of people had formed themselves into an unincorporated
association styled “People Before Profit” and had participated as
objectors at a public inquiry into a controversial development by a local
authority. Permission for the development having been granted, they then formed
themselves into a company limited by guarantee and added the word
“limited” to their existing title. On an application for leave to
issue judicial review proceedings, Comyn J. held that, since the composition of
the limited company was precisely the same as that of the unincorporated body
and they had already made their objections at the inquiry, they should not be
denied standing on the purely technical ground that they were in law a
different body. Since, however, he
119. That
case certainly suggests that there may be circumstances in which it would be
wrong in principle to deny standing to a body which was not in existence at the
time of the impugned decision. There are, however, other factors to be taken
into account in this case which were not present in the case decided by Comyn J.
120. The
claim that the permission was invalid rests solely on the alleged failure of
the Board to consider whether an EIS was required in the circumstances of the
present case. Such an EIS, it should be stressed, could have been required by
the Board at any stage up to the granting of permission. Although Mr. Smith
attended the hearing on behalf of An Taisce, as did junior counsel, they at no
stage put forward the objection that an EIS had not been required by the
planning authority or An Bord Pleanála. Nor was that suggestion made at
any stage by any of the reputable conservation groups which attended the
hearing or by any of the architects, planning consultants or other experts who
were present. It must be assumed that some at least of those present were
aware, at least in a general sense, of the circumstances in which an EIS and
EIA were required. In the particular case of Mr. Smith and junior counsel
representing An Taisce, no explanation was given at any stage of these
121. It
is clear, as was held by this court in
Chambers
v. An Bord Pleanála
[1992] 1 IR 134
,
that the fact that a person affected by a proposed development did not
participate in the appeals procedure is not of itself a reason for refusing
locus
standi
.
It
may even be that a company which came into being after the decision which it is
sought to challenge may, in particular circumstances, be in a position to assert
locus
standi
as
held by Comyn J. in the case to which I have already referred. But it would, in
my opinion, be a significant injustice to a party in the position of the Notice
Party to be asked to defend proceedings on the ground of an alleged
irregularity which could have been brought to the attention of all concerned at
any time prior to the granting of permission, but which was not relied on until
the application was made for leave to bring the proceedings. That is not the
only relevant consideration. I have already drawn attention in this judgment to
the stated objectives of the Directive and the matters which, it is envisaged,
will be the subject of an EIS. Neither the High Court nor this court were at
any stage given any indication as to the respects in which it was alleged that
the assessment carried out by the Board of the development in this case as part
of the planning process failed to elicit data relevant to an assessment of the
effects on the environment of the development.
122. Whether,
as a matter of law, the Board were obliged to consider exercising their
undoubted power to require an EIS is a separate issue. Assuming that they were
under such an obligation and failed to consider whether an EIS should be
required, it has not been shown that this had the slightest adverse effect on
the attainment of the objectives of the Directive and the Regulations which
implemented it in this State. It was urged that the Directive also envisages
that the EIS will be available for public inspection and that this is reflected
in the Regulations. Again, however, it is perfectly clear that the requirements
of the planning legislation ensured that the public had access to the detailed
plans lodged with the application for permission.
123. An
examination of the merits of the case, accordingly, leads me to the conclusion
that, if there has been any irregularity in the manner in which the Board
discharged their functions, it could not possibly be regarded as constituting
an abuse of power or a default in procedure sufficiently grave to justify
affording
locus
standi
to
a body such as the Appellants. Not only were they not in existence at the
relevant time and hence are in serious difficulties in contending that they had
an interest in the subject matter: the procedural irregularity, if such it was,
was of so little weight that neither Mr. Smith, the person who took the leading
part in the formation of the Appellants, nor counsel appearing on behalf of An
Taisce nor any of the experts who
124. Again,
a comparison with the English decision in
R.
v. Inspectorate of Pollution, Ex Parte Greenpeace Limited (No. 2)
[1994] 4 All ER 329 is illuminating. That case concerned the granting of
authorisation to a company, BNFL, engaged in reprocessing spent nuclear fuel,
to discharge radioactive waste from its premises at Sellafield in Cumbria. The
case on behalf of the applicant for leave to challenge the granting of the
authorisation, Greenpeace Limited, is summarised as follows by Otton J. at
p.335:-
125. In
that case, the court, although it concluded that the objection of Greenpeace
was not legally well founded, rejected the challenge to their
locus standi
pointing out that they had a genuine interest in the matter raised and had
2,500 supporters in the area of the plant who might not otherwise have an
effective means of bringing their concerns before the court. The contrast
between a concern based on a failure by the operator of such a plant to engage
in a process of public consultation before beginning the discharge of
radioactive waste with the stated concern of the Appellants in the present case
as to the absence of an EIS, in a case in which there has been an exhaustive
and searching process of public consultation culminating in an oral hearing
attended by the alter ego of the Appellants, hardly requires emphasis.
126. I
do not arrive at the conclusion that the Appellants lacked standing solely
because of the fact that they are a company limited by guarantee owning no
property affected by the permission. I would accept, as a general proposition,
that such bodies may be entitled to
locus
standi
in
proceedings of this nature, although they cannot point to any property or
economic interests being affected by the relevant decision. In
Blessington
Heritage Trust Limited
127. I
would agree with that approach, although not with its application by the
learned High Court judges in the present case. It is, understandably, a matter
of concern that companies of this nature can be formed simply to afford
residents’ associations and other objectors immunity against the costs of
legal challenges to the granting of planning permissions. Our law, however,
recognises the right of persons associating together for non-profit making or
charitable activities to incorporate themselves as limited companies and the
fact that they have chosen so to do should not of itself deprive them in every
case of
locus
standi
.
While
shielding the members against an order for costs in the event of the company
becoming involved in litigation may well be a consequence of limited liability,
it is not necessarily the only reason why citizens concerned with issues as to
the environment may decide to incorporate themselves as a company. It must also
128. I
cannot agree, however, with the submission advanced on behalf of the Appellants
that the fact that there were substantial grounds for contending that the
decision was invalid necessarily leads to the conclusion that they had
locus
standi
.
Since
the amendment effected by s.19(3) of the 1992 Act obliges the applicant in a
case such as this to proceed by way of an application under s.84 and since the
latter expressly requires that the applicant should have “a sufficient
interest” in the matter, it must be presumed that the Oireachtas intended
that an applicant, in addition to establishing substantial grounds for
contending that the decision was invalid, must also show that he or she has
such an interest. Moreover, in the present case, all of the grounds on which
the Appellants were originally given leave (including a challenge to the
constitutionality of one of the provisions of the 1976 Act) were abandoned with
the exception of the point as to the absence of an EIS. For the reasons I have
already given, when the legal and factual merits of that issue are analysed, it
is clear that this was not a case in which the Appellants should have been
recognised as having
locus
standi
to
mount such a challenge.
129. It
is accordingly unnecessary to express any view on the first question certified
by the learned High Court judge as involving an point of law of
130. I
am in agreement with the judgment just delivered by Keane J. There is, however,
one matter which I wish to emphasise. By the code of legislation embodied in
the Local Government (Planning and Development) Acts, 1963 to 1992, the
Oireachtas has established two tiers of independent and qualified bodies to
administer the Acts and ensure proper standards of planning and development
throughout the State. The first tier of such bodies comprises the local
authorities and their planning departments staffed by qualified persons. They
have the duty of ensuring proper standards of planning and development
throughout their local areas. The second tier is of course An Bórd
Pleanála which is the national authority charged with ensuring proper
planning and development throughout the State when there is an appeal to them
from decisions of the Local Planning Authorities. Again, An Bórd
Pleanála is staffed by appropriately qualified people.
131. It
is important to bear in mind that members of and persons employed by these
bodies are required to act independently and impartially. By Section 32 of the
Local Government (Planning and Development) Act, 1976 such persons must declare
certain interests, for example, interests in land or dealings in land, and are
subject to penalties if they fail to do so. By Section 33 if such persons find
that they have an interest in a matter falling for decision by such authority
that person must declare such interest and take no part in the decision and
failure to do so is also subject to penalties. Section 34 provides for
disqualifications from office on conviction of an offence contrary to Section
32 or Section 33.
132. In
addition to these two tiers of planning authorities, the code of legislation
has also given express recognition to certain well-established public interest
organisations such as An Taisce, who keep a careful watch for planning
decisions which
prima
facie
may appear not adequately to
133. In
the vast majority of cases, the decision of An Bórd Pleanála
should be the end of the matter. Further proceedings by way of judicial review
should be the rare exception rather than the rule and should be brought only on
weighty grounds. In general and apart from very exceptional circumstances, I
see no need for the incorporation of bodies such as Lancefort to engage as a
further tier of scrutiny in planning matters. Certainly the proliferation of
such companies is undesirable because their backers may thereby without
financial risk to themselves
134. By
way of footnote to all the foregoing I first raised this issue of locus standi
in obiter remarks which I made at the end of my judgment in the case of
Malahide
Community Council Limited .v. Fingal County Counci
l.
I
subsequently noted with interest in the issue of Iris Oifigiúil of the
7th April 1998 at page 317 an entry giving notice that a resolution for the
winding up of Malahide Community Council Limited was passed on the 1st April
1998 at a general meeting of members. Costs had been awarded against Malahide
Community Council Limited in that case but I have no information as to whether
the company was solvent or not.