THE SUPREME COURT
RECORD NO. 18/07BETWEEN
CORK COUNTY COUNCIL AND
AN BORD PLEANALA
ANDJUDGMENT of Murray C.J. delivered on the 2nd day of May 2008
XCES PROJECTS LIMITED NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LIMITED
The appellant has sought leave to bring judicial review proceedings for the purpose of setting aside a decision of the first named respondents, Cork County Council, made on 1st October 2005 to grant planning permission to the Notice Party, the developers, for the development of a golf and leisure resort at Ballymacus Head and Preghane Point at the entrance to Kinsale harbour.
He had objected to the application for planning permission and for that purpose had lodged submissions and observations regarding the proposed development with the first named respondents pursuant to Article 29 of the Planning and Development Regulations 2001 (S.I. No. 600/2001). He sought leave in the High Court to bring the judicial review on a large number of grounds.
The High Court refused the appellant leave to bring judicial review proceedings on the grounds that he did not have a “substantial interest” in the matter which was the subject of his application. The requirements that an applicant for leave to bring judicial review should have a “substantial interest” in that matter is a pre-condition to the grant of such leave as provided by s. 50(4)(b) of the Planning and Development Act 2000.
The issue certified for appeal is whether the learned trial Judge was correct in concluding that the applicant was not a person who had a “substantial interest” in the matter in question within the meaning of that subsection.
The relevant portion of subsection 4 of S. 50 states
The facts and circumstances of the case are fully set out in the judgment of Kearns J., and I only refer to them so far as is necessary for the purposes of this judgment. I agree with the approach and conclusions of Kearns J., as regards the meaning of “substantial interest” insofar as the appellant relies on his interest in the nature and effect of the proposed development in question. I also conclude that the appellant does not have the “substantial interest” necessary to be granted leave to bring judicial review of the decision to grant planning permission.
“…leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.”
I have addressed separately the “substantial interest” which the appellant claims to have on the basis of his claim that he was denied fair procedures and in particular his statutory right to make further observations, in the course of his participation in the planning process before the planning authority.
Accordingly I have come to the same conclusion as Kearns J., namely that the application of the appellant for leave to bring judicial review proceedings should be dismissed on the grounds that he has not established that he has a “substantial interest” in the matter the subject of the application, namely the decision of the first named Respondents to grant planning permission for the proposed development.
In this case the Court is concerned with the interests of the applicant as an individual who has exercised his right to make submissions or observations on the application for planning permission for the development concerned pursuant to Article 29 of the Planning and Development Regulations 2001. In making such submissions or observations he objected to the proposed development.
The planning regulations referred to permit any person, on payment of the prescribed fee, to make such submissions or observations and thus become what is usually referred to as an objector to an application for permission.
As such a person he or she is also entitled pursuant to the provisions of Article 35 of the Regulations of 2001 to be notified by the planning authority that it has received significant further information or revised plans in relation to a proposed development and to make submissions or observations in relation to that further information, within a period specified by the authorities.
Article 25 of the Regulation provides the widest possible opportunity for members of the public to participate in the planning process and such persons may also participate in an appeal to An Bord Pleanala against a decision of a planning authority to grant permission and thus advance observations or make submissions concerning the merits of the proposed development.
This is consistent with a general policy that members of the public should have an opportunity to participate in that process particularly having regard to the importance which developments may have on the environment both locally and generally.
The right of members of the public to make submissions and observations in relation to an application for planning appeal and thus make objections to the grant of such permission is not limited to persons having any particular interest by virtue of living in the general area of the proposed development or otherwise. An objector may live in a place that is the most remote in Ireland from the location of the proposed development or perhaps in a foreign country. The absence of any limiting criteria as to who may object to and thus participate in the planning process means that it is open to not only the genuinely interested who may be directly or indirectly affected by the proposed development or who have a genuine concern for the impact of a development on the environment but also a person who may be the officious bystander with no real concern about the outcome of a planning permission or even a person who, for some ulterior motive, simply wishes to block or slow down the application. One must assume, as seems to be the case, that most objections to planning applications, even if the objection is found not to be meritorious, are motivated by a genuine concern with the nature of a proposed development having regard to such matters as good planning or the protection of the environment as perceived by the objector. There is no reason to believe that the applicant in this case is motivated otherwise than by genuine personal concerns concerning the implications of the proposed development in this case.
If the Oireachtas decided that the opportunity of participating in the statutory planning permission process should be open to any member of the public it clearly decided otherwise as regards any challenge before the Courts to the validity of a decision of a planning authority on an application for permission under the Planning and Development Act 2000.
First of all s. 50(2) provides, inter alia, that a person shall not question the validity of a decision of a planning authority on an application for permission “otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts”.
Judicial review of administrative decisions taken by statutory bodies in the exercise of their functions in connection with an application for planning permission, or an appeal therefrom, is a separate and distinct process from participation in the planning process itself. Generally speaking it involves the review of such decisions in order to determine whether those made by the relevant statutory body are in accordance with, and within the ambit of, their statutory powers and duties. Judicial review proceedings are not concerned with the merits as such of an application for permission in relation to a development.
Prior to the enactment of the Planning and Development Act 2000 a party applying for leave to bring judicial review proceedings in respect of a decision to grant planning permission would have been entitled to such leave provided the party had demonstrated that he or she had “sufficient interest” in the matters at issue and of course satisfied all other criteria for the grant of such leave. This requirement as to “sufficient interest” was not expressly provided for by statute but was one of the criteria mentioned in the Rules of the Superior Courts. In very broad terms it could be said to reflect a general requirement as to locus standi to bring proceedings, that is to say that a person had “sufficient interest” as to be in a position to assert a breach of rights or of the law affecting him or her so that the matters in issue could be considered a justiciable controversy and not hypothetical or relating to matters in which the individual had no interest, such as merely seeking to enforce a jus tertii. So far as the planning code was concerned a person could have been treated as having “sufficient interest” by virtue of the fact alone that they were objectors who had made submissions or observations in the course of the planning process.
In enacting s. 50(4)(b) of the Act of 2000 the Oireachtas introduced for the first time, in respect of applications for leave to bring judicial review proceedings concerning, inter alia, a decision to grant planning permission by a planning authority, the criterion of “substantial interest” .
Section 50(4) states that the “substantial interest” must be “in the matter which is the subject of the application”. Since that which is the subject of a judicial review application must be a judicially reviewable decision it is pellucidly clear that the subject matter of the application refers only to one of the matters referred to in s. 50(2) which states as follows:
“(2) A person shall not question the validity of –
(a) a decision of a planning authority,
(i) on an application for a permission under this Part, or
(ii) under section 179,
(b) a decision of the Board,
(i) on any appeal or referral,
(ii) under section 175, or
(iii) under Part XIV.
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (“the Order”).
In this case the subject matter of the application is the decision of the planning authority on the application of the developers, the notice party, for permission under Part III of the Act, namely, its decision to grant planning permission, the validity of which the appellant seeks leave to impugn.
No substantive definition of what constitutes a “substantial interest” is provided in the Act. All the Act has to say about it is that “a substantial interest for the purposes of [the relevant subsection] is not limited to an interest in land or other financial interest.” (s. 50(4)(d)).
Although the criteria as laid down by the Oireachtas in the Act of “substantial interest” is vague some clear delineations can be made.
It is clearly intended to raise the threshold so to speak which applicants for leave to bring judicial review proceedings must cross. As a very first step it may mean that an applicant should have a direct interest of some material substance in the development, or its effects, with which the decision to grant planning permission is concerned.
If an applicant does not have a “substantial interest” related to the development, or its effects, as such, a person who has exercised a statutory right to participate in the planning process may potentially have a “substantial interest” related to the exercise of that right. This case involves an applicant who claims to have a “substantial interest” in the development as such, by reason of its effect on the local environment as well as a “substantial interest” in the vindication of his right to participate in the planning process.
The considerations in this case do not give rise to any consideration of the position of a prescribed body, within the meaning of the Act and the Regulations made thereunder, who participate in the planning process.
Section 50(4) is clearly intended to limit the range of persons who would have the locus standi to seek to challenge by way of judicial review the validity of a decision such as a decision of a planning authority to grant planning permission.
This limitation which is sought to be imposed by the Act of 2000 must also be seen against the backdrop of the right of virtually anybody to participate in the planning process itself at the application for permission stage and the consequential right to participate in an appeal to An Bord Pleanala where the merits of a development are revisited and during which most errors, if any, of the planning authority may be corrected.
It is relevant to note at this stage that s. 50(4)(c)(i) requires that an applicant for leave to bring judicial review must, inter alia, be a person who had made submissions or observations to the planning authority in relation to the proposed development. This is a pre-condition that exists side by side with the requirement that an applicant for leave must have a “substantial interest” in the subject matter of his or her application. They are distinct and separate requirements.
Therefore, it is not sufficient that an applicant for leave has participated in the planning process by making submissions or observations pursuant to the regulations of 2001.
Accordingly, there is a stark contrast between the range of persons who have a statutory right to participate in the planning process for which a planning authority has responsibility and the range of persons who have locus standi to apply for leave to bring judicial review pursuant to s. 50 of the Act. In the former instance any person who wishes to object to a proposed development, however remote, insignificant or absent their interest in it, may make submissions and observations to that effect under the regulations of 2001 but only those which make such observations or submissions and have a “substantial interest” have the standing to apply for leave.
The appellant in this case having exercised his statutory right to make an objection to the proposed development has argued that he has a “substantial interest” in the decision to grant permission under two broad headings.
(a) Firstly the applicant says he has a “substantial interest” in the proposed development itself by reason of the nature, scope and location of the proposed development and its environmental impact on a sea headland where he has had a constant and continuous interest in that area, constantly visits it and lives in a town situated 2/3 km. from the headland. By virtue of the foregoing he claims he has a “substantial interest” in the decision made by the planning authority to grant permission.
(b) Secondly, he says there was a serious and unlawful abuse of process by the planning authority in the statutory procedure which it followed leading up to its decision to grant permission and that he, as an objector exercising a statutory right, has a “substantial interest” to challenge the validity of that decision because his right to participate in the process has been unlawfully restricted.
I would categorise these two grounds on which he claims to have a “substantial interest” in the matter the subject of the application, within the meaning of s. 50, as the applicant’s environmental interest and his statutory process interest.
The facts and context in which the applicant claims a “substantial interest” within the meaning of s. 50(4) so as to be entitled to seek leave to bring judicial review proceedings challenging the validity of the decision to grant planning permission are examined in the judgment of Kearns J. A person who has an interest in the development as such may, by virtue of the nature of that interest and the extent to which it is affected by the proposed development have a “substantial interest” in the subject of the application, namely the decision to grant permission. I agree with the approach adopted by Kearns J., in his judgment on this issue and his conclusion that an applicant, in this context, should, for the purposes of s. 50 of the Act of 2000 establish that he has an interest in the development the subject of the proceedings which is peculiar and personal to him and that that interest is significant and weighty.
Like Kearns J., I agree with the views of Macken J., as expressed in Harrington –v- An Bord Pleanala 2001 I.R. 388 at 403 when she stated that the “substantial interest” of an applicant is “one which she has already expressed as being peculiar or personal to him”.
I also endorse the views expressed by O’Neill J., in Cumann Tomás Daibhis –v- South Dublin County Council 2007 IEHC 118 when he stated
As the foregoing passage makes clear the “substantial interest” to be demonstrated by an applicant may not be unique to him or her but that the decision in issue affects the applicant in a manner which is peculiar or personal.
“In my view the requirement that an interest must be peculiar or personal to an applicant does not mean that if some other party has the same or similar interest in the subject matter of the application that both are thereby excluded from having a “substantial interest”. If this were so it would have the bizarre consequence of including householders from an estate of houses for having a “substantial interest” in a development taking place adjoining their estate. Clearly this could not be so. In my view what the phrase “peculiar or personal” imports is that the proposed development the subject matter of the application is one which affects the applicant personally or individually in a substantial way as distinct from any interest which the wider community, not so personally and individually affected might have in the proposed development. Thus, as in the case of a housing estate many people might be affected substantially in this way and have a “substantial interest”.
I also agree with Kearns J., for the reasons given in his judgment that on the facts of this case that the applicant has not established a “substantial interest” sufficient to satisfy the requirements of s. 50 by reason of his claimed interest in the impact or implications of the proposed development from an environmental perspective.
I consider that the applicant’s interests are too general and remote to be considered substantial.
I would just add, as I have already mentioned, the test laid down by the Oireachtas is vague and lacking in precision. It is left to the Courts to interpret and apply the notion of “substantial interest” as best they can having regard to the objective of the statutory provision to limit the range of persons who can bring judicial review proceedings and the requirement that the interest which they seek to protect is one which is of a substantial nature and thus peculiar and personal to them.
While certain delineations can be made in defining what “substantial interest” may or may not amount to, the phrase is not susceptible to a general or all embracing definition or formula covering all cases. Undoubtedly many cases will fall clearly within or without the notion of a “substantial interest” but there is likely to be at least a significant number of cases in which its application will be very much open to debate. Precisely how proximate must a person be to the effects of a planning development in order to have a “substantial interest”? If the residents of a housing estate are potentially affected by a proposed development so that they should be considered as having a “substantial interest” in it, does that include all those residing in a housing estate irrespective of the vastness of the area which it covers? Where is the line to be drawn? Inside the housing estate, on its perimeter or somewhere beyond that? Inevitably much will depend on the facts and circumstances of the case including the situation of an applicant and the nature and ambit of the proposed development. Not for the first time legislation seeking to limit litigation is drawn up in terms which are imprecise and likely to generate further litigation rather than less for Courts which are already heavily burdened.
In a case such as this, in addition to establishing that he or she has a “substantial interest” an applicant must also establish that they have substantial grounds for seeking judicial review and even if so the Court will consider, as the learned trial Judge in this case pointed out, whether an appeal to An Bord Pleanala would provide a sufficient remedy. These preliminary issues may have to be litigated in the High Court and then on appeal before the substantive issues of judicial review can be litigated in the High Court and then on appeal. In this case if the appellant had succeeded in his appeal it would be necessary for the High Court to have a further hearing on whether the grounds on which he relies, or any of them, in seeking leave to bring judicial review are substantial grounds and then if so whether in any event an appeal to An Bord Pleanala would provide a sufficient remedy.
I would finally add, in this context, that the learned trial Judge in the course of his judgment considered in detail the manner in which all these issues should be addressed at the application for leave stage without seeking to be definitive since this may vary according to the case. I fully agree with his excellent analysis of how the several issues that arise in an application of this nature could be addressed, as he correctly did in the circumstances of this case. It is of course desirable, where this is possible and more efficient in the circumstances of a case, that all issues preliminary to the granting of leave to bring judicial review proceedings are dealt with at the same time to avoid, as far as possible, successive hearings and successive appeals in relation to them.
Denial of Due Statutory Process
The appellant in this context claims that he was denied due process because of a number of legal vices in the manner in which the planning authority dealt with and decided upon the planning application.
It is contended that the appellant must be considered to have a “substantial interest” in the decision making process and therefore in the validity of the decision to grant planning permission because he has a statutory entitlement to participate in that process, a denial of which also amounts to a breach of fair procedures in breach of Article 40.3.1 of the Constitution.
It was also argued on behalf of the appellant that insofar as the interest of an applicant for judicial review of a decision to grant planning permission is contingent on the expression of that interest in the planning process, the deprivation of the opportunity to express that interest should logically confer on the applicant with a “substantial interest” for the purposes of the section. In support of his argument he relied, inter alia, on the statement of Clarke J., in his judgment of 12th October 2006 in this case where it was stated, at paragraph 5.12,
It was submitted on behalf of the appellant that he must be considered to have a sufficient “substantial interest” to bring the judicial review proceedings because he had been “substantially denied an opportunity to involve himself in the process”. In this respect it was submitted that the defects in the planning process constituted a “sufficiently substantial failure in the public consultation process”. If he is denied an opportunity to bring judicial review proceedings, where he has been denied an opportunity of involving himself in the planning process, then he is being deprived of any remedy in law for the loss of his right to participate in that process.
“If each of the complaints made in relation to this aspect of Mr. Harding’s case were to be made out then there would be grounds in my view, for taking the view that he had been improperly excluded from a reasonable opportunity to involve himself in that aspect of the process which resulted in a consideration of what, on any view, must be a development which is at least in some material respects different from that applied for. In addition, if other of the grounds which he contends are established, part of the reason why such exclusion may have occurred was by virtue of the need to maintain the tax status of the development by the grant of a permission on foot of the existing application rather than on foot of a new application incorporating the modifications required to make the matter acceptable to Cork County Council. While obviously the merits of the proposal as modified can be fully dealt with in the appeal process, I am not persuaded that in the event that Mr. Harding was to succeed in relation to all or many of the grounds which he puts forward and which I have briefly outlined above, it could not be said that there has been a sufficiently substantial failure in the public consultation process before the local authority such as would lead to a conclusion that Mr. Harding had been substantially denied an opportunity to involve himself in the process relating to those revised or modified plans.”
There is no doubt in my view that the appellant had a statutory right to participate in the planning process. That right, as previously indicated, stems from two provisions of the Planning and Development Regulation 2001.
Firstly, Article 29(1) of the Regulations permits any person or body, on the payment of the prescribed fee to make submissions or observations in relation to a planning application. The Article also requires the person to indicate the address to which any correspondence relating to the application should be sent.
Secondly, Article 35(1) provides that where a planning authority receive further information or evidence following a request under Article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to an application and it considers that this further material contains significant additional data it is required to notify any person who made a submission or observation in relation to the planning permission as soon as may be following the receipt of the further information or other material indicating that such significant further information or material has been furnished to it and that it is available for inspection or purchase at the offices of the authority.
Finally that Article provides for a further submission or observation being made by the person concerned to the planning authority in relation to the further information or other material that has been furnished to it.
The appellant has made no complaint concerning any infringement of his rights to make the initial observations or submissions pursuant to Article 29. He does however complain that the manner in which he was notified of such further significant information pursuant to Article 35 of the said Regulations denied him his statutory right to make further submissions or observations with regard to it. Every person who has made a submission or observation pursuant to Article 29 has a statutory right to be notified of such further significant information so as to be in a position to make further submissions or observations with regard to it.
As regards these grounds upon which the appellant relies to establish that he has a “substantial interest” in the decision to grant planning permission obviously the same considerations apply, namely, that he has an interest in the decision which is peculiar and personal to him and that the interest is significant and weighty.
It seems to me manifest that the right to make such submissions pursuant to Article 35 is a right vested in such a person by law and is one which is personal and peculiar to him or her.
If an individual is denied such a statutory right he or she has, potentially, a “substantial interest” in seeking a judicial remedy including by way of judicial review, with a view to impugning a decision made in breach of that right.
To hold that such a person could not have a “substantial interest” in a statutory planning decision taken in breach of his or her statutory rights would, it seems to me, render the right ineffective and deprive the Statutory Instrument of the quality of a law. That would simply undermine the rule of law by depriving the person of a remedy in circumstances where no other remedy is available.
Before dealing with the appellant’s ground of complaint for a breach of the foregoing statutory right I should refer to the other grounds of complaint regarding the alleged failure by the planning authority to observe the procedures laid down by Statute and Regulation.
The other grounds upon which the planning authority are alleged to have acted in breach of the relevant regulations and due process are numerous and include allegations that the applicant for planning permission had submitted further information and revised plans which were not a modification of the original application but a radical departure from it, there was a failure on the part of that developer to provide all the further information which was demanded by the planning authority or to do so in time, the developer’s failure to send an appropriate fee with the revised plan and the failure to erect a site notice in respect of that plan. He also alleges that the planning authority failed to provide the statement required by the Regulations indicating the main reasons for not accepting the recommendations contained in the report of the authority’s senior planner. The planning authority he says failed to observe the law in dealing with or addressing such matters.
In my view these grounds of complaint and the alleged breaches of statutory procedures (other than the alleged breach of his right to make further submissions and observations pursuant to Article 35) arise generally in relation to the planning application and the decision to grant permission. They are not issues which involve an interest which are peculiar or personal to him.
Only persons who have a “substantial interest” in the subject matter of the application, may seek leave to judicially review the validity of the decision to grant planning permission on those or other grounds. The mere fact that the appellant relies on such grounds cannot mean that he has a “substantial interest” for the purposes of s. 50 no more than the fact that he objects to the development on environmental grounds means that he must be deemed to have such a “substantial interest” . Absent a “substantial interest” the appellant is no more entitled to leave to bring judicial review proceedings than any other person whose interest in the development is simply a general one or too remote. As stated earlier in this judgment s. 50 makes it clear that being a person who made the submissions or observations pursuant to Article 29 of the Regulations does not absolve that person from demonstrating, in addition, that they have the “substantial interest” required.
I now turn to the question of whether the applicant has demonstrated that he has a “substantial interest” at least in vindicating a breach of right to make further observations pursuant to Article 35 of the Regulations of 2001 and thus in seeking to challenge the validity of the planning authority ‘s decision on that ground. If he establishes, prima facie, that such a right has been breached he may have such a “substantial interest”.
In this respect the appellant complained in his affidavit grounding his application for leave to bring judicial review that additional information provided by the developer was submitted to the planning authority on 23rd August 2005 and that it was not until 21st September 2005 that the decision was taken to the effect that the further information contained significant additional data thus requiring that the appellant, like other persons who may have made submissions pursuant to Article 25, be advised of their right to make observations in respect of the new information.
He goes on to point out at paragraph 26 of his affidavit, “In compliance with Article 35 the first named respondent sent me by registered post a letter dated 26th September 2005 notifying me that I was entitled to make submissions or observations in relation to the further information within a period of two weeks from the 26th September 2005.” He then complains that by reason of the fact that the letter was sent by registered post he did not receive the letter until or about 6th October 2005. He had been obliged to request that it be redirected by the Post Office to a boat called the Nimmo on which he was to collect it. This he complains resulted in him having approximately two working days notice of the fact that he could make further observations. He says by reason of the delayed arrival of the letter giving him the required notice he was not adequately prepared to make a full observation, although he did in fact make observations. He says he would like to have had the services of a town planner to assist him but was not in a position to do so given the time constraints. He also complains that he was entitled to receive the notice from the planning authority of their receipt of further information or revised plans “as soon as may be” and that the letter sent by registered post dated 26th September 2005 was not in accordance with that requirement in the regulations.
As stated above the appellant premised his assertion of a “substantial interest” on the fact that he had been “substantially denied an opportunity to involve himself in the process.”
As regards the latter point concerning the “as soon as may be” requirement it has to be borne in mind first of all that this is an administrative procedure and requirements as to time must be interpreted having regard to the ordinary burdens of administration in any organisation or body. It is not as if the matter in question was the only such matter with which the planning authority in question had to deal with. In particular the requirement in such a Regulation should not be interpreted as strictly as might be the case in criminal procedure where the personal rights of individuals in the administration of justice are directly in issue. As the appellant acknowledges it was on the 21st September that a decision was taken that the further information contained significant additional data and the letter notifying him of same was sent on 26th September 2005. In any event even if one looks at the passage of time from the 23rd August 2005, when the additional information was submitted, I cannot see that the letter duly notifying him of the submission of the additional information on the 26th September affected the appellant’s rights or affected his interests, to any significant extent, if at all.
The real complaint of the appellant in this regard is the late receipt by him of the letter in question, not long before the time for making further submissions expired. As regards the actual delivery of the letter it is clear from the exhibits lodged on behalf of the appellant that the letter was sent to the address which he gave, and was required to give, by the Regulations for the communication of any such notice by the planning authority when he made his original submissions to them. The reason he did not receive the letter in question earlier was because he was not there to receive the letter in the ordinary course of registered post. In fact his complaint seems to be that the planning authority ought not to have sent it by registered post. At paragraph 27 of the affidavit he says “by reason of the fact that they chose to do so by way of registered post this further delayed the receipt of the letters.” I do not see how the planning authority can be faulted for sending such a document by registered post to the address furnished by the appellant. On the contrary s. 250(1)(c) authorises a letter so notifying the appellant to be sent by ordinary prepaid registered post to that address.
In my view, although a person in the appellant’s position has potentially a “substantial interest” in vindicating a right to exercise the specific right to make observations vested in such a person under the Regulations, on the facts of this case, as put by the appellant himself, I am quite satisfied that no wrongful act on the part of the planning authority could be said to adversely affect the appellant’s rights or interests in this regard. His initial premise is not established prima facie, and he has not demonstrated that he has any “substantial interest” deriving from any alleged breach of his right to make observations.
I would add in passing that a person who complains of a complete denial of a statutory right vested personally in him or her by law (such as the right to make further submissions in respect of further significant information as envisaged by Article 35 of the Regulations) should not always just sit back and leave the process proceed at length until it reaches its final conclusion and then seek to impugn the final decision where it would have been properly open to such a person to seek a remedy at an earlier stage, such as by way of mandamus, requiring the authority to observe the statutory right in question. That is something which a Court would fully take into account when deciding whether or not to grant leave to bring judicial review. It may be otherwise where for example the decision was taken before the breach of the legal right could reasonably have been known or before there was an opportunity to seek any other properly available remedy. In this case the appellant states that the decision to grant planning permission was taken so soon after the expiry of the deadline for making further submissions that he had no opportunity of taking any step in relation to it before that decision was made. However, it is not necessary to address that aspect of the matter further in the light of the conclusions that I have come to above.
Allusion was also made in the course of argument to general rights of due process guaranteed by the Constitution. The entitlement of the appellant to participate in the planning process derives from the Regulations of 2001 and the process does not involve the determination of or adjudication on any personal rights of the appellant as a citizen. The statutory or regulatory rights vested in the appellant in this instance were the right to make observations in accordance with the Regulations and I have dealt with that above. No other broad constitutional issues arise. In so concluding for the purpose of considering whether the appellant could have a “substantial interest” within the meaning of s. 50 of the Act of 2000 it may also be inferred that the particular ground in question does not constitute a substantial ground. In the context of the appellant’s claim that his right to make observations had been breached, a consideration of whether the alleged breach was sufficient to give him a “substantial interest” for the purpose of s. 50 may indeed overlap with the kind of considerations that would be involved in determining whether it also constituted, distinctly and separately, a substantial ground. I just wish to make it clear that my considerations were not concerned with the latter issue, which is a distinct one notwithstanding the overlap of considerations that may be involved in the context of this particular point.
I also agree with the learned trial Judge’s conclusions that the appellant has not shown that he has been substantially denied an opportunity to involve himself in the process relating to the revised or modified plans, a conclusion which he also distinguished from a finding on the merits as such of the grounds.
The appellant having failed to demonstrate that he has a “substantial interest” in the matter the subject of his application I would dismiss the appeal.
Judgment of Mr Justice Finnegan delivered on the 2nd May 2008
The questions certified by the learned High Court judge pursuant to the Planning and Development Act 2000 section 50(4)(f)(i) raises important and complex issues on the construction of section 50(4)(b) and in particular the criteria by reference to which a person may be said to have a substantial interest in the matter which is the subject of the application. I have had the benefit of reading the judgments of the Chief Justice and Mr Justice Kearns. Insofar as the criteria for establishing an environmental interest is concerned I concur fully with the judgments. In the context of an environmental interest the appellant has failed to establish a substantial interest and I would dismiss the appeal.
It is also contended by the appellant that there was a procedural deficit in the proceedings of the Planning Authority and that as a participant in the planning process he has a substantial interest in the regularity of the procedures which attended the application in issue in these proceedings. He alleges numerous breaches and non-compliances by the Planning Authority with the Planning and Development Regulations 2001. I agree with the judgments of the Chief Justice and Mr Justice Kearns that with one exception the breaches and non-compliances relied upon do not involve any interest peculiar or personal to the appellant and could not therefore satisfy the statutory requirement of substantial interest. The exception is his contention that there was a failure to comply with the Planning and Development Regulations 2001 Article 35(1). Having regard to the provisions of the Planning and Development Act 2000 section 250, however, it is clear that the Planning Authority was not in breach of Article 35(1) of the Regulations. The Regulations in Article 29(1)(b) require that any submission or observation in relation to a planning application shall state the name and address of a person making the same. Section 250(1) provides that a notice required by the Act or any Regulation to be served or given to any person may be served or given by sending it by post in a pre-paid registered letter addressed to him or her at the address for service which has been furnished and that is what occurred here.
It being the case that the appellant has not established any procedural deficit or irregularity whatsoever which is substantial it is not necessary that the court on this appeal to determine whether, should there have been a breach of Article 35(1) or other requirement of the Act or Regulations, the appellant would have been entitled to challenge by judicial review the decision of the Planning Authority on the basis that his participation in the process could give him a substantial interest. I would leave over for determination on an appeal in which such a breach has been established the determination of whether any breach of the Act or Regulations could be the basis of an application for judicial review and if so the criteria by reference to which it could be said that a person relying on the same has a substantial interest. I am, however, satisfied that mere participation in the planning process of itself is insufficient to constitute such an interest. If such participation could constitute an interest for the purposes of section 50 the interest identified of necessity would have to be one peculiar or personal to the applicant for judicial review to meet the requirement of being substantial. I would leave over consideration of this issue and, if appropriate, the criteria to a future case in which these issues require to be determined.
JUDGMENT of Mr. Justice Kearns delivered the 2nd day of May, 2008
The applicant is a sailor and retired merchant seaman who lives in the town of Kinsale. He has lived all his life in Kinsale and grew up in the Ballymacus area where the notice party has been granted planning permission for a substantial hotel, golf and leisure resort at Ballymacus Head and Preghane Point at the entrance to Kinsale Harbour.
Mr. Harding is totally opposed to this development on environmental grounds, although he lives some three kilometres away from the site of the proposed development. Members of his extended family still reside in the Ballymacus area and his uncle, Charles Harding, owns a portion of the headland itself. In his various affidavits sworn in the proceedings, Mr. Harding asserts that he has over the years maintained a constant and continuous interest in the area and visits it frequently. He visits the area both by land and sea and contends that for these reasons he has a substantial interest in the development project as the same is defined at s. 50 of the Planning and Development Act, 2000.
While the applicant was an objector to the proposed development and participated in the planning process, the first named respondent made a decision on 1st October, 2005 to grant planning permission to the notice party for the proposed development subject to 72 conditions.
While the applicant had the option of bringing an appeal from this decision to An Bord Pleanála, he elected instead to seek leave to bring judicial review proceedings to quash the decision of the first named respondent on a variety of grounds. The application for leave was heard in the High Court (Clarke J.) who refused to grant such leave in a judgment delivered on 12th October, 2006. The learned trial judge found that the applicant had failed to demonstrate the necessary “substantial interest” required as a precondition for obtaining leave under s. 50 of the Planning and Development Act, 2000.
The applicant then applied for a certificate for leave to appeal to the Supreme Court. The learned trial judge granted such certificated by judgment delivered on 30th November, 2006 in respect of the following point of law:-
The learned trial judge rejected five other points which the applicants sought to raise in the certificate.
“What are the criteria by reference to which a person may be said to have a ‘substantial interest’ even though they do not have a financial or property interest within the meaning of s. 50 of the Planning and Development Act, 2000 and has this court properly applied such criteria to the instant case?”
SECTION 50 (4) OF THE ACT: SUBSTANTIAL INTEREST
The precise provision dealing with the requirement to show substantial interest is contained at s. 50 (4) of the Planning and Development Act, 2000 which provides:-
(i) if the application relates to a decision referred to in paragraph (a) of subsection (2), to the planning or local authority concerned and, with regard to a decision on an application for permission under this Part, to the applicant for the permission where he or she is not the applicant for leave,
“(b) An application for leave to apply for judicial review shall be made by motion, on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)—
(ii) if the application relates to a decision referred to in subparagraph (i) of subsection (2)(b), to the Board and each party or each other party, as the case may be, to the appeal or referral,
(iii) if the application refers to a decision referred to in subparagraph (ii) or (iii) of subsection (2)(b), to the Board and the planning or local authority concerned, and
(iv) to any other person specified for that purpose by order of the High Court,
The explicit reference to “substantial interest” in the statutory provision not only reflects a higher threshold than the previous standard of “sufficient interest”, but also affords legislative recognition to the importance to be attached to the requirement. The previous “sufficient interest” standard was not directly contained in the Planning Acts but was incorporated by reference to Order 84 of the Rules of The Superior Courts (R.S.C.).
and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application. (Emphasis added)
(c) Without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that—
(i) the applicant—
(I) in the case of a decision of a planning authority on an application for permission under this Part, was an applicant for permission or is a prescribed body or other person who made submissions or observations in relation to the proposed development,
(II) in the case of a decision of a planning authority under section 179, is a prescribed body or other person who made submissions or observations in relation to the proposed development,
(III) in the case of a decision of the Board on any appeal or referral, was a party to the appeal or referral or is a prescribed body or other person who made submissions or observations in relation to that appeal or referral,
(IV) in the case of a decision of the Board under section 175 , is the planning authority which applied for approval, or is a prescribed authority or other person who made submissions or observations under subsection (4) or (5) of that section, or
(V) in the case of a decision of the Board under Part XIV, is a local authority that proposes to acquire land or to carry out a scheme or proposed road development or is a person who made objections, submissions or observations in relation to that proposal, or
(ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be.
(d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest.”(Emphasis added)
Both sides to this appeal agree that s. 50 significantly “heightened the bar” for objectors or other aggrieved parties who now seek to bring judicial review proceedings. Section 50 (2) of the Act of 2000 provides that a person shall not question the validity of a decision of a planning authority otherwise than by way of an application for judicial review. Leave to bring such proceedings must be sought in advance from the High Court and such application must be brought within the period of eight weeks commencing on the date of the decision of the planning authority (as opposed to six months under the previous regime). The application must be made by a motion on notice to the planning authority who may, as in the present case, argue in court that leave should not be granted. The High Court shall not grant leave unless it is satisfied that there are both substantial grounds for quashing the decision and that the applicant has a substantial interest in the matter which is the subject of the application. Furthermore, the applicant must be either a prescribed body or a person who has made submissions or observations in relation to the proposed development. Leave of the High Court is required for appeal to the Supreme Court whereas no such leave is required in relation to the normal Order 84 procedure. The High Court must in addition certify that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken to the Supreme Court.
These are onerous conditions which can only be seen as restricting in a significant way the citizen’s right of access to the court. Perhaps it would be more accurate to say that the citizen’s entitlement to a judicial remedy is significantly circumscribed by the Act of 2000. Access to court per se is not denied, but an applicant has numerous hurdles to clear before obtaining leave.
It is impossible to conceive of these legislative provisions as being intended for any purpose other than to restrict the entitlement to bring court proceedings to challenge decisions of planning authorities. There is an obvious public policy consideration driving this restrictive statutory code. Where court proceedings are permitted to be brought, they may have amongst their outcomes not merely the quashing or upholding of decisions of planning authorities but also the undesirable consequences of expense and delay for all concerned in the development project as the court process works its way to resolution. The Act of 2000 may thus be seen as expressly underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible.
SUBSTANTIAL GROUNDS AND SUBSTANTIAL INTEREST REQUIREMENTS
Section 50(4)(b)(iv) provides in strongly negative terms that leave:-
Is this one fence or two? By ascribing to the words contained in the section their ordinary and natural meaning it seems patently clear that substantial grounds and substantial interest are separate concepts which give rise to separate requirements. If this interpretation is correct it follows that a failure to possess or establish one or other is fatal to a leave application.
“shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.”
In Lancefort Ltd. v. An Bord Pleanála & Ors (No.2)  2 IR 270 Keane J. stressed the distinction between substantial grounds and substantial interest in stating at 318:-
Part of the appellant’s case before this Court has been to argue that these two considerations may be seen as two aspects of the same thing and inextricably linked or conflated in some way. In this context, Mr. Galligan, senior counsel for the applicant, attached considerable importance to a passage in the judgment of Macken J. in Harrington v. An Bord Pleanala  1 I.R. 388 where she stated at p. 402:-
“I cannot agree, however, with the submission advanced on behalf of the applicant that the fact that there were ‘substantial grounds’ for contending that the decision was invalid necessarily leads to the conclusion that they had locus standi. Since the amendment affected by s. 19 (3) of the Act of 1992 obliges the applicant in a case such as this to proceed by way of an application under O. 84 of the Rules of the Superior Courts and since the latter expressly requires that the applicant should have ‘a sufficient interest’ in the matter, it must be presumed that the Oireachtas intended that an applicant, in addition to establishing substantial grounds for contending that the decision was invalid, must also show that he or she has such an interest.”
However, I do not interpret the observations of Macken J. as being directed to the dichotomy between “substantial grounds” and “substantial interest”, but rather as an acknowledgement that while severe restrictions govern rights of access to challenge decisions of planning authorities they must not be so restrictive as to preclude the courts from intervening to restrain a serious abuse of process. I take this passage as being a reference more particularly to the issue of “substantial grounds”, an impression which is borne out by the following paragraph in the judgment of Macken J. (at p. 403) where she states:-
“Having regard to the legislative history and, in particular, to the increasingly strict provisions for commencing judicial review proceedings in planning matters put in place by the Oireachtas, it seems to me that in deciding what is intended by the phrase ‘substantial interest in the matter which is the subject of the application’, an equally rigorous approach must be adopted. The interpretation of that phrase in the proviso to s. 50 (4) of the Act of 2000 must be informed by the general approach found in the legislation to the question of appeals of this nature provided, however, that the legislation is not applied in such a restrictive manner that no serious legal issue legitimately raised by an applicant could be ventilated, or which would have as its effect the inability of the courts to check a clear and serious abuse of process by the relevant authorities, such that either event might thereby remain outside the supervisory scrutiny of the courts, a factor also considered by Keane J. in the case of Lancefort Ltd. v. An Bord Pleanála (No.2)  2 IR 270.”
At p. 404 she went on to state:-
“While I accept the applicant's argument that the Act makes it clear such substantial interest may be wider than an interest in land, or a financial interest and therefore, in theory, it can cover a wide variety of circumstances, I consider that the substantial interest which the applicant must have is one which he has already expressed as being peculiar or personal to him.”
Mr. Galligan also seeks to rely upon a strand of the judgment delivered by Keane J. in Lancefort Ltd. v. An Bord Pleanála (No.2)  2 IR 270 where he stated at (pp. 308 to 309):-
“In my judgment, s. 50 of the Act of 2000 separates, even more clearly than under previous Acts, the applicant's interest, which is to be considered from the point of view of his having established the required substantial interest and the second requirement, being one under which the applicant must establish to the court that there are, objectively speaking, substantial grounds for contending that the decision is invalid.”
Mr. Galligan further invoked in support of this approach the decision of Finlay Geoghegan J. in Friends of the Curragh Environment Ltd. v. An Bord Pleanala  1 I.L.R.M. 386 in which Finlay Geoghegan J. stated as follows (at p. 393):-
“The authorities reflect a tension between two principles which the courts have sought to uphold: insuring on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies do not escape scrutiny by the courts because of an absence of indisputably qualified objectors and, on the other hand, that the critically important remedies provided by the law in these areas are not abused.”
However, I believe Mr. Galligan is mistaken in his submission that either of the cited passages support an interpretation the effect of which is that the presence of substantial grounds makes good a deficit or lack of “substantial interest”. I have already referred to the judgment of Keane J. in Lancefort which supports the view that a substantial interest test must be separately met before leave is granted. Secondly, nothing in the judgments in Lancefort can be taken to contradict the plain terms of the subsequently enacted legislation which requires that the applicant demonstrate a substantial interest. Thirdly, I do not believe that the substantial interest requirement is to be taken as meaning the challenge to the validity of the decision (i.e., the legal proceedings) because it goes without saying that every litigant has that degree of interest in their own legal proceedings and the inclusion of words for that purpose in the statute would have been superfluous and pointless. It may well be that Finlay Geoghegan J. was differentiating between objections which fail to meet a locus standi test on one ground but may nonetheless meet the requirement on another, but to the extent that Mr. Galligan seeks to rely upon this decision to suggest that the existence of substantial grounds can make good a lack of “substantial interest”, I do not accept that submission as correct.
“Whilst in Lancefort standing was considered under O. 84 r. 20(4) and not s. 50 of the Act of 2000 it appears that a construction of s. 50 of the Act of 2000 which is consistent with the constitutional right of access to the courts requires the court to have regard to the first principle referred to by Keane CJ. In practical terms, this seems to require the court to have some regard to the grounds on which the decision is challenged when deciding whether the applicant has satisfied the standing requirement of s. 50(4)(b). The wording of the section so permits. What the applicant must have is a substantial interest in “the matter which is the subject of the application”. In a judicial review application such as this, “the matter which is the subject of the application” is the challenge to the validity of the decision on specified grounds.”
If one were to accept that a deficiency of interest could be compensated for by demonstrating substantial grounds, such a conflation of the two requirements of the subsection would inexorably also mean that a particularly strong interest in the development could be invoked as a justification for granting leave even in the absence of substantial grounds. That would be plainly wrong.
Ultimately, if the legislature intended that substantial grounds alone or separately could discharge their requirements of s. 50, the word “and” which links the two requirements would not have been employed. Instead the word “or” would have appeared.
I think therefore it is a perfectly legitimate approach for the Court to adopt the position that it will first examine whether an applicant has substantial interest before it considers the issue of substantial grounds. Indeed, this is the approach adopted by Clarke J. in his judgment delivered herein on 12th October, 2006 when he stated (at para. 2.2):-
I see no basis for conflating the concepts of “substantial grounds” and “substantial interest”. I am fortified in so concluding by considering what might occur if one took the view that substantial grounds alone might suffice to confer locus standi where no substantial interest exists. In such circumstances an objector in the planning process - who might be a person with no connection to the locality where the development was taking place - could stymie or delay the entire planning process if he could identify even an arguable error of process in the manner in which the planning authority had dealt with the application. Such a person might be a person who in a case like the instant one had a general interest in environmental matters and who for that reason made submissions or observations. Article 29 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (as substituted by article 8 of the Planning and Development Regulations, 2006) (S.I. No. 685 of 2006) states:-
“If a planning authority or the Bord or, indeed, a notice party can satisfy the court that the person seeking judicial review does not have a sufficient interest to meet the test set out in s. 50, then it does not seem to me to be appropriate for the court to go any further in a consideration of whether there are substantial grounds for the challenge. Furthermore in cases where those parties persuade the court that an appeal to the Bord would be an adequate remedy then it is, again, unnecessary to consider whether there are substantial grounds. In either case a decision as to whether there are, or are not, substantial grounds would be redundant. In such circumstances it would be unnecessary for the court to embark on a consideration of the strength of the grounds put forward for suggesting that the decision under challenge is invalid.”
Thus the objector might be a person who resides at the opposite end of the country, or for that matter in the United Kingdom or mainland Europe, or indeed might even be a person with some knowledge of the local area who has moved away overseas but who nonetheless likes to fill in idle moments by tracking planning developments in Ireland on the internet. Conceivably such a person might be an individual living and working on a whaling station in South Georgia. This ‘open to all comers’ scenario is the exact opposite of what the Act is designed to achieve and is in my view irreconcilable with any reasonable interpretation of s. 50(4)(b)(iv).
“(1) (a) Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application.”
In my view the “substantial grounds” and “substantial interest” requirements of s. 50 create two fences, not one and that an applicant who fails to establish the latter has no entitlement to obtain leave merely because he has grounds which are substantial.
SUBSTANTIAL INTEREST IN THE MATTER
The words “substantial interest in the matter which is the subject of the application” receives no further definition in the Act. However, it is clear from a reading of the section as a whole that the word “application” means the application for leave to apply for judicial review. The “matter” must, it seems to me, by reference to the wording contained in s.50(4)(d), be taken as meaning the development project itself and the outcome of the planning process in relation to it. It can not mean the legal proceedings themselves, not only because of the way in which “substantial interest” is contextualised by s.50(4)(d), but also because it would be a trite and superfluous use of a statutory provision to make it a requirement that a litigant have a substantial interest in their own litigation when this is so obviously the fact in every case.
The only guidance, albeit an important one, as to the meaning of “substantial interest” is to be found at s. 50(4)(d) which states:-
This wording strongly suggests to me that the framers of the legislation had in mind a range of interests originating in, but not necessarily limited to, considerations of how an applicant’s property or financial interests might be affected by the particular development. In one sense it admits therefore of a simple and perhaps limited interpretation. If, for example, the requirement is to have a “substantial interest in the project for a new stadium for Manchester United” would any reasonable person assume this threshold level of interest was met by simply having an interest in footballing matters generally or by general concerns about the impact of a new stadium on the city of Manchester? I do not think so. However, if I live next door to the stadium I might be said to have a substantial interest with regard to any proposed building works or other onsite developments in terms of the impact on the value of my property or how my property or business might be affected by increased traffic or other consequential effects. The way I am affected is tangible and immediate and largely derives from the geographical proximity of the proposed development to my property. Needless to remark, it does not necessarily follow that, because an applicant has an interest in land or financial interest which is affected by the development, such applicant will have a substantial interest, although this may often be the case in a particular set of facts. Equally, the subsection does not necessarily mean that a person without an interest in land or financial interest must always fall outside the category of those who have a substantial interest, but simply that other types of interest can count towards whether a person has a substantial interest.
“A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest.”
The notion of “substantial interest” was first considered by O’ Caoimh J. in O’ Shea v. Kerry County Council  4 IR 143, where he held that a general interest that the law be observed is not a substantial interest. Despite being a nearby landowner, O’ Caoimh J. found that the applicant had failed to show how she was affected and so did not have a substantial interest. O’ Caoimh J. said (at pp. 160 to 161):-
O’ Caoimh J. also expressly rejected the notion that a general interest that the law be followed could amount to a substantial interest, declaring at p. 160:-
“The applicant has indicated that she is the owner of the land over which a right of way exists to the golf club. No particular point has been made by the applicant showing how she will be affected by the proposed development. She has confined herself to indicating that, had she been aware of the application for planning permission, she would have objected to same and would have appealed to An Bord Pleanála, had a decision been made in favour of the grant of planning permission and had she been aware of same. I am satisfied, however, that the applicant has failed to show in what manner, if any, she will be affected by the proposed development and, in this regard, I am satisfied that she has failed to show a substantial interest in the matter.”
Also, in Ryanair v. An Bord Pleanala  2 IR 334, O Caoimh J. declared at p.360 of his judgment:-
“Different circumstances may arise giving a substantial interest to the applicant concerned. For example an applicant may be able to show that he or she is directly affected by the proposed development. I am satisfied that the fact that a member of the public may have an interest in seeing that the law is observed is not such as to amount to the existence of a ‘substantial interest’ within the terms of the section”.
On the facts of that case, O ‘Caoimh J. held that merely being a user of an airport did not constitute a substantial interest to permit challenging the decision.
“While the requirements of s. 50 of the Act of 2000 include the obligation for an applicant to show "substantial interest", this has not been the subject of any significant judicial guidance to date. However, it is clear that the nature of the interest in question is not limited to an interest in land or other financial interest. It is also clear, however, that an applicant directly affected by a proposed development will in all probability have a "substantial interest".
In Harrington v. An Bord Pleanala  1 IR 388, Macken J. made some general remarks concerning a restrictive form of judicial review under s. 50, stating at p. 399 of her judgment:-
As already noted, Macken J. held at p. 403 in that case that the substantial interest which the applicant must have is “one which he has already expressed as being peculiar or personal to him”. In O’ Brien v. Dun Laoghaire Rathdown County Council  EEHC 177] the applicant had lived for ten years at a property which was 77 metres away from the proposed development (although she did not own the premises). O’ Neill J. held that she did not have a substantial interest on this basis, and that the proposed development would not have had any significant detrimental effect on the visual amenity she would enjoy from the apartment in which she lived. He noted that the development would adhere to the existing building line, parts of the building would be reinstated and new material would be in the style of the original. O’Neill J. also dealt with certain other putative interests advanced by the applicant, declaring:-
“As has been stated in several cases, consideration of the legislative scheme makes it clear that the Oireachtas intended that s. 50 be stricter than the equivalent section of the earlier Local Government (Planning & Development) Act, 1992, which itself adopted a stricter set of criteria applicable to challenges to the grant of planning permission than previously existed. This is because there is in place an extensive statutory scheme under which members of the public may object to the original grant before a planning authority, and may also appeal to and be heard by an independent appeal authority, namely the first respondent [An Bord Pleanala]. To that appeal scheme the statute also provides for the nomination of certain designated parties, who have an automatic right to be heard, with the view to ensuring wide ranging representation in planning matters from diverse interest groups.”
In Cumann Thomas Daibhis v. South Dublin County Council  IEHC 118, O’Neill J. further clarified his understanding of the “peculiar or personal” criterion expressed by Macken J. in Harrington v. An Bord Pleanála, stating as follows:-
“The next basis upon which the applicant contends that she has a substantial interest is by virtue of her membership of An Taisce and the Monkstown Salthill Residents Association and the interest which he has in the proper planning of the Monkstown area. Being interested in planning matters is wholly different to having an interest in the subject matter of a particular application. An interest even if it is a passionate interest in planning matters will not suffice to establish a substantial interest in the subject matter of a particular application. In this regard I would respectfully agree with the following dictum from the judgment of Macken J. in the case of Harrington v. An Bord Pleanála where she says: ‘I consider that the substantial interest which the applicant must have is one which he has already expressed as being peculiar or personal to him’.
Clearly a mere interest in planning matters falls far short of the kind of personal interest or interests peculiar to a person so as to amount to a substantial interest.
The fact that the applicant is a member of An Taisce and indeed of a residents association indicates she has an interest in planning matters, but her membership of An Taisce does not give her any kind of special status which would amount to a substantial interest for the purposes of s. 50.”
In the instant case, Clarke J. stated in the High Court as follows (at paras. 3.8 to 3.10):-
“In my view the requirement that an interest must be ‘peculiar or personal’ to an applicant does not mean that if some other party has the same or similar interest in the subject matter of the application, that both are thereby excluded from having a ‘substantial’ interest. If this were so it would have the bizarre consequence of excluding householders from an estate of houses for having a substantial interest in a development taking place adjoining their estate. Clearly this could not be so.
In my view what the phrase ‘peculiar or personal’ imports is that the proposed development the subject matter of the application is one which affects the applicant personally or individually in a substantial way as distinct from any interest which the wider community, not so personally and individually affected, might have in the proposed development. Thus, as in the case of a housing estate many people might be affected substantially in this way and have a ‘substantial’ interest.”
Clarke J. then continued (at para. 3.11):-
“Therefore it seems that the first criteria that must be considered is whether it can properly be said that the interests sought to be relied on as meeting the threshold have been asserted (or would, were it not for the contended breach of process have been asserted).
However, even where the interest contended for has been asserted, that does not, of itself, establish that the interest is ‘substantial’. Very many persons may have some sort of ‘interest’ in one sense of the word in any given planning application. To take but a simple example, an application for a significant housing development which, it is contended, might have an adverse effect on traffic, is something which might be of some relevance to a large number of persons. However the degree of relevance is dependent upon the extent to which it might reasonably be said that the person (or an organisation representing a group of persons) may be affected. The fact that one might, on occasion visit the relevant area (for, for example, personal, social or sporting reasons) might, in one sense, give one an interest in the traffic in that area but it could hardly be said to be a ‘substantial interest’. On the other hand a resident’s association representing an adjoining area who might wish to put forward an argument that there would be a very significant impairment of their ability to move in and out of their housing estate would undoubtedly have a much more significant interest.
Furthermore it should be noted that the nature of the proposed development itself, both as to its scale, and the extent to which it might be said to alter the area in which it is located, can have the potential to increase the range of persons who might legitimately be said to have a significant interest in the matter. For example a minor extension to an individual house located in an unobtrusive part of a provincial town would be unlikely to be of legitimate significant interest to any but those in its immediate vicinity. A major redevelopment of the town centre, which could have an effect on the way in which all of the residents of the town had an ability to enjoy the amenities of the town could, at least in principle, have the potential to give rise to a much wider range of persons having a significant interest in the development.”
(a) The scale of the project and the extent to which the project might be said to give rise to a significant alteration in the amenity of the area concerned. The greater the scale and the more significant the alteration in the area than the wider range of persons who may legitimately be able to establish a substantial interest
“It seems to me, therefore that, having identified the interest which an applicant has either expressed (or might be taken to have been prevented from having expressed) the court should, by reference to that interest, identify the importance of the interest by reference to criteria such as:-
(b) the extent of the connection of the applicant concerned to the effects of the project by particular reference to the basis of the challenge which he puts forward to the planning permission and the planning process
(c) such other factors as may arise on the facts of an individual case”
I am satisfied that Clarke J., by reference to the case decisions summarised above, has identified correctly the approach to be adopted by the court in assessing whether a particular applicant has or has not “substantial interest”. It is clear that the interest must be weighty and personal to the applicant in the sense that he has a demonstrable stake in the project, perhaps shared with others, deriving from the proximity and connectedness of his interest to the proposed development and its likely or probable effects.
While certain specific parameters and reference points as outlined above can be identified for the purposes of applying the test, it would be undesirable and probably impossible at this point to set out a definitive test for all cases. It may well be that the criteria to be applied can be further defined or refined on a case by case basis.
MR. HARDING’S INTEREST
As already noted, Mr. Harding is a professional sailor and retired ship’s bosun who lives at 3 Ardbrack Heights in Kinsale. He has lived all his life in the area of Kinsale Harbour and grew up as a child in the Ballymacus area where the notice party proposes to carry out the development the subject matter of the proceedings. He is also intimately familiar with the area from the sea as he frequently conducts sailing trips in the area. He accepts that he cannot establish any interest in land nor has he a financial interest which is affected by the proposed development. He contends however that the whole purpose of the planning code is to allow third parties to participate in the planning process. He points out, quite properly, that he is not a stranger to the area nor is he seeking “officiously” to intervene in respect of a planning application which will have little or no impact upon himself or on the environment in which he lives. His immediate family, an uncle and cousins, own houses right in the middle of the proposed development and his uncle Charles Harding owns a significant portion of the headland. He further states on affidavit that he constantly visits the area although he personally lives in Kinsale. He contends that his long standing association with the area and its close proximity to his current home gave him a substantial interest in the subject matter of the application.
In the court below, Clarke J. rejected the arguments put forward on Mr. Harding’s behalf, although he accepted that Mr. Harding has a genuine interest in seeking to have the headland kept in an undeveloped state. Clarke J. was satisfied, that under the traditional test for standing, the state of affairs elaborated by Mr. Harding would have afforded him a sufficient connection to establish an interest in the matter and thus provide him with standing. He concluded however, as follows (at par. 3.17):-
I agree with the conclusions arrived at by Clarke J. and with the reasons offered by him for reaching that conclusion. I am also satisfied that the judgment draws together various strands from the different cases which have considered this topic in a coherent and comprehensive fashion.
“However I am not satisfied that the degree of connection which he has set out in his affidavits meets the more stringent test introduced in the 2000 Act of a “substantial interest”. I have come to that view notwithstanding the fact that the development is, manifestly, of a significant scale and such as would, if it goes ahead, be likely to bring about a material alteration in the headland itself. Thus I would be inclined to the view that the scope of persons who might be able to establish that they have a substantial interest in this project would be wider than might be the case in respect of projects significantly smaller in scale or those which would not be likely to bring about significant change in the area in which they are located. However notwithstanding that I accept that the scale of and nature of the project extends the scope of those with a “substantial interest” to a wider boundary it does not seem to me that Mr. Harding comes within that extended scope. I accept that his interest is more than that of a mere bystander. I accept that his concerns in relation to the development of the headland are genuine. However it seems to me that the test of “substantial interest” requires something more than a familial connection with an area coupled with a pattern of visiting the area as a former native and as a sea faring person.”
I would therefore be of the view that the question certified for this court may be answered by stating that, in order to enjoy a substantial interest within the meaning of s. 50 of the Act of 2000, it is necessary for an applicant to establish the following criteria:-
(c) That his interest is affected by or connected with the The calculation as to whether the interests of a particular applicant fulfil those requirements is obviously a matter dependent upon all of the circumstances of a particular case.
(a) That he has an interest in the development the subject of the proceedings which is “peculiar and personal” to him.
(b) That the nature and level of his interest is significant or weighty
Mr Galligan further submitted that the term “substantial interest” should be given a more expansive interpretation by reason of the provisions of the Directive 2003/35/EC, the objectives of which include improving public participation in the drawing up of plans and programmes relating to the environment and for amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC.
Article 10a was inserted by article 3(7) of Directive 2003/35/EC as an amendment of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment and provides:-
“Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive”
In the context of the Directive 2003/35/EC, “the public concerned” as stated in article 3(1) means:-
“the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2 (2); for the purpose of this definition, non-governmental organisations promoting environmental protection and meeting any requirement under national law shall be deemed to have an interest”
It must immediately be stated that the Directive was not invoked in arguments before the High Court, though Mr Murray did not seek to rely on any pleading point in this regard. He argued that what constitutes a sufficient interest and impairment of a right are expressly reserved by article 10a to the individual Member States. Mr. Murray is probably correct in that argument but it is not necessary in my view for this point to be decided in the context of this case. Accepting that the Act falls to be interpreted in the light of the terms and objectives of the Directive in question it is also an established principle that such an interpretative approach does not mean that the Act be interpreted contra legem. The interpretation which I have given to the meaning of ‘substantial interest’ in the context of this case flows directly from the terms of the Act itself. That being in my view the plainly correct interpretation of s.50, no issue as to community law arises.
THE OBJECTOR WHO LACKS SUBSTANTIAL INTEREST
In the instant case Mr. Galligan complains that an objector might well wish to pursue a due process or fair procedures point for which he might have no remedy in the context of an appeal to An Bord Pleanála. He gave as an example the failure of a planning authority to give reasons for departing from the report of a senior planner when making its decision. He argued this was one instance of a matter which could not be addressed in the context of an appeal to An Bord Pleanála. Another example might be where a request for information had not been complied with by an applicant within six months. In such circumstances a Planning Authority must declare an appeal to have been withdrawn. While this was a matter provided for in the Regulations of 2001, it was not a matter which could be revisited in the context of any appeal to An Bord Pleanála.
However, the possibility that in a given case there may be an error in process which can not be addressed in the context of an appeal to Bord Pleanala does not convert a non-substantial interest into a substantial interest. Nor do the hypothetical problems mentioned by Mr Galligan arise in the context of the present appeal. This does not mean that some legal error in the process is necessarily immune from judicial remedy. It simply means that persons who do not have a substantial interest in the matter the subject of the decision to grant or refuse an application for planning permission do not have locus standi to seek judicial review of the actual decision. That remedy is confined to those persons who have such a substantial interest. The words of the statute are plain and unambiguous and I see s.50 as expressly excluding a remedy by way of judicial review from persons who do not have a substantial interest. In the context of s.50 it seems to me that any right of such an applicant to bring judicial review proceedings is necessarily limited to reliefs which may be sought prior to the making of any decision by the planning or local authority concerned, as otherwise a challenge by an objector without substantial interest would attack the decision itself in an impermissible manner.
The Act does not itself provide for an exception from the scope of its provisions where some want of process has occurred in the case of an objector who lacks substantial interest. The difficulties to which this gives rise are evident from portions of the judgment of Clarke J. where in referring to “a sufficiently substantial failure in the public consultation process” - leading to a conclusion that an objector “had been substantially denied an opportunity to involve himself in the process relating to those revised or modified plans” - the terminology adopted may perhaps be seen as an endeavour to overcome a genuine difficulty by transposing the words “substantial interest” contained in s.50 away from the context of the “matter the subject of the application ” described in s.50(4)(b)(iv) to a different context, namely a particular incident or omission occurring during the course of the process itself. In similar vein the applicant submitted that defects in the planning process gave him a “substantial interest” for the reasons outlined above.
In expressing this view I appreciate I am in disagreement with the views expressed by Murray C.J. on the scope of the objector’s entitlements, though his analysis and conclusions that the applicant has failed to make out a case under this heading does not lead to any different outcome on this appeal. I realise also that a dissatisfied objector may well feel aggrieved if an omission by a planning authority in relation to his entitlements under the Planning and Development Regulations 2001 becomes apparent only after it has made its decision. In such cases however the objector has his appeal to An Bord Pleanala and I am satisfied that most, if not all, complaints can be dealt with in that context. To the extent however that the limitation on rights of access to court contained in the statutory regime laid down by s. 50 sits incongruously with the entitlements of an objector contained in the 2001 Regulations, the statutory regime must clearly prevail.
If follows from the criteria already set out which clarify the meaning of “substantial interest” that the applicant in the present case has failed to demonstrate that he has such interest. He lives two or three kilometres from the development and in order to sustain an interest to challenge the decision of the planning authority he was compelled to rely upon the fact that he had family connections with the location in which the development is to take place, that he took sailing trips in the vicinity and that he visited the area. This, in truth, distinguishes him from no other member of the public living in or outside the relevant area. To permit the applicant to mount a challenge of the nature and issue in the present proceedings would, in my view, undermine the clearly expressed legislative intent that the range of persons who could bring such challenges should be considerably narrowed. I believe the High Court has properly applied the relevant criteria in this case and I would therefore dismiss the appeal.