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Cite as:  1 IR 294,  2 ILRM 392,  IEHC 80
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Neutral Citation Number:  IEHC 80
2005 No. 1323 J.R.
Note of ex tempore judgment of Mr. Justice Kelly delivered on the 28th day of February, 2006.
On 17th October, 2005, Cork County Council made a decision to grant planning permission to the notice party for a major development at Kinsale, County Cork. Permission was granted for the erection of an integrated tourism resort comprising of an hotel, conference building, resource centre building with guest reception, offices, restaurant, bar and ancillary facilities, together with a three-storey spa building, overlapping terraced car-parking facilities, an eighteen hole golf course and driving range, an equestrian centre with nineteen lodges and associated works.
This decision of the County Council was appealed to An Bord Pleanála. The applicant is not a party to that appeal.
In these proceedings he seeks leave to judicially review the decision of Cork County Council. By statute his application is required to be on notice and cannot be made ex parte. The proceedings were issued on 7th December, 2005 and served on all the mandated parties on the following day.
An Bord Pleanála was joined as a respondent. It has been clear from the outset that it was joined, not with a view to obtaining any substantive relief against it, but rather to ensure that the appeal before it is not processed to completion in advance of Mr. Harding's application for leave to judicially review the decision of Cork County Council being heard.
The notice of motion seeking leave to apply for judicial review was returnable before the court on 23rd January, 2006. On that occasion it was intimated by the notice party that it intended to bring an application to transfer the case into the Commercial List by reason of the commercial considerations involved in the development. In fact such an application was not made by the notice party but, rather unusually, by the objector, who is the applicant in these proceedings.
The application to transfer the case to the Commercial List was heard and determined by me on 6th February, 2006. I acceded to the application. A timescale was fixed for the filing of opposition papers and responses thereto. An Bord Pleanála indicated that it would not proceed with the appeal until at the earliest tomorrow, namely 1st March, 2006. Through its solicitor it indicated that it would neither consent nor object to a stay or an injunction being granted to the applicant so as to prevent it from processing the appeal pending the outcome of the judicial review application. On that basis the attendance of the planning board at today's hearing was excused. Likewise, Cork County Council indicated that it was neutral with regard to the application for a stay on the determination of the appeal to An Bord Pleanála and it was also excused attendance today.
Because of the time sought by the County Council and the notice party to file their affidavits in opposition and that required by the applicant to respond thereto, it was clear that it would not be possible to hear the substantive application before 1st March, 2006. Therefore it was necessary to accommodate the applicant so as to permit him to make this application for an injunction in advance of that date. Accordingly, I am today concerned with the applicant's application for an injunction against the processing of the appeal which is before An Bord Pleanála relating to the development.
Subsequent to the fixing of today for the hearing of such an application, the notice party issued its own application seeking an order from the court pursuant to s. 50(3) of the Planning Act, 2000. Alternatively, it seeks an order requiring the applicant to furnish a fortified undertaking as to damages in respect of his application for an injunction.
It is notable that it is now eleven weeks since these proceedings were instituted and no substantive replying affidavit has been filed by the respondent county council or the notice party. The three weeks allotted for them to do so, which I granted on 6th February, 2006, has now expired. Today, for the first time, the notice party, through counsel, indicated that it did not intend to file any replying affidavit to the substantive application brought by the applicant. There has thus been a good deal of delay in the proceedings and one cannot criticise the applicant in respect of any of it.
I will deal with the applications before the court in the order in which they were brought.
The applicant seeks to restrain An Bord Pleanála from processing his appeal until the court has adjudicated upon his application for leave to apply for judicial review.
The notice party contends that the court had no jurisdiction to entertain such an application. In that regard reliance was placed on the provisions of O. 84, r. 20(7) which provides as follows:
"Where leave to appeal for judicial review is granted then-
(a) if the relief sought is an order of prohibition or certiorari and the court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the court otherwise orders;
(b) if any other relief is sought, the court may at any time grant in the proceedings such interim relief as could be granted in an action begun by plenary summons."
It is clear that both (a) and (b) above are qualified by the introductory statement "where leave to apply for judicial review has been granted". It is common case that such leave has not been granted in the present case. Clearly there is no jurisdiction to grant a stay or injunction pursuant to this rule. But the applicant does not rely on this rule. Rather he relies either on the provisions of O. 84, r. 25 or alternatively the inherent jurisdiction of the court.
Order 84, r. 25 reads as follows:
"1. Any interlocutory application may be made to the court in proceedings in an application for judicial review. In this rule 'interlocutory application' includes an application for an order under Order 31, or Order 39, rule 1 or for an order dismissing the proceedings by consent of the parties'."
The applicant argues that if this rule is insufficient to accommodate his application then the court has an inherent jurisdiction to grant the order sought by him. It is argued that the court has jurisdiction to govern its own procedures so as to ensure the preservation of the status quo until it has had the opportunity to adjudicate upon the applicant's substantive application. The notice party says there is no such jurisdiction, either inherent or pursuant to this rule of court.
If the notice party is correct and the court does not have jurisdiction then an absurd result follows. It means that the court is empowered after a grant of leave to seek judicial review has been obtained to make an order to prevent a particular mischief, namely the doing of an act which would alter the status quo in such a way as to make ultimate success by the applicant hollow, but is sterile and impotent to make such an order in advance of hearing the application for leave to apply for judicial review. In my view such a situation would be absurd.
There is jurisdiction in this court to make an order of the type sought, either pursuant to O. 84, r. 25 or, if I am wrong in that regard, pursuant to the inherent jurisdiction of the court.
I am of opinion that the use of the phrase "interlocutory application" in O. 84, r. 25(1) is sufficiently wide to encompass the present application. The definition which follows from the first sentence of O. 84, r. 25(1) is inclusive and not exclusive. Rules of court ought not to be construed as to give rise to an absurd result.
If I am wrong in this view, then I am quite satisfied that there is an inherent jurisdiction in the court to make an order of the type sought. In this regard I was referred to two English cases. The first is M. v. The Home Office  1 AC 377. The second is Y.D. (Turkey) v. Secretary of State for Home Department (Unreported, Court of Appeal, 8th February, 2006).  EWCA Civ 552.
In the latter case Brooke L.J. said as follows:
"In all the circumstances I am persuaded by Mr. de Mello's wish that we should explore the third option – and we gave the Treasury Solicitor prior notice that we wished to consider this problem – that it is appropriate for the court to declare that in these circumstances it has an inherent jurisdiction to protect its proceedings from being set at nought and to exercise that jurisdiction in the present case by requiring the Home Secretary, as a party to the proceedings, to refrain from removing the appellant from the jurisdiction until it considers the application before it. This will not be a stay in the ordinary sense of staying further action within the proceedings (as, for instance, with a stay on the execution of a judgment), but an order in effect preserving the status quo (mainly the presence of the appellant within the jurisdiction) until the court makes a decision on the application."
The Court of Appeal went on to hold that there was such an inherent jurisdiction.
The proposition argued by the applicant here is that if the appeal before An Bord Pleanála is to proceed and be decided prior to his leave application, then his judicial review will be rendered nugatory. It is accepted that if An Bord Pleanála were to decide the appeal in the present case then that would supersede the decision of Cork County Council, which is the very subject of the judicial review application. In my view, this court is not so shackled as to be unable, in an appropriate case, to grant an order of the type sought.
It is to be noted that in M. v. The Home Office the House of Lords upheld the entitlement of the court to grant an injunction prior to the grant of leave to apply for judicial review. Lord Woolf quoted with approval the following passage from the White Book:
"Where the case is so urgent as to justify it [the judge] could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But, if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application to move for judicial review."
The position in this jurisdiction is exactly the same. The court has power to preserve the status quo prior to leave being granted, assuming that the circumstances for such an intervention are appropriate. I have no doubt but that the court must have such jurisdiction, otherwise the whole exercise embarked upon by the applicant could be rendered futile.
The next question to be considered is whether it is appropriate to intervene in this case as the applicant requests.
The first argument in opposition by the notice party relates to the standard of proof which it is necessary for the applicant to achieve in order to obtain injunctive relief of the type sought. The notice party contends that before an order could be granted to preserve the status quo, the applicant would have to achieve the statutory standard of proof which is necessary in order to obtain leave. On the substantive application the court may not grant leave to apply for judicial review unless satisfied that there are substantial grounds for contending that the decision is invalid and ought to be quashed and that the applicant has a substantial interest in the matter which is the subject of the application. (See s. 50(4)(b) of the Planning and Development Act, 2000).
In my view the notice party's contention is not correct. On an application to maintain the status quo it is not necessary for an applicant to achieve the same standard of proof as is required in order to successfully apply for the substantive relief. Rather the standard is that prescribed by the Supreme Court in Campus Oil Limited v. Minister for Industry and Energy  I.R. 82. That standard has been applied in many authorities, both in this court and in the Supreme Court, subsequent thereto and most recently in the decision of O'Sullivan J. in Martin v. An Bord Pleanála  2 I.R. 655. The applicant has to demonstrate a serious issue to be tried by reference to the complaint made and the statutory standard which will have to be achieved on the substantive hearing.
Has the applicant established a serious issue to be tried? I am quite satisfied that he has. I am not by any means underwriting the outcome of his application for leave to commence judicial review proceedings but he has demonstrated that there are serious issues for trial both on the factual merits and in respect of issues which are proper for judicial review rather than ones which fall within the exclusive purview of An Bord Pleanála.
The next question to be considered is that of damages. The applicant seeks no damages. His complaint relates to lack of jurisdiction and procedural deficits on the part of Cork County Council. In this regard the observations of O'Donovan J. in Eircell Limited v. Leitrim County Council  1 IR 479, are of relevance. He said that the public at large are entitled to know that the planning authority cannot ride roughshod over principles of constitutional justice and fair procedures. The planning process is a public one and must be conducted with transparent fairness. Questions of vires or bias should be dealt with in this forum and not before An Bord Pleanála.
In considering the question of the balance of convenience it is important to bear in mind that if An Bord Pleanála decides the appeal prior to the applicant's application for leave being heard then his entitlement to seek judicial review will be set at nought.
On this topic I bear in mind the complaint made by the notice party concerning losses which it may incur by reason of the planning appeal being delayed. But I also consider delay on the part of the notice party. In the present case it is notable that the application to transfer the case into the commercial list was not brought by the notice party but rather by the applicant. Such a move is unique in my experience. No replying affidavit to the substantive application was served by the notice party within the time allotted and only today was the court informed that it does not intend to do so. In these circumstances it is difficult to see how much complaint can be made by the notice party on the topic of delay. Had it made its position clear on the filing of replying affidavits it might have been possible to hear and determine the leave application by this stage. Whilst Cork County Council have not as yet filed their replying affidavit a shorter time might have been allotted to them had the notice party made its position clear. In any event any delay which the order which I propose to make might involve will be minimal in view of the fact that the case is in the commercial list. Certainly in the overall context of delay it will count for very little and will certainly be less than the eleven weeks which it has already taken to get the case to this stage. In any event, based on the affidavit of Mr. Duggan, it is difficult to see what damages the notice party might suffer. The ten million euro investment referred to by it is money which has already been spent. In my view there is insufficient evidence to flesh out the allegation of huge losses being sustained in the context of the short delay which is anticipated.
A question has arisen as to the undertaking as to damages which the applicant has given. It is said that he is obliged to give the undertaking in his affidavit. That is not the normal practice in this court. The undertaking was given here in the usual fashion, namely by counsel duly authorised to do so. The applicant so authorised his counsel and the undertaking was given in the proper way in open court. I do not find any evidence to indicate that the undertaking is either useless or worthless. A fortified undertaking as to damages is most unusual. I agree with the view of Herbert J. in O'Connell v. EPA  4 I.R. 494509 where he said:
"In our system of jurisprudence, with the constitutional right of access to the courts, the occasions on which a court might properly require what is described as a 'fortified undertaking to pay damages' must be very few. This is certainly not such an occasion."
If such a fortified undertaking as to damages is to be required then a proper evidential basis has to be set for it and such does not exist in the present case.
I turn now to the cross application by the notice party which seeks an order staying the judicial review proceedings pending the outcome of the appeal before An Bord Pleanála. That is sought pursuant to s. 50(3) of the Act of 2000 which reads as follows:
"The board or any party to an appeal or referral may, at any time after the bringing of an application for leave to apply for judicial review of a decision of a planning authority, apply to the High Court to stay the proceedings pending the making of a decision by the board in relation to the appeal or referral concerned, and the court may, where it considers that the matter is within the jurisdiction of the board, make an order on such terms as it thinks fit."
Counsel for the applicant suggested that this application should be adjourned and renewed at the hearing of the application for leave to apply for judicial review. Whilst I saw some merit in that suggestion, counsel on behalf of the notice party rejected it and accordingly I am called upon to determine the motion.
It is quite clear from its wording that the court is invested with a discretion pursuant to s. 50(3). In view of the fact that I have already held that there are serious issues for trial which are properly within the jurisdiction of this court on judicial review I have, in effect, held that such complaints are not matters appropriate to An Bord Pleanála. These points relate to vires, fair procedures and bias and they should properly be determined by a court rather than by An Bord Pleanála. If I had been of the view that all of the matters raised were capable of determination by An Bord Pleanála then I might have been prepared to make the order but I am not. Furthermore, Mr. Duggan in his affidavit on behalf of the notice party states that the matters raised are "predominantly if not exclusively planning matters" and accordingly acknowledges that there are likely to be matters which fall outside the purview of An Bord Pleanála. Accordingly I will not grant a stay pursuant to s. 50(3) of the Act as the necessary precondition for such an order stipulated in that subsection is not satisfied.
The second relief sought by the notice party is one compelling the applicant to furnish a fortified undertaking as to damages. For the reasons set out above I will not make such an order.
Accordingly I refuse the relief sought by the notice party and I grant the applicant an injunction in terms somewhat different to those set out in the notice of motion but which will ensure that An Bord Pleanála will not proceed with the consideration of the appeal pending before it until such time as the applicant's application for leave to apply for judicial review has been adjudicated upon by this court. What happens thereafter is of course entirely dependant upon the outcome of that application.
Approved: Kelly J.