A group of conservationists was yesterday granted limited leave to appeal to the Supreme Court a High Court judgment rejecting a challenge to the granting of planning permission for a hotel and office development in central Dublin.
Mrs Justice McGuinness granted Lancefort Ltd a certificate of leave to appeal her judgment rejecting the company's challenge to a decision of An Bord Pleanala granting planning permission to Treasury Holdings Ltd for the development on a site bounded by College Street, Westmoreland Street and Fleet Street.
She certified two grounds of appeal and said she would certify further grounds when the matter again comes before her today.
Among the matters to be raised before the Supreme Court is the issue of the locus standi of Lancefort to challenge the constitutionality of certain legislation.
The judge said that, from the point of view of the public and all involved in the planning process, it was very important to have an authoritative decision on the locus standi issues raised in the case.
The judge said she would also rule today on applications regarding who will pay the costs of the lengthy proceedings. The court was told 35 applications have been made.
Earlier this month the judge refused to grant orders quashing the decision of An Bord Pleanala, dated December 11th, 1996, granting planning permission for the Treasury Holdings development. The developer, with an address at Lower Grand Canal Street, Dublin, has claimed it has lost "millions" as a result of the court proceedings.
The judge pointed out that the case before her had not been about whether the decision to build a six storey hotel in the centre of Dublin was right or wrong. What the court had had to decide was whether the right procedures were followed in reaching that decision.
On March 20th Lancefort applied for a certificate for leave to appeal the High Court decision to the Supreme Court. Making the application, Mr Paul Callan SC, for Lancefort, said the case involved several points of exceptional public importance and had implications for many other proposed developments in the State.
Judgment on that application was delivered yesterday, but before that Mr Callan asked the judge to consider an application to have certain issues in the case referred to the European Court of Justice.
His application was strongly opposed by counsel for An Bord Pleanala, the State and Treasury Holdings. Ms Nuala Butler, for the board, said no point of European law was involved. Counsel said she was challenging the procedural correctness of the application Mr Callan sought to make.
Mrs Justice McGuinness said it seemed to her she could not consider the application for a referral to Europe.
However, she added, she did intend to grant Lancefort a limited certificate of leave to appeal her judgment on two points.
She said it had been determined the High Court could only grant a certificate of leave to appeal its decisions on judicial review applications if the court found a point of exceptional public importance was raised and that it was desirable, in the public interest, to have an appeal taken.
She said the court must also take into account the interests of the notice party, Treasury Holdings. She said the company had been granted planning permission for the development in December 1996 but had still not achieved finality 15 months later. The company had been subject to substantial financial loss.
The judge said the court could also not be blind to the fact that the site in question was of very great importance in the city of Dublin. The decision regarding the development would affect, for good or ill, contemporary citizens and would have an impact on future generations.
Having considered all those matters, the judge said, it was her view that two questions met the established test for granting a certificate.
The first question dealt with the interaction between EC legislation and domestic legislation in the planning sphere, she said. The Supreme Court should determine whether Council Directive 85/337/EEC and Article 56 (2) of the Local Government Planning and Environment Regulations 1994 require An Bord Pleanala to consider the question whether certain developments would be liable to have such effect on the environment that would require an Environmental Impact Assessment and Environmental Impact Statement.
The judge said the Supreme Court should also determine, in relation to the first question, whether the board should record its decision in such a way as to make it susceptible to judicial review.
The second question for determination by the Supreme Court concerned the matter of the locus standi of Lancefort to challenge the constitutionality of certain legislation.
The judge said she had pointed out to Lancefort that the issue of locus standi could prove to be "a double-edged sword". She had no doubt the other side would seek to raise the general question of locus standi of Lancefort.
However, she considered it to be of public importance to have an authoritative decision of the Supreme Court on the matter. She stressed it was essential that all the parties should co-operate to ensure there was the least possible delay in bringing the appeal.
On the application to refer certain matters to the European Court of Justice, the judge agreed that a referral must be made while a case is pending before a domestic court. In the present case, she had given judgment and the issue of an Article 177 reference to the European Court of Justice did not arise.
Ms Butler, for An Bord Pleanala, asked the judge to certify the exact questions to be determined by the Supreme Court in the appeal. She proposed additional questions including a question about whether Lancefort, as a limited liability company, has the locus standi to maintain proceedings.
Mr James Connolly SC, for the State, said he also believed the matter of locus standi should be aired before the Supreme Court.
The judge agreed certain questions should be certified and that counsel should stick, as far as possible, to these matters in the appeal.
She said she would deal with the other questions, and costs, today.