Maire de Faoite (acting on behalf of Cumann Peile Garran na mBrathar (applicant) v An Bord Pleanala (respondent).

Planning - Development - Local government - Judicial review - Sporting amenities - Whether plaintiff had demonstrated substantial grounds to obtain leave to apply for judicial review - Whether court should grant leave to apply for judicial review - Local Government (Planning and Development) Act 1963 (No 28), section 82(3A) - Local Government (Planning and Development) Act 1992 (No 14), section 19(3) - Rules of the Superior Courts 1986, Order 84.

The High Court (before Miss Justice Laffoy); judgment delivered 9 May 2000.

The applicant had challenged the decision of An Bord Pleanala to grant planning permission in respect of a housing development. The applicant claimed that the site in question should be used as a sporting field and sought leave to apply for judicial review of the said decision. Miss Justice Laffoy held that in seeking leave to apply for judicial review an applicant must demonstrate substantial grounds. In this instance the applicant had not adduced any substantial grounds. Accordingly leave to apply for judicial review was refused.

The applicant appeared in person; Nuala Butler BL for the respondent.

Miss Justice Laffoy outlined the facts of the case. On 13 June 1998 Cork Corporation granted planning permission in respect of a housing development. The housing development was to be situated at Mount St Joseph's, Blarney Street, Cork. The development was to consist of 202 dwelling houses. Subsequently the decision to grant planning permission was appealed to the respondent. The applicant in the present proceedings had been one of the appellants.

The gravamen of the appeal by the applicant, who was acting on behalf of a local sporting organisation, was that the area in question had been a former sporting field and should be developed as such. The applicant claimed that the surrounding area was congested and densely populated and therefore the site in question presented an ideal opportunity for the expansion of sporting facilities. The applicant also claimed that the development should not proceed as it would further increase the density of housing in the area.

A report in relation to the matter was prepared by an inspector of the respondent. In the report the inspector referred to the developer's contention that any difficulty that the sporting club may be experiencing was a matter between themselves and Cork Corporation. In addition the developer contended that the site in question was private property and never been used as a public playing field. The inspector also reflected these points in his own conclusions. The inspector recommended that planning permission be granted subject to a number of conditions. In its decision, issued on 19 January 2000, the respondent decided to grant permission with some conditions attached thereto.

Miss Justice Laffoy stated that the applicant was seeking leave from the court to apply for an order of certiorari by way of judicial review to quash the decision of the respondent. Miss Justice Laffoy said that in order to obtain such leave the applicant must demonstrate to the satisfaction of the court that there were substantial grounds for contending that the decision in question was invalid or ought to be quashed. In this regard Miss Justice Laffoy referred to the dicta of Miss Justice Carroll in McNamara v An Bord Pleanala [1995] 2 ILRM 125. The making of such an application is provided for by section 82(3A) of the Local Government (Planning and Development) Act 1963 as inserted by section 19(3) of the Local Government (Planning and Development) Act 1992. The application is made pursuant to Order 84 of the Rules of the Superior Courts 1986.

Miss Justice Laffoy stated that in hearing an application for judicial review the court may not address the merits of the decision but is reviewing the manner in which the decision was taken. The role of the court is therefore a limited one and in this regard Miss Justice Laffoy referred to the judgment of the former Chief Justice, Mr Justice Finlay, in O'Keeffe v An Bord Pleanala [1993] 1 IR 39 where it was stated that the legislature had determined that issues of planning had been left in the hands of the authorities such as the respondent who are expected to have the special skill, competence and experience to determine such matters.

In conclusion Miss Justice Laffoy held that it was clear that the site in question was private property. Therefore neither the respondent nor the court had the jurisdiction to require that such a site be dedicated to a community or public purpose unconnected with the development in question. This ground was therefore wholly unsustainable. Secondly the argument that the developer had contracted with the applicant to donate a site and a sum of money to the club in the event that the applicant withdrew its objections was not a matter to be canvassed on an application for judicial review and was a matter to be resolved by civil proceedings. This ground was wholly unsustainable also. Finally applying the principles as set out in O'Keeffe v An Bord Pleanala, it could not be said that that there was no relevant material before the respondent which would support the decision made in this instance to permit the proposed development.

There being no arguable ground, let alone substantial ground, the application would be dismissed.

Solicitors: T. T. L. Overend McCarron Gibbons (Dublin) for the respondent.