Frank McCarthy suing on behalf of Old Bawn Community School (applicant) v An Bord Pleanala (respondnent) and Alan McGrath (as representative of Shamrock Rovers Football Club) and South Dublin County Council (notice parties).

Judicial Review - Planning - Preliminary issue - Whether application for leave to seek judicial review out of time Whether notice of motion should be served on all parties to original appeal - Local Government (Planning and Development) Act 1992 (No 14), section 19(3) - Local Government (Planning and Development ) Act 1963 (No 28), section 82.

The High Court (before Mr Justice Geoghegan); judgment delivered 15 May 1998.

Where a party to an appeal to An Bord Pleanala seeks leave to bring judicial review proceedings, that party need only serve the notice of motion on relevant parties. There is no need to serve the notice of motion on parties to the original appeal to An Bord Pleanala who have no interest in the judicial review proceedings. The High Court so held in finding that an application for judicial review by the applicant was not out of time for failing to serve the notice of motion on parties who had been co-appellants in the original appeal to An Bord Pleanala. Since the co-appellants were not interested in participating in the judicial review proceedings, they were not relevant parties.

Paul Gallagher SC and Roughan Banim BL for the applicant; Nuala Butler for the respondent; John Gallagher SC and Patrick Butler BL for the first notice party; James Macken SC and Dermot Flannigan BL for the second notice party.

Mr Justice Geoghegan set out the facts stating that planning permission was granted by South Dublin County Council and an appeal was brought by three objectors to An Bord Pleanala, one of whom was the proposed applicant in the intended judicial review proceedings. An Bord Pleanala upheld the decision of South Dublin County Council and the applicant claimed that the decision was invalid and could be judicially reviewed. Section 82 of the 1963 Act requires that in an application for leave to judicially review a decision of An Bord Pleanala, the board and each party to the appeal to the board, must be served with a notice of motion. The applicant served the notice of motion on the developer Alan McGrath, as a representative of Shamrock Rovers, the planning authority and South Dublin County Council but the motion was not served on the two original co-appellants on the appeal to An Bord Pleanala. The two original co-appellants waived any objection to non-service and had no interest in participating in the judicial review proceedings. Nor did the substantive issue in the judicial review application relate to any submissions made by them at the appeal to An Bord Pleanala. Nevertheless, the respondent and the two notice parties all argued that the application for judicial review was out of time and could not be heard because the two coappellants on the appeal to An Bord Pleanala were not served with the application for leave to bring judicial review proceedings within the prescribed statutory time.

The case made by the respondent and the notice parties was based on the following points. They relied on the decision of the Supreme Court in KSK Enterprises Ltd v An Bord Pleanala [1994] 2 ILRM 1. There, the then Chief Justice, Mr Justice Finlay, held that section 82 of the 1963 Act could be complied with by service of the notice of motion on all the mandatory parties provided for within the section. Subsection (3B)(a)(ii)(2) of section 82 of the 1963 Act as inserted by section 19 of the 1992 Act provides that the notice of motion must be served on An Bord Pleanala and on each party or each other party as the case may be. The respondent and notice parties contended that as the two co-appellants were parties to the appeal to an Bord Pleanala within that definition the motion for leave to bring judicial review proceedings was not properly constituted at the end of the time limit in the absence of service on them.

Counsel for the applicant submitted that this argument constituted a misreading of the statute and an over literal interpretation of the Supreme Court's decision in the KSK Enterprises case. He pointed out that under the inserted subsection (3A) of section 82 of the 1963 Act, a person is prohibited from questioning the validity of a decision of An Bord Pleanala on any appeal otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts. The Oireachtas, in enacting the 1992 Act, was not intending to introduce some new kind of judicial review application in relation to planning matters. It was merely altering the procedures and requirements for obtaining leave. Prior to the act, if judicial review proceedings had been brought in identical circumstances to this case, it would have been totally unnecessary to join as notice parties the original co-appellants who had no interest in bringing judicial review proceedings. Counsel for the applicant said that it was never the intention of the 1992 Act to add parties under the new procedure who would not have been necessary parties under the old procedure. The purpose of the 1992 Act was to severely limit the right to judicial review and to discourage it. It was unthinkable that the Oireachtas would ever have contemplated that the 1992 legislation would have had the effect of adding unnecessary parties.

Mr Justice Geoghegan said that KSK Enterprises was not an authority on the question in issue. It was not a problem that the Supreme Court had contemplated in that decision. The Supreme Court was referring in that decision to relevant parties and never intended that irrelevant parties be joined. Furthermore, since the statutory provisions specifically refer to Order 84 of the Rules of the Superior Courts, the word "parties" should be interpreted as meaning relevant parties. The application for leave for judicial review had been properly constituted and could be proceeded with accordingly.

Solicitors: Amory's (Dublin) for the applicant; T. T. L. McCarron and Gibbons Overend (Dublin) for the respondent; Patrick Donaghy & Co (Dublin) for the first notice party; Adrian O'Gorman (South Dublin Law Agent) for the second notice party.