High Court of Ireland Decisions

1. This judgment is given on a preliminary issue which has arisen on the hearing of this application. It relates to the time and manner of the service of the Grounding Notice of Motion and supporting documentation. It is alleged by Treasury Holdings Limited that the Applicant Company has failed to comply with the provisions of the Planning Acts in that they failed to serve the Notice of Motion in sufficient time or in the alternative properly upon the required parties to the proceedings and they accordingly ask that the Court should refuse to entertain the application.

2. The matter comes before the Court on an application by the Applicant Company for leave to apply for an Order of Judicial Review of a decision made by An Bord Pleanala and accordingly the relevant legislation is Section 82 of the Local Government (Planning and Development) Act, 1963 as amended by Section 19 of the Local Government (Planning and Development) Act, 1992.

3. It is common case that there was an obligation on the Applicant in this case to lodge the Notice of Motion and supporting documentation in the High Court on or before the 10th February, 1997 and it is common case that the Applicant did comply with this obligation.

4. It is also common case that there was an obligation on the Applicant to give notice of the application to An Bord Pleanala, Ireland and the Attorney General, Dublin Corporation, An Taisce and Treasury Holdings Limited on or before that date. In the case of An Bord Pleanala, Ireland and the Attorney General, Treasury Holdings Limited and Dublin Corporation it is accepted that the relevant documents were served on them on that date but after 5.00 p.m.. In the case of An Taisce while it is accepted that documents were handed to a Mr. Michael Smith, it is denied that this constituted effective service to comply with the provisions of the section.

5. It is submitted by Counsel on behalf of Treasury Holdings Limited that a Court in considering the obligations of an applicant seeking to challenge a decision of An Bord Pleanala by way of Judicial Review must construe these obligations strictly. He points to K.S.K. Enterprises Limited -v- An Bord Pleanala , 1994 2. I.L.R.M. as authority for the proposition that there must be absolute certainty in planning applications and the rules must be strictly interpreted and adhered to. He refers to that part of the judgment of the Supreme Court at paragraph 3 on page 2 of the report as follows:-

6. Again, at page 6 of the Report the Chief Justice says:-

7. That being so, it is submitted, there is no room for flexibility in the interpretation of the section.

8. Counsel refers to Order 122, Rule 9, of the Superior Court Rules which provides:-

9. Counsel submits that there was a clear intention on the part of the legislature to tie in this rule with Section 82 of the Principal Act since it refers to the fact that the Motion on Notice is to be "grounded in the manner specified in the Order in respect of an ex-parte Motion for leave".

10. I do not accept Counsel's submission on this point. The Act is, in my view, clear in imposing the time limit and in defining that time and limit as being "within the period of two months". If it was meant to reduce the time limit so as to have it expire at 5 o'clock on the last day of the two month period then in my view it would have expressly said so. The ordinary interpretation of the statute under the Interpretation Act of 1937 provides that at Section 11(h) that the period of time, where it is intended to end on a particular day, that "that day shall unless contrary intention appears be deemed to be included in such period". It appears to me to follow that the whole of the day of the 10th February must be regarded as part of the limitation period since no contrary intention appears in the section.

11. It is submitted by Counsel on behalf of Treasury Holdings Limited that what occurred in this case did not constitute proper service upon An Taisce. Counsel submits that even though An Taisce makes no complaint about the manner in which service was effected upon it and is perfectly willing to accept such service as was effected upon it as satisfactory nevertheless there is a statutory obligation cast upon the Applicant and a failure to comply with that statutory obligation precludes him from seeking the relief of the Court.

12. It is necessary to summarise the facts to which this point relates.

13. An Taisce is a Company limited by guarantee. Mr. Michael Smith says that he received the Notice of Motion and supporting documents at 5 o'clock on Monday the 10th February, 1997 and he regarded them as notice to and service upon An Taisce. He says that he has been a member of the Dublin City Association of An Taisce since 1993 and has been Chairman of that Committee. He is a member of An Taisce's National Council since 1995. The Dublin City Association of An Taisce delegated to him the responsibility to write and lodge the original objection to the development to which this application relates and Mr. Smith was responsible for all correspondence in relation to the application. Following the original decision taken by the Counsellors on this development, Mr. Smith's Committee met and sought permission from An Taisce at national level to appeal the decision. This permission was given and to Mr. Smith was delegated the complete control to draft the appeal and to lodge it which he did. Thereafter he was in direct correspondence and communication with An Bord Pleanala on behalf of An Taisce. The decision of The Bord on this appeal was communicated direct to his home.

14. In paragraph 13 of his Affidavit of the 18th March, 1997, Mr. Smith says:-

15. In paragraph 12 of his Affidavit sworn the 18th March, 1997 Mr. Frank Convery, National Chairman of An Taisce, says:-

16. It is submitted by Counsel that the only ways in which a company may be served are:-

17. Counsel submits that as the alleged service in this case does not comply with any of these methods of service it is ineffective, notwithstanding that An Taisce raises no objection.

18. What is required by Section 82 of the Act is that the application should be made "by Motion on Notice" to the Board and to each party. Section 7 of the 1963 Act provides that notices are to be served on the "ordinary residence" of Notice Parties and subsection (3) of the section provides that the registered office of a company is deemed to be its ordinary residence.

19. Order 9, Rule 15, of the Rules of the Superior Court Rules provides that:-

20. I am left in no doubt whatever that since the purpose and object of achieving proper service in Court proceedings is to ensure that the party concerned is adequately informed of the matters contained in the notice so as to suffer no prejudiced and since it is abundantly clear that An Taisce was so informed and that no possible prejudice arises in the case, even if I were to hold that the service on Mr. Michael Smith did not comply strictly with the statutory provisions, I would unhesitatingly declare that the service was sufficient under Order 9, Rule 15 and accordingly I reject this submission.