THE HIGH COURT
								JUDICIAL REVIEW
								Record No. 263 J.R. 1999

ORDER 84 OF THE RULES OF THE SUPERIOR COURTS

BETWEEN

CORNELIUS MURRAY JUNIOR
									APPLICANT
AND
AN BORD PLEANALA
									RESPONDENT
AND
BRENDAN McDAID AND FRANCES McDAID
									NOTICE PARTIES

Judgment of Mr. Justice Quirke delivered the 28th day of January, 2000.

	In these proceedings the Applicant wishes to seek relief by way of Judicial Review of a decision of An Bord Pleanala dated the 10th day of May, 1999 whereby the Board refused the Applicant permission for the retention and completion of a house at Pound Street, Ramelton in the County of Donegal and the parties have applied to this Court to determine a preliminary question as to whether the application is now time-barred, having regard to the provisions of Section 82(3A) of the Local Government (Planning and Development) Act, 1963 (hereafter referred to as the 1963 Act) as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992 (hereafter referred to as the 1992 Act).
	In brief, the Applicant, on 26th March, 1993 received a gift of certain property at Pound Street in Ramelton in Co. Donegal comprising a derelict dwellinghouse and in or about 1994 he caused the dwellinghouse to be demolished so that he could build a new house on the site for himself and his family.
	On 18th August, 1995 he received a grant of planning permission from Donegal County Council to build a dwellinghouse on the site and on 22nd October, 1998 he received a further grant of planning permission in respect of the same dwellinghouse which, inter alia, provided that the dwellinghouse would have four windows at ground level to its rear.  
	The Notice Parties appealed against the decision of Donegal County Council and on the 10th day of May, 1999 An Bord Pleanala determined that appeal in favour of the Notice Parties and refused the Applicant permission for his proposed development on the grounds that it would "... injure the amenities of the adjoining property by reason of overlooking and would therefore be contrary to the proper planning and development of the area". 
	On the 9th day of July, 1999 the Notice of Motion and other documentation required by law to ground the proceedings herein were served upon the Respondent and the Notice Parties but no such Notice of Motion or other documentation was served upon Donegal County Council and the Respondent contends that the Applicant is not and cannot be entitled to the relief which he seeks herein because he is time-barred, having regard to the provisions of Section 19(3) of the 1992 Act.  
	Section 19(3) of the 1992 Act amends Section 82 of the 1963 Act by the insertion of two sub-sections in, inter alia, the following terms:-

	"(3A)	A person shall not question the validity of -
		...
		(b)	a decision of the Board on any appeal...
		otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No.15 of 1986) (hereafter in this section referred to as 'the Order'). 

	(3B)(a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in sub-section (3A) of this section shall:
		(i)	be made within the period of two months commencing on the date on which the decision is given and
		(ii)	be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to -
			...
			(II)	if the application relates to a decision referred to in sub-section (3A)(b) of this section, the Board and each party or each other party as the case may be to the appeal or reference...."

	The term "party to an appeal" is defined in Section 1 of the 1992 Act in the following terms:-

	"'party to an appeal' means any of the following persons, namely -
	(a)	the appellant, 
	(b)	the planning authority against whose decision an appeal is made,
	(c)	the applicant for any permission or approval in relation to which an appeal is made by another person (other than a person acting on behalf of the appellant), 
	and 'party' shall be construed accordingly;"

	Counsel on behalf of the Applicant has (quite properly) conceded that Donegal County Council comes within the definition of a party to the appeal which is the subject of his application herein, that is to say, the decision of the Respondent dated the 10th day of May, 1999.  Furthermore, he freely concedes that Donegal County Council did not receive the Notice of Motion grounding the proceedings herein or any of the other documentation required by the 1992 Act and the Rules of the Superior Courts within the period of two months required by Section 82(3B) of the 1963 Act as amended.  
	Evidence has been adduced on Affidavit to the effect that, by letter dated the 4th day of October, 1999, Messrs V.P. McMullin, Solicitors on behalf of Donegal County Council wrote to the Applicant's solicitors in relation to the proceedings herein in the following terms:-

	"Dear Sirs,
	On behalf of our client, Donegal County Council, we acknowledge receipt of your letter of 27th July last and the enclosures therewith addressed to Mr. G. Convie.  Our clients agree that the issue herein appears to be between the named parties and they see no reason to become involved in these Judicial Review proceedings.  Please note the position.
	Yours faithfully,

	______________
	V.P.McMullin."

	It is contended on behalf of the Applicant that, having regard to the contents of that letter, the objection taken by the Respondent to the application is wholly technical in nature and there is no rational purpose in having Donegal County Council joined as a party to these proceedings.
	In support of his contention the Applicant relies upon the decision of Geoghegan J. in the case of Frank McCarthy -v- An Bord Pleanala & Ors., (the High Court - unrep. 15th May, 1998).  
	In that case the applicant was one of three objectors whose appeal against a decision of South Dublin County Council was dismissed by An Bord Pleanala and who sought to judicially review the Board's decision.  He brought the required motion against South Dublin County Council and against other interested parties within the two month period prescribed by Section 82 of the 1963 Act as amended by Section 19(3) of the 1992 Act but the motion was not served on his two co-appellants on the appeal to An Bord Pleanala.  Both of those appellants adduced evidence on Affidavit waiving any objection to the non-service, stating that the substantive point at issue in the proposed Judicial Review application did not concern them and did not relate to any submissions which they had made at the appeal before An Bord Pleanala and further stating that they were not interested in participating in the proceedings.
	In the course of argument, Geoghegan J. was referred to the decision of the Supreme Court (Finlay C.J.) in the case of K.S.K. Enterprises Limited -v- An Bord Pleanala, [1994] 2 I.L.R.M. 1 and expressed the view that he should not regard that case as authority for the point which he was required to determine indicating, inter alia:-

	".... I do not believe that the problem which has arisen in this case was ever contemplated by the Supreme Court.  What the Supreme Court was referring to was the relevant parties to the Judicial Review proceedings and, in my opinion, it was far from the Court's thinking that irrelevant parties would have to be served.  Having regard in particular to the fact that the relevant statutory provision specifically refers to Order 84 of the Rules of the Superior Courts, I am satisfied that the word 'parties' should be interpreted as meaning relevant parties."

	In the McCarthy case 	Geoghegan J., having considered sworn evidence adduced in support of the applicant's contention, concluded that the applicant's co-appellants could not be regarded as parties whose interests were in any way relevant to the matters which he was required to determine.
	In the instant case, it can scarcely be argued with any conviction that the interests of Donegal County Council are in no way relevant to these proceedings since Donegal County Council is the planning authority which is responsible for the proper planning and development of the county in which the lands which are in question in these proceedings actually lie.  
	The fact that in these particular proceedings the solicitors for Donegal County Council have indicated that their clients were disposed to agree with a suggestion made by the Applicant's solicitors that "...the issue herein appears to be between the named parties..." does not alter the foregoing and it is further to be noted that the suggestion made by the Applicant's solicitors was contained in a letter written some seventeen days after the expiration of the prescribed time limit.  
	However, in any event, I am inclined to the view that the proper construction of Section 19(3) of the 1992 Act, when applied to the facts of the instant case, cannot accommodate or result in an investigation by this Court into whether or not the interests of Donegal County Council may or may not be relevant to the issues which fall to be determined in the proceedings which the Applicant wishes to commence.	
	In the K.S.K. case, Finlay C.J. stated (at p.7) that:-

	"I therefore conclude that the true interpretation of the section is that it may be complied with by an application which has been made within the time limited in the sense that a notice of motion grounded as is provided in O.84 has been filed in the High Court and it has been served on all the mandatory parties provided for in the subsection.  If however it is not served on all the parties provided for mandatorily within the subsection as distinct from the power of the court at a later stage to order the service of additional parties then it has not been completed within the time limited by the section."

	Since "the planning authority against whose decision an appeal is made" is expressly defined as a "party to an appeal" within Section 1 of the 1992 Act, it is inescapable that Donegal County Council comes within the category of a party which is provided for mandatorily within subsection (19)(3) of the 1992 Act because that subsection requires that an application for relief of the type which is sought herein shall be made within the prescribed two month period "...by motion on notice...to...the Board and each party...to the appeal...".
	Discretion has not been conferred upon this Court either by the Act of 1992 or otherwise to waive or relax in any respect the statutory mandatory requirement which has been imposed by the Legislature upon persons who wish to seek relief of the kind which the Applicant wishes to seek herein.  The assumption by this Court of such a discretion might reasonably be regarded as a departure from statutory interpretation and an entry into the realms of legislation. 
	It follows from the foregoing that I find that on the facts of this case the Applicant is barred by the provisions of Section 82 of the 1963 Act, as amended by Section 19(3) of the 1992 Act, from seeking the relief against the Respondent which he seeks.