Supreme Court dismisses appeal where appellant lacks substantial interest in planning permission decision under s. 50(4)(b).

THE SUPREME COURT

JUDICIAL REVIEW

RECORD NO. 18/07

MURRAY C.J.

KEARNS J.

FINNEGAN J.

BETWEEN

THOMAS HARDING

APPELLANT/APPLICANT

AND

CORK COUNTY COUNCIL AND

AN BORD PLEANALA

RESPONDENTS

AND

XCES PROJECTS LIMITED NOW KNOWN AS KINSALE HARBOUR

DEVELOPMENTS LIMITED

NOTICE PARTY

JUDGMENT of Murray C.J. delivered on the 2nd day of May 2008

The appellant has sought leave to bring judicial review proceedings for the purpose of setting aside a decision of the first

named respondents, Cork County Council, made on 1st October 2005 to grant planning permission to the Notice Party, the

developers, for the development of a golf and leisure resort at Ballymacus Head and Preghane Point at the entrance to

Kinsale harbour.

He had objected to the application for planning permission and for that purpose had lodged submissions and observations

regarding the proposed development with the first named respondents pursuant to Article 29 of the Planning and

Development Regulations 2001 (S.I. No. 600/2001). He sought leave in the High Court to bring the judicial review on a

large number of grounds.

The High Court refused the appellant leave to bring judicial review proceedings on the grounds that he did not have a

“substantial interest” in the matter which was the subject of his application. The requirements that an applicant for leave to

bring judicial review should have a “substantial interest” in that matter is a pre-condition to the grant of such leave as

provided by s. 50(4)(b) of the Planning and Development Act 2000.

The issue certified for appeal is whether the learned trial Judge was correct in concluding that the applicant was not a person

who had a “substantial interest” in the matter in question within the meaning of that subsection.

The relevant portion of subsection 4 of S. 50 states

“…leave shall not be granted unless the High Court is satisfied that there are substantial grounds for

contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest

in the matter which is the subject of the application.”

The facts and circumstances of the case are fully set out in the judgment of Kearns J., and I only refer to them so far as is

necessary for the purposes of this judgment. I agree with the approach and conclusions of Kearns J., as regards the meaning

of “substantial interest” insofar as the appellant relies on his interest in the nature and effect of the proposed development

in question. I also conclude that the appellant does not have the “substantial interest” necessary to be granted leave to bring

judicial review of the decision to grant planning permission.

I have addressed separately the “substantial interest” which the appellant claims to have on the basis of his claim that he

was denied fair procedures and in particular his statutory right to make further observations, in the course of his participation

in the planning process before the planning authority.

Accordingly I have come to the same conclusion as Kearns J., namely that the application of the appellant for leave to bring

judicial review proceedings should be dismissed on the grounds that he has not established that he has a “substantial

interest” in the matter the subject of the application, namely the decision of the first named Respondents to grant planning

permission for the proposed development.

In this case the Court is concerned with the interests of the applicant as an individual who has exercised his right to make

submissions or observations on the application for planning permission for the development concerned pursuant to Article 29

of the Planning and Development Regulations 2001. In making such submissions or observations he objected to the

proposed development.

The planning regulations referred to permit any person, on payment of the prescribed fee, to make such submissions or

observations and thus become what is usually referred to as an objector to an application for permission.

As such a person he or she is also entitled pursuant to the provisions of Article 35 of the Regulations of 2001 to be notified

by the planning authority that it has received significant further information or revised plans in relation to a proposed

development and to make submissions or observations in relation to that further information, within a period specified by the

authorities.

Article 25 of the Regulation provides the widest possible opportunity for members of the public to participate in the planning

process and such persons may also participate in an appeal to An Bord Pleanala against a decision of a planning authority to

grant permission and thus advance observations or make submissions concerning the merits of the proposed development.

This is consistent with a general policy that members of the public should have an opportunity to participate in that process

particularly having regard to the importance which developments may have on the environment both locally and generally.

The right of members of the public to make submissions and observations in relation to an application for planning appeal

and thus make objections to the grant of such permission is not limited to persons having any particular interest by virtue of

living in the general area of the proposed development or otherwise. An objector may live in a place that is the most remote

in Ireland from the location of the proposed development or perhaps in a foreign country. The absence of any limiting

criteria as to who may object to and thus participate in the planning process means that it is open to not only the genuinely

interested who may be directly or indirectly affected by the proposed development or who have a genuine concern for the

impact of a development on the environment but also a person who may be the officious bystander with no real concern

about the outcome of a planning permission or even a person who, for some ulterior motive, simply wishes to block or slow

down the application. One must assume, as seems to be the case, that most objections to planning applications, even if the

objection is found not to be meritorious, are motivated by a genuine concern with the nature of a proposed development

having regard to such matters as good planning or the protection of the environment as perceived by the objector. There is

no reason to believe that the applicant in this case is motivated otherwise than by genuine personal concerns concerning the

implications of the proposed development in this case.

If the Oireachtas decided that the opportunity of participating in the statutory planning permission process should be open to

any member of the public it clearly decided otherwise as regards any challenge before the Courts to the validity of a decision

of a planning authority on an application for permission under the Planning and Development Act 2000.

First of all s. 50(2) provides, inter alia, that a person shall not question the validity of a decision of a planning authority on an

application for permission “otherwise than by way of an application for judicial review under Order 84 of the Rules of the

Superior Courts”.

Judicial review of administrative decisions taken by statutory bodies in the exercise of their functions in connection with an

application for planning permission, or an appeal therefrom, is a separate and distinct process from participation in the

planning process itself. Generally speaking it involves the review of such decisions in order to determine whether those made

by the relevant statutory body are in accordance with, and within the ambit of, their statutory powers and duties. Judicial

review proceedings are not concerned with the merits as such of an application for permission in relation to a development.

Prior to the enactment of the Planning and Development Act 2000 a party applying for leave to bring judicial review

proceedings in respect of a decision to grant planning permission would have been entitled to such leave provided the party

had demonstrated that he or she had “sufficient interest” in the matters at issue and of course satisfied all other criteria for

the grant of such leave. This requirement as to “sufficient interest” was not expressly provided for by statute but was one

of the criteria mentioned in the Rules of the Superior Courts. In very broad terms it could be said to reflect a general

requirement as to locus standi to bring proceedings, that is to say that a person had “sufficient interest” as to be in a

position to assert a breach of rights or of the law affecting him or her so that the matters in issue could be considered a

justiciable controversy and not hypothetical or relating to matters in which the individual had no interest, such as merely

seeking to enforce a jus tertii. So far as the planning code was concerned a person could have been treated as having

“sufficient interest” by virtue of the fact alone that they were objectors who had made submissions or observations in the

course of the planning process.

In enacting s. 50(4)(b) of the Act of 2000 the Oireachtas introduced for the first time, in respect of applications for leave to

bring judicial review proceedings concerning, inter alia, a decision to grant planning permission by a planning authority, the

criterion of “substantial interest” .

Section 50(4) states that the “substantial interest” must be “in the matter which is the subject of the application”. Since

that which is the subject of a judicial review application must be a judicially reviewable decision it is pellucidly clear that the

subject matter of the application refers only to one of the matters referred to in s. 50(2) which states as follows:

“(2) A person shall not question the validity of –

(a) a decision of a planning authority,

(i) on an application for a permission under this Part, or

(ii) under section 179,

(b) a decision of the Board,

(i) on any appeal or referral,

(ii) under section 175, or

(iii) under Part XIV.

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 ) (“the Order”).

In this case the subject matter of the application is the decision of the planning authority on the application of the

developers, the notice party, for permission under Part III of the Act, namely, its decision to grant planning permission, the

validity of which the appellant seeks leave to impugn.

No substantive definition of what constitutes a “substantial interest” is provided in the Act. All the Act has to say about it is

that “a substantial interest for the purposes of [the relevant subsection] is not limited to an interest in land or other

financial interest.” (s. 50(4)(d)).

Although the criteria as laid down by the Oireachtas in the Act of “substantial interest” is vague some clear delineations can

be made.

It is clearly intended to raise the threshold so to speak which applicants for leave to bring judicial review proceedings must

cross. As a very first step it may mean that an applicant should have a direct interest of some material substance in the

development, or its effects, with which the decision to grant planning permission is concerned.

If an applicant does not have a “substantial interest” related to the development, or its effects, as such, a person who has

exercised a statutory right to participate in the planning process may potentially have a “substantial interest” related to the

exercise of that right. This case involves an applicant who claims to have a “substantial interest” in the development as

such, by reason of its effect on the local environment as well as a “substantial interest” in the vindication of his right to

participate in the planning process.

The considerations in this case do not give rise to any consideration of the position of a prescribed body, within the meaning

of the Act and the Regulations made thereunder, who participate in the planning process.

Section 50(4) is clearly intended to limit the range of persons who would have the locus standi to seek to challenge by way

of judicial review the validity of a decision such as a decision of a planning authority to grant planning permission.

This limitation which is sought to be imposed by the Act of 2000 must also be seen against the backdrop of the right of

virtually anybody to participate in the planning process itself at the application for permission stage and the consequential

right to participate in an appeal to An Bord Pleanala where the merits of a development are revisited and during which most

errors, if any, of the planning authority may be corrected.

It is relevant to note at this stage that s. 50(4)(c)(i) requires that an applicant for leave to bring judicial review must, inter

alia, be a person who had made submissions or observations to the planning authority in relation to the proposed

development. This is a pre-condition that exists side by side with the requirement that an applicant for leave must have a

“substantial interest” in the subject matter of his or her application. They are distinct and separate requirements.

Therefore, it is not sufficient that an applicant for leave has participated in the planning process by making submissions or

observations pursuant to the regulations of 2001.

Accordingly, there is a stark contrast between the range of persons who have a statutory right to participate in the planning

process for which a planning authority has responsibility and the range of persons who have locus standi to apply for leave

to bring judicial review pursuant to s. 50 of the Act. In the former instance any person who wishes to object to a proposed

development, however remote, insignificant or absent their interest in it, may make submissions and observations to that

effect under the regulations of 2001 but only those which make such observations or submissions and have a “substantial

interest” have the standing to apply for leave.

The appellant in this case having exercised his statutory right to make an objection to the proposed development has argued

that he has a “substantial interest” in the decision to grant permission under two broad headings.

(a) Firstly the applicant says he has a “substantial interest” in the proposed development itself by reason of the nature,

scope and location of the proposed development and its environmental impact on a sea headland where he has had a

constant and continuous interest in that area, constantly visits it and lives in a town situated 2/3 km. from the headland. By

virtue of the foregoing he claims he has a “substantial interest” in the decision made by the planning authority to grant

permission.

(b) Secondly, he says there was a serious and unlawful abuse of process by the planning authority in the statutory procedure

which it followed leading up to its decision to grant permission and that he, as an objector exercising a statutory right, has a

“substantial interest” to challenge the validity of that decision because his right to participate in the process has been

unlawfully restricted.

I would categorise these two grounds on which he claims to have a “substantial interest” in the matter the subject of the

application, within the meaning of s. 50, as the applicant’s environmental interest and his statutory process interest.

Environmental Interest

The facts and context in which the applicant claims a “substantial interest” within the meaning of s. 50(4) so as to be

entitled to seek leave to bring judicial review proceedings challenging the validity of the decision to grant planning permission

are examined in the judgment of Kearns J. A person who has an interest in the development as such may, by virtue of the

nature of that interest and the extent to which it is affected by the proposed development have a “substantial interest” in

the subject of the application, namely the decision to grant permission. I agree with the approach adopted by Kearns J., in

his judgment on this issue and his conclusion that an applicant, in this context, should, for the purposes of s. 50 of the Act of

2000 establish that he has an interest in the development the subject of the proceedings which is peculiar and personal to

him and that that interest is significant and weighty.

Like Kearns J., I agree with the views of Macken J., as expressed in Harrington –v- An Bord Pleanala 2001 I.R. 388 at

403 when she stated that the “substantial interest” of an applicant is “one which she has already expressed as being

peculiar or personal to him”.

I also endorse the views expressed by O’Neill J., in Cumann Tomás Daibhis –v- South Dublin County Council 2007

IEHC 118 when he stated

“In my view the requirement that an interest must be peculiar or personal to an applicant does not mean that

if some other party has the same or similar interest in the subject matter of the application that both are

thereby excluded from having a “substantial interest”. If this were so it would have the bizarre consequence of

including householders from an estate of houses for having a “substantial interest” in a development taking

place adjoining their estate. Clearly this could not be so. In my view what the phrase “peculiar or personal”

imports is that the proposed development the subject matter of the application is one which affects the

applicant personally or individually in a substantial way as distinct from any interest which the wider

community, not so personally and individually affected might have in the proposed development. Thus, as in

the case of a housing estate many people might be affected substantially in this way and have a “substantial

interest”.

As the foregoing passage makes clear the “substantial interest” to be demonstrated by an applicant may not be unique to

him or her but that the decision in issue affects the applicant in a manner which is peculiar or personal.

I also agree with Kearns J., for the reasons given in his judgment that on the facts of this case that the applicant has not

established a “substantial interest” sufficient to satisfy the requirements of s. 50 by reason of his claimed interest in the

impact or implications of the proposed development from an environmental perspective.

I consider that the applicant’s interests are too general and remote to be considered substantial.

I would just add, as I have already mentioned, the test laid down by the Oireachtas is vague and lacking in precision. It is

left to the Courts to interpret and apply the notion of “substantial interest” as best they can having regard to the objective

of the statutory provision to limit the range of persons who can bring judicial review proceedings and the requirement that

the interest which they seek to protect is one which is of a substantial nature and thus peculiar and personal to them.

While certain delineations can be made in defining what “substantial interest” may or may not amount to, the phrase is not

susceptible to a general or all embracing definition or formula covering all cases. Undoubtedly many cases will fall clearly

within or without the notion of a “substantial interest” but there is likely to be at least a significant number of cases in

which its application will be very much open to debate. Precisely how proximate must a person be to the effects of a

planning development in order to have a “substantial interest”? If the residents of a housing estate are potentially affected

by a proposed development so that they should be considered as having a “substantial interest” in it, does that include all

those residing in a housing estate irrespective of the vastness of the area which it covers? Where is the line to be drawn?

Inside the housing estate, on its perimeter or somewhere beyond that? Inevitably much will depend on the facts and

circumstances of the case including the situation of an applicant and the nature and ambit of the proposed development. Not

for the first time legislation seeking to limit litigation is drawn up in terms which are imprecise and likely to generate further

litigation rather than less for Courts which are already heavily burdened.

In a case such as this, in addition to establishing that he or she has a “substantial interest” an applicant must also establish

that they have substantial grounds for seeking judicial review and even if so the Court will consider, as the learned trial

Judge in this case pointed out, whether an appeal to An Bord Pleanala would provide a sufficient remedy. These preliminary

issues may have to be litigated in the High Court and then on appeal before the substantive issues of judicial review can be

litigated in the High Court and then on appeal. In this case if the appellant had succeeded in his appeal it would be necessary

for the High Court to have a further hearing on whether the grounds on which he relies, or any of them, in seeking leave to

bring judicial review are substantial grounds and then if so whether in any event an appeal to An Bord Pleanala would

provide a sufficient remedy.

I would finally add, in this context, that the learned trial Judge in the course of his judgment considered in detail the manner

in which all these issues should be addressed at the application for leave stage without seeking to be definitive since this may

vary according to the case. I fully agree with his excellent analysis of how the several issues that arise in an application of

this nature could be addressed, as he correctly did in the circumstances of this case. It is of course desirable, where this is

possible and more efficient in the circumstances of a case, that all issues preliminary to the granting of leave to bring judicial

review proceedings are dealt with at the same time to avoid, as far as possible, successive hearings and successive appeals in

relation to them.

Denial of Due Statutory Process

The appellant in this context claims that he was denied due process because of a number of legal vices in the manner in

which the planning authority dealt with and decided upon the planning application.

It is contended that the appellant must be considered to have a “substantial interest” in the decision making process and

therefore in the validity of the decision to grant planning permission because he has a statutory entitlement to participate in

that process, a denial of which also amounts to a breach of fair procedures in breach of Article 40.3.1 of the Constitution.

It was also argued on behalf of the appellant that insofar as the interest of an applicant for judicial review of a decision to

grant planning permission is contingent on the expression of that interest in the planning process, the deprivation of the

opportunity to express that interest should logically confer on the applicant with a “substantial interest” for the purposes of

the section. In support of his argument he relied, inter alia, on the statement of Clarke J., in his judgment of 12th October

2006 in this case where it was stated, at paragraph 5.12,

“If each of the complaints made in relation to this aspect of Mr. Harding’s case were to be made out then

there would be grounds in my view, for taking the view that he had been improperly excluded from a

reasonable opportunity to involve himself in that aspect of the process which resulted in a consideration of

what, on any view, must be a development which is at least in some material respects different from that

applied for. In addition, if other of the grounds which he contends are established, part of the reason why such

exclusion may have occurred was by virtue of the need to maintain the tax status of the development by the

grant of a permission on foot of the existing application rather than on foot of a new application

incorporating the modifications required to make the matter acceptable to Cork County Council. While

obviously the merits of the proposal as modified can be fully dealt with in the appeal process, I am not

persuaded that in the event that Mr. Harding was to succeed in relation to all or many of the grounds which he

puts forward and which I have briefly outlined above, it could not be said that there has been a sufficiently

substantial failure in the public consultation process before the local authority such as would lead to a

conclusion that Mr. Harding had been substantially denied an opportunity to involve himself in the process

relating to those revised or modified plans.”

It was submitted on behalf of the appellant that he must be considered to have a sufficient “substantial interest” to bring

the judicial review proceedings because he had been “substantially denied an opportunity to involve himself in the

process”. In this respect it was submitted that the defects in the planning process constituted a “sufficiently substantial

failure in the public consultation process”. If he is denied an opportunity to bring judicial review proceedings, where he

has been denied an opportunity of involving himself in the planning process, then he is being deprived of any remedy in law

for the loss of his right to participate in that process.

There is no doubt in my view that the appellant had a statutory right to participate in the planning process. That right, as

previously indicated, stems from two provisions of the Planning and Development Regulation 2001.

Firstly, Article 29(1) of the Regulations permits any person or body, on the payment of the prescribed fee to make

submissions or observations in relation to a planning application. The Article also requires the person to indicate the address

to which any correspondence relating to the application should be sent.

Secondly, Article 35(1) provides that where a planning authority receive further information or evidence following a request

under Article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to an

application and it considers that this further material contains significant additional data it is required to notify any person

who made a submission or observation in relation to the planning permission as soon as may be following the receipt of the

further information or other material indicating that such significant further information or material has been furnished to it

and that it is available for inspection or purchase at the offices of the authority.

Finally that Article provides for a further submission or observation being made by the person concerned to the planning

authority in relation to the further information or other material that has been furnished to it.

The appellant has made no complaint concerning any infringement of his rights to make the initial observations or

submissions pursuant to Article 29. He does however complain that the manner in which he was notified of such further

significant information pursuant to Article 35 of the said Regulations denied him his statutory right to make further

submissions or observations with regard to it. Every person who has made a submission or observation pursuant to Article

29 has a statutory right to be notified of such further significant information so as to be in a position to make further

submissions or observations with regard to it.

As regards these grounds upon which the appellant relies to establish that he has a “substantial interest” in the decision to

grant planning permission obviously the same considerations apply, namely, that he has an interest in the decision which is

peculiar and personal to him and that the interest is significant and weighty.

It seems to me manifest that the right to make such submissions pursuant to Article 35 is a right vested in such a person by

law and is one which is personal and peculiar to him or her.

If an individual is denied such a statutory right he or she has, potentially, a “substantial interest” in seeking a judicial

remedy including by way of judicial review, with a view to impugning a decision made in breach of that right.

To hold that such a person could not have a “substantial interest” in a statutory planning decision taken in breach of his or

her statutory rights would, it seems to me, render the right ineffective and deprive the Statutory Instrument of the quality of

a law. That would simply undermine the rule of law by depriving the person of a remedy in circumstances where no other

remedy is available.

Before dealing with the appellant’s ground of complaint for a breach of the foregoing statutory right I should refer to the

other grounds of complaint regarding the alleged failure by the planning authority to observe the procedures laid down by

Statute and Regulation.

The other grounds upon which the planning authority are alleged to have acted in breach of the relevant regulations and due

process are numerous and include allegations that the applicant for planning permission had submitted further information

and revised plans which were not a modification of the original application but a radical departure from it, there was a failure

on the part of that developer to provide all the further information which was demanded by the planning authority or to do

so in time, the developer’s failure to send an appropriate fee with the revised plan and the failure to erect a site notice in

respect of that plan. He also alleges that the planning authority failed to provide the statement required by the Regulations

indicating the main reasons for not accepting the recommendations contained in the report of the authority’s senior planner.

The planning authority he says failed to observe the law in dealing with or addressing such matters.

In my view these grounds of complaint and the alleged breaches of statutory procedures (other than the alleged breach of his

right to make further submissions and observations pursuant to Article 35) arise generally in relation to the planning

application and the decision to grant permission. They are not issues which involve an interest which are peculiar or personal

to him.

Only persons who have a “substantial interest” in the subject matter of the application, may seek leave to judicially review

the validity of the decision to grant planning permission on those or other grounds. The mere fact that the appellant relies on

such grounds cannot mean that he has a “substantial interest” for the purposes of s. 50 no more than the fact that he

objects to the development on environmental grounds means that he must be deemed to have such a “substantial interest”

. Absent a “substantial interest” the appellant is no more entitled to leave to bring judicial review proceedings than any

other person whose interest in the development is simply a general one or too remote. As stated earlier in this judgment s. 50

makes it clear that being a person who made the submissions or observations pursuant to Article 29 of the Regulations does

not absolve that person from demonstrating, in addition, that they have the “substantial interest” required.

I now turn to the question of whether the applicant has demonstrated that he has a “substantial interest” at least in

vindicating a breach of right to make further observations pursuant to Article 35 of the Regulations of 2001 and thus in

seeking to challenge the validity of the planning authority ‘s decision on that ground. If he establishes, prima facie, that such

a right has been breached he may have such a “substantial interest”.

In this respect the appellant complained in his affidavit grounding his application for leave to bring judicial review that

additional information provided by the developer was submitted to the planning authority on 23rd August 2005 and that it

was not until 21st September 2005 that the decision was taken to the effect that the further information contained significant

additional data thus requiring that the appellant, like other persons who may have made submissions pursuant to Article 25,

be advised of their right to make observations in respect of the new information.

He goes on to point out at paragraph 26 of his affidavit, “In compliance with Article 35 the first named respondent sent me

by registered post a letter dated 26th September 2005 notifying me that I was entitled to make submissions or

observations in relation to the further information within a period of two weeks from the 26th September 2005.” He then

complains that by reason of the fact that the letter was sent by registered post he did not receive the letter until or about 6th

October 2005. He had been obliged to request that it be redirected by the Post Office to a boat called the Nimmo on which

he was to collect it. This he complains resulted in him having approximately two working days notice of the fact that he

could make further observations. He says by reason of the delayed arrival of the letter giving him the required notice he was

not adequately prepared to make a full observation, although he did in fact make observations. He says he would like to

have had the services of a town planner to assist him but was not in a position to do so given the time constraints. He also

complains that he was entitled to receive the notice from the planning authority of their receipt of further information or

revised plans “as soon as may be” and that the letter sent by registered post dated 26th September 2005 was not in

accordance with that requirement in the regulations.

As stated above the appellant premised his assertion of a “substantial interest” on the fact that he had been “substantially

denied an opportunity to involve himself in the process.”

As regards the latter point concerning the “as soon as may be” requirement it has to be borne in mind first of all that this is

an administrative procedure and requirements as to time must be interpreted having regard to the ordinary burdens of

administration in any organisation or body. It is not as if the matter in question was the only such matter with which the

planning authority in question had to deal with. In particular the requirement in such a Regulation should not be interpreted

as strictly as might be the case in criminal procedure where the personal rights of individuals in the administration of justice

are directly in issue. As the appellant acknowledges it was on the 21st September that a decision was taken that the further

information contained significant additional data and the letter notifying him of same was sent on 26th September 2005. In

any event even if one looks at the passage of time from the 23rd August 2005, when the additional information was

submitted, I cannot see that the letter duly notifying him of the submission of the additional information on the 26th

September affected the appellant’s rights or affected his interests, to any significant extent, if at all.

The real complaint of the appellant in this regard is the late receipt by him of the letter in question, not long before the time

for making further submissions expired. As regards the actual delivery of the letter it is clear from the exhibits lodged on

behalf of the appellant that the letter was sent to the address which he gave, and was required to give, by the Regulations for

the communication of any such notice by the planning authority when he made his original submissions to them. The reason

he did not receive the letter in question earlier was because he was not there to receive the letter in the ordinary course of

registered post. In fact his complaint seems to be that the planning authority ought not to have sent it by registered post. At

paragraph 27 of the affidavit he says “by reason of the fact that they chose to do so by way of registered post this further

delayed the receipt of the letters.” I do not see how the planning authority can be faulted for sending such a document by

registered post to the address furnished by the appellant. On the contrary s. 250(1)(c) authorises a letter so notifying the

appellant to be sent by ordinary prepaid registered post to that address.

In my view, although a person in the appellant’s position has potentially a “substantial interest” in vindicating a right to

exercise the specific right to make observations vested in such a person under the Regulations, on the facts of this case, as

put by the appellant himself, I am quite satisfied that no wrongful act on the part of the planning authority could be said to

adversely affect the appellant’s rights or interests in this regard. His initial premise is not established prima facie, and he has

not demonstrated that he has any “substantial interest” deriving from any alleged breach of his right to make observations.

I would add in passing that a person who complains of a complete denial of a statutory right vested personally in him or her

by law (such as the right to make further submissions in respect of further significant information as envisaged by Article 35

of the Regulations) should not always just sit back and leave the process proceed at length until it reaches its final conclusion

and then seek to impugn the final decision where it would have been properly open to such a person to seek a remedy at an

earlier stage, such as by way of mandamus, requiring the authority to observe the statutory right in question. That is

something which a Court would fully take into account when deciding whether or not to grant leave to bring judicial review.

It may be otherwise where for example the decision was taken before the breach of the legal right could reasonably have

been known or before there was an opportunity to seek any other properly available remedy. In this case the appellant states

that the decision to grant planning permission was taken so soon after the expiry of the deadline for making further

submissions that he had no opportunity of taking any step in relation to it before that decision was made. However, it is not

necessary to address that aspect of the matter further in the light of the conclusions that I have come to above.

Allusion was also made in the course of argument to general rights of due process guaranteed by the Constitution. The

entitlement of the appellant to participate in the planning process derives from the Regulations of 2001 and the process does

not involve the determination of or adjudication on any personal rights of the appellant as a citizen. The statutory or

regulatory rights vested in the appellant in this instance were the right to make observations in accordance with the

Regulations and I have dealt with that above. No other broad constitutional issues arise. In so concluding for the purpose of

considering whether the appellant could have a “substantial interest” within the meaning of s. 50 of the Act of 2000 it may

also be inferred that the particular ground in question does not constitute a substantial ground. In the context of the

appellant’s claim that his right to make observations had been breached, a consideration of whether the alleged breach was

sufficient to give him a “substantial interest” for the purpose of s. 50 may indeed overlap with the kind of considerations

that would be involved in determining whether it also constituted, distinctly and separately, a substantial ground. I just wish

to make it clear that my considerations were not concerned with the latter issue, which is a distinct one notwithstanding the

overlap of considerations that may be involved in the context of this particular point.

I also agree with the learned trial Judge’s conclusions that the appellant has not shown that he has been substantially denied

an opportunity to involve himself in the process relating to the revised or modified plans, a conclusion which he also

distinguished from a finding on the merits as such of the grounds.

The appellant having failed to demonstrate that he has a “substantial interest” in the matter the subject of his application I

would dismiss the appeal.