Supreme Court dismisses appeal where applicant failed to prove substantial interest under Planning and Development Act 2000.

THE SUPREME COURT

JUDICIAL REVIEW

Murray C.J.

Kearns J.

Finnegan J.

[S.C. No. 18/07]

BETWEEN

THOMAS HARDING

APPELLANT/APPLICANT

AND

CORK COUNTY COUNCIL

AND

AN BORD PLEANALA

RESPONDENTS

AND

XCES PROJECTS LTD. NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LTD.

NOTICE PARTY

JUDGMENT of Mr. Justice Kearns delivered the 2nd day of May, 2008

The applicant is a sailor and retired merchant seaman who lives in the town of Kinsale. He has lived all his life in Kinsale

and grew up in the Ballymacus area where the notice party has been granted planning permission for a substantial hotel, golf

and leisure resort at Ballymacus Head and Preghane Point at the entrance to Kinsale Harbour.

Mr. Harding is totally opposed to this development on environmental grounds, although he lives some three kilometres away

from the site of the proposed development. Members of his extended family still reside in the Ballymacus area and his uncle,

Charles Harding, owns a portion of the headland itself. In his various affidavits sworn in the proceedings, Mr. Harding

asserts that he has over the years maintained a constant and continuous interest in the area and visits it frequently. He visits

the area both by land and sea and contends that for these reasons he has a substantial interest in the development project as

the same is defined at s. 50 of the Planning and Development Act, 2000.

While the applicant was an objector to the proposed development and participated in the planning process, the first named

respondent made a decision on 1st October, 2005 to grant planning permission to the notice party for the proposed

development subject to 72 conditions.

While the applicant had the option of bringing an appeal from this decision to An Bord Pleanála, he elected instead to seek

leave to bring judicial review proceedings to quash the decision of the first named respondent on a variety of grounds. The

application for leave was heard in the High Court (Clarke J.) who refused to grant such leave in a judgment delivered on

12th October, 2006. The learned trial judge found that the applicant had failed to demonstrate the necessary “substantial

interest” required as a precondition for obtaining leave under s. 50 of the Planning and Development Act, 2000.

The applicant then applied for a certificate for leave to appeal to the Supreme Court. The learned trial judge granted such

certificated by judgment delivered on 30th November, 2006 in respect of the following point of law:-

“What are the criteria by reference to which a person may be said to have a ‘substantial interest’ even though

they do not have a financial or property interest within the meaning of s. 50 of the Planning and Development

Act, 2000 and has this court properly applied such criteria to the instant case?”

The learned trial judge rejected five other points which the applicants sought to raise in the certificate.

SECTION 50 (4) OF THE ACT: SUBSTANTIAL INTEREST

The precise provision dealing with the requirement to show substantial interest is contained at s. 50 (4) of the Planning and

Development Act, 2000 which provides:-

“(b) An application for leave to apply for judicial review shall be made by motion, on notice (grounded in the

manner specified in the Order in respect of an ex parte motion for leave)—

(i) if the application relates to a decision referred to in paragraph (a) of subsection (2), to the planning or local

authority concerned and, with regard to a decision on an application for permission under this Part, to the applicant for

the permission where he or she is not the applicant for leave,

(ii) if the application relates to a decision referred to in subparagraph (i) of subsection (2)(b), to the Board and each

party or each other party, as the case may be, to the appeal or referral,

(iii) if the application refers to a decision referred to in subparagraph (ii) or (iii) of subsection (2)(b), to the Board and

the planning or local authority concerned, and

(iv) to any other person specified for that purpose by order of the High Court,

and 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. (Emphasis added)

(c) Without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the

applicant shows to the satisfaction of the High Court that—

(i) the applicant—

(I) in the case of a decision of a planning authority on an application for permission under this Part, was an

applicant for permission or is a prescribed body or other person who made submissions or observations in

relation to the proposed development,

(II) in the case of a decision of a planning authority under section 179, is a prescribed body or other person

who made submissions or observations in relation to the proposed development,

(III) in the case of a decision of the Board on any appeal or referral, was a party to the appeal or referral or is

a prescribed body or other person who made submissions or observations in relation to that appeal or

referral,

(IV) in the case of a decision of the Board under section 175 , is the planning authority which applied for

approval, or is a prescribed authority or other person who made submissions or observations under

subsection (4) or (5) of that section, or

(V) in the case of a decision of the Board under Part XIV, is a local authority that proposes to acquire land or

to carry out a scheme or proposed road development or is a person who made objections, submissions or

observations in relation to that proposal, or

(ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were

good and sufficient reasons for his or her not making objections, submissions or observations, as the case may

be.

(d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other

financial interest.”(Emphasis added)

The explicit reference to “substantial interest” in the statutory provision not only reflects a higher threshold than the

previous standard of “sufficient interest”, but also affords legislative recognition to the importance to be attached to the

requirement. The previous “sufficient interest” standard was not directly contained in the Planning Acts but was

incorporated by reference to Order 84 of the Rules of The Superior Courts (R.S.C.).

Both sides to this appeal agree that s. 50 significantly “heightened the bar” for objectors or other aggrieved parties who now

seek to bring judicial review proceedings. Section 50 (2) of the Act of 2000 provides that a person shall not question the

validity of a decision of a planning authority otherwise than by way of an application for judicial review. Leave to bring such

proceedings must be sought in advance from the High Court and such application must be brought within the period of eight

weeks commencing on the date of the decision of the planning authority (as opposed to six months under the previous

regime). The application must be made by a motion on notice to the planning authority who may, as in the present case,

argue in court that leave should not be granted. The High Court shall not grant leave unless it is satisfied that there are both

substantial grounds for quashing the decision and that the applicant has a substantial interest in the matter which is the

subject of the application. Furthermore, the applicant must be either a prescribed body or a person who has made

submissions or observations in relation to the proposed development. Leave of the High Court is required for appeal to the

Supreme Court whereas no such leave is required in relation to the normal Order 84 procedure. The High Court must in

addition certify that its decision involves a point of law of exceptional public importance and that it is desirable in the public

interest that an appeal be taken to the Supreme Court.

These are onerous conditions which can only be seen as restricting in a significant way the citizen’s right of access to the

court. Perhaps it would be more accurate to say that the citizen’s entitlement to a judicial remedy is significantly

circumscribed by the Act of 2000. Access to court per se is not denied, but an applicant has numerous hurdles to clear

before obtaining leave.

It is impossible to conceive of these legislative provisions as being intended for any purpose other than to restrict the

entitlement to bring court proceedings to challenge decisions of planning authorities. There is an obvious public policy

consideration driving this restrictive statutory code. Where court proceedings are permitted to be brought, they may have

amongst their outcomes not merely the quashing or upholding of decisions of planning authorities but also the undesirable

consequences of expense and delay for all concerned in the development project as the court process works its way to

resolution. The Act of 2000 may thus be seen as expressly underscoring the public and community interest in having duly

authorised development projects completed as expeditiously as possible.

SUBSTANTIAL GROUNDS AND SUBSTANTIAL INTEREST REQUIREMENTS

Section 50(4)(b)(iv) provides in strongly negative terms that 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.”

Is this one fence or two? By ascribing to the words contained in the section their ordinary and natural meaning it seems

patently clear that substantial grounds and substantial interest are separate concepts which give rise to separate requirements.

If this interpretation is correct it follows that a failure to possess or establish one or other is fatal to a leave application.

In Lancefort Ltd. v. An Bord Pleanála & Ors (No.2) [1999] 2 I.R. 270 Keane J. stressed the distinction between substantial

grounds and substantial interest in stating at 318:-

“I cannot agree, however, with the submission advanced on behalf of the applicant that the fact that there

were ‘substantial grounds’ for contending that the decision was invalid necessarily leads to the conclusion

that they had locus standi. Since the amendment affected by s. 19 (3) of the Act of 1992 obliges the applicant

in a case such as this to proceed by way of an application under O. 84 of the Rules of the Superior Courts and

since the latter expressly requires that the applicant should have ‘a sufficient interest’ in the matter, it must be

presumed that the Oireachtas intended that an applicant, in addition to establishing substantial grounds for

contending that the decision was invalid, must also show that he or she has such an interest.”

Part of the appellant’s case before this Court has been to argue that these two considerations may be seen as two aspects of

the same thing and inextricably linked or conflated in some way. In this context, Mr. Galligan, senior counsel for the

applicant, attached considerable importance to a passage in the judgment of Macken J. in Harrington v. An Bord Pleanala

[2006] 1 I.R. 388 where she stated at p. 402:-

“Having regard to the legislative history and, in particular, to the increasingly strict provisions for

commencing judicial review proceedings in planning matters put in place by the Oireachtas, it seems to me

that in deciding what is intended by the phrase ‘substantial interest in the matter which is the subject of the

application’, an equally rigorous approach must be adopted. The interpretation of that phrase in the proviso

to s. 50 (4) of the Act of 2000 must be informed by the general approach found in the legislation to the

question of appeals of this nature provided, however, that the legislation is not applied in such a restrictive

manner that no serious legal issue legitimately raised by an applicant could be ventilated, or which would

have as its effect the inability of the courts to check a clear and serious abuse of process by the relevant

authorities, such that either event might thereby remain outside the supervisory scrutiny of the courts, a factor

also considered by Keane J. in the case of Lancefort Ltd. v. An Bord Pleanála (No.2) [1999] 2 IR 270.”

However, I do not interpret the observations of Macken J. as being directed to the dichotomy between “substantial

grounds” and “substantial interest”, but rather as an acknowledgement that while severe restrictions govern rights of

access to challenge decisions of planning authorities they must not be so restrictive as to preclude the courts from

intervening to restrain a serious abuse of process. I take this passage as being a reference more particularly to the issue of

“substantial grounds”, an impression which is borne out by the following paragraph in the judgment of Macken J. (at p.

403) where she states:-

“While I accept the applicant's argument that the Act makes it clear such substantial interest may be wider

than an interest in land, or a financial interest and therefore, in theory, it can cover a wide variety of

circumstances, I consider that the substantial interest which the applicant must have is one which he has

already expressed as being peculiar or personal to him.”

At p. 404 she went on to state:-

“In my judgment, s. 50 of the Act of 2000 separates, even more clearly than under previous Acts, the

applicant's interest, which is to be considered from the point of view of his having established the required

substantial interest and the second requirement, being one under which the applicant must establish to the

court that there are, objectively speaking, substantial grounds for contending that the decision is invalid.”

Mr. Galligan also seeks to rely upon a strand of the judgment delivered by Keane J. in Lancefort Ltd. v. An Bord Pleanála

(No.2) [1999] 2 I.R. 270 where he stated at (pp. 308 to 309):-

“The authorities reflect a tension between two principles which the courts have sought to uphold: insuring on

the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies

do not escape scrutiny by the courts because of an absence of indisputably qualified objectors and, on the

other hand, that the critically important remedies provided by the law in these areas are not abused.”

Mr. Galligan further invoked in support of this approach the decision of Finlay Geoghegan J. in Friends of the Curragh

Environment Ltd. v. An Bord Pleanala [2007] 1 I.L.R.M. 386 in which Finlay Geoghegan J. stated as follows (at p. 393):-

“Whilst in Lancefort standing was considered under O. 84 r. 20(4) and not s. 50 of the Act of 2000 it appears

that a construction of s. 50 of the Act of 2000 which is consistent with the constitutional right of access to the

courts requires the court to have regard to the first principle referred to by Keane CJ. In practical terms, this

seems to require the court to have some regard to the grounds on which the decision is challenged when

deciding whether the applicant has satisfied the standing requirement of s. 50(4)(b). The wording of the

section so permits. What the applicant must have is a substantial interest in “the matter which is the subject of

the application”. In a judicial review application such as this, “the matter which is the subject of the

application” is the challenge to the validity of the decision on specified grounds.”

However, I believe Mr. Galligan is mistaken in his submission that either of the cited passages support an interpretation the

effect of which is that the presence of substantial grounds makes good a deficit or lack of “substantial interest”. I have

already referred to the judgment of Keane J. in Lancefort which supports the view that a substantial interest test must be

separately met before leave is granted. Secondly, nothing in the judgments in Lancefort can be taken to contradict the plain

terms of the subsequently enacted legislation which requires that the applicant demonstrate a substantial interest. Thirdly, I

do not believe that the substantial interest requirement is to be taken as meaning the challenge to the validity of the decision

(i.e., the legal proceedings) because it goes without saying that every litigant has that degree of interest in their own legal

proceedings and the inclusion of words for that purpose in the statute would have been superfluous and pointless. It may

well be that Finlay Geoghegan J. was differentiating between objections which fail to meet a locus standi test on one ground

but may nonetheless meet the requirement on another, but to the extent that Mr. Galligan seeks to rely upon this decision to

suggest that the existence of substantial grounds can make good a lack of “substantial interest”, I do not accept that

submission as correct.

If one were to accept that a deficiency of interest could be compensated for by demonstrating substantial grounds, such a

conflation of the two requirements of the subsection would inexorably also mean that a particularly strong interest in the

development could be invoked as a justification for granting leave even in the absence of substantial grounds. That would be

plainly wrong.

Ultimately, if the legislature intended that substantial grounds alone or separately could discharge their requirements of s. 50,

the word “and” which links the two requirements would not have been employed. Instead the word “or” would have

appeared.

I think therefore it is a perfectly legitimate approach for the Court to adopt the position that it will first examine whether an

applicant has substantial interest before it considers the issue of substantial grounds. Indeed, this is the approach adopted by

Clarke J. in his judgment delivered herein on 12th October, 2006 when he stated (at para. 2.2):-

“If a planning authority or the Bord or, indeed, a notice party can satisfy the court that the person seeking

judicial review does not have a sufficient interest to meet the test set out in s. 50, then it does not seem to me

to be appropriate for the court to go any further in a consideration of whether there are substantial grounds

for the challenge. Furthermore in cases where those parties persuade the court that an appeal to the Bord

would be an adequate remedy then it is, again, unnecessary to consider whether there are substantial grounds.

In either case a decision as to whether there are, or are not, substantial grounds would be redundant. In such

circumstances it would be unnecessary for the court to embark on a consideration of the strength of the

grounds put forward for suggesting that the decision under challenge is invalid.”

I see no basis for conflating the concepts of “substantial grounds” and “substantial interest”. I am fortified in so

concluding by considering what might occur if one took the view that substantial grounds alone might suffice to confer locus

standi where no substantial interest exists. In such circumstances an objector in the planning process - who might be a

person with no connection to the locality where the development was taking place - could stymie or delay the entire planning

process if he could identify even an arguable error of process in the manner in which the planning authority had dealt with

the application. Such a person might be a person who in a case like the instant one had a general interest in environmental

matters and who for that reason made submissions or observations. Article 29 of the Planning and Development Regulations

2001 (S.I. No. 600 of 2001) (as substituted by article 8 of the Planning and Development Regulations, 2006) (S.I. No. 685

of 2006) states:-

“(1) (a) Any person or body, on payment of the prescribed fee, may make a submission or observation in

writing to a planning authority in relation to a planning application within the period of 5 weeks beginning

on the date of receipt by the authority of the application.”

Thus the objector might be a person who resides at the opposite end of the country, or for that matter in the United

Kingdom or mainland Europe, or indeed might even be a person with some knowledge of the local area who has moved

away overseas but who nonetheless likes to fill in idle moments by tracking planning developments in Ireland on the internet.

Conceivably such a person might be an individual living and working on a whaling station in South Georgia. This ‘open to all

comers’ scenario is the exact opposite of what the Act is designed to achieve and is in my view irreconcilable with any

reasonable interpretation of s. 50(4)(b)(iv).

In my view the “substantial grounds” and “substantial interest” requirements of s. 50 create two fences, not one and that an

applicant who fails to establish the latter has no entitlement to obtain leave merely because he has grounds which are

substantial.

SUBSTANTIAL INTEREST IN THE MATTER

The words “substantial interest in the matter which is the subject of the application” receives no further definition in the

Act. However, it is clear from a reading of the section as a whole that the word “application” means the application for

leave to apply for judicial review. The “matter” must, it seems to me, by reference to the wording contained in s.50(4)(d),

be taken as meaning the development project itself and the outcome of the planning process in relation to it. It can not mean

the legal proceedings themselves, not only because of the way in which “substantial interest” is contextualised by s.50(4)

(d), but also because it would be a trite and superfluous use of a statutory provision to make it a requirement that a litigant

have a substantial interest in their own litigation when this is so obviously the fact in every case.

The only guidance, albeit an important one, as to the meaning of “substantial interest” is to be found at s. 50(4)(d) which

states:-

“A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial

interest.”

This wording strongly suggests to me that the framers of the legislation had in mind a range of interests originating in, but

not necessarily limited to, considerations of how an applicant’s property or financial interests might be affected by the

particular development. In one sense it admits therefore of a simple and perhaps limited interpretation. If, for example, the

requirement is to have a “substantial interest in the project for a new stadium for Manchester United” would any

reasonable person assume this threshold level of interest was met by simply having an interest in footballing matters

generally or by general concerns about the impact of a new stadium on the city of Manchester? I do not think so. However,

if I live next door to the stadium I might be said to have a substantial interest with regard to any proposed building works or

other onsite developments in terms of the impact on the value of my property or how my property or business might be

affected by increased traffic or other consequential effects. The way I am affected is tangible and immediate and largely

derives from the geographical proximity of the proposed development to my property. Needless to remark, it does not

necessarily follow that, because an applicant has an interest in land or financial interest which is affected by the

development, such applicant will have a substantial interest, although this may often be the case in a particular set of facts.

Equally, the subsection does not necessarily mean that a person without an interest in land or financial interest must always

fall outside the category of those who have a substantial interest, but simply that other types of interest can count towards

whether a person has a substantial interest.

The notion of “substantial interest” was first considered by O’ Caoimh J. in O’ Shea v. Kerry County Council [2003] 4

I.R. 143, where he held that a general interest that the law be observed is not a substantial interest. Despite being a nearby

landowner, O’ Caoimh J. found that the applicant had failed to show how she was affected and so did not have a substantial

interest. O’ Caoimh J. said (at pp. 160 to 161):-

“The applicant has indicated that she is the owner of the land over which a right of way exists to the golf club.

No particular point has been made by the applicant showing how she will be affected by the proposed

development. She has confined herself to indicating that, had she been aware of the application for planning

permission, she would have objected to same and would have appealed to An Bord Pleanála, had a decision

been made in favour of the grant of planning permission and had she been aware of same. I am satisfied,

however, that the applicant has failed to show in what manner, if any, she will be affected by the proposed

development and, in this regard, I am satisfied that she has failed to show a substantial interest in the

matter.”

O’ Caoimh J. also expressly rejected the notion that a general interest that the law be followed could amount to a substantial

interest, declaring at p. 160:-

“Different circumstances may arise giving a substantial interest to the applicant concerned. For example an

applicant may be able to show that he or she is directly affected by the proposed development. I am satisfied

that the fact that a member of the public may have an interest in seeing that the law is observed is not such as

to amount to the existence of a ‘substantial interest’ within the terms of the section”.

Also, in Ryanair v. An Bord Pleanala [2004] 2 I.R. 334, O Caoimh J. declared at p.360 of his judgment:-

“While the requirements of s. 50 of the Act of 2000 include the obligation for an applicant to show

"substantial interest", this has not been the subject of any significant judicial guidance to date. However, it is

clear that the nature of the interest in question is not limited to an interest in land or other financial interest.

It is also clear, however, that an applicant directly affected by a proposed development will in all probability

have a "substantial interest".

On the facts of that case, O ‘Caoimh J. held that merely being a user of an airport did not constitute a substantial interest to

permit challenging the decision.

In Harrington v. An Bord Pleanala [2000] 1 IR 388, Macken J. made some general remarks concerning a restrictive form

of judicial review under s. 50, stating at p. 399 of her judgment:-

“As has been stated in several cases, consideration of the legislative scheme makes it clear that the Oireachtas

intended that s. 50 be stricter than the equivalent section of the earlier Local Government (Planning &

Development) Act, 1992, which itself adopted a stricter set of criteria applicable to challenges to the grant of

planning permission than previously existed. This is because there is in place an extensive statutory scheme

under which members of the public may object to the original grant before a planning authority, and may also

appeal to and be heard by an independent appeal authority, namely the first respondent [An Bord Pleanala].

To that appeal scheme the statute also provides for the nomination of certain designated parties, who have an

automatic right to be heard, with the view to ensuring wide ranging representation in planning matters from

diverse interest groups.”

As already noted, Macken J. held at p. 403 in that case that the substantial interest which the applicant must have is “one

which he has already expressed as being peculiar or personal to him”. In O’ Brien v. Dun Laoghaire Rathdown County

Council [2006] EEHC 177] the applicant had lived for ten years at a property which was 77 metres away from the

proposed development (although she did not own the premises). O’ Neill J. held that she did not have a substantial interest

on this basis, and that the proposed development would not have had any significant detrimental effect on the visual amenity

she would enjoy from the apartment in which she lived. He noted that the development would adhere to the existing building

line, parts of the building would be reinstated and new material would be in the style of the original. O’Neill J. also dealt with

certain other putative interests advanced by the applicant, declaring:-

“The next basis upon which the applicant contends that she has a substantial interest is by virtue of her

membership of An Taisce and the Monkstown Salthill Residents Association and the interest which he has in

the proper planning of the Monkstown area. Being interested in planning matters is wholly different to having

an interest in the subject matter of a particular application. An interest even if it is a passionate interest in

planning matters will not suffice to establish a substantial interest in the subject matter of a particular

application. In this regard I would respectfully agree with the following dictum from the judgment of Macken

J. in the case of Harrington v. An Bord Pleanála where she says: ‘I consider that the substantial interest

which the applicant must have is one which he has already expressed as being peculiar or personal to him’.

Clearly a mere interest in planning matters falls far short of the kind of personal interest or interests peculiar

to a person so as to amount to a substantial interest.

The fact that the applicant is a member of An Taisce and indeed of a residents association indicates she has

an interest in planning matters, but her membership of An Taisce does not give her any kind of special status

which would amount to a substantial interest for the purposes of s. 50.”

In Cumann Thomas Daibhis v. South Dublin County Council [2007] IEHC 118, O’Neill J. further clarified his

understanding of the “peculiar or personal” criterion expressed by Macken J. in Harrington v. An Bord Pleanála, stating

as follows:-

“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

excluding 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.”

In the instant case, Clarke J. stated in the High Court as follows (at paras. 3.8 to 3.10):-

“Therefore it seems that the first criteria that must be considered is whether it can properly be said that the

interests sought to be relied on as meeting the threshold have been asserted (or would, were it not for the

contended breach of process have been asserted).

However, even where the interest contended for has been asserted, that does not, of itself, establish that the

interest is ‘substantial’. Very many persons may have some sort of ‘interest’ in one sense of the word in any

given planning application. To take but a simple example, an application for a significant housing

development which, it is contended, might have an adverse effect on traffic, is something which might be of

some relevance to a large number of persons. However the degree of relevance is dependent upon the extent to

which it might reasonably be said that the person (or an organisation representing a group of persons) may be

affected. The fact that one might, on occasion visit the relevant area (for, for example, personal, social or

sporting reasons) might, in one sense, give one an interest in the traffic in that area but it could hardly be

said to be a ‘substantial interest’. On the other hand a resident’s association representing an adjoining area

who might wish to put forward an argument that there would be a very significant impairment of their ability

to move in and out of their housing estate would undoubtedly have a much more significant interest.

Furthermore it should be noted that the nature of the proposed development itself, both as to its scale, and the

extent to which it might be said to alter the area in which it is located, can have the potential to increase the

range of persons who might legitimately be said to have a significant interest in the matter. For example a

minor extension to an individual house located in an unobtrusive part of a provincial town would be unlikely

to be of legitimate significant interest to any but those in its immediate vicinity. A major redevelopment of the

town centre, which could have an effect on the way in which all of the residents of the town had an ability to

enjoy the amenities of the town could, at least in principle, have the potential to give rise to a much wider

range of persons having a significant interest in the development.”

Clarke J. then continued (at para. 3.11):-

“It seems to me, therefore that, having identified the interest which an applicant has either expressed (or

might be taken to have been prevented from having expressed) the court should, by reference to that interest,

identify the importance of the interest by reference to criteria such as:-

(a) The scale of the project and the extent to which the project might be said to give rise to a significant alteration in the

amenity of the area concerned. The greater the scale and the more significant the alteration in the area than the wider

range of persons who may legitimately be able to establish a substantial interest

(b) the extent of the connection of the applicant concerned to the effects of the project by particular reference to the basis

of the challenge which he puts forward to the planning permission and the planning process

(c) such other factors as may arise on the facts of an individual case”

I am satisfied that Clarke J., by reference to the case decisions summarised above, has identified correctly the approach to

be adopted by the court in assessing whether a particular applicant has or has not “substantial interest”. It is clear that the

interest must be weighty and personal to the applicant in the sense that he has a demonstrable stake in the project, perhaps

shared with others, deriving from the proximity and connectedness of his interest to the proposed development and its likely

or probable effects.

While certain specific parameters and reference points as outlined above can be identified for the purposes of applying the

test, it would be undesirable and probably impossible at this point to set out a definitive test for all cases. It may well be that

the criteria to be applied can be further defined or refined on a case by case basis.

MR. HARDING’S INTEREST

As already noted, Mr. Harding is a professional sailor and retired ship’s bosun who lives at 3 Ardbrack Heights in Kinsale.

He has lived all his life in the area of Kinsale Harbour and grew up as a child in the Ballymacus area where the notice party

proposes to carry out the development the subject matter of the proceedings. He is also intimately familiar with the area

from the sea as he frequently conducts sailing trips in the area. He accepts that he cannot establish any interest in land nor

has he a financial interest which is affected by the proposed development. He contends however that the whole purpose of

the planning code is to allow third parties to participate in the planning process. He points out, quite properly, that he is not a

stranger to the area nor is he seeking “officiously” to intervene in respect of a planning application which will have little or

no impact upon himself or on the environment in which he lives. His immediate family, an uncle and cousins, own houses

right in the middle of the proposed development and his uncle Charles Harding owns a significant portion of the headland.

He further states on affidavit that he constantly visits the area although he personally lives in Kinsale. He contends that his

long standing association with the area and its close proximity to his current home gave him a substantial interest in the

subject matter of the application.

In the court below, Clarke J. rejected the arguments put forward on Mr. Harding’s behalf, although he accepted that Mr.

Harding has a genuine interest in seeking to have the headland kept in an undeveloped state. Clarke J. was satisfied, that

under the traditional test for standing, the state of affairs elaborated by Mr. Harding would have afforded him a sufficient

connection to establish an interest in the matter and thus provide him with standing. He concluded however, as follows (at

par. 3.17):-

“However I am not satisfied that the degree of connection which he has set out in his affidavits meets the more

stringent test introduced in the 2000 Act of a “substantial interest”. I have come to that view notwithstanding

the fact that the development is, manifestly, of a significant scale and such as would, if it goes ahead, be likely

to bring about a material alteration in the headland itself. Thus I would be inclined to the view that the scope

of persons who might be able to establish that they have a substantial interest in this project would be wider

than might be the case in respect of projects significantly smaller in scale or those which would not be likely

to bring about significant change in the area in which they are located. However notwithstanding that I accept

that the scale of and nature of the project extends the scope of those with a “substantial interest” to a wider

boundary it does not seem to me that Mr. Harding comes within that extended scope. I accept that his interest

is more than that of a mere bystander. I accept that his concerns in relation to the development of the headland

are genuine. However it seems to me that the test of “substantial interest” requires something more than a

familial connection with an area coupled with a pattern of visiting the area as a former native and as a sea

faring person.”

I agree with the conclusions arrived at by Clarke J. and with the reasons offered by him for reaching that conclusion. I am

also satisfied that the judgment draws together various strands from the different cases which have considered this topic in a

coherent and comprehensive fashion.

I would therefore be of the view that the question certified for this court may be answered by stating that, in order to enjoy

a substantial interest within the meaning of s. 50 of the Act of 2000, it is necessary for an applicant to establish the following

criteria:-

(a) That he has an interest in the development the subject of the proceedings which is “peculiar and personal” to

him.

(b) That the nature and level of his interest is significant or weighty

(c) That his interest is affected by or connected with the

proposed development

The calculation as to whether the interests of a particular applicant fulfil those requirements is obviously a matter dependent

upon all of the circumstances of a particular case.

DIRECTIVE 2003/35/EC

Mr Galligan further submitted that the term “substantial interest” should be given a more expansive interpretation by reason

of the provisions of the Directive 2003/35/EC, the objectives of which include improving public participation in the drawing

up of plans and programmes relating to the environment and for amending with regard to public participation and access to

justice Council Directives 85/337/EEC and 96/61/EC.

Article 10a was inserted by article 3(7) of Directive 2003/35/EC as an amendment of Council Directive 85/337/EEC of 27

June 1985 on the assessment of the effects of certain public and private projects on the environment and provides:-

“Member States shall ensure that, in accordance with the relevant national legal system, members of the public

concerned:

(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires

this as a precondition, have access to a review procedure before a court of law or another independent and

impartial body established by law to challenge the substantive or procedural legality of decisions, acts or

omissions subject to the public participation provisions of this Directive”

In the context of the Directive 2003/35/EC, “the public concerned” as stated in article 3(1) means:-

“the public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures

referred to in Article 2 (2); for the purpose of this definition, non-governmental organisations promoting environmental

protection and meeting any requirement under national law shall be deemed to have an interest”

It must immediately be stated that the Directive was not invoked in arguments before the High Court, though Mr Murray did

not seek to rely on any pleading point in this regard. He argued that what constitutes a sufficient interest and impairment of a

right are expressly reserved by article 10a to the individual Member States. Mr. Murray is probably correct in that argument

but it is not necessary in my view for this point to be decided in the context of this case. Accepting that the Act falls to be

interpreted in the light of the terms and objectives of the Directive in question it is also an established principle that such an

interpretative approach does not mean that the Act be interpreted contra legem. The interpretation which I have given to the

meaning of ‘substantial interest’ in the context of this case flows directly from the terms of the Act itself. That being in my

view the plainly correct interpretation of s.50, no issue as to community law arises.

THE OBJECTOR WHO LACKS SUBSTANTIAL INTEREST

In the instant case Mr. Galligan complains that an objector might well wish to pursue a due process or fair procedures point

for which he might have no remedy in the context of an appeal to An Bord Pleanála. He gave as an example the failure of a

planning authority to give reasons for departing from the report of a senior planner when making its decision. He argued this

was one instance of a matter which could not be addressed in the context of an appeal to An Bord Pleanála. Another

example might be where a request for information had not been complied with by an applicant within six months. In such

circumstances a Planning Authority must declare an appeal to have been withdrawn. While this was a matter provided for in

the Regulations of 2001, it was not a matter which could be revisited in the context of any appeal to An Bord Pleanála.

However, the possibility that in a given case there may be an error in process which can not be addressed in the context of

an appeal to Bord Pleanala does not convert a non-substantial interest into a substantial interest. Nor do the hypothetical

problems mentioned by Mr Galligan arise in the context of the present appeal. This does not mean that some legal error in

the process is necessarily immune from judicial remedy. It simply means that persons who do not have a substantial interest

in the matter the subject of the decision to grant or refuse an application for planning permission do not have locus standi to

seek judicial review of the actual decision. That remedy is confined to those persons who have such a substantial interest.

The words of the statute are plain and unambiguous and I see s.50 as expressly excluding a remedy by way of judicial

review from persons who do not have a substantial interest. In the context of s.50 it seems to me that any right of such an

applicant to bring judicial review proceedings is necessarily limited to reliefs which may be sought prior to the making of any

decision by the planning or local authority concerned, as otherwise a challenge by an objector without substantial interest

would attack the decision itself in an impermissible manner.

The Act does not itself provide for an exception from the scope of its provisions where some want of process has occurred

in the case of an objector who lacks substantial interest. The difficulties to which this gives rise are evident from portions of

the judgment of Clarke J. where in referring to “a sufficiently substantial failure in the public consultation process” -

leading to a conclusion that an objector “had been substantially denied an opportunity to involve himself in the process

relating to those revised or modified plans” - the terminology adopted may perhaps be seen as an endeavour to overcome

a genuine difficulty by transposing the words “substantial interest” contained in s.50 away from the context of the “matter

the subject of the application ” described in s.50(4)(b)(iv) to a different context, namely a particular incident or omission

occurring during the course of the process itself. In similar vein the applicant submitted that defects in the planning process

gave him a “substantial interest” for the reasons outlined above.

In expressing this view I appreciate I am in disagreement with the views expressed by Murray C.J. on the scope of the

objector’s entitlements, though his analysis and conclusions that the applicant has failed to make out a case under this

heading does not lead to any different outcome on this appeal. I realise also that a dissatisfied objector may well feel

aggrieved if an omission by a planning authority in relation to his entitlements under the Planning and Development

Regulations 2001 becomes apparent only after it has made its decision. In such cases however the objector has his appeal to

An Bord Pleanala and I am satisfied that most, if not all, complaints can be dealt with in that context. To the extent however

that the limitation on rights of access to court contained in the statutory regime laid down by s. 50 sits incongruously with

the entitlements of an objector contained in the 2001 Regulations, the statutory regime must clearly prevail.

CONCLUSION

If follows from the criteria already set out which clarify the meaning of “substantial interest” that the applicant in the

present case has failed to demonstrate that he has such interest. He lives two or three kilometres from the development and

in order to sustain an interest to challenge the decision of the planning authority he was compelled to rely upon the fact that

he had family connections with the location in which the development is to take place, that he took sailing trips in the

vicinity and that he visited the area. This, in truth, distinguishes him from no other member of the public living in or outside

the relevant area. To permit the applicant to mount a challenge of the nature and issue in the present proceedings would, in

my view, undermine the clearly expressed legislative intent that the range of persons who could bring such challenges should

be considerably narrowed. I believe the High Court has properly applied the relevant criteria in this case and I would

therefore dismiss the appeal.

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