Appeal dismissed; appellant lacks substantial interest in planning application or procedural regularity.

THE SUPREME COURT

JUDICIAL REVIEW

Chief Justice

Kearns J.

Finnegan J.

Record No. 18/07

BETWEEN

THOMAS HARDING

APPELLANT/APPLICANT

and

CORK COUNTY COUNTIL AND AN BORD PLEANALA

RESPONDENTS

and

XCES PRODUCTS LIMITED NOW KNOWN AS KINSALE HARBOUR DEVELOPMENTS LIMITED

NOTICE PARTY

Judgment of Mr Justice Finnegan delivered on the 2nd May 2008

The questions certified by the learned High Court judge pursuant to the Planning and Development Act 2000 section 50(4)

(f)(i) raises important and complex issues on the construction of section 50(4)(b) and in particular the criteria by reference to

which a person may be said to have a substantial interest in the matter which is the subject of the application. I have had the

benefit of reading the judgments of the Chief Justice and Mr Justice Kearns. Insofar as the criteria for establishing an

environmental interest is concerned I concur fully with the judgments. In the context of an environmental interest the

appellant has failed to establish a substantial interest and I would dismiss the appeal.

It is also contended by the appellant that there was a procedural deficit in the proceedings of the Planning Authority and that

as a participant in the planning process he has a substantial interest in the regularity of the procedures which attended the

application in issue in these proceedings. He alleges numerous breaches and non-compliances by the Planning Authority with

the Planning and Development Regulations 2001. I agree with the judgments of the Chief Justice and Mr Justice Kearns that

with one exception the breaches and non-compliances relied upon do not involve any interest peculiar or personal to the

appellant and could not therefore satisfy the statutory requirement of substantial interest. The exception is his contention that

there was a failure to comply with the Planning and Development Regulations 2001 Article 35(1). Having regard to the

provisions of the Planning and Development Act 2000 section 250, however, it is clear that the Planning Authority was not

in breach of Article 35(1) of the Regulations. The Regulations in Article 29(1)(b) require that any submission or observation

in relation to a planning application shall state the name and address of a person making the same. Section 250(1) provides

that a notice required by the Act or any Regulation to be served or given to any person may be served or given by sending it

by post in a pre-paid registered letter addressed to him or her at the address for service which has been furnished and that is

what occurred here.

It being the case that the appellant has not established any procedural deficit or irregularity whatsoever which is substantial it

is not necessary that the court on this appeal to determine whether, should there have been a breach of Article 35(1) or

other requirement of the Act or Regulations, the appellant would have been entitled to challenge by judicial review the

decision of the Planning Authority on the basis that his participation in the process could give him a substantial interest. I

would leave over for determination on an appeal in which such a breach has been established the determination of whether

any breach of the Act or Regulations could be the basis of an application for judicial review and if so the criteria by

reference to which it could be said that a person relying on the same has a substantial interest. I am, however, satisfied that

mere participation in the planning process of itself is insufficient to constitute such an interest. If such participation could

constitute an interest for the purposes of section 50 the interest identified of necessity would have to be one peculiar or

personal to the applicant for judicial review to meet the requirement of being substantial. I would leave over consideration of

this issue and, if appropriate, the criteria to a future case in which these issues require to be determined.

Harding v Cork Co. Co. & Ors

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