Supreme Court dismisses appeal for delay in judicial review where applicant knew of non-compliance but waited until construction was irreversible.

THE SUPREME COURT

Appeal No. 006/2005

(Record No. 383 JR/2002)

Fennelly J.

Macken J.

Peart J.

JUDICIAL REVIEW

Between:

JAMES KENNY

Applicant

And

DUBLIN CITY COUNCIL

Respondent

And

THE PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE

Notice Party

And by order of the Court made on 20th January 2003

MICHAEL McNAMARA & COMPANY

Notice Party

JUDGMENT of Mr. Justice Fennelly delivered the 5th day of March, 2009.

1. By a decision of 4th January 2000 the respondent (Dublin City Council, hereinafter “the Council”), certified compliance

by the notice party (hereinafter “Trinity”) with the terms of planning permission for the building of Trinity Hall. This is an

appeal against a High Court decision (Murphy J) refusing to quash that decision at the instance of the appellant (hereinafter

“Mr Kenny”).

2. This is not the first and may not be the last case in which Mr Kenny contests the building by Trinity of its new Trinity

Hall buildings. My judgment of 10th April 2008 in Kenny v The Provost, Fellows and Scholars of the University of Dublin,

Trinity College [2008] 2 I.R. 40, mentioned the “saga of litigation in which Mr Kenny, through a multiplicity of

proceedings, contests the validity of a planning permission granted to Trinity in 1999 to redevelop Trinity Hall, the

University’s hall of residence in Dartry.”

Planning history

3. On 12th April 1999, Trinity applied for planning permission for a development consisting of the construction of new

student halls of residence at Trinity Hall.

4. The development was large and complex. It covers an area of approximately 25,000 square metres and comprises, inter

alia, three new student-residence buildings ranging in height from three to seven storeys to accommodate 832 bedrooms

arranged in 180 apartments, a 400 seater dining facility, a launderette, a students' shop, the refurbishment of Trinity Hall, a

listed building, the removal of a gate lodge, a new atrium between Trinity Hall and the sports hall and further and other

associated buildings, works and facilities.

5. One of the buildings is opposite Mr Kenny’s residence. He and the Dartry and District Preservation Association, of which

he is a member, opposed the development. In the course of the planning process the Council made a request to Trinity to

submit revised plans under Article 35 of the Local Government (Planning and Development) Regulations, 1994. Trinity

complied on 7th October 1999.

6. On 11th November 1999, the Council (under its former description, Dublin Corporation) made a decision to grant

planning permission subject to 14 conditions.

7. Mr Kenny and the Association appealed the decision to An Bórd Pleanála (“the Board”). Mr Kenny was represented at

the oral hearing. On 4th August 2000 the Board made a decision to grant planning permission subject to 19 conditions.

8. The planning conditions relevant to the present appeal are:

Condition 1

“The proposed development shall be carried out in accordance with the revised plans submitted to the planning

authority and received on the 7th day of October, 1999, in response to a request for revised plans under Article

35 of the Local Government (Planning and Development) Regulations, 1994, except as may otherwise be

required in order to comply with the following conditions.

Reason: In the interests of clarity.”

Condition 2

“The western arm of Building Number 3, that is on the full Dartry Road elevation, shall be reduced in height by

the omission of the first floor. Revised drawings incorporating this modification to Building Number 3 shall be

submitted to the planning authority for agreement prior to the commencement of development.

Reason: In the interest of visual amenity.”

Condition 8

“Revised drawings of the proposed development, with floor plans and elevations corresponding in detail, shall be

submitted to and agreed in writing by the planning authority prior to the commencement of development.

Reason: In the interest of orderly development.”

Condition 9

“Existing trees shall be retained and areas shown as open space on the lodged plans shall be planted and

landscaped in accordance with the plans submitted to the planning authority. The open areas shall be available for

use by the students on completion of the proposed residential units. All landscaping works shall be carried out

within 12 months of the completion of the buildings in the proposed development. Services and utilities shall not

be laid within 10 metres of the bole of any of the trees to be retained. Prior to the commencement of the

development the developer shall submit details and agree with the planning authority measures necessary to

protect the trees to be retained. All trees to be retained shall be protected during the development by a timber

post and rail fence which shall enclose the crown spread of the trees.

Reason: To protect the existing trees and in the interest of visual and residential amenity.”

[emphasis added]

9. Mr Kenny has contested the validity of the planning permission. Those judicial review proceedings ended with the

decision of this Court on 10th April 2008, mentioned above. Certain conditions of the planning permission required Trinity

to submit certain matters to the Council for agreement. The present proceedings concern compliance with conditions of the

permission.

10. In August 2001, Trinity’s architects, Murray O’Laoire, made a planning-compliance submission of some seventy pages

to the Council. An addendum of some twenty five pages was submitted in November 2001.

11. By report dated 24th December 2001, Patrick McDonnell, Dublin City Council Planning Office, reported that the details

submitted by the developer were satisfactory and complied with the requirements of of the relevant conditions.

12. The Council, by a decision of 4th January 2002, determined that the compliance submissions were satisfactory and in

compliance with the relevant conditions of the planning permission. That is the decision which Mr Kenny challenges in the

present appeal. I will call it the Council decision

Judicial Review

13. On 4th July 2002, Mr Kenny obtained leave (“the leave order”) from the High Court (O’Caoimh J) to apply for judicial

review of the Council decision. Mr Kenny claims that the Council permitted major changes to the permitted development.

The decision was, therefore, made without or in excess of jurisdiction and ultra vires. I will examine these features of the

Council decision in greater detail. The judicial review concerns essentially four aspects of the Council decision, namely:

1. The Council permitted compliance with Condition No. 2 by the omission of a floor other than the first floor of the

western arm of Building No 3 as was required by that condition;

2. The Council approved the installation of boilers and boiler rooms in the roof spaces of buildings nos 2 and 3, which was

not allowed by the permission and so as to alter the roof design and profile and to depart from revised plans submitted in

October 1999;

3. The Council permitted an increase in the number of bed spaces permitted in building no. 3;

4. The Council permitted the laying of services and utilities within ten metres of the bole of trees and the erection of timber

post-and-rail fences which fail to enclose the crown spread of trees which were to be retained.

14. Murphy J, by his judgment of 8th September 2004, refused the application for judicial review. The learned judge based

his decision primarily on Mr Kenny’s delay in seeking judicial review together with the prejudice suffered by Trinity. The

college openly carried out the development during the period of delay. Secondly, and alternatively, the learned judge

concluded that, in any event, the agreement of the Council was reached within the scope of the conditions imposed in the

planning permission.

15. Mr Kenny, in his notice of appeal, challenges the decision of the High Court both in respect of the finding of delay and

the determination that the Council had, in its decision of 4th January 2002, acted within jurisdiction and intra vires the

planning permission granted by An Bórd Pleanála.

16. The contested planning issues involve the interpretation of the planning permission and the limits to the discretion which

may be exercised by the planning authority in approving compliance with conditions.

Legal principles

17. To begin with, some simple matters of common sense need to be mentioned concerning planning permissions. I make

these preliminary remarks, because Mr Kenny asks the Court to examine, at least in certain respects, the fine details of the

development.

18. There will inevitably be small departures from some or even many of the plans and drawings in every development.

There can be discrepancies between and within plans, drawings, specifications and measurements; there can be ambiguities

and gaps. It seems improbable that any development is ever carried into effect in exact and literal compliance with the terms

of the plans and drawings lodged. If there are material departures from the terms of a permission, there are enforcement

procedures.

19. However, planning laws are not intended to make life impossible for developers, for those executing works such as

architects, engineers or contractors or for the planning authorities in supervising them. Nor are they there to encourage fine-

tooth combing or nit-picking scrutiny of the works. I will mention later one or two examples of this type of exercise in the

present case. The exchange of affidavits amounts to some 300 pages.

20. While the planning authority or An Bórd Pleanála on appeal grants the permission, it is a common feature of

permissions, especially for large developments, that additional detail is necessary in order to carry the development into

effect and such detail, often in the form of further plans, drawings, specifications or other explanations, will require approval

by the planning authority prior to commencement of the development. There is an obvious practical necessity for a

procedure whereby matters of detail can be agreed between the planning authority and the developer. This ensures

supervision but allows a degree of flexibility within the scope of the permitted development.

21. The distinction between the statutory and quasi-judicial function to grant permission and the ministerial function to

approve details is clear as a matter of principle. It may be a difficult line to draw in practice.

22. It is obvious that neither the planning authority nor An Bórd Pleanála can determine each and every aspect of a

development. The Board, in particular, determines the fundamental issues. Conditions frequently impose modifications on

the developer and provide that the details be worked out in agreement with the planning authority.

23. In some cases, the planning authority may consider the detail provided in the application to be insufficient. In other

cases, the planning authority or An Bórd Pleanála may decide to grant permission for a development provided changes are

made. In such cases, the authority granting the permission will not draft the plans for the altered development. It will require

the developer to do so. The practice of requiring plans, drawings or other details to be approved by the planning authority is

both reasonable and practical. This division of function was approved by the Supreme Court in Boland v An Bórd Pleanála

[1996] 3 I.R. 435, a case where an objector sought certiorari of the planning permission on the ground that the conditions

involved an improper abdication of the functions of the planning authority. The scope of this faculty and its limits are

described in the judgment of Hamilton C.J., who referred, inter alia, to “the desirability of leaving technical matters or matters

of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the

responsibility of the planning authority and may require re-design in the light of the practical experience…”

24. There may also be questions of interpretation. The planning permission is a formal and public document. The applicant,

the planning authority and the public have participated in a formal statutory procedure, leading to its grant. The permission

enures to the benefit of the land on which the permitted development is to be carried out.

25. Consequently, the planning permission is to be interpreted according to objective criteria. The subjective beliefs either of

the applicant or the planning authority are not relevant or admissible as aids to interpretation. (see Readymix (Eire) v Dublin

County Council, Supreme Court, unreported 30th June 1974). The matter is well expressed in the following passage from

Simons on Planning and Development Law (2nd Ed., 2007, paragraphs 5.06-5.07):

“A planning permission is a public document; it is not personal to the applicant, but rather enures for the

benefit of the land. It follows as a consequence that a planning permission is to be interpreted objectively, and

not in light of subjective considerations peculiar to the applicant or those responsible for the grant of

planning permission.

A planning permission is to be given its ordinary meaning as it would be understood by members of the public

without legal training, as well as by developers and their agents, unless such documents, read as a whole,

necessarily indicate some other meaning.”

26. It follows from the principle of objective interpretation that the correct interpretation is a matter of law and can

ultimately be decided only by the court. In Gregory v Dun Laoghaire Rathdown County Council (Supreme Court,

unreported 28th July 1977), to which I will refer shortly in more detail, the respondent planning authority had submitted that

the interpretation it had placed on a planning condition, even if erroneous, was reasonable. Murphy J, speaking for the

majority of this court described that argument as “unsustainable.” He explained:

“The proper function of the Council was the implementation of the condition imposed by the Board. If they

erred in that regard the error was as to the nature of their duties rather than the performance thereof. The only

power exercisable by the Council was to agree details in relation to the revision of plans on the basis of the

implementation of the condition imposed by the Board. Any agreement reached without that condition having

been fulfilled was necessarily ultra vires the Council.”

27. However, an objective interpretation will not provide the complete answer in every case. It is not a synonym of literal

interpretation. All parties to the present appeal accepted the following statement of McCarthy J in Re XJS Investments Ltd v

Dun Laoghaire Corporation, [1986] IR 750 at 756:

“Certain principles may be stated in relation to the true construction of planning documents:

(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen

and inviting the accepted canons of construction applicable to such material.

(b) They are to be construed in their ordinary meaning as it would be understood by members of the public without legal

training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some

other meaning…”

28. A court, in interpreting a planning permission, may need to go no further than the planning document itself, or even than

the words of a condition in issue within the context of the permission. The words may be clear enough. However, it will

very often need to interpret according to context.

29. On this point, the case of Gregory v Dun Laoghaire Rathdown County Council is also helpful.

30. The interpretation of the condition in that case undoubtedly presented a difficulty. An application was made for retention

of what was called a garage/loft. Permission was granted. An Bórd Pleanála, on appeal, imposed a condition as follows:

“The proposed loft shall be omitted. The proposed garage shall be of a single storey construction. Revised details

shall be agreed with the planning authority…….”

31. The reason given was: “in the interest of residential amenity.”

32. The planning authority agreed revised details, purportedly in compliance with the condition: the loft was to be omitted

but the approved change led to no alteration in the height of the garage. The compliance order was challenged. Geoghegan J,

upheld by the Supreme Court, considered that the agreement was not in compliance with the condition. He believed that the

height of the structure, though not specified, was the main concern.

33. The Council argued, in defence of its decision, that the condition had been complied with: the loft was omitted; the

garage was single storey. That was a literal approach. The Council argued that if the Board had intended that the height was

to be reduced, “it would have expressly so provided.” It had not done so. This Court, on appeal, relied heavily on the

reason for the complaint which had been made by the objector, which had led to the imposition of condition. His only

concern was with the height of the structure. He was not in any way concerned with the internal layout. Murphy J said:

“By imposing the condition in question they clearly required the reduction of the height of the structure by the

removal of the loft area as shown on the plans before them and the second storey which constituted that loft.

The omission or deletion of the loft was the means by which the reduction in height of the structure was to be

achieved.”

34. Thus, the principle of objective interpretation excludes purely subjective considerations, such as the understanding of the

developer or the planning authority, but it does not provide a result where a provision is unclear, ambiguous or

contradictory.

35. The principle does not resolve the problem which, as I explain later, arises in respect of Condition No. 2, namely that

the condition is, itself, contradictory or, at least, ambiguous. The Gregory case shows that the court does not confine itself

to a purely literal interpretation of a condition. It will seek to ascertain its true meaning from its context in the planning

process.

36. I turn then to a consideration of the four individual complaints made by Mr Kenny.

Removal of first floor

37. Condition No. 2 required that building No. 3 on the Dartry Road elevation be “reduced in height by the omission of the

first floor…” The reason for the condition was the “interest of visual amenity.”

38. It is common case that Trinity omitted a floor other than the first. The condition was interpreted by the Council as

requiring that the overall height of the building be reduced by one floor.

39. The Council accepted that the option selected for compliance with Condition No. 2 “as illustrated in the compliance

documents [was] an appropriate reflection of the intention of the Condition while maintaining the spirit of the proposal.”

40. Mr Kenny, in his grounding affidavit, says that the “first floor was selected by the Board for omission because it

protruded from the façade of the building and increased its domineering effect.” It is worth noting, however, that Mr Kenny,

in a memorandum of 22nd January 2002, addressed to the Assistant City Manager, stated: “the intention is clearly stated –

to reduce the overall height by one storey.”

41. Mr Declan McGrath, barrister at law, on behalf of Mr Kenny, submitted that it was not permissible, under the guise of a

compliance order, to approve design changes. He distinguished the power of the court to decline to make an order pursuant

to section 160 of the Planning and Development Act, 2000 where there have been immaterial departures from the terms of

the planning permission. Condition No. 2 is, he says, clear on its face and very specific. The fact that no reason was given

for the choice of the first floor for omission is immaterial and that the Council fundamentally misunderstood their role in

dealing with compliance.

42. Trinity contends that the strictly literal interpretation of Condition No. 2 proposed by Mr Kenny would render the

condition meaningless. The first floor and the two floors immediately above have identical layouts. On the other hand,

externally the first floor steps out over a foot past the rest of the façade. This was a design feature intended to avoid flat

façade monotony and is common to Buildings 1, 2 and 3. It is also intended to reflect the historical buildings on site. The

Dartry Road elevation is described in all submitted documents as a “composite elevation.” Design coherence and

consistency was a requirement of the Council. Removal of the first floor would adversely affect consistency of the design. A

complete redesign might be required.

43. Condition No. 2 presents a problem of interpretation. It is clear from the terms of the condition itself that the purpose of

the removal of the first floor was the reduction of the height of the building. The reference to the interests of “visual

amenity” can only be read in that light. There is nothing either in the planning history or in the terms of the planning

permission to indicate that An Bórd Pleanála wished to alter the façade of the building. The Inspector’s report did not

recommend the removal of any floor. The evidence produced suggests that the profile of the façade was a consistent and

desirable element of the design throughout the planning process. The planning permission makes no mention of protrusion or

“domineering effect” suggested by Mr Kenny as the reason for the condition.

44. This means that there was a contradiction or ambiguity at the heart of the condition. Condition No. 1 required the

development to be carried out in accordance with the plans submitted except as may otherwise be required in order to

comply with the following conditions. Compliance with Mr Kenny’s proposed literal interpretation of Condition No. 2 would

lead to inconsistency with Condition No. 1 by altering the façade. I do not agree with the submission made on behalf of Mr

Kenny that it is plain and unambiguous. I am satisfied that the true objective of Condition No. 2 was the reduction in the

height of the building. This objective has been achieved. There is no evidence that An Bórd Pleanála chose the elimination

of the first, rather than any other floor in order to secure the desired reduction in height or that it wished to alter the

composite elevation in any way. I am satisfied that the Council acted within the scope of its powers by approving the

compliance plans submitted by Trinity in August and November 2001.

45. It is of interest to contrast Mr Kenny’ objection to the removal of the first (rather than another) floor of building no.3,

with his acceptance of the modification, also through the compliance process, of the condition in relation to what became

known as the “bookends” issue. The north wing of the west elevation of building Number 3 remained at five storeys, though

the remaining western arm was reduced by one storey to comply with Condition 2, and although this was not in keeping

with a literal reading of condition 2. Otherwise the visual amenity of the structure would have been adversely affected with

the two bookends of the building being at different heights. Mr Kenny explained that he did not object to this departure from

a literal reading of Condition No. 2 as follows:

“ Most people who are acquainted with compliance procedures appreciate that a planning authority in

seeking to give effect to a Bord Pleanala planning permission condition, may be presented with a

problem of design detail which arises from the condition, which is not material and which needs to be

resolved with the Appellant. The above “bookend” case is an example of an issue which emerges

from a Bord Pleanala condition producing a design problem. Residents could not reasonably object to

the manner in which this design difficulty is resolved because it has to be resolved in good

architectural design terms. Either both “bookends” are to be allowed to remain at their original height

or only one is”

46. I cite this passage, not to turn Mr Kenny’s own words against him or to treat them as an admission, but rather because it

consititutes an excellent explanation of the scope for resolution of a design difficulty.

47. Regrettably, it represents a rare example of balance and commonsense. I will give but one example of the type of trivial

detail into which Mr Kenny would have the Court enter. As part of his complaint regarding Condition No. 2, he says that the

changes made to the roof details related to an increase in the pitch of the roof with “the effect that the height of the building

has not been reduced by one storey as required.” Trinity has replied to this in some detail. It says that the pitch of each roof

is as indicated in the October 1999 section drawings. There was an error in the elevational drawings. An addendum to the

compliance submission corrected the error. It also explains a minor change in roof pitch because a “steeper roof-pitch in set

back areas ensures that eaves and ridge heights are consistent across building elevations.” The change prevents an unsightly

flat fascia at the Dartry Road elevation. It does not affect the height of the building.

48. I do not believe that the judicial review procedure is intended to lead the courts into such intricate matters of design

detail or scrutiny of the planning and development process.

49. Mr Kenny submits that the problem encountered by Trinity in complying with the literal interpretation of the condition

could be solved only by means of a new planning application. Such an approach is extreme. It is unrealistic and pointless.

There has been no suggestion that it was ever the intention to change the profile of the building, which was the only thing

that would have been achieved by the order sought by Mr Kenny.

Boilers and boiler rooms in the roof spaces

50. The essence of this complaint is that boiler facilities and other plant have been placed in the roof spaces of buildings 2

and 3 and that Mr Kenny maintains that the 1999 plans did not provide for any use to be made of these spaces.

51. Trinity states, however, that the architects’ report submitted with the application in April 1999 had stated that “ancillary

top-storey areas such as plant rooms, water stores and lift over-runs are designed to be discrete [sic, should be ‘discreet’]

and invisible from any point on the ground.” Moreover, details of floor calculations were given in the October 1999 data.

Thus it was clear that a number of plant rooms were to be located in the roof space, though originally intended for water

storage, booster pumps and lift machinery. Thus the original submission of 1999 referred to plant to be located in roof-space

plantrooms.

52. The 1999 plans did not indicate the location of the boiler rooms. The location, as distinct from the existence, of the

boiler installations was not addressed in the 1999 plans. The October 1999 Plans did not indicate boiler room locations.

However, the submission stated that the original planning application was being retained unless inconsistent with the revised

submission. Therefore, the roof space plant rooms were retained by the October 1999 submission. It was a central

contention in Mr Kenny’s challenge to the validity of the planning permission that there was no planning permission for

boiler rooms.

53. The circumstances as they progressed were described as follows in the compliance submission:

“Further to the leave application hearing, the progression of the project demonstrated that the plant areas in

the roof space would be adequate to house boiler rooms and water storage facilities and that support plant

rooms would not be required and the few locations indicated previously on the plans. These scattered

supplementary plant rooms are therefore removed from the plans.

As supplementary information to the Compliance documents, the submission includes for plant room layouts

showing the under-roof areas at the upper floors. These areas will be as outlined in the planning report extract

above: i.e. discrete [sic] and not visible from the ground. These plans were not included in the original

October 1999 documents. Although it is not regular practice to include roofspace plans, their omission caused

considerable confusion and their inclusion was considered appropriate in the interests of clarity

Solution/Response:

Plant is adequately housed therefore at the over-staircore areas under the roof an specifically on the courtyard

side of the buildings in order to ensure that their volumes will not be apparent from street level. The plant

areas are clad in zinc to match the roof finish and in no case break the ridge line of the roof.”

54. Trinity submits that that the installation of the boilers is in compliance with the permission. Following the oral hearing, it

was intended that a boiler would be located in each house of each building. In addition, it was determined to use boilers of a

more domestic scale which were free-standing and not affixed to the buildings. As roof space had become available,

(because, inter alia of the adoption of lifts without machine-rooms) it was determined to locate boilers at that level. This

had no impact on the roof pitch and profile. Owing to design innovations, the boilers are now located in plant rooms at roof

space level. Planning permission was granted for the said plant rooms. Accordingly, the fact that a different element of plant,

namely, free standing domestic type boilers are located therein, cannot affect the validity of the permission.

55. In my view Mr Kenny’s complaint is without merit. It was explicitly envisaged in the original planning application that a

number of plant rooms would be located in the roofspace. The installation of the boiler equipment in the plant room in the

roof space does not require planning permission. The notion of “plant” is wide enough to include boilers, such as the

decentralised and relatively small boilers which have been installed. The location of the boilers has no impact on the roof

pitch or profile.

56. The matter of the precise location of the boilers within the development is an eminently suitable matter for agreement

pursuant to the procedure envisaged by Condition No. 8.

57. Moreover, this very issue was the subject of a ruling by McKechnie J in the different legal context of Mr Kenny’s

application for judicial review of the planning permission (Kenny v An Bórd Pleanála [2001] 1 I.R. 565.) The learned judge

expressed himself at some length on the topic. He recalled the planning process and the fact that the isssue of location of

boilers had been discussed at the oral hearing. The following is a brief extract:

“Whilst I am satisfied that all of these matters were adequately dealt with at the oral hearing and that many

are also suitable to be dealt with by agreement with the local authority, in addition could I say that I would set

my face totally against such a microscopic examination by this court of such matters of details.”

58. That reasoning is at least equally applicable to the present appeal concerning judicial review of the compliance order. I

treated the issue of the location of boilers at some length in my judgment in Kenny v The Provost, Fellows and Scholars of

the University of Dublin, Trinity College, cited above in the somewhat different context of Mr Kenny’s claim that Trinity

had fraudulently concealed their intentions regarding the issue from McKechnie J. I cited the same passage from the

judgment of McKechnie J.

59. In my view, the complaint is without substance or merit.

Permitting an increase in the number of bed spaces

60. Mr Kenny’s complaint is that the number of bed spaces in building no.2 was increased from 308 to 324. In the affidavit

he swore to ground his application for judicial review, Mr Kenny said:

“The decision to relocate all plant to the roof spaces is linked to another significant departure from the 1999

plans, an increase in the bed spaces in building no. 2. This increase is addressed in the addendum to the

Compliance Submission where it is argued by the architects that, although the 1999 plans indicated that building

no. 2 would contain 300 bed spaces, this was a miscalculation and that the building would actually have

contained 308 bed spaces. However, even if the architects are correct in that regard and I do not accept that the

revised calculation is correct, the Compliance Submission indicated that building no. 2 would contain a revised

total of 324 bed spaces. In relation to the increase of 16 bed spaces, it was explained that 6 arose from

correctional actions to rectify design discrepancies and 10 from assigning an extra bedspace to an oversized room

to achieve a desired bedroom mix.”

61. The complaint does not relate to any aspect of the design or construction of the buildings or of building no. 2 in

particular, but to the internal allocation of the use of space. Mr Kenny says that it constitutes a breach of Condition No. 1.

On closer analysis, the following emerges.

62. According to both the public notice for the October 1999 proposal and the application then made, the development

would incorporate:

“3 no student buildings to contain 832 no bedrooms arranged in 180 no apartments over 3 to 7 storeys.”

63. The scheme project total in all public notices refers to the overall total for the combined development and not to

individual totals for individual buildings. The decision of An Bórd Pleanála to grant permission also refers only to the total

number of bedrooms.

64. An appendix to the architects’ original submission showed building 2 with a total of 300 bed spaces in 60 apartments.

The compliance documents of August 2001 changed this to 324 bed spaces in 62 apartments. The removal of one floor

from building 3 resulted in a reduction from 377 to 346 in that building. As explained in the preceding section, there were

changes in the disposition of plant and boilers. This resulted in space becoming available for use as bedrooms. There were

some alterations of internal layout.

65. There was no increase in the total number of bed spaces in the development.

66. Condition No. 8, in the interest of orderly development, required the submission of revised drawings of the proposed

development, with floor plans and elevations corresponding in detail, all to be agreed by the Council prior to the

commencement of development. It is perfectly obvious to me that these minor adjustments to the number and location of

bed spaces are matters of detail and are most appropriate to agreement in accordance with that procedure. They followed on

from other natural, normal and reasonable alterations in the plans. Mr Kenny has not identified anything in the nature of a

planning consideration, any departure from the overall development objective or, in short, anything worthy of serious

consideration under this head of complaint. This complaint is also without merit.

Laying of services and utilities within ten metres of the bole of trees

67. Condition No. 9 is quoted above. It is directed to the preservation of trees on the development site. Mr Kenny made two

complaints in his application for leave, namely:

1. that Trinity had not complied with the requirement that services and utilities were not to be laid within 10 metres of the

bole of any of the trees to be retained;

2. that Trinity had not observed the requirement that all trees being retained were to be protected during the development by

a timber post and rail fence which shall enclose the crown spread of the trees.

68. Mr. Kenny does not specify, in his grounding affidavit, how he alleges that the second of these requirements was

breached. It now seems irrelevant. The development has long since been completed.

69. The planning application involved “the retention of existing trees and the western arboretum and site perimeter and is

accompanied by a comprehensive management plan for the treatment of existing and proposed trees.”

70. The real focus is on the first requirement. Mr Kenny complains that Trinity persuaded the Council to permit non-

observance of the condition in the case of some trees. Trinity made submissions to the Council along the lines that it was:

“neither useful, realistic nor practical in the interests of the development or of the trees on the site. A number of trees on the

site will necessarily require more than the stipulated 10m tree protection zones. Others will never attain such a requirement

throughout their lifespan…”

71. It went on to suggest:

“Having examined this condition as potentially overly onerous in some cases under its current wording a professional and

respected arborist was commissioned to assess each individual tree that the development appears to place in jeopardy and to

advise on the potential impacts of the development and how best to adequately protect these specimens.”

72. It is clear that strict and literal compliance with the condition presented problems. It is equally clear that Trinity, with the

agreement of the Council, has breached the condition to some extent.

73. The Council points out, however, that:

· some of the buildings, whose construction is permitted by the planning permission, are closer than 10 metres to the bole of

a tree;

· there were some pre-existing services and utilities within 10 metres of the bole of a tree.

74. Trinity retained the services of a highly qualified arborist, Mr Joseph McConville, who has sworn a number of affidavits

dealing with Mr Kenny’s complaints in great detail. The evidence shows that the 10-metre condition has been breached to a

lesser or greater degree in the case of 16 out of 275 trees on the site. In many cases, the distance is still 7 or 8 metres,

though in the case of two trees the distance will be 5 metres. Mr McConville has gone to great pains to demonstrate the

extent of care taken to protect all trees, including those which will be within the 10-metre zone. The Council agreed the

adjustment on that basis.

75. Mr McConville explains, for example, that services were laid as close as possible to buildings and that it would have

been impossible to provide services without encroaching on the 10-metre distance.

76. It is clear, therefore, that, in a literal sense, there has been non-compliance with part of Condition No. 9, though to a

very minor extent.

77. Mr Kenny, in written submissions, acknowledges the alternative means of tree protection proposed by Trinity, but

insists that alleged difficulties in complying with the condition do not justify a departure from the clear and unambiguous

terms of the condition and that, consequently, the Council acted ultra vires in approving the plans.

78. What is involved here is a case of non-compliance with the literal terms of a condition, though to a minor if not trifling

degree. The problem goes back to the terms of the permission itself. It is a mistake to take it out of context. This was a very

large and complex development. Literal compliance with the 10-metre part of Condition No. 9 was not feasible if the

development was to be carried out as approved.

79. Mr Kenny has been able to demonstrate a very minor, not to say trivial, discrepancy between the compliance

submissions of Trinity in respect of the 10-metre condition and the terms of Condition No. 9 as strictly and literally

interpreted. The approval of this aspect of the submissions forms a very small part of the entirety of the Council’s decision.

To accede to Mr Kenny’s application would require the Court to quash the decision in its entirety. It has not been suggested

that this aspect of the decision is severable. Certiorari is a discretionary remedy. In my opinion, the Court should not grant

an order of certiorari in respect of the entire decision based on such an inconsequential discrepancy. Furthermore, Mr

Kenny retains the alternative of pursuing his application pursuant to section 160 of the Planning and Development Act,

2000. I express no view whatever on the merits of that application.

In addition, I will consider the issue of delay. The learned trial judge held that Mr Kenny’s application for judicial review

failed, in any event, by reason of his own lack of promptness in applying to the Court.

Delay

80. Order 84, rule 21(1) of the Rules of the Superior Courts requires that all applications for judicial review “be made

promptly” and in any event within three months from the date when the grounds for the application first arose, or six

months when the relief sought is certiorari. The Court has power to extend the time where it considers there is “good

reason” for doing so.

81. The decision of the Council was made on 4th January 2002. The application for leave to apply for judicial review was

made on 3th July 2002. The leave order was made on 4th July. The application was thus, to the extent of one day, made

within the permitted period of six months. Mr Kenny’s application can be rejected on delay grounds only if he failed to

apply promptly. I addressed the issue of the need to move promptly in two cases, which have been cited to the Court in

argument.

82. In Dekra Éireann Teoranta v Minister for the Environment and Local Government [2003] 2 IR 270 at page 302 I dealt

with an application in the special context of judicial review of public-procurement decisions, where Order 84A, rule 4 of the

Rules applies. That rule substitutes the expression “at the earliest opportunity” for the term “promptly,” which applies in the

present case. I said:

“The nature and extent of the burden to show “good reason” calls for some further remarks. The time to be

explained by the applicant may commence to run within the period. This flows from the need to move at “the

earliest opportunity”. Nonetheless, a claim cannot normally be defeated for delay if it is commenced within

the relevant period. There would need to be some special factor such as prejudice to third parties (The State

(Cussen) v Brennan [1981] IR 181). Thus, different levels of importance may be attached to time falling within

and without the period. The fact of delay within the period may affect the approach of the court to time falling

without. The court must always have regard to the circumstances of the particular case and to the fact that the

power to extend the time is there in the interest of permitting the courts to do justice between the parties.”

83. In my judgment in O’Brien v Moriarty [2005] 2 ILRM 321 at 335, while observing on the somewhat stricter approach

to compliance with time limits adopted by the courts in recent years, I said:

“Nonetheless, matters have not reached the stage where an application within time can be defeated in the absence of some

special factor.”

84. I then proceeded as follows:

“The prejudice to a third party, in the case of State (Cussen) v Brennan was singular. The prosecutor, by his

delay, had allowed the successful candidate for the post he had applied for to act on foot of his appointment

by, for example, giving notice of termination of his existing employment and instructing solicitors in the

purchase of a new house. That case remains, nonetheless, a solitary example. I remain of the view I expressed

in the Dekra case, namely that an applicant for leave to apply for judicial review will not normally be defeated

for failure to move “promptly” where the application is made within the permitted time. The burden would be

on the respondent to establish the contrary.”

85. It is necessary, therefore, to consider whether Mr Kenny’s application should, as was held by the learned trial judge, be

defeated on the ground of his lack of promptness in making his application.

86. As always, context is everything, but, in the context of a large development such as that on which Trinity was embarking

the failure to apply until the eleventh hour, the second last day of the six-month period, cannot fail to attract attention.

87. There was already a significant history to this planning dispute. Mr Kenny had opposed the application throughout the

planning process with determination and tenacity. He applied for judicial review of the decision of An Bórd Pleanála dated

4th August 2000. In order to do so, he had had to comply with the strict time limit laid down by section 82 (3A) of the

Local Government (Planning and Development) Act 1963 as amended as amended by insertion by s. 19(3) of the Local

Government (Planning and Development) Act, 1992. He had suffered the rejection of that application by McKechnie J in

the High Court on 15th December 2000.

88. He concerned himself intensively, not to say obsessively, with the minutiae of the development. He made phone calls to

and visited the planning offices of the Council. On one of his visits in September 2001, he learned of the first compliance

submission made by Murray O’Laoire. He was so concerned about it that he wrote to the Council on October and

November 2001.

89. There is a great deal of material in the affidavits and the exhibits which shows how active and aware Mr Kenny was as

to what was happening on site. Of course, he lives immediately opposite.

90. From Mr Kenny’s grounding affidavit, it is clear that, on 4th January 2002, he was “concerned as to the increased

activity on the site;” he observed that “work commenced in or about 7th January 2002.”

91. On 10th January 2002 he said:

“I obtained a copy of the compliance letter. I was shocked that the [Council] would issue a compliance letter on

the basis of the revised plans and details submitted by the developer’s architects which clearly, in my view did

not comply with the conditions of the permission.”

93. On 14th January, he wrote to the Senior Planning Enforcement Officer “drawing attention to the non-compliance with

those conditions.” He said: “If the development work currently being undertaken is not halted pending the outcome of the

judicial review leave application, the financial consequences may be very serious for those who continue with such work.”

He sent a covering letter of the same date to the architects for Trinity enclosing copies of his letters to the Council. That

appears to be the only form of contact he ever made with Trinity. His affidavit proceeds, most materially, on the delay

issue:

“In my letter of 14th January 2002………………I expressed my view forcefully that conditions 2, 8 and 9 of the

permission had not been complied with and signalled my intention to apply for judicial review of the decision of

the Council.”

94. This correspondence demonstrates that Mr Kenny was fully aware that the Council, by its decision of 4th January 2002

had approved the compliance submissions provided by Trinity, that the terms of the decision were inconsistent with his own

views of the proper interpretation of the planning permission and that Trinity was proceeding with the development.

95. He made no attempt to contact Trinity or their architects, other than by copying the latter with his letter of 14th January.

He threatened judicial review, but did not follow through with his threat. Thereafter, he bombarded the Council with letters

and phone calls. On 22nd January 2002, he sent a 24-page memorandum to Mr S. Carey, the Assistant Manager-Planning

and Development. He received no comfort that the Council would accept his submissions. The Council stood over its

decision.

96. Mr Kenny’s excuse is that, having applied unsuccessfully for judicial review, he was “extremely reluctant to bring

another application.” He sought instead to exhaust every avenue to avoid having to do so. At the same time, he thought the

Council had not treated his complaints and enquiries seriously.

97. In the result, according to the architect for Trinity, by 4th July 2002, building no. 2 was 15% structurally complete and

building no. 3 was 55% structurally complete. More particularly, the first floor of the western arm of building no. 3, which

was the subject of Condition No. 2 was 100% structurally complete.

98. This is a particularly clear case of failure to apply promptly for judicial review. Knowing that the developer was acting

contrary to his own views of the interpretation of the planning conditions, he allowed the matter to proceed. In full

knowledge that “the financial consequences [might] be very serious…,” he threatened judicial review but failed to follow

through. He allowed matters to proceed to such a stage that they were irreversible. He has offered no plausible excuse other

than his own reluctance to commence a fresh proceeding.

99. My primary view is that, apart from some doubt regarding the distance between a very small number of trees, and the

bole of the nearest tree, Mr Kenny has failed to show any respect in which the Council’s decision is not within the scope of

the authority given to it by An Bórd Pleanála. The application is, therefore, without merit. In the unlikely event that the

extent of non-compliance with Condition No. 9 could be considered of such significance as to justify quashing the decision,

the application would fail on the ground of delay.

100. I would, for these reasons, dismiss the appeal and affirm the order of the High Court.