Construction Industry Federation dismissed for lack of locus standi to challenge Dublin City Council's Development Contribution Scheme.

THE SUPREME COURT

223/2004

Murray CJ

Fennelly J

McCracken J

Between:

Construction Industry Federation

Applicant/Appellant

AND

Dublin City Council

Respondent/Respondent

Judgment of Mr Justice McCracken delivered the 18th day of March 2005

1. This was an application by way of judicial review by the Appellant for an order of certiorari quashing a decision made by the

Respondent on 1st December 2003 to make a Development Contribution Scheme pursuant to s.48 of the Planning and Development

Act 2000, and for certain consequential declaratory and other relief. The relief sought was refused by the High Court (Gilligan J) on its

merits, but an issue was also raised before the High Court as to the locus standi of the Appellant, which issue was determined by the

learned trial Judge in favour of the Appellant. Although no cross-appeal or application to vary has been made by the Respondent, this

Court ruled at the commencement of the hearing of this appeal that the Respondent was entitled to argue the question of locus

standi, on the authority of the decision in AA v. Medical Council [2003] 4 IR 302, without the necessity for such notice of cross

appeal or application to vary. The Court further ruled that the issue of locus standi should be argued as a preliminary issue.

Accordingly, this Court is not concerned at this stage with the judgment of the learned High Court Judge on the substantive issue, or

with the merits of the application save in so far as it may affect locus standi. Nevertheless, it is necessary to consider briefly the

nature of the order sought.

2. Section 48(1) of the Planning and Development Act 2000 provides:-

“A planning authority may, when granting a permission under section 34, include conditions for requiring the payment of a

contribution in respect of public infrastructure and facilities benefiting development in the area of the planning authority and

that is provided, or that it is intended will be provided, by or on behalf of a local authority (regardless of other sources of

funding for the infrastructure and facilities).”

3. Subsequent subsections of s.48, and certain provisions of s.49, contain more detailed provisions in relation to such schemes, and

also provide for a supplementary development contribution scheme, but these provisions are not relevant to the issue now before the

Court.

4. Prior to the 2000 Act, a local authority could impose conditions requiring financial contributions to a grant of planning permission

under s.26 (2) of the Local Government (Planning and Development) Act 1963, but these contributions had to relate to the specific

planning application before the planning authority. Under s.48 the planning authority may draw up a contribution scheme based on its

overall requirements within its functional area, or within specific parts of its functional area, and may then require payment of equally

calculated contributions from all applicants for planning permission either generally or in respect of a certain class of development.

The order sought in these proceedings related to a specific decision of the Respondent of 1st December 2003 to make a development

contribution scheme pursuant to s.48.

5. In the statement of grounds, the Appellant is described as “an unincorporated trade association representing the interests of

parties involved in the construction business”. Its membership includes most of the major construction firms and property developers

in the State and it is a long-standing and respected spokesperson for the construction industry. However, it is not a corporate body,

and it does not itself engage in any development or construction projects.

6. Order 84 of the Rules of the Superior Courts contains the rules of procedure in relation to judicial review applications. Rule 20 (4) of

that order provides:-

“The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the

application relates.”

7. The question of locus standi was considered in depth in Cahill v. Sutton [1980] IR 269 in relation to a purported constitutional

challenge to a section of the Statute of Limitations. While this is not a constitutional case, and the test applied was slightly different

from that set out in Order 84, nevertheless the principles seem to me to be very relevant to judicial review proceedings, and have

been considered in such proceedings in a number of cases.

8. There is a general principle set out in a judgment of Henchy J in Cahill v. Sutton at page 283 as follows:-

“While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to bring

proceedings to have a particular statutory provision declared unconstitutional, there are contravening considerations which

make such an approach generally undesirable and not in the public interest. To allow one litigant to present and argue what is

essentially another person’s case would not be conducive to the administration of justice as a general rule. Without concrete

personal circumstances pointing to a wrong suffered or threatened, the case tends to lack the force and urgency of reality.

There is also the risk that the person whose case is being put forward unsuccessfully by another may be left with the

grievance that his claim was wrongly or inadequately presented.”

9. While this is expressed as a general principle, it is clearly not intended to amount to an absolute rule. This is made quite clear

subsequently in the judgment by Henchy J at page 285 where he says:-

“This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception or qualification

when the justice of the case so requires. Since the paramount consideration in the exercise of the jurisdiction of the courts to

review legislation in the light of the Constitution is to ensure that persons entitled to the benefit of a constitutional right will

not be prejudiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the

part of the person questioning the constitutionality of the statute may be overlooked if, in the circumstances of the case,

there is a transcendent need to assert against the statute the constitutional provision that has been invoked. For example,

while the challenger may lack the personal standing normally required, those prejudicially affected by the impugned statute

may not be in a position to assert adequately, or in time, their constitutional rights. In such a case the court might decide to

ignore the want of normal personal standing on the part of the litigant before it. Likewise, the absence of a prejudice or injury

peculiar to the challenger might be overlooked, in the discretion of the court, if the impugned provision is directed at or

operable against a grouping which includes the challenger, or with whom the challenger may be said to have a common

interest – particularly in cases where, because of the nature of the subject matter, it is difficult to segregate those affected

from those not affected by the challenged provision.

However, those examples of possible exceptions to the rule should not be taken as indicating where the limits of the rule are

to be drawn. It is undesirable to go further than to say that the stated rule of personal standing may be waived or relaxed if,

in the particular circumstances of a case, the court finds that there are weighty contravening considerations justifying a

departure from the rule.”

10. The matter was considered more recently in Lanceford Ltd v. An Bord Pleanala (No 2) [1999] 2 IR 270. That case expressly

approved the application of the principles of Cahill v. Sutton to questions of locus standi in judicial review applications. It further

accepted that there may be circumstances in which an applicant who has no financial interest in bringing the application may

nevertheless have the locus standi to do so.

11. The position was explained clearly in the judgment of Keane CJ in the recent decision of Mulcreevy v. Minister for Environment

Heritage and Local Government & Anor [2004] 1 ILRM 419. That case concerned a challenge to the planned route of the south-

eastern motorway through the remains of Carrickmines Castle, where it was accepted that the applicant had no private interest in the

proceedings. He said at page 426:-

“While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he brought them for

any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the

local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.

It has been made clear in decisions of the High Court and this Court in recent times that it is not in the public interest that

decisions by statutory bodies which are of at least questionable validity should wholly escape scrutiny because the person who

seeks to invoke the jurisdiction of the Court by way of judicial review cannot show that he is personally effected, in some

sense peculiar to him, by the decision. It is in that sense, I think, that the requirement in order 84 rule 20 (4) of the Rules of

the Superior Courts 1896 should be read. It provides:-

“The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the

application relates.”

It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should

escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and

vexatious challenges are not entertained.”

12. Several English cases have also been cited to the Court. By far the most influential of these is the House of Lords decision in

Inland Revenue Commissioners v. National Federation of Self Employed and Small Businesses Ltd [1981] 2 All ER 93. In that case, the

applicants sought a review of certain special arrangements made by the Revenue with employers and employees who had been

operating what might be seen as a tax evasion scheme. The applicant was a federation of self employed persons and small

businessmen claiming to represent a body of tax payers. The ratio of that case is well expressed in the head note at page 94 where it

reads:-

“Whether an applicant for mandamus has a sufficient interest in the matter to which the application related, for the purposes

of order 53 rule 3 (5) depended on whether the definition (statutory or otherwise) of the duty alleged to have been breached

or not performed expressly or impliedly gave the applicant the right to complain of the breach or non performance. Since the

tax legislation, far from expressly or impliedly conferring on a tax payer the right to make proposals about another’s tax or to

inquire about such tax, in fact indicated the reverse by reason of the total confidentiality of assessments and negotiations

between individuals and the Revenue, and since on the evidence the Revenue in making the impugned arrangement were

generally acting in the care and management of taxes under the powers entrusted to them, the application by the applicant

would be dismissed because the applicant did not have a sufficient interest for the purposes of rule 3(5)…”

13. I have no doubt but that there are circumstance in which it may be permissible, and even desirable, that a representative body

such as the Appellant may be entitled to bring judicial review proceedings. A classic example of such a situation is probably R v.

Inspectorate of Pollution & Anor Ex Parte Greenpeace Ltd (No 2) [1994] 4 All ER 329, where Greenpeace was held to have a sufficient

interest to challenge certain authorisations given to British Nuclear Fuels Limited. However, in such circumstances there are usually if

not invariably good practical reasons why, in the discretion of the Court, the applicant ought to be allowed to make the application.

There undoubtedly are cases where administrative errors would go unchallenged if an application was refused on the grounds of locus

standi. Clearly consideration of this question must depend largely on the circumstances of the individual case.

14. In the present case, the Appellant claims to have a sufficient interest on the basis that the proposed scheme affects all or almost

all of its members in the functional area of the Respondent, and therefore the Appellant has a common interest with its members.

However, it appears to me that to allow the Appellant to argue this point without relating it to any particular application and without

showing any damage to the Appellant itself, means that the Court is being asked to deal with a hypothetical situation, which is

always undesirable. This is a challenge which could be brought by any of the members of the Appellant who are affected, and would

then be related to the particular circumstances of that member. The members themselves are, in many cases, very large and

financially substantial companies, which are unlikely to be deterred by the financial consequences of mounting a challenge such as

this. Unlike many of the cases in which parties with no personal or direct interest have been granted locus standi there is no evidence

before the Court that, in the absence of the purported challenge by the Appellant, there would have been no other challenger. Indeed

the evidence appears to be to the contrary.

15. While there is no suggestion that the Appellant in the present case is in any way acting vexatiously or irresponsibly in seeking this

relief, nevertheless I can see no justification for departing from the normal rule which requires that an applicant for judicial review

must have a “sufficient interest” in the outcome of the application, and I cannot see any justifiable basis upon which it can be said

that the Appellant has any interest other than that of its individual members. In the circumstances of this case where there is no

reason why one or more of such individual members should not have made this application I would refuse to allow this application and

dismiss this appeal on the basis that the Appellant does not have locus standi.