The High Court dismissed James Kenny’s latest proceedings seeking to set aside an earlier refusal of leave to challenge planning permission for Trinity Hall in Dartry, finding that the alleged fraud could not undermine the earlier judgment because it concerned matters that were not before that judge.
Kenny alleged that four photomontages submitted with Trinity College’s Environmental Impact Statement had been manipulated to disguise the height of buildings. Trinity denied the allegation. Justice Frank Clarke said he was not deciding whether the photomontages had been manipulated. Even if Kenny’s allegation were established, the images were not material to the specific grounds considered by Justice McKechnie, who refused leave for a judicial review in December 2000.
Those grounds concerned a planning condition, details of a proposed boiler house, the adequacy of the environmental statement in relation to the boiler house, and whether a gate lodge was a protected structure. Clarke said the photomontage claim would amount to a new challenge to the planning permission, rather than a basis to set aside the earlier judgment. He dismissed the proceedings as bound to fail.
The case was the third attempt to set aside McKechnie’s decision. Trinity College had applied to strike out the proceedings and sought an Isaac Wunder order restricting further litigation. An Bord Pleanála also sought the restriction. Clarke granted the order against further proceedings against Trinity and the board without the court’s leave.
The restriction does not stop appeals already before the courts from proceeding. Clarke also said Kenny could seek leave to bring a new judicial review on the alleged fraud grounds, subject to persuading a court to extend the time limit. He noted the decision being challenged was more than six years old and said such an application would face an uphill struggle. The order did not require Trinity to take steps in response to new proceedings unless and until the court allowed them to proceed.
Clarke awarded Trinity and An Bord Pleanála their costs of the application. He refused a general stay of the order but stayed the costs order if Kenny appealed within 21 days. He clarified that the proceedings before him had ended and that costs in other proceedings could continue where no stay applied.