The High Court refused a judicial review challenge to South Dublin County Council’s decision to grant planning permission for a discount food store at Cherry Orchard Industrial Estate, finding that the applicant lacked a substantial interest in the case and had not shown good and sufficient reasons for failing to participate in the planning process.
Mr Justice Hanna found that the council’s 30 November 2004 decision was made while the 1998 South Dublin Development Plan remained in force. The replacement 2004–2010 plan took effect on 8 December, four weeks after it was adopted. The judge said the council had mistakenly disregarded the 1998 plan because the new plan was imminent. Given An Bord Pleanála’s earlier refusal of a substantially similar proposal, the later application should have engaged the statutory process for a material contravention of the plan.
The proceedings were brought by Luke Moriarty, who described himself as a shopkeeper and said in an affidavit that he owned and operated a supermarket in Palmerston. The judgment records that the business and premises were legally owned and operated by Ladgrove Stores Limited. Moriarty was a director and secretary of the company and held 99.4 per cent of its shares.
The judge held that the order granting leave to seek judicial review did not finally determine whether Moriarty had standing. At the full hearing, he found Moriarty was not the owner and could not rely on the company’s separate legal status as his own. He also found insufficient evidence that the proposed store would cause a particular loss or impact on Ladgrove’s business. The court was not persuaded that the proposed development was likely to affect that business or that a special interest had been demonstrated.
Because Moriarty was in no better position than a member of the public, the judge said he had not established good and sufficient reasons for failing to object during the planning process. The judgment records that the developer had complied with public notification requirements.
Although the judge found an error in the council’s treatment of the development plans, he said judicial review was not an appeal by way of rehearing and questioned whether the error would have changed the eventual position. He also noted that a later permission had been granted and affirmed on appeal, but that it was not part of the papers beyond a photocopy of the appeal decision and its authenticity had not been challenged.
Having found against Moriarty on standing and non-participation, the judge said there was no need to proceed to discretion. He added that, for completeness, he would in all probability have exercised discretion against the applicant. He refused the relief sought.