Morris v Ireland & Ors (Approved)

Factual and Procedural Background

The Plaintiff, a resident of The City, brought judicial review proceedings challenging two planning permissions granted in March and April 2020 by the fifth Defendant, An Bord Pleanála, to the seventh and eighth Defendants for strategic housing developments on two sites in The City area. The Plaintiff was successful in quashing the March 2020 decision (the "Balscadden Road permission") but did not appeal the decision. The April 2020 decision (the "Techrete site permission") was upheld by the court, and the Plaintiff did not seek leave to appeal.

Subsequently, the Plaintiff initiated plenary proceedings seeking, among other reliefs, declarations that the Planning and Development (Housing) and Residential Tenancies Act 2016 ("the 2016 Act") is unconstitutional, that his rights and those of the sixth Defendant, Fingal County Council, were infringed by the 2016 Act, and orders quashing the two planning permissions with a remit for rehearing. The Plaintiff also sought injunctions to stay building works pursuant to these permissions.

The Defendants filed motions to strike out the proceedings on grounds that they were bound to fail, frivolous, vexatious, and an abuse of process, primarily because the Plaintiff was impermissibly attempting to re-litigate matters already decided in previous judicial review proceedings and because statutory provisions restrict challenges to certain decisions to judicial review within strict time limits.

The Plaintiff argued that he had the right to bring a constitutional challenge to the 2016 Act by plenary proceedings after exhausting other remedies and that it was inappropriate to raise constitutional issues in judicial review proceedings challenging planning permissions. He maintained his right of access to the courts to have the constitutional issue determined.

Legal Issues Presented

1. Whether the Plaintiff's plenary proceedings challenging the constitutionality of the 2016 Act and seeking to impugn planning permissions granted under that Act constitute an abuse of the court's process and are bound to fail.
2. Whether the Plaintiff is precluded from challenging the planning permissions outside of judicial review proceedings brought within statutory time limits under s.50 of the Planning and Development Act 2000 (as amended).
3. Whether the rule in Henderson v. Henderson prevents the Plaintiff from raising constitutional challenges in separate plenary proceedings after earlier judicial review proceedings concerning the same subject matter.
4. Whether the Plaintiff has locus standi to bring a constitutional challenge to the 2016 Act independent of the planning permissions.
5. The proper procedural route for raising constitutional challenges to legislation in the context of judicial review and plenary proceedings.

Arguments of the Parties

Defendants' Arguments

• The proceedings are bound to fail as the Plaintiff is impermissibly seeking to re-litigate decisions already determined by the High Court in judicial review proceedings.
• Section 50 of the Planning and Development Act 2000 mandates that challenges to planning decisions must be brought by judicial review within eight weeks, and the Plaintiff has already exercised that remedy.
• The proceedings constitute an abuse of process and collateral attack on prior decisions, which have either been quashed or upheld and are now final.
• The Plaintiff could and should have raised any constitutional challenge in the earlier judicial review proceedings, and failure to do so bars raising it now under the rule in Henderson v. Henderson.
• Absent a viable challenge to the planning permissions, the Plaintiff lacks locus standi to challenge the constitutional validity of the 2016 Act.
• The 2016 Act enjoys a presumption of constitutionality, and the Plaintiff's challenge discloses no reasonable cause of action and is frivolous and vexatious.

Plaintiff's Arguments

• The Plaintiff intended to challenge the constitutionality of the 2016 Act and considered that the Act's provisions allowing developers to bypass local planning authorities infringe his constitutional right to a merits-based appeal.
• It is an established principle that constitutional issues should only be determined after other legal issues have been exhausted; having exhausted judicial review remedies, plenary proceedings are appropriate.
• He was obliged to proceed by plenary summons to challenge the constitutionality because judicial review is not the proper avenue for standalone constitutional challenges.
• The Plaintiff asserted a constitutional right of access to the courts to have his constitutional challenge heard and that there is no lawful basis to deprive him of this right.
• The Plaintiff denied mounting a collateral attack on the planning permissions and argued that stopping the building project based on constitutional grounds is a proper next step in the litigation process.
• The Plaintiff relied on prior judicial decisions indicating that constitutional challenges should be brought by plenary proceedings and that raising constitutional issues in judicial review may be inappropriate or premature.
• He maintained that the lack of joinder of the State defendants in earlier proceedings does not prevent his constitutional challenge now.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by affirming its jurisdiction to strike out proceedings under Order 19, rule 28 and its inherent jurisdiction where pleadings disclose no reasonable cause of action or are frivolous and vexatious. It noted that the Plaintiff's challenge to the Balscadden Road permission is moot as that permission was quashed and no appeal was sought, thus any attempt to revisit it is an abuse of process.

Regarding the Techrete site permission, the Court found the proceedings constitute a collateral attack on a decision already upheld by the High Court in judicial review proceedings. Section 50 of the Planning and Development Act 2000 imposes procedural exclusivity requiring challenges to such decisions to be made by judicial review within eight weeks, a deadline the Plaintiff did not meet for these proceedings.

The Court emphasized the importance of finality in planning decisions and the policy behind statutory time limits to protect developers and public interests from protracted litigation. It applied the substance-over-form approach to determine that the relief sought effectively challenges the validity of the Techrete site permission, which is impermissible outside the statutory regime.

The Court applied the rule in Henderson v. Henderson, holding that the Plaintiff was obliged to raise all grounds of challenge, including constitutional ones, in the original judicial review proceedings. The Plaintiff's deliberate choice not to include the constitutional challenge earlier bars him from raising it now, absent special circumstances which were not found.

The Court rejected the Plaintiff's argument that constitutional challenges cannot be raised in judicial review proceedings, citing the Nawaz case and recent Supreme Court authority confirming that constitutional issues can and should be raised where judicial review is the mandated procedure.

Finally, the Court held that if the impugned planning permissions are excluded, the Plaintiff lacks locus standi to challenge the constitutional validity of the 2016 Act, as Irish law does not recognize an actio popularis and requires a tangible adverse interest. The Plaintiff did not demonstrate such an interest independent of the planning permissions.

Holding and Implications

The Court STRUCK OUT the Plaintiff's proceedings against the first, second, fourth, fifth, seventh, and eighth Defendants on the grounds that the action is bound to fail, frivolous, vexatious, and an abuse of the court's process.

The direct effect of this decision is that the Plaintiff cannot pursue a constitutional challenge to the 2016 Act in these plenary proceedings after failing to raise it in timely judicial review proceedings. The ruling enforces the procedural exclusivity and finality principles under the Planning and Development Act 2000 and the rule in Henderson v. Henderson, thereby preventing multiplicity of litigation and protecting the interests of the Defendants and the public. No new precedent was established beyond the application of settled legal principles.