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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kenny -v- Trinity College [2011] IEHC 202 (15 April 2011) URL: http://www.bailii.org/ie/cases/IEHC/2011/H202.html Cite as: [2011] IEHC 202 |
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Judgment Title: Kenny -v- Trinity College Composition of Court: Judgment by: Feeney J. Status of Judgment: Approved | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Neutral Citation Number: [2011] IEHC 202 THE HIGH COURT 2002 72 MCA IN THE MATTER OF SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT, 2000 AND IN THE MATTER OF AN APPLICATION BY JAMES KENNY BETWEEN JAMES KENNY APPLICANT AND
THE PROVOST, FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND MICHAEL McNAMARA & COMPANY RESPONDENTS Judgment of Mr. Justice Feeney delivered on the 15th day of April, 2011. 1. The first named respondent (T.C.D.) has by notice of motion dated 6th November, 2009 sought an order pursuant to the inherent jurisdiction of the Court dismissing and/or striking out the proceedings as being moot, res judicata and/or bound to fail following the determination of the Supreme Court of proceedings titled James Kenny v. Dublin City Council, Respondent, and the Provost, Fellows and Scholars of the University of Dublin, Trinity College, Notice Party, bearing Record No. 2002/383 J.R. and/or as being frivolous and vexatious and an abuse of process. The proceedings before the Court were commenced by James Kenny on the 17th July, 2002 wherein relief is sought pursuant to s. 160 of the Planning and Development Act, 2000 (herein after referred to as the Act). Section 160 of the Act provides for injunctions in respect of unauthorised development. Under that section an application can be made to Court for orders in respect of unauthorised development. Section 160(1) of the Act provides that an application may be made by a planning authority or any other person whether or not the person has an interest in the land. Mr. Kenny has sought to invoke the provisions of that section in respect of a development carried out by T.C.D. at Trinity Hall, Dartry Road, Rathmines. Proceedings under s. 160 are commenced by way of originating notice of motion and the procedure is a summary procedure. The scheme provided for under s. 160 makes no provision for the exchange of pleadings between the parties and the formal pleading is the originating notice of motion. Section 160 is a successor of s. 27 of the Local Government (Planning and Development) Act 1976. The nature and extent of s. 27 applications was considered by the Supreme Court in Mahon v. Butler [1997] 3 I.R. 369 and the Supreme Court in its judgment identified that the remedy under s. 27 (the precursor of s. 160) was a statutory injunction which was distinct from the general equitable jurisdiction of the High Court and that in making an order under that section, the Court could not exceed the jurisdiction conferred by that section. The Court identified the summary nature of the procedure and indicated that the procedure was not appropriate where the issues involved complex facts and law where judicial review proceedings were more appropriate. Denham J. in her judgment (at p 380) identified among the factors which would carry weight in the exercising of the Court’s discretion in considering a s. 27 application that one of the matters was
1.2 The background giving rise to these proceedings stems from a development that T.C.D. carried out at Trinity Hall, Dartry Road, Rathmines and from the planning permission obtained from An Bord Pleanála on 4th August, 2000 for that development. Conditions contained within that planning permission required that certain matters be agreed between the first named respondent (T.C.D.) and Dublin City Council prior to the commencement of the development. Mr. Kenny sought leave to judicially review the grant of planning permission and leave was refused by order of the High Court made on 15th December, 2000. The conditions attached to the planning permission which Mr. Kenny sought to have judicially reviewed provided that a number of items were to be agreed between Dublin City Council and T.C.D.. This resulted in T.C.D. making a compliance submission to Dublin City Council in August 2001 together with a further addendum thereto which was submitted on behalf of T.C.D. in October 2001. Dublin City Council issued a compliance order on 4th January, 2002. In July 2002 Mr. Kenny instituted two further Court proceedings. On the 3rd July, 2002 Mr. Kenny applied for judicial review in respect of the compliance order and on 17th July, 2002 these proceedings, that is the s. 160 proceedings under the Act, were instituted. Mr. Kenny obtained leave to seek judicial review of the compliance order on 3rd July, 2002. After these proceedings were instituted on 17th July, 2002 due to the fact that those proceedings and the 3rd July, 2002 proceedings both related to the compliance order of 4th January, 2002 they were listed together. This resulted in both proceedings coming on for hearing in March of 2004. In recognition of the fact that the outcome of the judicial review proceedings would have repercussions on the proceedings commenced under s. 160, the judicial review proceedings were dealt with first in the High Court hearing in March of 2004. Following the hearing, judgment was reserved. On the 19th of October, 2004, the High Court gave judgment refusing Mr. Kenny’s application for judicial review of the compliance order. That order was appealed by notice of appeal dated 5th January, 2005 and the appeal was heard by the Supreme Court in October 2008 and the judgment of the Court was delivered by the Supreme Court on 5th March, 2009 resulting in an order dismissing the appeal and affirming the order of the High Court. Central to T.C.D.’s claim in this application is that the issues the subject matter of these proceedings have been determined as a result of the judgment of the Supreme Court delivered on 5th March, 2009. These proceedings have been brought by way of originating notice of motion and by summary procedure where there has been no formal exchange of pleadings and where the nature of the claim and the response thereto are to be identified from the affidavits which have been filed by the parties. 1.3 Mr. Kenny has been involved over a number of years in various legal proceedings which have sought to have declared invalid the decision of An Bord Pleanála granting planning permission to T.C.D. for the development of student residences at Trinity Hall. That development has now long since been completed. As indicated above, Mr. Kenny applied for leave for judicial review of the decision of An Bord Pleanála and on 15th December, 2000 he was refused leave to judicially review the grant of permission. An application was made for a certificate to appeal the High Court’s decision and that application was refused. 2. The judgment of the High Court in the judicial review proceedings on 19th October, 2004 was appealed to the Supreme Court. Thereafter Mr. Kenny sought various reliefs in relation to discovery within the s. 160 proceedings and orders were made. On 3rd April, 2007 T.C.D. brought an application to stay the s. 160 proceedings pending the determination of the appeal in the judicial review proceedings which was pending before the Supreme Court. On 10th May, 2007 Mr. Kenny sought leave to deliver further affidavits within the s. 160 proceedings and/or to amend the s. 160 proceedings. Those two motions came before the High Court on a number of occasions and on 22nd October, 2007 the motions came on for hearing and were adjourned pending a decision from the Supreme Court in the appeal in the judicial review proceedings. As set out above on 5th March, 2009 the Supreme Court dismissed Mr. Kenny’s appeal in the judicial review proceedings. As a result of the judgment and order of the Supreme Court the compliance order issued by Dublin City Council on 4th January, 2002 stands confirmed and the application to quash that decision has been rejected. This Court therefore must proceed on the basis that the compliance order of 4th January, 2002 is a full and effective order. 2.1 It is the judgment of the Supreme Court in the judicial review proceedings which is at the heart of the application made by T.C.D.. T.C.D. seeks pursuant to the inherent jurisdiction of the Court to have these proceedings struck out as moot, res judicata and/or bound to fail following the decision of the Supreme Court. T.C.D. also bases its application on a claim that the proceedings are frivolous, vexatious and/or an abuse of process. 2.2 Mr. Kenny’s application for relief under s. 160 of the Act was grounded on an affidavit sworn by him on the 17th July, 2002. Between that date and 5th September, 2003 a number of affidavits were sworn by various deponents on behalf of Mr. Kenny, and on behalf of T.C.D. A consideration of those affidavits and the affidavit sworn by Mr. Kenny verifying the statement of grounds in the judicial review proceedings identifies that the issues of complaint raised by Mr. Kenny in those proceedings and the judicial review proceedings overlap to the extent that they are almost identical and indistinguishable. It was in recognition of such overlap that the s. 160 proceedings were adjourned by the High Court on 22nd October, 2007 pending the completion of the Supreme Court appeal in the judicial review proceedings. When the matter was adjourned by the High Court Mr. Kenny had sought leave to deliver further affidavits within the s. 160 proceedings and/or to amend his notice of motion therein. When this matter came back for hearing before the High Court in July of 2009, which was subsequent to the Supreme Court judgment in the judicial review proceedings, in an attempt to clarify the full extent and nature of outstanding matters, if any, in respect of which Mr. Kenny continued to make complaint in the s. 160 proceedings, the Court directed Mr. Kenny to identify the issues which he alleged remained in dispute. Mr Kenny failed to identify the matters he claimed to remain in issue and on 6th October, 2009 Mr. Kenny informed the Court that it was his contention that all matters identified by him in the various affidavits within the s. 160 proceedings remained in dispute. Mr. Kenny duly swore an affidavit on 2nd December, 2009 wherein he expressly disputed that any of the matters the subject matter of a s. 160 application had been substantially determined by the Supreme Court judgment. He further contended that the scope of the Court’s supervisory jurisdiction in judicial review being limited that any judgment in the judicial review proceedings could not be extended into these proceedings as the judicial review proceedings were, broadly speaking, restricted to reviewing the procedural legality and validity of an administrative body’s decision or action. Mr. Kenny went on, at para. 12 of his affidavit of 2nd December, 2009, to aver that there was only a partial overlap between the matters in issue in the judicial review proceedings and the s. 160 proceedings. Mr. Kenny went on to aver that the most relevant and accurate assessment method as to what was or was not decided by the Supreme Court was for him to specify those issues which are particular to the s. 160 proceedings. Mr. Kenny then swore further affidavits wherein he sought to identify the matters which he claimed remained in dispute, notwithstanding the Supreme Court judgment. He did so in affidavits sworn by him on 26th February, 2010 and on 10th May, 2010. In considering the application brought by the first named respondent the Court will have regard to those affidavits and to the matters identified by Mr. Kenny and claimed by him to remain in contention notwithstanding the judgment of the Supreme Court of 5th March, 2009. One of the matters identified by Mr. Kenny in his affidavits was an allegation of fraud. In High Court proceedings, Record No. 2008/1319P, Mr. Kenny brought an action against T.C.D. The issue of those proceedings required an application to be made to Court, as by a previous order of 30th March, 2006, Mr. Justice Clarke had made a so called “Isaac Wunder” order. That order restrained Mr. Kenny from issuing: “any further proceedings against the second named defendant (T.C.D.) herein without the prior leave of this Honourable Court save in respect of making an application for leave to seek judicial review seeking to challenge on new grounds the grant of the planning permission”. As a result of the “Isaac Wunder” order of 30th March, 2006, Mr. Justice Clarke considered an application by Mr. Kenny in January 2009 seeking an order permitting him to seek relief against T.C.D. By order of 28th January, 2009 the High Court refused Mr. Kenny permission to bring the proceedings contemplated against T.C.D. as set out in the documents which were before the Court. In considering this application this Court has regard not only to the judgment of the Supreme Court of 5th March, 2009 but also to the “Isaac Wunder” order of 30th March, 2006 and the judgment of the Court of that date and the order of Mr. Justice Clarke of the 28th January, 2009 refusing permission to Mr. Kenny to commence further proceedings against T.C.D. Mr. Kenny has identified as one of the remaining complaints a claim in relation to the vires of the compliance submission. It follows that this Court in considering this application and the issue of abuse of process must consider whether or not the matters which Mr. Kenny seeks to raise in relation to the vires of the compliance submission are matters which were or ought to have been litigated within the judicial review proceedings. The Court will return to this matter later in the judgment. 3. The following timeline identifies certain facts and dates relating to the issues in these proceedings and sets out the chronology of the s. 160 proceedings.
5. The jurisdiction of striking out proceedings pursuant to Order 19, rule 28 or pursuant to the Court’s inherent jurisdiction is a power which must be exercised sparingly and only when the Court is satisfied that there is a clear case to justify the exercise of such discretion (see Sun Fat Chan v. Osseous Ltd. [1992] 1 I.R. 425). As stated by Denham J. in Aer Rianta c.p.t. v. Ryanair Ltd. [2004] 1 IR 506 (at p. 509):
6. In considering the jurisdiction invoked in this case, and the pleadings and uncontested facts, the Court must address the following matters:
(b) whether the case made by the applicant is frivolous or vexatious and that such claim is without foundation and cannot possibly succeed; (c) whether the claim made by the applicant has as its purpose some ulterior or improper purpose; (d) whether the proceedings being pursued by the applicant are an abuse of process in that the applicant is seeking a relief from the Court relying on material evidence that was considered and determined at a previous court hearing or alternatively where such evidence was deliberately omitted from an earlier application for similar relief which was declined by the Court. In considering this matter the Court must address whether or not the party seeking the relief has established that the process of the Court is being abused by the applicant in making repeated attempts to re-open litigation or in pursuing litigation in an oppressive manner.
‘Every case depends upon its own facts. For this reason, the nature of the evidence which should be considered upon the hearing of an application to strike out a claim is not really capable of definition. One thing is clear, disputed oral evidence of fact cannot be relied upon by a defendant to succeed in such an application. Again, while documentary evidence may well be sufficient for a defendant's purpose, it may well not be if the proper construction of the documentary evidence is disputed. If the plaintiff's claim is based upon allegations of fact which will have to be established at an oral hearing, it is hard to see how such a claim can be treated as being an abuse of the process of the court. It can only be contested by oral evidence to show that the facts cannot possibly be true. This however would involve trial of that particular factual issue. Where the plaintiff's claim is based upon a document as in the present case then clearly the document should be before the court upon an application of this nature. If that document clearly does not establish the case being made by the plaintiff then a defendant may well succeed. On the other hand, if it does, it is hard to see how a defendant can dispute this prima facie construction of the document without calling evidence and having a trial of that question.’ Although the issue in that case seems to have been abuse of the process of the court the same principles would equally apply to an issue as to whether or not there was or was not a reasonable cause of action.” 8. The rationale behind the jurisdiction to strike out proceedings was identified in the judgment of McCracken J. in the Supreme Court in Fay v. Tegral Pipes Ltd. [2005] 2 IR 261 where he stated (at p. 266):
9. Part of the consideration includes the Court addressing the issue as to whether a litigant is seeking to make the same contention in legal proceedings which might have been, but was not, brought forward in previous litigation. In Carroll v. Ryan [2003] 1 IR 309, the Supreme Court considered an application made by the defendant to have part of the first plaintiff’s claim struck out as an abuse of process. The Supreme Court upheld the High Court’s decision striking out part of the first named plaintiff’s claim and in dealing with the issue as to the law to apply to such applications Hardiman J. held as follows (at p. 317):
‘… I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time.’”
‘… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.’” 11. Within the s. 160 proceedings, Mr. Kenny claims that T.C.D. is in breach of its permission. As a planning permission is a public document and is not personal to the parties to litigation and inures for the benefit of the land, it follows that when a court comes to interpret a planning permission it must do so objectively and as part of that process a planning permission must be given its ordinary meaning as would be understood by members of the public. In s. 160 applications the onus of proof rests with the applicant and it is for Mr. Kenny to identify the facts upon which he relies which supports his allegation of breach of planning permission by T.C.D.. At this stage, those facts do not have to be proved but they must be more than mere assertions. 12. In interpreting planning permissions the courts must adopt an objective interpretation and the planning permission is to be given its ordinary meaning. In carrying out that task the Court is assisted by the approach to this matter as identified in the judgment of Fennelly J. in Kenny v. Dublin City Council (Unreported, Supreme Court, 5th March, 2009) (at para. 18) where Fennelly J. set down what he identified as “some simple matters of common sense … concerning planning permissions”.
13. This Court will later analyse the various contentions raised by Mr. Kenny within the s. 160 proceedings both in the original grounding affidavits and in the later affidavits. Mr. Kenny has identified various issues which he claims remain between the parties. In some instances those matters were set forth in the grounding affidavit but in other cases Mr. Kenny seeks to expand the grounds relied upon and does so on the basis that he did not progress such matters because he had made a complaint to the Ombudsman. Mr. Kenny acknowledges in his replying affidavit sworn on 10th May, 2010 that Building 1 was not included in the judicial review proceedings which were only concerned with Building 3 as a unit and with one aspect of Building 2, namely, the increase in its bed space numbers. Mr. Kenny proffers as an explanation the reason for Building 1 not being included in the judicial review proceedings the fact that Building 1 was then the subject of a complaint by him to the Ombudsman against the Council’s failure to issue a warning to Trinity in respect of an unauthorised/unlawful development of Building 1. Mr. Kenny avers that due to the Ombudsman’s ongoing investigation in relation to his complaint concerning Building 1, his allegations in relation to that building were not included in his judicial review proceedings and that therefore never formed any part of his complaints which he made to the High Court or the Supreme Court. The explanation given by Mr. Kenny in relation to the failure to include Building 1 within the judicial review proceedings application is not soundly based. It is clear that notwithstanding the complaint which Mr. Kenny made to the Ombudsman that he instituted proceedings in respect of identified matters. It is also clear that Mr. Kenny raised with the Ombudsman matters which were in issue within the Court proceedings including a claim relating to the lack of appropriate planning permission for the location of the boilers and the roof of Building 3 which were alleged to have been built other than in accordance with planning permission. He also raised the issue of the erection of boilers and flues without planning permission. Mr. Kenny did not refrain from instituting proceedings in relation to those matters. There therefore does not appear to be any rational connection between the fact that Mr. Kenny was making a complaint to the Ombudsman and his willingness to include matters within judicial review proceedings. The Court therefore cannot accept as a reason for the absence of such complaints or the delay in making such complaints the fact that there was a complaint made to the Ombudsman. The fact of a complaint being made to the Ombudsman cannot and, in a number of instances, did not act as a restraint on Mr. Kenny. The Court does not accept Mr. Kenny’s purported explanation for failing to include Building 1 within the judicial review proceedings. The Court will return to this matter later in the judgment. 14. Mr. Kenny was granted the opportunity to put down on affidavit all matters which he claimed remained to be determined, in the s. 160 proceedings, in the light of the Supreme Court judgment. In an affidavit sworn by Mr. Kenny on 26th February, 2010, Mr. Kenny averred that the scope of the s. 160 proceedings was only partly affected by the findings of the Supreme Court and its judgment. Mr. Kenny contended that a number of matters remained undecided both as contended for in his original affidavit sworn in support of his original application in the s. 160 application and in relation to further and additional matters identified by him in subsequent affidavits. 15. The first matter raised related to condition No. 1 in the planning permission and Mr. Kenny averred that T.C.D. were mistaken in their claim that this matter had been comprehensively dealt with by the Supreme Court judgment when that judgment had dealt with the location of boilers, the relocation of boilers and the consequent changes to the roof pitch and profile and also with the increase in bed spaces in Building No. 2 of the development. Consideration of the averments made by Mr. Kenny in support of his complaints relating to condition No. 1 identify that he takes issue with the location of the boilers in the completed buildings and the relocation of boiler rooms and the consequent “changes to the roof pitch and profile” together with a further complaint relating to the increase in the number of bed spaces within Building No. 2. The Supreme Court, in the judgment of Mr. Justice Fennelly, dealt, in a separate section with the issue of boilers and boiler rooms in roof spaces in paragraphs 50 to 59 of the judgment. That section of the judgment commenced by identifying what was described as the essence of Mr. Kenny’s complaint and it was identified in the following terms (at paragraph 50):
In his submissions to this Court Mr. Kenny contended that to the extent that the Supreme Court made a finding that “the location of the boilers had no impact on the roof pitch and profile,” that this may not be the case, as the Supreme Court’s finding did not establish that there was any causal link between the installation of the boilers and the roof spaces and the alteration of the roof pitch or profile and that the Supreme Court did not address the issue of whether the alteration of roof pitch/profile had been granted planning permission. The Supreme Court expressly held, at paragraph 54, that the locating of the boiler rooms in the roof spaces of Buildings No. 2 and 3 had no impact on the roof pitch and profile. The Supreme Court expressly held that the placing of the boilers in the roof spaces cannot affect the validity of the permission. It follows that it is not open to Mr. Kenny to re-litigate matters already determined by the Supreme Court judgment. Mr. Kenny’s complaint that the boiler facilities and other plant have been placed in the roof spaces of Buildings No. 2 and 3 with the consequent changes to the roof pitch and profile are matters which have already been considered and dealt with in the Supreme Court judgment wherein it has been determined that such matters do not affect the validity of the permission. The Supreme Court also addressed and considered Mr. Kenny’s complaint in relation to the increase in bed spaces in Building No. 2. It was dealt with in a separate section under the heading “Permitting an increase in the number of bed spaces” and in paragraphs 60 to 66 of the judgment. Having identified the nature of Mr. Kenny’s complaint concerning the increase in the number of bed spaces in Building No. 2, the Supreme Court concluded (at para. 66):
16. A further matter in respect of which Mr. Kenny contends that there has been an unauthorised development relates to his complaint of a breach of condition No. 2 of the permission. That condition related to the western arm of Building No. 3. Condition No. 2 stated:
17. A further matter raised by Mr. Kenny in the s. 160 proceedings relates to an alleged breach of condition No. 9 of the permission. That condition dealt with trees and provided that services and utilities should not be laid within ten metres of the bole of any of the trees which were to be retained. The Supreme Court dealt with Mr. Kenny’s complaints concerning trees in a section of its judgment entitled “Laying of services and utilities within ten metres of the bole of trees”. Paragraphs 67 to 79 inclusive sets out the judgment of the Supreme Court in relation to the issue of trees and that section commences with the Court identifying that Mr. Kenny had made complaints in relation to the issue of services being laid within ten metres of the bole of a tree and also that Trinity had not observed the requirement that all trees being retained were to be protected during the development in a specified manner. In his submissions to this Court Mr. Kenny makes the point that the Supreme Court’s finding only dealt with the issue of the laying of services and utilities within ten metres of the bole of trees and did not address his complaint that all trees that were being retained were to be protected during the development. Consideration of the Supreme Court judgment identifies that that is not the case in that the Supreme Court addressed the second of Mr. Kenny’s two complaints, in relation to the protection of trees during the development in the following terms (at para. 68 of the judgment):
At paragraph 72 of the judgment of the Supreme Court it was held that it was clear that strict and literal compliance with the condition concerning the laying of service and utilities within ten metres of the bole of trees had presented problems and it was clear that Trinity had breached that condition to some extent. However, at paragraph 78 of its judgement the Supreme Court held that what was involved in such a breach was:
Finnegan J. had earlier that year, in the case of O’Connell v. Dungarvan Energy Ltd. [2001] WJSC-HC5119 (Unreported judgment of 27th February, 2001), also considered the issue of a trivial or technical breach of planning permission in s. 27 enforcement proceedings. In his judgment, Finnegan J. quoted with approval the statement of Lord Denning in Lever (Finance) Ltd. v. Westminster Corporation [1973] All E.R. 496 (at p. 500):
This Court is satisfied that the non-compliance by T.C.D. with the literal terms relating to tree protection was so inconsequential that it must properly be identified as an immaterial variation. On the basis that this Court accepts as factually correct that there was non-compliance with condition No. 9 the facts identified demonstrate that such non-compliance was so minor that it could not be described as a material deviation and cannot be the sole basis relied on in a s. 160 application. 18. In the period from July 2002 to January 2003 Mr. Kenny and Anthony Gallagher swore a number of affidavits in support of the s. 160 application. Mr. Kenny has now sworn a number of additional affidavits setting out what he alleges to be further and additional breaches over and above those disclosed in the original affidavits. In relation to these additional matters T.C.D. raises a fundamental objection to the effect that the matters in respect of which Mr. Kenny now seeks to complain and upon which he seeks to rely in support of a s. 160 application are matters which he knew or ought to have known at the time that he swore his affidavits in support of the s. 160 application in the period up to July 2003. T.C.D. claim that to allow and permit additional matters which were known in 2003, to be ventilated at this stage is an abuse of process in that it permits Mr. Kenny to “drip feed litigation” and that Mr. Kenny has excessively delayed in making these claims. This Court is satisfied that those contentions are well based and taking account of the public and private interests involved and the manner in which Mr. Kenny has litigated his complaints against T.C.D. that it is an abuse of the process of the Court to allow and permit such complaints to be litigated at this stage or to permit the s. 160 proceedings to be amended. Nor has Mr. Kenny identified in any way how the public would benefit from the litigation of the matters he now seeks to litigate. The s. 160 proceedings were before the Court and were listed for hearing in March of 2004 and all and any matters relevant to those s. 160 proceedings which were known to Mr. Kenny should have been ventilated and identified prior to that date. Taking account of all the facts identified in the affidavits before this Court, this Court is satisfied that in all the circumstances Mr. Kenny is misusing and abusing the process of court by seeking to raise before it issues which could have been identified at the time when Mr. Kenny and Anthony Gallagher swore affidavits in support of the s. 160 application in the period from July 2002 to January 2003. That was prior to the completion of any of the three buildings at Trinity Hall. The delayed and drip feed nature of Mr. Kenny’s complaints is evident from the fact that he now seeks to make complaints in relation to building No. 1 within the s. 160 proceedings. There is no reference to building No. 1 in these proceedings, absent an amendment. Mr. Kenny seeks to explain the absence of any reference to building No. 1 within the proceedings and to explain why he did not progress litigation in relation to that matter on the basis that he had made a complaint to the Ombudsman and that only when his final report was completed in 2005 did Mr. Kenny view himself as being free to progress litigation in relation to certain matters. Mr. Kenny contends that the Rules of the Superior Courts do not preclude the submission of breaches by Trinity of the Board’s planning permission. He claims the breaches he seeks to raise reflect the Ombudsman’s finding that the building works on which Trinity was engaged in building the building No. 1 were of such character that the Council, on receipt of a complaint from the applicant, should have issued a warning letter to Trinity. This Court is satisfied that the proceedings herein do not refer to building No. 1 and that to permit and allow the proceedings to be amended at this point in time to extend to that building should not be permitted. The matters in respect of which Mr. Kenny seeks to complain concerning building No. 1 are matters which he knew prior to the institution of these proceedings and would have been known to him at the time he brought his judicial review proceedings. He chose not to include such complaints in the s. 160 proceedings and in effect has delayed for a number of years in seeking to raise those matters within the s. 160 proceedings. Both proceedings, that is these proceedings in relation to s. 160 of the Act and the judicial review proceedings, were commenced and prosecuted by Mr. Kenny following a detailed and extensive examination and consideration of the compliance submissions. The matters in respect of which Mr. Kenny now seeks to take issue concerning building No. 1 are all matters which were manifest from the compliance submissions which were submitted during 2001. This Court is satisfied that the proceedings before the Court do not encompass building No. 1 and that any complaint concerning that building could only arise in circumstances where the Court was prepared to amend the pleadings to include the status of the building works at building No. 1. In the light of the fact that this Court is satisfied that the matters in respect of which Mr. Kenny seeks to complain were known to him at the time that he commenced these proceedings and swore affidavits in support of his application and were not included it follows that there is no proper basis for amending the pleadings in the manner sought by Mr. Kenny. Nor has Mr. Kenny provided any credible explanation for the delay in raising these matters. 19. Mr. Kenny contends in the affidavits on which he now seeks to rely that there was non-compliance by T.C.D. in that there is an extra floor over the western façade of building No. 4. This complaint was identified by Mr. Kenny in his affidavit sworn on 26th February, 2010. In the replying affidavit thereto sworn by Mr. Merriman on 15th March, 2010 it was identified that the extra floor is in fact a plant room and not an extra floor. The presence and location of that plant room was apparent from the compliance submissions which were complete by October of 2001 and the attempt by Mr. Kenny to raise the issue of the presence of the plant room as a so called extra floor in building No. 4 is in fact an attempt to challenge the compliance orders and is therefore not a matter for consideration in the s. 160 application but rather in an application for judicial review. Mr. Kenny has already litigated in relation to the compliance notice in relation to other matters and no issue was raised therein in relation to the matter in respect of which Mr. Kenny now seeks to complain. 20. In the additional affidavits sworn by Mr. Kenny and in particular in his affidavit of 26th February, 2010, he raises a number of matters which were not previously identified in these proceedings. Those matters include complaints concerning the installation of boilers and boiler flues, the alleged deficiencies in the Environmental Impact Statement (“EIS”) submitted by T.C.D. to An Bord Pleanála, which it is alleged results in T.C.D. being in breach of environmental directives, the alleged use of Trinity Hall during certain summers, the alleged increase in roof pitch of building No. 2 and an alleged increase in height of building No. 2, the alleged unauthorised location of an ESB sub-station and allegations of fraud as set out in various paragraphs including paragraphs 28, 37 and 38 of the affidavit of Mr. Kenny sworn on 10th May, 2010. In his affidavit sworn on 26th February, 2010 Mr. Kenny takes issue in relation to the installation of boiler flues in building No. 1. The Court has already dealt with the issue concerning the fact that building No. 1 is not referred to in the original affidavits grounding Mr. Kenny’s s. 160 proceedings. In any event, even if Mr. Kenny’s complaints in relation to the installation of boiler flues in building No. 1 were properly within these proceedings, and this Court is satisfied that they are not and further that the proceedings should not be amended to permit of such a complaint, the factual position is that the installation of the boiler flues in building No. 1 was covered by the compliance submission and was expressly identified in the addendum to the compliance submissions of November 2001. It is also the case that the Supreme Court in its judgment concluded that the location of boilers had no impact on either the roof pitch or profile and it is also the case that the judgment of the Supreme Court was made on the basis that as regards the installation of the boilers there was a valid compliance order made on foot of the compliance submission. The manner in which the Supreme Court dealt with the plant rooms, in paragraph 55 of its judgment, is predicated upon a number of matters including that the installation of the boiler equipment in the plant room in the roof space did not require planning permission. It is also the case that Mr. Kenny has raised the issue of the boilers and the location of the boilers in other proceedings and to allow and permit a re-litigation of the issue of the presence and location of the boilers in such circumstances and to permit an amendment to allow such litigation would be an abuse of process. 21. A further matter in respect of which Mr. Kenny makes complaint relates to alleged deficiencies in the EIS submitted on behalf of T.C.D.. This complaint relates to the placing of boiler installations in the roof space of buildings No. 1 and No. 2 and it is claimed by Mr. Kenny that the same was unauthorised and amounted to a breach of EU law. In his affidavit sworn on 26th February, 2010, Mr. Kenny avers that due to the lack of sufficient information within the EIS that the placing of boiler installations in the roof space of building No. 1 and No. 2 was a breach of EU environmental law. This claim represents a further attempt to challenge the adequacy of the EIS and Mr. Kenny has done that on a number of previous occasions both within the leave application in the judicial review proceedings and in the proceedings which Mr. Justice Clarke heard ([2008] No. 1319P) which were held (at paragraph 6.2) of the unreported judgment delivered by Mr. Justice Clarke on 28th January, 2009 as being “fundamentally misconceived” and in respect of which Mr. Justice Clarke refused permission to bring such proceedings. This claim did not form part of the claim initially brought within these proceedings and as with the other matters in respect of which Mr. Kenny would require to seek an amendment to allow and permit such matters to be raised within these proceedings, this Court is satisfied that such amendment should not be permitted and that in all the circumstances given the history of this matter and the previous litigation and determinations made by the courts in relation to this matter that it would amount to an abuse of process to permit of such amendment. The nature and extent of the abuse is demonstrated by the fact that within the leave proceedings it was, held by McKechnie J. in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 (at p. 577, para. 15):
22. In paragraph 12 of Mr. Kenny’s affidavit sworn on 26th February, 2010, Mr. Kenny takes issue in relation to the unauthorised use by T.C.D. of building No. 3 in permitting that building to be used during the summer months of certain years by foreign children who were taught in a room within building No. 1 contrary to the planning permission. Such use was not permissible and it would appear that there was a breach of the planning permission in certain years by T.C.D.. However, it is also clear from the undisputed evidence available to this Court and acknowledged by Mr. Kenny in his affidavit that there was no unauthorised use after the summer of 2007 and that he did not observe any unauthorised use during the summers of 2008 or 2009. T.C.D. acknowledges in paragraph 13 of the affidavit of Tom Merriman sworn on 15th March, 2010, in response to this complaint, that bedrooms were converted to teaching rooms in certain summers but that such use had been discontinued since the summer of 2008 and is not an ongoing use. In those circumstances there is, on the undisputed facts available to this Court, no continuing unauthorised use and this Court is therefore satisfied that it would be both inappropriate and oppressive to permit Mr. Kenny an amendment to litigate this issue, as the unauthorised use in respect of which complaint is made is not continuing and there is no unauthorised use occurring. 23. Two further matters in respect of which Mr. Kenny seeks to make complaint relate to the alleged change in roof pitch and the increase in height of building No. 2. Both these matters have been considered and addressed within the Supreme Court judgment and in effect Mr. Kenny is seeking to disregard the consequences and effect of that judgment and to challenge the compliance order. This Court is satisfied that these matters of complaint are not within the s. 160 proceedings as brought by Mr. Kenny and further it would not be appropriate or just to permit an amendment to allow such matters to be ventilated within the s. 160 proceedings. 24. At paragraph 25 of Mr. Kenny’s affidavit sworn on 26th February, 2010 he raised other matters in respect of which he made complaint which were identified as “other unauthorised development”. The first of those matters concerned an ESB sub-station. In paragraph 26 of his affidavit Mr. Kenny avers that as a result of complaints made to the Council, notwithstanding that it had purported to consent to this unauthorised development during the compliance procedure for building No. 3, the Council was obliged to issue a warning letter to T.C.D.. Mr. Kenny further avers that T.C.D. then applied for planning permission to retain its unauthorised development and that permission was granted. Given the uncontested fact that the ESB sub-station is now covered by a valid grant of planning permission any issue in relation to the sub-station is not an appropriate matter for an application under s. 160 as such development is not an unauthorised development. 25. In a number of paragraphs contained within Mr. Kenny’s sworn affidavit of 10th May, 2010 allegations of “fraud” are made against T.C.D.. Mr. Kenny claims that T.C.D. fraudulently caused the Council to accept its compliance proposals and that such proposals were submitted in circumstances where T.C.D. knew or ought to have known that such proposals would deceive the public including Mr. Kenny. This claim is yet a further instance of Mr. Kenny’s attempt to disregard the effect and consequences of the Supreme Court judgment. The issue of fraud was raised in the Supreme Court hearing and what Mr. Kenny claims, in an attempt to avoid the consequence and effect of the Supreme Court judgment, is that the Supreme Court were informed of a particular fraud allegation alleged against Trinity but that the issue raised was held not to relate to the subject matter of the proceedings before the Court. An attempt at this late stage for Mr. Kenny to introduce a complaint in relation to fraud, in his affidavit of 10th May, 2010, is in effect an attempt to expand the proceedings beyond previous allegations and to disregard the consequence and effect of earlier court decisions. In proceedings (2005/3320P) in which Mr. Kenny was applicant and T.C.D. the first named respondent, Mr. Kenny made claims against T.C.D. The nature of case Mr. Kenny sought to make was identified in the unreported judgment of Mr. Justice Clarke of the 30th March, 2006, where he held (at p. 4):
Mr. Kenny has engaged in a multiplicity of proceedings against T.C.D. and to allow and permit the complaint of fraud as now made to be litigated within these s. 160 proceedings would be, given the history of the litigation (including the proceedings 2005/3320P0, delay, and all the circumstances, to permit an abuse of process to occur. In so far as Mr. Kenny claims that any Court judgment was as a result of fraud, it would be necessary for such matter to be raised with those proceedings and not in this s. 160 application. 26. In the light of the determinations hereinbefore set out this Court is satisfied that Mr. Kenny’s claims within these proceedings should be struck out pursuant to the inherent jurisdiction of the Court in that such claims as Mr. Kenny now seeks to pursue are in some instances bound to fail as a result of earlier final Court decisions and in other instances are bound to fail on the undisputed facts before the Court and in the one instance in relation to the issue of trees is of such a minor matter that such issue cannot be permitted to proceed as a sole issue and is not a matter which could amount to a breach of permission. Further, insofar as Mr. Kenny seeks to expand the s. 160 proceedings by amending his proceedings to include additional claims, this Court is satisfied that on the facts and given the circumstances in which Mr. Kenny seeks such amendments and the delay in applying for amendments that to allow and permit such amendments would be an abuse of process and would amount to a clear attempt by Mr. Kenny to bring forward claims within the amended proceedings which were not brought forward or litigated in previous litigation. In refusing to amend the s. 160 application, the Court is also satisfied that Mr. Kenny has delayed in making such application and has provided no credible explanation for such delay. Further, this Court is satisfied that on the undisputed facts before the Court that to allow and permit Mr. Kenny to litigate matters which have already been determined would be to subject T.C.D. to expensive, protracted and unnecessary proceedings and for T.C.D. to be placed in a position of having to defend claims which cannot succeed. The Court will therefore make an order in the terms of paragraph 1 of the notice of motion of 6th November, 2009 striking out Mr. Kenny’s proceedings against T.C.D..
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