Key Contacts: Alice Whittaker – Partner 

Glenveagh Homes Limited v Pat Lynch and Denise Leavy (Otherwise Denis Leavy, DM Leavy, or D Leavy) [2024] IEHC 157, judgment of Mr Justice Humphreys delivered 15 April 2024.

Summary

The Planning Court refused to strike out legal action, in which a housing developer alleges that named individuals and persons unknown have abused the planning system to “extort” the purchase of their land at an inflated price. The Court found that the defendants had failed to establish that the legal action has the necessary indicia of a “strategic lawsuit against public participation” or SLAPP, or that it should be struck out as an abuse of process.

Allegations of abusive planning submissions and appeals

The plaintiff alleges that the defendants (or any one of them) made submissions and lodged appeals against the plaintiff’s planning applications for up to 16 different developments around Ireland since March 2021, with the express intention of pressuring the plaintiff to buy the defendants’ land. The plaintiff alleges that defendants (or any one of them) made submissions and lodged appeals using various pseudonyms (including ‘Denis Leavy’, ‘D Leavy’, or ‘DM Leavy’) to mask the true purpose of the submissions and appeals. Section 127 of the Planning and Development Act 2000, as amended (2000 Act), requires an appeal to state the name and address of the appellant or person making the referral and of the person, if any, acting on his or her behalf. There are similar requirements for a valid public submission.

The plaintiff alleges that the defendants abused the planning system and the privilege of the right to participate. The plaintiff claims that it requested An Bord Pleanála to exercise its discretion to dismiss appeals as invalid under section 127, or impermissible under Section 138 of the 2000 Act, or to hold an oral hearing to determine whether, contrary to that section, the appeal has been made with the sole intention of delaying the development or the intention of securing the payment of money, gifts, consideration or other inducement by the appellant. An Bord Pleanála, however, refused all such requests.

The Court remedies

The plaintiff therefore, unable to obtain any effective remedy through the planning system, has sought the following reliefs from the Court:

  • A declaration that the defendant(s) wrongfully and unlawfully conspired to injure the plaintiff by wrongfully delaying and interfering with the orderly development of lands the subject of the planning applications;
  • Damages for:
    o malicious abuse of the statutory process;
    o conspiracy;
    o tortious interference with economic relations;
    o tortious interference with contractual and business relationships;
  • An order for all necessary accounts and inquiries;
  • A mandatory injunction directing the defendants to withdraw specific appeals
  • An ‘Isaac Wunder Order’ permanently restraining the defendants or parties associated with them from making any further planning submissions or observations or appeals on planning applications made by or on behalf of the plaintiffs or connected companies, without the leave of the Court.

Although Isaac Wunder Orders are most commonly sought to restrain legal proceedings1 , restraining orders are also known to have been granted to restrain complaints being made in other administrative processes, such as procedures for dealing with complaints against solicitors (Stevenson v. O’Neill [2010] IEHC 1).

Court’s power to strike out SLAPP

The power to strike out proceedings should be exercised sparingly by the Court, and the onus is generally on the party seeking the strike out, to establish why this general rule should be set aside in a particular case. In Atlas GP Ltd. v. Kelly & Ors [2022] IEHC 443, Egan J. held that the Court’s existing powers to strike out proceedings are flexible enough to deal with SLAPP situations.

Humphreys J found in the present case that, if the defendants could establish on a prima facie basis that the plaintiff’s legal action had the necessary indicia of a SLAPP action, the onus would then shift from the defendants to the plaintiff to demonstrate that the case was bona fide and not taken for the purpose of oppression.

The judgment sets out a list of 29 indicia of a SLAPP action, grouped under four headings. In preparing this list the Court had regard to illustrative examples in the following:

Court’s decision not to strike out

The Court found that the plaintiff’s case has only a few of the potential indicia of a SLAPP.

It was also not apparent to the Court that the defendants’ planning submissions and appeals were made in the normal course of public participation. The Court had regard to the central allegation in the proceedings, that the defendants were allegedly trying to “shake down the plaintiff for the purposes of extortion, and if the extortion was successful they could make the environmental concerns “go away””. The Court found that this allegation is not manifestly unfounded, and the defendant’s reliance on Article 3(8) of the Aarhus Convention as an absolute shield against potential liability for the alleged abuse of the planning process is not straightforward and is more properly resolved at the substantive hearing of the case (citing Case C-470/16 NEPPC).

In that respect the Court was satisfied that the case raises complex issues that are more suitable to be dealt with at the full hearing, and should not be addressed as part of a preliminary application to strike out the proceedings.

The Court was also satisfied that, whilst the plaintiff’s case has elements of novelty or innovation, it cannot be said that it has no prospect of success. The scale of damages sought is capable of objective explanation, given the measurable monetary loss resulting from the delays to planning decisions, and the status of the defendants is not particularly relevant to the issue because any person is capable of making an abusive submission or appeal, assuming that concept can be established by the plaintiff at hearing.

Whilst the plaintiff has no right to a grant of planning permission in any particular case, this does not mean that the plaintiff has no rights arising from the planning process. Therefore, it cannot be said that the plaintiff has no rights capable of being interfered with by the defendants, if that did occur, and the plaintiff therefore has at least some right to pursue its claims for damages in tort, even if some of the tortious claims for loss and damage are novel or innovative. Such claims have at least some prospect of success, assuming the relevant factual evidence can be made out.

On the issue of evidence, the defendants failed to show that there is no prospect of evidence being available to support the plaintiff’s case, as there are named potential witnesses to relevant facts, and any dispute between the parties as to the nature or quality of such evidence is more appropriately determined at the full hearing of the case. The Court found that the plaintiff is at least in principle capable of establishing that the defendants have acted “less than straightforwardly”.

In conclusion

The defendants’ application to strike out the proceedings was refused, due in part to the lack of sufficient indicia of a SLAPP action or an abuse of process, but also because the defendants could not show that the proceedings were entirely unfounded or had no prospect of success. The judgment is, of course, without prejudice to any further arguments that the plaintiff and defendants wish to make on these points at the full hearing of the case.

Assuming the case proceeds to a full hearing, the outcome may provide further guidance from the Court on the circumstances in which apparently targeted participation in the planning process may constitute an abuse of process such as to give rise to a right to remedies from the Court, including damages, mandatory and restraining injunctions, and any other necessary declarations.

In the meantime, the list of 29 indicia of a SLAPP action set out in this judgment may prove useful to legal professionals and their clients, as well as the Courts, in determining whether proceedings are potentially abusive.

  1. See, for example, two cases in which orders were secured restraining legal proceedings being taken against local authorities and individual officers within the local authorities: Dublin City Council & Others v Paul Coyle And Margaret Coyle [2024] IECA 67 and Fulham v Dun Laoghaire Rathdown Co Council & Others [2019] IEHC 142 ↩︎

Key Contacts