---

Case against serial objector ‘not an abuse of process’

A Philip Lee briefing note explains the High Court’s Planning and Environment division refusal to strike out a legal action by a housing developer alleging extortion and purchase at inflated prices.

The judgment, by Mr Justice Humphreys on 15 April, found that the defendants had failed to establish that the action had the necessary indicia of a “strategic lawsuit against public participation” (SLAPP), or that it should be struck out as an abuse of process, Philip Lee has noted.

Allegations

The plaintiff alleged that the defendants made submissions and lodged appeals against planning applications for up to 16 different developments around Ireland since March 2021, with the express intention of exerting pressure to buy the defendants’ land.

The plaintiff further alleged that defendants used masking pseudonyms, although section 127 of the Planning and Development Act 2000 requires clear statement of the name and address of the appellant.

The plaintiff alleged that the defendants abused the planning system and abused the privilege of the right to participate.

The plaintiff further claimed that it requested An Bord Pleanála to exercise its discretion to dismiss such appeals.

An Bord Pleanála, however, refused all such requests.

Remedies

Therefore, the plaintiff sought these reliefs from the court:

• A declaration that the defendant(s) wrongfully and unlawfully conspired to injure the plaintiff by interfering with the orderly development of lands which were the subject of the planning applications,
• Damages for malicious abuse of the statutory process, conspiracy, tortious interference with economic relations, and 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 from making any further planning submissions.

Mr Justice Humphreys found that, if the defendants could establish prima facie that the plaintiff’s legal action had the necessary indicia of a SLAPP action, the onus would then shift to the plaintiff to demonstrate that the case was bona fide and not oppressive.

Decision not to strike out

The court found that the plaintiff’s case had 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, Alice Whittaker of Philip Lee writes.

On the central allegation – that the defendants were allegedly trying to 'shake down' the plaintiff for the purposes of extortion, which if successful would make the environmental concerns ‘go away’ – the court found that this allegation was not manifestly unfounded.

The defendants' reliance on Article 3(8) of the Aarhus Convention as an absolute shield against potential liability for alleged abuse of the planning process is not straightforward, the note continues.

The court was satisfied that the case raised complex issues to be dealt with at full hearing, and not as part of a preliminary application to strike out the proceedings.

The plaintiff’s case, while novel, could not be said to have no prospect of success, the court also found.

Monetary loss

Monetary loss resulting from delays to planning decisions can be objectively measured, if the concept of an abusive appeal can be established.

While no right to planning permission exists, this does not mean that the plaintiff has no rights arising from the planning process, the Philip Lee note continues.

Therefore, it cannot be said that the plaintiff has no rights capable of being interfered with by the defendants, and the plaintiff has some right to pursue its claims for damages in tort.

There were named potential witnesses to relevant facts of the plaintiff’s case, and the quality of such evidence was more appropriately determined at the full hearing, the court found.

Indicia

The lack of sufficient indicia of a SLAPP came in addition to the defendants’ inability to show that the proceedings were entirely unfounded or had no prospect of success.

Lawyer Alice Whittaker writes that if the case proceeds to a full hearing, the outcome may provide further guidance 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 court remedies.

Meanwhile, the judgment’s list of 29 indicia of a SLAPP action is useful in determining whether proceedings are potentially abusive, Philip Lee notes.