Planning Judicial Review
Planning and Development Act
F461[
Judicial review of applications, appeals, referrals and other matters.
50.— (1) Where a question of law arises on any matter with which the Board is concerned, the Board may refer the question to the High Court for decision.
(2) A person shall not question the validity of any decision made or other act done by—
(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act,
(b) the Board in the performance or purported performance of a function transferred under F462[Part XIV,]
(c) a local authority in the performance or purported performance of a function conferred by an enactment specified in section 214 relating to the compulsory acquisition of F462[land, or]
F463[(d) without prejudice to the right of appeal referred to in section 37 as read with section 37R—
(i) the competent authority (within the meaning of the Aircraft Noise (Dublin Airport) Regulation Act 2019), or
(ii) the Board in its capacity as the appeal body from decisions of such competent authority,]
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (the “Order”).
(3) Subsection (2)(a) does not apply to an approval or consent referred to in Chapter I or II of Part VI.
(4) A planning authority, a local authority or the Board may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Board, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Board in relation to the matter concerned.
(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Board is within the jurisdiction of the authority or the Board, make an order staying the proceedings concerned on such terms as it thinks fit.
(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.
(7) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(b) or (c) applies shall be made within the period of 8 weeks beginning on the date on which notice of the decision or act was first sent (or as may be the requirement under the relevant enactment, functions under which are transferred under Part XIV or which is specified in section 214, was first published).
(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.
(9) References in this section to the Order shall be construed as including references to the Order as amended or replaced (with or without modification) by rules of court.]
Annotations
Amendments:
F461
Substituted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 13, S.I. No. 525 of 2006.
F462
Substituted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 13(a), (b), S.I. No. 403 of 2019.
F463
Inserted (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 13(c), S.I. No. 403 of 2019.
Modifications (not altering text):
C88
Application of section extended (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 10(17), S.I. No. 403 of 2019.
Appeal to Board against relevant regulatory decision
10. …
(17) Sections 50, 50A and 50B of the Act of 2000 shall, with all necessary modifications, apply to a decision of the Board under subsection (8) (a) on the appeal as those sections apply to a decision of the Board under section 37 of that Act on an appeal referred to in section 37R(1) of that Act.
…
C89
Section applied with modifications by Industrial Development Act 1986 (9/1986), s. 16D(2)(b) as inserted (19.09.2018) by Industrial Development (Amendment) Act 2018 (19/2018), s. 7, S.I. No. 361 of 2018.
Functions of Bord Pleanála
16D. (1) The Board shall have the same functions in relation to a compulsory purchase order made by IDA by virtue of subsection (2) of section 16C as it has under Part XIV of the Act of 2000 in relation to a compulsory acquisition of land by a local authority under the Act of 1966, and for that purpose, a reference (howsoever expressed) in the Act of 2000 to the functions transferred to the Board under that Part shall include a reference to the performance of those functions by the Board in relation to such an order.
(2) Without prejudice to the generality of subsection (1)—
(a) sections 216(1), 217(3), (5), (6), (6A) and (7), 217A, 217C(1), 218(1), (3) and (4), 219 and 221(1), (2), (3), (5), (7) and (8) of the Act of 2000 shall, with any necessary modifications, apply in relation to a compulsory purchase order made by virtue of subsection (2) of section 16C as if references in that Act to a local authority were to IDA, and
(b) sections 50 and 50A of the Act of 2000 shall, with any necessary modifications, apply in respect of the performance by the Board of its functions under subsection (1) in the same manner as those sections apply in respect of the performance by the Board of a function transferred under Part XIV of that Act.
(3) In this section—
“Act of 2000” means the Planning and Development Act 2000 ;
“Board” means An Bord Pleanála.
Editorial Notes:
E210
Previous affecting provision: section amended (24.12.2002) by Planning and Development (Amendment) Act 2002 (32/2002), s. 12, commenced on enactment; substituted as per F-note above.
F464[
Section 50: supplemental provisions.
50A.— (1) In this section—
“Court”, where used without qualification, means the High Court (but this definition shall not be construed as meaning that subsections (2) to (6) and (9) do not extend to and govern the exercise by the Supreme Court of jurisdiction on any appeal that may be made);
“Order” shall be construed in accordance with section 50;
“section 50 leave” means leave to apply for judicial review under the Order in respect of a decision or other act to which section 50(2) applies.
F465[(2) (a) An application for section 50 leave shall be made by motion ex parte and shall be grounded in the manner specified in the Order in respect of an ex parte motion for leave.
(b) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.
(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)—
(i) if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under this Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave,
(ii) if the application relates to a decision made or other act done by the Board on an appeal or referral, to the Board and each party or each other party, as the case may be, to the appeal or referral,
(iii) if the application relates to a decision made or other act done by the Board on an application for permission or approval, to the Board and to the applicant for the permission or approval where he or she is not the applicant for leave,
(iv) if the application relates to a decision made or other act done by the Board or a local authority in the performance or purported performance of a function referred to in section 50(2)(b) or (c), to the Board or the local authority concerned, and
(v) to any other person specified for that purpose by order of the High Court.
(d) The Court may—
(i) on the consent of all of the parties, or
(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances,
treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.]
(3) The Court shall not grant section 50 leave unless it is satisfied that—
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be F466[quashed,]
(b) (i) the applicant has a F467[sufficient interest] in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant—
(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and
(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, F466[falls), and]
F468[(c) the applicant has exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act concerned.]
(4) A F467[sufficient interest] for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.
(5) If the court grants section 50 leave, no grounds shall be relied upon in the application for judicial review under the Order other than those determined by the Court to be substantial under subsection (3)(a).
(6) The Court may, as a condition for granting section 50 leave, require the applicant for such leave to give an undertaking as to damages.
(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
(8) Subsection (7) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.
(9) If an application is made for judicial review under the Order in respect of part only of a decision or other act to which section 50(2) applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the decision or other act or part of the decision or other act, and if the Court does so, it may make any consequential amendments to the remainder of the decision or other act or the part thereof that it considers appropriate.
F468[(9A) If, on an application for judicial review under the Order, the Court decides to quash a decision or other act to which section 50(2) applies, made or done on an application for permission or approval, the Court shall, if requested by the applicant for permission or approval, remit the matter to the planning authority, the local authority or the Board, as may be appropriate, for reconsideration, subject to such directions as the Court considers appropriate, unless the Court considers, having regard to the circumstances of the case, that it would not be lawful to do so.]
(10) The Court shall, in determining F469[an application for section 50 leave, an application for judicial review on foot of such leave or an application for leave under subsection (7)], act as expeditiously as possible consistent with the administration of justice.
(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10), the Supreme Court shall—
(a) have jurisdiction to determine only the point of law certified by the Court under subsection (7) (and to make only such order in the proceedings as follows from such determination), and
(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice.
(12) Rules of court may make provision for the expeditious hearing of applications for section 50 leave and applications for judicial review on foot of such leave.]
F470[(13) For the avoidance of doubt, where—
(a) the Court has granted leave to appeal its decision in accordance with subsection (7), or
(b) an appeal has been brought to the Court of Appeal in accordance with subsection (8),
any party to the appeal may, at any time thereafter prior to the determination of such appeal, without any prior application to the Court of Appeal, apply to the Supreme Court under Article 34.5.4° of the Constitution to determine the appeal.
(14) Where the Supreme Court grants an application referred to in subsection (13), the Court of Appeal shall, in respect of the proceedings before it in relation to the appeal, provide by order for the discontinuance of those proceedings, which order of discontinuance shall be confined to the grounds upon which the Supreme Court granted leave to appeal, whether or not any application in relation to the appeal has been made to the Court of Appeal.
(15) The Supreme Court shall act as expeditiously as possible consistent with the administration of justice in determining any application referred to in subsection (13) and, where the Supreme Court grants the application, any appeal.]
Annotations
Amendments:
F464
Inserted (17.10.2006) by Planning and Development (Strategic Infrastructure) Act 2006 (27/2006), s. 13, S.I. No. 525 of 2006.
F465
Substituted (28.09.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 32, S.I. No. 451 of 2010.
F466
Substituted (20.10.2022) by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 22(a)(i), (ii), S.I. No. 523 of 2022.
F467
Substituted (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 20, S.I. No. 433 of 2011.
F468
Inserted (20.10.2022) by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 22(a)(iii), (b), S.I. No. 523 of 2022.
F469
Substituted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 6(a), S.I. No. 715 of 2021.
F470
Inserted (17.12.2021) by Planning and Development (Large Scale Residential Developments) Act 2021 (40/2021), s. 6(b), S.I. No. 715 of 2021.
Modifications (not altering text):
C90
Application of section extended (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 10(17), S.I. No. 403 of 2019.
Appeal to Board against relevant regulatory decision
10. …
(17) Sections 50, 50A and 50B of the Act of 2000 shall, with all necessary modifications, apply to a decision of the Board under subsection (8) (a) on the appeal as those sections apply to a decision of the Board under section 37 of that Act on an appeal referred to in section 37R(1) of that Act.
…
C91
Section applied with modifications by Industrial Development Act 1986 (9/1986), s. 16D(2)(b) as inserted (19.09.2018) by Industrial Development (Amendment) Act 2018 (19/2018), s. 7, S.I. No. 361 of 2018.
Functions of Bord Pleanála
16D. (1) The Board shall have the same functions in relation to a compulsory purchase order made by IDA by virtue of subsection (2) of section 16C as it has under Part XIV of the Act of 2000 in relation to a compulsory acquisition of land by a local authority under the Act of 1966, and for that purpose, a reference (howsoever expressed) in the Act of 2000 to the functions transferred to the Board under that Part shall include a reference to the performance of those functions by the Board in relation to such an order.
(2) Without prejudice to the generality of subsection (1)—
(a) sections 216(1), 217(3), (5), (6), (6A) and (7), 217A, 217C(1), 218(1), (3) and (4), 219 and 221(1), (2), (3), (5), (7) and (8) of the Act of 2000 shall, with any necessary modifications, apply in relation to a compulsory purchase order made by virtue of subsection (2) of section 16C as if references in that Act to a local authority were to IDA, and
(b) sections 50 and 50A of the Act of 2000 shall, with any necessary modifications, apply in respect of the performance by the Board of its functions under subsection (1) in the same manner as those sections apply in respect of the performance by the Board of a function transferred under Part XIV of that Act.
(3) In this section—
“Act of 2000” means the Planning and Development Act 2000 ;
“Board” means An Bord Pleanála.
F471[
Costs in environmental matters.
50B.— (1) This section applies to proceedings of the following kinds:
(a) proceedings in the High Court by way of judicial review, or of seeking leave to apply for judicial review, of—
(i) any decision or purported decision made or purportedly made,
(ii) any action taken or purportedly taken, F472[…]
(iii) any failure to take any action,
pursuant to a F473[statutory provision] that gives effect to—
(I) a provision of Council Directive 85/337/EEC of 27 June 1985 to which Article 10a (inserted by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directive 85/337/EEC and 96/61/EC) of that Council Directive applies,
(II) Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, or
(III) a provision of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control to which Article 16 of that Directive F473[applies, or]
F474[(IV) paragraph 3 or 4 of Article 6 of the Habitats Directive; or]
(b) an appeal (including an appeal by way of case stated) to the Supreme Court from a decision of the High Court in a proceeding referred to in paragraph (a);
(c) proceedings in the High Court or the Supreme Court for interim or interlocutory relief in relation to a proceeding referred to in paragraph (a) or (b).
F475[(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986) and subject to subsections (2A), (3) and (4), in proceedings to which this section applies, each party to the proceedings (including any notice party) shall bear its own costs.]
F476[(2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.]
(3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—
(a) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious,
(b) because of the manner in which the party has conducted the proceedings, or
(c) where the party is in contempt of the Court.
(4) Subsection (2) does not affect the Court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.
(5) In this section a reference to “the Court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the High Court or the Supreme Court, as may be appropriate.]
F474[(6) In this section “statutory provision” means a provision of an enactment or instrument under an enactment.]
Annotations
Amendments:
F471
Inserted (28.09.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 33, S.I. No. 451 of 2010.
F472
Deleted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 29(a)(ii), S.I. No. 436 of 2018.
F473
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 29(a)(i), (iii), S.I. No. 436 of 2018.
F474
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 29(a)(iv), (b), S.I. No. 436 of 2018.
F475
Substituted (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 21(a), S.I. No. 433 of 2011.
F476
Inserted (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 21(b), S.I. No. 433 of 2011.
Modifications (not altering text):
C92
Application of section extended (1.09.2019) by Aircraft Noise (Dublin Airport) Regulation Act 2019 (12/2019), s. 10(17), S.I. No. 403 of 2019.
Appeal to Board against relevant regulatory decision
10. …
(17) Sections 50, 50A and 50B of the Act of 2000 shall, with all necessary modifications, apply to a decision of the Board under subsection (8) (a) on the appeal as those sections apply to a decision of the Board under section 37 of that Act on an appeal referred to in section 37R(1) of that Act.
…
C93
Application of section extended (8.09.2011) by European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 (S.I. No. 456 of 2011), reg. 22.
Costs in certain civil proceedings
22. Section 50B (inserted by section 33 of the Planning and Development (Amendment) Act 2010 (No. 30 of 2010)) as amended by section 21 of the Environmental Miscellaneous Provisions Act 2011 (No. 20 of 2011) of the Planning and Development Act 2000 applies mutatis mutandi to these Regulations.
Editorial Notes:
E211
Previous affecting provision: application of section extended (14.10.2010) by European Communities (Forest Consent and Assessment) Regulations 2010 (S.I. No. 558 of 2010), reg. 22; revoked (24.05.2017) by Forestry Regulations 2017 (S.I. No. 191 of 2017), reg. 23(1)(a), in effect as per reg. 1(2).
E212
Previous affecting provision: subs. (2) substituted (28.09.2010) by Planning and Development (Amendment) Act 2010 (30/2010), s. 33, S.I. No. 451 of 2010; substituted as per F-note above.
PART IV
Architectural Heritage
Annotations
Modifications (not altering text):
C94
Application of Part restricted with retrospective effect by Transport (Railway Infrastructure) Act 2001 (55/2001), s. 38(2), as inserted (1.08.2008) by Dublin Transport Authority Act 2008 (15/2008), s. 115(6), S.I. No. 291 of 2008.
Exempted development.
[38.—(1) Each of the following shall be exempted development for the purposes of the Act of 2000:
(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Board and specified in a railway order or of any incidental or temporary works connected with such development;
(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order.
(2) Part IV of the Act of 2000 does not apply and is deemed never to have applied to developments specified in subsection (1).]
Cases
Coll v Donegal County Council (No. 2)
[2007] I.E.H.C. 110
JUDGMENT of Ms. Justice Dunne delivered on the 23rd day of March, 2007.
By a notice of motion dated 14th November, 2006, the respondent herein sought the following relief:-
A. An order varying the grant of leave so as to provide that the grant and/or continuance of leave to apply for judicial review herein shall not operate as a stay on any further actions of the respondent pursuant to the decision at issue in these proceedings or otherwise howsoever.
B. An order pursuant to the Rules of the Superior Courts, O. 84,
r. 20(6) that the applicant provide an undertaking as to damages in respect of the grant and/or continuance of leave in the within proceedings.
C. An order pursuant to the Rules of the Superior Courts, O. 84,
r. 20(6) requiring the applicant to furnish security for costs to the respondent herein.
The application was grounded upon the affidavit of Patrick McMullan sworn on 14th November, 2006 and a number of other affidavits were subsequently referred to in the course of the hearing before me.
I do not propose to set out the entire history of the matter, but it is necessary to sketch in some background to the application. The notice party herein obtained planning permission to develop a filling station and supermarket at the junction of Strand Road and Bunbeg Road, Co. Donegal. It was a condition of the permission that there should be a road re-alignment as a result of the development which involved the extinguishment of a public right of way.
A motion was passed on 29th May, 2006, by the elected members of the respondent for the extinguishment of the public right of way at Strand Road, as required by the condition in the planning permission. It is that decision which is the subject of the present challenge.
The order granting leave provided, inter alia,
“That any further actions pursuant to the challenged decision to extinguish the public right of way over the said portion of the Strand Road, Bunbeg, be stayed until the determination of the judicial review or until further order ….”
The current proceedings are not the first challenge brought by the applicant in respect of the extinguishment of the public right of way. The applicant previously sought to challenge an earlier decision of the respondent to extinguish the public right of way pursuant to the provisions of s. 73 of the Roads Act, 1993. Those proceedings came on for hearing in the High Court before Peart J. and in his judgment delivered therein on 7th July, 2005, he refused the reliefs sought in that application. Costs of the proceedings were awarded against the applicant.
The previous proceedings have some relevance to the applications currently before the court. As indicated, one of the reliefs sought herein is security for costs against the applicant. Reference has been made in the affidavit of Patrick McMullan to the fact that the order for costs made against the applicant in the previous proceedings cannot be paid by her as she is in her solicitor’s words “a man of straw”. It is on that basis that security for costs is now sought. It was pointed out that the notice party herein will suffer significant financial consequences as a result of further delays in the development, assuming that the applicant is ultimately unsuccessful in these proceedings.
Reference was made by counsel for the respondent to a number of authorities in relation to the issue of security for costs, but none of those authorities dealt with an application in respect of judicial review proceedings involving an individual as opposed to a company or a person residing outside the jurisdiction. A number of the authorities referred to application for security for costs in respect of appeals to the Supreme Court.
A passage in Delaney and McGrath, Civil Procedure in the Superior Courts (2nd Ed.) at para. 27.55 is of some assistance. The author’s comment:-
“Conversely, it is interesting that the insulating effect which limited liability status confers on individuals who for example wish to challenge a planning decision also raises the spectre of an order for security for costs. So, in cases where an order could not be made against an individual or group of individuals, it may be made against a limited liability company pursuant to the provisions of s. 390 of the Companies Act, 1963.”
It is worth considering one passage from the judgement of Morris J. in the case of Lancefort Ltd. V An Bord Pleanala 1998 2 I R 511 where he stated at p. 514:
“The second point on this issue arises in the following way. Counsel for the Applicant submits that in recent cases, and in particular, Maher v Phelan, 1996 1 I. R. 95, Carroll J. held that an order should not be made when the application is based on Order 29, Rule 1. Counsel cites the following passage from her judgement at page 89 in support of that submission:-
“…as the law stands it is not possible to get an order for security for costs against an individual litigant resident in the jurisdiction regardless of circumstances. Different considerations apply to companies which are not relevant to consider here…”
Since an individual litigant being a plaintiff resident in Ireland cannot be ordered to pay security for costs therefore a plaintiff resident outside Ireland within the E. U. should not be so ordered.”
It was suggested on behalf of the respondent that an order for security for costs could be made in this case pursuant to the inherent jurisdiction of the court to prevent an abuse of process in circumstances where the applicant is a “man of straw” and not in a position to meet an order for costs and demonstrated by the position in relation to the previous judicial review proceedings. In the absence of any authority to support the respondent’s contentions in this regard and having regard to the passage referred to above from the Judgement in the Lancefort case and fortified by the passage referred to above from Delaney and McGrath, I cannot see any basis at this stage to make an order for security for costs.
As indicated above, the second relief sought related to the issue of an undertaking as to damages pursuant to the provisions of O. 84, r. 20(6) of the Rules of the Superior Courts. Order 84, r. 20(6) provides:-
“If the Court grants leave, it may impose such terms as to costs as it thinks fit and may require an undertaking as to damages.”
Reference was made in the course of argument to the decision of the High Court in the case of Broadnet Ireland Limited v. Office of the Director of Telecommunications Regulation [2000] 3 IR 281. In that case a company which obtained leave to apply for judicial review was required to provide an undertaking as to damages. She noted that that case was the first occasion on which the High Court had been asked to require an undertaking as to damages from an applicant for judicial review who had not sought a stay or an interim or an interlocutory injunction. She went on to say at p. 295 of the judgment:-
“I am satisfied as a matter of construction of sub-rule 6 in the overall context of O. 84, that the courts jurisdiction to require an undertaking as to damages provided for in that sub-rule is not limited to situations in which a stay is granted under sub-rule 7(a) or an interim injunction is granted under sub-rule 7(b). Sub-rule (6) by implication recognises that granting leave to impugn the decision of a public body may have the potential to cause damage and having regard to the provisions of
r. 22(2), which requires service of an application for judicial review ‘on all persons directly affected’, recognises that it has the potential not only to cause damage to the public body in question but also to third parties affected by the decision of the public body. In any such situation the court has a discretion to condition the leave by imposing a term or terms including a requirement that the person seeking the leave give an undertaking as to damages. In my view, sub-rule (6) is open to the construction that the court may, at leave stage, on its own motion so condition the grant of leave. While it is not disputed in the instant case that, after leave is granted, the court can entertain an application from a respondent or a notice party that an undertaking as to damages should be required, I have no doubt that this course is open under sub-rule 6, because the application for leave being an ex parte application, a respondent or a notice party has no opportunity to seek an undertaking until after leave is granted. I would suggest, however, that an application by a respondent or a notice party should seek, as some of the parties in the instant case have sought, that it be a term of the continuance of leave and the proceedings that an undertaking as to damages be given by the applicant. As a matter of substance, that is what all of the parties seeking an undertaking as to damages in the instant case seek.”
In coming to that conclusion Laffoy J. then went on to consider the basis upon which the court should exercise the discretion given by sub-rule 6 and in that regard she identified as being most helpful the decision in the case of the House of Lords in American Cyanamid Company v. Ethicon Limited [1975] A.C. 397. She then went on to say at p. 300:-
“In considering whether to exercise the discretion under sub-rule 6 to require an undertaking as to damages as a condition to the grant or continuance of leave to apply for judicial review, the essential test is whether such requirement is necessary in the interests of justice or, put another way, whether it is necessary to mitigate in justice to parties directly affected by the existence of the pending application. If, in substance, the existence of the application has an effect similar to the effect of an interlocutory injunction in private litigation – that activity which would otherwise be engaged in is put ‘on hold’ pending final determination of the controversy, with resulting loss and damage – in my view, it is appropriate for the court to adopt the approach traditionally adopted in private law litigation in determining whether an interlocutory injunction should be granted and to require that the applicant should give an undertaking to make good that loss and damage if it is ultimately found that the applicant’s case is unsustainable, provided there is no countervailing factor arising from the public law nature of the jurisdiction it exercises under O. 84 which precludes it from adopting that approach.”
Having regard to the circumstances of the applicant in the instant case, counsel on behalf of the respondent urged that as the applicant is a “man of straw”, this was a case in which a fortified undertaking should be obtained. In the decision in Broadnet, Laffoy J. dealt with the question of a fortified undertaking. Having referred to a passage from Bean on Injunctions, 7th Ed. at p. 29 which stated:-
“But where there are doubts about the plaintiff’s resources, the court has a discretion to require either security or the payment of money into court to ‘fortify’ the undertaking, or (as an alternative) an undertaking, from a more financially secure person or body. This might apply if the applicant is legally aided; or a minor or patient…; or resident outside the jurisdiction (Harman Pictures N.V. v. Osborne [1967] 1 W.L.R. 723); or an unquoted company. In cases where the plaintiff is a subsidiary of a large company and apparently lacking funds it is common for the parent company to be invited to guarantee the undertaking in damages in writing.”
Laffoy J. then went on to note as follows:-
“It is undoubtedly the case that an undertaking from Broadnet would be worthless unless secured. Using the terminology used by the Director, it seems to me that Broadnet ‘backers’ should guarantee each undertaking required in the instant case. …”
I do not think that there is any doubt that this is a case in which it could be said that an undertaking as to damages from the applicant would be worthless unless secured. Having regard to her own solicitor’s comment in the correspondence referred to above to the effect that she is “a man of straw” it could not be said that an undertaking, unless secured, would be of any value. Counsel on behalf of the applicant referred to the decision of the High Court in the case of O’Connell v. Environmental Protection Agency, (Unreported, Herbert J., 5th July, 2001) in which, having referred to the Broadnet Ireland Limited case, Herbert J. at p. 18 stated:-
“Counsel for Colette O’Connell in my judgment correctly pointed to the very real difference between a limited liability company with no assets or capital and Colette O’Connell for whom as a person resident in the State of full age and not under any legal or other disability or incapacity and with some interest in immovable property in the State, an undertaking to pay damages was a very serious matter indeed. The fact that the potential loss to Dungarvan Energy Limited might exceed her ability to make good that loss is no basis for regarding her undertaking as worthless and an abuse of the process of the court. I therefore refuse the application that the undertaking to pay damages which the court requires to be given by Colette O’Connell should be supported in any way whatever by the giving of security or the payment of money into court or otherwise. Counsel informed the court that he had carefully advised Colette O’Connell as to the possible consequences of this undertaking and that he was satisfied that she fully understood them and was prepared to give the undertaking it sought by the court.”
While counsel for the applicant relied on that case in relation to the discussion therein as to the issue of protection of private property rights as against the public law rights at issue in that case, the passage quoted above is of some assistance in weighing the considerations to be borne in mind when exercising the discretion under O. 84, r. 20(6).
I note that in the O’Connell case, Herbert J. was of the view that the fact that private law interests of the applicant in that case were involved together with public law issues, that it was appropriate to look for an undertaking as to damages. As he put it at p.18 of his judgement:-
“…I have concluded that the real substance of this Application is the preservation and protection of private property rights which are normally protected by private law remedies and the apparent public law aspects of this challenge are in fact subsidiary though important issues.”
A similar approach can be seen in the decision in Seery v An Bord Pleanala and Ors., The High Court, unreported, 25 January, 2001, a decision of Finnegan J. At p. 3 of his judgement, he said:-
“The whole tenor of the Applicants’ objection to the proposed development before the planning authority and An Bord Pleanala and on the application for leave before me related to a small portion of the proposed development which would overlook the applicants’ dwelling house. In these circumstances it seems to me that this application does not have the necessary public nature to constitute a countervailing factor such as to justify my exercising my discretion in favour of the applicants and not seek an undertaking as to damages.”
This is a case in which it cannot be said that any private law right of the applicant is engaged. The issue before the court arises only in respect of a public law matter. Therefore, this is a factor to be considered in exercising the discretion of the court under Order 84, Rule 20 (6). That the public law nature of an applicant is a significant countervailing factor to the requirement to furnish an undertaking as to damages was noted by Laffoy J in Broadnet, (p. 300) referred to above, Finnegan J. in Seery (p. 153) and Herbert J. in O’Connell (p. 3). In the circumstances of this case, it seems to me that the public law nature of the claim is such that I do not think I should exercise my discretion to require an undertaking as to damages. I think the position might be different were this one of a series of unsuccessful challenges brought by the applicant to stop a particular development. I am conscious of the fact that this is the second application by the applicant herein which has an impact on the notice party’s development. Nonetheless, I do not think that the fact that the applicant has previously made one unsuccessful application for Judicial Review, albeit on different grounds, is such as to warrant the requirement of an undertaking as to damages where no private law right of the applicant is engaged. Nonetheless, if the court were satisfied that the use of a particular applicant who is a “man of straw” was a deliberate tactic to frustrate the possibility of an undertaking being obtained, fortified or otherwise, that could amount to an abuse of process such as to merit the requirement of an undertaking as to damages even where the matters at issue are of a public law nature. I am not satisfied that there is such an abuse of process in the present case.
Another issue that has to be considered is whether or not the stay should be continued. Reliance has been placed by counsel on behalf of the respondent on the decision in the case of McDonnell v. Brady [2001] 3 IR 588. In the course of the judgment of the Supreme Court in that case, Keane C.J. commented:
“While the learned High Court judge took the view that the onus was on the respondents to satisfy the court, in the light of the criteria laid down in American Cyanamid v. Ethicon Limited [1975] AC 396, including the balance of convenience, that the stay granted should be discharged, it could be plausibly contended that, on the contrary, the onus rests on the applicant to satisfy the court, where it is challenged, that it should be kept in place. There is nothing in the wording of
O. 87, r. 20(7)(a), to suggest that, where an applicant for leave seeks an order of prohibition or certiorari, he is further entitled ex debito justitiae, to a direction that the proceedings should be stayed. There seems no reason in logic why the applicant, where the grant of the stay is subsequently challenged should not be under an onus to satisfy the court that it is an appropriate case in which to grant such a stay.”
Accordingly, it was held in that case that the principles applicable to the granting or discharge of a stay were the same as those governing the granting of interlocutory injunctions. It was noted by Finnegan J. in the case of Seery v. An Bord Pleanála [2001] 2 ILRM 151 at p. 152:-
“On an application for interlocutory injunctive relief a court would not attempt to resolve conflicts of fact or questions of law or otherwise evaluate the strength or weakness of the respective position of the parties and it should not do so here.”
I therefore do not propose to consider or evaluate the respective cases of the parties herein. Suffice to say that the applicant succeeded in being granted leave to seek judicial review and that being so has clearly demonstrated that there are arguable grounds for doing so.
The works affected by the stay relate and can only relate to implementing the decision to extinguish the public right of way. I note from the submissions on behalf of the applicant that there would be no objection to “technical and/or administrative matters which the respondent could usefully carry out” prior to the hearing of the application for judicial review, however, there is an objection to works being carried out on the existing road prior to the conclusion of this matter.
I accept that in the present case the notice party has been delayed in his development for a very considerable time with the consequence as set out in the affidavit of Mr. Gillespie, the notice party sworn herein on the 14th April, 2005, to the effect that he has been occasioned further expense and losses as a result of the delays herein. I also note the decision in the case of McDonnell v. Brady to the effect that the granting of a stay should be considered in the same light as the granting of an interlocutory injunction. That decision was followed by the case of Norbrook Laboratories v Irish Medicines Board, unrep., High Court, Kelly J. 21 December 2001. Having regard to the principles referred to in McDonnell v. Brady, I do not think this is an appropriate case in which to lift the stay in its entirety. Counsel for the notice party made very helpful submissions on the issue as to the strength of the applicant’s case but in essence what should be considered is where the balance of convenience lies as pointed out by Kelly J. in Norbrook at p. 6 of the judgement in that case. Bearing in mind that the works presently stayed involve the re-alignment of the public road it is my view that the balance of convenience favours the applicant. However, as was noted earlier, there is no objection to some preliminary works being carried out and I will hear the parties as to the extent to which this can be done.
Approved: Dunne J.
Balz v An Bord Pleanála
[2016] IEHC 134
JUDGMENT of Mr. Justice Bernard J. Barton delivered on the 25th day of February, 2016
1. The first named Applicant is an owner in common of approximately 1.0344 hectares of land located at Cleanrath North, Inchigeelagh, Co. Cork. He and the second named Applicant set up home on those lands. They have three children and are engaged in the horticultural gardening and forest business.
2. On the 9th June, 2011 the second named Notice Party, Cleanrath Windfarms Ltd (Cleanrath) applied to the first named Notice Party, Cork County Council (the Council) for planning permission in respect of the development of 11 wind turbines of up to 126 meters height with ancillary structures including an 85 meter meteorological mast, a substation compound, an internal road network, two borrow pits, underground cabling, a temporary construction compound and associated works in the townlands of Cleanrath North, Cleanrath South and Derrineanig, Co. Cork.
3. On the basis of the planning application as submitted, the nearest of the wind turbines to the Applicants’ home would, if erected, be located at a distance of approximately 650 meters.
4. The proposed development falls within the scope of part 5, schedule 2 of the Planning and Development Regulations 2001. Accordingly, the application for planning permission was accompanied by an Environmental Impact Statement (EIS).
5. The purpose of an EIS is to facilitate the planning authority in fulfilling its obligations under sections 171 and 172 of the Planning and Development Act, 2000, (the PDA) which, where applicable, require an Environmental Impact Assessment (EIA) to be carried out in order to determine the likely direct and indirect effects of the proposed development on the receiving environment. These provisions were enacted for the purposes of transposing into Irish law the State’s obligations under Directive 2011/92/EU (The EIA Directive).
6. On the 7th July, 2011 the Applicants lodged an observation with the Council in which they outlined their opposition to the proposed development on a number of grounds including the visual and environmental impacts it would have on the immediate locality and on certain Natura 2000 sites nearby. The Council sought further information from Cleanrath. This was supplied on the 18th April, 2012. The request required, inter alia, the submission of a Natura Impact Statement (NIS) the purpose of which was to detail the likely impacts of the proposed development on any Natura 2000 habitats in the locality which were designated and protected under EU Council Directive 92/43/EEC (The Habitats Directive).
7. A number of such habitats were identified :
(i) The Gearagh Special Area of Conservation (site code 000108),
(ii) The Gearagh Special Protection Area (site code 004109); and,
(iii) Mullaghanish to Musheramore Special Protection Area (site code 004162).
8. Section 177 of the Planning and Development Act 2000 gives effect to the Habitats Directive by requiring the planning authority or, on appeal, An Board Pleanala (the Board) to carry out an Appropriate Assessment (AA) pursuant to which it is obliged to consider and make a determination in respect of the potential impacts which the proposed development would or might likely have on any nearby “Natura 2000” sites. The submission of the NIS by Cleanrath was designed to assist the planning authority in carrying out such an assessment.
9. On the 8th June 2012, the Council refused planning permission for three stated reasons which may be summarized as follows:
(1) The proposed development would be premature by reference to the existing deficiency in the road networks serving the area of the proposed development; details of which were set out and as a result of which the Council concluded that the proposed development would be contrary to the proper planning and sustainable planning of the area.
(2) The proposed development would be partly located within habitats of high conservation value, which included habitats listed on annex 1 of the Habitats Directive, such as active Blanket Bog, Dry Heath, North Atlantic Wet Heath and Erica Tetralix which were key features of the County ecological network. The County of Cork Development Plan 2009 has a stated objective under ENV 19 to minimize the impact of new developments on habitats of natural value that are key features of the ecological network in the County. For reasons which were set out, the Council considered that the proposed development would materially contravene the stated objective of the county development plan and, hence, be contrary to the proper planning and sustainable development of the area.
(3) The site of the proposed development was located within the zone of influence of areas of ecological sensitivity, which included lands designated as Special Areas of Conservation (SAC) and Special Protection Areas (SPA). On the basis of the information submitted the Council was not satisfied that the proposed development would not have significant negative impacts on habitats of ecological value designated for conservation and protection and on the integrity of any Natura 2000 site. In its view the NIS lacked sufficient information to enable an AA to be completed in accordance with the requirements of the PDA, as amended, and accordingly the development would conflict with the conservation objective of the development plan and would be contrary to the proper planning and sustainable planning of the area.
10. On the 5th July, 2012 Cleanrath appealed the decision of the Council to the Board.
11. The first named Applicant did not make a personal observation in respect of the appeal. However, he was a party to and signed an observation on his own behalf and on behalf of the 2nd Applicant which was lodged by Mr. Patrick Crowley on behalf of the ‘concerned communities’ of Derrineanig, Cleanrath, Inchigwela and Renanirree. Amongst a number of matters of ecological concern, this observation sought to bring to the attention of the Board deficiencies in the NIS submitted by Cleanrath. Concerns were also expressed in relation to the absence of any contact by those compiling the EIS with Dr. Alan Mee – an expert in the white tailed sea eagle, ( a species listed on annex 1 of the Birds Directive ) which had been identified as being particularly vulnerable to impact from wind turbines.
12. There were a number of other submissions, including observations by the Irish Peat and Conservation Council and An Taisce, which identified the proposed development as one which threatened the survival of protected peat land habitat having annex 1 status. Furthermore, the observations sought to draw the attention of the Board to the fact that the development site was located within the catchment of the Toon and Lee Rivers which flow into Loch Allua and The Gearagh with the consequence that the proposed development had hydrological links to the Natura 2000 sites which had been identified and therefore was a development within a zone of influence of areas of ecological sensitivity.
13. Additionally, attention was drawn to the potential consequences of the excavations necessary on the development site to provide foundations for the wind turbines, including the effect on the water courses leading from the surrounding rivers into the Lee up stream of the Natura 2000 sites. Furthermore, there were potential effects on the water course environments which included unique fresh water sponges and fresh water pearl mussels listed on annex 2 of the Habitats Directive.
14. In a detailed report addressing ecological and related concerns submitted by Mr. Kevin Corcoran, environmental biologist, an increased risk of downstream flash flooding and associated consequences was also identified for the Gearagh sites in the event that any serious changes were caused to the high quality of the River Toon which flows directly into the Gearagh system.
15. The Board appointed an Inspector, Ms. Auriol Considine, to prepare a report which she completed on the 5th October, 2013. An EIA and the AA were purportedly considered in her report. The Inspector recommended that planning permission be granted save in respect of four specific turbines which, in her consideration of the EIA, she recommended be omitted from the scheme of development in the interests of visual and residential amenity. The Board did not accept the Inspector’s recommendation. It concluded that the proposed development would not materially contravene the county development plan; that, having carried out an EIA, it would not have a significant adverse effect on the receiving environment; and that, having carried out an AA; it would not adversely affect the integrity of the Natura 2000 sites. On the 23rd April, 2012, the Board granted permission for the development for the reasons and considerations and upon the conditions set out in its decision.
The proceedings.
16. By order of the 17th June, 2013 Peart J. gave the Applicants leave to seek an order of Certiorari by way of an application for Judicial Review, to quash the decision of the Respondent to grant planning permission and to seek a number of declarations which may be summarized as follows:
(a) A declaration that the Respondent failed to carry out an EIA in accordance with requirements of s. 172 of the Act of 2000 as amended and as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment; and,
(b) A declaration that the Respondent failed to carry out an AA in accordance with the requirements of s. 177V of the PDA;
(c) A declaration that Condition 7(a) of the permission was ultra vires and not severable from the remainder of the permission. (This was not proceeded with at the hearing).
(d) If considered appropriate, an Order remitting the decision back to the Respondent.
These reliefs were sought upon the grounds set out in the Applicants’ statement of grounds, the first of which was an alleged failure on the part of the Board to comply with the provisions of s. 37 (2) (b) and (c) of the PDA.
Statutory Framework.
17. These proceedings are concerned with the lawfulness of the decision by the Board to grant planning permission for the proposed development against a background where the Council had refused permission on the basis of ecological concerns and by reason of material contravention. Having regard to the nature and location of the proposed development there were, as part of the planning process, three separate and distinct matters which had to be considered and dealt with by the Board and which were in controversy between the parties. These are summarised as follows:
(i) The carrying out of an EIA as required by the EIA Directive as implemented by Part X of the PDA,
(ii) The carrying out of an appropriate assessment as required by Article 6 (3) of the Habitats Directive as implemented by Part XAB of the PDA; and,
(iii) In consideration of the general planning and procedural requirements by the Board, whether or not the proposed development contravened the Cork County Development Plan.
(1) General planning requirements and procedures.
18. Section 146 of the PDA provides:
“(1) The Board or an employee of the Board duly authorized by the Board may in connection with the performance of any of the Board’s functions under this Act, assign a person to report on any matter on behalf of the Board.
(2) A person assigned in accordance with subsection (1) shall make a written report on the matter to the Board, which shall include a recommendation, and the Board shall consider the report and recommendation before determining the matter.”
It was on foot of these provisions that the Board appointed Inspector Considine to prepare and submit her report. In compliance with the provisions of s.146 (2), the report contained her recommendations one of which was that turbines 3, 4, 6 and 7 should be omitted in the interests of visual and residential amenity; the practical effect of that recommendation, if it had been accepted, would have been tantamount a refusal of permission for that part of the proposed development.
19. I pause here to observe that in her report the Inspector had recommended the omission of these turbines when addressing the subject of “visual amenity” . However, when considering “residential amenity”, she had also made a finding that the proposed development was not acceptable in terms of the shadow flicker potential relating to turbines 2, 3, 4 and 6.
20. In this regard she recommended that a condition should be attached omitting those turbines on that ground and also recommended the non operation of the other turbines at times when the predicted shadow flicker might occur adversely effecting the adjacent houses. As to that she had made certain findings concerning the potential affect of shadow flicker on dwellings in the vicinity, including the home of the Applicants, albeit that these were located more than 500 meters from the nearest turbine.
21. When setting out the reasons, the considerations, the conclusions and final recommendation in relation to ‘visual and residential amenity’, the Inspector did not include turbine 2. Whilst the omission of turbines 3, 4 and 6 were common to the recommendations in the body of the report relating to both ‘visual’ and ‘residential amenity’, and turbine 7 had been specified in relation to ‘visual amenity’, the non inclusion of turbine 2 in the final recommendation was not explained by reason of mistake, oversight, or otherwise.
22. Section 34 (10) of the PDA provides that the notification of the decision is required to state the main reasons and considerations on which the decision is based, and, where conditions are imposed in relation to the grant of any permission, the main reasons for the imposition of any such conditions. Furthermore, main reasons must also be given where a recommendation of the Inspector is not accepted. Subparagraph (b) provides:
“(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in—
(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the case of a planning authority, or
(ii) a report of a person assigned to report on an appeal on behalf of the Board,
a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission.”
23. The Board took a different view from that of the Inspector in relation to the omission of turbines 3, 4, 6, and 7, and, in purported performance of the provisions of s. 34(10) (b), indicated in the decision the main reasons for not accepting the recommendation. The adequacy and recording of the main reasons and considerations as stated by the Board, in particular with regard to the main reasons indicated for not accepting the Inspector’s recommendation, was in contention between the parties.
(II) Environmental Impact Assessment.
24. It was accepted on the facts of this case that the Board was obliged to carry out an EIA. The obligations of the Board in this regard are to be found in Part 10 of the PDA which implements the EIA Directive. The nature and extent of the obligation imposed by Article 3 was considered by the CJEU in Commission v. Ireland (case C-50/09) where at para. 37 the court stated:
“In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine itself to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an appropriate manner, in light of each individual case”.
25. Commenting on the obligation as well as the nature and extent of the assessment which was required to be undertaken at the end of the decision making process, the Court at para. 40 stated:
“…however, that obligation to take into consideration, at the conclusion of the decision making process, information gathered by the competent environmental authority must not be confused with the assessment obligation laid down in Article 3…indeed, that assessment, which must be carried out before the decision making process…involves an examination of the substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate, with additional data. The competent environmental authority must thus undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project concerned and the factors set out in the first three indents of Article 3 and the interaction between those factors.”
Article 3, so construed, was transposed into Irish law by amendments to the PDA 2000, specifically by s. 171 (A) and s. 172 (IJ) (c).
26. For the purposes of Part X, section 171A(1) defines an EIA as:
“An assessment which includes an examination, analysis and evaluation carried out by…the Board…in accordance with this part and regulations made there under, that shall identify, describe and assess in an appropriate manner, in light of each individual case and in accordance with Article 4 – 11 of the Environmental Impact Assessment Directive, the direct and indirect effects of a proposed development on the following:
(a) Human beings, flora and fauna;
(b) Soil, water, air, climate and the landscape;
(c) Material assets and the cultural heritage and
(d) The interaction between the factors mentioned in paragraph. (a) (b) and (c).”
27. The Applicants contend that the Board was in breach of these provisions in the purported carrying out of its EIA. Section 172 (1H) permits the Board, when carrying out an EIA, to “have regard to and adopt in whole or in part any report prepared by its officials or by consultants, experts or other advisors”. As the planning Inspector is an official of the Board, her report could be and was expressly adopted by the Board save for the recommendation in relation to the omission of the 4 turbines.
28. Where the Board decides to grant or refuse permission for the proposed development it is obliged to inform the Applicant for permission and the public of the decision and is required to make certain information available; see s. 34 and s.172 (1J). The information to be provided under the latter is:
“(a)The contents of the decision and any conditions attaching thereto;
(b) An evaluation of the direct and indirect effects of the proposed development on the mattes set out in section 171A;
(c) Having examined any submission or observation validly made:
(i) The main reasons and considerations on which the decision is based and
(ii) The main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions or observations made by members of the public;
(d)Where relevant, description of the main measures to avoid, reduce and, if possible, offset the major adverse effects;
(e) Any report referred to in subsection (1H);
(f) Information for the public on the procedures available to review the substantive and procedural legality of the decision, and
(g) The views, if any, furnished by other member states of the European Union pursuant to section 174.”
Central to the submissions made by the parties is the extent and meaning of the phrase “examination, analysis and evaluation” which appears in the definition of an EIA together with the obligations of the Board under section 172 (1J) (b) to make available to the public its evaluation of the direct and indirect effects of the proposed development on the matters set out in section 171A.
(III) Appropriate Assessment.
29. It was accepted that the Board was required to carry out an AA pursuant to Article 6 of the Habitats Directive as implemented by Part XAB of the PDA. On the face of its decision the Board purportedly did so; the lawfulness of which is challenged by the Applicants. It is appropriate to observe at this juncture that a similar provision to s. 172 (1H), which permits the Board to adopt in whole or in part any report prepared by its officials, consultants experts or other advisors, has not been enacted in relation to the carrying out of an AA. The Applicants argued that that must be considered by the court to be intentional on the part of the Oireachtas, the result of which was that the Board itself had to carry out the AA. The adoption of that part of the Inspectors report relating to the AA was not permissible, however, where the Board expressly accepted the findings of the Inspector in relation to the AA, this could not satisfy the requirement to carry out its own AA in respect of that part of the development which had been the subject of the Inspectors recommendation which the Board did not accept.
30. Whereas the provisions of Part XAB are more detailed than those of Article 6 of the Habitat’s Directive, it was accepted that the effect of these provisions is to impose on the Board obligations similar to those imposed by Article 6 (3).
31. Article 6 of the Directive of the Habitat’s Directive, in so far as relevant, provides:
“2.Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.”
32. Article 6 (3) envisages a two stage process. For the purposes of Irish domestic law this provision was implemented by sections 177U and 177V of the PDA which provide for:
(i) Screening for appropriate assessment in accordance with s.177U; and
(ii) Where the Board accepts or determines as a result of screening for an AA in accordance with s. 177U that an AA is required, it must carry out an AA in accordance with the provisions of s. 177V.
33. Although s. 171A (1) contains a definition of an EIA for the purposes of Part X, s. 177 does not contain an equivalent provision in respect of an AA. Subsection 177V (1) provides that:
“An appropriate assessment carried out under this part shall include a determination by the competent authority under Article 6 (3) of the Habitat’s Directive as to whether or not …the proposed development would adversely effect the integrity of a European site”.
Given that the effect of s. 177V (1) is to require the Board to make a determination as to whether or not the proposed development would adversely affect the integrity of a European site, it follows that an AA carried out by it must comply with the requirements of Article 6 (3) of the Habitat’s Directive as construed by the case law of the CJEU.
34. It is also clear from the wording of s. 177V (1) and subs. (3) that the Board is required to carry out an AA before consent is given for a proposed development and that notwithstanding other provisions of the PDA and other Acts referred to, the Board is required to give consent to a proposed development only after having made a determination that the proposed development would not adversely affect the integrity of a European site.
Legal requirements of an appropriate assessment.
35. The requirements and legal test applicable to an AA have been considered by the CJEU in a number of cases. In “Waddenzee (case C-127/02) (2004) E.C.R.1-7405 at para. 61 of the judgment the court stated:
“…under Article 6 (3) of the Habitat’s Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.”
36. In essence what is imposed on the planning authority, or the Board on appeal, is an obligation to reach a conclusion, as a matter of certainty, that the proposed development will not adversely affect the integrity of the European site in question in light of its conservation objectives. The standard required to support such a conclusion is that the planning authority, or the Board, must satisfy itself on the basis of complete, precise and definitive findings and conclusions that no reasonable scientific doubt remains as to the absence of such affects.
37. That this is so was subsequently confirmed by the CJEU in the decision of Commission v. Spain (case C-404/09) (2011) E.C.R. I-11853 where at para. 100 of the judgment the court stated:
“An assessment made under Article 6(3) of the Habitats Directive cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the SPA concerned”.
As to the appropriate level of scientific knowledge necessary to inform the obligation to identify the affects of the proposed development on European sites in light of their conservation objectives, the Court observed at para. 99 of its judgment that the obligation was to be discharged “..in the light of the best scientific knowledge in the field”, the test being that “..no reasonable scientific doubt remains as to the absence of such effects”.
38. These views were again reiterated by the CJEU in the case of Sweetman v. An Bord Pleanála (case C-258/11) where the Court also observed that “..it is for the national court to establish whether the assessment of the implications for the site meets these requirements”.
39. Unlike the provisions of 171A (1), which requires that such an assessment must include an ‘examination, analysis and evaluation’ by the planning authority, or the Board, no such wording appears in s. 177V (1). This difference fell for consideration in the case of Kelly v. An Bord Pleanála (2014) IEHC 400 where Finlay Geoghegan J. observed at para. 39:
“Section 177V (1) must be construed so as to give effect to Article 6 (3) of the Habitat’s Directive, and hence, an appropriate assessment carried out under the section must meet the requirements of Article 6 (3) as set out in the CJEU case law. If an appropriate assessment is to comply with the criteria set out by the CJEU in the case referred to, then it must, in my judgment, include an examination, analysis, evaluation, findings conclusions and a final determination.”
40. The acceptance by the Board of the necessity to carry out an AA, or where it concludes, as a result the screening process, that an AA is required, implies that the proposed development is considered likely to have significant affects on a European site.
41. The stringent requirements necessary to be met in order to constitute a lawful AA as set out and summarised in Kelly, which the court adopts, are as follows:
“(i) Must identify, in the light of the best scientific knowledge in the field, all aspects of the development project which can, by itself or in combination with other plans or projects, affect the European site in the light of its conservation objectives. This clearly requires both examination and analysis.
(ii) Must contain complete, precise and definitive findings and conclusions and may not have any lacunae or gaps. The requirement for precise and definitive findings and conclusions appears to require analysis, evaluation and decisions. Further, the reference to findings and conclusions in a scientific context requires both findings following analysis and conclusions following an evaluation each in the light of the best scientific knowledge in the field.
(iii) May only include a determination that the proposed development will not adversely affect the integrity of any relevant European site where upon the basis of complete, precise and definitive findings and conclusions made the Board decides that no reasonable scientific doubt remains as to the absence of the identified potential effects.
Hence in my judgment the full appropriate assessment required by s. 177V (1) must include all of the above elements and not just the determination expressly referred to in the subsection.”
42. The meaning of the expression “adversely affect the integrity of the site” was also considered in Sweetman. At para. 39 the court stated that:
“Consequently, it should be inferred that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6 (3) of the Habitat’s Directive, the site needs to be preserved at a favourable conservation status; this entails, as the advocate general has observed in points 54 to 56 of her opinion, the lasting preservation of the constitutive characteristics of the site concerned that are connected to the presence of a natural habitat type whose preservation was the objective justifying the designation of that site in the list of SCIs, in accordance with the Directive”.
43. The opinion of the Advocate General given at para. 56 was :
“.. that the constructive characteristics of the site that will be relevant are those in respect of which the site was designed and their associated conservation objectives. Thus, in determining whether the integrity of the site is affected, the essential question the decision maker must ask is “why was this particular site designated and what are its conversation objectives?..”
Appropriate Assessment and Reasons.
44. Whilst there was no dispute as to the obligation on the Board under s. 177V (5) to give reasons for the determination to be made under Article 6 (3) of the Habitats Directive, at issue was the extent and nature of the reasons which must be given. The Applicants submitted that where the Board determines that the proposed development would not adversely affect the integrity of any European site having regard to the conservation objectives of such a site, then the reasons must include ‘complete precise and definitive findings and conclusions capable of removing all scientific doubt as to the effects of the proposed development on the site in light of the conservation objectives applicable to that site’. It was argued that the stating of such reasons was required, inter alia, so that the public, and the Court on an application for judicial review, should be able to ascertain whether or not an AA had been conducted in accordance with the requirements of Article 6 (3).
45. A similar argument in relation to the sufficiency of reasons advanced by the Applicants in this case was made by the Applicant and the Department of the Arts Heritage and the Gaeltacht in the case of Kelly which also involved a challenge to the EIA and the AA carried out by the Board. On the AA, the learned judge stated that:
“48. I have concluded that the submission made on behalf of the Applicant and the Department is correct. First, the essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision and in the event of a challenge being brought, the court must have access to sufficient information to enable an assessment as to lawfulness to be made. On the facts of this judicial review, the challenged decisions are those to grant planning permissions. However, the grounds of challenge include the failure of the Board to carry out a proper or lawful appropriate assessment under Article 6(3) as implemented in Ireland. For the reasons already stated in this judgment, the Board could not make a lawful decision to grant planning permission unless it had reached a lawful determination, in an appropriate assessment lawfully conducted, that the proposed development would not adversely impact on the European sites in question. In accordance with the CJEU decision in Sweetman, it is for the national court to determine whether the appropriate assessment (including the determination) was lawfully carried out or reached, and to do so, it appears to me that the reasons given for the Board’s determination in an appropriate assessment must include the complete, precise and definitive findings and conclusions relied upon by the Board as the basis for its determination. They must also include the main rationale or reason for which the Board considered those findings and conclusions capable of removing all scientific doubt as to the effects of the proposed development on the European site concerned in the light of the its conservation objectives. In the absence of such reasons, it would not be possible for a court to decide whether the appropriate assessment was lawfully concluded or whether the determination meets the legal test required by the judgments of the CJEU.
49. Secondly, it appears to me that whilst the requirement for an appropriate assessment has been implemented in Ireland by amendment of the Planning Acts and requires to be carried out inter alia as part of the planning process, the determination which must be made by the Board as competent authority is not a “planning decision” in the sense used in the judgments relating to reasons relied upon by the Board. In such a planning decision, the Board is exercising a jurisdiction with a very wide discretion. By contrast, the determination it must make as part of an appropriate assessment is significantly narrower and legally constrained as explained in the CJEU cases cited. It also determines the Board’s continuing jurisdiction to grant planning consent, and therefore a decision which goes to its jurisdiction.
46. Apart from the controversy as to whether or not with regard to an AA it was the Board itself which was required to make the findings and reach the necessary conclusions on which to base its decision, there was also an issue as to whether the reasons upon which it was based had to be stated in the decision or could be ascertained by reference to that and / or the report of the Inspector. As has already been observed, the Board is empowered under s. 146 of the PDA, in connection with the performance of any of its functions, to assign a person to report on any matter on its behalf and must consider the report and recommendation submitted before making a determination.
47. That the report of the Inspector might be referred to for the purposes of ascertaining the reasons for the decision by the Board was commented upon in Kelly. Finlay Geoghegan J. observed that where the Board appoints an Inspector to prepare a report and the Inspector carries out an AA as part of his or her report, it may be that if the Board, on consideration, accepts the relevant findings made and conclusions reached by its Inspector, that production of the report may satisfy some or all of the obligations on the Board to give reasons for its determination, though that would depend on the relevant facts. It would seem to follow from this statement that, depending on the facts of a given case, reference to the report as a source or record of the findings, conclusions and some or all of the reasons for the decision is permissible where there has been an acceptance by the Board of the relevant findings made and conclusions reached by the Inspector.
48. The Applicants in this case argue that in the absence of a statutory power entitling the Board to adopt the report of the Inspector, then the relevant findings made and conclusions reached had to be those of the Board itself. However, if that proposition was not correct, it was submitted that, absent the power to adopt the report, there had to be an express acceptance on the face of the decision by the Board of the Inspectors findings and conclusions.
Effects on the decision making process relating to an EIA and an AA.
49. The statutory provisions in relation to the carrying out of an EIA and an AA have quite different effects on the decision making process of the Board. As to these it was stated in Kelly that:
“33. In carrying out an environmental impact assessment, the Board is required to conduct an examination, analysis and evaluation of and identify the direct and indirect effects of the proposed developments on the matters specified in section 171A(1). However, the outcome of that examination, analysis, evaluation and identification informs rather than determines the planning decision which should or may be made. The Board has jurisdiction in its discretion to grant consent regardless of the outcome of the EIA though of course it impacts on how it should exercise its discretion.
34. In contrast, the Board, in carrying out an appropriate assessment under Article 6(3) and s.177V, is obliged, as part of same, to make a determination as to whether or not the proposed development would adversely affect the integrity of the relevant European site or sites in view of its conservation objectives. The determination which the Board makes on that issue in the appropriate assessment determines its jurisdiction to take the planning decision. Unless the appropriate assessment determination is that the proposed development will not adversely affect the integrity of any relevant European site, the Board may not take a decision giving consent for the proposed development unless it does so pursuant to Article 6(4) of the Habitats Directive”.
Judicial review in planning matters.
50. The accepted view of the law on the case authorities in relation to judicial review in planning matters is that the court is not entitled to identify or concern itself with the correctness of the decision reached by the planning authority or the Board, rather the court is concerned only with the lawfulness of that decision. In this regard there is a presumption, in the absence of evidence to the contrary, that the planning authority or the Board has performed its functions in accordance with the legal obligations placed upon it. See Klohn v. An Bord Pleanála [2009] 1 IR 59 McMahon J, and Lancefort Ltd v. An Bord Pleanála [1998] 2 IR 511. It may also be said that the planning correctness or merits of the decision of the planning authority, or the Board, are not subject to judicial review where there was sufficient evidence before the planning authority or the Board which enabled it to make its decision.
51. In Power v. An Bord Pleanála [2006] IEHC 454 Quirke J. referring to the jurisdiction of the Court stated:
“It is decidedly not a function of this court to substitute itself for the Board for the purposes of determining whether it believes that the decision made was the correct one. This court has neither the jurisdiction nor the competence to undertake such an exercise.”
52. The learned judge also observed that in the absence of evidence of illegality the courts will not intervene by way of judicial review to quash decisions of administrative tribunals.
53. The onus of proof cast on an Applicant for judicial review of a decision to refuse or grant permission on the grounds of unreasonableness has been commented upon in a number of decisions and in this regard Finlay C.J. in his judgment in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 stated:
“I am satisfied that in order for an Applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the Applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.”
The burden of proof and the jurisdiction of the Court to interfere with a planning decision on judicial review were also considered by Charleton J. in Weston Ltd v. An Bord Pleanála [2010] IEHC 255 where he stated:
“The burden of proof of any error of law, or fundamental question of fact, leading to an excess of jurisdiction, or of demonstrating such unreasonableness as flies in the face of fundamental reason and common sense, rests on Weston the Applicant in these proceedings. Once there is any reasonable basis upon which the planning authority or An Bord Pleanla can make a decision in favour of, or against, a planning application or appeal, or can attach a condition thereto, the court has no jurisdiction to interfere.”
Referring to the presumption of validity of the decision and the onus of proof placed on an Applicant he went on to observe:
“The onus of prove [sic] in establishing that An Bord Pleanla did not consider the question of environmental impact assessment and thereby rebutting the presumption of validity of the Bord’s decision, lies squarely on the Applicant.”
54. The planning process involved in this case required the provision of an EIS by Cleanrath and the carrying out by the Board of an EIA in order to enable the Board to assess, evaluate, make findings and reach a conclusion in relation to the likely significant effects on the receiving environment of the proposed development. The EIS and EIA are part of the planning process but are not the sole basis upon which the Board reaches its decision. Commenting on the difference between these in the context of the planning process, McMahon J. in Klohn observed that:
“It is also worth emphasising that the environmental impact statement is a document submitted by the developer, the terms of which are set when it is submitted. In contrast, the environmental impact assessment is a process which is an ongoing exercise undertaken by the decision maker. A great deal can happen, and a great deal of information can be accumulated, between the lodging of the environmental impact statement by a developer and the final decision by the planning authority or by An Bord Pleanála.”
55. Whereas the EIS must comply with the relevant planning regulations, the adequacy of the information supplied in it is primarily a matter for the decision maker. Once the statutory requirements have been satisfied the court is not concerned, in planning terms, with the qualitative nature of the EIS or with any discourse upon it by the Inspector.
56. The bona fide exercise by the Board of its discretion in relation to matters of planning is not something with which the Court will intervene. The reason for this was succinctly explained by McMahon J. in Klohn
“The legislature, in its wisdom, vested the power to make such a decision in a body which has expertise and experience in these matters. Such a body is much better qualified and in a much better position to make such technical decisions in this specialised area than the Court, which has to rely on expert evidence to inform it in these cases. The courts will only interfere in such decisions where they appear so irrational that no reasonable authority or decision maker in this position would have made such a determination.”
57. Commenting on the obligation to state reasons and considerations under s. 34(10), including the obligation to give main reasons for granting or refusing permission when the Board disagrees with a recommendation of its Inspector, Hedigan J. in O’Neill v. An Bord Pleanála [2009] IEHC 202 summarised the appropriate principles as follows:
“First, it is well-established as a general rule that reasons need not be discursive. This was made clear by Murphy J. in the decision of O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750. He stated at p. 757:
‘It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of [its] deliberations’
However, this principle is not without limits and it is apparent that a standardised or formulaic decision will not suffice. Indeed, in O’Donoghue , Murphy J. went on to state, also at p. 757:
‘[T]he need for providing the grounds of the decision… could not be satisfied by recourse to an uninformative if technically correct formula.’
28. The Respondent, therefore, is not obliged to engage in a lengthy review or analysis of its own reasoning when communicating its decision. Furthermore, and of particular relevance for present purposes, section 34(10)(b) only requires that the Respondent should explain its decision to differ from the overall recommendation of an Inspector, as opposed to the specific conditions suggested by him or her. In Dunne v. An Bord Pleanála [2006] IEHC 400, McGovern J. stated as follows:
‘It seems to me that the submission of the first Respondent is correct and that there is no obligation on the first named Respondent to give reasons why it disagreed with its planning Inspector on a particular condition which was recommended by the Inspector to be imposed.’
29. The second principle of general application is that the adequacy of reasons should be assessed from the perspective of an intelligent person who has participated in the relevant proceedings and is apprised of the broad issues involved. This requires that the Respondent’s decision should not simply be read in isolation but rather in conjunction with any conditions attached thereto. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Finlay C.J. stated the following:
‘I am satisfied that there is no substance in the contention made on behalf of the plaintiff that the Board should be prohibited from relying on a combination of the reason given for the decision and the reasons given for the conditions, together with the terms of the conditions. There is nothing in the statute which would justify such a rigid approach and it would be contrary to common sense and to fairness. What must be looked at is what an intelligent person who had taken part in the appeal or had been appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons.’
31. The third and final general principle is that the reasons should provide a certain minimum standard of practical enlightenment. In Mulholland v. An Bord Pleanála [2006] 1 IR 453, Kelly J. held at p. 465 that a statement of reasons must:
‘(1) give to an Applicant such information as may be necessary and appropriate for him to consider whether he has a reasonable chance of succeeding in appealing or judicially reviewing the decision;
(2) arm [the Applicant] for such hearing or review;
(3) [enable the Applicant to] know if the decision maker has directed its mind adequately to the issues which it has considered or is obliged to consider; and
(4) enable the courts to review the decision.’”
58. It follows that, in considering the lawfulness of the decision reached, the court is required to ascertain from the record whether or not the Board complied with the obligations placed upon it in reaching its decision. The adequacy or sufficiency of the statement of reasons identified by Kelly J must be apparent and are to be ascertained from the record. What constitutes the record and whether or not the record in this case is sufficient for the purposes of meeting the requirements necessary to show that the Board complied with its statutory obligations concerning the EIA and AA is in issue.
59. In my judgment, it would seem to follow from the case law of the CJEU and, in particular, the recent decisions of this court on the subject, that deficiencies in the record which result in the court being unable to determine whether or not these obligations have been complied with are fatal to the lawfulness of the decision and cannot be displaced or cured by a presumption that the Board acted lawfully. Such a presumption does not arise or exist in vacuo but is founded upon an appropriate and adequate record of what it was that the Board was required to do in relation to those matters which are called into question.
(1V) Section 37(2) (b) and (c) of the Planning and Development Act 2000.
60. I now propose to deal in turn with the individual grounds on foot of which the decision of the Board is challenged. The first of these concerns the requirements to be satisfied by the Board where, as occurred here, the Council refused permission on the ground that the proposed development would materially contravene the county development plan.
61. The second ground upon which the Council refused permission for the proposed development was as follows:
“The proposed development would be partly located within habitats of high conservation value, including habitats listed on Annex 1 of the Habitats Directive including active Blanket Bog, Dry Heath and North Atlantic Wet Heath with Erica Tetralix which are key features with the county’s ecological network. As indicated in the County Development Plan 2009, it is the Council’s stated objective under ENV1-9 to minimize the impacts of new developments on habitats of natural value that are key features of the county’s ecological network. It is considered that the proposed development would result in the destruction of habitat of ecological value and it would have a major negative impact on an area of high local bio-diversity site value. Therefore, it is considered that the proposed development would materially contravene the states objective of the current County Development Plan and, hence, be contrary to the proper planning and sustainable development of the area.”
Appeal to An Bord Pleanála against a refusal on the ground of material contravention- Statutory Provisions
62. Appeals to the Board are provided for under Section 37 of the PDA.
a. Subsection (1) (b) provides that:
“… where an appeal is brought against a decision of a planning authority and is not withdrawn, the Board shall determine the application as if it had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the planning authority as from the time when it was given; and subsections (1), (2), (3) and (4) of section. 34 shall apply, subject to any necessary modifications, in relation to the determination of an application by the Board on appeal under this subsection as they apply in relation to the determination under that section of an application by a planning authority.”
63. Subsection (2) (a) provides that:
“…subject to paragraph. (b), the Board may in determining appeals under this subsection decide to grant permission even if the proposed development contravenes materially the Development Plan relating to the area of the planning authority to whose decision the appeal relates”.
Subsection (2) (b) provides that:
“Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the Development Plan, the Board may only grant permission in accordance with paragraph. (a) where it considers that:
(I) The proposed development is of strategic or national importance;
(II) There are conflicting objectives in the Development Plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
(III) The permission for the proposed development should be granted having regard to the Regional Planning Guidelines for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or;
(IV) Permission for the proposed development should be granted having regard to the pattern of development, permission granted, in the area since the making of the Development Plan.
Subsection (2) (c) provides “Where the Board grants permission in accordance with paragraph (b), the Board shall, in addition to the requirements of section 34(10), indicate in its decision the main reasons and considerations for contravening materially the Development Plan.”
64. Grounds 7, 8, 9 and 10 of the statement of grounds in these proceedings concern an alleged failure on the part of the Board to comply with the requirements of s. 37(2) (b) and (c) of the PDA.
65. Ground 9 is directed towards the provisions of s. 37(2)(b) which, on the face of it, restrict the power of the Board to grant permission under paragraph (a) for a development where the Council had decided to refuse permission on the grounds that the proposed development materially contravenes its development plan.
66. The Applicants’ case is that the Board erred in law and acted ultra vires in failing to consider whether the proposed development, permission for which had been refused by the Council on the basis of material contravention, would meet one of the four criteria exemplified in sub section (2) paragraph (b) sub paragraphs (i) to (iv); such failure being manifest on the face of its decision.
67. Ground 10 is directed towards the provisions of s. 37(2) (c) of the Act which require the Board, when granting permission in accordance with (2) (b), to indicate in its decision, in addition to the requirements of Section 34 ,the main reasons and considerations for contravening materially the development plan. The Applicants’ case is that the Board erred in law and acted ultra vires in failing to state the main reasons and considerations for contravening materially the development plan, a failure also manifest on the face of the decision.
The Applicants’ submissions
68. It was submitted on behalf of the Applicants that whilst the provisions of s. 37(2)(a) conferred a jurisdiction on the Board to grant planning permission for a development which materially contravenes the development plan, the decision of the Board to do so is always subject to the terms of sub.s (2) (b) and (c). Consequently, as one of the grounds on which permission had been refused by the Council was that the proposed development would contravene objective ENV 1-9 of the development plan, the Board could only grant planning permission in accordance with the requirements of (2) (b) which, it was submitted, the Board had failed to do. That it did not do so was apparent on the face of the decision which made no reference to the matters or any of them exemplified in sub paragraphs (i) (ii) (iii) and (iv) of sub section (2) (b).
69. Furthermore, it was submitted that the failure by the Board to comply with the requirements of subsection (2) (c) by stating its main reasons and considerations for materially contravening the development plan was also fatal to the legality of the decision.
70. It was contended on behalf of the Applicants that the resolution of the issue which arises is largely dependant on an interpretation of s. 37(2) (b) and that in construing that provision it was unnecessary for the Court to assess whether or not the proposed development was or was not a material contravention of the development plan.
71. There is no doubt but that the Board considered the development plan nor is there any doubt about the awareness by the Board of the reasons given by the Council for refusal of permission. In its decision the Board noted that:
“…the planning authority was of the view (in its second reason for refusal) that the proposed development would constitute a material contravention of the development plan. The Board gave careful consideration to the policy set out in objective ENV 1-9, the ecology of the site, the nature and condition on the habitats therein, and the turbine and road layout proposed and was satisfied that impact on the environment had been minimised and concluded that a material contravention of this policy of the development plan did not arise.”
72. It was contended that, whilst prior to enactment of s. 37, the Board was at large when it came to determining appeals and could grant planning permission for a development that materially contravened the development plan without restrictions on its power to do so, the enactment of s. 37(2) (b) was intended by the legislature to restrict that power in circumstances where the planning authority had refused permission on the basis of a material contravention. The whole purpose of the provision, it was argued, was to ensure that where the Board decided to grant planning permission for a proposed development which the planning authority had concluded was a material contravention of the development plan and had refused permission, it could only do so in the limited circumstances where at least one of the four criteria set out in sub paragraphs (i)-(iv) had been met.
73. Whilst it was accepted that the Board in considering an appeal did so de novo, as if the planning application had been made to it to it in the first place, it was argued that this did not mean that the Board was free to make a decision without having any regard to the reasons upon which permission had been refused by the planning authority, and that this was particularly so where one of the reasons for refusal was that the proposed development would be a material contravention of the development plan. In this regard the Applicants relied on the decision of this Court in Nee v. An Bord Pleanála (2012) IEHC 532 in which the Court analysed the role of the Board where the planning authority had refused planning permission for the proposed development on the grounds of contravention.
74. It was argued that given the failure to comply with the statutory requirements apparent on the face of the decision, there was no basis upon which any interested party or member of the public, or the Court, could come to the conclusion that the Board had complied with those requirements.
75. Finally, whilst it was accepted by the Applicants that it was evident from its decision that the Board had disagreed with the Council on the question of material contravention, they argued that this did not relieve the Board from complying with the requirements of sub.s (2) (b) and (c) .
The submissions of the Respondent and Cleanrath .
76. The Respondent and Cleanrath submitted that the Applicants had neither sought nor obtained leave to challenge the conclusion of the Board that the proposed development would not materially contravene the development plan. Accordingly, they were bound to accept that the proposed development did not do so.
77. The consequence of this, they submitted, was that the Applicants’ contention that the Board was in breach of the provisions of s. 37(2)(b) and (c) did not arise for consideration since those provisions refer to, are concerned with, and govern the circumstance where, having considered the development plan and exercising its de novo jurisdiction under s. 37(1) (b), the Board decides to grant permission for the proposed development where it has concluded that the proposed development materially contravenes the plan. In those circumstances the Board is empowered by sub.s (2) (a) to grant permission, however, it is only where the planning authority had also refused permission on that ground that the provisions of sub.s 2 (b) and (c) arise.
78. That this is the correct interpretation and was intended by the Oireachtas when it enacted that provision is, it was argued, supported by the provisions of s.37(2)(c) which require the Board to indicate in its decision the main reasons and considerations for materially contravening the development plan. When this provision is read with s.37 (2) (a), it is not only referable to but is also consistent only with the situation where the Board, and the planning authority before it, concludes that the proposed development would constitute a material contravention of the development plan.
79. Additionally, if it was the intention of the legislature that, when exercising its de novo jurisdiction under s.37 (1) (b) to grant permission under S. 37 (2) (a), the Board was to be fettered by the decision of the planning authority in relation to material contravention where the Board concludes otherwise, such would have had to have been clearly stated in the provision. Moreover, the practical effect of the interpretation suggested by the Applicants would be to preclude the Board from reaching its own view on whether or not the proposed development constituted a material contravention; no such intention was expressed.
80. It was argued that Section 37(2) (b) cannot be read in isolation from the jurisdiction exercised by the Board under s.37 (1) (b) which requires the Board to determine the application as if it had been made to the Board in the first instance. Furthermore, the effect of the decision of the Board operates from the time it is given to annul the decision of the planning authority.
81. Having regard to these provisions, and notwithstanding the decision of the Council, it was argued that the consideration by the Board of the development plan, and its decision that the proposed development did not constitute a material contravention was made de novo and that this was a fortiori the case where, as had happened here, Cleanrath in its appeal specifically contended that the proposed development would not constitute a material contravention of the plan.
82. In support of their contentions these parties relied on the decision of Irvine J. in Cicol Ltd. v. An Bord Pleanála [2008] IEHC 146, where it was held that on the hearing of an appeal the Board was not obliged to attach any special weight to the interpretation by the planning authority of its own development plan and was required to determine the appeal as if the application for planning permission had been made to it in the first instance.
83. It was further submitted that Section 37(2) (b) could not be viewed in isolation from the de novo jurisdiction of the Board provided for by s. 37(1)(b) nor could it be viewed in isolation from s.37 subs. (2) (a). The Board was free to reach a conclusion contrary to that of the Council on material contravention and, as it had done so, the provisions of sub section (2) had no application.
84. It was forcibly argued that an interpretation which required the Board when granting permission to give main reasons and considerations for contravening materially the development plan in accordance with sub.s. (2) (c) in circumstances where it had concluded that no material contravention was involved, would be illogical and inconsistent with that decision. The provisions of s.37(2)(b) and (c) were only triggered if and when the Board, exercising its de novo jurisdiction, concludes, as the planning authority had done before it, that the proposed development constituted a material contravention. Absent a material contravention finding by the Board in this case, the application for permission fell to be dealt with in the ordinary way under s 37 ( 1) (b)
Decision on interpretation and applicability of section 37(2) (b) and (c)
85. Having due regard to the submissions made, the determination of the issue on this aspect of the case is dependent upon a construction of s.37 subs. (2).
86. It is clear from its decision that the Board considered and determined that the proposed development did not constitute a material contravention of the development plan. The Applicants did not seek nor was leave given to challenge that decision.
87. The failure to seek relief on that basis is not surprising when regard is had to the interpretation and construction which the Applicants submit should be placed on s.37(2) (b) and (c); it was not the decision that the proposed development would not materially contravene the development plan which was in question but, rather, the manifest failure by the Board to comply with the requirements and procedures laid out in paragraphs (b) and (c) of subsection (2) which they contend is fatal to the legality of its decision.
88. On the other hand, the Respondent and Cleanrath contend that the provisions of s.37 (2) (a), (b) and(c) are, on a proper construction, confined to the situation where the Council had refused permission on the ground of material contravention and the Board, in exercise of its de novo jurisdiction under s.37 (1) (b), reaches the same conclusion but decides to grant permission.
89. Insofar as it may be considered that these competing interpretations as to the meaning of the statutory provisions arise from any ambiguity or obscurity or, on a literal interpretation of them, would result in a meaning that would be absurd or would fail to reflect the plain intention of the Oireachtas, that situation is governed by the Interpretation Act, 2005. Section 5 requires the relevant provision to be given a construction that reflects the plain intention of the Oireachtas where that intention can be ascertained from the Act as a whole.
90. In my view, absent obscurity, ambiguity or, on a literal interpretation of the provision, a meaning that would be absurd or one which would fail to reflect the plain intention of the Oireachtas, the provisions of s. 5 have no application.
91. Section 37 (2) has been considered by this Court in a number of cases. In Cicol Ltd v An Bord Pleanála [2008] IEHC 146. The council having granted permission, the Board, on appeal from that decision, refused permission on the grounds that the proposed development would materially contravene the development plan. The Applicant sought to quash the decision of the Board on a challenge as to the lawfulness of its decision.
92. It was argued on behalf of the Applicant in that case that the Board, in reaching its decision, ought to have afforded some special primacy to the interpretation by the planning authority of its own development plan. That argument was rejected by the Court, Irvine J. observing that under the provisions of s.37 (1) (b) the Board was required to determine the appeal as if the application for planning permission had been made to it in the first instance and that that provision was not consistent with the Applicant’s assertion. Neither, did she believe, was there any validity to the Applicant’s argument that the provisions of s.27 (2) (b) lent any further legitimacy to its case on that point. She went on to state at p. 29 that
“…whilst that section places certain restrictions on the Board where a planning authority had decided to refuse permission on grounds that a proposed development materially contravenes the development plan, it does not follow that when the planning authority grants permission and the Board is minded to annul that decision that it is circumscribed in the manner contended for in reaching that decision. Nor did the Applicant’s assertion withstand practical testing”
93. Furthermore, the Applicant’s assertion did not withstand practical testing; the learned trial judge observing that :
“…if special primacy was to be afforded to the local authority’s interpretation of its own development plan, it is difficult to see how any party could mount a challenge to a decision made by a local authority and successfully claim that a proposed development was in contravention of the development plan. The right of a local authority to have its interpretation of its own development plan accorded some special weight would substantially dilute the clear intention of the legislature to restrict the powers of the local authority from developing in contravention of a Development Plan.”
94. In Nee v. An Bord Pleanála [2012] IEHC 532, an issue which arose as to whether or not the decision of the planning authority to refuse permission on the grounds that the proposed development would be “a contravention of the Development Plan” constituted and meant a ‘material’ contravention of the plan. The Court considered that the absence of the word ‘material’ in the decision of the planning authority was intentional and legally significant. In the view of O’Malley J:
“…the section relied on specifically provides that the Board may grant permission “even if” the refusal is for a material contravention. That would make little sense if every refusal by a Planning Authority for contravention of a plan was to be deemed to be for a material contravention. It would also have the effect of very significantly reducing, if not abolishing, the jurisdiction of the Board in cases not coming within the excepted categories. I do not believe that to be the intent of the section.”
Accordingly, she went on to find that s.37 (2) had no application to the case.
95. More recently the provisions of s.37 (2) were considered by this Court in People Over Wind and anor. v. An Bord Pleanála and ors [2015] IEHC 271. The planning authority had decided to refuse planning permission on the ground that the proposed development would have ‘contravened’ the Laois County development plan. An argument similar to that advanced on behalf of the Applicants in this case was advanced; namely, that as the local authority had refused planning permission on the ground that the proposed development would contravene the development plan, the Board was restricted to granting planning permission in the manner and way set out in s. 37(2) (b) and (c) ; having failed to have regard to those provisions and the decision of the planning authority, the decision of the Board was ultra vires , void and of no legal effect.
96. Just as in the case of Nee, the absence of the word ‘material’ in the decision of the planning authority was considered by the Court to be intentional and legally significant. Haughton J. observed that the effect of s.37 (1) (b) was “…to annul the decision of the planning authority as from the time when it was given”. Given that the decision of the Board made after carrying out its own AA had the effect of annulling the decision of the Council to the effect that there was no adequate AA, the question of considering whether or not there was a material contravention no longer arose for consideration or decision by the Board and therefore s.37 (2) (b) was not relevant.
97. Having regard to the conclusion on the facts in those cases that the provisions of S. 37 (2) were not applicable , I find these decisions are of limited assistance in the task of construing the provision save that it would seem to follow from them that where a planning authority has refused permission on the basis that the proposed development contravenes the development plan but does not find that the contravention is a ‘material’ contravention, and the Board concludes likewise or decides that a material contravention is not involved, the provisions of S. 37(2) (a) (b) and (c) have no application to the exercise by the Board of its jurisdiction to grant permission under S.37 (1) (b).
98. It is necessary to approach the task of construing the provisions in question by reference to the rules governing the construction of statutes. These are well settled. Legislative intention is first and foremost to be ascertained from the text of the enactment itself: the words employed by the legislature are to be given their ordinary and natural meaning and where that meaning is plain and unambiguous, effect must be given to it and nothing more is required of the Court.
99. In O’H v. O’H [1990] 2 IR 558 at 563 Barron J. referred to the judgment of Brandon J. in Powys v. Powys [1971] P340 at 350 where the learned judge summarised the principles applicable to the construction of statutes in the following terms:-
“The true principles to apply are in my view, these: that the first and most important consideration in construing a statute is the ordinary and natural meaning of the words used; that, if such meaning is plain, the effect should be given to it; and that it is only if such meaning is not plain, but obscure and equivocal that resource should be had to presumptions or other means of explaining it.”
100. In Howard v. Commissioners of Public Works [1994] 1 IR 101 Blayney J. approved the judgment of Lord Blackburn in Direct United States Cable Company v. Anglo American Telegraph Company [1877] 2 App Cas 394 in which he said:-
“The Cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver.”
The decision of the Supreme Court in Howard has been cited in many cases since it was delivered, including ,by way of example, Harrisrange v. Duncan [2003] 4 IR 1; Dunnes Stores v. Director of Consumer Affairs [2006] 1 IR 355, Murphy v. Cobh Town Council and An Bord Pleanála [2006] IEHC 324 and O’Brien v. The Revenue Commissioners [2014] IEHC 347.
101. Applying these rules it is necessary in the first instance to give the words employed by the Oireachtas in s. 37 (2) their ordinary and natural meaning. Effect must be given where possible to all of the words used in the enactment of the provision under consideration since it is well settled law that the legislature is deemed to have intended the use of each word. See Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211 and O’Brien v. The Revenue Commissioners, infra.
102. There is no controversy between the parties as to the meaning of s. 37(1) (b) which provides that where an appeal is brought against a decision of a planning authority, and is not withdrawn, the Board is required to determine the application as if it had been made to the Board in the first instance and that the decision of the Board operates to annul the decision of the planning authority as and from the time it was given. This is commonly referred to as the de novo jurisdiction of the Board.
103. Subject to necessary modifications, s. 37(1)(b) applies the provisions of subs. (1), (2), (3) and (4) of s. 34 to a determination by the Board of an application for permission on appeal in the same way as those provisions apply to a determination of an application by a planning authority.
104. Applying the principles to the provisions of subs. (2) (a), and giving the words “..the Board may in determining an appeal under this section decide to grant permission even if the proposed development materially contravenes the development plan.. ” their ordinary and natural meaning, it is clear that the determination of the appeal being referred to in this provision is the determination of an appeal by the Board under s. 37(1) (b) and that the remaining words of subs. (2) (a) confer on the Board the discretionary power to grant permission even if the proposed development materially contravenes the development plan.
105. It is also immediately apparent from the wording of the proviso at the commencement of subs (2) (a) that it makes the provisions of that paragraph subject to the provisions of subs (2) (b) which itself expressly refers back to the power of the Board to grant permission in accordance with subs (2) (a). Accordingly, neither provision can be read in isolation; rather, it is necessary that both provisions be read together.
106. Proceeding thus and giving the words of subs. (2) (b) their ordinary and natural meaning, it is plain that where there has been a decision by a planning authority to refuse permission on the grounds that the proposed development materially contravenes the development plan and the Board also decides that a material contravention would be involved, the power vested in the Board to grant permission in accordance with subs (2) (a), may only be exercised where the Board considers that the requirements set out in subs (2) (b) subparagraphs (i) and (ii) or (iii) or (iv) are met.
107. The interpretation which the Applicants seek to have placed on the provisions of s.37 (2) (b) and (c) would, in my view, produce a meaning, if not absurd, one which would not give effect to the plain intention of the legislature. By way of practical example, if a planning authority was mistaken in deciding that a proposed development materially contravened its own development plan, refused permission and the Board, exercising its de novo jurisdiction, came to the opposite conclusion, the result on the Applicants’ case is that the Board would be bound by the decision of the planning authority on that matter and any decision made to grant permission would be confined or limited in the way and manner set out in subs. (2) (b). Furthermore, and notwithstanding its own view to the contrary, the Board would nevertheless be required under subs. (2) (c) to set out the main reasons and considerations for materially contravening the development plan.
108. Subsection 34(6) confers on a planning authority the power to grant permission for a development which would contravene materially the development plan provided certain very strict requirements set out in that subsection are complied with. In my view, it is significant that in applying certain provisions of s.34 to the Board when considering an appeal, s.37 (1) (b) of the PDA did not apply the provisions of subs. 6. Consequently, if the legislature was to confer on the Board the power to grant permission for a development which materially contravened the development plan it was necessary that a provision enabling it to do so be enacted; it did that by enacting the provisions of subs. (2).
109. When one looks at the very strict procedures and limitations placed on the planning authority under s.34 (6) in respect of the grant of planning permission for a development that would materially contravene a development plan it is not surprising that if such a determination is made following that process and, on appeal, the Board comes to the same conclusion, that its ability to grant permission should be limited in the way set out in sub.s (2) (b) and(c).
110. I consider it pertinent and significant that where the Board concludes that the proposed development would constitute a material contravention but the planning authority has not done so, it may grant permission under subs. (2) (a) without the restrictions imposed by subs. (2) (b) or the necessity to comply with the additional requirements set out in subs. (2) (c).
111. In applying the principles to the wording in subs (2) (c) “Where the Board grants a permission in accordance with paragraph(b)..” these words in their ordinary and natural sense mean and refer to the circumstance where the Board decides to grant a permission under subs. (2) (b) and not otherwise.
112. It is also clear that the words “its decision” in subs. (2) (c) refer to the decision of the Board and not that of the planning authority. Similarly, the “main reasons and considerations” to be indicated in “its decision” are plainly those of the Board and not those of the planning authority since these are required to be given by the Board under subs. (2) (c) in respect of a permission granted by it under subs. (2) (b) where both the Board and the planning authority have determined that there would be a material contravention but where the planning authority had refused permission for that reason.
113. It is also significant that subs. (2) (c) is expressly concerned with the circumstance of a decision to grant permission by the Board in accordance with subs. (2) (b) for a development which materially contravenes the development plan rather than with a decision to refuse permission on that ground by the planning authority.
Conclusion
114. I accept the submissions of the Respondent and Cleanrath in relation to the meaning of s. 37(2) (a), (b) and (c). Interconnected as they are these provisions must be read together and when that is done they are incapable of being sensibly construed otherwise than as being concerned only with a decision of the Board, in the exercise of its de novo jurisdiction, to grant permission for a development which materially contravenes the county development plan.
115. Where and only where the planning authority has refused permission on the grounds that the proposed development materially contravenes its own development plan and so too the Board, do the limitations and requirements of subs. (2) (b) and (c) apply to its decision to grant permission. When so construed the words in their ordinary and natural sense are unambiguous and plainly declare the intention of the legislature.
EIA
The Applicant’s submissions.
116. Detailed written submissions were submitted and legal argument made in respect of the alleged failure by the Board to carry out an EIA in accordance with the requirements of s. 172. It is not intended to set these out in an exhaustive fashion but, given the significance of the issues to be resolved, the essence of these will be given in summary form.
117. The particulars of the grounds upon which the Applicants seek to challenge the legality of the Board’s decision may be summarised as follows:
(i) The Board does not identify with particularity or at all what constitutes its record of the EIA that it purports to have carried out.
(ii) The record does not identify, describe and assess the direct and indirect effects of the proposed development as required by s. 171A of the 2000 Act.
(iii) The record does not disclose any examination, analysis or evaluation of the direct and indirect effects of the proposed development as required by s. 171A.
(iv) The record does not identify, describe and assess the direct and indirect effects of the proposed development in light of each individual case as required by s. 171A.
(v) The Board failed to comply with its obligations to make available information to the public concerning any evaluation of the direct and indirect effects of the proposed development of the matter set out in s. 171A (s. 172(1J).
(vi) The Board adopted the EIA purported to have been carried out by the Inspector, which said EIA was flawed as it was based on the Inspector’s understanding of the function of EIA, which was that “the environmental impact statements submitted by the Applicant is required to be assessed by An Bord Pleanála, as the competent authority”, so that the Inspector appears not to have taken into account third party submissions in purporting to carry out an EIA, as required by s. 172 (1G).
(vii) Insofar as the Inspector, and by extension the Board, purports to record its evaluation for the purposes of s. 172 (1J), such record is limited to the “likely main residual effects of the proposal” and it does not “identify, describe or assess” the direct and indirect effects of the proposed development nor does it examine, analyse or assess other aspects of the EIS such as the effects of the proposed development before mitigation and/or the relevant data on the receiving environment.
(viii) Without prejudice to the generality of the foregoing the Board failed to carry out an EIA in relation to the likely direct and indirect effects of the proposed development on the matter set out in s. 171A of the four turbines that the Inspector recommended should be admitted, and in particular failed to provide any description or evaluation of the visual impacts of the inclusion of the said turbines on human beings and/or residential amenities, or at all.
118. On these grounds it was submitted by the Applicants that the Court was entitled to conclude that no EIA was carried out in relation to the proposed development as required by law. Central to their case, it was argued that as the Board had adopted in its entirety the final recommendations of the Inspector, save in respect of the omission of the four turbines, any defect in the Inspector’s EIA, such as it was, impacts upon the validity of the EIA purportedly carried out and completed by the Board.
119. It was accepted that under s. 172 (1H) the Board was entitled to adopt in whole or in part the report of the Inspector. Even if it is considered that the Inspector carried out an EIA which was adopted by the Board, once the Board disagreed with the Inspector’s recommendation in relation to the omission of the four turbines, the Board was obliged to carry and complete an EIA of the development as a whole – that is to say of the proposed development including the four turbines which the Inspector recommended should be omitted.
120. In that regard it was submitted that in carrying out an EIA the Board was required to conduct an examination, analysis and evaluation of and to identify the direct and indirect effects of the proposed development on the matters specified in s. 171A (1) namely the direct and indirect effects on “human beings, fauna and flora; soil, water, air, climate and landscape, material assets and the cultural heritage; the interaction between the factors mentioned in paragraphs (a) (b) and (c).
The Applicant’s cited the decisions in Kelly and Ratheniska v. An Bord Pleanála [2015] IEHC 18 in support of their submissions. These authorities were also relied upon in argument by the Respondent and Cleanrath.
121. It was argued by the Applicants that the reasons given by the Board in its decision were hopelessly insufficient to enable the Applicants or members of the public, or the court, to understand the nature and/or extent of the evaluation and assessment carried out by the Board both in relation to the development as a whole and, in particular, its reasoning for disagreeing with the Inspector’s recommendation.
122. Particular reference was made in this regard to the findings of this Court in People Over Wind, where the Court held that on pages 6 to 8 of its decision the Board had provided an analysis of the points raised by the Inspector and had explained the reasons for not adhering to those elements of the assessment, moreover, the narrative set out in the decision clearly set out the Board’s own assessment and evaluation of those aspects. By contrast it was argued that no such analysis or explanation as was provided by the Board on the face of its decision in this case.
123. Insofar as the Inspector’s report was deficient or otherwise contained defects which go to the root of the question as to whether or not an EIA was carried out, the Applicants submitted that it was clear from her report that the Inspector misunderstood the function of an EIA since she had referred to this as an obligation by the Board to assess the EIS submitted by Cleanrath. If that was her understanding, then that understanding was legally incorrect because the requirements of s. 171 A and s. 172 (1G) involves an examination assessment and evaluation of not just the EIS submitted by the developer but also an examination, assessment and evaluation of the submissions by members of the public, including the Applicants insofar as those submissions related to the likely significant effects of the proposed development on the environment.
124. As to whether or not the Inspector’s report comprises an EIA it was submitted that notwithstanding references to an EIA, the Inspector essentially confined herself to a consideration of the adequacy of the EIS. It was argued that from a fair reading of the report, in particular section 12, there was no “examination analysis and evaluation” of the direct and indirect effects of the proposed development on the specified media as required under s. 172. Whilst the Inspector had referred back to her main assessment under section 11 of the report, it was submitted that when read together it did not take account the obligation to examine, analyse assess and/or evaluate other information furnished relating to the environmental impact of the project, such as the data on the receiving environment, mitigation measures and other information which were required to be considered in the context of an EIA for the purposes of complying with s. 172 and the EIA Directive. It was submitted that the references at paragraph 12.7 of the Inspector’s report to section 13 was not sufficient for the purposes of an EIA since section 13 of her report was concerned with the AA, a standalone part of the planning process, but if that was not correct, the AA was itself deficient in terms of compliance.
125. With regard to the obligation of the Board to make available to the public, including the Applicants, information as to its evaluation of the direct and indirect effects of the proposed development on the relevant aspects of the environment referred to in s. 171A, it was submitted that the Board did not identify with particularity or at all what constitutes its evaluation or record of the EIA that it purports to have carried out. It was argued that in order to satisfy the obligation placed upon it by virtue of the provisions of s. 172 (1J), the evaluation and/or EIA of the Board must be recorded in such a manner as to be accessible and to enable members of the public and where necessary, the court, to understand the nature and/or extent of that evaluation and/or EIA and which must not be vague or uncertain.
126. Insofar as the Board purported to adopt the Inspector’s assessment of environmental impacts save in respect of the omission of certain turbines, the Board failed to discharge that obligation since it was not possible for members of the public to identify with any degree of precision or certainty the relevant portions of the Inspector’s report that the Board adopted and, therefore, it is not possible to identify what information was being made available by the Board for the purposes of s. 172 (1J). The consequence of that failure was to render the decision of the Board invalid.
127. In her report, the Inspector had observed that there was ‘no real assessment’ of visual impact in relation to residential properties carried out in the context of the EIS. It was submitted that it was not possible to ascertain whether the Board agreed with that statement or not. No information was provided by the Board in relation to what its assessment or evaluation of visual impact was in relation to residential properties or what the direct or indirect effects of the development are in that regard.
128. Given that the Inspector identified visual impacts as a matter of principle concern and took the view that there was ‘no real assessment’ of the visual impact in the EIS relating to residential properties, it was submitted that in rejecting the Inspector’s recommendation to omit four turbines there was nothing in the Inspector’s report upon which the Board could rely in that regard. Moreover, by recommending the omission of the four turbines, the only conclusion which the Board could have reached was that the Inspector considered that they were likely to have adverse effects on the environment. There was no proper record of an assessment or evaluation for the purposes of complying with the requirements of an EIA capable of justifying an opposite conclusion by the Board.
129. Criticism was also levelled at the Board in its purported carrying out of an EIA by the application of the wind energy guidelines as a ‘rule of thumb’ instead of itself carrying out an assessment which included an examination, analysis and evaluation in respect of the individual case as required under s. 171A and Article 3 of the EIA Directive. The approach taken by the Board resulted in a failure to actually consider to the fullest extent possible the environmental impacts of the proposed development.
130. And finally, regarding the Board’s disagreement with the recommendation of the Inspector to omit four turbines in the ‘interest of visual and residential amenity’ it was submitted that the Board’s statement that the “omission was not necessary to ensure such amenities were properly protected” and that “it was not considered necessary to omit any turbine in relation to ecological concerns” could not satisfy the requirement that the Board evaluate, assess and identify the direct and indirect environmental impacts of the four turbines on the receiving environment. In the circumstances there was a failure on the part of the Board to comply with the requirements of s. 172 (1J).
Submissions of the Respondent and Cleanrath.
131. With regard to the complaint that in deciding not to accept the Inspector’s recommendation in relation to the omission of the four turbines and that there was no evaluation, analysis and assessment by the Board to support that decision and that there was no evidence of such, it was submitted that the recommendations of the Inspector to omit the specified turbines were not made on the basis of inadequate evidence to enable a determination on impact but, rather, on the Inspector’s views regarding impact. The Board had adequate information upon which it could take a view on impact. It took a different view from that of the Inspector and in its decision gave an explanation for not doing so. It was entirely disingenuous to suggest that all the Board had done was to apply ‘a rule of thumb’ by reference to the national guidelines. It had information in relation to the separation distances proposed between the turbines and the dwellings which, it had noted in this particular and specific case were in accordance with those guidelines.
132. In reaching its decision the Board had also taken into account the comprehensive information on its file relating to those matters and, having done so, concluded that the omission was not necessary to ensure that residential and visual amenities were properly protected. Furthermore, the Board noted that it was not considered necessary by the Inspector to omit any turbine on the grounds of ecological concern. An EIA of the development as a whole had been carried out. The Board had evidence before it which enabled it to reach a different conclusion to that of the Inspector in relation to impact. The Board was perfectly entitled to reach its own decision provided it had sufficient evidence to do so. There was no basis for a suggestion that there was an inadequacy of evidence or that that was not assessed, analysed or evaluated by the Board. The evidence in relation to impact was not sufficient, in the view of the Board, to justify a refusal of the proposed development.
133. With regard to the complaint of inadequacy in relation to the reasons given for not accepting the Inspector’s recommendation to omit certain turbines for the purposes of complying with the provisions of s. 172 (1J) and s. 34 (10) (b), it was submitted that the duty of the Board was confined to stating its main reasons for disagreeing with the Inspector’s recommendation. As to the nature of that duty, these parties submitted that that had been apparently discharged on the face of the decision itself and in this regard reference was made to the decision in Grealish v. An Bord Pleanála [2007] 2 IR 536 where O’Neill J. had described the duty under s. 34 (10) of the PDA as “a very light one, one could even say almost minimal.” Reliance was also placed on the decision of this Court in O’Neill v. An Bord Pleanála [2009] IEHC 202 where Hedigan J., commenting on the provisions of s. 34 (10) (b) on the extent of the obligation placed on the Board, stated that:
“There was no obligation to provide detailed reasoning equivalent to the highly professional and detailed report of the Inspector herself. Only the main reasons were required …”
Accordingly, the requirement of the Board under s. 34 (10) (b) was limited to explaining its decision to differ from the overall recommendation of the Inspector, which it did.
134. It was submitted that the Board’s decision contains a proper and adequate indication of its reasons which were entirely clear. The complaint made by the Applicants that the Board failed to expressly state how it had overcome the concerns of the Inspector was not something which, on the jurisprudence, the Board was obliged to provide. The Board was obliged pursuant to the provisions of s. 28 of the PDA to have regard to the Wind Energy Guidelines, 2006. The Board had regard to those guidelines and recited that fact on the face of its decision. On the evidence before it the Board concluded that the omissions recommended by the Inspector were not necessary to deal with the impact on the receiving environment of the turbines under the headings of either residential or visual amenity.
135. The submissions made by Cleanrath were, in substance, to the same effect as the submissions made by the Respondent. Cleanrath also submitted that the Applicants had not specified the provisions of s. 172 (1J) which they asserted that the Board had been in breach. Moreover, they submitted that there was nothing vague or irrational in the decision of the Board. There was a failure on the part of the Applicants to identify what it was in the decision which was unclear or imprecise. The contentions of the Applicants amounted in essence to no more than an impermissible attempt to draw the Court into a qualitative review of the EIA carried out by the Board – something upon which, on the jurisprudence, the Court was not entitled to embark.
Supplemental submissions.
136. Subsequent to the conclusion of the oral hearing in this case, I became aware of a number of other judgments delivered by this Court of particular relevance to the issues which are the subject matter of these proceedings. Accordingly, the parties were invited to make further submissions and argument in relation to the applicability or otherwise of those decisions having regard to the facts of this case.
137. The case authorities upon which further legal argument and supplemental submissions were made are Kelly v. An Bord Pleanála [2014] IEHC 400, Ratheniska v. An Bord Pleanála [2015] IEHC 18, O’Grianna v. An Bord Pleanála [2014] IEHC 632 Rossmore Properties Ltd v. An Bord Pleanála [2014] IEHC 557 and People Over Wind v. An Bord Pleanála [2015] IEHC 271.
138. In relation to the EIA, the Applicant’s supplemental submissions focused on what the Applicants contended was a failure on the part of the Board to conduct “an examination, analysis and evaluation of and identify the direct and indirect effects of the proposed development” in particular in relation to the four wind turbines which the Inspector recommended should be omitted from the grant of permission. They submitted that in line with the decision of the CJEU in Commission v. Ireland the Board was required to undertake both an investigation and an analysis to reach as complete an assessment as possible of the direct and indirect effects of the project concerned including the factors set out in the first three indents of Article 3 and the interaction between those factors.
139. Noting the decision of this Court in People Over Wind v. the Board & Ors, the Applicants sought to make a distinction between the decision of the Board in that case in relation to the EIA and the decision of the Board under consideration here. They drew attention to the extent of the analysis and assessment by the Board of the points raised by the Inspector and incorporated in pages 6 to 8 of its decision. It was submitted that the deficiency of the decision of the Board in this case was such that it could not and did not constitute an examination, analysis or evaluation by the Board of the effects on the receiving environment of the proposed development in respect of the four turbines which the Inspector had recommended should be omitted. Accordingly there was a failure to comply with the requirements of s. 171 (a) of the PDA; the decision of the court in People Over Wind had to be distinguished for the reasons given and was not an authority which supported the submissions of the Respondent and Cleanrath.
140. Those parties submitted that the decision of the Board was not required to include an examination, analysis or evaluation of the direct and indirect effects of the proposed development. Reference was made to the finding in People Over Wind that the Board recorded its conclusion and decision that the proposed development would not be likely to have significant effects on the environment, that that constituted a record of its decision and determination, and that no further record was required under domestic or European law. The decision of the Board in this case complied with the requirements under s. 172 (1J).
The Inspector’s report.
141. Having set out a description of the site and the proposed development, the Inspector’s report proceeded to describe the EIS which, in this case, consisted of three volumes which the Inspector had read in preparation of her report. She summarised the main impacts identified in the EIS under the headings of human environment, landscape and visual impact ,ecology, soils, geology and hydrology, air, climate and noise, shadow flicker, material assets, archaeology, traffic, interactions of the foregoing and other issues. Thereafter, the Inspector referred to the reports on the planning file noting that there were 107 submissions of which 34 constituted letters of objection. She summarised the issues raised in the letters of support and those raised in the objections. Of these, particular reference was made to the submission of Mr. Corcoran, environmental biologist, which provided an ecological analysis that sought to highlight omissions and deficiencies in the submitted EIS. Six external reports submitted to the planning authority were also referred to. These reports were from the Irish Aviation Authority, the Inland Fisheries, the Department of Agriculture, Fisheries and Food, An Taisce, Department of Arts Heritage and the Gaeltacht and the HSE itself. This latter report made certain observations in relation to specific environmental health issues including human beings, noise and vibration, shadow flicker, air quality/dust, water/hydrology/hydrogeology.
142. In addition to external reports, the Inspector noted four reports from internal Council departments namely reports from the area engineer, the environmental section, the heritage officer as well as a request for further information. The issues raised and responses received were summarised in some detail, following which the Inspector proceeded to note the decision of the planning authority, the relevant planning history, and policy considerations. Under that section the Inspector referred to the wind farm development Guidelines for Planning Authorities 2006 and Wind Turbines Bill 2012. It is to be observed that the Wind Turbines Bill, 2012 has yet to be enacted. The Inspector made it clear in her report that she was referring to the Bill for information purposes only. She then set out the grounds of appeal which were detailed under the headings of roads, site habitats and the NIS, (which had been amended) and which included identification of European sites being brought forward for an AA. The Inspector noted that all of the technical and environmental studies concluded that all of the ecological assessments indicated that the proposed development would not give rise to adverse impacts on any Natura 2000 site.
143. In relation to the appeal, the Inspector noted that the planning authority did not respond, but that there were six observations which included the Applicants – under the heading of ‘concerned residents’ – and Mr. Kevin Corcoran. The Inspector individually summarised the issues raised in the objections.
144. In section 11 of her report the Inspector summarised the issues arising in relation to the proposed development including compliance with policy, landscape/visual impact, residential amenity, archaeological impacts, roads and traffic, adequacy of the EIS, ecology and natural environment and other issues. These issues were dealt with individually by the Inspector and in respect of which she expressed her opinion.
Visual amenity
145. Following an on-site inspection the Inspector highlighted a concern which she had in relation to what she considered to be the potential for a number of houses, which she identified, as being likely to experience high adverse impacts notably from turbines 3, 4, 6 and 7. Referring to mitigation measures, the Inspector was critical of the EIS which referred only to the design features of the turbines. She expressed the opinion that whilst the measures proposed were appropriate in the overall visual impact of the proposed development they failed to address the potential for the significant visual impact of the turbines on local residential properties warranting real and genuine concern, and concluded “in terms of a recommendation in this regard I would suggest it appropriate that turbines 3, 4, 6 and 7 be omitted from the scheme in the interests of visual amenity.
Residential amenity
146. The Inspector then went on to consider the issue of residential amenity under headings of noise, shadow flicker, archaeological impacts, roads and traffic. In connection with noise the Inspector expressed a number of concerns.
And under the heading of shadow flicker she noted that the guidelines identified potential impacts on any inhabited dwelling within 500 metres of a turbine. Although there was no dwelling within 500 meters, there were dwellings which, in her view, having visited the site, could be adversely affected. Although satisfied that no third party dwelling was located within the 500 metre zone, she identified fourteen properties, including the home of the Applicants, within ten times motor diameter distance (at 820 metres) from the turbines that might experience more that 30 hours of shadow flicker on a specific day during the year.
147. Having identified the location of the properties in question she considered that turbines 1,2,3,4, 6 and 8 had potential to affect a number of houses and noted that the EIS had suggested that four houses, identified as 15, 19, 20 21 and 28, could be subject to shadow flicker in excess of 30 houses per year. However, she noted that in response to the further information requested by the planning authority, Cleanrath had presented a very detailed mitigation proposal which included shutting down of particular turbines at specific times on specific days of the year. The Inspector accepted the premise for the conclusions but did not consider that the proposed development was acceptable in terms of the shadow flicker potential in particular relating to the proposed turbines numbers 2, 3, 4 and 6. She concluded this section of her report in the following terms:
“however, and should the Board be minded to grant permission in this instance, a condition should be attached requiring the omission of these turbines and the non operation of the turbines at times when the predicted flicker might occur, adversely effecting the adjacent houses.”
Ecology and the natural environment.
148. When considering ecology and natural environment, and in particular impacts on habitats, the Inspector commented on the refusal of permission by the Council based on the impact of the development of habitats within the proposed development site. In this regard she drew the attention of the Board to her recommendation that turbines 3, 4, 6 and 7 should be omitted in the interests of ‘visual and residential amenity’. If her recommendation in that regard was accepted she expressly drew the attention of the Board to the positive effect that the omission of turbines 3 and 4 would have in relation to the blanket bog, namely that impact on it would be avoided. It is clear from her report, therefore, that the Inspector considered that whilst turbines 3, 4, 6 and 7 should be omitted in the interests of visual and residential amenity, the omission of turbines 3 and 4 would also have a positive ecological consequence.
149. This is potentially significant since it is a finding by the Inspector that the omission of turbines 3 and 4 on the grounds of visual and residential amenity would, in relation to ecology and the natural environment, also result in avoiding impact on the bog in the area where it was proposed to site and erect those turbines. The potential significance of this finding arises in connection with the conclusion by the Board in its decision that “it was not considered necessary to omit any turbine in relation to ecologic concerns.” On the face of its decision, that conclusion is at variance with the findings by the Inspector in relation to turbines 3 and 4.
150. Under the heading ‘EIA’ the Inspector refers specifically to the statutory requirements and in particular the requirement that the direct and indirect effects of the proposed project are identified, described and assessed in an appropriate manner. Referring back to the impacts identified in the EIS summarised at para. 3 of her report, she noted that the proposed development was generally in compliance with article 94 and 111 of the Planning and Development Regulations 2001 as amended and noted that the EIS contained information specified in para. 1 of the Schedule 6 of the Regulations which she then set out. She also referred to the additional information submitted in the course of the application detailing the main likely significant direct and indirect effects arising from the proposed development and identifies these under the headings of human beings, flora and fauna, soils and geology, hydrology/hydrogeology, air, time, noise, landscape and visual impact, cultural heritage and material assets; each of which is considered and discussed in turn.
151. With regard to the assessment of the likely significant effects identified, having regard to the mitigation measures proposed, the Inspector referred to the AA contained in s. 13 of her report noting that that assessment would fully consider the range of relevant likely significant effects having regard to the information submitted for the planning application “together with all the comments and submissions made in relation to the proposed development”. She observed that mitigation measures proposed to be applied if the proposed development proceeded would be fully integrated to that assessment.
152. I will return to that aspect of the Inspectors report when dealing with the challenge to the decision of the Board on the AA. However, it is sufficient to observe at this juncture that the Inspector considered that the conclusion contained in the NIS to the effect that the proposed development would not adversely impact on the SAC/SPA sites was “reasonably supported” whereupon she concluded that the cumulative impact of the development would not have adverse effects on the SACs in light of their conservation objectives. No specific mention was made of the submissions of Mr Corcoran or those of the other interested parties – including the Applicants – in this regard.
153. Section 14 of the report contains the Inspector’s conclusion and recommendation. In brief, she did not consider that the proposed development would constitute a material contravention of the County Development Plan. While she considered that the proposed development, subject to the mitigation measures indicated, would not significantly impact upon flora and fauna, archaeology, water quality, geology and hydrology of the site or the immediate vicinity of the site as to warrant refusal of permission, she expressed real concern regarding the scale of the proposed project particularly in terms of visual impact and certain residential amenity impacts and on foot of which she recommended the omission of turbines 3,4,6 and 7 from the scheme of development.
154. With regard to the matters which she considered in connection with her final recommendation, the Inspector specifically and particularly refers to the contents of the planning application including the EIA, the NIS, the decision of the planning authority, the provisions of the Cork County Development Plan, the provisions of the Wind Energy Development Guidelines, the grounds of appeal, the responses thereto, the observations made to the Board, her inspection, and the assessment of the planning issues; she ultimately recommended that permission be granted for the reasons and considerations which she then sets out in her report. She also identified and had regard to the location of the SAC/SPAs.
155. The reasons and consideration and the conditions to be imposed as recommended by the Inspector, together with the submissions on file, were considered by the Board at meetings on the 4th of March, the 17th April and 23rd of April 2013. The Board decided by a majority of 3 to 2 to grant permission generally in accordance with the Inspector’s recommendations, subject to certain amendments which were recorded in the Board’s direction and decision.
Decision of the Board.
156. Under the heading ‘reasons and considerations’ it was recorded that the Board had regard to:
(a) National policy relating to the development of sustainable energy sources.
(b) The Wind Energy Development Guidelines for planning authorities issued by the Department of the Environment Heritage and the local government in June 2006,
(c) The Cork County Development Plan and the Cork County Wind Energy Strategy
(d) The status of the site in the latter documents as being in an area not deemed “strategically unsuitable, for wind energy development proposals and in close proximity to a “strategic search area”,
(e) The location of the site relative to the following designated sites which were set out;
(f) The pattern of development in the area, the distance from the proposed development to dwellings, and the character of the local road network.
(g) The extent and condition of habitats arising on the site.
(h) The mitigation measures set out in the submitted EIS, the additional material submitted by way of further information at application stage, and
(i) The submissions on file and the Inspector’s report.
157. Thereafter the decision recites
“the Board considered the environmental impact assessment submitted with the planning application (including mitigation measures therein), the further information submitted by the Applicant in the course of the planning application and appeal, the submissions from the planning authority, the appellants and observers and the Inspectors assessment of environmental impacts which is adopted save in respect of the omission of certain turbines. The Board completed an environmental impact assessment and concluded that the proposed development would not have a significant adverse effect on the environment.
The Board considered that the Natura impact statement submitted with the application and carried out an appropriate assessment of the proposed development having particular regard to the potential for impacts on nearby Natura 2000 sites (the Gearagh Sac (site code 000108), the Gearagh Spa (site code 004109) and the Mullaghanish to Nusheramore Spa (site code 004162). The Board completed an appropriate assessment and having regard to the nature and scale of the proposed development, the nature of the receiving environment and the mitigation measures set out in the course of the application and appeal, the Board is satisfied that the proposed development, on its own or in combination with other plans or projects, would not adversely effect the integrity of any European site.
It is therefore considered that, subject to compliance with the conditions set out below, the proposed development will not give rise to injury to residential amenity, visual amenity, water pollution, would be acceptable in terms of traffic safety and convenience, would not contravene the development for the area and would otherwise accord with the proper planning and sustainable development of the area.
In deciding not to accept the Inspector’s recommendation to omit certain turbines by condition the Board considered that the separation distances proposed between turbines and dwellings were in accordance with national guidelines which seek to protect residential and visual amenities and taking into account the information on file, that omission was not considered necessary to ensure such amenities were properly protected. Furthermore, it was not considered necessary to omit any turbine in relation to ecological concerns”.
The decision of the Board sets out the conditions and reasons given for imposition.
Decision on EIA.
158. Applying the legal principles to which reference has already been made earlier in this judgment to the grounds of challenge made by the Applicants to the legality of the Board’s decision in relation to the carrying out of an EIA, the Court finds as follows.
159. It is apparent from the face of the decision of the Board that, with the exception of the Inspector’s recommendation to omit four turbines on the basis of residential and visual amenity, the Board adopted the report of its Inspector as part of the decision making process in the carrying out of an EIA. That the Board was statutorily empowered to do so is evident from the provisions of s. 172 (1H) of the PDA. Section 146 empowers the Board in the discharge of its functions to authorise an employee to report on any matter on behalf of the Board. Of some significance to the facts in this case is the requirement that before making its decision, the Board is required to consider both the report and the Inspector’s recommendation.
160. The obligation of the Board to provide the main reasons and considerations in its decision to grant or refuse permission arises under two separate and distinct provisions; namely, s. 172 (1J) and s. 34 (10) of the PDA. Additionally, where the Board, in granting or refusing permission, differs from the recommendation of the Inspector, it is required to indicate in its decision its main reasons for departing from the recommendation of the Inspector.
161. It follows from the provisions of 146 and 172 (1J), and from the jurisprudence already referred to relating to these provisions, that in determining whether an EIA has been carried out and completed , the report of the Inspector may be read with the decision of the Board. This is particularly germane having regard to the challenge by the Applicants to the lawfulness of the decision insofar as it concerns the issues on the EIA which fall for consideration here. Given the requirement under s. 146 that the Board consider both the report and the recommendation of the Inspector before making its decision, so too, in my judgment, must any concerned member of the public and, on judicial review, the Court in order to ascertain whether an EIA has been carried out and completed in accordance with statutory obligations.
162. Reading the report as a whole I am quite satisfied that the Inspector did not misunderstand, in assessing an EIS, the role of the Board in the carrying out of an EIA. In connection with the assessment of an EIS and the carrying out of an EIA, the report of the Inspector is replete with references not just to the EIS but also to the other reports, submissions, observations and information considered as part of the EIA process and that, in connection with an EIA, she understood that there was a requirement to identify the direct and indirect effects of the proposed development on the receiving environment and that, having done so, there was a requirement to investigate analyse and assess the likely direct and indirect effects of the development.
163. The Inspector’s report is but part of the evidence laid before the Board for the purposes of enabling it to carry out and complete an EIA. In this case the Inspector was satisfied that there was sufficient evidence to enable an EIA to be carried out by the Board as part of the planning process. That conclusion was accepted by the Board; it is the Board and not the Inspector which makes the decision.
164. It is also clear from the report that the Inspector identified likely significant and direct and indirect affects arising from the proposed development. Her analysis, evaluation and assessment of these are considered and discussed under individual subheadings. The Board is obliged to consider these but they are not determinative of its decision. It was entitled to differ from the views of the Inspector; which it did in relation to her recommendation that four turbines be omitted from the scheme of development. The reasons given by the Inspector for recommending the omission of certain turbines are set out in pages 47 to 56 of her report and maybe referred to by the court.
Sufficiency of the main reasons given by the Board for not omitting the turbines.
165. Having regard to the submissions made by the parties in relation to the question as to whether in the carrying out of an EIA the Board is required to carry out and complete a specific EIA in respect of the development in so far as that relates to the four turbines which the Inspector recommended should be omitted or, whether in carrying out and completing an EIA in respect of the entire development, including those four turbines, that part of the Inspector’s report relating to the four turbines remains evidence upon which the Board is entitled to rely, I am satisfied that, in light of its statutory obligation to give its main reasons for disagreeing with the recommendation of its Inspector, it is incumbent on the Board to consider the entire report and not just the Inspector’s considerations and assessment on foot of which she based her recommendation, accordingly, the whole of her report remained evidence upon which the Board was entitled to rely in the carrying out and completion of its EIA.
166. However, it seems to me to follow that, in providing its main reasons for disagreeing with the recommendation of the Inspector, it must be made clear from those reasons that in considering that evidence the Board carried out an examination, analysis and evaluation of that evidence when carrying out and completing the EIA if the requirement that a complete record be available to concerned members of the public, and the court, from which it can be established that an assessment within the meaning of s. 171(a) was carried out and completed in respect of the development as a whole and for which permission was given.
167. Insofar as the main reasons may be ascertained from the decision and direction of the Board as to the non acceptance of the recommendation of the Inspector, the main ground identified was the separation distances between the proposed turbines and the dwellings, that these were in accordance with national guidelines, and that having regard to the information on file it was not considered necessary to omit the turbines to ensure the protection of visual and residential amenities which the guide lines sought to protect. Whilst the Board also considered it unnecessary to omit any turbine in relation to ecological concerns, no reason is given nor is it apparent from the face of the decision or the direction of the Board as to how or why the Board reached that conclusion.
168. Moreover, in relation to the issues of concern raised by the Inspector in relation to residential and visual amenity, whilst the Board indicated that it had taken into account the information on file and had considered the national guidelines, there is no reference to or identification of particular information on the file which the Board stated it had taken into account in order to enable it to come to the conclusion it did.
169. Whilst I accept the jurisprudence in relation to what is required to be indicated or stated in the decision of the Board in relation to these matters is that there is no obligation on the Board to provide detailed reasoning equivalent to the highly professional and highly detailed report of the Inspector, or to deliver a discursive judgment, nor to include a re-evaluation of the Inspector’s report, it is also clear that the obligations placed on the Board cannot be satisfied by recourse to an uninformative if technically correct formula.
170. In this case the Board considered it necessary to include, in its main reasons for differing with the Inspector, matters of ecological concern. Whilst these were clearly identified in the report and the Inspector had drawn the attention of the Board to the potential impact of turbines 3 and 4 on the bog, and that their omission would result in that impact being avoided, the bald statement by the Board that it did not consider it necessary to omit any turbine on the basis of those concerns is particularly uninformative. As was observed by Finlay C.J. in his judgment in O’Keeffe v. An Bord Pleanála what must be looked at is what an intelligent person who had taken part in the appeal or had been appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons.
171. In my judgment, that part of the Board’s decision relating to the carrying out of an EIA and the provision of main reasons for disagreeing with the Inspector in relation to the turbines, stands in marked contrast to the decision of the Board in People Over Wind. In that case Haughton J. observed that it was notable from the decision of the Board that, in addition to the very specific adoption of the Inspector’s assessment of the environmental impacts with the exception of certain matters which the Board set out in its decision, the Board also referred to and adopted specific information arising from the documents to which it also had regard when coming to its conclusion. Whilst in this case there is a reference to the guidelines and a conclusion that the proposed development complies with the separation distances between the turbines and the dwellings and a reference in general to the information on file, there is no identification of or reference to specific information on the file relevant to those matters and upon which the Board relied.
172. Additionally, it is clear from the judgment in People Over Wind, that the decision of the Board provided an analysis of the points raised by the Inspector and, having done so, explained the reasons for not adhering to those elements of the Inspector’s assessment. Not only did the decision of the Board clearly set out its assessment of the points raised, but also its evaluation of those aspects.
173. Given that the observations, submissions, the planner’s report and other reports upon which it was based all formed the background to the Inspector’s recommendations, Haughton J. commenting on the obligation of the Board stated:
“it was incumbent on the Board in its decision to deal specifically with these aspects and to give its reasoning for departing from the Inspector’s recommendation, in carrying out its EIA.”
Explaining the necessity for the Board to address these matters directly in its decision Haughton J. observed that this
“arises from the fact that were it not to do so, it would be open to the principled criticism that it gave no reason for departing from a particular recommendation of its Inspector.”
174. Considering that and other recent decisions of this Court referred to in argument, it is my judgment that where the Board decides to differ from the findings in the report and the recommendation of its Inspector, then in order that a concerned member of the public – or, as in this instance, the Court – maybe satisfied that, in addition to identifying and describing the direct and indirect effects of the proposed development on the receiving environment, these were the subject matter of an assessment as defined in s. 171 A and that there was compliance with its obligations under s. 172 (1J) (e) and s.34 (10) (b), the Board, when giving its main reasons for differing from those findings and recommendations, must identify and deal specifically with those aspects of the Inspector’s report in relation to those matters with which it disagrees, furthermore, it must provide a rational explanation which is informative of the conclusion reached; this is also necessary if a challenge to the decision of the Board as being uninformative and/ or formulaic is to be avoided.
175. Whilst the Board does not need to engage in a discursive judgment or full re-evaluation in its decision in order to comply with these requirements, and which may be in summary form , the information which is required be given if the standard of practical enlightenment discernable from the statement of reasons referred to in the decisions of O’Keeffe, Mulholland and O’Neill is to be met, must be such as to enable a concerned member of the public and, where necessary, the Court, to be satisfied that the Board has directed its mind to the concerns expressed and reasons given for the recommendation by its Inspector with which it differs, and that its statutory obligations in carrying out and completing an EIA have been complied with.
176. In this case it is clear from her report that the reasons and concerns expressed by the Inspector and upon which she based her recommendation for the omission of the four turbines are not solely directed by or limited to the Wind Energy Guidelines, but also relate to other matters. Furthermore, in relation to ecology and the natural habitat, the Inspector drew the attention of the Board to the result which the acceptance of her recommendation would have; namely, the avoidance of certain impact on two areas of bog land within the site of the proposed development.
177. No explanation is given by the Board in its decision for the conclusion that it was not considered necessary to omit any turbine in relation to ecological concerns. Given the obligation to state its main reason for disagreeing with the Inspector on this matter, there was a requirement on the Board to provide an informative explanation for the conclusion that it reached.
178. Whilst there is ample evidence to support the analysis and evaluation which the Inspector undertook in relation to the development as a whole and on foot of which she based her recommendation, the same cannot be said of the evaluation and analysis as part of its assessment which the Board was required to carry out and on foot of which it decided not to accept the recommendation.
Conclusion
179. I am satisfied on the evidence and for all of these reasons that the record in this case fails to satisfy the requirements necessary to enable the court to determine whether or not the Board complied with its obligations to carry out and complete an EIA in respect of the development as a whole and in respect of which it granted permission.
180. Apart from the foregoing, but for the purposes of completeness, I would add that it is not possible to ascertain how, if at all, the Board dealt with the issue which the Inspector had identified in relation to turbine 2 and as a result of which she had recommended, in the body of her report, should be omitted. The fact that that recommendation, for whatever reason, did not make its way into the final recommendation does not relieve the Board of the obligation to deal with that since it was statutorily bound to consider both the report and the recommendation. A recommendation contained in the body of the report cannot be ignored simply because it or some part of it is not repeated in the final recommendation. At the very least an explanation from the Inspector should have been sought and obtained for the purposes of ascertaining the reason for the non inclusion of turbine 2, for example whether that was intentional or an accidental oversight, as it is the answer is unknown and the record to which the court must refer is incomplete.
Appropriate assessment.
181. The grounds of challenge to the legality of the AA purportedly carried out and completed by the Board may be summarised as follows:
a. The Board failed to report adequately or at all its conclusions in relation to an AA as required by s. 177 V, as interpreted in accordance with Article 6 (3) of the Habitat’s Directive.
b. the Board fails to record that it took into account the various matters that it was required to take into account under s. 177V (2) other than the decision of the NIS submitted in the context of the application for permission. In particular, the Board’s record does not disclose that the Board took into account the appeal submissions on behalf of both the Applicants and/or Mr. Kevin Corcoran in relation to the likely significant effects of the proposed development on the Gearagh SAC.
c. The Board failed to give reasons for its determination in relation to AA as required by s. 177V (6).
d. Insofar as the Board did record its conclusions and/or reasons in relation to the AA, the conclusions and/or reasons given were inadequate insofar as there was no record of any conclusion or reason in the Board’s decision to indicate how or why the reasonable scientific doubt raised in the appeal submissions on behalf of both the Applicants and/or Mr. Kevin Corcoran in relation to the likely significant effects of the proposed development on the Gearagh SAC/SPA was discounted by the Board if those were taken into account at all and if they were, the record does not disclose that it did so.
182. As we have seen, a number of SACs were identified which might likely be affected by the proposed development and that, accordingly, an AA was required.
183. Article 6 (3) of the Directive requires that any plan or project that is not directly connected with or necessary to the management of a Natura 2000 site concerned but which is likely to have a significant effect on it, either on its own or in combination with other plans or projects, can be authorised only if it will not adversely affect the integrity of the site.
184. The Respondent and Cleanrath submitted that the Board’s decision states that it carried out an AA as required under Article 6 (3) of the Directive and was satisfied that the proposed development, on its own or in combination with other plans or projects, would not adversely effect the integrity of the European sites and that this satisfies the obligation to record that fact. Their further submissions will be summarised later.
The Applicants’ submissions.
185. The necessity to record the conclusions of the AA is required to ensure that existing and future plans or projects are not authorised if they are likely to adversely affect the integrity of the site. Section 177S requires the Board to carry out an AA in respect of the planning appeal. Section 177V (2) requires the Board to take into account certain matters when carrying out an AA and these are:
i. The Natura Impact Report or Natura Impact Statement, as appropriate;
ii. Any supplemental information furnished in relation to any such report or statement;
iii. If appropriate, any additional information sought by the authority and furnished by the Applicant in relation to a Natura Impact Statement;
iv. Any additional information furnished to the competent authority and its request in relation to the Natura Impact Report;
v. Any information or advice obtained by the competent authority;
vi. If appropriate, any written submissions or observations made to the competent authority in relation to the application for consent for the proposed development;
vii. Any other relevant information.
Section 177V (5) requires the Board to make available any determination it makes in relation to an AA and also any reasons for that determination. It is clear from the provisions of that section that in addition to giving notice of its determination under subs. 1 in relation to the proposed development, the Board must give reasons for its determination. The Applicants submitted that whilst the Board determined that the proposed development would not adversely affect the integrity of the European sites in question, no reasons or no sufficient reasons were given for that determination.
186. Noting that there is no provision in the PDA which enables the Board to adopt the AA carried out by its Inspector, the Applicants submitted that no record of the AA which it purported to have carried out and completed was provided by the Board.
187. The Applicants relied on the decisions in Sweetman and Kelly in support of their submissions as to the requirements of the Directive which must be met in order to constitute a lawful AA. The assessment must include “an examination, analysis, evaluation, findings, conclusions and a final determination”. As to the sufficiency of the reasons which were required to be given, the Applicants submitted that they must be such as to enable an interested party to assess and, from such assessment, ascertain that an AA was carried out in advance of the decision. Moreover, in the event of a challenge being brought, the Court must have sufficient information from the file in order to be able to make an assessment as to the lawfulness of the AA in accordance with the CJEU decision in Sweetman . In that regard the reasons given for the Board’s determination in an AA must include “complete, precise and definitive findings and conclusions” which were relied upon by the Board as the basis for its determination.
188. The reasons given must be such as to disclose the main rationale upon which the Board considered those findings and conclusions capable of removing all scientific doubt as to the affects of the proposed development on the European site concerned in light of its conservation objectives and that these together with a conclusion to that effect must be recorded. Furthermore, they submitted that in the absence of such a record it would not be possible for a court to decide whether an AA was lawfully concluded or whether the determination made meets the legal test required by the judgements of the CJEU.
189. Referring to the guidelines for planning authorities in respect of the carrying out of an AA and prepared by the National Parks and Wildlife Service of the Department of the Environment, Heritage and Local Government, December 2009, revised in 2010, the Applicants submitted that the guidelines emphasised the necessity on the part of the Board to maintain and complete an audit trail of the AA process and envisaged the preparation of an appropriate assessment conclusion statement which was required to:
(a) describe the plan or project in sufficient detail to make clear its size
scale and objectives;
(b) describe the base line conditions, conservation objectives and relevant ecological and environmental issues in relation to the relevant Natura 2000 sites (generally, the NIS and any other data or information obtained will be appended to the AA conclusion statement)
(c) Identify potential adverse impacts of the plan or project on a Natura 2000 sites;
(d) if possible, explain how these effects will be avoided through mitigation;
(e) set out a time scale and identify the mechanisms through which the mitigation measures will be secured, implemented and monitored.
It was argued that the decision and direction of the Board failed to comply with these requirements and that this had the effect of rendering the decision ultra vires and invalid.
190. Whilst it was submitted that the decision of the Board was not a proper record of the AA carried out by the Board, even if the Court was of the view that the decision satisfied the requirements of s. 177 V (5), it was argued that the decision of the Board failed to have regard to all of the matters specifically referred to in s. 177 V (2) of the PDA. That this was so was evidenced by the reference to what it was that the Board stated it had considered. The section of the Board’s decision dealing with the information which it considered in connection with the AA whilst referring to the nearby Natura 2000 sites, the NIS and the proposed mitigation measures set out in the course of the planning application, made no reference to other information or submissions, including the observations made in the course of the planning process in so far as these were pertinent to the carrying out and completion of an AA. The Board was required to consider these but on the face of its decision failed to record that fact. Accordingly, its decision did not constitute an appropriate record necessary to meet the recording obligation and was therefore invalid.
191. Addressing the question as to what constitutes or may constitute the record of the carrying out and completion of an AA and that this may include reference to the relevant findings made and conclusions reached in the report of the Inspector as observed in Kelly, the Applicants submitted that that view was obiter, though accepted that it appeared to have been adopted by Haughton J. in Ratheniska. However, they argued that the Court had found that the Inspector’s report had become relevant in circumstances were the Board in its decision had expressly accepted the findings of the Inspector with regard to the AA. In this regard the Applicants referred in particular to the significance and effect of that finding and of which Haughton J. stated:
“…in other words, where the Board, having considered all appropriate documents and matters, accepts the scientific knowledge and findings in relation to the European site, accepts the Inspector’s examination and analysis and that the proposed development will not adversely effect the integrity of the European site, it is not necessary for the Board to set out yet again at length in its decision the same examination and analysis. Such an exercise would be both pointless and unnecessary. The mere fact that the resulting decision might be perceived to be ‘uninformative and perfunctory’, clearly does not of itself amount to any ground for review.”
192. Furthermore, and of particular importance in light of the absence of a statutory power enabling it to adopt the Inspector’s report in so far as the AA was concerned, the decision involved here did not expressly accept the Inspector’s examination analysis and conclusions (which the Applicants submitted was insufficient in any event) that the proposed development would not adversely affect the integrity of the European sites, indeed, the Board did not even note the Inspector’s report in that regard. It followed that it was not now possible to ascertain what, if anything in the Inspector’s report, the Board considered.
193. For the same reason, even if the Inspector’s report was considered, it is not now possible to ascertain how the Board dealt with the information provided and, in particular, what constituted the AA purportedly carried out by the Board in relation to the development as a whole and in respect of which it decided to grant permission. Whilst the EIA process was informative rather than determinative and did not require a conclusion in relation to the potential impact of the proposed development on the receiving environment, a determination in relation to the Natura sites was a mandatory requirement of a lawful AA. The failure on the part of the Board to comply with that requirement went to the jurisdiction of the Board to grant permission; accordingly, the whole of the decision was rendered invalid.
194. Even if it were permissible for the Board to adopt an AA carried out by its Inspector in the absence of a statutory power to do so and even if the Board’s decision was effective to incorporate the Inspector’s findings and conclusions such as they were, it was argued that that part of the Inspector’s report which purported to be an AA or evidence on which the Board purported to carry out an AA, did not meet the test formulated in Kelly. If the Court took the view, contrary to that submitted by the Applicants, that the record of the AA could be ascertained from both the decision of the Board itself and the report of the Inspector, then the content of the Inspector’s report was deficient since it did not incorporate complete, precise and definitive findings and conclusions upon which the Board could rely and which could have enabled it to be satisfied that there was no reasonable scientific doubt as to the absence of any adverse affects on the Natura 2000 sites.
195. Moreover, it did not contain the necessary examination, evaluation and analysis and, crucially, did not address with particularity any of the submissions or observations raised by third parties relative to the AA. In this regard it was submitted that the finding by the Inspector that she had considered the revised NIS fell far short of what she was required to consider. Her reference to the level of information provided was inextricably linked to the NIS itself rather than to that and the observations and information provided by other third parties. As to her opinion that the conclusion in the NIS that the proposed development would not adversely impact on the SAC/SPA sites was ‘reasonably supported’ this fell far short of the “complete precise definitive findings and conclusions” which were required to support such a conclusion.
196. On the question of scientific doubt, it was submitted that there was scientific evidence to raise such a doubt contained in a submission made by Mr. Kevin Corcoran, and with which the Applicants had agreed, however, the issues raised by him were not addressed by the Inspector in her report. It followed that the requirement to make complete, precise and definitive findings and conclusions capable of removing that doubt as to the potential adverse affects of the proposed development on the identified sites could not have been properly made; nor was there any record of how the differing scientific views were considered, reconciled and dealt with by the Board.
197. If, notwithstanding the Applicants’ submissions, the record was to include the evidence contained in the report of the Inspector, it was argued that the Inspector’s report was deficient since it did not contain the requisite complete, precise, definitive findings and conclusions, accordingly, the Board was required to make them and to record these when carrying out an AA but it failed to do so, indeed, there was no conclusion by the Inspector or the Board that any such findings or conclusions, if made at all, were capable of removing all scientific doubt as to the absence of the likely effects of the proposed development on the Natura 2000 sites.
198. The consequence of that was that neither the Applicants nor the court could be satisfied that an AA had been carried out and completed by the Board in accordance with its statutory obligations. Furthermore, it was not permissible to infer such a conclusion from the finding in the Inspector’s report that the information in the NIS reasonably supported the conclusion that the proposed development would not adversely impact on the SAC/SPA sites.
199. The Applicants also advanced the argument that where there were contradictory scientific views it would have been necessary, in the context of its AA, for the Board to give more the more detailed reasons referred to in Ratheniska, in order to explain its decision to prefer one side of the scientific argument over the other. No such reasons are apparent from the decision of the Board nor are they addressed by the Inspector in a way sufficient to meet these requirements.
200. No explanation was apparent from the record (if the Inspector’s report is to be included) and certainly none is apparent from the direction or decision of the Board as to why it accepted the scientific evidence supporting its determination on the question of scientific doubt over that of Mr. Corcoran. The question of removing all reasonable scientific doubt in relation to the absence of adverse impacts was fundamental to the carrying out and completion of an AA. It had to be addressed appropriately and contained in the record if the Court was to be able to determine whether or not the Board had directed its mind adequately to that issue.
201. An averment contained in the Statement of Opposition and the verifying affidavit of Mr.Clarke sworn on behalf of the Respondent was not sufficient for these purposes. He was not a member of the Board, his averments were hearsay to which the Applicants objected and in any event was not part of the record upon which the Board had made its decision. The record which was to be considered by concerned members of the public and the Court was the direction and decision of the Board alone but if that was incorrect then, in addition, the reports and information before the Board at the time when it reached its decision.
202. Finally, it was argued that if the Board had regard to the other matters specified in s. 177 V (2) it ought to have expressly said so.
The submissions of the Respondent and Cleanrath.
203. The submissions and legal argument advanced by these parties in relation to the AA were, in substance, to the same effect. With regard to the sufficiency of the record, these parties argued that it was perfectly proper and appropriate for the Board to have regard to and consider the content of the Inspector’s report in relation to its carrying out and completing of an AA; it was statutorily obliged to have regard to that report and to all of the information and documentation before it. There was no evidence that it failed to comply with that obligation and the Court was required presume that it had done so.
204. On the question of what constituted the record, to the extent that the view of the learned judge in Kelly concerning the record was obiter, it was clear that view was adopted and applied in Ratheniska. There was no obligation on the Board to refer specifically to the contents of the Inspector’s report in relation to the AA nor was there a requirement either under the Directive or under the PDA that the Board should do so. Moreover, it was apparent from the face of the Board’s decision that it had considered all of the material before it which included the Inspector’s report. This was sufficient to ground its decision. It was not necessary that the Board should have engaged in a discussion on the report or delivered a judgment about matters which were fully addressed in the report and upon which the Board was entitled to rely.
205. Particular attention was drawn by these parties to the difference between the circumstances in Kelly and those absent in this case in relation to the AA; namely, that here there was no disagreement between the Inspector and the Board in relation to the AA. The findings made in relation to the European sites at issue made by the Inspector in her analysis as a whole were accepted by the Board. Moreover, it was abundantly clear from the Board’s statement of opposition and from the record, including its decision, that an AA was in fact carried out and completed and that this fact is recorded in the decision itself; no more was required.
206. These parties rejected the criticism of the Inspector’s report that there was no evidence of an assessment which included an examination, evaluation and analysis undertaken by the Inspector in respect of the applicable Natura 2000 sites. On the contrary, the compliance with this requirement is amply demonstrated in section 13 of her report.
207. Referring to the decision of this Court in Maxol Ltd v. An Bord Pleanála[2011] IEHC 537, it was submitted that it was entirely appropriate and permissible to read the report of the Inspector together with the decision of the Board in circumstances where, in relation to the AA, the Board was in agreement with its Inspector and from which the sufficiency and adequacy of the reasons required to be given for the purposes of complying with its statutory obligations could be ascertained.
208. It was also submitted that there was no requirement for the Board, especially where it was supported in its view by that of the Inspector, to identify and give express reasons for its disagreement with the views expressed by Mr. Corcoran. It was submitted that his submission did not operate to elevate his opinion to the point where it raised a reasonable scientific doubt for the purposes of an AA under Article 6 (3) of the Directive and s. 177 V. Nevertheless, his report constituted part of the materials for the Board upon which it made its decision. That report was duly considered and summarised by the Inspector, as was apparent from section 4.1 of her report and was considered by the Board.
209. Furthermore, during the planning process Mr. Corcoran did not revise his submission to take into account the additional information which had been submitted to the Board prior to lodging his submissions on the appeal. Specifically, he did not react to the proposed mitigation measures in the revised NIS to explain why he considered that these would be inadequate for the purposes of avoiding the scientific risks which he apprehended. There was ample evidence in the NIS and revised NIS submitted by Dixon Brosnan, environmental consultants on behalf of Cleanrath and upon which the Board was entitled to rely, including the mitigation measures proposed in detail in s. 11 of the revised NIS. The fact that Mr. Corcoran did not provide any constructive response permitted the Board to conclude that his concerns did not amount to demonstrating the continuing existence of any reasonable scientific doubt for the purposes of the Habitats Directive.
210. In such circumstances it was reasonable for the Board, having regard to the NIS and the revised NIS as well as the evidence contained in the Inspector’s report, to consider that it had the benefit of the best scientific knowledge in the field in order to enable it to conclude, as it did, and as a matter of certainty, that the proposed development would not have lasting adverse effects on the integrity of the relevant European sites. The submissions of the Applicants and Mr. Corcoran on appeal were, in the circumstances, insufficient to cause a degree of concern about divergent scientific views. It was reasonable for the Board to conclude, therefore, that there was no necessity to provide more detailed reasoning for accepting one side of the scientific argument over the other as referred to in Ratheniska.
211. These parties also submitted that the decision of the Board is entitled to the presumption that the Board exercised its functions properly and that a positive statement to the effect that it had carried out an AA was to be taken as proof that it had done so. On the face of the decision the Board was satisfied, on all of the evidence, that there would not be any adverse affects on the integrity of the European sites. The Applicants’ submissions that the Board had failed to carry out an AA and had failed to properly record that fact were singularly inappropriate and unsubstantiated. There was no evidence upon which the Court could be satisfied that the decision was unlawful. There was no evidential basis to support the grounds upon which the Applicants sought to challenge the legality of the decision in relation to the AA and, accordingly, there was no basis upon which the Court could intervene to quash the decision.
Decision on AA.
212. Applying the legal principles to which reference has already been made earlier in this judgment in relation to the lawfulness of an AA and having regard to the decisions in the Commission v. Ireland, Sweetman and Kelly, it is clear that the court has a particular competency and jurisdiction to determine whether the AA was carried out and completed in accordance with law.
213. To enable the court to so it is necessary that the record should disclose that the reasons given for the Board’s determination in an AA must include the complete, precise and definitive findings and conclusions reached by the Board and upon which it made its decision. In my view, the words ‘complete’ ‘precise’ and ‘definitive’ do not in their ordinary and natural meaning admit to generality.
214. The sufficiency of the reasons given must contain the main rationale for which the Board considered those findings and conclusions capable of removing all scientific doubt as to the absence of adverse affects by the proposed development on the European sites concerned in light of their conservation objectives. Rationally, such a conclusion could not be reached upon generality; hence the necessity for the findings made to be ‘complete’, ‘precise’ and ‘definitive.’
215. Absent such evidence from the record, at the time when the determination was made, it would not be possible for the Court to decide whether the AA was lawfully completed or whether the determination made meets the legal test required in accordance with the judgements of the CJEU.
216. It was contended by the Applicants that as it was the Board which was required to carry out the AA and as it was the Board which purported in its decision to do so, the necessary evidence had to be ascertainable from the decision of the Board itself and that it was its decision which constituted the record to which reference was to be made. I cannot accept that submission. Whilst it is undoubtedly the function of the Board to carry out an AA and that it is the decision of the Board and not that of the Inspector which is determinative, regard must be had to the provisions of s. 146 of the PDA which enables the Board, in the discharge of its functions, to assign an Inspector to report to it. In considering the record in relation to an AA, where the Inspector, as part of her assignment, included in her report the evidence or part of the evidence upon which an AA was to be carried out that, in my view, forms part of the materials which the Board was statutorily obliged to consider in reaching its decision. The proposition that the Court cannot have regard to that part of the Inspector’s report in relation to the AA but is constrained to look to the decision alone is, in my view, misconceived and unfounded in law.
217. Given the function of the Court in making a determination as to whether or not an AA had been carried out lawfully, it would be wholly irrational if, in the absence on the face of the decision of some or all of the requirements which must be satisfied but which could be ascertained by reference to the report of the Inspector, these were to be ascertained from the decision of the Board alone.
218. In so far as that question may not have been argued in Kelly and that the view expressed in relation to the production and reading of the Inspector’s report, together with the decision of the Board, was obiter, I am fortified in my judgment that the court may do so by the judgment of this Court in Ratheniska.
Consideration and adoption of the Inspector’s report.
219. Insofar as it was submitted by Cleanrath that the Board had adopted the report of the Inspector, I am quite satisfied that, for the purposes of the AA, the Board did not do so. In so far as the Board adopted the report of the Inspector save in respect of her recommendation regarding the four turbines, it is clear from the face of the decision that the adoption of the report was expressed to be in relation to the obligation on the Board to carry out an EIA as well as in respect of the giving of its main reasons for not accepting the Inspector’s recommendation to omit certain turbines. There is no mention of the Inspector’s report in the Board’s decision on the AA, nor would that have been permissible or lawful since the Board was not empowered to adopt it. This does not mean that the Board is precluded from considering its contents and where both the Board and the Inspector on the question of the AA are in agreement, the report and the decision may be read together. Different considerations may apply where there is a disagreement but none such arises here.
220. The direction and decision of the Board is silent as to whether or not for the purposes of the carrying out of an AA it accepted the findings and conclusions of the Inspector in her report. On the face of its decision the Board considered:
(a) The Natura Impact Statement;
(b) The nature and scale of the proposed development;
(c) The nature of the receiving environment; and,
(d) The mitigation measures set out in the course of the application and appeal.
This is in contrast with the matters which the Board stated it had considered in reaching its decision on the EIA; namely, the further information submitted with the application and on appeal, including the submissions from the appellants and observers as well as the Inspector’s assessment of the environmental impacts.
221. In Ratheniska the Court found that, on due consideration, the Board had accepted the relevant findings made and conclusions reached by the Inspector in relation to the AA. This constituted a cross reference to the content of the report in relation to that matter, including the Inspector’s examination and analysis of the likely direct and indirect impacts of the proposed development and the conclusion that the proposed development would not adversely affect the integrity of the European site.
222. In these circumstances the Court found that it was unnecessary for the Board to set out yet again at length in its decision the same examination and analysis as had been contained in the report of its Inspector. The production of that report was permissible and sufficient in those circumstances for the purposes of ascertaining whether an appropriate AA – which included complete, precise and definitive findings and conclusions – had been made and on which the Board was able to satisfy itself that these were capable of removing all scientific doubt as to the absence of adverse affects by the proposed development on the European site concerned in light of its conservation objectives.
Sufficiency of the Inspector’s report in relation to the AA.
223. Having regard to the findings made in relation to the record to which the Court may refer it is, in the absence of the necessary evidence on the face of the decision of the Board, appropriate to consider the sufficiency of the evidence in relation to the AA contained in the Inspector’s report for the purpose of ascertaining whether it contains the complete, precise and definitive findings and conclusions which are required and upon which the Board was entitled to rely. I am quite satisfied that the Inspector was authorised, as part of her assignment, to carry out an assessment in respect of the AA and to report on that to the Board.
224. The AA was addressed by the Inspector in section 13 of her report which considered in some detail the NIS prepared by Mr. Karl Dixon and Mr. Vincent Murphy of Conservation and Landscape Management – submitted in response to the request for additional information by the Council – and the further NIS submitted to the Board as part of the appeal which sought to address the formatting and layout concerns which had been raised by the heritage officer of the Council. I pause to observe that that report was not commissioned by the Board. Mr. Dixon and Mr Murphy were not officials or employees of the Board to whom the functions of the Board could be delegated.
225. Their report addressed the three main Natura 2000 sites within fifteen kilometres of the development. The report identified the qualifying interests associated with each site as well as the conservation objectives afforded to each site and additional data which included EPA monitoring of river waters and relevant Q ratings applied. The report identified the potential impacts on the Natura 2000 sites, drawing from this information as well as baseline surveys undertaken for the EIS.
226. The Inspector summarised the findings of the report in relation to each of the sites in question and also the matter of combination affects. Reference was also made to the potential impacts on birds, terrestrial habitats and water quality. The Inspector noted that the report had concluded that there would be no direct or indirect impacts on the Natura 2000 sites either alone or in combination with other projects and concluded that there were no impacts on the qualifying interest of the SAC/SPA sites. Having considered the report the Inspector was satisfied that the methodology used in was clearly explained, that the information sought was set out and that on that basis she considered that the level of information provided allowed the Board, as the competent authority, to assess the impact of the proposed development on the integrity of the Natura 2000 sites.
227. Having regard to the mitigation measures proposed, she concluded that the proposed development would not adversely impact on the SAT/SPA sites. She found that the conclusion in the report was “reasonably supported” and on that basis was satisfied that the cumulative impact of the development would not have adverse affects on the SACs in light of their conservation objectives.
228. For reasons which were explained in Kelly, the carrying out and completion of an AA is not a “planning decision”, rather, it is a distinct and separate part of that process the proper performance of which goes to the jurisdiction of the planning authority or the Board to grant or refuse permission.
229. Whilst the Inspector summarised the EIS in section. 3 of her report in some considerable detail and upon which she commented when making findings and reaching conclusions, the same exercise was not undertaken in relation to the NIS as amended. Furthermore, in relation to her report on the AA, the Inspector appears to have confined her consideration to the NIS. No reference is made in relation to the submissions of the observers including Kevin Corcoran or to the concerned residents, which included the Applicants, insofar as these submissions were directed towards the AA.
230. If the Inspector considered those submissions as part of her report on the AA and in particular the scientific doubts raised by Mr. Corcoran as to potential impacts on the Natura sites – which, in my view, she was obliged to do – no reference to these was made in her report nor is any explanation given for preferring one scientific view over another in circumstances where those views clearly differed. In fact, no reference at all was made by the Inspector under the AA to the very detailed report submitted by Mr. Corcoran. As an environmental biologist he was, in my view, qualified to express the scientifically based opinion contained in his report.
231. I cannot accept the submission that the Board was entitled to discount his concerns on the basis that he had made no further submissions on the amended NIS. Significantly, he continued as a party to the appeal. That being so, if the Board were concerned to ascertain whether he was satisfied that his concerns had been sufficiently addressed in the amended NIS, it would have been a simple expedient for the Board to invite a response; there is no evidence that it do so. Accordingly, and as he continued to be a party to the appeal, the Board was not entitled to conclude that, in the absence of further submissions by him, his concerns had been addressed and that his scientific opinion was no longer relevant or sufficient to give rise to the scientific concerns which had been expressed; the contrary is the case. Moreover, if the Board was entitled to regard his views as being insufficient to elevate those to the level of scientific opinion, then such a conclusion and the reasons for it would have had to have been recorded; this is particularly so having regard to the conclusion and determination which the Board was required to reach on the question of scientific doubt; No such view appears from the record.
232. Reading the report of the Inspector and the Board together, it is clear that whilst the Board undoubtedly considered the NIS, no sufficient record was made either by the Board or the Inspector upon which the Court could conclude that an AA had been carried out which included complete, precise and definitive findings and conclusions upon which the Board relied as the basis for its determination that there would be no adverse affects on the Natura 2000 sites.
233. In so far as the Inspector made findings and reached a conclusion, these fall far short of what was required. Additionally, there is no evidence ascertainable from the record, such as it is, for the main rationale or reason upon which the Board would have been able to satisfy itself on the basis of the findings made and the conclusions reached that they were capable of removing all scientific doubt as to the effects of the proposed development on the Natura 2000 sites in the light of their conservation objectives.
234. It is an absolute requirement that, in addition to a record of the complete, precise and definitive findings and conclusions – which must also contain the main rationale upon which the Board considered those findings and conclusions capable of removing all scientific doubt as to the absence of adverse affects by the proposed development on the Natura 2000 sites concerned in light of their conservation objectives – the Board is required to record a determination to that effect; there is no evidence of such.
Conclusion.
235. On its face the decision of the Board was based on a consideration of the NIS having particular regard to the potential of impacts on the nearby Natura 2000 sites, the nature and scale of the proposed development, the nature of the receiving environment and the mitigation measures set out.
236. There is no express acceptance of the findings and conclusions of the Inspector such as they were. Even if the Board had done so, they were insufficient to satisfy the necessary requirements. Absent any consideration and conclusion in respect of the differing scientific opinions, how these were addressed and the particular reasons for preferring one view over the other in the report of the Inspector, it was necessary that the Board should have done so and that these matters were recorded in its decision.
237. As was observed by Hedigan J in Rossmore Properties Ltd v. An Board Pleanala [2014] IEHC 557, the test to be satisfied in respect of an AA involves a higher level of detailed reasoning than would occur in the wider jurisdiction of a normal “planning decision”. The requirements and test, exemplified in Kelly are, in my judgment, neither satisfied by the report of the Inspector nor the decision of the Board either separately or when read together.
238. Accordingly, it is not possible for the Court to determine whether the AA which the Board purported to carry out met the legal test required by the judgements of the CJEU and the decisions of this court. In the absence of the Inspector making and recording complete, definitive and precise findings and conclusions necessary to meet the standard required, which the Board would have been entitled to expressly accept, it was necessary and open to the Board to do so in its decision in a way which makes it plain that the obligations placed upon it in relation to the carrying out and completion of an AA were satisfied.
239. For all of these reasons and upon the conclusions reached the Court finds that an AA was not carried out by the Board in accordance with law.
Ruling.
240. Having due regard to all of the reasons given and the conclusions reached, the Court will grant the reliefs sought and will so order. I will discuss with counsel the form of the Orders to be made.
Callaghan v An Bord Pleanála
[2016] IEHC 488
JUDGMENT of Mr. Justice Binchy delivered on the 21st day of July, 2016.
1. On 23rd May, 2016, I granted the applicant herein leave to seek various reliefs by way of judicial review as against the respondents. In addition, on that date, I granted the applicant a stay on the decision of the first named respondent (the “Bord”) which the applicant challenges in these proceedings, pending the determination of these proceedings.
2. Following the service of the proceedings, the notice parties applied to have the proceedings entered into the commercial list and this Court so ordered on 10th June, 2016. On the same date, the notice parties sought an order setting aside that part of my order of 23rd May, 2016 whereby I granted a stay on the operation of the decision of the Bord pending the determination of these proceedings. That is the application with which this judgment is concerned. The application was heard before me on 28th and 29th June 2016.
Background
3. The notice parties to the action are involved in the development of wind farms. They previously applied to the Bord for permission to develop forty-six wind turbines at Emlagh, Co. Meath (the “Emlagh Development”). Prior to submitting that planning application, the Bord had designated that development as strategic infrastructure development (“SID”) for the purposes of s. 37A of the Planning and Development Act 2000. That section makes no provision for the involvement of the public in any way in such a designation.
4. Consequent upon that decision, the applicant issued proceedings against the same respondents, under Record No. 2014/647JR which were also admitted to the commercial list under Record No. 2014/170COM. In those proceedings the applicant sought, inter alia, declaratory orders to the effect, that the decision of the Bord that the proposed development constituted strategic infrastructure for the purposes of s. 37A(2)(a) and (b) of the Planning and Development Act 2000 (as inserted by s. 3 of the Planning and Development (Strategic Infrastructure) Act 2006 was flawed by reason of the fact that the decision was arrived at without any involvement of the public (the applicant having been denied the opportunity to make representations to the Bord in this regard). The applicant also sought an order quashing the decision of the Bord so designating the development as SID.
5. The leave application and the substantive proceedings were dealt with by way of a single combined “telescoped” hearing before Costello J., who delivered her decision on 11th June, 2015. She dismissed the applicant’s claims in their entirety. Following that decision, the applicant applied for a certificate for leave to appeal, and sought a certificate on three points of law. Costello J. gave a written judgment in relation to this application on 24th July, 2015 whereby she certified that just one of the matters raised by the applicant constituted an issue of exceptional public importance in respect of which she granted leave to appeal. That issue is as follows:-
“Is the statutory scheme contained in the Planning and Development (Strategic Infrastructure) Act, 2006 when construed in the light of ss. 50(2) and 143 of the Planning and Development Act 2000 such that it is necessary to read into the scheme a right for interested members of the public to be heard prior to An Bord Pleanála reaching an opinion pursuant to s.37A of the Planning and Development Act 2000 ?”
That appeal has been listed for hearing in the Court of Appeal on 4th October, 2016.
6. Subsequent to the issue of leave to appeal the applicant brought forward an application for a stay on all proceedings before the Bord. Finlay Geoghegan J. gave a decision, ex tempore, on that application on the 9th December, 2015 and having weighed the prejudice which each of the parties said they would suffer, she declined to grant a stay to the applicant. It will be seen however that the prejudice which the notice parties at that time argued that they would suffer is no longer a factor for the purposes of this application.
7. Following upon the original decision of the Bord, the notice parties made an application to the Bord for planning permission for that development, but this application was refused by the Bord in or about 4th February, 2016. It appears that the scale of the proposed development was a significant factor in the decision of the Bord to refuse that application. As a result, the applicant brought forward a revised and scaled down proposal which was submitted to the Bord pursuant to s. 37 of the Act of 2000 in or around 4th March, 2016. This application involved the development of a wind farm consisting of twenty-five wind turbines at Castletownmoor, Co Meath.
8. Before the Bord made any decision as to whether or not this development constituted SID, the applicant became aware of the application and wrote to the Bord requesting that he be allowed to participate in the process and to make submissions to the Bord in relation to the matter. The applicant also requested the Bord to refrain from further processing the application until the decision of the Court of Appeal on the certified point of law has been delivered. The Bord declined to do so.
9. Fearing that the Bord would again decide that the development being proposed by the notice parties constitutes SID without receiving any submissions from the applicant, and that thereafter the Bord would proceed to receive and consider a planning application from the notice parties, the applicant brought forward these proceedings. However, before the leave application came on for hearing before me (and after the issue of the proceedings) the Bord, on 11th May, 2016 determined that the Castletownmoor development constitutes SID and notified the applicant of this by letter dated 16th May, 2016. In the amended statement of grounds the applicant seeks reliefs, inter alia, as follows:-
(i) an order quashing the decision of the Bord that the Castletownmoor development constitutes SID;
(ii) an order quashing the decision of the Bord whereby it refused to accept a submission from the applicant regarding whether or not the said development constitutes SID;
(iii) a declaration to the effect that s, 37A-H of the Planning and Development Act 2000 is inconsistent with and contrary to EU Council Directives 85/337 (as amended by Council Directive 97/11 and 2003/35, as consolidated under Council Directive 2011/92/EU;
(iv) a declaration that the Bord, in making a determination that a development constitutes SID, without any involvement of the public, is contrary to the said directives and
(v) a declaration that s. 37A-H of the Planning and Development Act 2000 is inconsistent with the requirements of Council Directive 2011/92/EU and/or that Directive has not been properly transposed into Irish law.
The Applicant also seeks other reliefs but it is not necessary to set them all out for the purposes of this decision.
10. The issue between the parties in this application is whether or not the court should set aside the stay which restrains the Bord from acting upon its decision that the Castletownmoor development constitutes SID, the practical effect of which is to restrain the Bord from receiving and considering any planning application in relation to that development, pending the determination of the certified point of law by the Court of Appeal.
11. The notice parties contend that they will suffer significant commercial harm if the Bord is not free to receive, process and adjudicate their planning application pending the determination of the Court of Appeal, by reason of the additional delay that will be caused to the notice parties in the event that they are successful before the Court of Appeal, and also with their planning application before the Bord, when ultimately submitted.
12. The applicant on the other hand contends that he will suffer an irreversible prejudice if the Bord is permitted to deal with that planning application, in advance of a determination of the Court of Appeal on the certified question as to whether or not the Castletownmoor development constitutes SID. The applicant says this is so because he claims that the Bord and the notice parties have already engaged in a procedure (in relation to whether or not the proposed development constitutes SID) in a manner that may have a bearing on the decision of the Bord (unfavourably to the applicant) in relation to the planning application, when submitted. He claims, at paragraph. 25 of his affidavit grounding these proceedings, that “it is apparent that the Bord is currently advising the developer on matters that will influence their decision and on matters which will not be disclosed to me or the general public.” The applicant has a number of objections to the proposed development and contends that if planning permission for the development is authorised, and it is constructed thereafter, that his son, who has autism, will suffer adverse health consequences because he is particularly sensitive to noise. The applicant says that he too is sensitive to noise, and that he is also concerned that the proposed development will impact adversely upon the heritage, wildlife, cultural landscape and archaeology in the area.
13. The court was referred to many authorities in connection with this application and, specifically, in connection with the criteria to be applied by the court in the consideration as to whether or not the court should grant a stay or set aside a stay already granted whereby an administrative body is restrained from continuing with the exercise of its functions, pending the conclusion of judicial review proceedings. The law in this area was reviewed in detail by Clarke J. in the Supreme Court in the case of Okunade v. Minister for Justice [2012] 3 IR 152 at p. 193, he sets out the test which he considers the court should apply in such circumstances:-
“(a) the court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so, then;
(b) the court should consider where the greatest risk of injustice would lie. In doing so the court should:-
(i) give all appropriate weight to the orderly implementation of measures which were prima facie valid;
(ii) give such weight as is appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and,
(iii) give appropriate weight (if any) to any additional factors which arose on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings; but also,
(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful;
(c) the court should, in those limited cases where it was relevant, have regard to whether damages were available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and,
(d) subject to the issues arising in the judicial review not involving detailed investigation of fact or complex questions of law, the court could place all due weight on the strength or weakness of the applicant’s case.”
I will address these questions in the light of the facts in this case later in this judgment.
14. The factual background to this application and the matters to be considered on this application are very similar (save in one material respect which I deal with below) to those that pertained when Finlay Geoghegan J. was required to adjudicate on the applicant’s application for a stay upon the proceedings of the Bord in relation to the Emlagh Development. Procedurally there were some differences; on that occasion there was a planning application before the Bord and it was the applicant who was looking for a stay. On this occasion, there is not as yet a planning application before the Bord and this application is to set aside a stay already granted on an ex parte application to the applicant, which has the effect of precluding the Bord from considering any planning application that may be received from the notice parties in relation to the Castletownmoor development, pending the decision of the Court of Appeal. However, I don’t think anything of significance turns on those procedural differences between the two sets of circumstances.
15. However, there is one substantive difference in the circumstances that now obtains than those that obtained on 9th December, 2015, when Finlay Geoghegan J. delivered her ex tempore judgment. That is that at the time when she delivered her judgment, the notice parties placed very significant reliance upon their eligibility to participate in a scheme known as REFIT 2, a scheme operated under the aegis of the Department of Communications, Energy and Natural Resources, which provides a tariff support scheme for wind farm operators by guaranteeing a minimum price for electricity delivered to the grid by wind farms over a fifteen year period. The notice parties expressed concern that the imposition of a stay upon the consideration by the Bord of the planning application for the notice parties could delay matters to such an extent as to result in the notice parties failing to meet the deadline for participation in the REFIT 2 scheme. Finlay Geoghegan J. compared this potentially significant commercial prejudice which the notice parties said they might suffer with the possible prejudice that the applicant might suffer if he was not then granted a stay but subsequently succeeded in obtaining an order of certiorari quashing the decision of the Bord (declaring the development to be strategic infrastructure) i.e. if he is successful before the Court of Appeal. The only prejudice that Finlay Geoghegan J. could identify was that in those circumstances, the applicant would have to issue a second set of judicial review proceedings with a view to quashing any planning permission that might be made by the Bord in favour of the notice parties. She also observed that the applicant would, if the Bord granted such permission, in any event have to issue such proceedings, whether the stay was granted or not, the only difference being that if a stay were granted, the applicant would not have to do so until after the decision of the Court of Appeal, in the event of the applicant succeeding in that appeal. Weighing this potential inconvenience of having to issue a second set of judicial review proceedings against the possible significant commercial prejudice identified by the notice parties, Finlay Geoghegan J. declined to grant the applicant a stay upon the consideration of the planning application that was then before the Bord.
16. In their opposition to this application, the notice parties in the first instance relied on the prejudice they were likely to suffer in the event that they found themselves excluded from the REFIT 2 scheme. Indeed, this was the only prejudice identified in the affidavit of Mr. Kevin O’Donovan, a director of the notice party, sworn on 2nd June, 2016 in support of this application. Subsequently, however, it became apparent that the notice party cannot now avail of the benefit of the REFIT 2 scheme because to do so, the notice party would have to have received planning permission for the development by the end of December 2015. The notice party only became aware of this from a letter that issued from the office of the Chief State Solicitor to the solicitors for all the parties on 24th June, 2016. Accordingly, and in response to this development, a further affidavit was sworn by Mr. Donal O’Sullivan, Project Manager in the employment of the second named notice party, on 27th June, 2016, in which he sets out other commercial reasons which he says support the discharge of the stay. These are:-
(i) Firstly, Mr. O’Sullivan says that the notice parties are prejudiced by a stay on the planning process insofar as it puts them at a competitive disadvantage in the selling of electricity on a commercial basis. He sets out examples in which Apple and Facebook have invited tenders for the supply of electricity to their data centre operations, directly from generators such as windfarms. In short what he says under this heading is that if the stay is not discharged and if the applicant is ultimately unsuccessful in these proceedings, and the stay is only discharged at that juncture, the notice parties will have been prejudiced in their ability to avail of commercial opportunities which may have arisen in the intervening period.
(ii) Secondly, notwithstanding that the notice parties are no longer eligible to benefit from the REFIT 2 Scheme, they expect to be in a position to benefit from another scheme known as the Renewable Energy Support Scheme (RESS) which he says is expected to be available from 2016 onwards. He exhibits to his affidavit a slide presentation made to the Irish Wind Energy Association by a Mr. Eamonn Confrey of the Department of Communications, Energy and Natural Resources in relation to the RESS. This presentation discusses the possibility of developing a new support scheme for renewable electricity in light of a number of developments, including the closure of existing schemes (REFIT 2 and REFIT 3) on 31st December, 2015. A possible timeline for the introduction of a new scheme is discussed in the document but it is acknowledged that, as yet, no timeline has been determined. It is stated that the scheme will be available from 2016 onwards, subject to Government approval and State aid clearance, but as yet the scheme has not been implemented and no date has been set for its implementation. The prejudice which the notice parties assert under this heading, if the stay is continued, is that they may be delayed from availing of this scheme when it is introduced, with a consequent loss of cash flow and profits for a period of time equivalent to the duration of the stay.
17. So in summary, the prejudice which the notice parties allege that they will suffer in the event that the stay is not discharged is a loss of potential commercial opportunity and a potential delay in participating in a scheme the introduction of which has not yet been finalised. It should also be observed however that Mr. O’Donovan, in his affidavit of 2nd June, 2016, avers that work in relation to the Castletownmoor scheme has been ongoing since 2012 and that over that period of time significant costs have been incurred by the notice parties in relation to issues such as:-
“(i) Undertaking long term environmental surveys in the wider area, which surveys continued during quarters one and two of 2016;
(ii) Design of wind farm components;
(iii) Installation of wind monitoring mast on-site to determine the wind regime for the site;
(iv) Public engagement and stakeholder consultation; and
(v) Completion of documentation, including an EIS and NIS, submitted with the application for planning permission (i.e. the application which was refused), which it is averred was updated and intended to be submitted with the next application for planning permission in respect of the proposed Castletownmoor Windfarm Development.”
18. Mr. O’Donovan avers that in addition, the notice parties have incurred significant costs of up to €2 million securing grid capacity to connect both the development in respect of which permission has been refused, and the Castletownmoor Wind Development. Mr. O’Donovan estimates that total expenses to date are more than €5 million and further avers that the Castletownmoor Windfarm Development will cost in the order of €170 million to construct and operate and will generate substantial amounts of electricity each year for up to thirty years. He says that for a project of this scale to be completed on time to meet Ireland’s 2020 renewable energy targets, the proposed development must have planning permission in place before the end of 2016.
19. For his part, the prejudice which the applicant claims that he will suffer if the stay is lifted, is that the Bord will proceed to receive a planning application from the notice parties in circumstances where the applicant has been denied an opportunity to make submissions as to whether or not the proposed development constitutes SID. He further asserts that in the course of its dealings with the notice parties in this regard, the Bord had consultations with the notice parties which would in some way advantage the notice parties in the consideration of any planning application by the Bord. In addition, the applicant complains that, if the stay is lifted, he will be placed in a position where he may well have to prepare for an oral hearing which the Bord may convene in relation to the proposed development, at the same time that he has to prepare for the hearing in the Court of Appeal.
20. In his affidavit of 15th June, 2016 sworn in opposition to this application, the applicant says that in support of this application to set aside the stay, the notice parties rely on the same expenditure as was incurred for the Emlagh Development in order to illustrate the prejudice that the notice parties will suffer if the stay remains in place. The applicant submits that costs previously incurred relating to the larger project (the Emlagh Development) which was refused planning permission should not be considered in connection with this application and he says that in any event such expenditure is always a risk of the planning process, such risk is taken in the full knowledge that planning permission may not be granted.
21. As regards the kind of expenditure the courts should take in to account in applications of this kind, counsel for the applicant also relies on the case of Dunne v. Dun Laoghaire-Rathdown County Council [2003] 1 IR 567. That case involved an application for an interlocutory injunction to prevent the defendant from removing, as part of a major road building scheme, parts of a monument on lands which the defendant owned. In resisting the application and in particular in addressing the question of balance of convenience under the heading of financial loss, the defendants asserted that they would suffer losses in the region of between €50,000.00 and €100,000.00 per week by reason of disruption and delay to the project and stated that the tender price for the construction of the motorway concerned was €144 million. In addressing this, Hardiman J. stated:-
“These are important and weighty matters, very proper to be considered by the court in an application of this kind. But in order to be decisive in terms of the balance of convenience on this application, they must be specifically related to the relief actually sought. I do not think that the defendant’s averments do this with sufficient precision. It is stated that delay in the motorway project would be expensive and, more generally, prejudicial, and there is no doubt that this is so. But there is no statement as to the precise way in which this claimed injunction and the proceedings commenced will delay the motorway. Nor has the defendant advanced any precise legal or factual basis for the losses it says will be incurred should an injunction be granted. The contract with the contractors has not been produced nor any basis of calculation or estimation suggested. The mention of the huge sum of €144,000,000 as the contract price of the South Eastern motorway is, no doubt, properly calculated to make any court hesitate on the threshold of interlocutory relief. But neither this figure nor the much smaller, still very significant, weekly figure quoted have been related in any way to the actual scope of the proposed injunction.”
22. Counsel for the applicant particularly relies upon the case of Thomas Harding v. Cork County Council and An Bord Pleanála and others [2008] 4 IR 318. In Harding the applicant had been refused leave to seek judicial review of a decision of the first named respondent, but was subsequently granted a certificate pursuant to s. 50 of the Act of 2000 to bring forward an appeal to the Supreme Court. On the basis of that certificate, the applicant applied for the continuation of a stay previously granted by the court upon the proceedings before the second named respondent. The applicant had appealed the decision of the first named respondent to the second named respondent, but did not want that appeal determined before the determination of the appeal to the Supreme Court.
23. The court granted a stay to the applicant, taking the view that if it did not do so, and if the second named respondent proceeded to determine the appeal, that determination would render moot the appeal before the Supreme Court.
24. Counsel for the applicant in these proceedings submits that the application herein is within the “four corners” of Harding and that the applicant must be entitled to a stay for the same reasons that the applicant was found to be so entitled in Harding.
25. This same submission was made to Finlay Geoghegan J. in the context of the first application for a stay. She rejected the argument that Harding was on all fours to the factual scenario that prevailed on that application. It was clear in Harding that if the Bord decided the planning appeal prior the appeal before the Supreme Court, then the Supreme Court appeal would be set at nought because in that case what was being challenged was the decision of the local planning authority. Once the Bord made a decision upon the appeal of the decision of the planning authority, the operative decision would now be that of the Bord and the decision of the planning authority would no longer be of any relevance, and consequently nor would the judicial review of that decision.
26. In this case however (as was the case before Finlay Geoghegan J. on the first application for a stay) if the Bord makes the decision on an application received from the notice parties before the decision of the Court of Appeal, the decision of the Bord will not render the decision of the Court of Appeal moot. The decision of the Court of Appeal will have the same jurisdictional consequences for the proceedings before the Bord, as regardless of whether or not those proceedings have reached the point in time of a decision. I agree with the views expressed by Finlay Geoghegan J. in this regard. The factual matrix giving rise to the decision in Harding is materially different to that applicable in this case; Harding does not assist the applicant.
27. I will address now the test set out by Clarke J. in Okunade, as I consider it applies to the facts of this application:-
(a) Does the applicant have an arguable case?
The applicant was granted leave to bring forward these proceedings on the basis of the decision of Costello J. to certify that the applicant may appeal the part of her judgment of 11th June, 2015 which she certified as raising an issue of exceptional public importance, as described at para. 5 above. The notice parties submit that the mere granting of leave to seek judicial review does not of itself mean that, in the context of considering an application for a stay, the applicant has an arguable case. The notice parties rely on the decision of Martin v. An Bord Pleanála [2002] 2 I.R. 655 in which O’Sullivan J. said, in the context of an application to stay consideration by the Bord of a planning appeal following the grant of leave to the applicant in that case to apply for judicial review of certain decisions of the Bord:-
“… [I]t seems to me that it would be improper to draw the inference that a failure on the part of any of the parties to these proceedings to bring an application to set aside the order of the High Court … in the present case confers on the applicant’s case an automatic entitlement to be treated on this application as comprising a serious issue to be tried. In my view, I must on this application apply the normal rules without any such inference.
In this instance however, I am satisfied that having determined that the applicant has substantial grounds, those grounds being the point of exceptional public importance certified for determination by the Court of Appeal, that this must constitute an arguable case for the purposes of this application.
(b) Where does the greatest risk of injustice lie?
(i) How will a stay affect the orderly implementation of a measure which is prima facie valid?
In the particular circumstances of this case, the continuation of the stay will delay the effect of the impugned decision of the Bord until such time as the Court of Appeal delivers its decision following the hearing on 4th October, 2016. It is not unreasonable to expect that the decision of that court in the matter will not issue forth until some time afterwards, perhaps in early 2017. The overall delay, therefore, (from the time of the granting of the initial stay on 23rd May, 2016) is likely to be between seven and eight months. In my view, therefore, if the stay is continued, it will impact significantly upon the orderly implementation of an administrative measure, which it may be observed was designed to speed up the planning process for development qualifying as SID.
(ii) What is the public interest in the orderly operation of the particular scheme?
It is the stated policy of the Oireachtas to pursue the development of renewal energy and wind power, in particular. Specific objectives have been set for the year 2020. Section 37 of the Act of 2000 was subsequently inserted into that Act, specifically to facilitate the fast tracking of developments deemed to comprise strategic infrastructure. It is clear therefore that there is a public interest in the orderly operation of the scheme;
(iii) Are there any additional factors which might heighten the risk to the public interest identified above?
The notice parties contend that the Castletownmoor development will meet 2% of the State’s renewable energy targets. Even if this figure is not correct, it is likely that the Castletownmoor development will make a significant contribution to those targets.
(iv) What are the consequences for the applicant if the stay is lifted, but subsequent to that the Court of Appeal declares the impugned measure to be unlawful? The consequences for the applicant is that he will have to issue fresh judicial review proceedings with a view to obtaining an order quashing any decision of the Bord whereby planning permission is granted to the notice parties for the Castletownmoor development. But as observed by Finlay Geoghegan J. on the first application for a stay, it is difficult to see how the applicant could fail in such proceedings, and indeed this was acknowledged by Mr. Fitzsimons S.C. for the notice parties at the hearing of this application. However, the applicant might have to issue such proceedings in advance of knowing the decision of the Court of Appeal. I address this below.
(c) As to damages, the applicant submits that the authorities establish that no undertaking as to damages is required in this type of judicial review application. The applicant did not volunteer any undertaking as to damages and, in any event, it seems very unlikely that any undertaking he might give would be realistic.
(d) What weight should be placed upon the strength or weakness of the applicants’ case?
I consider that I must give some weight to the fact that this Court has already held against the applicant in the first proceedings on all grounds, including the point certified for determination by the Court of Appeal. By itself, this is not determinative of this application but it is in my view a factor which leans in favour of setting aside the stay.
28. Having thus considered all the factors identified by Clarke J. in Okunade it seems to me that the greater risk of injustice having regard to the same lies in the continuation of the stay. However, I think it is also desirable to address the balance of convenience as between the parties, as a court would usually when considering whether or not to grant an interlocutory injunction (having found that there is an issue to be tried). Indeed it was following upon that test alone and by agreement of the parties that Finlay Geoghegan J. decided the first application for a stay. There is of course one significant difference between the circumstances obtaining on the date of that decision, on 9th December, 2015, and today and that is that the notice parties have since been informed that the proposed development can not qualify for the REFIT 2 Scheme. The initial affidavit sworn on behalf of the notice parties in opposition to this application relied heavily upon that scheme.
29. The notice parties have however identified other grounds of potential prejudice in the event that they are delayed from processing their planning application, and the applicant subsequently fails in his appeal before the Court of Appeal. It is fair to say that it is not certain that the notice parties will suffer a loss, or even that it is probable that they will do so if the stay is continued. However, it must be regarded as a very real possibility that they will do so. Even if it is true to say that a considerable amount of the funds already invested must relate to the part of the original proposed development that is not now proceeding because of the planning refusal of the Bord, it must be equally true to say that a considerable proportion of the expenditure to date may be attributed to the Castletownmoor application, as the original Emlagh application also included development of wind turbines at Castletownmoor. It is self evident that if, by reason of the continuation of a stay, the notice parties suffer a delay in the processing of their planning application, and are subsequently successful in the proceedings before the Court of Appeal and their planning application, that there will be a period, directly attributable to the stay, during which they will not be able to avail of any commercial opportunities that arise and/or that they will simply be delayed in getting the project up and running and developing an income stream, whether through RESS or otherwise. While at this remove it is not possible to put precise figures on any such losses as might arise, or indeed to be certain that they will arise at all, what is clear is that such losses if they did arise would be directly attributable to the imposition of the stay.
30. Contrast that with the position of the applicant. If the stay is set aside and the notice parties subsequently obtain a planning permission from the Bord before a decision issues forth from the Court of Appeal, that planning permission will be vulnerable to being set aside if the applicant is successful before the Court of Appeal. As I said above, Finlay Geoghegan J. suggested as much in her decision on the first application for a stay (while stressing that she was not purporting to make any decision in this regard) and this was also acknowledged by counsel for the notice parties at the hearing of this application. Indeed Mr. Fitzsimons S.C. went so far as to say that the notice parties will be proceeding at their own risk and that if the applicant is successful before the Court of Appeal this would render any decision made by the Bord in favour of the notice parties null and void.
31. Accordingly, the position as regards prejudice to the applicant in the event of the stay being set aside is not materially different to that obtaining when Finlay Geoghegan J. gave her decision on the first application for a stay. The extent of the prejudice that may be suffered by the applicant is that if the Bord issues a planning decision in favour of the notice parties, the applicant will have to issue a second set of judicial review proceedings with a view to quashing that decision, and the applicant is in that position whether the decision of the Bord on any planning application that may be made by the notice parties issues before or after the decision of the Court of Appeal.
32. Nonetheless, if the applicant is required to issue such proceedings before the decision of the Court of Appeal, he will be doing so “on the blind”, not knowing if he will be successful before the Court of Appeal. There is therefore a degree of risk and expense associated with those proceedings, which for an ordinary member of the public can not be discounted as being insignificant. He would not face that risk if the existing stay is left in place.
33. Accordingly, I will make the following orders which I consider to be a reasonable via media pending the decision of the Court of Appeal:-
(1) The stay should be set aside to the extent of enabling the notice parties to submit a planning application to the Bord, and to permit the Bord to process that application in the ordinary way;
(2) The stay should remain operative however so as to preclude the Bord from making a decision on any planning application submitted;
(3) When the Bord considers that it is ready to make a decision upon the planning application, it shall notify the applicant and the notice parties and at that point the parties shall have liberty to apply in the light of any developments occurring in the meantime.
Without wishing to restrict any of the parties as to the nature of any such application, by this I particularly have in mind that the notice parties shall be at liberty to bring to the attention of the court any specific commercial prejudices that may come to light between now and the date upon which they receive notification from the Bord that it is ready to make a decision upon the planning application. Absent any such specific prejudice however, I consider that the stay upon the delivery of a decision by the Bord upon any planning application received from the notice parties should remain in being up until the date of delivery of the decision of the Court of Appeal on the certified point of exceptional public importance.
Southwood Park Residents Association v An Bord Pleanala & ors
[2019] IEHC 504
JUDGMENT of Mr Justice Garrett Simons delivered 10 July 2019.
SUMMARY
1. This judgment addresses the circumstances, if any, in which it is legitimate to treat a breach of the public participation requirements of the planning legislation as de minimis . The issue arises as follows. An Bord Pleanala has purported to grant planning permission for a large-scale residential development. The planning application had been made pursuant to the special statutory regime governing applications for “strategic housing development” as defined. It is a requirement of the relevant regulations that the applicant for planning permission, i.e. the developer, must make a copy of the planning application available for inspection on a dedicated website.
2. It appears that, through inadvertence, one of the documents submitted as part of the planning application had not been posted online. The omitted document contained information relating to the potential impact of the proposed development on various species of bat which are protected under EU law. An earlier version of this document has been posted online in error. None of the parties were seemingly aware of this error until after the within judicial review proceedings had been instituted. On learning of the error, the Applicant sought to amend its statement of grounds to include a further complaint that there had been non-compliance with the regulations. The other parties to the proceedings, very sensibly, consented to the proposed amendments. Indeed, the Developer went further and conceded that in circumstances where the requirements of the regulations had not been fulfilled, the decision to grant planning permission should be set aside on that narrow ground. It would not then be necessary for the court to consider the other grounds of judicial review.
3. Perhaps surprisingly, An Bord Pleanala has adopted a different approach. The Board concedes that there has been a breach of the requirements of the regulations, but contends that this breach was de minimis and does not affect the validity of the decision to grant planning permission.
4. The judicial review proceedings came on for hearing before me on Tuesday, 9 July 2019. All parties agreed that the legal consequences which the breach of the regulations has for the validity of the planning permission should be addressed as a preliminary issue, in advance of hearing any of the other grounds of judicial review. This preliminary issue was fully argued before me, and I reserved judgment overnight.
5. For the reasons set out herein, I have concluded that the breach of the requirements of the regulations is fatal to the validity of the planning permission. The regulations could not be clearer in their terms, and the failure to post the correct version of the document online represented a breach of those regulations. An Bord Pleanala’s reliance on case law in relation to de minimis breaches is misplaced. The breach in this case cannot be characterised as trivial, technical or insubstantial. The content of the omitted document—which consisted of (i) the results of surveys of bat activity in the vicinity of the application site, and (ii) proposed mitigation measures—was significant.
6. The effect of the breach was twofold. First, it undermined public participation in the planning process in that members of the public, including the Applicant, did not have an opportunity to consider and make submissions on the survey results and mitigation measures relied upon by the Developer. Secondly, it distorted the interpretation of the planning permission itself. One of the conditions of the planning permission had required that the mitigation and monitoring measures which had been submitted as part of the planning application be carried out in full. A member of the public who examined the online version of the planning application would only have sight of an earlier version of the mitigation measures. This has the potential to undermine the right of access to the courts within the eight-week time period allowed under section 50 of the Planning and Development Act 2000 (” the PDA 2000 “).
7. In the premises, I propose to make an order setting aside the decision to grant planning permission. The order will recite that the only grounds upon which this court has adjudicated are those in relation to public participation and the requirement to make a full copy of the planning application available online. (Ground E.25 of the amended statement of grounds). This judgment has nothing to say—one way or another—about any of the other grounds of challenge.
BACKGROUND
8. These proceedings seek to challenge a decision of An Bord Pleanala dated 13 February 2019. The application for planning permission had been made pursuant to the special statutory scheme established under the Residential Tenancies and Planning and Development (Housing) Act 2016 (” the PD(H)A 2016 “). This Act allows for the making of an application directly to An Bord Pleanala in the case of “strategic housing development” as defined.
9. The procedure governing the making of an application is set out, principally, at section 8 of the Act, and under Ministerial Regulations made pursuant to the Act, namely the Planning and Development (Strategic Housing Development) Regulations 2017 (S.I. No. 271/2017). The Ministerial Regulations take effect by inserting an additional Part into the principal planning regulations, i.e. the Planning and Development Regulations 2001.
10. Article 301(3) of the Planning and Development Regulations 2001 (as amended) provides as follows.
“(3) The applicant shall make a copy of an application available for inspection on the Internet at a web address set up for the purpose for the period commencing on the date of making the application and expiring 8 weeks following the sending by the Board to the applicant of a copy of its decision on the application.”
11. An applicant for planning permission is required to provide a declaration to the effect that, to the best of their knowledge and belief, the copies of the application documents displayed on any website under the applicant’s control are identical to the application documents deposited with An Bord Pleanala.
12. The planning application had been submitted by Cairn Homes Properties Ltd (” the Developer “). The Developer established the requisite website under the domain name “chesterfieldplanning.com”. It seems that, through inadvertence, one of the documents which had been submitted as part of the planning application to An Bord Pleanala was not posted to the website. Instead, an earlier version of the document was posted online. Given the nature of arguments made on behalf of An Bord Pleanala at the hearing before me, it is necessary to say something about the content of the omitted document.
13. The document is entitled “Cross Avenue, Blackrock, Co. Dublin, Bat Survey” and is dated 2018. (It is date stamped as having been received by An Bord Pleanala on 30 October 2018). The title does not, however, fully reflect the content of the document. Whereas the document does certainly contain survey results, the content of same is more elaborate. In particular, the document puts forward detailed mitigation and monitoring measures based on the survey results. It would be more accurate to describe the document as a “report” rather than merely a “survey”. The terms ” bat survey ” and ” report ” will be used interchangeably when referring to the document.
14. The omitted document is, in fact, one of two “Bat Surveys” which had been prepared on behalf of the Developer. The explanation for there being two separate reports lies, largely, in the fact that the first report (2017) had identified the need to carry out a further survey during the summer months. The second report is, in effect, an updated report to reflect the results of the additional survey subsequently carried out in July 2018. As explained in the affidavit of Paula Galvin of 7 June 2019, only the 2018 version has been lodged with An Bord Pleanala.
15. The recommendation for the additional survey is stated as follows in the first report (2017) at page 19 thereof.
“3. Removal of Buildings
Conformation (sic) was provided on the 28/2/18 with regards to the removal on buildings. The summer cottage and protected sections of the main house will remain. While no bats were recorded roosting within the buildings on-site, it is recommended that further survey work is undertaken earlier in the survey season (June or July of the summer months) to ensure that there are not roosting sites within the main house and the summer cottage. Access is also required to the attic space of both the main house and summer cottage to determine their bat roosting potential.”
16. As an aside, it should be noted that one of the complaints made by the Applicant in the proceedings is that the survey ultimately carried out in July 2018 did not, in fact, involve a survey of the attic space.
17. The content of the two versions of the document is broadly similar. The principal difference between the two appears to be that the 2018 version includes (i) the results of an additional bat survey carried out in July 2018, and (ii) a revised set of mitigation measures, which seemingly reflect the results of the additional bat survey.
18. The potential impact of the proposed development on ecology, and, in particular, on the various species of bat had been identified by An Bord Pleanala’s inspector in her report as one of the principal issues to be considered on the planning application.
19. The inspector’s assessment of this issue is set out as follows at pages 70/71 of her report.
“Ecological Issues
An Ecological Impact Statement is submitted, which is based on a site survey carried out on 31st August 2017. There are no sensitive receptors within a 2km radius of the development site. The South Dublin Bay SAC / SPA / pNHA is within 10km. There are no protected species within the relevant 10 km grid square and the site is not in the catchment of any significant watercourse. The habitats present at the development site are of low local biodiversity value except for the treelines and woodland, which provide habitat of high local ecological value for common breeding birds and foraging areas for bats. There are no habitats listed in Annex II of the Habitats Directive. No alien invasive plant species are present. The site survey found a single entrance burrow at the southern end of the site. A camera survey in September 2017 found the burrow to be occupied by a fox (not a protected mammal). There is no evidence of any protected species at the development site.
The Statement identifies the following potential ecological impacts:
• Removal of habitats including buildings, meadow, drainage ditch, treelines and individual trees, predominantly of negligible or low local value. The loss of these habitats is considered to be minor negative. Habitat enhancement measures are proposed comprising new tree and shrub planting of a diverse range of native and non-native species. The expanded pond feature will provide a permanent body of water.
• Direct mortality of animal species during demolition. This is identified as a moderate negative impact. Construction mitigation measures are proposed.
• Pollution of watercourses during construction. Site investigations have shown that the drainage ditch is not connected to wider water courses and so there is no connection to aquatic habitats. Run-off is to be managed during the construction phase. No negative water impacts are identified for the operational stage of the development.
• No significant cumulative impacts are identified.
Details of a bat survey carried out at the site on the 11th and 12 August 2017 and 12th July 2018 are submitted. Bat activity was recorded mainly at the treelines at the site perimeter with some activity in the treeline adjacent to Chesterfield House. At least 4 species of bats were recorded feeding and commuting within the survey area. This is indicative of the importance of this area for bats. While 3 of the species recorded are common Irish bat species (common pipistrelle, soprano pipistrelle and Leisler’s bat), the fourth species relies on woodland and parkland (brown long-eared bat). This is a rich bat fauna for one survey area. There are a number of large mature trees that are considered suitable for roosting bats and the garden is highly suitable for foraging and roosting bats. It is also likely that bats may occasionally use the buildings on site. However, no roosts were recorded during the site surveys. Potential impacts on bats relate to disturbance due to potential light and noise pollution, loss of roosting sites and foraging areas and interruption of commuting routes. Proposed mitigation measures include tree planting, supervision of tree removal, survey of areas of roosting potential prior to commencement of construction, a bat box scheme and review of proposed lighting plan by a bat ecologist.
The Ecological Impact Assessment concludes that no significant residual effects to biodiversity are likely to arise as a result of the proposed development. This conclusion is accepted, subject to the implementation of the proposed construction mitigation measures, landscaping proposals and bat mitigation measures.”
20. As appears, the content of the 2018 bat survey/report was heavily relied upon by An Bord Pleanala’s inspector in her assessment of the ecological impact of the proposed development. The inspector expressly states that the bat mitigation measures are to be implemented, and included a condition to that effect as part of her recommended decision. A condition in almost identical terms to that recommended is to be found as Condition No. 8 of the planning permission as follows.
“8. The mitigation and monitoring measures outlined in the Ecological Impact Statement and Bat Survey submitted with this application shall be carried out in full, except where otherwise required by conditions of this permission.
Reason: To protect the environment.”
OTHER GROUNDS OF JUDICIAL REVIEW
21. This judgment is confined to the grounds of challenge arising out of the failure to comply with Article 301(3) of the Planning and Development Regulations 2001 (as amended). It is, however, necessary to say something about some of the other grounds of challenge in order to assess the significance of that non-compliance.
22. A number of the grounds pleaded arise out of the obligation under Article 12 of the EU Habitats Directive (Directive 92/43/EEC) to establish a system of “strict protection” for certain animal species, including, relevantly, certain species of bat. The “deliberate disturbance” of protected species, and the “deterioration or destruction” of their breeding sites or resting places is prohibited. This is subject to the possibility of granting derogations in certain circumstances under Article 16.
23. These provisions of the EU Habitats Directive have been transposed into domestic law by the Birds and Natural Habitats Regulations 2011 (S.I. No. 477/2011). Regulation 54 allows for the grant of a “derogation licence” in certain circumstances.
24. The proper interaction between these requirements of the Birds and Natural Habitats Regulations 2011 and the development consent process provided for under the PD(H)A 2016 is one of the principal issues in the judicial review proceedings. In particular, the Applicant contends that An Bord Pleanala ought to have included a condition as part of the planning permission requiring the Developer to seek a derogation licence. (This might represent an important safeguard in circumstances where the Bird and Natural Habitats Regulations 2011 do not impose any mandatory obligation for advance screening to determine whether a derogation licence is required). An Bord Pleanala refutes this, saying that such a condition is unnecessary given that the requirement to comply with the Birds and Natural Habitats Regulations 2011 arises irrespective of any decision of the Board, i.e. the grant of planning permission does not obviate the need to seek a derogation licence where required.
25. Crucially, the mitigation measures recommended in the 2017 version of the bat survey had made express reference to the requirement to obtain a derogation licence in the event that the main house was recorded as a bat roost. This mitigation measure is omitted under the 2018 version of the bat survey. A person who relied upon the documentation posted on the website—which of course only displays the 2017 version—would thus have been given the mistaken impression that a link was being forged between the planning permission and the requirements of the Birds and Natural Habitats Regulations. I discuss the legal consequences of this at paragraph 48 below.
SUBMISSIONS OF THE PARTIES
26. On behalf of the Applicant, Mr James Devlin, SC, conducted a very careful analysis of both versions of the bat survey, and drew attention to what he characterised as a number of significant differences between the two. Counsel laid particular emphasis on the changes to the proposed mitigation measures in respect of the removal of the non-original features of Chesterfield House. Counsel was also critical of the fact that the additional survey carried out in July 2018 had—contrary to what had been recommended in the first report—not included the attic space of both buildings, i.e. Chesterfield House and the summer cottage.
27. Counsel submitted that the case law is unequivocal, and that a breach of a statutory requirement could only be discounted if it were de minimis . Counsel relied on a number of passages from the judgment of the Supreme Court in Monaghan County Council v. Alf-a-Bet Promotions Ltd. [1980] I.L.R.M. 64. Reliance was also placed on the judgment of the High Court (Peart J.) in Marshall v. Arklow Town Council (No. 2) [2004] IEHC 313; [2004] 4 I.R. 92.
28. On behalf of An Bord Pleanala, Mr Rory Mulcahy, SC, submitted that not every breach of the planning regulations has the legal consequence that a decision to grant planning permission is invalid. The breach in this case was said to meet the de minimis test identified in Monaghan County Council v. Alf-a-Bet Promotions Ltd. [1980] I.L.R.M. 64, i.e. the breach could be characterised as “trivial”, “technical” or “peripheral”.
29. Counsel very properly drew the court’s attention to the judgment of the High Court (Kelly J.) in McAnenley v. An Bord Pleanala [2002] 2 I.R. 763. That case concerned a failure to comply with the statutory obligation on the part of the planning authority to furnish certain documents to An Bord Pleanala. Kelly J. (as he then was) stated as follows (at page 766 of the report).
“It is difficult to treat non-compliance with an express statutory requirement on a de minimis basis. The notification of a decision of a planning authority will in all cases contain the essence of the decision itself. Notwithstanding that, parliament has ordained that both should be provided to the respondent. I cannot disregard this statutory requirement.”
30. Counsel submitted that whereas the issue of the impact of the proposed development on the species of bat had since become the focus of the judicial review proceedings, the importance of the issue in the context of the overall planning application had to be considered. The Applicant had been in a position to make submissions on the application for planning permission. It was suggested that the Applicant did not need the results of the 2018 survey to make all of the arguments which it wished to do in relation to mitigation measures. Counsel sought to suggest that the difference between the material in the two versions of the bat survey was minimal, and hypothesised that had the second bat survey been submitted by way of a response to a request for further information in the context of a conventional planning application, it could not be said that An Bord Pleanala would have had to circulate that information to the other parties.
31. Counsel on behalf of the Developer, Mr Eamon Galligan, SC, confirmed that his client accepts that the consequence of non-compliance with Article 301(3) is that the decision to grant planning permission is invalid. The Developer adopts the pragmatic approach that an order setting aside the planning permission on this narrow ground should be made. No order for remittal has been sought.
32. Ireland and the Attorney General (” the State respondents “) had been joined to the proceedings as legitimus contradictor to a claim by the Applicant that Article 12 of the EU Habitats Directive (1992/43/EEC) has not been properly transposed into domestic law. Counsel on behalf of the State respondents, Mr Brian Kennedy, SC, indicated that his clients had no objection to the issue under Article 301(3) being dealt with as a preliminary issue. Counsel submitted that this was generally in accordance with the principle of judicial self-restraint whereby judicial review proceedings should, if possible, be resolved by reference to national law issues before the court embarks upon any consideration of an alleged failure in the transposition of an EU Directive. No submissions were made on the substance of the dispute in respect of Article 301(3) in circumstances where this was a matter between the Applicant and the Board.
DISCUSSION
33. The terms of Article 301(3) of the Planning and Development Regulations 2001 (as amended) are unequivocal. There is no question but that the failure to post the 2018 bat survey online constitutes a breach of the Planning and Development Regulations 2001 (as amended). The dispute between the Applicants and An Bord Pleanala centres on the separate question of whether the admitted non-compliance with the requirements of Article 301(3) can be discounted as de minimis .
34. The jurisdiction of the courts to excuse or waive a breach of a procedural requirement which has been prescribed by legislation is severely limited. The position has been stated as follows by the Supreme Court in State (Alf-a-Bet Ltd) v. Monaghan County Council [1980] I.L.R.M. 64.
“I do, however, feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of the permission. In such circumstances, what the Legislature has, either immediately in the Act or mediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”
35. As appears, before a breach can be waived, it must be technical, trivial, peripheral or otherwise insubstantial. On the facts of State (Alf-a-Bet Ltd), the breach of the then planning regulations involved a failure to properly describe the “nature and extent” of the proposed development in the public notices published at the time of the making of the application for planning permission.
36. These principles were applied in the specific context of what might be described as a “missing documents” case by the High Court in McAnenley v. An Bord Pleanala [2002] 2 I.R. 763. The breach in that case involved the failure on the part of the planning authority to furnish certain documents to An Bord Pleanala. As appears from the following passages, Kelly J. (as he then was) emphasised that it is difficult to treat non-compliance with an express statutory requirement on a de minimis basis.
“I am of the view that the legislature is setting up the statutory scheme of appeals to the respondent had in mind that certain documents would be placed before it when it is called upon to exercise its de novo jurisdiction involving an appeal to it from a decision of a planning authority.
The obligation to submit these documents is placed on the planning authority. The section uses the word ‘shall’. The intent of the legislature is that there should be placed before the respondent the documentary material as specified which was on the planning authority file and was before it when it made its decision together with the documents which are set forth at subs. (c) which relate to the decision itself.
The documents in question in this application are as follows:-
(I) It is common case that the decision of the notice party was not forwarded to the respondent. The respondent did not therefore have the decision of the notice party before it when it made its decision on the appeal. It did have a copy of the notification to grant permission. It is said that this document contained all of the material which was contained in the decision itself. In this case the decision was constituted by an order of the county manager. It is argued that this failure to comply with the provisions of s. 6(c) of the Act should be treated and excused on a de minimis basis.
It is difficult to treat non-compliance with an express statutory requirement on a de minimis basis. The notification of a decision of a planning authority will in all cases contain the essence of the decision itself. Notwithstanding that, parliament has ordained that both should be provided to the respondent. I cannot disregard this statutory requirement.
That is not to say that, notwithstanding non-compliance with the provisions of s. 6(c), in an appropriate case certiorari might be withheld as a matter of discretion, if that were the only lacuna involved and no injustice would result. But that is not the case here for reasons which I will turn to presently. There was here a failure to comply with the obligations imposed under s. 6(c) of the Act of 1992, but it was not the only failure.”
37. The breach in McAnenley was fatal even in circumstances where the content of the one of the missing documents, i.e. the planning authority’s decision, was available in an almost identical form. This has an obvious resonance with the present case.
38. Counsel for An Bord Pleanala has suggested that it is legitimate for the court to consider the differences between the two versions of the bat survey in order to determine whether those differences are material. In this regard, counsel draws an analogy with the case law in respect of the exchange of submissions on a planning application or appeal. The courts have long since accepted that the exchange of submissions between parties must come to an end at some stage, and this has the inevitable consequence that one of the parties will have had the “last word”, i.e. in the sense that they will have submitted a document to which the other side will not have had an opportunity to respond in writing. This point is made as follows in the judgment of the High Court (Murphy J.) in State (Haverty) v. An Bord Pleanala [1987] I.R. 485 at 493/94.
“I have no doubt that on an appeal to the planning board the rights of an objector — as distinct from a developer exercising property rights — the requirements of natural justice fall within the former rather than the latter range of the spectrum. This flows from the nature of the interest which is being protected, the number of possible objectors, the nature of the function exercised by the planning board and the limited criteria by which appeals are required to be judged and the practical fact that in any proceedings whether oral or otherwise there must be finality. Some party must have the last word. The substantive reality of the present case is that the prosecutrix and the Sefton residents’ association put forward a detailed professional argument before the planning authority in the first instance and the planning board in relation to the appeal. I can appreciate their concern that they might have wished to expand upon their argument or to raise counter-arguments to those made in reply by the developers but I have no doubt that the real substance of their case was before An Bord Pleanala and duly considered by it. If there was in fact a material conflict of evidence that could not have been resolved by additional submissions or observations. Disputes of that nature could only be adequately dealt with in an oral hearing.
To avoid misunderstandings perhaps I should make it clear that I do not accept and I have not accepted any general proposition that An Bord Pleanala could discharge its obligation to an interested party by delivering part only of the appellant’s submission to any person entitled to receive the same. I could imagine cases in which further communications from the developer extended the original submission so radically as to constitute a different or additional case and in that event natural justice might well require An Bord Pleanala to postpone its decision until it had afforded interested parties an opportunity of commenting upon the revised submission. However, as I say, in the present case it seems to me that whilst the prosecutrix and her planning adviser do feel strongly that they would wish to have had an opportunity of amplifying the arguments which they had made I believe that the requirements of natural justice have been met so that there are no grounds for granting the order sought. I would allow the cause shown with no order as to costs.”
39. The point has more recently been made by the High Court (Hedigan J.) in West Wood Club Ltd. v. An Bord Pleanala [2010] IEHC 16.
“I am satisfied that the submissions in question raised no new issues requiring the respondent to circulate them for comment. There is no obligation on the respondent to repeatedly circulate submissions treating of the same matter. I am satisfied therefore that leave should not be granted.”
40. I do not think that a proper analogy can be drawn between this line of case law and the circumstances of the present case. The language of Article 301(3) of the Planning and Development Regulations 2001 (as amended) is emphatic. Neither the Developer nor An Bord Pleanala enjoy any discretion as to compliance with same. This is in marked contrast with the position in relation to the exchange of documents on a planning application or appeal where, by necessity, the decision-maker must have a power to end the exchange. If this were not the case, then a planning application or appeal might never reach conclusion. To this extent, a decision-maker can be said to have a form of discretion, albeit one that is circumscribed by the overarching requirement to comply with fair procedures. The case law indicates, for example, that the other parties must be afforded an opportunity to respond if the latest documents submitted contain new material.
41. Where judicial review proceedings are brought alleging a failure to comply with fair procedures, then it might be appropriate for the court to consider the content of the documents, and, in particular, to assess whether there is new material in respect of which a right to reply must be afforded. Typically, this will be done against a background whereby the decision-maker itself has considered the material and reached a view on whether or not same contains new material. The High Court, on judicial review, will normally show some deference to that view. See, for example, the judgment of the High Court (Kelly J.) in Kinsella v. Dundalk Town Council [2004] IEHC 373 (“The task of assessing whether ‘significant additional data’ is contained in a response involves the exercise of planning expertise”).
42. The legal position is entirely different where, as in the present case, the decision-maker has no discretion. In such circumstances, it is inappropriate for either the decision-maker, or for the court, to embark upon a detailed examination of the content of the material with a view to determining whether or not it is significant or otherwise. This is because the Oireachtas has ordained, albeit mediately through Ministerial Regulations, that all documentation in respect of a planning application must be posted on a dedicated website. In truth, therefore, the position is closer to that analysed by the High Court (Kelly J.) in McAnenley (see paragraph 36 above). It will be recalled that the breach in McAnenley was fatal even in circumstances where the content of the one of the missing documents, i.e. the planning authority’s decision, was available in an almost identical form.
43. It should also be noted that—as a consequence of the chronology in this case—An Bord Pleanala has not, in fact, ever formally considered whether the difference between the two reports is significant. This is because the failure to upload the correct version of the document to the website did not become known until after the Board had already made its decision. Accordingly, there is no assessment on the part of An Bord Pleanala of the significance or otherwise of the difference between the two documents in respect of which curial deference might be applied.
44. For similar reasons, the analogy which counsel for An Bord Pleanala sought to draw with information received in response to a request for further information does not hold good. The legal test is that prescribed under Article 35 of the Planning and Development Regulations 2001, i.e. “significant additional data”. This is a much higher threshold than de minimis . This test was considered in detail in Kinsella (above).
DECISION
45. The principal argument advanced on behalf of An Bord Pleanala is to the effect that if one carries out a comparison between the 2017 bat survey (which had been posted to the website) and the 2018 bat survey (which had been omitted), there is no significant difference between the two.
46. I am satisfied on the basis of the careful analysis conducted by counsel on behalf of the Applicant that the differences between the two bat surveys cannot be discounted as insubstantial. The identification of appropriate mitigation measures was an important issue in the planning application, and the Board’s inspector had relied in this regard almost exclusively on the mitigation measures put forward by the Developer. (See pages 70 and 71 of her report). Indeed, such was the eagerness of the inspector to adopt the mitigation measures wholesale that she appears to have overlooked entirely the fact that certain of the mitigation measures were presented in the alternative, and, in one instance, it was expressly stated that “a better mitigation solution” than that identified might be required. None of this is engaged with by the inspector.
47. Effective public participation requires that members of the public be afforded an opportunity to make submissions on those mitigation measures. The fact that only the 2017 version of the bat survey appeared on the website undermined this exercise. This is especially so as the mitigation measures recommended in the 2017 version were, in some instances, more robust than those under the 2018 version.
48. This point can be illustrated by reference to the following example. The 2017 version has very detailed recommendations under the heading ” 3. Removal of Buildings “. These are set out at pages 19 and 20 of the report. Crucially, one of the mitigation measures recommended concerns an obligation to obtain a derogation licence under the Birds and Natural Habitats Regulations 2011. As flagged at paragraph 21 above, this touches upon one of the principal grounds of challenge advanced in the judicial review proceedings.
49. The relevant part of the 2017 bat survey reads as follows.
“In general, the recommendations are to remove the roof of the buildings recorded as bat roosts and leave open for 3-4 nights prior to demolishment (sic) of the building. This will change the internal temperature of the building and encourage residing bats to move off. Only undertake this work in under ( sic ) permission with a NPWS Derogation Licence if a building is recorded as a bat roost. Such works should only be undertaken in the autumn or springs months to avoid the maternity and hibernation periods.”
50. These mitigation measures have not been included in the second version of the bat study (2018).
51. In order to appreciate the importance of this, it is necessary to rehearse briefly one of the grounds of challenge advanced on behalf of the Applicant. The Applicant contends that the requirement for the “strict protection” of species which is applicable to certain of the bat species under the EU Habitats Directive has not been complied with. The Applicant criticises An Bord Pleanala for the manner in which it dealt with this issue, and, in the alternative, has sought to challenge the manner in which the State has transposed this aspect of the Habitats Directive. One of the issues arising is whether An Bord Pleanala is obliged to impose a planning condition requiring a developer to apply for and obtain a derogation licence under the Birds and Natural Habitat Regulations 2011.
52. A person relying on the documentation posted on the website would be left with the mistaken impression that the mitigation measures—which have since been given effect to by Condition No. 8 of the planning permission—include a requirement to obtain a derogation licence in certain circumstances. In fact, this is not what is envisaged under the 2018 version of the bat survey.
53. The omission of the 2018 version from the website thus had the potential to mislead members of the public. This risk is not fanciful. A person relying on the website might have been satisfied that this express requirement to apply for a derogation licence represents an important safeguard. A person who had a concern as to the interaction between the planning legislation and the Birds and Natural Habitats Regulations 2011 would have been left with the mistaken impression that a condition forging a link between the two legislative regimes had, in effect, been imposed as part of the planning permission. Such a person might—on the basis of this mistake—decide not to object to the proposed development.
54. Counsel for An Bord Pleanala has sought to explain away the difference in the wording between the two reports by saying that—in circumstances where the 2018 survey has confirmed that there are no night time roosts in the two buildings—the mitigation measures originally proposed, which had included the requirement to apply for a derogation licence, became unnecessary. With respect, this argument requires the court to trespass on the substantive planning merits of the case. It requires the court to consider whether the revision to the mitigation measures was justified. More importantly, it invites the court to discount the importance of public participation. In circumstances where the 2018 bat survey was not posted to the website, members of the public, including the Applicant, were denied an opportunity to make submissions in relation to same. They were thus denied an opportunity to make submissions, for example, on the robustness of the 2018 survey given that it did not involve an examination of the attic spaces as had been recommended in the 2017 version. They were also denied an opportunity to make submissions on whether the planning permission should have included a condition obliging the Developer to seek a derogation licence if required.
55. I am satisfied, therefore, that the differences between the two versions of the bat survey are significant, and can certainly not be dismissed as trivial, technical, or insubstantial.
56. The right to effective public participation has been undermined as a result of the failure to post the report on the website. Moreover, there is a continuing consequence of this omission in circumstances where the mitigation measures have, in effect, been incorporated into the planning permission by dint of Condition No. 8. A person reading this condition, who then sought to examine the documentation on the website, would be left with the mistaken impression that the 2017 version of the mitigation measures applied. This has the potential to undermine the right of access to the courts within the eight-week time period allowed under section 50 of the PDA 2000. The fact that Article 301(3) requires the website to be available for eight weeks after the planning decision indicates that it is relevant for the purpose of access to the courts.
57. A breach which has not only had a negative impact on the public participation process prior to decision, but would, if not corrected, have effects after the grant of planning permission could not properly be said to be de minimis .
EU CASE LAW
58. There was some brief discussion at the hearing before me as to whether the determination of the legal consequences of Article 301(3) of the Planning and Development Regulations 2001 should be guided by EU law. In particular, it was suggested that the emphasis which EU environmental law and the Aarhus Convention place on public consultation might be relevant.
59. Counsel on behalf of An Bord Pleanala took the very pragmatic view that whereas it remains the Board’s position that the planning application did not trigger the public participation requirements of the EIA Directive (something which is itself in dispute between the parties), the standard of protection afforded to public participation under national law is not less than that under European law.
60. Counsel sought to rely on the judgment in Case C 72/12 Altrip . This, it was suggested, indicated that an application for judicial review based on procedural defect might be dismissed on the basis that the procedural defect did not affect the substantive outcome of the proceedings. Reliance was placed on the following passages from the judgment.
“48. Moreover, given that one of the objectives of that directive is, in particular, to put in place procedural guarantees to ensure the public is better informed of, and more able to participate in, environmental impact assessments relating to public and private projects likely to have a significant effect on the environment, it is particularly important to ascertain whether the procedural rules governing that area have been complied with. Therefore, as a matter of principle, in accordance with the aim of giving the public concerned wide access to justice, that public must be able to invoke any procedural defect in support of an action challenging the legality of decisions covered by that directive.
49. Nevertheless, it is unarguable that not every procedural defect will necessarily have consequences that can possibly affect the purport of such a decision and it cannot, therefore, be considered to impair the rights of the party pleading it. In that case, it does not appear that the objective of Directive 85/337 of giving the public concerned wide access to justice would be compromised if, under the law of a Member State, an applicant relying on a defect of that kind had to be regarded as not having had his rights impaired and, consequently, as not having standing to challenge that decision.
50. In that regard, it should be borne in mind that Article 10a of that directive leaves the Member States significant discretion to determine what constitutes impairment of a right (see, to that effect, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen , paragraph 55).
51. In those circumstances, it could be permissible for national law not to recognise impairment of a right within the meaning of subparagraph (b) of Article 10a of that directive if it is established that it is conceivable, in view of the circumstances of the case, that the contested decision would not have been different without the procedural defect invoked.”
61. These comments arose in the context of the discussion of a Member State’s discretion to impose locus standi requirements in respect of environmental litigation. Specifically, the CJEU was concerned with the right of a Member State to restrict standing to those individuals who can demonstrate an “impairment of right”. Ireland has never sought to rely on this provision and instead affords locus standi on the basis of “sufficient interest”.
62. The comments of the CJEU in respect of locus standi cannot be read across to the general standard of review under Article 11. The general principle is that set out at [48] the judgment. This principle has been emphasised in the more recent judgment in Protect Natur.
63. In any event, for the reasons set out under the previous heading, I am satisfied that it cannot be said with certainty that the outcome of the development consent process, i.e. the application for planning permission, would have been the same even if the breach of Article 301(3) had not occurred. Had the revised mitigation measures been available online, this would have allowed members of the public to make submissions on the suitability or otherwise of those measures and this would have allowed An Bord Pleanala to make a better informed decision. The Board might, for example, have taken a different view on whether to include a condition requiring the Developer to apply for a derogation licence if necessary. The Board might also have made a different decision for the purposes of EIA screening. It is also possible that the Board might have made a decision to refuse planning permission entirely.
PROPOSED ORDER
64. I propose to make an order setting aside the decision to grant planning permission. The order will recite that the only grounds upon which this court has adjudicated is that in relation to public participation and the requirement to make a full copy of the planning application available online. Relief is being granted in respect of the ground pleaded at E.25 of the amended statement of grounds. This judgment has nothing to say—one way or another—about any of the other grounds of challenge.
POSTSCRIPT: COSTS
65. Subsequent to delivery of an earlier unapproved version of this judgment, the issue of costs has since been determined. The Applicant applied for its costs as against An Bord Pleanala. Counsel for An Bord Pleanala then sought an order directing that the Developer be liable for one half of the costs of the Applicant. Counsel for the Developer indicated that his clients would not oppose such an order.
66. The determination of the liability of costs is, ultimately, a matter for the court. For the reasons set out in detail in my judgment in Heather Hill Management Co clg v. An Bord Pleanala (No. 1) [2019] IEHC 186, I am satisfied that proceedings which challenge a decision to grant planning permission pursuant to Section 9 of the PD(H)A 2016 are subject to the special costs rules under Section 50B of the PDA 2000.
67. Subsection 50B(2A) provides as follows.
“(2A) The costs of proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant to the extent that the applicant succeeds in obtaining relief and any of those costs shall be borne by the respondent or notice party, or both of them, to the extent that the actions or omissions of the respondent or notice party, or both of them, contributed to the applicant obtaining relief.”
68. The Applicant has succeeded in obtaining an order setting aside the planning permission (albeit on narrow grounds), and is, therefore, entitled to its costs.
69. Insofar as any apportionment of the liability for costs as between An Bord Pleanala and the Developer is concerned, it is necessary to refer to subsection 50B(3)(b) as follows.
“(3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so—
(b) because of the manner in which the party has conducted the proceedings,”
70. As explained by the High Court (Hedigan J.) in Hunter v. Environmental Protection Agency [2013] IEHC 591, this section does not require that there be “any moral turpitude” on the part of a party in order for it to be fixed with costs.
“Whilst an order for costs made thereunder is in the nature of a penalty, the manner in which a party conducted the proceedings does not require any moral turpitude on the part of the party criticised in order for it to be fixed with costs.”
71. On the facts of Hunter , a costs order was made against the notice party developer in circumstances where it had continued to oppose the application for relief notwithstanding that the decision-maker had conceded the case.
72. I am satisfied that An Bord Pleanala should bear sole responsibility for the costs of the Applicant. The position which the Board adopted whereby it opposed the application for judicial review even in respect of the narrow grounds arising under Article 301(3) of the Planning and Development Regulations 2001, notwithstanding that the Developer had conceded the point, resulted in the additional costs of a one-day hearing before the High Court being incurred. The conduct of An Bord Pleanala in this regard was unreasonable in circumstances where (i) the only party with a direct interest in the planning permission had conceded that the permission should be set aside, and (ii) the planning permission had been granted in circumstances where there was an admitted breach of the public participation requirements under Article 301(3) of the Planning and Development Regulations 2001.
73. The order for costs is to include the costs of the written legal submissions, and all reserved costs.
74. (Counsel for the State respondents expressly reserved his clients’ position on whether Section 50B does apply. In circumstances where no party sought costs against the State respondents, it was unnecessary for them to make submissions on the issue and they are not bound by this aspect of the judgment).
Cases Time Limit
Bracken v Meath County Council
[2012] IEHC 196
JUDGMENT of Mr. Justice Birmingham delivered the 27th day of April, 2012
1. Before the Court is an application brought by the respondents seeking to dismiss judicial review proceedings commenced by the applicants on the basis that those proceedings have been brought outside the time provided by s. 50(6) of the Planning and Development Acts, 2000 to 2010 and that there is no basis for an extension of time for the bringing of proceedings pursuant to s. 50(8).
2. To put the application now before the Court in context, it should be explained that judicial review proceedings have been issued by the applicant seeking to challenge a decision of the respondents pursuant to s. 5 of the Planning and Development Act, declaring certain developments to be exempted development. I am referring to the declaration of the respondents without being more specific, though there is some controversy whether the decision was that of Meath County Council or Navan Town Council, the matter is complicated by boundary changes, but the issue is of no particular significance in the context of the present application. The effect of the declaration under challenge was to permit the substitution of two glass windows on a gable end with obscured glass with a single window, also with obscured glass.
3. The statutory provisions in issue would appear to be these. Section 50(6):-
“Subject to subsection 8, an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) [questioning the validity of a decision] applies shall be made within the period of eight weeks beginning on the date of the decision, or, as the case may be, the date of the doing of the Act by the Planning Authority, the Local Authority or the Board as appropriate.
Section 50(8)
4. The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made, but shall only do so if it is satisfied that:-
(a) There is good and sufficient reason for doing so, and
(b) The circumstances that resulted in the failure to make application for leave within the period so provided were outside the control of the applicant for the extension.”
5. The chronology of events with which we are concerned is as follows.
(1) The 20th April 2011- an application for a declaration pursuant to s.5 of the Planning and Development Act 2010 as amended is submitted by the notice parties.
(2) The 9th May 2011 – a decision by the respondents in the present proceedings to declare the development exempt.
(3) The 10th May 2011 – details of decision entered upon the planning register.
Having regard to the provisions of s. 50(6) any challenge was required to be brought by the 4th July 2011. No such challenge was brought. That no such challenge was brought is explained by the fact that the applicants for judicial review were completely unaware of the fact that there had been an application for a declaration pursuant to s. 5 or any knowledge of the decision made on it by 4th July, 2011.
6. The next development of some relevance is that on the 8th September 2011, the first named applicant noticed activity at the gable end in the form of the removal of bricks.
7. What was observed happening on the gable end resulted in a letter being sent by the solicitors for the applicants in the judicial review proceedings seeking undertakings and threatening proceedings in default of a satisfactory response. In the absence of any response, on the 24th October 2011, proceedings pursuant to s .160 of the Planning and Development Act were issued by the applicants against the notice parties. These proceedings were made returnable on 29th November 2011, before the Circuit Court.
8. There was a very significant development on 17th November 2011, in that on that day the solicitor for the notice parties informed his opposite number, the solicitor for the applicants that as. 5 declaration had been sought and obtained and that the notice party would be relying on it. This was confirmed by fax.
9. On the same day the applicant’s solicitor went to the planning section of Meath County Council and confirmed that the position was indeed as he had been told.
10. At that stage the applicants were already out of time by some four months and would require an extension of time if judicial review proceedings were to be launched successfully. One might have thought that proceedings would have been launched immediately and that there would have been an application to extend time. That did not happen. Instead, it seems a decision was taken to defer action until a replying affidavit from the notice parties became available in the Circuit Court proceedings. That happened on the 19th January 2012. The procedure followed thereafter was slightly unusual in that the applicants issued a Motion on Notice dated 28th February 2012, made returnable for the 26th March 2012. However on the 12th March 2012, the matter was brought before Ryan J. on a ex-parte basis, who directed that the application should proceed on notice.
11. The respondents and moving party point to the period of time that has been permitted to elapse and says that in these circumstances there is no good or sufficient reason for extending time and that it cannot be said that the circumstances that resulted in the failure to make an application were outside the control of the applicant’s for judicial review. It is said this is clearly so if one has regard to the time that was allowed elapse since the 4th July 2011, which was the statutory deadline for bringing the judicial review application, but that even if one was minded to indulge the applicants and take the view that the period until the 17th November 2011, when the applicant’s solicitor was informed of the fact that a declaration had been made, should be excluded from consideration, then even on that basis there had been very considerable delay since then which ought not be excused.
12. The applicants on the other hand, object to the procedure that has been adopted by the moving party and say that this is not one that was ever contemplated by the rules of the Superior Courts. The procedure adopted is one that seeks to circumvent the rules, they contend.
13. The applicants say that the Court should have regard to the merits of their case, which they contend is a particularly strong one, in deciding how to deal with the issues raised in relation to time limits. They say that the Order which they seek to challenge was clearly made in breach of Regulation 9 of the Planning Regulations 2001 which provides that:-
“Development to which Article 6 relates [exempt development] shall not be exempted development for the purpose of the Act
(a) If the carrying out of such development would-
(i) Contravene a condition attached to a Permission under the Act or be inconsistent with any use specified in a Permission under the Act.
They contend that the development in respect of which a declaration of exemption has been granted, contravenes the condition of the Planning Permission which required the development to be carried out in accordance with the plans submitted. The plans which were submitted had provided for two windows, while what was now being authorised was a single larger window.
14. Furthermore, it is argued on behalf of the applicants that it was reasonable for them to await the replying affidavit. They urge that the requirement that the circumstances that caused the application to be out of time should be beyond the control of the applicant’s should be interpreted in a liberal manner, favourable to applicants. They say that if this is done, then the circumstances were outside the control of the applicants, as they were not in control of when the notice parties would deliver a replying affidavit in the Circuit Court proceedings.
15. In my view the notice of motion that has been issued tends to conflate two issues:(1) proposing that the applicants’ request for an extension of time be dealt with as a preliminary issue and (2) deciding whether the application to extend time should succeed or whether the proceedings should be dismissed, as the respondents urge. In my view, this is not a procedure to be encouraged. In the case of B.T.F v. The DPP [2005]2 I.R. 559, the Supreme Court reversed the decision of the High Court to deal with the issue of delay on the part of the prosecutor in applying for judicial review as a preliminary issue. The Supreme Court was of the view that having regard to the list of factors that a court had to consider in an application to extend time it would not normally be appropriate to try such a matter as a preliminary issue. It must be said that the case was a complex one raising for consideration questions relating to both prosecutorial delay and applicant delay. In the course of his judgment (at p. 566) Hardiman J. commented:
“This error [Considering the applicant’s delay in initiating the judicial review proceedings in isolation from the facts of the case as a whole] in turn, was I think caused by the prior decision to treat the question of the applicant’s delay as a preliminary issue. Having regard to the range of matters which fall to be considered under this heading and the six specific factors mentioned in De Róiste v. Minister for Defence [2001]1 I. R. 190 are expressly stated not to be exhaustive of the matters to be considered- I doubt whether it will normally be useful to deal with alleged applicant delay as a preliminary issue. Except perhaps in the very plainest of cases, the necessity to inquire into other matters such as those listed by Denham J. will render it inappropriate to deal with the matter by way of preliminary issue.”
16. In this case it is plain and not in dispute that the application for judicial review was not brought in time and that the applicants require an extension of time which can only be granted if there are good and substantial grounds for doing so and if the circumstances that resulted in the failure to apply in time were outside the control of the applicants. The second requirement has the capacity to render very plain how the matter should be approached.
17. On the 5th April, 2012 in response to an affidavit sworn on the 21st March, 2012 by a senior executive officer of the planning department of Meath County Council, the solicitor for the applicants swore an affidavit, the conclusion of which was in these terms:
“The sequence of events detailed in the grounding affidavit and submissions as to the delay in bringing proceedings should be heard in the overall context of the application for the reliefs sought and I respectfully submit that the order sought by the respondents in seeking the applicants’ application for an extension of time to bring the within judicial review proceedings to be dealt with as a preliminary issue be refused.”
When the motion came on for hearing, counsel for the respondents and moving parties moved her application without objection, presenting her oral arguments and expanding and commenting upon the written submissions which had been furnished in the ordinary way without objection. It was only when counsel for the applicants responded to her submissions, which as it happened was following an overnight break, the hearing of the motion having commenced very late in the afternoon, that it emerged clearly that there was a significant disagreement as to whether the moving parties application should be entertained at this stage. Given that the matter has been fully argued, that a number of affidavits have been filed on all sides and written submissions have been presented, it is undesirable to defer a conclusion, unless that was required to allow full consideration of the various factors to which a court is required to have regard in the context of an extension of time application.
18. Turning to the substantive issue, in this case the applicants were completely unaware of the declaration that has been made until the 17th November, 2011. In the circumstances of this case and, in particular, given the history surrounding the development which had seen Circuit Court proceedings commenced by the applicant’s late mother and compromised, there can be no question of the applicants being out of time and refused an extension, before they were aware of the declaration. However, once they learnt of the Declaration of Exemption it was incumbent on them to move with all possible expedition. This they singularly failed to do. I find the explanation of waiting for a replying affidavit in the Circuit Court proceeding quite unconvincing. In mid/late November the applicants found themselves affected by a decision made more than six months earlier. If they were to succeed in mounting a challenge, no further time could be lost, but instead further time was allowed to pass, including approximately five weeks after the replying affidavit was delivered in the Circuit Court.
18. In my view the good and substantial reasons which would have justified extending time ceased to have effect around the 8th December or thereabouts and thereafter there were not good and substantial reasons in existence justifying an extension of time. Moreover, from a date fairly shortly after the 17th November, 2011 it was very plainly, to echo the language of Hardiman J., not the situation that the failure to commence judicial review proceedings was due to circumstances beyond the applicants’ control. Far from that being the case, the applicants, on their own account, consciously and deliberately decided to defer action. In these circumstances it is very plain that the applicants cannot hope to meet the requirements of s. 50(8)(b) and in these circumstances I must accede to the respondents’ application.
Pearce v Westmeath County Council
[2012] IEHC 300
Judgment of Mr. Justice Hedigan delivered the 24th day of July 2012
1. The applicant resides at Fearbranagh, Multifarnham, Co Westmeath. The respondent is the County Council with responsibility for the administrative area of Co. Westmeath. The notice party operates a quarry located at Killintown, Ballinriddera, Multyfarnham, Co. Westmeath.
Background Facts
2.1 This is a preliminary application brought by the respondent, Westmeath County Council for the trial of a point of law preliminary to the substantive hearing, to determine whether the within proceedings are within or outside the eight week time limit specified for bringing an application for judicial review under s. 50(6) of the Planning and Development Acts 2000-2010.
The respondent also seeks an order pursuant to the inherent jurisdiction of the Court setting aside the order granting the applicants leave to apply for judicial review.
2.2 In the substantive proceedings the applicant seeks to challenge by way of judicial review a purported decision of the respondent to agree the submission by the notice party of a haulage route survey and details regarding the provision of lay-bys, dated the 1st December 2010 and made pursuant to amended condition 16(1) of planning permission (An Bord Pleanála) Reference Number PL. 25.222171M.
2.3 The planning permission which is the subject matter of the substantive proceedings was granted by on Board Pleanála on the 15th July 2009. The planning permission was for the continuation of quarrying activity by the notice party at Multifarnham, County Westmeath. Condition 16 of the permission required the notice party to submit to the respondent for agreement a haulage route survey and details in respect of the provisions of lay-bys in the interests of traffic safety and development. Condition 16 was subsequently varied by An Board Pleanala on the 23rd July 2010. Condition 16 as varied provided as follows:-
“16. (1) The developer shall submit to the planning authority for written agreement a detailed survey of the entire one-way, haul route showing width, levels, verges and all other relevant features and identifying the number and location of all lay-bys to be provided by the developer.
(2) The developer shall provide and complete all lay-bys agreed under paragraph 1 above within six months from the date of this order and shall comply with the requirements of the planning authority for such works and services.”
2.4 On the 1st December 2010, Sean Lucy and Associates Ltd, planning consultants, acting on behalf of the notice party lodged a submission with the respondent in respect of compliance with Condition 16 (as amended) of the planning permission. This submission was considered by Mr. Mkhululi Ndebele an executive engineer with the respondent on 3rd March 2011. On that date Mr. Ndebele determined that the submission was compliant with Condition 16 of the planning permission. A written record of this determination of compliance was made. The respondent wrote to Sean Lucy and Associates Ltd on the 11th March 2011 informing them of the decision.
2.5 On the 3rd May 2011 the applicant issued proceedings seeking leave to apply for judicial review of the impugned decision on a number of grounds including inter alia that it was made in breach of amended condition I 6 of the planning permission and/or the six month time limit imposed therein, was made in a manner which was in breach of natural and constitutional justice and/or that the respondent failed to give any reasons in respect of the impugned decision and it was ultra vires, invalid or of no legal effect.
2.6 The applicant maintains that the decision regarding compliance with condition 16 was made on the 11th March 2011, whereas the respondent maintains that this decision was made on the 3rd March 2011. This issue is of particular significance because the within proceedings issued on the 3rd May 2011. Consequently if it is determined that the decision was taken on the 3rd March 2011 the proceedings are outside the statutory eight week time limit prescribed by s.50 (6) of the Planning and Development Acts 2000-2011 (‘the PDA’) for challenging such decisions by way of judicial review.
Respondents Submissions
3.1 It is agreed between the parties that the impugned decision is a decision which may only be challenged in accordance with the provisions of s 50(6) of the Planning and Development Act 2006 which provides as follows:-
“Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.”
Section 50(8) of the Planning and Development Act 2006 makes provision for the extension of the aforesaid eight week time-limit in certain limited circumstances. The respondent however submits that s.50 (8) is not relevant in the within proceedings as no application for an extension has been made by the applicant.
3.2 The courts have held that the eight week statutory time-limit imposed by s.50 (6) of the Planning and Development Act 2006 in respect of challenging planning decisions is a strict time-limit. In Openneer v Donegal County Council (Unreported, High Court, Macken J., 13th April 2005) the Court outlined the reasons behind the 8 week time limit that applies, at pages 12-13:-
“It is a well established principle of law that any application for judicial review must be sought promptly. That has been interpreted in the jurisprudence as imposing a high obligation to move, not merely within the time scale provided for by Order 84 of the Rules of the Superior Courts, but to move at all events promptly, as is clear from the decision of Fennelly J. in the judgment of the Supreme Court in Dekra Eireann Teo v. Minister for the Environment, unreported, 4th April, 2004 and of the High Court in the judgment of Finlay Geoghegan, J. in Connolly v. The Director of Public Prosecutions, unreported, 15th May, 2003. The situation is even more certain and strict in the case of planning, which is the subject of a statutory scheme intended to impose and actually imposing strict time limits, including those more strict than in judicial review in general, and also more strict than previously existed under earlier versions of the Act of 2000. It is very understandable why such time limits are imposed by the legislation. Planning matters are of their very nature, when they include a right in third parties to make submissions, such as in the planning regime, such that those securing permission may wish to rely on the rights granted, as soon as possible after the expiry of a statutory period within which a challenge might have been made but was not, in the certain belief that the right is ‘final’. It is one of the very reasons why the challenge must be made within the time limit provided for, as otherwise the party with the right vesting in him arising from the permission granted might be in limbo for an inordinate period of time, and the permission would lack legal certainty.”
The notice party in these proceedings is entitled to legal certainty regarding her permission.
3.3 The respondent submits that it is clear from the evidence set out in the affidavit of Mr. Ndebele that the impugned decision was in fact taken on the 3rd March 2011 and not on the 11th March 2011 as the applicant erroneously asserts. It apparent that whether through error or otherwise the applicant mistakenly understood the letter 11th March 2011 from the respondent to the notice party as constituting the impugned decision. The respondent submits that on any analysis of the facts this is not the case. It is clear that the decision of the respondent on whether the notice party had complied with condition No. 16 of the planning permission was a technical matter which would have to be determined by an appropriately qualified member of the respondent’s staff. It fell to Mr. Ndebele an executive engineer with the respondent to make this determination following a technical appraisal of the notice party’s submission. Mr. Ndebele has given evidence on affidavit that he made his decision as to compliance with condition no. 16 of the planning permission on the 3rd of March 2011. A written record of his determination was made and has been exhibited at ‘MN A’ in the affidavit of Mr Ndebele. The respondent submits that this document entitled “record of compliance with conditions received’, clearly illustrates that the decision as to whether the notice party’s submissions were in compliance with Condition No. 16 of the planning permission was in fact taken on the 3rd March 2011. No further decision was made by the respondent in relation to the planning permission subsequent to that date. The letter of the 11th March 2011 from the respondent to the notice party was merely to inform the notice party of the earlier decision of the 3rd of March 2011. This is clear both from the text of the letter of the 11th March 2011 and by virtue of the fact that the letter was signed by a clerical officer who did not have the technical expertise to make a decision as to whether the notice party’s submissions were in compliance with Condition No. 16 of the planning permission.
3.4 A written record of the respondent’s decision of the 3rd March 2011 was placed on the public planning file relating to the planning permission. This decision was available to be viewed by members of the public including the applicant. The applicant averred that she inspected the planning file on the 25th March 2011. A written record of the decision would have been on the file at this time. The respondent submits that the application for leave to seek judicial review in the substantive proceedings was based on a fundamental error of fact, namely that the decision of the 3rd March 2011 was made on the 11th March 2011. At no stage in the ex parte hearing for leave to apply for judicial review was the court made aware of the fact that the decision had in fact been made on the 3rd March, 2011.
3.5 The eight week time limit runs from the “date of the decision” i.e. the 3rd March 2011 not the date of the notification of the decision to the notice party i.e. the 11th March 2011. Therefore in this case the eight week period for challenging the impugned decision by way of judicial review expired on the 27th April 2011. On the 13th May 2011 the respondents solicitors wrote to the solicitors for the applicant highlighting the fact that the impugned decision had in fact been taken on the 3rd of March 2011 and accordingly the eight week time limit prescribed by s.50 (6) of the Planning and Development Acts 2000-2010 for challenging the decision by way of judicial review had expired. In replying correspondence the applicant’s solicitors suggest the decision of the 3rd of March 2011 is simply ‘an internal administrative document’. The respondents submit that this is to ignore the fact that the written record of decision of the 3rd of March 2011 was put on the public file and thus cannot simply be dismissed as ‘an internal document’. It also ignores the sworn evidence of Mr. Ndebele that he took the impugned decision on the 3rd of March 2011.
3.6 The applicant also takes issue with the fact that there is no record by way of an order of the County Manager of the decision of he respondent of the 3rd of March 2011. However, there was no requirement for an Order of the County Manager in respect of the said decision. A decision by a planning authority as to the compliance with a condition in a planning permission is not a function required to be done by way of a Manager’s Order pursuant to Schedule 15 of the Local Government Act, 2001 (as amended). The respondent submits that the applicant is also not entitled to raise this ground because it was not raised in their statement of grounds. The respondents accept that the Courts are slow to set aside an initial grant of leave however it is clear that the court has jurisdiction to set aside leave in appropriate circumstances. (In this regard see Adam v Minister for Justice [2001] 3 IR 53; [2001] 2 ILRM 452 and Gordon v DPP [2002] 2 IR 369). This is particularly so where the grant of leave was based on a fundamental error of fact as to the date of the impugned decision and the challenge to the impugned decision was taken outside the statutory time-limit imposed by s.50 (6) of the Planning and Development Act 2006.
Applicants Submissions
4.1 These judicial review proceedings challenging a purported decision of the respondent dated 11th March 2011 were issued on the 4th May 2011. The applicant seeks an order of certiorari quashing the said purported decision of the respondent to agree the submission of the notice party of a haulage route survey on the 1st December 2010 pursuant to condition 16(1) of planning permission, (Westmeath County, Planning Register) Reference Number 06/5362. In its statement of opposition the respondent claims that the decision challenged was made on 3rd March 2011 and that the letter of 11th March 2011 constitutes a communication of the decision and not the decision itself. The respondent therefore submits that the judicial review proceedings are out of time, being more than the statutory eight week time period prescribed by section 50(6) of the Planning and Development Act 2000 as amended (“the 2000 Act”) for taking judicial review proceedings of a decision of a planning authority pursuant to its functions under the 2000 Act.
4.2 The applicant submits that what the respondent describes as a ‘decision’ is merely an internal form which is no more than a confirmation by a frontline officer of a planning authority, that all the information required by condition 16(1) had been submitted and in that sense the submission was compliant and ready to be passed upward for consideration by an authorised officer. Condition 16(1) as approved by An Bord Pleanála required –
“the developer to submit to the planning authority for written agreement a detailed survey of the entire one-way haul route.”
The applicant submits that the argument that a submission of a survey of approximately a quarter of the entire haul route (7km out of 28km) was purportedly approved by the respondent by the vague recommendation on the form entitled – “Record of Compliance with conditions Received”, constitutes an extraordinary attack on third parties rights in the planning process in that it places an intolerable burden on any interested party to scan the planning file forensically in an attempt to spot any document that might be construed as a decision which could start time running for an appeal or judicial review, irrespective of how incomplete or vague such a document might be. There is no record by way of County Manager’s Order of the respondent’s decision to give written agreement to the submission made on the 1st December 2010 by or on behalf of the notice party. The applicant submits that in the normal course an agreement reached by a planning authority on foot of “a points of detail condition” is dealt with by a Manager’s Order sanctioning the issue of a letter of compliance with the condition or conditions which is based on a written report by the planner for the area and a recommendation by an administrative officer and signed by an official to whom the appropriate powers had been delegated by order of the Manager or indeed signed by the Manager in accordance with the relevant provisions of Chapter 3 of the Local Government Act 2001 in particular section 151 therein. In the instant case there is no record by way of a County Manager’s Order of the respondent’s decision to give written agreement to the notice party’s submission of the 1st December 2010 seeking the respondent’s agreement in compliance with condition 16(1). The requirement that a local authority or planning authority act by way of Manager’s Order or by way of a formal letter of compliance arises out of the duty in law to exercise its discretionary powers in good faith and in a reasonable manner.
4.3 An examination of this form which is entitled- “Record of Compliance with conditions received” reveals that it is an internal Westmeath County Council administrative document which records that a compliance submission has been received on a specified date in respect of a particular condition of a planning permission; to whom it is to be referred and provides that the compliance is checked and in order and is signed by Olivia O’Grady, Clerical Officer. It also provides for it to be signed by the Area Planner and dated which was not done. The document also has at the bottom thereof the handwritten word “compliant”, a signature “M. Ndebele” and a date “3/3/2011”. The relevant section of this document to note the referral of the submission onward for a substantive decision headed “Refer:” is left blank and the boxes “yes” and “no” to record whether the “compliance report” has been “checked” and whether “it is in order” are also left blank. This document does not record that the planning authority has decided to agree in writing and/or to give its written agreement to the submission made on 1st December 2010 by the notice party’s agent, Sean Lucy & Associates Limited, as required by the amended condition no. 16(1).
4.4 The applicant submits that the word “compliant” should be construed as a recommendation that the submission meets the standard required in order for it to be accepted as a submission and that it complies with the information requirements in order to be accepted. The word “compliant” should be construed as an agreement by the planning authority to the details of the haul route contained in the submission about widths, levels, verges, all other relevant features and number and location of lay-bys. It is submitted that given the weight and amount of detail to be considered, one scrawled word cannot amount to a reasoned decision of a public statutory body discharging its functions under the Planning Acts and reaching a decision on the use of 27km of public roads as a haul route from a stone quarry and affecting the villages of Multyfarnham and Crookedwood together with various other members of the public with differing interests in the decision.
4.5 The form entitled “Record of Compliance with conditions Received” is signed by a Mr. Ndebele who identifies himself in his grounding affidavit as an executive engineer employed by the respondent planning authority. As averred to in the supplemental affidavit of Ms. Pearce, the respondent to this motion, sworn on the 21st December 2011 there is no record of a delegation of planning powers, duties or functions by the County Manager to an executive engineer or to Mr. Ndebele in particular. The letter of the 11th March 2011 is described by the respondent as a communication of a decision of the 3rd March 2011. The applicant however points out that the letter makes no reference to an earlier decision of the 3rd March 2011 which the respondent claims it was communicating. Binding decisions of a planning authority such as a decision to grant or refuse planning permission are headed with a bold heading indicating what they constitute and as such are clearly identifiable to any person receiving them or searching the planning file. Notifications of such decisions must refer back to the decision itself and give the date thereof so as to leave the recipient thereof in no doubt as to the date from which the statutory time period ran. The compliance noted on the form dated 3rd March 2011 remained open to revision by the respondent planning authority and therefore cannot be held to constitute a decision binding on the public at large. The form as filled out does not use the word decision or any correlate word to indicate to the world that a decision has been taken. The form taken as a whole lacks any quality of finality as ought to be found in such a decision or determination. The applicant submits that the informality and vagueness of the form highlights the provisional nature of the compliance recorded. The fundamental argument against construing the form entitled – “Record of Compliance with conditions Received” as a decision on a very important condition, is the unfair and unjust burden it places on any party searching the planning file that might have reason to rely on such documents.
Decision of the Court
5.1 The role of the court in Judicial Review was outlined in O’Keeffe v. An Bord Pleanála [1993] 1 IR 3, where Finlay C.J cited the following passage from the judgment of Lord Brightman in R v. The Chief Constable of North Wales XP Evans [1982] 1 WLR 1155:-
“Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the Court is observed, the Court would in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … judicial review as the words imply is not an appeal from a decision, but a review of the manner in which the decision was made.”
In order to challenge a decision made with special competence in an area of special knowledge an applicant must satisfy the court that the decision was irrational. The test for irrationality is set out in O’Keeffe where Finlay C.J relied on the decision in The State (Keegan) v. The Stardust Victims Compensation Tribunal [1986] I.R. 642 as follows:-
“In dealing with the circumstances under which the Court could intervene to quash the decision of an administrative officer or tribunal on the grounds of unreasonableness or irrationality, Henchy J., in that judgment set out a number of such circumstances in different terms. They are: – ‘1. It is fundamentally at variance with reason and common sense. 2. It is indefensible for being in the teeth of plain reason and common sense. 3. Because the Court is satisfied that the decision maker has breached his obligation whereby he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision’…1 am satisfied that these three different methods of expressing the circumstances under which a court can intervene are not in any way inconsistent with one another, but rather complement each other and constitute not only a correct but a comprehensive description of the circumstances under which a court may, according to our law, intervene in such a decision on the basis of unreasonableness or irrationality.”
Finlay C.J. went on to observe:-
“It is clear from these quotations that the circumstances under which the Court can intervene on the basis of irrationality with the decision maker involved in an administrative function are limited and rare…The Court cannot interfere with the decision of an administrative decision making authority merely on the grounds that (a) it is satisfied on the facts as found it would have raised different inferences and conclusions or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it.”
5.2 The relevant time within which proceedings such as herein is not in issue. It is 8 weeks to be calculated from the date the decision was made. On the best evidence before the Court which is that of the decision maker, Mr Ndebele, the decision was made on the 3rd March 2011. At paragraph 11 he avers as follows:-
” I say it is clear that the decision which the applicant seeks to impugn in the within proceedings, namely the decision of the Respondent to deem the submissions made by the Notice Party in compliance with condition 16 of the Planning Permission, was taken by me on behalf of the Respondent on the 3rd of March 2011.”
I have no reason to believe from anything I have heard in the case that this is not so. I note also that no further decision was made by the respondent. This being so, it seems clear that the letter of the 11th March 201 I was, as it appears to be, a notification of a decision made. The time limit on this basis for bringing Judicial Review was the 27th April 2011. These proceedings were not issued until the 3rd May 2011.They would appear on this basis to be out of time.
5.3 It seems to me however that this matter cannot be allowed to rest there. The applicant states that she inspected the file on the 25th March 2011. In her affidavit she avers as follows at paragraph 19:-
“In relation to the availability of the file to me this deponent, I this deponent say that on the 25th March 2011, I first received this file and purchased photocopies of the letter of 11th March 2011 and the developers submission of 1st December 2010…”
She has maintained throughout, even at this hearing, that she believed the letter of the 11th March 2011 was in fact the decision and the document on file was merely an internal memo. The applicant is clearly an informed and interested party. I accept that this belief was bona fide because examining the document dated the 3rd March 2011, it leaves much to be desired in terms of clarity.
5.4 It was argued in oral submissions to the court by the applicant that only the County Manager can make such a decision. No authority was cited for this proposition and in any event this claim was not made in the application for leave and thus does not constitute one of the grounds upon which leave was granted. This court therefore does not have jurisdiction to deal with that point. For the same reason it is not possible to deal with any argument that Mr Ndebele was not a designated officer.
5.5 What is the significance of this form which is entitled- “Record of Compliance with conditions Received”? In the first place it must be noted that it is intended to be an official record of a decision made by a local authority that the beneficiary of a Planning Permission has complied with a condition or conditions of a Planning Permission. Conditions of a Planning Permission are very significant. They are imposed to ensure that something is done or not done by the developer in order to make a particular development acceptable. Conditions may therefore reflect the end product of a long series of objections and the outcome thereof. Conditions may be of paramount importance to persons who were objectors and to the public at large.
5.6 As noted above an examination of this uncompleted form leaves much to be desired in terms of clarity. It does not have anything printed upon it to indicate that it is a formal record of a decision made. It refers to a report and ultimately states in longhand at the bottom “compliant”. It has a number of uncompleted parts. It has a box entitled “refer”, but both this box and the box opposite are blank. It has a section to record checking for compliance and neither the yes or no parts are ticked. It is signed by a clerical officer but the date is left blank. The two lines for the area planner’s signature and date are also blank. It is signed and marked “compliant” all in longhand by Mr Ndebele. It is not clear from the form that he is an area planner. In fact he describes himself in his affidavit as “an Executive Engineer in Westmeath County Council.” He is not the area planner although the form indicates it should be signed by such an official. This document does not record that the planning authority has decided to agree in writing and/or to give its written agreement to the submission made on 1st December 2010 by the notice party’s agent, Sean Lucy & Associates Limited, as required by the amended condition no. 16(1). Condition 16(1) requires the developer to submit for the written agreement of the respondent planning authority a detailed survey of the entire one way haul route showing widths, levels, verges, all other relevant features and the number and location of laybys. I note the applicants submission that given the weight and amount of detail to be considered, one scrawled word cannot amount to a reasoned decision of a public statutory body discharging its functions under the Planning Acts. However a signature written on a properly drafted and properly completed form could sufficiently record such a decision. However, the form herein as drafted and as completed could not in my view be considered a proper record of a decision of such importance. But all the evidence is that this was the decision. This being so however, that decision is recorded in a manner so vague and slipshod that it invites mistaken apprehension as to its real purpose and effect, as has quite predictably occurred here.
5.7 How should such a decision be recorded – a local authority has a very broad discretion but such a decision should at the very least be recorded in a document that:
(a) Clearly identifies itself as a formal record of a decision on compliance with a specific condition or conditions of a planning permission granted.
(b) Unambiguously and precisely states that in the view of the local authority a specified condition has been complied with.
(c) Is signed and dated by an officer indicating that he/she is authorized to make such a decision.
Such a document should be properly completed so as to leave no blanks or unfilled boxes. These inevitably lead to confusion in the mind of even the best informed observer, and represent an unacceptably low level of administrative efficiency. The decision that a condition upon which a Planning Permission was granted, has been complied with is a decision of equivalent importance to that of the Planning Permission itself. It should be recorded in a manner that reflects this significance.
5.8 What are the consequences of this? Applying the above to this application I am satisfied that the decision on compliance was made on the 3rd March 2011, but was not properly recorded. The result of this was that members of the public examining the planning file on the public register could be and in the case of the applicant, were misled as to when the decision was made. Section 50(8) of the Act provides for extension of the time limited for Judicial Review where the Court is satisfied that there is good and sufficient reason and the circumstances that resulted in the failure to make the application within the period limited were outside the control of the applicant. It seems to me that both these criteria were met in this case and the Court may extend the time limit to seek Judicial Review sufficiently to allow in the challenge of the applicant herein. However for their own reasons, although invited by the Court to do so, the applicant has declined to seek an extension of time to bring these proceedings. The wording of the section seems however broad enough to allow the court act proprio motu to extend the time. But when should a Court act proprio motu? I think it should do so where there is a clear and pressing public interest. The public interest in the proper administration of the planning process and the proper recording of vital decisions made therein clearly constitutes such an interest. Thus I consider that the court should of its own motion extend the time for the bringing of judicial review herein. The result of this is that the court refuses the application to set aside the leave granted and finds that although the application was made outside the 8 week time limit provided by s. 50 (6) of the Planning and Development Act 2000-2010, that time limit should be extended so as to permit the applicant challenge the decision made by the respondent that the condition of the planning permission has been complied with.
Mungovan v Clare County Council
[2015] IEHC 561
JUDGMENT of Mr. Justice David Keane delivered on the 17th day of August, 2015.
Introduction
1. By Order of the Court made on the 30th May, 2014, on consent between the parties, Gilligan J. directed the determination of certain preliminary issues in this case by way of a modular trial based upon a Statement of Agreed Facts appended to that Order.
2. The preliminary issue, which it is sought to have determined is, essentially, whether a significant part of the plaintiff’s claim should be held to be vitiated by his delay in commencing these proceedings, whether by application of the doctrine of laches in respect of the equitable reliefs that he claims or for failure to comply with either the statutory time-limit under s.50 of the Planning and Development Act 2000, as substituted by s.13 of the Planning and Development (Strategic Infrastructure) Act 2006, or the requirement to move within the applicable time limits and, in any event, promptly in seeking declaratory orders in public law proceedings by analogy with the requirements of Order 84, rule 21 of the Rules of the Superior Courts governing applications for judicial review.
The plaintiff’s claim
3. The plaintiff has a degree in environmental engineering and is, and was at all material times, an environmental engineering consultant. In these proceedings, instituted by plenary summons issued on the 4th November, 2011, he seeks to challenge the lawfulness of a Register of Independent Suitably Qualified Agents/Consultants for Waste Water Treatment (“the Register”), which Clare County Council (“the Council”) introduced in November 2004 and operated until withdrawing it in March 2013.
4. In his statement of claim, delivered on the 30th of January, 2012, the plaintiff seeks a declaration that the Register lacked any legal or statutory basis and that, in consequence, the maintenance of the Register was ultra vires the Council and its operation constituted an unjust attack on the property rights of the plaintiff contrary to the provisions of Article 40.3 and Article 43 of the Constitution.
5. The plaintiff further claims damages for the financial loss caused to him by his exclusion from the Register and, significantly, damages for malicious falsehood, together with interest pursuant to statute.
6. In its defence, delivered on the 10th June, 2013, the Council admits the introduction and operation of the Register, as alleged, but otherwise denies the plaintiff’s claims.
Background
7. According to the Statement of Agreed Facts, the Register was established in conjunction with the imposition by the Council of a requirement upon applicants for planning permission, on or after the 15th November, 2004, where the application involved the proposed use of a septic tank or other on-site treatment system, to include with their application the results of the appropriate site suitability assessment tests specified in Appendix A of the Environmental Protection Agency (2000) Wastewater Treatment Manual: Treatment Systems for Single Houses. In establishing the Register, the Council gave notice that, subject to limited exceptions, any application for a single house lodged on or after the 15th November, 2004, must include such test results and that only persons on the recommended panel contained in the Register should be used for the purpose of carrying out such tests. All panel members were required by the Council to have current professional indemnity insurance, which applicants were advised to check before engaging a panel member.
8. The Council introduced the requirements just described in the interests of public health and environmental protection so as to ensure the safe disposal of wastewater from a development and having regard to the Council’s development objectives, inter alia, for:-
(i) the provision, or facilitation of the provision, of water supplies, waste water services and ancillary facilities, and
(ii) the conservation and protection of the environment.
In doing so, the Council invoked the provisions of s.20 of the Planning and Development Act 2000 (as amended) and the relevant purposes set out in Parts I, II and IV of the First Schedule to that Act, and the Council asserts that it maintained the Register as conducive to the performance of such powers and functions.
9. The key interactions between the plaintiff and the Council in connection with the operation of the Register as it affected the plaintiff may be summarised as follows:-
(a) On the 22nd August, 2005, the plaintiff wrote to apply for inclusion on the Register. The plaintiff was asked to provide further information and, subsequently, to attend for interview.
(b) On the 7th March, 2005, the Council wrote to inform the plaintiff that he had not been successful but that, as the Council was operating a rolling panel, he was free to apply again in the future, by reference to whatever additional training, experience or qualifications he might have accumulated in the interim.
(c) On the 26th November, 2008, the plaintiff again wrote seeking inclusion on the panel failing which, he stated, he would have no alternative but to take action to protect his constitutional right to work.
(d) On the 10th December, 2008, the Council replied that a further interview would be necessary. That interview was ultimately scheduled to take place on the 8th March, 2010, and the plaintiff attended it.
(e) On the 16th March, 2010, the plaintiff was again informed that he had not been successful in his application. The plaintiff was informed that the “site characterisation assessments” that he had submitted in advance of interview were considered to be unsatisfactory and below the requisite standard and the plaintiff was requested to provide additional reports in support of his application to enable it to be fully or properly considered.
(f) On the 18th March, 2010, the Council received the additional reports it had requested from the plaintiff and they were furnished to its Senior Executive Chemist and its Environment Section for review.
(g) On the 28th May, 2010, the Council wrote to inform the plaintiff that the result of the review was to uphold the decision not to include his name on the Register.
(h) On the 6th August, 2010, the Council wrote once again to the plaintiff inviting him to submit two new reports for review if he wished to make a further application for inclusion on the Register.
(i) On the 16th August, 2010, the plaintiff submitted two new reports as requested.
(j) On the 16th September, 2010, the Council invited the plaintiff to provide clarification of certain aspects of those reports at the request of its Environment Section.
(k) On the 7th October, 2010, further queries were raised concerning the precise location of the sites, which were the subject of the relevant reports.
(l) On the 5th November, 2010, the plaintiff provided a response to those queries.
(m) On the 6th December, 2010, the Council e-mailed the plaintiff (fearing that postal deliveries might face weather disruption) to inform him that it considered it necessary to conduct a site inspection of one of the subject sites in the presence of the plaintiff and seeking to arrange one.
(n) On the 17th December, 2010, the plaintiff’s solicitors wrote to the Council on the plaintiff’s behalf, requiring confirmation within seven days that the plaintiff would be added to the Register, failing which they would immediately apply to the High Court for leave to seek judicial review. It is common case that no such confirmation was provided and that no such application was made. Rather, the parties agreed to the conduct of a joint site inspection of one of the subject sites by an independent site assessor in the presence of the plaintiff.
(o) On the 11th April, 2011, the Council’s solicitors wrote to the plaintiff’s solicitors identifying a number of continuing concerns in relation to identified aspects of the plaintiff’s site test report, subsequent to the joint site inspection and communicating the Council’s decision that the plaintiff’s name would not be added to the Register.
(p) On the 12th May, 2011, the plaintiff’s solicitors wrote to rebut the criticisms of the relevant site report implicit in the various concerns expressed by the Council and informing the Council that High Court proceedings would be instituted.
(q) On the 30th May, 2011, the plaintiff’s solicitors wrote to seek a reply to their letter of the 12th May, 2011.
(r) On the 21st June, 2011, the Council’s solicitors provided a substantive reply and confirmed their authority to accept service of proceedings.
(s) On the 20th September, 2011, the plaintiff’s solicitors wrote again requesting the Council to state the provenance of the Register and its legislative basis, if any.
(t) On the 26th September, 2011, the Council’s solicitors wrote, declining to respond to that request in correspondence in light of the plaintiff’s threat of litigation and the Council’s intention to fully defend any such proceedings.
(u) As mentioned, the present proceedings commenced by way of a plenary summons issued on the 4th November, 2011.
(v) The Council discontinued operation of the Register on the 7th March, 2013.
The preliminary issues to be tried
10. As mentioned, the Order made by Gilligan J. on the 30th May, 2014, directed that the issue of whether the plaintiff’s public law claims for equitable relief are out of time should be tried as a preliminary issue. That Order also directed that the plaintiff’s application to have those paragraphs of the Council’s defence in which the time bar issue is pleaded struck out, pursuant to either the terms of Order 19, rule 28 of the Rules or the inherent jurisdiction of the Court, should also be determined as a preliminary issue.
11. Although the latter application was issued (marginally) first in time, it is my understanding that it was conceded at the outset of the hearing before me that Order 19, rule 28 only applies where it is sought to strike out an entire pleading and not simply a portion of one; Aer Rianta c.p.t. v. Ryanair Ltd [2004] 1 IR 506. Moreover, while there plainly exists – in parallel to the jurisdiction recognised under that rule – a broader inherent jurisdiction to strike out a pleading in whole or in part where, for example, it is bound to fail and its maintenance would therefore amount to an abuse of the process of the courts, I believe it was not seriously contested that, in the words of McCarthy J. in Sun Fat Chan v Osseous Ltd [1992] 1 I.R. 425, such an application is one that this Court should be “slow to entertain” in anything other than the clearest of cases. In any event, having acknowledged the thrust of the applicable jurisprudence, Counsel for the plaintiff confirmed that his client was content to address the preliminary issues presented on the basis that the single overarching issue to be determined is whether the Council’s plea that a significant part of the plaintiff’s claim is out of time must succeed or fail.
Mootness
12. The plaintiff has raised what, on one view, might be described as a preliminary objection to the determination of the preliminary issue just mentioned. The plaintiff argues that his claim for each of the declaratory reliefs he seeks is now moot because it is common case that the Register was discontinued on the 7th March, 2013, some sixteen months after the proceedings issued. Accordingly, Counsel for the plaintiff indicates that he would be willing to withdraw his claim for those public law declaratory reliefs and proceed to trial solely with his claim to damages for the financial loss and damage caused to him by the Council’s tort of malicious (or injurious) falsehood (and, presumably, its breach of his constitutional property rights), thereby obviating the need for any determination on whether he is, in any event, out of time to pursue the public law aspects of his claim.
13. In response, the Council submits that the preliminary issue now before the Court is not moot.
14. The Council points to the decision of the Supreme Court in Glencar Explorations p.l.c. v. Mayo County Council (No. 2) [2002] 1 IR 84 and, in particular, that portion of the judgment of Keane C.J. (at p. 127 of the report), which notes the authoritative statement of Finlay C.J. in Pine Valley Developments v. Minister for the Environment [1987] I.R. 23 where he cited with approval the following statement of the law in Wade, Administrative Law, 5th Ed., (Oxford, 1982) at p. 673:-
“The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action [for] damages in any of the following situations:
1. if it involve[s] the commission of a recognised tort such as trespass, false imprisonment or negligence;
2. if it is actuated by malice, e.g. personal spite or [a] desire to injure for improper reasons;
3. if the authority knows that it does not possess the power which it purports to exercise.”
Keane C.J. goes on to note that Finlay C.J. added that he was satisfied that there would not be liability for damages arising under any other heading.
15. It is noteworthy that no breach of duty is pleaded in the present case.
16. Accordingly, the Council submits that, if any claim is to be maintained against it for damages in tort, not actionable merely as a breach of duty, such claim must necessarily involve establishing an administrative action which is ultra vires. In that context, Mr. Connolly for the Council enquired rhetorically whether the plaintiff would be prepared to consent to an Order dismissing, rather than striking out, his claims for declaratory relief, suggesting that he would not, since he must maintain his claim that the introduction and maintenance of the Register was ultra vires the Council as a fundamental plank of his claim against the Council for damages for malicious falsehood.
17. In my view, the submission made on behalf of the Council that I have just described is, at least, an arguable one. Differently expressed, there is some force to the submission that the issue now before the Court is not whether the plaintiff is entitled to a declaration that a Register, such as the discontinued one at issue here, lacks (or lacked) any legal or statutory basis, whether its maintenance is (or was) ultra vires the Council, or whether its operation constitutes (or constituted) an unjust attack on the property rights of the plaintiff; rather, the issue is whether those claims were barred at the time these proceedings were instituted – and that is an issue the determination of which is at least arguably material to the resolution of the plaintiff’s claim for damages for the tort of malicious falsehood and for breach of his constitutional property rights.
18. In order to make his claim in malicious falsehood, the plaintiff will have to establish that the maintenance of the Register at issue by the Council was ultra vires the Council and, in accordance with the provisions of s.42 of the Defamation Act 2009, will then have to prove that his omission from that Register amounted to a statement that was untrue; that was published maliciously; that referred, inter alia, to him or his profession or business; and that was calculated to cause, and was likely to cause, him financial loss, inter alia, in his profession or business. But, as the Council (in my view, quite rightly) acknowledges, that is all a matter for another day.
19. For the reasons I have just given, I am satisfied that I should now determine the preliminary issue on its merits. However, in coming to that conclusion (on the basis of arguability), it should not be taken that I have reached or expressed any view, beyond one of arguability, in respect of the facts and law referable to the plaintiff’s claim for damages in tort. Any and all such issues fall to be determined at the second stage of the present modular trial.
Are the public law claims for declaratory relief time barred?
20. The Council contends that the plaintiff’s public law claims for declaratory relief are captured by the eight week time limit laid down by s.50 of the Act of 2000 (as amended), or, in the alternative, that the three month time limit laid down by O. 84, r. 21 of the Rules in respect of an application for judicial review must be applied by analogy to such claims. The plaintiff’s case is that neither such time limit applies and that the only time limit applicable to the bringing of his claim is that of six years laid down by s.11 (2) (a) of the Statute of Limitations Act 1957.
21. Section 50 of the Act of 2000 (as amended) provides, in relevant part, as follows:-
“50. – (2) A person shall not question the validity of any decision made or other act done by-
(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act
…
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts
…
(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.
…
(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.”
22. The Council submits that the establishment and operation of the Register were acts done in the performance or purported performance of a function under the Act of 2000 (as amended), within the meaning of s.50 thereof. The Council points to the following legal provisions and departmental circulars in support of that submission.
23. Section 2(1) of the Planning and Development Act 2000 defines “functions” to include “powers and duties.”
24. Article 22 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (“the Regulations of 2001”), as amended by article 8 of the Planning and Development Regulations 2006 (S.I. No. 685 of 2006), provides in relevant part as follows:-
“22. (1) A planning application under section 34 of the Act shall be in the form set out at Form No. 2 of Schedule 3, or a form substantially to the like effect.
(2) A planning application referred to in sub-article (1) shall be accompanied by –
…
(c) Where it is proposed to dispose of waste water from the proposed development other than to a public sewer, information on the on-site treatment system proposed and evidence as to the suitability of the site for the system proposed.” (emphasis supplied)
25. Section 34 of the Act of 2000 provides in relevant part as follows:-
“34 (2) (a) When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—
…
(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government.” (emphasis supplied)
26. Thus, s.34 (2) (a) (iv) of the Act of 2000 makes it plain that planning authorities must take government policy into account in deciding whether to grant or refuse applications for planning permission. The Council submits that government policy obliges it to ensure that qualified personnel be retained to prepare the wastewater treatment reports, which article 22(2)(c) of the Regulations of 2001 (as amended) requires applicants for planning permissions to submit along with their applications, and that it established the Register in an attempt to discharge that obligation. The Council relies upon a number of administrative manuals and departmental circulars in support of that submission.
27. As noted above, in the year 2000, the Environmental Protection Agency (E.P.A.) published a manual on treatment systems for single houses (“the 2000 manual”), which was designed to assist planning authorities and others to deal with the complexities of on-site systems for domestic effluent treatment and disposal in respect of single dwelling houses. On the 31st July, 2003, the Department of the Environment, Heritage and Local Government issued a circular letter, Circular SP5/03 (“the 2003 circular”), to city and county managers across the country, which dealt with the development of effective regimes for the proper assessment of site conditions, as well as the design, installation, and maintenance of on-site wastewater treatment and disposal facilities.
28. The 2003 circular states in relevant part as follows:-
“The assessment of site conditions is critical to ensuring that new development does not adversely affect water quality generally and groundwater quality specifically. In particular, site assessors need specific training. A new training course provided by FAS: “Site Suitability Assessment of On-Site Wastewater Management” and which is run jointly by the GSI and EPA is strengthening the availability of personnel specifically trained to make detailed site assessments and recommendations regarding wastewater treatment and disposal options. Consideration might be given by planning authorities to using a standard site characterisation form along the lines of the model included at Appendix A in the EPA manual and encouraging the use of such qualified personnel in carrying out site assessments.” (emphasis supplied)
29. On the 5th of January, 2010, the Department of the Environment, Heritage and Local Government issued another circular letter, Circular PSSP 1/10 (“the 2010 circular”). The 2010 circular related to on-site wastewater disposal systems for single houses. It begins by noting that the E.P.A. had published a new Code of Practice on Wastewater Treatment and Disposal System Serving Single Houses in October 2009 (“the E.P.A. Code of Practice”), which replaced the 2000 manual, and incorporated “new European standards, E.P.A. research findings, and feedback on previous E.P.A. guidance and research reports.” The 2010 circular states in relevant part as follows, at pp. 3-4 thereof:-
“[p]lanning authorities must also ensure that proper arrangements are in place to ensure that every individual dwelling that is granted planning permission in an unsewered area has first undergone site suitability assessment using the methodology set out in the Code of Practice and the site assessment has fully met the required standards, as overseen by a (sic) appropriately trained, qualified and accountable assessor and designer…Furthermore, planning authorities must not, in any circumstances, approve development subject to conditions requiring compliance with the Code of Practice, without first satisfying themselves that the provisions within the Code can be complied with and on the basis of expert and verifiable evidence including a positive site suitability assessment by a (sic) appropriately trained and qualified assessor.” (emphasis supplied)
30. Thus, the Council’s submissions in relation to the applicability of the eight week time limit set out in s.50 of the Act of 2000 (as amended) may be summarised as follows: where it is proposed to dispose of wastewater from a proposed development, other than to a public sewer, the Regulations of 2001 (as amended) require applicants for planning permission under s.34 of the Act of 2000 to provide information relating to the on-site treatment system proposed and evidence as to the suitability of the site for the system proposed; s.34 of the Act of 2000, in turn, requires local authorities to have regard to government policy and administrative guidelines in making decisions in respect of planning applications under that section; the 2003 circular and the 2010 circular issued by the Department of the Environment, Heritage and Local Government each require local authorities to ensure that qualified personnel are used in carrying out site assessments in relation to on-site treatment systems; and, therefore, the establishment and maintenance of a “Register of Independent Suitably Qualified Agents/Consultants for Waste Water Treatment,” by the Council, constituted the performance or purported performance of a function (that is to say, a power or duty) of the Council within the meaning of s.50(2) of the Act of 2000 (as amended), such that any challenge to it must be brought by way of application for judicial review, which must be brought within the eight week time limit set out in s.50 (6) thereof.
31. The Council submits that the purpose of the s.50 time limit is to ensure that authorised development projects will be completed without undue delay. In this connection the Council relies upon the decision of the Supreme Court in Harding v. Cork County Council [2008] 4 IR 318. In that case Kearns J. (as he then was) described the purpose of s.50 in the following terms (at p. 345 of the report):-
“It is impossible to conceive of these legislative provisions as being intended for any purpose other than to restrict the entitlement to bring court proceedings to challenge decisions of planning authorities. There is an obvious public policy consideration driving this restrictive statutory code. Where court proceedings are permitted to be brought, they may have amongst their outcomes not merely the quashing or upholding of decisions of planning authorities but also the undesirable consequences of expense and delay for all concerned in the development project as the court process works its way to resolution. The Act of 2000 may thus be seen as expressly underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible.”
32. Counsel for the plaintiff submitted that the introduction and operation of the Register by the Council did not amount to a decision made or act done by the Council in the performance or purported performance of a function under s.50 (2) of the Act of 2000 (as amended), properly construed, and, therefore, did not attract the limitation of s.50 (6) whereby it could only be challenged by way of application for judicial review brought within the period of eight weeks beginning on the date of any such decision or the doing of any such act.
33. In advancing that contention, Counsel for the plaintiff relied on a number of propositions. First, the Court was invited to consider the significance of the substitution of a new s.50 of the Act of 2000 by s.13 of the Planning and Development (Strategic Infrastructure) Act 2006. While Mr. Molloy for the plaintiff was obliged to acknowledge that the scope of the limiting effect of that provision was widened under its new terms, extending it to cover “any decision made, or act done…in the performance or purported performance of a function under [the] Act”, he sought to argue that the observation in Simons, Planning and Development Law, 2nd Ed., (Dublin, 2007) (at para. 11-23) that the relevant amendment “has the benefit of removing certain anomalies” under the section as it previously stood, should inform a construction of the section cutting down the words used so that the scope of the relevant limitation is widened no more than is strictly necessary to address those anomalies (described at paras. 11-23 and 11-24, op. cit.).
34. Second, Mr. Molloy submitted that the phrase “or other act done,” used in s.50 (2) of the Act of 2000 (as amended), is subordinate to the term which immediately precedes it, namely “decision” and, thus, that the phrase “other act done” must relate to a decision in a planning process. In support of that argument, the Court was asked to note that s.50 of the Act of 2000 is located in Part III thereof, which, according to its title, is concerned with “Control of Development.” Thus, Counsel for the plaintiff submits that the phrase “other act done” in s.50 of the amended Act must be interpreted as meaning “other act done in connection with the control of development.”
35. Expanding on that argument, Mr. Molloy pointed to the fact that s.50 (3) of the Act of 2000 (as amended) expressly provides that an approval or consent referred to in Chapters I and II of Part VI thereof is excluded from the definition of “a decision made or other act done … in the performance or purported performance of a function under this Act” in s.50 (2). Chapters I and II of Part VI deal respectively with the establishment and constitution of An Board Pleanála and with its organisation and staffing. Thus, Mr. Molloy submits, it is clear that not all acts done and decisions made in the planning area are governed by that limitation period.
36. In reply to the plaintiff’s submissions on the proper construction of s.50 (2) of the 2000 Act (as amended), Mr. Connolly drew the Court’s attention to the decision of Charleton J. in MacMahon v. An Bord Pleanála [2010] IEHC 431 and, specifically the following passage in it:-
“6. The Act of 2000 as first promulgated, and prior to its amendment as aforesaid, prohibited the questioning outside the relevant time limits of any application for planning permission, which included an application on appeal to the Board, or any procedure by a local authority in respect of its own development under s. 179 or any confirmation of a compulsory purchase order under section 216. These, basically, are all planning permission decisions, as opposed to administrative steps that lead to such decisions. The amendment introduced by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006, in force since 17th October 2006, extends the remit of judicial review to “any decision made or any other act done by”, and in the following subsection “a decision or other act” of, the planning authority or the Board on appeal. Previously, it was clear that a final decision had to be reached before a judicial review could be commenced. Finlay Geoghegan J. in Linehan v. Cork County Council [2008] IEHC 76 (Unreported, High Court, 19th February 2008) offered a view, in respect of the amendment to the Act as it now stands, that it might no longer be safe for an applicant to await a final planning decision before commencing judicial review proceedings. She queried as to whether decisions of a procedural kind during the course of an application might have to be challenged as they occur.
7. The view as expressed by Finlay Geoghegan J. is correct. In passing s. 50, and then amending it so as to extend its strictures to administrative steps, the Oireachtas clearly intended to impose strict time limits for the challenging of decisions in the planning process by way of judicial review.”
37. Mr. Connolly submits that it is thus clear that the 2006 amendment is not loose drafting but, rather, is an intended expansion of the restriction of judicial review applications brought in the context of the planning code. Similarly, Simons is not criticising the wording of s.50 of the Act or arguing for any narrowing of its interpretation.
38. Having considered the issue carefully, I am satisfied that the relevant limitation provision is sufficiently broad to capture the introduction and maintenance of the Register by the Council in the purported performance of a function (to include a power or duty) under the Act of 2000.
39. Lest I am mistaken in that conclusion, I will proceed to consider the second argument advanced on behalf of the Council, namely, that the plaintiff’s public law claim for declaratory reliefs is otherwise caught by the time limits applicable to judicial review applications under O. 84, r. 21 of the Rules, which time limits must apply by analogy in the circumstances of the present case.
40. Order. 84, rule. 21 of the Rules provides as follows:-
“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.
…
(3) The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”
41. In O’Donnell v. Dún Laoghaire Corporation [1991] I.L.R.M. 301, Costello J. considered the principles relating to delay as they apply to proceedings in which a decision of a public authority is challenged by way of plenary action seeking declaratory relief, rather than by way of application for judicial review pursuant to the provisions of O. 84, r. 21 just quoted. Costello J. stated (at pp. 314-315 of the report):
“A declaratory order is a discretionary order arising from the wording of statute which conferred jurisdiction on the courts to make such orders (see Wade, Administrative Law 5th ed., p. 523) and it is well established that a plaintiff’s delay in instituting plenary proceedings may, in the opinion of the court, disentitle the plaintiff to relief. It seems to me that in considering the effects of delay in a plenary action there are now persuasive reasons for adopting the principles enshrined in O. 84, r. 21 relating to delay in applications for judicial review, so that if the plenary action is not brought within three months from the date on which the cause of action arose the court would normally refuse relief unless it is satisfied that had the claim been brought under O. 84 time would have been extended. The rules committee considered that there were good reasons why public authorities should be protected in the manner afforded by O. 84, r. 21 when claims for declaratory relief were made in applications for judicial review and I think exactly the same considerations apply when the same form of relief is sought in a plenary action. Furthermore, it is not desirable that the form of action should determine the relief to be granted and this might well be the result in a significant number of cases if one set of principles on the question of delay was applied in applications for judicial review and another in plenary actions claiming the same remedy. And in plenary actions the effect of delay can in many cases be determined on the trial of a preliminary issue and as speedily as if the issue fell to be determined in an application for judicial review.”
42. The principle articulated in O’Donnell was reiterated more recently by the Supreme Court in the case of Shell E & P Ireland Ltd. v. McGrath [2013] 1 IR 247, where Clarke J. stated as follows (at p. 269 of the report):-
“[60] At the relevant time when O’Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 was decided there was no primary legislative time limit applicable in planning cases. For the reasons already analysed I am satisfied that O’Donnell v. Dun Laoghaire Corporation was correctly decided. It follows that the difference between rules and primary legislation is not material. It further follows, therefore, that the rules can be taken to apply by analogy to claims which have, as their substance, the seeking of the types of relief ordinarily obtained by judicial review even though framed in another fashion, such as in declaratory proceedings. If, therefore, a party is debarred, by reference to judicial review time limits, from maintaining declaratory proceedings to the same end, what is the logic of allowing such a party to achieve the same end by including a similar challenge in a declaration to be found in a counterclaim?”
43. Clarke J. continued (at p. 270 of the report):-
“[63] I cannot see that it makes any difference that O’Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 involved a direct challenge to a public authority whereas the challenge which the defendants seek to mount in this case is against both a public authority (insofar as that authority is a necessary defendant to any claim which asserts the invalidity of an action taken by the authority concerned) and also a private entity which sought to place reliance for the lawfulness of its actions on the validity of a measure taken by the relevant public authority. Either there is a binding time limit in place (subject to extension by the court) or there is not. It is hard to see how there could be any justification for requiring a person who wished simply to set aside a public measure to act within the time limits provided for in the rules for judicial review applications (either because the proceedings were judicial review proceedings or because judicial review time limits applied by analogy in the case of plenary proceedings) but not to apply the same time limits to a challenge which sought to go beyond seeking to have the public law measures concerned rendered invalid by seeking to use that invalidity as a basis for claiming damages against a party who placed reliance on the measures concerned. For the reasons already analysed it does not seem to me to make a difference that the claim in which the challenge is brought is formulated as a counterclaim particularly where the counterclaim is not merely a necessary part of the defence but goes further and seeks to make a substantive claim, in this case in damages, which goes beyond the repetition of the substance of the defence.”
44. Thus, on the basis of the authority represented by the decisions in O’Donnell and Shell, the Council submits that the time limits laid down by O. 84, r. 21 must be applied by analogy to the plaintiff’s case, notwithstanding the fact that these proceedings were commenced by way of plenary summons rather than by way of an application for judicial review.
45. Counsel for the plaintiff sought to distinguish O’Donnell and Shell on the basis that in those cases the impugned decisions of the bodies concerned – respectively, the decision of the county manager of Dún Laoghaire Corporation to impose water rates within the defendant’s administrative area, and the decision of the Minister for Communications, Marine and Natural Resources to provide his consent, pursuant to s.40 of the Gas Act 1976, to the construction of an on-shore pipeline in County Mayo – were still operative at the time that the issues in each of those sets of proceedings fell to be determined, whereas in this case the decision impugned – namely, the decision of the Council to introduce and maintain a Register of the kind already described – has ceased to have any prospective force or effect, due to the discontinuance of the said Register in March 2013. But that distinction, while perfectly valid in so far as it goes, seems to me to make no difference as regards the question I have to answer on this aspect of the case, namely, was the plaintiff within time to challenge the relevant decision(s) or act(s) of the Council in establishing and maintaining the Register (then extant) when he issued his proceedings seeking, inter alia, public law declaratory reliefs on the 4th November, 2011?
46. Counsel for the plaintiff also sought to distinguish the Shell case on the basis that, whereas Laffoy J. in the High Court in that case had found that the defendants (who were counterclaiming) had adopted a “wait and see” approach, allowing significant funds to be expended in the development of the pipeline before challenging the decision of the Minister to give his consent to that development, the plaintiff in this case has in no way acquiesced in the maintenance of the Register or in the decision to exclude him from it, as evidenced by the long train of correspondence between the parties, which has been summarised above. However it seems to me that, whatever about acquiesence, the plaintiff in this case did, perhaps entirely understandably, sit on his hands for a considerable period of time in relation to the claim he now wishes to maintain that the Register was ultra vires the Council at all material times. The plaintiff must have been aware of (and in a position to take legal advice concerning) the introduction and maintenance of the Register at least as far back as the 22nd August, 2005, when he wrote to the Council to apply for inclusion in it. As already noted, the present proceedings were not issued until the 4th November, 2011.
47. I accept that, if the relevant portion of the plaintiff’s claim was not captured by the provisions of s.50 (6) of the Act of 2000 (as amended), it would, in any event, be caught by the time limits applicable to judicial review applications under O. 84, r. 21 of the Rules, which time limits do apply by analogy in the circumstances of the present case.
48. The next question that logically arises is whether the plaintiff has complied with those time limits.
49. In the case of De Róiste v. Minister for Defence [2001] 1 IR 190 Denham J. (as she then was) made the following statement (at p. 204 of the report):-
“Judicial review is an important legal remedy, developed to review decision-making in the public law domain. As the arena of public law decision-making has expanded so too has the volume of judicial review. It is a great remedy modernized by the Rules of the Superior Courts, 1986, and by precedent (sic). However, there is no absolute right to its use, there are limitations to its application. The granting of leave to apply for judicial review and the determination to grant judicial review are discretionary decisions for the court. This has been set out clearly in precedent. The first condition as to time is that the application be brought promptly. As to whether the application is prompt will depend on the circumstances. In some circumstances even if the application is brought within months of the decision being challenged it may not be sufficiently prompt. Thus in The State (Cussen) v. Brennan [1981] I.R. 181, an application made within four months of a decision was refused. Henchy J. stated, at p.196:-
“What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend on the circumstances of the case. I have no doubt that in this case it would be unjust to grant either mandamus or certiorari.”
This concept of delay is analysed from both the procedural and substantive aspect. The court in exercising its discretion goes further than a merely procedural analysis. In this case there are no statutory limitations and the court exercises its full discretion.
The analysis commences with the obligation to bring the application ‘promptly’. It is the key word which is the foundation of the process. As to whether the application is prompt will depend on all the circumstances of the case.”
50. The Council also drew the Court’s attention to the decision of the Supreme Court in O’Brien v. Moriarty [2006] 2 IR 221. In that case Fennelly J. (at p. 244 of the report) quoted with approval the following statement of Ackner L.J. in R. v. Stratford-on-Avon D.C. ex parte Jackson [1985] 1 W.L.R. 1319, who observed (at pp. 1322 to 1323 of the report):-
“The essential requirement of the rule is that the application must be made ‘promptly’. The fact that an application has been made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been made promptly. Thus there can well be cases where a court may have to consider whether or not to extend the time for making the application, even though the application has been made within the three month period.”
51. In the circumstances that I have already described, whereby the plaintiff must have been aware of (and in a position to take legal advice concerning) the introduction and maintenance of the Register at least as far back as the 22nd August, 2005, yet did not commence the present proceedings seeking to challenge its lawfulness until the 4th November, 2011, I have concluded that the relevant claim was not made promptly.
52. It is, perhaps, important to bear in mind that the public law claim for declaratory relief in these proceedings is not one challenging the exclusion of the plaintiff’s name from the Register at issue; rather, it is one challenging the vires of the Council to create and maintain the Register in the first place. Accordingly, while there was some argument between the parties concerning the relevant date by reference to which time began to run, it does not seem to me correct to link that date to any of the decisions made to decline the plaintiff’s various applications for inclusion in the Register. At all material times from its inception he stood excluded from a Register of approved persons the creation and maintenance of which he seeks to contend was unlawful. For the same reason, I do not believe that I have to consider the issue of the extent, if at all, to which the effective date of any relevant decision might have been modified or altered by any subsequent demand for clarification or confirmation in correspondence from the plaintiff’s solicitors, such as arose in Weldon v. Minister for Health and Children [2010] IEHC 444 or Fotooh v. Minister for Justice, Equality and Law Reform [2011] IEHC 166.
53. In De Róiste, Denham J. went on to consider the factors which the court would take into account in determining whether or not to accede to an application to extend time or to allow judicial review, concluding (at p. 208 of the report):-
“In analysing the facts of a case to determine if there is a good reason to extend time or to allow judicial review, the court may take into account factors such as; (i) the nature of the order or actions the subject of the application; (ii) the conduct of the applicant; (iii) the conduct of the respondents; (iv) the effect of the order under review on the parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed; (v) any effect which may have taken place on third parties by the order to be reviewed; (vi) public policy that proceedings relating to the public law domain take place promptly except when good reason is furnished. Such list is not exclusive.”
54. In this case, I accept, as the plaintiff submits, that any finding as to the lawfulness or otherwise of the Register has no obvious implications or effects for any third parties. However, by reference to the application of the other factors identified in the passage from the judgment of Denham J. that I have just quoted, and bearing in mind also that no argument has been advanced on behalf of the plaintiff to establish good reason for his failure to move promptly in seeking the declaratory reliefs now at issue, I have come to the conclusion that there is no good reason to extend the time in which the proposed challenge to the lawfulness of the Register may be brought.
55. In consequence, I am satisfied that the plaintiff’s public law claim for declaratory relief is also barred as having been brought outside the time limit applicable to judicial review applications under O. 84, r. 21 of the Rules, which time limits must apply by analogy in the circumstances of the present case, in the absence of any good reason to extend that time limit.
56. There is one final matter that requires to be addressed. It concerns the suggestion in argument, if indeed such a suggestion was being made, that it is necessary or, at least, somehow appropriate for the Court to form a provisional or tentative view of the merits of the plaintiff’s claim that the introduction and maintenance of the Register at issue was ultra vires the Council.
57. In that regard, Counsel for the plaintiff referred the Court to an Order made in this Court by Cooke J. on the 21st January, 2013, in proceedings entitled Duffy v. Sligo County Council, with the record number 469 J.R. of 2012. Counsel informed me that no written judgment was delivered in that case and no agreed or approved note is available of the ex tempore judgment that was given. The Order records that the applicant in that case had sought Orders, inter alia, quashing the refusal of the respondent to include him on a “panel of Consultants to carry out Site Suitability Assessments, Design and Certification of On-Site Wastewater Treatment Systems in County Sligo” and a declaration that the policy of operating that panel was unconstitutional and illegal. The operative part of that Order recites:-
“An[d] in lieu of the Relief sought [by way of the declaration just described]
The Court doth Declare that the operation of the panel of approved assessors of development sites suitability for on site waste water treatments for the purpose of an application for planning permission made in accordance with Regulation 22 of the Planning and Development Regulations 2006 is Ultra Vires the powers of the Respondent as a Planning Authority under the Planning and Development Act 2000 as amended and the said Planning and Development Regulations 2006.”
58. On behalf of the plaintiff, Mr. Molloy asked the Court to have particular regard to the fact that the said Order was made in those proceedings on the 21st January, 2013, just weeks prior to the discontinuation by the Council of the separate Register that it had introduced and maintained.
59. However, Mr. Connolly made two points in response to that submission, both of which seem to me to be well taken.
60. The first is that the Order of Cooke J. in the Duffy case recites that the decision of Sligo County Council refusing to include the applicant in that case on the panel concerned was made on the 14th March, 2012, and that application for Judicial Review was made on the 31st May, 2012, thereby establishing that no possible issue of time limits could have arisen in that case.
61. The second is that, even if it were appropriate in principle to have regard to the merits of the plaintiff’s claim in considering the time bar issue, the Order relied upon, in the absence of a judgment or of any detail concerning the specific nature or scope of the panel or register at issue in that case, does nothing to displace the presumption of validity which attaches to the introduction and maintenance of the Register in this case. In the High Court decision of Weston Ltd v. An Bord Pleanála [2010] IEHC 255, Charleton J. stated:-
“In Lancefort Ltd v. An Bord Pleanála (Unreported, High Court, McGuinness J., 12th March, 1998) the following passage on the burden of proof, at pp. 21-22, which applies as much to a planning authority as An Bord Pleanála appears:-
“Counsel for the Notice Party also submitted that where the evidence as to whether a statutory body entrusted by the legislator with a particular function did not exercise its statutory duties, there is presumption of validity in favour of the decision under attack. Finlay P. in re Comhaltas Ceoltoirí Éireann (High Court, unreported, 14th December, 1977) said (at pages 3-4 of the transcript of his Judgment):
‘A planning authority is a public authority with a decision making capacity acting in accordance with statutory powers and duties. In my view, there is a rebuttable presumption that its acts are valid.’
It appears to me that this submission is well-founded.”
62. In the circumstances, it seems to me that the Order of Cooke J. in the proceedings concerned does not affect the questions that I have had to consider or the conclusions that I have reached on the preliminary issue in this case.
Conclusion
63. For the reasons that I have set out above, I am satisfied that the public law declarations sought by the plaintiff are time barred and I rule accordingly. It follows that the plaintiff’s application to strike out the relevant portion of the Council’s defence must fail.
McCreesh v An Bord Pleanála
[2016] IEHC 394
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of July, 2016
1. The applicant in this case seeks leave subject to s. 50 of the Planning and Development Act 2000 to apply for judicial review of a decision of the board dated 30th March 2016 confirming a compulsory purchase order made by Louth County Council. The application raises an issue of general application, namely the date on which the clock stops for the purposes of the judicial review limitation period.
2. Notice of the making of the board’s decision was published by Louth County Council on 6th April, 2016. The application was filed on 27th May, 2016 and was moved in court on 30th May, 2016. The application was not served on the board until 10th June, 2016, pursuant to a direction in that regard which I gave on the 30th May, 2016.
3. The application is subject to s. 50 of the 2000 Act because it relates to a challenge to a consent given by the board pursuant to a function transferred by Part XIV of the Act (see s. 50(2)(b)).
4. I have heard from the applicant in person and from Mr. Alan Doyle solicitor, of Barry Doyle & Co. solicitors for the board, who makes two submissions: firstly that the application out of time and secondly that there are no substantial grounds.
Is the application out of time?
5. Pursuant to s. 50(7), time in this case runs from the publication of the decision rather than its making. Time therefore ran from 6th April, 2016.
6. In support of the submission of the time should stop running when the application is served or moved, rather than filed, the board relies on an obiter comment of Finlay C.J. in K.S.K Enterprises Ltd. v An Bord Pleanála [1994] 2 I.R. 128 at 136 that “an application to the court made by motion ex parte cannot be said to be made until it is actually moved in court”.
7. As noted, it is clear that, and indeed it is accepted by the board that, this comment was obiter on the facts of K.S.K. More fundamentally, the Chief Justice in that case was referring to an ex parte judicial review application in the context of the procedure which applied at that time, which did not involve a requirement for the filing of papers before the ex parte application was moved.
8. The judgment in K.S.K. was delivered on 24th March, 1994. The following day, however, 25th March, 1994, a new High Court practice direction HC02, entitled “Ex parte applications for judicial review” was issued (see Benedict Ó Floinn B.L., Practice and Procedure in the Superior Courts, 2nd ed., p. 977 as to the date of this instrument, which is undated in the version currently published on courts.ie). It expressly states that “the original statement and grounding affidavit should be filed in the Central Office beforehand and a certified copy bearing the record number issued by the Central Office, provided to the court on moving the application”. The introduction of this approach brought about a significant change in the way such ex parte applications were brought and introduced considerably greater formality in that regard and in my view fundamentally changed the context in which the obiter statement in K.S.K. should be viewed.
9. The Central Office of the High Court is an arm or instrument of the High Court and not some sort of entirely separate or independent agency. An application which is made by being filed in the Central Office is therefore an application that is made to the court. Depending on the rules of court, formal practice direction, or administrative decisions that may be made from time to time for particular lists, a hearing date for a matter filed in the Central Office may be assigned at that time of filing (as applies to a special summons, notice of motion, or case stated). Alternatively it maybe left to the individual applicant to move the application at a convenient date. These matters are capable of being subject to change in procedure from time to time, and there would nothing to prevent the adoption of a practice that, for example, upon the filing of statement of grounds by way of application for leave for judicial review, a date for the hearing of the leave application would be administratively assigned by the Central Office. The possibility of such a hypothetical but perfectly permissible practice would somewhat militate against the postulate that the ex parte application, under the system which currently obtains, is only made when it is moved, as opposed to when it is filed.
10. Whatever might have been the view to be taken of the obiter statement in K.S.K., the matter was subsequently and definitively addressed by Geoghegan J. in Mc.K. v. A.F. [2005] 2 IR 163 at 172, where he said that “[g]iven the uncertainties of the availability of courts and judges at any given time and the systems of listing, a statute which creates a time limit for the bringing or making of an application or uses any such cognate words should be interpreted as meaning the date of issuing if the proceedings require a summons or filing or possibly in some cases filing and serving if what is involved is a motion, but unless there are express words in the statute that require it, it should not be interpreted as meaning the actual moving of the application in open court”. I previously applied this decision in Burke v. Minister for Justice and Equality [2015] IEHC 614 (Unreported, High Court, 12th October, 2015) at para. 2.
11. It is notable, and perhaps reflective of an understandably cautious approach taken by legal practitioners, that the obiter statement in K.S.K. as to the necessity of mentioning an ex parte application in court to stop the clock has passed into general consciousness despite the considerable practical inconvenience such a position occasions to all concerned, including the court, to say nothing of the needless anxiety such a view generates for practitioners and parties; whereas the later and more definitive position in A.F., which is supported by a considerable rationale both as spelled out in that case and elaborated on above, which is considerably more convenient for the court, practitioners and parties, which is supported by the context of the subsequent practice direction and which makes coherent sense in that context, has eluded popular awareness. In my view the date of the making of an ex parte application is the earlier of the dates on which papers are filed or the matter is moved in court. Normally it is the date of filing in the Central Office because the practice direction requires that to be done first. In essence the date on which the application is made is the date on which the applicant first engaged with the court (or the Central Office on behalf of the court) in a suitably formal manner. Filing the statement of grounds therefore stops the clock. The present application is not out of time, and did not become out of time simply because of the nearly 2-week delay in serving the board following my direction in that regard. The initiation of a judicial review is a one-off step and this application was initiated within time.
Are there substantial grounds for the application?
12. The applicant challenges the confirmation by the board of a compulsory purchase order under the Housing Act 1966. The function of confirming such an order was transferred to the board pursuant to s. 214 of the Planning and Development Act 2000.
13. The essential grounds of challenge as set out in the statement of grounds are firstly that the order was obtained as a result of a conspiracy, and secondly that the site in question is not a derelict site. Issue is also taken with the valuation of the site but that appears to be a matter of merits and not legality, even if it arises at this stage, which does not appear to be the case from the board’s decision.
14. The astronomer Carl Sagan is associated with the aphorism that extraordinary claims require extraordinary evidence. A fortiori, such claims requires some evidence, but in this case the claim of conspiracy is supported only by the applicant’s assertions in that regard. I do not consider that substantial grounds have been made out under this heading.
15. As regards the claim that the site in question is not a derelict site, the board, as appears from their decision made no finding that it was a derelict site. Indeed the decision of the board dated 23rd March, 2016 specifically acknowledges that the schedule of the compulsory purchase order should be modified to provide for a revised description confirming that the house is fit for human habitation. This appears to be inconsistent with the alleged finding that the site was derelict.
16. Insofar as the grounding affidavit could be construed as advancing further grounds, a claim of absence of due process is made in para. 9 of the affidavit, but this is insufficiently particularised to enable me to find that substantial grounds exist for it.
17. Paragraph 8 of the affidavit amounts to a general allegation of illegality in the appointment of auctioneers and again is insufficiently particularised to permit a finding of substantial grounds.
Order
18. For the foregoing reasons, substantial grounds for advancing the applicant’s claim are not discernible and follows that the application for leave will be refused. Pursuant to s. 50A(7) of the 2000 Act, this order is not appealable to the Court of Appeal without leave of this court.
McDonnell v An Bord Pleanála
[2017] IEHC 461
Judgment of Mr. Justice Robert Haughton delivered the 31st day of May, 2017.
1. This judgment deals –
(a) with the form of the order that the court should make consequent on its rulings made on 16 May, 2017 and 17 May, 2017, and
(b) with the applicant’s application for a certificate of leave to appeal under section 50A(7) of the Planning and Development Act, 2000 (as amended) (“the 2000 Act”).
The second question involves preliminary consideration of whether certification is required at all. It should be noted that the applicant has at all stages appeared in person.
2. It is necessary first to summarise the history of the proceedings thus far:
(i) The impugned decision of the respondent to grant approval for a windfarm at Oweninny, Bellacorick, Co. Mayo, is dated 2 June, 2016.
(ii) On 27 July, 2016, just within the 8 week period allowed by s.50(6) for seeking leave for judicial review of the Board’s decision, the applicant lodged papers in the Central Office.
(iii) For reasons considered in my earlier rulings the applicant did not make his application for leave until he moved his application ex parte before Humphreys J. on 21 November, 2016. The matter was adjourned to enable the applicant to swear a further affidavit to exhibit a copy of the impugned decision, and to deal with delay, both of which were addressed in a second affidavit sworn by the applicant on 12 December, 2016.
(iv) By order dated 12 December, 2016, Humphreys J. granted leave to apply for the reliefs set forth in paragraph D1 of the Statement of Grounds (certiorari) on the grounds set forth in E1 and E2, but refused leave in respect of any other relief or on any other grounds viz. grounds E3 and E4.
The said order did not extend time for seeking leave, although the reasons for delay were addressed in the applicant’s second affidavit.
(v) By order of McGovern J. dated 19 December, 2016, on the motion of the notice party the proceedings were admitted to the Commercial List for hearing.
(vi) In its Statement of Opposition the respondent raised a preliminary objection that the ex parte application for leave was out of time because it was not ‘made’ within 8 weeks, and pleaded that the applicant had not sought or been granted an extension of time, and that the reasons proffered were not ‘good or sufficient’ or outside his control within the meaning of s.50(8) of the Act of 2000. Similar objection was taken by the Notice Party in its Statement of Opposition. In the interests of expedition, the notice party chose to pursue these objections at full hearing rather than bring separate motions seeking to set aside the leave order.
(vii) The matter came on for full hearing before me on Tuesday, 16 May 2017. As the respondent and notice party were pursuing their preliminary objections, I considered that the hearing would be best managed by first determining whether the leave application was made on time (see Transcript day 1 pgs.4-6).
(viii) Having heard argument on that issue I delivered my ex tempore ruling on 16 May, 2017 (the “first ruling”). This is recorded in the Transcript day 1, pgs. 24-37. In my first ruling I respectfully differ from the approach taken by Humphreys J. that is evident from his decisions in Burke v. Minister for Justice Equality and Law Reform [2015] IEHC 614 and McCreesh v. An Bord Pleanála [2016] IEHC 394 viz. that when the papers in an ex parte application are lodged in the Central Office that stops time running. I determined that the ex parte application was not “made” for the purposes of section 50A(2) of the 2000 Act until the matter was moved in court. Accordingly, I found that the filing of the ex parte leave papers on 27 July, 2016, did not commence the proceedings, and the application was not “made” until the matter was moved before Humphreys J. on 21 November, 2016 (see Transcript day 1 p.37). Having so found I then stated: –
“that brings the court on to the second issue, which is whether it should extend time.”
(ix) The court then proceeded to consider the question of extension of time. In addition to the affidavit evidence before the court the applicant was permitted to give oral evidence, on which he was cross examined, and I then heard further oral argument. I also had the benefit of full pleadings and the parties written submissions. In his oral submissions, counsel for the notice party made it clear to the court that a relevant factor that the court should consider in deciding this issue was the merits of the case, and the notice party wished to urge upon the court that no arguable case had been made out. This submission was based on commonly cited dicta of Clarke J. in Kelly v Leitrim County Council [2005] 2 IR 404 at pgs. 413, 415 and 423. Accordingly, counsel for the notice party contended that the grounds raised by the applicant were not arguable, and the applicant had an opportunity to and did reply to that contention.
(x) Having reserved my decision overnight, I delivered an ex tempore judgment on 17 May, 2017 – see Transcript day 2 pgs. 4-37 (the “second ruling”). I considered the application in the context of the non-exhaustive factors (a) – (f) identified by Clarke J. in Kelly v Leitrim County Council at pgs. 412 – 413 of his judgment, factor (f) being “the merits of the case”. In effect, I found that while I would have been disposed to extend time for seeking leave to seek judicial review on consideration of factors (a) – (e), on consideration of the merits of the case under factor (f) I was led to the conclusion that I should not extend time. At page 26 of the Transcript I state –
“… I find that the Applicants case on grounds (e)(i) and (ii) is not arguable and is bound to fail for a number of reasons which it is appropriate to set out.”
Thereafter I give some six reasons related to the merits of the case that support this conclusion and I end on page 37 by stating –
“I must, therefore, refuse the application to extend time for pursuing grounds (e) (i) and (ii) and the proceedings must therefore be dismissed.”
(xi) As no party sought their costs I determined that there should be ‘no order as to costs’.
FORM OF ORDER
3. It is evident from the foregoing that I decided firstly that the ex parte application for leave to seek judicial review was not “made” in time. Logically it follows that the order granting leave should be set aside, because it is not apparent on the face of that order that Humphreys J. considered or adjudicated on the question of whether to extend time for making the application. Secondly in the context of deciding whether to extend time I addressed, inter alia, the merits of the case and concluded that there was no arguable case. Accordingly, the operative part of the order should read as follows: –
THE COURT FINDS AND DETERMINES that the application for leave to apply for judicial review was not made within the period prescribed in section 50(6) of the Planning and Development Act 2000 and accordingly was made out of time;
IT IS ORDERED that, the court having determined that the within Application does not disclose arguable grounds for the grant of the relief claimed, the court refuses to extend the time having regard to section 50(8) of the Planning and Development Act 2000
AND IT IS FURTHER ORDERED that the order of Mr Justice Humphreys made herein on the 12th day of December 2016, to the extent only that it granted leave to the applicant to seek judicial review, be set aside
AND IT IS FURTHER ORDERED that the relief sought by the Applicant as set out in paragraph D(1) of the Statement of Grounds is refused and the Applicant’s proceedings be dismissed.
And on hearing the said Applicant and Counsel for the Respondent and Counsel for the Notice Party in respect of costs
No order as to costs.
CERTIFICATION – IS IT REQUIRED?
4. This question is not straightforward. Counsel for the respondent presented legal authority bearing on the issue, but remained neutral as to whether it is or is not required. Counsel for the notice party argued that certification was required. The applicant did not address this issue, but did address the court and seek certification.
5. Section 50A(7) provides –
“(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies that it’s decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal].”
6. In A. B. v. Minister for Justice, Equality and Law Reform [2002] 1 I R 296 the Supreme Court, in the context of a very similarly worded provision in section 5(3)(a) “The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.” of the Illegal Immigrants Trafficking Act 2000, addressed the question of whether the applicants required leave to appeal to the Supreme Court from orders of the High Court refusing them an extension of time within which to seek judicial review of a deportation order and a refusal of refugee status respectively. At the outset, two points should be noted about this decision. First, the time limit for seeking judicial review in such cases under s.5(2)(a) of that Act was only 14 days. Secondly, it does not appear from the report that the High Court made any determination of the merits of the cases in refusing to extend time.
It was held by the Supreme Court, in allowing the appeals to be heard, that the issues involved on the application for an extension of time might be substantially different from those involved in the application for leave, and under the express provisions of the Illegal Immigrants Trafficking Act 2000 there was no ouster of the right of appeal from a refusal to extend time. Critically it was held that the refusal of an extension of time by the High Court was not a “determination” of an application for leave within the meaning of s. 5(3)(a).
The starting point for the court’s consideration was Article 34.4.3 of the Constitution which (then) provided –
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
Since this decision the Twenty Third Amendment to the Constitution has provided for the establishment of the Court of Appeal, and under the new Article 34.4.3 it is now that court that has appellate jurisdiction from all judgments of the High Court.
7. Keane CJ. stated at page 301: –
“The critical provision is, however, that contained in subs.(3)(a). I do not think that I do any injustice to the argument advanced on behalf of the applicants in saying that it rests essentially on the proposition that the “determination” referred to in that subparagraph is a final judicial conclusion, after an examination of the merits, of either an application for leave to apply for judicial review or the application for judicial review itself. An application for an order extending the period within which the application is to be made, on the other hand, does not necessarily involve any examination of the merits of the application and, accordingly, cannot be regarded as a “determination” of the application. Where the court decides that there is good and sufficient reason for extending the time, it must necessarily proceed to a second and, as was urged, separate or discrete application, i.e. as to whether leave should be granted and it was only the second such adjudication which could be said to be the determination of the application for leave within the meaning of s.5(3)(a).”
8. Geoghegan J., with whose judgment Denham, McGuinness and Fennelly JJ. agreed, stated at p.319:
“While it is true that this court has recently held in G.K. v. Minister for Justice [2002] 1 ILRM 401, that on an application for extension of time, the court is entitled to have regard to the fact that the merits of the application might be unstateable or, on the other hand, particularly strong, in many instances the issues on the application for extension of time would be quite different from the issues on the application for leave itself. All sorts of issues can arise on the application for the extension of time, such as non-delivery of letters, delay by the applicant’s solicitor, difficulties in language communication etc. which might not turn out to be relevant on the application for leave.
In this connection, it is irrelevant in my view whether the application for an extension of time is brought by an independent motion on notice in advance of an application for leave or whether the extension of time is requested in a combined motion on notice seeking the extension of time and then, if granted, leave for judicial review. In either event the issues involved on the application for extension of time may be substantially different from those involved in the application for leave. Under the express terms of the Act the restrictions on the right of appeal to the Supreme Court apply to the application for leave or the application for judicial review and as a matter of ordinary grammar and syntax, I find it difficult to see how it could be argued that there is an ouster of the right of appeal from a refusal to extend time. If the Oireachtas had intended that, it should have said so. Until the extension is granted there is no application for leave in existence. But even if as a matter of grammar and syntax, such an argument could be made, there is certainly not a clear and unambiguous ouster of the right of appeal which is required under the constitutional jurisprudence referred to earlier in this judgment.”
9. In agreeing with Geoghegan J, Fennelly J stated at p.324:
“The fact that the extension of time application is, in principle, distinct, is illustrated by the fact that the court accepted in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360, as Keane C.J. noted that a separate application could be made for an extension within the fourteen day period. This point is further underscored in the judgment of Geoghegan J., where he points to the distinct character of the matters which will need to be considered on such an application for an extension of time. This view gains further support from the remark of Hardiman J. that this “is a special statutory jurisdiction which is in [his] view sui generis ” (G.K. v. Minister for Justice [2002] 1 ILRM 401 at p. 404). There is a further decisive consideration. As Geoghegan J. also points out, where the respondent objects to an order which is made granting an extension, there is nothing to prevent that party from appealing such an order. Section 5(3)(a) does not apply. The reason is that the order granting the extension of time does not determine whether leave will be granted. Some troublesome anomalies flow from treating the refusal of an extension of time as a determination of an application for leave. Firstly, it is clear, that an order granting an extension is not to be treated as amounting to the determination of an application. It seems equally clear that an order refusing an extension will be treated as not determining the application for leave, if the extension application is made within the fourteen days. On the other hand, an order refusing leave after the expiry of the time will be treated as determining the application for leave. In my view, that interpretation of the section is both inconsistent and discriminatory. It is not an acceptable approach to the interpretation of a provision claimed to limit the right of an affected person to access to the courts.”
10. A.B. was followed and applied quite recently by the Supreme Court in A. v. Minister for Justice and Equality [2013] IESC 18. The applicant brought a motion seeking leave to seek judicial review of a decision of the Refugee Applications Commissioner somewhat outside the 14 day period. That application was adjourned, and was never in fact heard. During the period of adjournment, the respondent brought an application by notice of motion seeking an order dismissing the proceedings on the grounds that they were frivolous/vexatious or doomed to fail and an abuse of the process. The court considered the grounds, and noted that the applicant had a pending appeal to the refugee appeals tribunal, and acceded to the motion and dismissed the proceedings. The appellant appealed against that judgement and order, and the respondents brought a motion before the Supreme Court seeking to have the appeal dismissed on the basis that the appellant required a certificate of leave to appeal. The court considered that the net point was whether the High Court order dismissing the proceedings was a “determination of the High Court of an application for leave to apply for judicial review as aforesaid”. At paragraph 24 of her judgement Denham CJ. states –
“24. The facts of the case, as set out earlier, that the appellant’s application for leave to apply for judicial review was not heard by the High Court. What the High Court heard was the motion brought by the respondent seeking an order that the appellant’s proceedings be dismissed on the grounds that they were frivolous, vexatious and/or doomed to failure. Thus, to decide if the decision of the High Court on that motion was a “determination” under s.5(3)(a) requires an analysis of the law and facts.”
Denham CJ. then referred to the decision in A.B., quoting with approval from the judgement of Geoghegan J. at page 319, referred to above, where he states that the issues involved in the application for extension of time “may be substantially different from those involved in the application for leave” and where he found “it difficult to see how it could be argued that there is an ouster of the right of appeal from a refusal to extend time”. Denham CJ. then stated: –
“27. I would apply that analysis to this case. The issues involved in a motion to dismiss may be substantially different from those involved in an application for leave to apply for judicial review. I agree and apply the reasoning of Geoghegan J. that the wording of s. 5(3)(a) does not clearly ouster an appeal from such a motion. Further, even if such an argument could be made, there is certainly not a clear and unambiguous ouster of the right of appeal, such clear language being necessary under the constitutional jurisprudence.”
11. I was also referred to my own decision in Sweetman v An Bord Pleanála and others [2017] IEHC 133, but this does not assist primarily because in that case the jurisprudence outlined above was not raised in argument or considered by the court.
12. In highlighting the above quoted extracts from the decisions in A.B. and A., counsel for the notice party argued that the court should distinguish the present case from one in which a decision to refuse an extension of time does not have regard to the merits of the application. Keane CJ. refers to a “determination” as being a judicial determination where there has been an examination of the merits of the case. Geoghegan J. in referring to the judgement of Hardiman J. in G.K. acknowledges the entitlement of the court considering an extension of time to have regard to the merits of the case where they are “unstateable”, but emphasises that in many instances the issues on an extension application will be quite different. Fennelly J. also emphasises that the extension application does not decide whether or not leave will be granted – that is a further determination that is made if an extension is granted.
13. Thus counsel urged the court to have regard to the fact that in the present case statements of opposition with verifying affidavits were filed, the pleadings were effectively closed, and the matter came on for hearing before this court by way of full trial. Furthermore, all parties filed written submissions dealing with the merits of the applicant’s application for judicial review (as well as the issue of delay and extension of time). More particularly counsel urged that in determining the extension of time application, the court, on the invitation of the notice party, had regard to the merits of the application. It did so with the benefit of full pleadings, replying affidavits and the submissions of all parties. Having heard the extension application the court refused an extension of time purely on the basis that on the merits, the application for judicial review was not arguable.
14. I believe these arguments are well made. It is notable that when the Supreme Court delivered its decision in A.B. Hardiman J had only recently given his judgment in G.K. noting that “…it is not an excessive burden to require the demonstration of an arguable case” where an extension of time is sought. The Supreme Court in A.B. did not take issue with that proposition, and it was applied by McGuiness J. in C.S. v. Minister for Justice [2004] IESC 44. Some years later the principle achieved prominence in the field of planning judicial review following the decision of Clarke J in Kelly v Leitrim County Council – see particularly pages 413-415, which were relied upon in my second ruling. The practice of having regard to the merits of the case in reaching a decision on whether to extend time has grown over time and is now a regular feature in arguments raised by respondents opposing a time extension.
15. There can be no doubt that in this case, on the urging of the notice party, the court expressly had regard to the merits, or lack thereof. Moreover, this happened in the course of argument and the applicant was afforded the opportunity to and did address the court specifically on the notice party’s submissions that the grounds pleaded by the applicant were not arguable. This is evident from the transcripts and is reflected in the order that will now be perfected stating –
IT IS ORDERED that, the court having determined that the within Application does not disclose arguable grounds for the grant of the relief claimed, the court refuses to extend the time having regard to section 50(8) of the Planning and Development Act 2000.
This reflects the true position, namely that this court did not refuse to extend time based on any time considerations, but did so solely on the basis that on fuller consideration of the relevant grounds with the benefit of full pleadings, replying affidavits and submissions, those grounds were not arguable. Indeed, had the grounds been arguable I would have been disposed to have extended time. This is apparent from those parts of my second ruling in which I accepted the applicant’s evidence and found that he had, inadvertently, been misled as to when he should ‘move’ the ex parte application, and that he had in all other respects demonstrated good and sufficient reason for extending time by showing circumstances that were effectively beyond his control. The only reason time was not extended was because the two grounds pursued were not arguable.
16. However a distinction must be drawn between my first ruling, that the ex parte application was made out of time, and the second ruling refusing to extend time. In respect of the first ruling there was no consideration of the merits of the application. It was a separate and distinct matter that was dealt with effectively in a preliminary module – with narrow facts and focussed argument upon which the basis for challenging the Board’s decision had no bearing whatsoever. It was properly described as a preliminary matter. It clearly could not be described as a “determination” of the leave application because it concerned whether or not such an application had been “made” at all within the meaning of s.50(6) of the 2000 Act. A fortiori it was not a “determination” of the judicial review. In respect, therefore, of the first ruling it must be concluded that s.50A(7) has no application and the requirement for certification does not apply It is worth noting that the court enquired of the applicant as to whether he wished to raise any point of law as to the correctness or otherwise of the first ruling. He indicated his belief that the jurisprudence cited by counsel for the respondent and notice party “…led me to conclude that your interpretation of the law is probably the correct one, judge.” (Transcript Day 3 p.56)..
17. However it does apply to the second ruling, and it is necessary to consider whether the applicant has raised any point law of exceptional public importance in respect of which it is desirable in the public interest that the court should certify for appeal.
POINTS OF LAW FOR CERTIFICATION
18. I note that in advance of this hearing the respondent’s solicitors wrote to the applicant advising him of s.50A(7) and furnishing him with a copy of the judgement of McMenamin J. in the Glancre case to which I shall refer shortly. The applicant’s submissions were largely contained in a written statement which he read out to the court and which appears in the Transcript for day 3 pages 47-55. Unfortunately, the applicant did not formulate any specific points of law in respect of which he sought certification and the court is left with the task of trying to discern possible points of law from his address.
19. In considering these the court applies the test under s.50A(7) that the point of law must be of “exceptional public importance” and separately that it must be desirable in the public interest that an appeal be taken. The court also applies the principles summarised by McMenamin J in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250: –
“I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.
1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.
2. The jurisdiction to certify such a case must be exercised sparingly.
3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.
4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).
5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.
6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).
7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.
8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.
9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”
I would observe that point 4 is particularly relevant. As a matter of logic, it is more difficult for the applicant to persuade the court that there could be any point of law of exceptional public importance arising out of the decision where the grounds raised have already been held not to be arguable.
20. The applicant argues that the court has misunderstood the significant role of “capacity factor” in the context of this particular planning application, its relationship to policy objectives of the State and its description of unit production in the context of wind farms. He says that in this planning application capacity factor replaced “the very detailed windspeed information normally included in wind farm applications”, and that there was a deficit of wind speed information. He argues that this is all that he had to work with and that it formed the basis of the “required environmental calculations, for example carbon abatement”.
21. This comes back to the applicant’s core complaint that the capacity factor was much greater than represented by the developer and that “the price tag” that the developer will pay for this development in terms of community benefit contribution is far too low.
22. In my second ruling I dealt with this by reference to the material before the board which included the EIS, the applicant’s submissions on capacity factor and the evidence at the oral hearing, and the Inspectors main report and conclusions which were accepted by the board. As I point out, the case law establishes that the adequacy of an EIS is a matter for the planning authority. That case law at least in relation to planning decisions, does not stand in any state of uncertainty, nor does the applicant suggest or try to identify any uncertainty. This therefore does not give rise to any point of law that the court should certify.
23. In his address the applicant then returns to his complaint that the developer used a 33% capacity factor which he characterised as a “lie” based on 2002 information and “using very dated technology”, and suggests that the developer was trying to mislead An Bord Pleanála and court. He expresses the view that “the planning system as it stands is a blaggard’s charter” and develops this theme with similarly colourful language in relation to the law. His end point is that this has led to the grant of permission without a community benefit contribution that appropriately compensates the local community. He returns to this theme later in his address when asserting that there should be ‘public confidence in the planning system” and that developers should not be “free to tell us whatever comes into their head when it comes to non-environmental or economic information”.
24. The applicants broadside attack on the planning system is really a generalised attack on the 2000 Act and regulations made thereunder, and as such is a complaint about the planning policy and legislation that is a matter for the Oireachtas. Moreover, his complaint is so lacking in specificity that it does not give rise to a point of law for certification. Further on in his address the applicant narrows this down to criticism of the court’s limited role in a system of judicial review that does not extend to reviewing the content of decisions other than in accordance with the test set out in O’Keeffe. As I have already stated the jurisprudence in this regard is well established.
25. Next the applicant argues that “economics are as much part of the human environment as the electromagnetic field, noise, shadow, flicker or gravity for that matter… Thus, it seems to me that when An Bord Pleanála comes to assess the impacts, direct and indirect on human beings, economic factors should be fully considered.” The difficulty is that as a matter of fact the board had considered the planning application, submissions, and material within the Inspector’s main report, bearing on the issue of the environmental effect on the community, and community benefit contribution to compensate the local community. It must also be presumed that board took into account the Inspector’s recommendations based on the wind farm capturing “a reasonable or better wind resource” than 33% capacity factor, and the Inspectors view that a community contribution of €2500 per installed megawatt per annum would be appropriate. The applicants point therefore does not arise as a point of law. It seems to me that his point is really directed at the merits of the decision. As I’ve already said it also seems to me that his focus on the capacity factor is misplaced insofar as the community benefit contribution is or should be based on actual output measured in terms of megawatts.
26. The applicant has not satisfied me that there are any points of law of exceptional public importance in respect of which I should grant a certificate and accordingly I refuse his application.
Irish Skydiving Club Ltd v An Bord Pleanála
[2016] IEHC 448
JUDGMENT of Ms. Justice Baker delivered on the 29th day of July, 2016.
1. This is my judgment in the trial of a modular issue in this judicial review, whether the applicant is out of time to review a decision of An Bord Pleanála by reason of s. 50 of the Planning and Development Act, 2000, as amended, (“the Act”).
2. The applicant seeks judicial review of the decision of An Bord Pleanála made on a referral by Kilkenny County Council under s. 5 of the Act by which the Board determined that the use by the applicant of Kilkenny Airfield for sponsored parachute jumping was a development and not an exempted development. The applicant is a limited liability company and carries out the activities of sports parachuting from the aerodrome and is a registered aerodrome license holder for that purpose.
3. The decision of the Board was made on 14th January, 2015. Leave was given by Eager J. on 27th March, 2015 to seek an order of certiorari by way of an application for judicial review quashing the decision, and for various reliefs inter alia on the grounds that despite the fact that the applicant is the approved operator and holder of the license, and that it is involved in carrying out the activities in respect of which the referral was made, it was not a notice party to the referral. Relief is also sought on the grounds that the Board had disregarded the recommendations of its inspector.
4. The respondent argues by way of preliminary objection that the applicant is out of time and following submissions made to me on the first day of the hearing, I determined that the matter would proceed by way of modular hearing and that I would first determine the procedural time question. This decision was made following an application for an adjournment by Eoin Nevin, a director of the applicant company, who sought to represent the company and after I had refused to permit him leave to do so. In those circumstances the matter was adjourned for a short a period to enable the applicant to obtain legal representation which it duly did, and having regard to the fact that the solicitor who came on record for the applicant had less than 48 hours to prepare his submissions, I considered that justice would be done to all parties were I to confine my deliberations to the question of time only.
5. My decision to try the modular issue was also made in the context of the position of the notice parties, Mary Cass and Richard Cass, who said that their enjoyment of their home and lands adjacent to the aerodrome was severely impacted by the ongoing parachuting and flight activity from the aerodrome, and that they were strongly opposed to the matter adjourning.
6. Section 50 of the Act, as substituted by s. 12 of the Act of 2002, provides the time limits for the bringing of a judicial review of any decision of An Bord Pleanála. It is not doubted that the decision of the Bord under s. 5 is governed by this provision. The section provides an eight week period beginning on the date on which the notice of the decision was first sent or published.
7. Section 50 (6) provides as follows:
“(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2) (a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate.
8. Time may be extended by the court subject to the requirements set out in section 50 (8):
“(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that—
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.”
9. Section 50(8) (a) is a reflection of the inherent jurisdiction of the court to extend time when it considers that good and sufficient reason exists to so do, but sub paragraph (b) of the subsection contains a restriction on the power such that in addition to being satisfied that good and sufficient reasons exists, the court must be satisfied as a matter of fact that the circumstances which resulted in the delay were outside the control of the applicant.
10. Thus, while the court has a discretion it is required by the cumulative provisions of subs. 8 to consider not merely the interests of justice, or the interests of all of the parties, but whether the applicant for the extension can show on the facts that the delay and the reason why he or she is out of time arose from matters outside his or her control. When a delay arises from circumstances which were within the control of the applicant, the court may not extend.
11. The time limit is strict, and one in respect of which the power to grant an extension is also to be strictly construed. That this is justifiably so has been considered in a number of cases. In Noonan Services Limited & Ors v. the Labour Court (Unreported, High Court, 25th February, 2004) Kearns J. explained the policy for a strict approach:
“This approach does no more than reflect a growing awareness of an overriding necessity to provide for some reasonable cut-off point for legal challenges to decisions and orders which have significant consequences for the public, or significant sections thereof.”
12. After listing a number of pieces of modern legislation which provide strict cut-off periods he explained that those provisions reflect the desire that legislation would function effectively, and in many cases comply with Ireland’s obligations as a Member State of the EU.
13. In Kelly v. Leitrim County Council & Anor. [2005] 2 IR 404 Clarke J. also concluded that provisions broadly similar to s. 50 had been introduced in other areas of the review of administrative or quasi-judicial decision-making in recent time, and quoted with approval the decision of Finlay C.J. in K.S.K. Enterprises Limited v. An Bord Pleanála & Anor. [1994] 2 I.R. 128 where at p. 135 he said:
“it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.”
That decision of Finlay C.J. was given before the amendment to s. 50 gave the court the power to extend time, but the principles therein explained remain valid.
14. The strictness of the time limit has being noted in a number of cases, and by way of example, Charleton J. in MacMahon v. An Bord Pleanála & Anor. [2010] IEHC 431 noted that the “the Oireachtas clearly intended to impose strict time limits for the challenging of decisions in the planning process”.
15. Finlay Geoghegan J. in Linehan & Ors.v. Cork County Council & Anor. [2008] IEHC 76 noted that the time limits were “strict and short time limits”, and more recently Costello J. in South-West Regional Shopping Centre Promotion Association Limited & Anor. v. An Bord Pleanála & Ors. [2016] IEHC 84 also noted the “strict limitation period of eight weeks”.
16. All of these judgments noted the public policy considerations reflected in the imposition of strict and short time limits.
17. Before I consider whether to extend time, I set out the relevant dates.
Chronology
18. 14th January, 2015, the Board decision was made.
19. 29th January, 2015, Mr. Eoin Nevin became aware through happenstance that a decision had been made that affected skydiving at the airfield. He confirmed that when he checked, the decision and the report of the inspector were available on the website of An Bord Pleanála. He made contact with the airport owner Mr. Byrnes, who was a notice party to the s. 5 referral, and he confirmed that he had been notified of the decision of An Bord Pleanála. The company held an extraordinary general meeting that evening to discuss the decision.
20. The company contacted the Board directly by email on that day, albeit the email was sent after close of business, and asserted that the Board had breached the rights of the company in not putting it put on notice of the s. 5 referral.
21. The Board replied to the email on 5th February, 2015 and said that its jurisdiction was “spent”, and it has no power to review or alter its decision, and declined to comment further concerning the referral. On the same day the company wrote back to the Board with reference to s. 131 of the Act, and submitted that the decision was flawed having regard to the fact that an opportunity had not been afforded to the club to make a submission or observation on the referral. The Board was expressly advised in that email that the company would seek relief from the court to “uphold its rights” and it would seek costs and damages in those proceedings.
22. The Board replied two weeks later on 19th February, 2015, where again it said its jurisdiction was “spent”.
23. On 20th February, 2015 the company replied to the Board restating its concerns, and asserted that its “natural rights were seriously prejudiced” and that injunctive or other relief would be sought unless a “satisfactory response/proposal” was received from the Board within ten days. At that stage the applicant had 18 days within which to bring proceedings seeking judicial review of the decision.
24. Time expired on 10th March, 2015, and on that day, the company held a second extraordinary general meeting. Mr. Nevin in his affidavit says that at that meeting “it was agreed to obtain legal advice regarding a judicial review”, but I regard it as important that the minutes of the meeting exhibited in his affidavit show that a decision was made by the board of the company at that stage to “instruct our solicitors to judicially review decision of Board”, and not merely to take legal advice. Seven factors, some of them couched in terms resonant of the court’s jurisprudence in judicial review, were set out in the minutes as the basis on which those instructions were to be given to the solicitors.
25. On 11th March, 2015 another email was sent by the company to the Board notifying it that the company had instructed its legal advisors to initiate proceedings for judicial review.
26. On 24th March, 2015 the Board replied that it had nothing further to add to the correspondence.
27. Leave was granted on 27th March, 2015.
28. Between 29th January, 2015 and 16th March, 2015 correspondence was had between the company and Kilkenny County Council in broadly similar terms to that engaged in with the Board.
29. These proceedings were instituted 17 days outside the prescribed period, albeit this calculation takes the relevant date as being the date of the application for leave, and not the date some days later on which the motion was served. The jurisprudence of the courts would suggest that the relevant date is the date the of service of the notice of motion, but counsel for the Board accepts that in ease of the applicant the argument may be considered on the basis that the applicant was 17 days outside the prescribed period, and not longer.
The arguments
30. The applicant makes an application for an extension of the period within which to bring an application for judicial review in reliance on the powers of the court contained in s. 50(8) of the Act.
31. The applicant argues that it was a party particularly and specially affected by the decision but that the “time available to put its material basis for these proceedings together was too limited for the statutory period to suffice”. It says it was not until 5th February, 2015 that it received confirmation as to the “nature” of the decision, and only on 19th February, 2015 did it receive “a detailed explanation”. It is argued that the delay of the respondent in replying to its correspondence expeditiously was contrived to ensure that the applicant would miss the deadline set by section 50(6). He says the Board gave its “final word” on the matter after the deadline had expired.
32. In those circumstances it is argued that the delay was necessitated entirely by reason of having to do detailed preparatory work to establish the case, and to take advice with regard to the substantive findings and whether there were grounds of challenge.
33. The applicant contends that time began to run at the earliest on 5th February, 2015, the day the Board replied to the first email from the company and said that “its jurisdiction in the matter is spent”. The respondent says that from that date the applicants had 33 days to commence an application for judicial review, although the applicant says that the correct number of days is 34.
34. The respondent argues that time began to run when the decision of the Board was made on 14th January, 2015 and therefore the 8-week time limit expired on 10th March, 2015. The applicant contends that the correct date is either 29th January, 2015 which was the date when Mr. Nevin first heard of the decision, or the later date of 5th February, 2015, the date of the first letter from the Board to the company in which it said that its jurisdiction in the matter was spent.
35. The applicant argues that the Court should adopt an approach to the running of time by reference to “a date of knowledge” type test, and that such may be required to achieve justice in an individual case. The respondent argues that the time limit is clearly by statute made referable to the date of the decision under s. 50(6).
36. The Board also makes the point that a “date of knowledge” test is one that has been rejected in other areas of the law and the Supreme Court in particular in Hegarty v. O’Loughran [1991] I.R. 148 refused to consider that a test of “discoverability” was implicit in the Statute of Limitations Act, 1957. The legislature did indeed legislate in respect of certain classes of claims in the Statute of Limitations (Amendment) Act, 1991 and provided a “discoverability” test for the running of time for the class of action to which it applied.
37. There is no ambiguity in the simple terms of the legislation which would permit me to interpret it as suggesting that time began to run when an aggrieved or potentially aggrieved party came to know of the decision. Time is stated to run from the date the decision is made.
38. The particular facts show that the company did know of the making of the decision before the time limit expired. It is clear from the affidavit of Eoin Nevin, and in particular from the minutes of the meeting held at 5.30pm on the day of the chance encounter on 29th January, 2015 that the company became aware on that date that a decision had been made, adverse to the parachuting activity conducted by the company at the airstrip. The company was aware also of the date the decision was made as this is clearly set out in the minutes of the meeting. There is no doubt on my reading of the minutes, that the company was surprised that the Board had reached this decision, and Mr. Nevin’s evidence that the company was not put on notice of the s. 5 reference by Kilkenny County Council is not disputed. It seems that Kilkenny County Council by a letter of 6th May, 2014 had confirmed that planning enforcement would not issue in regard to the company’s use of the airfield. It is also clear that An Bord Pleanála knew that the company held a licence for use of the club. At its height, the minutes suggest that the company was, on 29th January, 2015, not quite clear “what this decision means for the club”, and the company determined to write to the planning authority and to An Bord Pleanála and address the fact that it had not been given any chance to make submissions, and that as a consequence its rights had been breached.
39. Thus it seems to me unequivocal that the company knew on 29th January, 2015 that a decision of the Board had been made which it regarded as having been made in breach of its right to be heard. There is nothing in the minutes or in Mr. Nevin’s affidavit that suggests to me that the company believed on 29th January, 2015 that the decision of the Board had crystallised with regard to the company’s use of the lands only on the date when the company became aware of the determination. It is clear from the email that the company’s complaint related to the approach of the Board which led up to its decision on 14th January, 2015.
40. Further, I consider that the applicant has shown me no basis on which I can come to the conclusion that the Board deliberately delayed its response to correspondence from the applicant in the knowledge that time would run, and that the approach of the Board was contrived in a way to protect its decision from challenge. These assertions are extraordinary and not based on any foundation. No authority has been advanced for the proposition that the Board ought to have identified to the applicant in the course of the correspondence in February, 2015, that the time for seeking judicial review was short and fast approaching its statutory limit. The applicant was under no legal disability. The minutes of its meeting and its correspondence with the Board show it had a degree of legal knowledge and within a few hours of coming to know of the decision, the company was in a position to articulate a complaint regarding the procedures adopted by the Board and that its rights to fair procedure had been infringed by the absence of notice.
41. I reject the argument by counsel that the applicant required to understand fully the substance of the decision before time ran against it. To put it another way, the applicant did not in my view need to engage engineering considerations before making a determination whether to challenge the decision of the Board by judicial review. The challenge now made is pleaded along classic judicial review grounds, namely that fair procedure was not afforded and that the Board wrongly disregarded the view of its inspector. While all of the grounds pleaded are not procedural, the language used by the company itself in its correspondence with the Board, and the disquiet expressed at the meeting held within hours of the decision having come to the attention of the company show an awareness of the pleaded frailty.
42. The applicant essentially asserts the proposition that it was not until it understood the basis of the decision, or had a clear picture of what the decision meant, that it could be required to formulate a response up to and including making a determination to apply for judicial review. That is not the basis on which the Oireachtas has provided for the running of time for judicial review under s.50. Time is linked expressly to the date of the decision.
43. Counsel for the applicant makes the point that had it been on notice of the referral it would have had the period between May and December, 2014 to obtain the necessary professional advice. It is argued in those circumstances that the discretion of the Court under s. 50 (8) must be exercised to take account of the fact that had it been afforded the rights for which it contends, it would have had have had sufficient technical knowledge and expert advice to formulate an approach to the application within the statutory limit.
44. The applicant calls in aid a decision of Hedigan J. in McCaughey Developments Limited v. Dundalk Town Council [2011] IEHC 193 in which a developer was informed by a local authority that an erroneous zoning of his land had been corrected, but where the erroneous zoning was retained by vote of the council two months later. The Court considered the relevant date of the decision to be the date when the developer was informed by the applicant of the second vote. Hedigan J. noted that the applicant moved immediately once he became aware of the second decision. I do not consider that the same can be said of the approach of the applicant in the present case, and the delay from 29th January, 2015 to the date nearly two months later is not explained, and the applicant cannot be said to have acted immediately or promptly.
45. The applicant also relies on the decision of McCarthy J. in Talbotgrange Homes Limited v. Laois County Council & Ors. [2009] IEHC 535, where he held that as soon as the applicants “actually became aware of the orders they had no need of additional information to move”.
46. I consider that the judgment in Talbotgrange Homes Limited v. Laois County Council & Ors is not of assistance to the applicant, and can be argued against its proposition and as McCarthy J. took the view that the applicant:
“Cannot be entitled to rely on its own ignorance of the making of the direction. In addition, when the applicant first became actually aware of the Ministerial direction on the 22nd March, 2007, it was still within time to issue proceedings. Notwithstanding this, it waited until the 1st June, 2007, to do so, a period in excess of two months from the time it first found out about the direction. It claims that it was forced to wait pending the arrival of the information from the Department of the second named respondent. I am unconvinced that it was necessary to wait until the receipt of this information given that the applicant knew that it was not notified or consulted prior to the making of either of the impugned orders, or at least to wait an entire month when so much time had elapsed. …”
47. Finally, the applicant relies on another judgment of Hedigan J., in Pearce v. Westmeath County Council [2012] IEHC 300 where a delay of 8 days outside the 8 week deadline was considered excusable. However, that decision was made on the basis that the High Court accepted that members of the public had been misled into believing that the decision had been made on a different date. The question there, was whether the decision of the County Council was an actionable decision or “merely an internal memo”. No evidence is before me in the present case that the applicant was in any way misled as to the making of the decision or its effect.
48. No explanation has been given by Mr. Nevin as to why the company continued to correspond with the Board after it had made it entirely clear as early as 5th February, 2015 that its jurisdiction was spent, and that it could not, and would not, engage any further. It could not have hoped in the light of that very clear statement to have persuaded the Board to reopen the matter. Mr. Nevin does not explain why once it received that letter the company did not take steps immediately to seek legal advice and assistance and to apply for judicial review. It is also clear that the applicant company was aware that an issue had arisen with regard to planning in 2014 and that the owner of the airstrip had attended meetings with Kilkenny County Council. The circumstances do not, in my view, point to the applicant being entirely in the dark as to certain concerns, to use a neutral word, that might have arisen with regard to its use of the lands.
Conclusion
49. The test that an applicant must meet in an application for an extension of the strict time limits under s. 50(6) of the Act is cumulative and mandatory. The Court shall not extend the time unless it is satisfied that both tests are met. The applicant has not persuaded me that the circumstances which resulted in the application for judicial review not being made until 27th March, 2015 were outside the control of the applicant. The applicant had knowledge, which it clearly articulated in correspondence with the respondent, of the matters in respect of which it complains. It had clear knowledge from the email of the Board of 5th February, 2015 that the Board’s jurisdiction was spent. The company has not explained in any convincing way why it chose to continue to engage in correspondence with the Board after it received that email. A threat of litigation was made on 5th February, 2015, and no explanation is given as to why, when the company had 34 days left to bring proceedings, it did not then move.
50. The running of time in judicial review is not based on a consideration of when an applicant became aware of the decision sought to be challenged, and in my view the legislation clearly links the running of time to the making of the decision. The company knew from its search on the website of the Board, at some time during the day on 29th January, 2015, that a decision which it regarded as flawed and serious for its ongoing land use had been made, and at that point in time it knew the date of the decision and the basis for it, which were transparent and obvious from the documents on the website.
51. The public policy interest in strict time limits in planning matters would not be furthered were a party who knew that his or her rights had arguably been breached, and who knew of a decision well within time to bring an application for judicial review, could seek to argue that time began to run only when it had formulated a decision to bring the challenge. The formulation of a decision to bring a challenge is in the normal way one that would be made on legal advice, but the date when legal advice is taken, considered, or decided to be adopted, is not and cannot be the date at which time begins to run, and to consider otherwise would be to ignore the very clear language of the subsection which fixes the time limit by reference to the date of the decision, and not either to the date of knowledge or the date when a party impacted by the decision became aware that rights might have been infringed, or the extent to which that person might be successful in bringing a judicial review.
52. What the applicant contends, it seems to me, is for a test which fixes the running of time with not merely the date of knowledge of the making of a decision, but the date at which an applicant, having taken legal advice, comes to a decision to take the risk of commencing the litigation. That assertion has no basis in the authorities.
53. Having regard to the fact that the test is cumulative, and that the applicant has in my view failed to satisfy me that it meets the second part of the test, I do not propose entering into a consideration of whether the applicant meets the first part of the test, whether there is good and sufficient reason for extending the time. However, I do note that the arguments advanced by the applicant with regard to this ground for the extension of time are focused on what is argued to be the frailty in the decision-making process, and not on whether there is good and sufficient reason to extend the time as such, and the applicant has made no argument or advanced no evidence that justifies an extension of time.
54. I consider that the applicant was in possession of all of the relevant facts and information at the latest on 5th February, 2015, or probably earlier on 29th January, 2015. It had control of all of the relevant factors at that stage and had sufficient information and knowledge to instruct solicitors to advise and to act on its behalf. As the Supreme Court said in S. v. Minister for Justice Equality & Law Reform [2002] 2 IR 163:
“Circumstances must exist to excuse such a delay and to enable the matter to be considered further.”
55. No excusing circumstances have been shown and I propose making an order refusing to enlarge the time for the bringing of this application.
Duffy v Clare County Council
[2016] IEHC 618
JUDGMENT of Max Barrett delivered on 8th November, 2016.
I. Background
1. On 19th February, 2015, Clare County Council received an application from the above-named Board of Management for permission to replace an existing septic tank serving Scoil Naomh Phádraig in O’Callaghan’s Mills, a village in County Clare. At all times thereafter, this application was available for public inspection at the Council’s offices and at an online address.
2. Pursuant to Article 29 of the Planning and Development Regulations 2001, as amended, Mr Duffy had the opportunity during the five-week period from 19th February, 2015, to 25th March, 2015, to make a submission or application to the planning authority in respect of the application aforesaid. Throughout this five-week period, no submission or observation was made by Mr Duffy about the application. Nor was any submission or observation received from anyone else about the planning application.
3. On 7th April, 2015, the Council received a letter dated 2nd April from Mr Duffy. Having regard to the contents of the letter, the Council considered it to be a submission/observation on the planning application and thus received out of time. This being so, the Council returned the letter to Mr Duffy. On 10th April, 2015, the Council decided to grant a conditional planning permission for Scoil Naomh Phádraig’s development.
4. On 9th June, 2015, Mr Duffy commenced the within proceedings by which he prays for an order of certiorari quashing the Council’s decision of 10th April, 2015.
5. At the outset of the hearing for leave, counsel for Scoil Naomh Phádraig contended that there was a significant issue arising as to the timing of the within leave application and that it might make sense to proceed with that aspect of matters first. With the agreement of the parties, the court therefore heard each of them, and Mr Duffy again in reply, as to the issue of the timing of the leave application only. The court then adjourned the proceedings until it returned with its findings on the issue of time. As it happens, the court has concluded that the leave application is out of time and cannot proceed further.
II. Summary Chronology
6. Given the extent to which this judgment focuses on the issue of time, it is helpful to provide a summary chronology of some key dates arising:
06.02.15. Newspaper Notice concerning proposed development.
17.02.15. Site Notice erected.
19.02.15. County Council receives planning application.
20.02.15. Application Validated and Acknowledgement Sent.
13.03.15. Site Inspection by County Council.
25.03.15. Expiry of Timeframe for Submissions/Observations.
07.04.15. Letter of 2nd April received by Council and returned as out-of-time.
10.04.15. Respondent makes decision to grant conditional planning permission.
11.05.15. Planning permission granted.
09.06.15. Applicant commences proceedings.
III. The Timing of the Within Application
7. So far as relevant to the within proceedings, s.50 of the Planning and Development Act 2000, as amended by the Planning and Development (Strategic Infrastructure) Act 2006, provides as follows:
“(2) A person shall not question the validity of any decision made, or other act done by –
(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under this Act…
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts…(the ‘Order’)….
(6) Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board, as appropriate…
(8) The High Court may extend the period provided for in subsection (6)…within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that— (a) there is good and sufficient reason for doing so, and (b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.”
8. In the judicial review that will follow if the leave now sought is granted, Mr Duffy seeks to challenge the validity of the following decisions of the Council:
(1) that the planning application made was valid;
This decision was made on 20th February, 2015. So the relevant eight-week period expired on 16th April, 2015.
(2) that the letter of 2nd April, 2015 was a submission/observation on the planning application, and out of time;
(3) that the letter of 2nd April, 2015 was not the receipt of further information within the meaning of Article 35 of the Planning and Development Regulations;
(4) not to consider whether the contents of the letter of 2nd April, 2015, contained significant additional data;
These decisions were made on 7th April, 2015. So the relevant eight-week period expired on 1st June, 2015.
(5) the decision to grant planning permission.
This decision was taken on 10th April, 2015. So the relevant eight-week period expired on 4th June, 2015.
9. Mr Duffy, an experienced lay-litigant who has previously been involved in separate planning litigation, commenced the within proceedings on 9th June, 2015, and thus they were commenced out of time. Mr Duffy has not identified any good reason why the eight-week period should be extended by the court. Nor is there any suggestion that the failure to make the application on time was outside Mr Duffy’s control. So far as the decisions previous to (5) are concerned, Mr Duffy appears to the court to be and represent an exemplum classicum of that litigant referred to by Murray C.J. in Harding v. Cork County Council [2008] 4 IR 318, 340, who “sit[s] back and let[s] the process proceed at length until it reaches its final conclusion and then seek[s] to impugn the final decision where it would have been properly open to such a person to seek a remedy at an earlier stage, such as by way of mandamus”.
IV. The Three-Day Issue
10. Mr Duffy claims that just prior to the hearing of the within application, he realised that there had been a contravention of the effective requirement under reg.31 of the Planning and Development Regulations 2001, as amended, that following on a decision to grant permission, the actual permission must not issue sooner than three working days after the expiration of the period for the making of an appeal to An Bord Pleanála. Here, the Council made the decision to grant the permission on 10th April, 2015. The four-week period for bringing an appeal to An Bord Pleanála ended on 8th May, 2015 (a Friday), and the permission issued on 11th May, 2015 (the following Monday), so less than three working-days later. Notification requirements are clearly of considerable importance, given the significance attached by the planning code to public participation in the planning process. That said, it is difficult to see that in a context where no appeal was ever brought or sought to be brought to An BordPleanála and no prejudice of any nature has arisen as a result of the early issuance of the planning permission, the breach of reg.31 identified falls to be ascribed especial significance.
11. No mention of the line of complaint concerning reg.31 appears in Mr Duffy’s pleadings, despite the fact that all of the relevant facts were available to him before he brought the within application. To allow Mr Duffy to amend his pleadings at this time so that he could now plead a new but patently out-of-time complaint in order to breathe fresh life into proceedings that must otherwise fail as out-of-time would be greatly to prejudice the rights of the other parties to these proceedings at the time of the amendment and thus to contravene a long line of case-law commencing with the 19th century decision in Weldon v. Neal (1887) 19 QBD 394, echoed in the prominent 20th century decision of the Supreme Court in Bank of Ireland v. Connell [1942] I.R. 1, and of continuing vitality in the 21st.
V. Conclusion
12. For the reasons identified above, the court concludes that (1) the within application is out-of-time, and (2) no amendment of the pleadings should be allowed at this time.
McDonnell v An Bord Pleanála
2017] IEHC 366
Judgment of Mr. Justice Robert Haughton delivered the 31st day of May, 2017.
1. This judgment deals –
(a) with the form of the order that the court should make consequent on its rulings made on 16 May, 2017 and 17 May, 2017, and
(b) with the applicant’s application for a certificate of leave to appeal under section 50A(7) of the Planning and Development Act, 2000 (as amended) (“the 2000 Act”).
The second question involves preliminary consideration of whether certification is required at all. It should be noted that the applicant has at all stages appeared in person.
2. It is necessary first to summarise the history of the proceedings thus far:
(i) The impugned decision of the respondent to grant approval for a windfarm at Oweninny, Bellacorick, Co. Mayo, is dated 2 June, 2016.
(ii) On 27 July, 2016, just within the 8 week period allowed by s.50(6) for seeking leave for judicial review of the Board’s decision, the applicant lodged papers in the Central Office.
(iii) For reasons considered in my earlier rulings the applicant did not make his application for leave until he moved his application ex parte before Humphreys J. on 21 November, 2016. The matter was adjourned to enable the applicant to swear a further affidavit to exhibit a copy of the impugned decision, and to deal with delay, both of which were addressed in a second affidavit sworn by the applicant on 12 December, 2016.
(iv) By order dated 12 December, 2016, Humphreys J. granted leave to apply for the reliefs set forth in paragraph D1 of the Statement of Grounds (certiorari) on the grounds set forth in E1 and E2, but refused leave in respect of any other relief or on any other grounds viz. grounds E3 and E4.
The said order did not extend time for seeking leave, although the reasons for delay were addressed in the applicant’s second affidavit.
(v) By order of McGovern J. dated 19 December, 2016, on the motion of the notice party the proceedings were admitted to the Commercial List for hearing.
(vi) In its Statement of Opposition the respondent raised a preliminary objection that the ex parte application for leave was out of time because it was not ‘made’ within 8 weeks, and pleaded that the applicant had not sought or been granted an extension of time, and that the reasons proffered were not ‘good or sufficient’ or outside his control within the meaning of s.50(8) of the Act of 2000. Similar objection was taken by the Notice Party in its Statement of Opposition. In the interests of expedition, the notice party chose to pursue these objections at full hearing rather than bring separate motions seeking to set aside the leave order.
(vii) The matter came on for full hearing before me on Tuesday, 16 May 2017. As the respondent and notice party were pursuing their preliminary objections, I considered that the hearing would be best managed by first determining whether the leave application was made on time (see Transcript day 1 pgs.4-6).
(viii) Having heard argument on that issue I delivered my ex tempore ruling on 16 May, 2017 (the “first ruling”). This is recorded in the Transcript day 1, pgs. 24-37. In my first ruling I respectfully differ from the approach taken by Humphreys J. that is evident from his decisions in Burke v. Minister for Justice Equality and Law Reform [2015] IEHC 614 and McCreesh v. An Bord Pleanála [2016] IEHC 394 viz. that when the papers in an ex parte application are lodged in the Central Office that stops time running. I determined that the ex parte application was not “made” for the purposes of section 50A(2) of the 2000 Act until the matter was moved in court. Accordingly, I found that the filing of the ex parte leave papers on 27 July, 2016, did not commence the proceedings, and the application was not “made” until the matter was moved before Humphreys J. on 21 November, 2016 (see Transcript day 1 p.37). Having so found I then stated: –
“that brings the court on to the second issue, which is whether it should extend time.”
(ix) The court then proceeded to consider the question of extension of time. In addition to the affidavit evidence before the court the applicant was permitted to give oral evidence, on which he was cross examined, and I then heard further oral argument. I also had the benefit of full pleadings and the parties written submissions. In his oral submissions, counsel for the notice party made it clear to the court that a relevant factor that the court should consider in deciding this issue was the merits of the case, and the notice party wished to urge upon the court that no arguable case had been made out. This submission was based on commonly cited dicta of Clarke J. in Kelly v Leitrim County Council [2005] 2 IR 404 at pgs. 413, 415 and 423. Accordingly, counsel for the notice party contended that the grounds raised by the applicant were not arguable, and the applicant had an opportunity to and did reply to that contention.
(x) Having reserved my decision overnight, I delivered an ex tempore judgment on 17 May, 2017 – see Transcript day 2 pgs. 4-37 (the “second ruling”). I considered the application in the context of the non-exhaustive factors (a) – (f) identified by Clarke J. in Kelly v Leitrim County Council at pgs. 412 – 413 of his judgment, factor (f) being “the merits of the case”. In effect, I found that while I would have been disposed to extend time for seeking leave to seek judicial review on consideration of factors (a) – (e), on consideration of the merits of the case under factor (f) I was led to the conclusion that I should not extend time. At page 26 of the Transcript I state –
“… I find that the Applicants case on grounds (e)(i) and (ii) is not arguable and is bound to fail for a number of reasons which it is appropriate to set out.”
Thereafter I give some six reasons related to the merits of the case that support this conclusion and I end on page 37 by stating –
“I must, therefore, refuse the application to extend time for pursuing grounds (e) (i) and (ii) and the proceedings must therefore be dismissed.”
(xi) As no party sought their costs I determined that there should be ‘no order as to costs’.
FORM OF ORDER
3. It is evident from the foregoing that I decided firstly that the ex parte application for leave to seek judicial review was not “made” in time. Logically it follows that the order granting leave should be set aside, because it is not apparent on the face of that order that Humphreys J. considered or adjudicated on the question of whether to extend time for making the application. Secondly in the context of deciding whether to extend time I addressed, inter alia, the merits of the case and concluded that there was no arguable case. Accordingly, the operative part of the order should read as follows: –
THE COURT FINDS AND DETERMINES that the application for leave to apply for judicial review was not made within the period prescribed in section 50(6) of the Planning and Development Act 2000 and accordingly was made out of time;
IT IS ORDERED that, the court having determined that the within Application does not disclose arguable grounds for the grant of the relief claimed, the court refuses to extend the time having regard to section 50(8) of the Planning and Development Act 2000
AND IT IS FURTHER ORDERED that the order of Mr Justice Humphreys made herein on the 12th day of December 2016, to the extent only that it granted leave to the applicant to seek judicial review, be set aside
AND IT IS FURTHER ORDERED that the relief sought by the Applicant as set out in paragraph D(1) of the Statement of Grounds is refused and the Applicant’s proceedings be dismissed.
And on hearing the said Applicant and Counsel for the Respondent and Counsel for the Notice Party in respect of costs
No order as to costs.
CERTIFICATION – IS IT REQUIRED?
4. This question is not straightforward. Counsel for the respondent presented legal authority bearing on the issue, but remained neutral as to whether it is or is not required. Counsel for the notice party argued that certification was required. The applicant did not address this issue, but did address the court and seek certification.
5. Section 50A(7) provides –
“(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies that it’s decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal].”
6. In A. B. v. Minister for Justice, Equality and Law Reform [2002] 1 I R 296 the Supreme Court, in the context of a very similarly worded provision in section 5(3)(a) “The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.” of the Illegal Immigrants Trafficking Act 2000, addressed the question of whether the applicants required leave to appeal to the Supreme Court from orders of the High Court refusing them an extension of time within which to seek judicial review of a deportation order and a refusal of refugee status respectively. At the outset, two points should be noted about this decision. First, the time limit for seeking judicial review in such cases under s.5(2)(a) of that Act was only 14 days. Secondly, it does not appear from the report that the High Court made any determination of the merits of the cases in refusing to extend time.
It was held by the Supreme Court, in allowing the appeals to be heard, that the issues involved on the application for an extension of time might be substantially different from those involved in the application for leave, and under the express provisions of the Illegal Immigrants Trafficking Act 2000 there was no ouster of the right of appeal from a refusal to extend time. Critically it was held that the refusal of an extension of time by the High Court was not a “determination” of an application for leave within the meaning of s. 5(3)(a).
The starting point for the court’s consideration was Article 34.4.3 of the Constitution which (then) provided –
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
Since this decision the Twenty Third Amendment to the Constitution has provided for the establishment of the Court of Appeal, and under the new Article 34.4.3 it is now that court that has appellate jurisdiction from all judgments of the High Court.
7. Keane CJ. stated at page 301: –
“The critical provision is, however, that contained in subs.(3)(a). I do not think that I do any injustice to the argument advanced on behalf of the applicants in saying that it rests essentially on the proposition that the “determination” referred to in that subparagraph is a final judicial conclusion, after an examination of the merits, of either an application for leave to apply for judicial review or the application for judicial review itself. An application for an order extending the period within which the application is to be made, on the other hand, does not necessarily involve any examination of the merits of the application and, accordingly, cannot be regarded as a “determination” of the application. Where the court decides that there is good and sufficient reason for extending the time, it must necessarily proceed to a second and, as was urged, separate or discrete application, i.e. as to whether leave should be granted and it was only the second such adjudication which could be said to be the determination of the application for leave within the meaning of s.5(3)(a).”
8. Geoghegan J., with whose judgment Denham, McGuinness and Fennelly JJ. agreed, stated at p.319:
“While it is true that this court has recently held in G.K. v. Minister for Justice [2002] 1 ILRM 401, that on an application for extension of time, the court is entitled to have regard to the fact that the merits of the application might be unstateable or, on the other hand, particularly strong, in many instances the issues on the application for extension of time would be quite different from the issues on the application for leave itself. All sorts of issues can arise on the application for the extension of time, such as non-delivery of letters, delay by the applicant’s solicitor, difficulties in language communication etc. which might not turn out to be relevant on the application for leave.
In this connection, it is irrelevant in my view whether the application for an extension of time is brought by an independent motion on notice in advance of an application for leave or whether the extension of time is requested in a combined motion on notice seeking the extension of time and then, if granted, leave for judicial review. In either event the issues involved on the application for extension of time may be substantially different from those involved in the application for leave. Under the express terms of the Act the restrictions on the right of appeal to the Supreme Court apply to the application for leave or the application for judicial review and as a matter of ordinary grammar and syntax, I find it difficult to see how it could be argued that there is an ouster of the right of appeal from a refusal to extend time. If the Oireachtas had intended that, it should have said so. Until the extension is granted there is no application for leave in existence. But even if as a matter of grammar and syntax, such an argument could be made, there is certainly not a clear and unambiguous ouster of the right of appeal which is required under the constitutional jurisprudence referred to earlier in this judgment.”
9. In agreeing with Geoghegan J, Fennelly J stated at p.324:
“The fact that the extension of time application is, in principle, distinct, is illustrated by the fact that the court accepted in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360, as Keane C.J. noted that a separate application could be made for an extension within the fourteen day period. This point is further underscored in the judgment of Geoghegan J., where he points to the distinct character of the matters which will need to be considered on such an application for an extension of time. This view gains further support from the remark of Hardiman J. that this “is a special statutory jurisdiction which is in [his] view sui generis ” (G.K. v. Minister for Justice [2002] 1 ILRM 401 at p. 404). There is a further decisive consideration. As Geoghegan J. also points out, where the respondent objects to an order which is made granting an extension, there is nothing to prevent that party from appealing such an order. Section 5(3)(a) does not apply. The reason is that the order granting the extension of time does not determine whether leave will be granted. Some troublesome anomalies flow from treating the refusal of an extension of time as a determination of an application for leave. Firstly, it is clear, that an order granting an extension is not to be treated as amounting to the determination of an application. It seems equally clear that an order refusing an extension will be treated as not determining the application for leave, if the extension application is made within the fourteen days. On the other hand, an order refusing leave after the expiry of the time will be treated as determining the application for leave. In my view, that interpretation of the section is both inconsistent and discriminatory. It is not an acceptable approach to the interpretation of a provision claimed to limit the right of an affected person to access to the courts.”
10. A.B. was followed and applied quite recently by the Supreme Court in A. v. Minister for Justice and Equality [2013] IESC 18. The applicant brought a motion seeking leave to seek judicial review of a decision of the Refugee Applications Commissioner somewhat outside the 14 day period. That application was adjourned, and was never in fact heard. During the period of adjournment, the respondent brought an application by notice of motion seeking an order dismissing the proceedings on the grounds that they were frivolous/vexatious or doomed to fail and an abuse of the process. The court considered the grounds, and noted that the applicant had a pending appeal to the refugee appeals tribunal, and acceded to the motion and dismissed the proceedings. The appellant appealed against that judgement and order, and the respondents brought a motion before the Supreme Court seeking to have the appeal dismissed on the basis that the appellant required a certificate of leave to appeal. The court considered that the net point was whether the High Court order dismissing the proceedings was a “determination of the High Court of an application for leave to apply for judicial review as aforesaid”. At paragraph 24 of her judgement Denham CJ. states –
“24. The facts of the case, as set out earlier, that the appellant’s application for leave to apply for judicial review was not heard by the High Court. What the High Court heard was the motion brought by the respondent seeking an order that the appellant’s proceedings be dismissed on the grounds that they were frivolous, vexatious and/or doomed to failure. Thus, to decide if the decision of the High Court on that motion was a “determination” under s.5(3)(a) requires an analysis of the law and facts.”
Denham CJ. then referred to the decision in A.B., quoting with approval from the judgement of Geoghegan J. at page 319, referred to above, where he states that the issues involved in the application for extension of time “may be substantially different from those involved in the application for leave” and where he found “it difficult to see how it could be argued that there is an ouster of the right of appeal from a refusal to extend time”. Denham CJ. then stated: –
“27. I would apply that analysis to this case. The issues involved in a motion to dismiss may be substantially different from those involved in an application for leave to apply for judicial review. I agree and apply the reasoning of Geoghegan J. that the wording of s. 5(3)(a) does not clearly ouster an appeal from such a motion. Further, even if such an argument could be made, there is certainly not a clear and unambiguous ouster of the right of appeal, such clear language being necessary under the constitutional jurisprudence.”
11. I was also referred to my own decision in Sweetman v An Bord Pleanála and others [2017] IEHC 133, but this does not assist primarily because in that case the jurisprudence outlined above was not raised in argument or considered by the court.
12. In highlighting the above quoted extracts from the decisions in A.B. and A., counsel for the notice party argued that the court should distinguish the present case from one in which a decision to refuse an extension of time does not have regard to the merits of the application. Keane CJ. refers to a “determination” as being a judicial determination where there has been an examination of the merits of the case. Geoghegan J. in referring to the judgement of Hardiman J. in G.K. acknowledges the entitlement of the court considering an extension of time to have regard to the merits of the case where they are “unstateable”, but emphasises that in many instances the issues on an extension application will be quite different. Fennelly J. also emphasises that the extension application does not decide whether or not leave will be granted – that is a further determination that is made if an extension is granted.
13. Thus counsel urged the court to have regard to the fact that in the present case statements of opposition with verifying affidavits were filed, the pleadings were effectively closed, and the matter came on for hearing before this court by way of full trial. Furthermore, all parties filed written submissions dealing with the merits of the applicant’s application for judicial review (as well as the issue of delay and extension of time). More particularly counsel urged that in determining the extension of time application, the court, on the invitation of the notice party, had regard to the merits of the application. It did so with the benefit of full pleadings, replying affidavits and the submissions of all parties. Having heard the extension application the court refused an extension of time purely on the basis that on the merits, the application for judicial review was not arguable.
14. I believe these arguments are well made. It is notable that when the Supreme Court delivered its decision in A.B. Hardiman J had only recently given his judgment in G.K. noting that “…it is not an excessive burden to require the demonstration of an arguable case” where an extension of time is sought. The Supreme Court in A.B. did not take issue with that proposition, and it was applied by McGuiness J. in C.S. v. Minister for Justice [2004] IESC 44. Some years later the principle achieved prominence in the field of planning judicial review following the decision of Clarke J in Kelly v Leitrim County Council – see particularly pages 413-415, which were relied upon in my second ruling. The practice of having regard to the merits of the case in reaching a decision on whether to extend time has grown over time and is now a regular feature in arguments raised by respondents opposing a time extension.
15. There can be no doubt that in this case, on the urging of the notice party, the court expressly had regard to the merits, or lack thereof. Moreover, this happened in the course of argument and the applicant was afforded the opportunity to and did address the court specifically on the notice party’s submissions that the grounds pleaded by the applicant were not arguable. This is evident from the transcripts and is reflected in the order that will now be perfected stating –
IT IS ORDERED that, the court having determined that the within Application does not disclose arguable grounds for the grant of the relief claimed, the court refuses to extend the time having regard to section 50(8) of the Planning and Development Act 2000.
This reflects the true position, namely that this court did not refuse to extend time based on any time considerations, but did so solely on the basis that on fuller consideration of the relevant grounds with the benefit of full pleadings, replying affidavits and submissions, those grounds were not arguable. Indeed, had the grounds been arguable I would have been disposed to have extended time. This is apparent from those parts of my second ruling in which I accepted the applicant’s evidence and found that he had, inadvertently, been misled as to when he should ‘move’ the ex parte application, and that he had in all other respects demonstrated good and sufficient reason for extending time by showing circumstances that were effectively beyond his control. The only reason time was not extended was because the two grounds pursued were not arguable.
16. However a distinction must be drawn between my first ruling, that the ex parte application was made out of time, and the second ruling refusing to extend time. In respect of the first ruling there was no consideration of the merits of the application. It was a separate and distinct matter that was dealt with effectively in a preliminary module – with narrow facts and focussed argument upon which the basis for challenging the Board’s decision had no bearing whatsoever. It was properly described as a preliminary matter. It clearly could not be described as a “determination” of the leave application because it concerned whether or not such an application had been “made” at all within the meaning of s.50(6) of the 2000 Act. A fortiori it was not a “determination” of the judicial review. In respect, therefore, of the first ruling it must be concluded that s.50A(7) has no application and the requirement for certification does not apply It is worth noting that the court enquired of the applicant as to whether he wished to raise any point of law as to the correctness or otherwise of the first ruling. He indicated his belief that the jurisprudence cited by counsel for the respondent and notice party “…led me to conclude that your interpretation of the law is probably the correct one, judge.” (Transcript Day 3 p.56)..
17. However it does apply to the second ruling, and it is necessary to consider whether the applicant has raised any point law of exceptional public importance in respect of which it is desirable in the public interest that the court should certify for appeal.
POINTS OF LAW FOR CERTIFICATION
18. I note that in advance of this hearing the respondent’s solicitors wrote to the applicant advising him of s.50A(7) and furnishing him with a copy of the judgement of McMenamin J. in the Glancre case to which I shall refer shortly. The applicant’s submissions were largely contained in a written statement which he read out to the court and which appears in the Transcript for day 3 pages 47-55. Unfortunately, the applicant did not formulate any specific points of law in respect of which he sought certification and the court is left with the task of trying to discern possible points of law from his address.
19. In considering these the court applies the test under s.50A(7) that the point of law must be of “exceptional public importance” and separately that it must be desirable in the public interest that an appeal be taken. The court also applies the principles summarised by McMenamin J in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250: –
“I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.
1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.
2. The jurisdiction to certify such a case must be exercised sparingly.
3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.
4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).
5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.
6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).
7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.
8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.
9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”
I would observe that point 4 is particularly relevant. As a matter of logic, it is more difficult for the applicant to persuade the court that there could be any point of law of exceptional public importance arising out of the decision where the grounds raised have already been held not to be arguable.
20. The applicant argues that the court has misunderstood the significant role of “capacity factor” in the context of this particular planning application, its relationship to policy objectives of the State and its description of unit production in the context of wind farms. He says that in this planning application capacity factor replaced “the very detailed windspeed information normally included in wind farm applications”, and that there was a deficit of wind speed information. He argues that this is all that he had to work with and that it formed the basis of the “required environmental calculations, for example carbon abatement”.
21. This comes back to the applicant’s core complaint that the capacity factor was much greater than represented by the developer and that “the price tag” that the developer will pay for this development in terms of community benefit contribution is far too low.
22. In my second ruling I dealt with this by reference to the material before the board which included the EIS, the applicant’s submissions on capacity factor and the evidence at the oral hearing, and the Inspectors main report and conclusions which were accepted by the board. As I point out, the case law establishes that the adequacy of an EIS is a matter for the planning authority. That case law at least in relation to planning decisions, does not stand in any state of uncertainty, nor does the applicant suggest or try to identify any uncertainty. This therefore does not give rise to any point of law that the court should certify.
23. In his address the applicant then returns to his complaint that the developer used a 33% capacity factor which he characterised as a “lie” based on 2002 information and “using very dated technology”, and suggests that the developer was trying to mislead An Bord Pleanála and court. He expresses the view that “the planning system as it stands is a blaggard’s charter” and develops this theme with similarly colourful language in relation to the law. His end point is that this has led to the grant of permission without a community benefit contribution that appropriately compensates the local community. He returns to this theme later in his address when asserting that there should be ‘public confidence in the planning system” and that developers should not be “free to tell us whatever comes into their head when it comes to non-environmental or economic information”.
24. The applicants broadside attack on the planning system is really a generalised attack on the 2000 Act and regulations made thereunder, and as such is a complaint about the planning policy and legislation that is a matter for the Oireachtas. Moreover, his complaint is so lacking in specificity that it does not give rise to a point of law for certification. Further on in his address the applicant narrows this down to criticism of the court’s limited role in a system of judicial review that does not extend to reviewing the content of decisions other than in accordance with the test set out in O’Keeffe. As I have already stated the jurisprudence in this regard is well established.
25. Next the applicant argues that “economics are as much part of the human environment as the electromagnetic field, noise, shadow, flicker or gravity for that matter… Thus, it seems to me that when An Bord Pleanála comes to assess the impacts, direct and indirect on human beings, economic factors should be fully considered.” The difficulty is that as a matter of fact the board had considered the planning application, submissions, and material within the Inspector’s main report, bearing on the issue of the environmental effect on the community, and community benefit contribution to compensate the local community. It must also be presumed that board took into account the Inspector’s recommendations based on the wind farm capturing “a reasonable or better wind resource” than 33% capacity factor, and the Inspectors view that a community contribution of €2500 per installed megawatt per annum would be appropriate. The applicants point therefore does not arise as a point of law. It seems to me that his point is really directed at the merits of the decision. As I’ve already said it also seems to me that his focus on the capacity factor is misplaced insofar as the community benefit contribution is or should be based on actual output measured in terms of megawatts.
26. The applicant has not satisfied me that there are any points of law of exceptional public importance in respect of which I should grant a certificate and accordingly I refuse his application.
Morris v An Bord Pleanála
[2017] IEHC 354
JUDGMENT of Mr Justice Max Barrett delivered on 1st June, 2017.
I. Introduction
1. Glenkerrin Homes applied for planning permission to Fingal County Council on 4th August, 2015. That application related to lands which included lands not in the ownership of the developer, a not unusual scenario that was referred to in the application materials (which were accompanied by the requisite letters of consent from the relevant land-owners, being Fingal County Council and Dublin City Council). Various submissions were made as part of the standard planning application process. Fingal County Council made its decision to grant planning permission on 22nd January, 2016. This was appealed to An Bord Pleanála by the developer (a first-party appeal) and by various third parties, including Mr Morris. An Bord Pleanála appointed an inspector who prepared a report dated 3rd June, 2016. An Bord Pleanála then made its decision on 20th June, 2016. The said decision granted permission to Glenkerrin Homes for a mixed-use development on lands at Howth Road, Howth, comprising 200 residential units (including houses and apartments), as well as commercial units, a crèche and a community centre with associated works and developments, including the prior demolition of existing on-site structures.
2. Mr Morris has commenced judicial review proceedings against An Bord Pleanála in relation to the making of the above decision by the Board. Separately, Mr Morris has issued a plenary summons seeking mandatory injunctive relief against Glenkerrin Homes and Messrs McAteer and McCann (as receivers) and a later notice of motion seeking interlocutory mandatory injunctive relief. The nature of the injunctive relief sought in both instances would effectively require a clean-up of a site in the ownership of Glenkerrin Homes and the demolition of certain properties thereon.
3. Mr Morris appeared in person, argued his points well, and was notably succinct in his arguments and courteous in his treatment of both his opponents and the court; regrettably for him, however, the court was coerced as a matter of law to find against him on all points in both proceedings. The court indicated on the hearing-date that it would return at a later date with written reasons for its conclusions; these are provided below.
II. The Judicial Review Proceedings
i. Time.
4. Strict time limits apply when it comes to commencing judicial review proceedings in the planning context and require to be strictly observed. That this should be so is not because the Oireachtas has unthinkingly sought to aid developers and hinder objectors but rather because our elected lawmakers have recognised that court involvement in the planning process, though it cannot altogether be excluded, brings additional expense and delay to the expeditious completion of duly authorised developments, and thus its availability as a means of recourse ought to be curtailed in time. As Kearns J., giving judgment for the Supreme Court in Harding v. Cork County Council [2008] 4 IR 318, 345 observed:
“There is an obvious public policy consideration driving this statutory restrictive code. Where court proceedings are permitted to be brought, they may have amongst their outcomes not merely the quashing or upholding of decisions of planning authorities but also the undesirable consequences of expense and delay for all concerned in the development project as the court process works its way to resolution. The [Planning and Development] Act of 2000 may thus be seen as underscoring the public and community interest in having duly authorised development projects completed as expeditiously as possible.”
5. Similar sentiments appear in the judgment of Finlay C.J., in KSK Enterprises Ltd v. An Bord Pleanála [1994] 2 IR 128, when addressing an earlier incarnation of the current scheme of planning law. Further observations as to the strict time limits arising are to be found, for example, in Linehan v. Cork County Council [2008] IEHC 76, MacMahon v. An Bord Pleanála [2010] IEHC 431, and, more recently, in South West Regional Shopping Centre v. An Bord Pleanála [2016] IEHC 84.
6. While a natural human sympathy arises when it comes to the application of time periods which see a person foreclosed from proceeding with an application that he strongly believes in, as Mr Morris clearly does, the court must, of course, do as the law requires. And, unfortunately, Mr Morris hits a very real issue when it comes to the timelines applicable in the within proceedings. It helps to recite a brief chronology of the relevant events before turning to the applicable law:
20.06.2016. An Bord Pleanála makes its impugned decision.
24.06.2016 Mr Morris writes to An Bord Pleanála stating that he “is now proceeding with an ex parte application to the High Court for leave to seek judicial review”.
08.08.2016 It appears that Mr Morris appeared before the vacation judge and was given permission to return on 10.08.2016 to make an ex parte application to seek leave for judicial review.
09.08.2016 Statement of Grounds and Affidavit filed in Central Office. The statement of grounds is effectively blank. The affidavit states, inter alia, that “the matter is not urgent” and that, in light of the summer vacation Mr Morris was seeking that the “entire case be immediately adjourned until commencement of the new term”. Significantly, on his own averments, Mr Morris was not seeking to move the application for leave but was expressly seeking an adjournment.
10.08.2016 It appears that the application was adjourned on this date to 10th October, 2016. Mr Morris has since averred in an affidavit of 7th December, 2016, that the court, on 10th August, 2016, extended time for seeking leave until 10th October, 2016. However, there is no record of any order extending time. (Moreover, the court notes that any such order could only have been granted in accordance with s.50(8) of the Planning and Development Act 2000, as amended, and (a) there is no evidence in any affidavit directed towards satisfying that provision, and (b) if such an order had been made, it would have been open to An Bord Pleanála to seek to set it aside, though again there is no record of such order having been made).
06.10.2016 Further affidavit filed by Mr Morris; it appears that there was also a second statement of grounds to hand around this time and it may be that this statement was before the High Court on 10th October and thereafter.
10.10.2016 Mr Morris appears in court and the matter is adjourned to 7th November, 2016.
07.11.2016 Leave for judicial review is granted. Leave is given to amend the statement of grounds (it seems the second statement of grounds).
15.11.2016 Statement of Grounds now relied upon is filed with supporting affidavit.
7. The circumstances in which the adjournment of 10th August occurred present an unfortunate difficulty for Mr Morris. In many cases, parties strapped for time in moving a leave application in the planning law context will file their papers, then open the application in short form and seek to have the application adjourned to some future time. Critically, however, this process only works where the applicant has, within eight weeks, filed the papers outlining the grounds that it wishes to pursue. So, for example, in Casey v. An Bord Pleanála (Unreported, Murphy J., 14th October, 2003), the court had to consider whether an application for leave was out of time in circumstances where (a) having filed a statement of grounds and supporting affidavit one day out of time, (b) the applicant then filed three further significant affidavits one month later. Murphy J. made clear, at 16, that “All the facts relied on [for the application] must be before the Court within the time limit prescribed unless otherwise allowed by the Court.” In the within proceedings, nothing of substance was filed in the eight-week period. This had the result that, as of 10.08.2016, there was nothing to adjourn, save the application as it then stood. If Mr Morris wished (and he clearly wished) to introduce new grounds and affidavits to substantiate his application, then it fell to him to make a suitable application under s.50(8). This, regrettably for him, he did not do. For the reasons aforesaid, the court has concluded that Mr Morris is out of time to pursue the grounds of complaint now being pursued: no extension of time has ever been sought or granted for those grounds to be pursued outside the eight-week period.
8. To the extent that reliance is sought to be placed by Mr Morris (if it is sought to be placed; it was not clear that it was) on the decision in McCreesh v. An Bord Pleanála [2016] IEHC 394, the court can side-step the legal difficulties which counsel contended to arise in respect of that decision because, even post-McCreesh, it remains the case that, in an application such as that now presenting, a full case must be before the High Court within eight weeks. A blank statement of grounds with no supporting affidavit which is then subject to major amendment without any formal extension of time being sought or granted under s.50(8) of the Act of 2000, that being the situation which pertains here, does not pass muster in this regard.
ii. Grounds of Objection Considered.
9. Notwithstanding the conclusion just reached, the court proceeds, if only from a desire for completeness and to meet the demands of courtesy, to consider briefly such grounds of objection as were canvassed in the within application.
a. Land Not Owned by Applicant
10. Mr Morris appears to take objection to the fact that lands owned by Fingal County Council and Dublin City Council were the subject of the application made by Glenkerrin Homes. However, there is no legal difficulty with a person applying for planning permission over land not owned by that person, provided that the person who does own the land consents to the making of the relevant planning application. Thus, under Art. 22(1) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (as introduced by Art. 8 of the Planning and Development Regulations 2006 (S.I. No. 685 of 2006)), “A planning application under section 34 of the Act shall be in the form set out at Form No. 2 of Schedule 3, or a form substantially to the like effect”, and under Art. 22(2) “A planning application referred to in sub-article (1) shall be accompanied by…(g) where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make application.” Why would the architects of the planning regime introduce such a requirement? Perhaps for two reasons. First, to satisfy the requirements of the common law, as identified, for example, in Frascati Estates v. Walker [1975] IR 177 and Keane v. An Bord Pleanála [1998] 2 ILRM 241. Second, at a more functional level, for the reason identified by Herbert J. in McCallig v. An Bord Pleanála [2013] IEHC 60, para. 67, being “to enable the planning authority to be satisfied before considering an application for planning permission that the applicant is either the legal owner of all the land or has written consent from the owner of every part of the land subject to the application”.
11. In the within case, the application materials were accompanied by the requisite letters of consent from the relevant land-owners (being Fingal County Council and Dublin City Council). It was suggested that because the consent from Fingal County Council was headed “Without Prejudice” that this somehow tainted the consent or rendered it less than a consent. In point of fact, there has never been any doubt that Fingal County Council was satisfied to consent, gave its consent, and, in affidavit evidence now before the court, affirms that consent. Why the words “Without Prejudice” were placed at the head of the letter of consent is unclear; if the court were to speculate, it suspects that the words were placed there as a matter of course and without too much thought. But regardless of why they are there, the fact that the words are there has no effect: the document is not one that arises in the context of a bona fide attempt to settle a dispute (a fundamental requirement, per Costello J. in O’Flanagan v. Rey-Ger Ltd (Unreported, High Court, 28th April, 1983), 14). So with or without the words “Without Prejudice”, the consent from Fingal County Council is what it purports to be and what Fingal County Council has always represented it to be: a letter evincing a consent that existed at the time of writing and which at all times since has remained extant.
12. It is not clear whether objection was taken by Mr Morris to the inclusion of the words “Subject to Contract/Contract Denied” at the head of the consent issued by Dublin City Council, but it is as well to touch upon the issue. Why these words were placed at the head of the consent is unclear; again, if the court were to speculate, it suspects that they were placed there as a matter of course and without too much thought. But regardless of why they are there, the fact that the words are there has little if any effect. Yes, they prevent the consent from being treated as a note or memorandum capable of satisfying the re-enacted provisions of the Statute of Frauds 1695 contained in s.51 of the Land and Conveyancing Law Reform Act 2009. But in truth that risk, on the facts presenting, appears limited; the words “Subject to Contract/Contract Denied” have little if any meaning of especial import in relation to the function of a document which issued simply to evince the written consent required under the Planning and Development Regulations.
13. In short, there is no legal deficiency presenting in the fact that lands owned by Fingal County Council and Dublin City Council were the subject of the application made by Glenkerrin Homes; there has been complete compliance with Art. 22 of the Planning and Development Regulations.
b. Confiscation or Sterilisation of Lands
14. Mr Morris appears to contend that the decision of An Bord Pleanála necessarily involves some transfer of lands to Glenkerrin Homes or some sterilisation of the lands in issue. This is not so. As Mr Simons notes in his learned text, Planning and Development Law (2nd ed.), 215, “[T]he grant of planning permission merely confirms that the provisions of the planning legislation have been complied with and does not per se authorise the development to proceed.” And as Keane J., as he then was, noted in Keane v. An Bord Pleanála [1998] 2 ILRM 241 “A planning permission does no more than assure the applicant that, quoad the planning legislation, his development will be lawful.” The decision of An Bord Pleanála does not transfer any title or interest and on this fundamental point all of the arguments made by Mr Morris concerning land ownership, confiscation, sterilisation, etc. must and do, respectfully, fail.
c. The Role of An Bord Pleanála and the Separation of Powers
15. The issues under this heading appear to be twofold:
– first, Mr Morris appears to be aggrieved that An Bord Pleanála did not consider issues of legal title to property. But that is an issue which is irrelevant to the questions of planning with which An Bord Pleanála is properly concerned. For An Bord Pleanála to stray into issues of title would be to wander beyond the confines of statute; and this the Board, as a statutory body, just cannot do. As MacMenamin J. observed in Murphy v. Cobh Town Council and anor [2006] IEHC 324, “[F]or the Board to properly conduct its affairs there must be strict compliance with statutory procedure….The Board is not entitled, as a creature of statute, to operate outside the four corners of the legislation which governs its powers”;
– second, Mr Morris initially appeared to contend that for An Bord Pleanála to make a finding of fact involves a breach of Article 34.2 of the Constitution; the court understands that in fact what is contended for is a breach of Art. 34.1 (and proceeds on this basis). Suffice it to note that there is no authority to support the proposition that fact-finding is an exclusive judicial function such that no other party can do it for fear of usurping the judicial power. Indeed, such a proposition were it to be accepted (and it is not) would likely bring the activities of many administrative agencies of government to a shuddering halt. The parameters of the judicial power are well travailed (see, inter alia, McDonald v. Bord na gCon [1965] IR 217, Goodman v. Hamilton [1992] 2 IR 542, and Haughey v. Moriarty [1999] 3 IR 1); and it is decidedly not the case that the power to find facts is an exclusive judicial function.
d. Oral Hearing
16. Mr Morris appears to object to the fact that An Bord Pleanála refused his request to hold a public hearing of the appeal before issuing its decision of 20th June, 2016. Under s.134(1) of the Act of 2000, An Bord Pleanála enjoys an “absolute discretion” as to whether or not to conduct an oral hearing of the appeal. To the uninitiated, the just-quoted terminology would suggest that the Oireachtas intended to confer a Louis Quatorze-style freedom of action on An Bord Pleanála in this regard. The courts have held, however, that the actions of An Bord Pleanála, even in this regard, are reviewable – though Laffoy J. in Hynes v. An Bord Pleanála (No. 1) (Unreported, High Court, 10th December, 1997) indicates, at para. 25, that the applicant there had conceded, and Laffoy J. appears herself to accept also, that the issue of whether a decision not to hold an oral hearing was unreasonable would fall to be gauged by reference to the principles outlined by the Supreme Court in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39. In truth, the wording of the statute, and the spirit that informs it, suggest that, at the very least, the Oireachtas intended that quite remarkable circumstances would need to present before a court could find that a determination of An Bord Pleanála in this area of its statutory remit should not have been reached. In the within case, following the request for an oral hearing, a memorandum of 11th April, 2016, was prepared for An Bord Pleanála as to whether to hold such a hearing, and then, on 22nd April, 2016, An Bord Pleanála considered this memorandum and the submissions on file and decided against holding such a hearing, this decision being communicated to Mr Morris on 22nd April, 2016. The court finds nothing objectionable in this sequence of events; nothing has been pointed to by Mr Morris that would justify an alternative conclusion.
III. The Application for Injunctive Relief
17. Mr Morris has issued a plenary summons seeking mandatory injunctive relief against Glenkerrin and Messrs McAteer and McCann (as receivers). He has also issued a notice of motion seeking interlocutory mandatory injunctive relief. The injunctive relief sought in both instances would effectively require a clean-up of a site in the ownership of Glenkerrin Homes and the demolition of certain properties thereon. So in granting the interlocutory injunctive relief, were it to be granted, the nature of that relief is such as would render the substantive proceedings effectively redundant.
18. Unfortunately for Mr Morris, he fails at the very first hurdle in terms of seeking injunctive relief in that he does not have any legal interest on which to give him standing to seek that relief. The mere fact of property being unsightly or in a state of ruin or unfit for any proper purpose or even hazardous, without more, does not confer jurisdiction on the court to make orders as to works to be carried out on or in relation to that property, at the instance of members of the public who have suffered no compensable loss or damage and who own no adjoining property damaged or capable of being damaged by that property. There is no evidence that the site in its present condition or the buildings thereon constitute any actual or impending nuisance to any property owned by Mr Morris or even to other lands, public roads or pavements over which he might pass. No grant of planning permission has commenced pursuant to which there is an outstanding obligation to demolish any of the buildings on the site. (Indeed, the only planning permission in place is that at issue in the judicial review proceedings which has yielded the ironic situation that, as the applications now under consideration have proceeded in tandem, Mr Morris was, in one application, seeking a set-aside of a planning permission which allows a development involving, inter alia, a demolition of the on-site buildings, and, in the other application, seeking in effect a carrying out, inter alia, of the demolition works permitted by that planning permission). A not-to-be understated further factor rendering objectionable the granting of the injunctive relief now sought is that the effect of the court’s order were it to be granted (and it will not be granted) would be to require the carrying out of works that would ordinarily require planning permission. It would be an affront to the law and a departure from that comity of purpose which ought always to exist between the great organs of state, if an unelected court was, through the granting of interlocutory mandatory injunctive relief, to acquiesce in an effective by-passing of the carefully calibrated planning scheme settled upon by our elected lawmakers through the medium of legislation.
19. To borrow from the wording of Henchy J. in Cahill v. Sutton [1980] IR 269, 283, Mr Morris has failed entirely to identify “concrete personal circumstances pointing to a wrong suffered or threatened”. Even if the court is mistaken in the foregoing and Mr Morris falls, solely through his commencement of his judicial review proceedings, to be treated as a person with sufficient interest as to give him the standing to seek the interlocutory mandatory injunctive relief now sought (and, on the facts of this case, the court does not consider that the out-of-time and substantively weak judicial review application commenced by Mr Morris suffices to endow him with that standing), the court in any event concludes, by reference to the factors identified in the preceding paragraph, that Mr Morris comes nowhere close to establishing that “strong case that he is likely to succeed in the hearing of the action” which Fennelly J. indicates in Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137, 139 to be the “first leg” of an application for mandatory interlocutory injunctive relief. Relevant also to the court’s considerations in this regard, given that were the court to grant the interlocutory relief now sought that would dispose of the ultimate proceedings, are the observations of May LJ in Cayne v. Global Natural Resources plc [1984] 1 All ER 225, 238, as relied upon by Laffoy J. in Jacob v. Irish Amateur Rowing Union [2008] 4 IR 739, that “There may be cases where the plaintiff’s evidence is so strong that to refuse an injunction and to allow the case to go through to trial would be an unnecessary waste of time and expense and indeed do an overwhelming injustice to the plaintiff. But those cases would, in my judgment, would be exceptional”. The court respectfully agrees with the just-quoted assessment and finds no trace of the requisite exceptionality to present in the application now before it.
20. At hearing, Mr Morris effectively indicated that he had now done what he could to address the state of the site and that the responsibility rests with others, if an accident is now to occur. But, with every respect, that responsibility has always lain other than with Mr Morris. The local authority, if sufficiently concerned about the state of the site, could act or have acted, for example, under the local government or derelict sites legislation – and tellingly perhaps as to the want of concern on the part of the local authority regarding the condition of the site, no such action had been taken to the date of hearing. Moreover, Glenkerrin Homes remains potentially liable for any untoward events that may occur at the site; that is a potential liability which doubtless guides its actions as regards the up-keep of the site. And in passing, the court cannot but note that Mr Morris could always have confined the actions that he took, pursuant to his doubtless well-intentioned sense that something ought to be done about the state of the site that is the subject of the within application, to writing a letter of concern to any or all of the defendants, the local authority, local public representatives and local newspaper. The writing and sending of such a letter, it seems at least to the court, would likely be perceived by many, if not most, as sufficient to satisfy the demands of conscience, and would have avoided putting the defendants to the cost of defending an application for interlocutory mandatory injunctive relief that, in truth, never had any prospect of success, and which the court must and has respectfully refused.
IV. Conclusion
21. Howth is a beautiful corner of Dublin. So it is perhaps inevitable that a significant building development in the area would excite both interest and perhaps even some level of concern among existing local residents such as Mr Morris. However, for the reasons stated above, the court, as indicated at hearing, was and is coerced as a matter of law into finding that Mr Morris’ judicial review application and his application for interlocutory injunctive relief must fail.
Sweetman v An Bord Pleanála
[2017] IEHC 46
Judgment of Mr. Justice Robert Haughton delivered on the 2nd day of February, 2017.
1 Introduction
1.1 By application filed in the Central Office on 14th September, 2016, which was moved ex parte before Humphreys J. on 10th October, 2016, the applicant was granted leave to bring judicial review proceedings seeking, inter alia, the following reliefs:-
“(1) An order of certiorari by way of application for judicial review quashing the determination of the first named respondent to grant planning permission (appeal ref: PL08.PA0044) in respect of the construction of a windfarm at Grousemount, Co. Cork and Co. Kerry which said decision was made on the 21st July, 2016.
(2) An order of certiorari by way of application for judicial review quashing the determinations of the second and third named respondents pursuant to section 5 of the Planning and Development Act 2000 as amended dated the 1st day of April 2015, and the day of 6th of May 2015 determining that the construction of the grid connection servicing the proposed development was exempted development.
(3) A declaration that the decisions of the first, second and third named Respondent was in breach of and contravenes Directive 92/43/EEC on the contravention of wild habitats and flora and fauna (the Habitats Directive) and Direction 2011/92/EU of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment (“the consolidated Environmental Impact Assessment (EIA) Directive”), the Birds Directive 2009/147/EU and the jurisprudence of the European Court of Justice (ECJ) and the Court of Justice of the European Union (CJEU).
(4) A declaration that section 5 of the Planning and Development Act 2000 is contrary to European law and the Aarhus Convention and in particular, the said provisions violate the public participation provisions of the EIA Directive, Birds Directive, Habitats Directive and the Public Participation Directive 2003/35/EC.
(5) A declaration that the fourth and fifth named respondents have failed to proper[ly] implement the Habitats Directive and Birds Directive. In particular, the fourth and fifth named respondents have failed to ensure the creation of a coherent list of sites of community interest for the protection of wild habitats, fauna, and birds.
(6) If necessary, an order extending time for seeking the above relief.”
1.2 As the applicant was out of time for seeking judicial review in respect of the s. 5 decisions of the second and third named respondents made in 2015, an application was made to Humphreys J. for an extension of time for making the leave application, and the first operative part of his Order of 10th October, 2016, reads:-
“that the Applicant’s time for making the said application for leave to apply for judicial review be and the same is hereby extended up to and including the 14th day of September 2016.”
It appears therefore that the leave judge extended time for bringing the leave application up to the date upon which papers were first lodged in the Central Office (14th September, 2016), but in giving leave to apply for the relief at no.(6) did so upon the basis that the judge trying the substantive issue could be asked to grant “if necessary, an order extending the time for seeking the above relief”.
1.3 In the motions before the court the second, third and fourth named respondents seek to set aside leave so granted against them in respect of reliefs (c) at sub-paragraphs(2),(3), and (4) in the statement of grounds on grounds of delay.
2 The Motions
2.1 Following the granting of leave, the notice party promptly applied to have the proceedings admitted to the Commercial Court, and on foot of an affidavit sworn by John Kelly on 10th October, 2016, McGovern J. so ordered.
2.2 By notice of motion filed on 16th November, 2016, the third named respondent Kerry County Council applied for the following reliefs:-
“(1) An order setting aside the Order of this Honourable Court (Humphreys J.) made on 10 October, 2016, granting the Applicant leave to apply for judicial review as against the Third Named Respondent on grounds of delay and/or being out of time having regard to the time provisions contained in Section 50 of the Planning and Development Act 2000 (as amended).
(2) Further and/or in the alternative, an Order dismissing the proceedings against the Third Named Respondent on grounds that the proceedings are out of time and that the Applicant is not entitled to an extension of time to bring these proceedings as against the Third Named Respondent pursuant to Section 50(8) of the Planning and Development Act 2000 (as amended).”
2.3 A similarly worded application was brought on behalf of the second named respondent Cork County Council by notice of motion also filed on 16th November, 2016.
2.4 By further notice of motion filed on 24th November, 2016, on behalf of the fourth and fifth named respondents (“the State”) orders were sought:-
“(1) … setting aside … the reliefs set out at paragraph 4 of the said [leave] Order and Notice of Motion, and on the grounds, set out at paragraphs. e(13) and e(14) of the Statement Required to Ground an Application for judicial review, on the grounds of delay and/or that the application for leave was not made within the time limited by section 50 of the Planning and Development Act 2000 (as amended) and/or Order 84, Rule 21 of the Rules of the Superior Courts;
(2) Further and/or in the alternative, an Order dismissing the Applicant’s claim against the State Respondents for the reliefs sought at paragraph 4 on the grounds that the claim is out of time and that the applicant is not entitled to an extension of time to seek the relief sought and that his claim for the relief sought is therefore bound to fail;
(3) In the alternative only, an order directing that the matters identified at (2) above be determined in advance of any hearing of the substantive judicial review proceedings by way of a modular trial or alternatively as preliminary issues.”
2.5 On 21st November, 2016, McGovern J. directed that the set aside/delay issues raised in these notices of motion should be determined by this Court as a preliminary matter. While no formal order of McGovern J. was put before this Court, it did not appear that he had gone so far as to direct a modular trial on a preliminary point of law related to the delay issue. Having heard submissions on this point I determined that it was appropriate for this Court to determine the respondents’ motions in the first instance as applications to set aside the leave orders, insofar as the reliefs sought at paras. 2, 3 and 4 were concerned.
2.6 The substantive hearing of these proceedings has been fixed for 7th March, 2017. The first named respondent appeared as a matter of courtesy at the hearing of evidence and then withdrew. The court had the benefit of written and oral submissions from the remaining respondents, the notice party and the applicant.
3 Setting Aside Applications – The Test to be Applied
3.1 The leading authority is Adam v. Minister for Justice [2001] 3 IR 53. There the Supreme Court held that the High Court had an inherent jurisdiction to set aside an order granting leave to apply for judicial review that had been made on the basis of an ex parte application, including cases where there was an absence of mala fides. Hardiman J. emphasised that an application to set aside an order granting leave was not in any sense an appeal from the judge of the High Court who granted the original leave. At p. 77 he stated:
“In my view, any order made ex parte must be regarded as an order of a provisional nature only. In certain types of proceedings, either the apparent requirements of justice or the requirements of its administration mean that a person will be affected in one way or another by an order made without notice to him and therefore without his having been heard. This state of affairs may, depending on the facts, constitute a grave injustice to the defendant or respondent. In the context of an injunction, only a very short time will normally elapse before the defendant has some opportunity of putting his side of the case. In judicial review proceedings the time before this can occur will normally be much longer. This clearly has the scope to work an injustice at least in some cases.”
Hardiman J. approved certain observations of McCracken J. in Voluntary Purchasing v. Insurco Ltd. [1995] 2 I.L.R.M. 145, including the following at p. 147:-
“… An ex parte order is made by a judge who has only heard one part to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that that is not suggested in the present case. However, in the interest of justice it is essential that an ex parte order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the court. It would be quite unjust that an order could be made against a party in its absence and without notice to it which could not be reviewed on the application of the party affected.”
Hardiman J. went on to state at p. 79:-
“In my view, once it is accepted that the jurisdiction invoked here by the respondents exists, it is difficult to justify any hard and fast restrictions on it.”
3.2 In her judgment McGuinness J. at p. 72 stated that:-
“… this jurisdiction should only be exercised very sparingly and in a very plain case.”
She gave as her reason for this, at p. 72, the following:-
“One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications for leave. Each application would probably require considerable argument – perhaps with further affidavits and/or discovery. Where leave was discharged, an appeal would lie to this court. If that appeal succeeded, the matter would return to the High Court for full hearing followed, in all probability, by a further appeal to this court. Such a procedure would result in a wasteful expenditure of court time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice. The exercise of the court’s inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases.”
3.3 The question whether delay in bringing the leave application could be a basis for seeking an order setting aside the leave order was raised in McD v. the Commission to Enquire into Child Abuse [2003] 2 IR 348. There the Commission established a deadline of 31st July, 2001 for persons who suffered abuse to have an opportunity to recount that abuse. A period of grace was added up to 10th August, 2001. The applicant sent in his application on 23rd August, 2001, and it was refused on the basis that it was out of time. On 24th June, 2002 the applicant was granted ex parte leave to seek judicial review of the refusal. The Commission applied to set aside the leave order. At p. 364 Ó Caoimh J. stated:-
“It is important to note that this court is not concerned with the merits of the applicant’s case for judicial review insofar as it has already been determined that he has established an arguable case in regard to the impugned decision.
…
I am satisfied that delay in applying to the court for leave can constitute a ground upon which leave will be refused and I am also satisfied that it may be a central factor in an application such as this. However, in light of the observations of Denham J. in De Róiste v. Minister for Defence [2001] 1 IR 190, I am satisfied that while delay of itself may not be sufficient for this court to set aside an order granting leave, it is a matter that may be addressed in light of other circumstances in the case.”
In setting aside the leave order in that case Ó Caoimh J. had regard to the fact that the case related to the application of a time limit legitimately set by the Commission, and with which the applicant had failed to comply.
3.4 In De Róiste the Supreme Court was concerned with O. 84, r. 21 of the Rules of the Superior Courts which requires that an application for judicial review be made promptly and in any event within three months from the date when the grounds for the application first arose, or six months where the relief sought was certiorari. Denham J. (as she then was) makes a number of general observations on judicial review and delay, and the extension of time, from p. 203 of the judgment. The onus was on the applicant to show that he had made the application promptly and within the time limit. She observed (p. 203) that:
“The conditions are not rigid as judicial review is a discretionary remedy. There remains in the court an inherent discretion to be exercised according to the requirements of justice in the circumstances of each case.”
At p. 204 she stated:-
“This concept of delay is analysed from both the procedural and substantive aspect. The court in exercising its discretion goes further than a merely procedural analysis. In this case there are no statutory limitations and the court exercises its full discretion.”
3.5 The same general discretion under O. 84, r. 21(1) governed the decision of Ó Caoimh J. in McD v. the Commission. To that extent the present case is different because there is a statutory time limit of eight weeks prescribed by s. 50(6) of the Planning and Development Act 2000 (as amended), and a further statutory provision in s. 50(8) prescribing the circumstances in which the court may extend time for a party to bring an application for leave to seek judicial review. As will be seen later in this judgment, the courts have taken a stricter view in relation to this eight week time limit and the approach that the courts should take in determining whether or not to extend time. Accordingly the applicant’s reliance on McD and De Róiste to the effect that delay of itself could not be sufficient to set aside the order granting leave and was merely a matter to be considered in the light of other circumstances of the case, does not apply, or at least not with the same force, in the context of judicial review of planning applications.
3.6 Accordingly I have come to the conclusion that a court may set aside an order granting leave to seek judicial review in a planning case where time was extended where the delay of itself is significant or egregious, and particularly where the delay has led to actual prejudice. However, the court accepts the overarching principle that an order to set aside should not be made unless the leave was one which plainly should not have been granted. The court also accepts that this is a jurisdiction that should be exercised sparingly for the reason advanced by McGuinness J. in Adam.
3.7 The court therefore approaches these motions on the basis that the onus is on the moving party respondents to satisfy the court that the application for leave to seek judicial review was out of time, and that the order of Humphreys J. extending time was so plainly incorrect that it should be set aside.
4 Relevant Provisions of the Planning and Development Act 2000 (as amended)
4.1 The impugned determinations of the second and third named respondents were made pursuant to s. 5 of the Planning and Development Act 2000 (as amended) (“the 2000 Act”). This is the provision under which an application may be made to a local planning authority for a declaration as to whether or not a development is exempted from the requirement of planning permission or approval under the 2000 Act. Section 5 so far as relevant provides:-
“(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.
(2) (a) Subject to paragraph (b), a planning authority shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.
(b) A planning authority may require any person who made a request under subsection (1) to submit further information with regard to the request in order to enable the authority to issue the declaration on the question and, where further information is received under this paragraph, the planning authority shall issue the declaration within 3 weeks of the date of the receipt of the further information.
(c) …
(3) (a) Where a declaration is issued under this section, any person issued with a declaration under subsection (2)(a) may, on payment to the Board of such fee as may be prescribed, refer a declaration for review by the Board within 4 weeks of the date of the issuing of the declaration.
(b) Without prejudice to subsection (2), in the event that no declaration is issued by the planning authority, any person who made a request under subsection (1) may, on payment to the Board of such fee as may be prescribed, refer the question for decision to the Board within 4 weeks of the date that a declaration was due to be issued under subsection (2).
(4) …
(5)The details of any declaration issued by a planning authority or of a decision by the Board on a referral under this section shall be entered in the register.”
4.2 Section 4 of the 2000 Act in subs. (1) stipulates certain exempted developments, and under subs. (2) the Minister is empowered by regulation to provide for “any class of development to be exempted development”. Subsection (4) is relevant to these proceedings and provides:-
“(4) Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.
4.3 It is of the essence of the applicant’s challenge to the s. 5 references, which relate to the development of the grid connection for the proposed Grousemount wind farm, that they required environmental impact assessments (EIA) and/or appropriate assessment (AA) (of adverse effect on Special Areas of Conservation, or on habitats and/or species protected under under the Habitats Directive in candidate Special Protection Areas). The applicant complains that neither EIA nor AA were carried out by the second or third named respondents before making their declarations on 6th May, 2015 and 1st April, 2015 respectively, and criticises the ‘screening out’ of any requirement for EIA or AA.
4.4 Under s. 7(1) of the 2000 Act a planning authority is required to keep a register, and under subsection (2) it must enter in that register inter alia:
“(h) particulars of any declaration made by a planning authority under section 5 or any decision made by the Board on a referral under that section”.
4.5 This is the only act of publication required by the 2000 Act in respect of s.5 declarations. It does not require publication by advertisement or site notices of the making of an application for a declaration, and there is no provision requiring or permitting public participation in the decision making process. The planning authority “may request other persons e.g. an adjacent owner or occupier, to submit information”. The planning authority must, where the owner or occupier is not the applicant for a declaration, issue it’s declaration to the owner and occupier of the land in question. Apart from these provisions the process, at least until a declaration is issued, is private to the applicant for the declaration and the relevant planning authority, and only achieves publication in the limited form of being placed on the local planning authority register under s. 7 if and when the declaration of exemption issues.
4.6 Secondly the category of party who have a right to appeal a declaration, or refusal of a declaration, appears to be limited to:-
(1) The applicant for the declaration;
(2) The owner of the land in question;
(3) The occupier of the land in question.
as these are the only parties coming within the phrase “any person issued with a declaration”.
5 Section 50
5.1 The challenge to the decisions of the second and third named respondent in respect of the s. 5 declarations fall within s. 50(2)(a) of the 2000 Act insofar as they are challenges to a decision made or other act done by “(a) a planning authority, local authority or the Board in the performance of purported performance of a function under this Act.”
5.2 Section 50(6) of the 2000 Act prescribes the time for bringing an application for leave to apply for judicial review:-
“Subject to subsection (8), an application for leave to apply for judicial review under the Order in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority, the local authority or the Board as appropriate”.
5.3 An extension of time may be granted by the court subject to the requirements set out in s. 50(8) which states:-
“(8) The High Court may extend the period provided for in subsection (6) or (7) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that –
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.”
5.4 It is common case that the 8 week time limit for challenging the decision of the second named respondent expired on 30th June, 2015, and that time for challenging the decision of the third named respondent expired on 27th May, 2015.
5.5 Accordingly the primary issue that arises is whether, in extending time for making the application for leave to apply for judicial review up to and including 14th September, 2016 in respect of the s. 5 declarations, and in the light of all the affidavit evidence before the court at the inter parties hearing, the leave order may be considered to be “plainly incorrect”.
6 Construing and Applying s. 50(6) and s. 50 (8)
6.1 Perhaps the most important decision in respect of s. 50 is the oft quoted judgment of Clarke J. in Kelly v. Leitrim County Council and An Bord Pleanála [2005] 2 IR 404. There the applicant sought leave to seek judicial review inter alia of a decision of the Board relating to the use of its property, which decision was made pursuant to s. 5 of the 2000 Act. However the applicant exceeded the statutory time limit by some nineteen days. He argued that as a consequence of difficult personal circumstances and conflicting advice from Counsel, he had been unable to requisite steps to institute proceedings. Clarke J. refused to extend time. He quoted with approval the judgment of Finlay CJ. in K.S.K. Enterprises Limited v. An Bord Pleanála and Anor. [1994] 2 IR 128, where at p. 135 he said:-
“It is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.”
While K.S.K. concerned the former provision, which did not provide for an extension of time, Clarke J stated at p410 that:-
“the broad principle referred to must be equally applicable to s. 50 of the Act of 2000. It should also be noted that provisions broadly similar to s. 50 have been introduced in other areas of administrative or quasi-judicial decision – making in recent times.”
At p. 411 Clarke J. added:-
“For completeness it should be noted that the original absolute time limit provided for in planning matters was the subject of significant constitutional challenge commencing with the decision of Costello J. in Brady v. Donegal County Council [1989] I.L.R.M. 282. It was doubtless to meet such constitutional concerns that the discretion to extend such shortened time limits was introduced by amendment into the planning process and also included in the other areas to which similar processes have been applied.”
Clarke J. then set out factors which may be considered prior to taken a decision to exercise the discretion to extend time. At p. 411 he stated:-
“Without being exhaustive it seems to me that the following factors may need to be considered prior to a decision as to whether or not to exercise a discretion conferred to extend time of the type referred to above:-
(a) The length of time specified in the relevant statute within which the application must be made.…..Obviously the shorter the period of time which a person has to make application to the court, the easier it may be to show that despite reasonable diligence that person has been unable to achieve the time limit.
(b) The question of whether third party rights may be affected. It is clear from the passage from K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128 referred to above that one of the matters which the Supreme Court identified in that case as forming part of the legislative intention was that, in particular, a person who had obtained planning permission should be put, within a short period of time, in a position where that planning permission, if not challenged, was absolute. Similarly the clear intention behind the time limits provided for in respect of public procurement matters is that both the public authorities who would wish to get on with the projects which were the subject of the public contract concerned and a successful tenderer for such contract should be entitled to know for certain that the contract can go ahead within a short period of time. It therefore seems to me that the question of whether third party rights might be involved in the late challenge to a decision is a factor which the court is entitled to take into account.
(c) However it should be noted that notwithstanding the point made at (b) above, there is nonetheless a clear legislative policy involved in all such measures which requires that, irrespective of the involvement of the rights of third parties, determinations of particular types should be rendered certain within a short period of time as part of an overall process of conferring certainty on certain categories of administrative or quasi-judicial decisions. Therefore while it may be legitimate to take into account the fact that no third party rights are involved, that should not be regarded as conferring a wide or extensive jurisdiction to extend time in cases where no such rights may be affected. The overall integrity of the processes concerned is, in itself, a factor to be taken into account.
(d) Blameworthiness. It is clear from all the authorities to which I have been referred in each of the areas to which stricter rules in respect of judicial review have been applied that one of the issues to which the court has to have regard is the extent to which the applicant concerned may be able to explain the delay and in particular do so in circumstances that do not reflect any blame upon the applicant. However in that context it should be noted that McGuinness J. in C.S. v. Minister for Justice [2004] IESC 44; [2005] 1 ILRM 81 at p. 101 said:-
“There is, it seems to me, a need to take all the relevant circumstances and factors into account. The statute itself does not mention fault; it simply requires ‘good and sufficient reason’. The dicta of this court in the reference judgment quoted earlier indicate many factors which may contribute to ‘good and sufficient reason’. By no means all of these can be attributed to fault or indeed absence of fault, on the part of the applicant.”
While the blameworthiness (or the lack of it) on the part of the applicant is, therefore, a relevant factor it is only one such factor to be weighed in the balance.
(e) The nature of the issues involved. Both this court and the Supreme Court in C.S. v. Minister for Justice [2004] IESC 44; [2005] 1 ILRM 81 seem to have had regard to the severe consequences of deportation to a State where fundamental rights might not be vindicated. The consequences of being excluded from challenging a planning or public procurement decision, while significant, are not in the same category.
(f) The merits of the case. Some considerable argument took place during the course of the hearing before me as to whether the merits of the case in the sense of whether the applicant had established an arguable case was a factor which could properly be taken into account. In favour of that proposition reliance was placed upon the judgments of the Supreme Court in G.K. v. Minister for Justice [2002] 2 I.R. 418 in which Hardiman J., at p. 423, delineated the approach to applications for extension of time as follows:-
“On the hearing of an application such as this it is, of course, impossible to address the merits in the detail of which they would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration of an arguable case. In addition, of course, the question of the extent of the delay beyond the fourteen day period and the reasons if any for it must be addressed.”
6.2. It has also been recognised that the time limit of 8 weeks is strict and one in respect of which the power to grant an extension is also to be strictly construed. In Irish Skydiving Club Ltd. v. An Bord Pleanála [2016] IEHC 448 the applicant sought to challenge a s. 5 referral declaration in which the Board declared that the use of the Kilkenny airfield for sponsored parachute jumping was a development and not an exempted development. The decision of the Board was made on 14th January, 2015 and leave was given by Eagar J. on 27th March, 2015, some 17 days outside the prescribed period. The issue of delay was raised by way of preliminary objection which was determined by Baker J. at a modular hearing. She refused to make an order enlarging the time. In her judgment she explored the wording in s. 50(8), and the separate and cumulative requirements of subpara. (a) “good and sufficient reason” and (b) “the circumstances that resulted in the failure to make the application for leave within the period so provided where outside the control of the applicant for the extension”. She stated:-
“9. Section 50(8)(a) is a reflection of the inherent jurisdiction of the court to extend time when it considers that good and sufficient reason exists to so do, but sub paragraph (b) of the subsection contains a restriction on the power such that in addition to being satisfied that good and sufficient reasons exists, the court must be satisfied as a matter of fact that the circumstances which resulted in the delay were outside the control of the applicant.
10. Thus, while the court has a discretion it is required by the cumulative provisions of subs. 8 to consider not merely the interests of justice, or the interests of all of the parties, but whether the applicant for the extension can show on the facts that the delay and the reason why he or she is out of time arose from matters outside his or her control. When a delay arises from circumstances which were within the control of the applicant, the court may not extend.
11. The time limit is strict, and one in respect of which the power to grant an extension is also to be strictly construed.”
In support of the latter proposition Baker J. cited with approval a number of cases including Noonan Services Ltd. & Ors v. the Labour Court (unreported, High Court, 25th February, 2004) – Kearns J.;. MacMahon v. An Bord Pleanála & Anor. [2010] IEHC 431 – Charleton J; Linehan & Ors. v. Cork County Council & Anor [2008] IEHC 76 – Finlay Geoghegan J. and more recently, South-West Regional Shopping Centre Promotion Association Ltd. & Anor. v. An Bord Pleanála & Ors. [2016] IEHC 84 – Costello J. Baker J. observed at para. 16 of her judgment that “All of these judgments noted the public policy considerations reflected in the imposition of strict and short time limits”. Returning to the subject at para. 49 of her decision Baker J. stated:-
“49. The test that an applicant must meet in an application for an extension of the strict time limits under s. 50(6) of the Act is cumulative and mandatory. The Court shall not extend the time unless it is satisfied that both tests are met …
50. The running of time in judicial review is not based on a consideration of when an applicant became aware of the decision sought to be challenged, and in my view the legislation clearly links the running of time to the making of the decision. The company knew from its search on the website of the Board, at some time during the day on 29th January, 2015, that a decision which it regarded as flawed and serious for its ongoing land use had been made, and at that point in time it knew the date of the decision and the basis for it, which were transparent and obvious from the documents on the website.
51. The public policy interest in strict time limits in planning matters would not be furthered were a party who knew that his or her rights had arguably been breached, and who knew of a decision well within time to bring an application for judicial review, could seek to argue that time began to run only when it had formulated a decision to bring the challenge. The formulation of a decision to bring a challenge is in the normal way one that would be made on legal advice, but the date when legal advice is taken, considered or decided to be adopted, is not and cannot be the date at which time begins to run, and to consider otherwise would be to ignore the very clear language of the subsection which fixes the time limit by reference to the date of the decision, and not either to the date of knowledge or the date when a party impacted by the decision became aware that rights might have been infringed, or the extent to which that person might be successful in bringing a judicial review.
52. What the applicant contends, it seems to me, is for a test which fixes the running of time with not merely the date of knowledge of the making of a decision, but the date at which an applicant, having taken legal advice, comes to a decision to take the risk of commencing the litigation. That assertion has no basis in the authorities.”
6.3 In circumstances where the applicant in the present proceedings only became aware of the s. 5 declarations in September 2015, counsel for the applicant appeared to urge on the court that the 8 week period did not begin to run until the applicant became aware of the declarations. That submission is not sustainable in light of the established jurisprudence, which flows from the express wording of s. 50(6) that the 8 week period commences on “the date of the decision or, as the case may be, the date of the doing of the act by the planning authority”. Clearly therefore the relevant dates were 1st April, 2015 and 6th May, 2015 in respect of the third and second named respondents’ decisions respectively. It cannot be contended that the 8 week period commenced in September 2015 when the applicant first became aware of the declarations.
6.4 Counsel for the applicant in written and oral submissions further suggested that provided an applicant seeking an extension of time satisfied the requirements of s. 50(a)(b) i.e. satisfied the court that the circumstances which resulted in the failure to make the application for leave within the eight week period were outside of his control, then “There is no requirement for the applicant to justify not moving in any other period.” (para. 22 of the applicant’s written submissions).
6.5 This argument must fail on the express wording of section 50(8). As Baker J. stated in Skydiving, subclauses (a) and (b) in s. 50(8) are cumulative and mandatory requirements. The requirement “of good and sufficient reason” relates to the reasoning that the court finds satisfactory for extending time over the entire period for which an extension of time is required. It is not a limited by the wording of the subsection to any particular period of time, and in particular is not limited to the period of eight weeks immediately following the impugned decision. To give it such a limited interpretation would be to ask the court to rewrite section 50(8). It is quite clear from a reading of the subsection as a whole that the requirement at (b) is additional, and restricts the generality of the application of the requirement at (a).
6.6 Secondly if the construction contended for by the applicant was correct it would have the result that the court would only look to the eight week period immediately following the decision to ascertain of whether the circumstances resulting in failure to make the application for leave within the requisite period were outside the control of the applicant and whether the same circumstances amounted to good and sufficient reason for not making the application in time. Such a restricted construction was clearly not intended by the Oireachtas and would have the effect of requiring the Court to disregard all delay by an applicant arising after the expiry of the eight week period in assessing whether those good and sufficient reasons for extending time were in existence. This could lead to absurd results, and would be a licence to a party aggrieved by an unlawful and planning decision to sit on their rights.
6.7 In pursuing this submission counsel argued that the phrase “the High Court may extend the period …” indicates that the High Court has a general discretion to extend time, and that the following phrase “but shall only do so if it is satisfied that …” is merely indicative of a threshold that the applicant must reach. I find this unpersuasive and in conflict with the plain wording of the subsection read as a whole, and the principle that the requirements of (a) and (b) are cumulative.
6.8 The applicant seeking an extensive of time must therefore firstly satisfy the court that the circumstances that result in the failure to make the application for leave within the period of eight weeks were outside of his or her control. Thereafter the applicant for extension must satisfy the court that there is good and sufficient reason for an extension. This phrase requires that the reason be both “good” and “sufficient”. Moreover it is incumbent on the applicant to satisfy the court that such good and sufficient reason encompasses the entirety of the period from the expiry of the eight weeks up to the date upon which the leave application was made in the High Court, or at any rate the date upon which the leave papers were lodged in the Central Office.
7 Chronology and Relevant Facts
7.1 On 4th March, 2015 the notice party ESB International applied to the third named respondent for s. 5 declaration that works comprising the installation of a new 110kv underground cable circuit (UGC) to form a link between the existing Ballyvouskill 220/110kV substation and the permitted, but not yet built, substation at Coomtaggart 110kV constituted exempted development. On the same day the notice party made a similar application to the second named respondent for a s. 5 declaration in respect of that portion of the grid connection works located within the functional area of Cork County Council. The UGC was proposed to be installed primarily along the public road network over a distance of approximately 29.5 kilometres from the existing Ballyvouskill substation to the proposed and permitted Coomtaggart Wind Farm, with an additional 1.3 kilometres along a permitted access road to the planned (but not yet permitted) Grousemount Wind Farm. The design provided for the provision of ducting within the road structure, inside which the cables would be installed. The proposed development included joint bays, representing junctions along the extreme ends of the route connection, and through which the cables are subsequently pulled. The development would involve excavation of trenches approximately 0.6 metres wide and 1.2 metres deep, to accommodate ducting 0.6 metres wide. The proposal also provided for horizontal drilling for the purpose of traversing beneath water courses in the bedrock or substratum. In totality the grid connection proposed was 30.8 kilometres, with joints/access points every 3/4’s of a kilometre of so. The bulk of the grid connection development proposed was to be in Co. Cork.
7.2 As is apparent from the application to the second named respondent, the application was accompanied by a number of documents supportive of the application and claiming that it came within Class 26 and Class 16 of the Planning and Development Regulations 2001 (SI. No. 600 of 2001) (as amended). Class 26 development is “the carrying out by any undertaker authorised to provide an electricity service of development consistent of the laying underground of mains, pipes, cables or other apparatus for the purpose of the undertaking”. Accompanying the application were a number of reports, including:-
(1) UGC Construction Methodology Report
(2) Traffic Management Report
(3) AA Screening Report
(4) Ecology Reports (Terrestrial & Aquatic)
(5) EIA Screening Report
(6) Cultural Heritage Report.
7.3 Having obtained its own internal reports the second named respondent sought further information by letter dated 7th April, 2015. The first query concerned the potential for the works to give rise to a negative impact on the Mullaghanish to Musheramore SPA, and particular concern over the possible disturbance of Hen Harrier breeding. The second concern was the potential for the works to negatively impact on St. Gobnet’s Wood SAC, and in particular salmon and fresh water pearl mussel species and habitats, with an expressed concern that “in relation to the Sullane river, it is noted that there would be significant risk of adverse impacts on the population of Freshwater Pearl Mussel in this river if it was required to cross this river using open trench technology. This could arise if it is determined that conditions are not suitable for Horizontal Directional Drilling.” The third query related to the possibility that consent might be required from the Department of Arts, Heritage and the Gaelteacht, and a deregulation license from the National Parks and Wildlife Service in relation to any possible disturbance of the breeding site or resting place of strictly protected species such as otter. The second named respondent replied to each of the points raised by letter dated 13th April, 2015, confirming that it had commissioned a qualified Ecologist to complete Hen Harrier breeding season monitoring within the SPA prior to work on the grid connection within the SPA, confirming that an Ecological Clerk of Works would be appointed with particular reference to the crossing of the Sullane river for the duration of the works, and that the Horizontal Directional Drilling for crossing that river would be the technique implied.
7.4 The third named respondent did not raise a request for information, but obtained reports from its own County Archaeologist, it’s Biodiversity Officer and a Planner’s Report. The Biodiversity Officer report undertook a screening for the purposes of the Habitats Directive and opined that Appropriate Assessment was not required. The Planner’s Report concluded that an EIA was not required, and recommended that a declaration be granted to the effect that the proposed works were development which was exempted development.
7.5 On 1st April, 2015 a s. 5 declaration issued from the third named respondent to ESB confirming that the construction of the UGC constituted development which is exempt development.
7.6 On 6th May, 2015 the second named respondent made a similar declaration of exempted development by reference to “the information and plans submitted by you on the 9th March and 13th April, 2015”, and added:-
“Please note that any material departure from the external finish as submitted may remove the development from the Exempted category and require the submission of an application for Permission under the Act.
This exemption does NOT itself empower a person to carry out a development unless that person is legally entitled to do so.”
The Declaration sets out the documentation considered and the second named respondent’s various conclusions including that the laying of the UGC was a type of development coming within Class 26, that the area to be excavated in that field comprised substantially of an existing road network area of the SPA and that the area subject to the works would be substantially returned to it’s pre-existing state after completion; that the laying of the underground cable would have “no significant effect, in terms of disturbance of habitats or species, on the ecology of the proposed Special Protection Area or Special Area of Conservation”; and that the provisions of Article 9(1)(a)(vii) of the Planning and Development Regulations 2009, as amended – which has the effect of restricting what would otherwise be exempted development if it consists of certain described works of excavation – had no application.
7.7 On 7th September, 2015, the notice party lodged its application with the strategic infrastructure division of the Board for approval of the construction of a Wind Farm at Grousemount, Co. Cork and Co. Kerry (PL08.PA0044). This application was made pursuant to s.37E of the 2000 Act.
7.8 Notwithstanding the s. 5 declarations the applicant asserts that both EIA and AA were required in relation to the grid connection. He further asserts that insofar as s. 5 of the 2000 Act does not require public notification, and gives the public no opportunity to participate, this is contrary to fair procedures and natural justice and is contrary to European law and the Aarhus Convention, and that in particular the provisions violate the public participation provisions of the EIA Directive 2011/92/EU, the Birds Directive 2009/147/EU, the Habitats Directive (Directive 92/43/EEC), and the Public Participation Directive 2003/35/EC.
7.9 In the affidavit sworn by the applicant on 12th September, 2016 in support of his application for leave to seek judicial review he avers that he only became aware of the fact of the s. 5 reference during the course of the application to An Bord Pleanála but “… I was already outside of the 8 week period to commence judicial review” (para. 21). He elaborates on this in a further affidavit sworn on 2nd December, 2016 in response to the respondents’ applications to set aside the leave order. At para. 4 he says:-
“I say that I initially became aware of this development when it was listed on the AnBordPleanála website. I say that the application was lodged in AnBordPleanála on 7th September, 2015 and appeared in the weekly list on the 16th September, 2015.”
7.10 On 17th September, 2015 the applicant emailed the second named respondent requesting a web link for the s. 5 file. This was misdirected and a further request was made by him on 23rd September, 2015. On 25th September, 2015 the second named respondent acceded to his application but as the papers had not been “scanned in” it was necessary to send on photocopies. Copies of the entire file D.215.15 were duly forwarded to the applicant on 8th October, 2015.
7.11 On 12th October, 2015 the applicant sought to appeal to An Bord Pleanála the s. 5 declaration made by the second named respondent on 6th May, 2015.
7.12 The Board by decision dated 19th October, 2015 decided that the purported appeal of the applicant was invalid pursuant to s. 127(1)(g) of the 2000 Act (as amended), which requires that an appeal or referral be made within four weeks. The question of whether the applicant had any locus standi to appeal to the Board does not appear to have been addressed but at any rate is not given as a reason for rejecting the appeal.
7.13 The applicant did not attempt to appeal the s. 5 declaration of the third named respondent. The applicant however wrote to Kerry County Council on 12th October, 2015 requesting that he be supplied with that Council’s entire file in respect of the s. 5 reference EX392. By letter dated 11th November, 2015 the third named respondent refused his request but stated:-
“I am advised by the Planning Department that they do not scan section 5 declarations and therefore they are not available for perusal on their website. However, the information you are looking for is available to view in our Planning Department, Kerry County Council, by appointment, 066 718 3582. The office is open from 9:00a.m. to 5:00p.m. Monday to Friday excluding Bank Holidays.
They further advise that a copy of the Planners Report can be supplied but there may be copyright issues relating to documents submitted by the applicant.”
7.14 On 29th October, 2015 the applicant lodged a one page observation/submission in relation to the Wind Farm application stating:-
“The Environmental Impact Statement for this development states on page 1 of the NTS.
Planning Permission (Ref. 15/262) for Coomtaggart Substation was granted by Kerry County Council in August 2015. Kerry County Council (Ref. EX392) and Cork County Council (Ref. D215.15) have separately declared for the portions of the cable route in their area that it constitutes exempt development, meaning that a requirement for planning permission in accordance with the Planning and Development Acts does not arise.
The application and the Environmental Impact Statement do not include the grid connection making the application and the Environmental Impact Statement invalid.”
7.15 It appears from paras. 19 and 20 of the further affidavit of the applicant sworn on 2nd December, 2016 that at some point he sought legal advice in relation to the possibility of challenging the s. 5 referrals, and consulted with a solicitor. While not expressly stated as to when this consultation took place, it is at least implicit that it occurred in or about October or November 2015. Thus in para. 30 he states that:-
“In the circumstances, I felt the correct thing to do was to make a submission to the Board and await that determination on the substantive development”
and in para. 31 he states:-
“I believe that had I tried to commence these proceedings in or about November 2015, some 4 to 5 months after the decisions had been made, I would have been met with the argument that I was then out of time and also premature …”
7.16 On 21st July, 2016 the Board granted permission to the notice party for the Wind Farm development.
7.17 On 14th September, 2016 and within eight weeks of the decision of the Board, the applicant applied for leave to seek judicial review. Insofar as the applicant as his first relief seeks an order of certiorari quashing the decision of the Board in respect of the construction of the Wind Farm, his application was not out of time, and regardless of the outcome of these motions the applicant is entitled to pursue that challenge at the substantive hearing.
7.18 From the forgoing it may be concluded that the applicant became aware of the s. 5 declarations that the grid connections were exempt at some point in time between 7th September, 2015 and 17th September, 2015 when he requested a copy of the second named respondents s. 5 declaration file.
8 Evidence of Notice Party/ESB reliance on the s.5 Declarations
8.1 In affidavits sworn by Mr. John Kelly on behalf of the notice party, the contents of which are not disputed by the applicant, facts which it is said to give rise to prejudice by reason of the delay in seeking leave are set out. In his first affidavit sworn on 10th October, 2016 Mr. Kelly refers to the intended operating company, Kerry Wind Pallas Ltd., having applied for acceptance of the Wind Farm into REFIT 2 (Renewable Energy Feed in Target), operated by the Department of Communications, Energy and Natural Resources, which provides a feed-entire support scheme in respect of guaranteeing renewable generators with a minimum price of electricity delivered to the grid over a fifteen year period. That applicant company is a wholly owned subsidiary of the ESB. There are conditions attached to the REFIT 2 Scheme that must be complied with, including executing a Power Purchase Agreement with a licensed supplier, entering into a grid connection agreement with an appropriate system operation, obtaining authorisation to construct and a license to generate from the Commission for Energy Regulation, and obtaining planning permission.
8.2 The documentation, and in particular the grant of planning permission and grid connection agreement were required to be submitted before 31st December, 2016. Mr. Kelly deposes to the fact that since March 2016 the Grousemount Wind Farm has had the benefit of an agreed grid connection offer from EirGrid plc., but it is necessary for the notice party to have certainty in respect of the lawfulness of the permission granted by the Board at the earliest possible date. Furthermore the REFIT 2 deadline for commencement of significant construction works is 31st December, 2017. In addition to the importance of avoiding delay Mr. Kelly emphasises the significance of the development which is expected to generate in excess of 110MW making it one of Ireland’s largest renewable energy projects. At para. 19 of his affidavit he says that the Grousemount Wind Farm represents an overall investment by the notice party in the order of €200 million in renewable infrastructure, of which some €20 million had already being expended. In para. 20 he states:-
“It is envisaged that this project will create between 80 and 100 construction jobs and a smaller number of permanent jobs once the Wind Farm becomes operational”.
8.3 In his second affidavit sworn on 17th November, 2016 he expands on these matters but more particularly refers to works already carried out on the grid connection:-
“19. I say and believe that, in circumstances where there was no challenge to the validity of the decisions made by either planning authority to make section 5 declarations within the eight-week period provided by statute, the Notice Party’s contractors commenced certain construction works in respect of the 31 kilometre grid connection development in March 2016.
20. As at 18th November, 2016, approximately 6850 metres of ducting has been installed on that portion of the grid connection route located in the functional area of Kerry County Council. The total length of the ducting to be installed in the functional area of Kerry County council is 7250 metres. It is intended that the remaining 400 metres of ducting will be installed in early 2017. In relation to the section of the grid connection route located in the functional area of Cork County Council, as at 18th November, 2016 approximately 800 metres of ducting has been installed, with the remainder planned for installation at end of 2016 and during 2017. The total length of the ducting to be installed in the functional area of Cork County Council is 23550 metres.”
The court was informed by counsel for the notice party that this work of installation of the grid connection has been ongoing since Mr. Kelly swore his second affidavit.
9 The legal basis for the challenge to the impugned decisions and s.5 of the 2000Act
9.1 As the ‘merits’ of the challenge to the impugened decisions is a factor to which the court should have regard when considering an extension of time it is appropriate to mention these briefly. In doing so this court does not seek to review the leave decision in so far as the leave judge has already determined that there are “substantial grounds” (s.50A(3) of the 2000 Act).
9.2 The legal basis for the applicant’s challenge to the validity of An Bord Pleanála’s determination to grant planning approval for the Wind Farm is the decision of Peart J. in O Grianna and others v. An Bord Pleanála and others [2014] IEHC 632. That case concerned the Board’s determination to grant permission in respect of a wind farm comprising some six wind bind turbines and associated buildings, but the proposed development did not include the grid connection, detailed plans for which were not yet known. The applicants asserted that the Wind Farm and its grid connection were together one project and that the entire project should have been screened/assessed for EIA and AA. At para. 27 of his judgment Peart J. states:-
“27. I am satisfied that the second phase of the development in the present case, namely the connection to the national grid, is an integral part of the overall development of which the construction of the turbines is the first part. … The wind turbine development on its own serves no function if it cannot be connected to the national grid. In that way, the connection to the national grid is fundamental to the entire project, and in principle at least the cumulative effect of both must be assessed in order to comply with the Directive.”
9.3 The applicant contends that the grid connections for the Grousemount Wind Farm, being an integral part of the project, should have undergone EIA/AA screening and assessment by the Board and he contends that this did not happen. At Ground 12 of his Statement of Grounds he contends that “similarly, the works required for the grid connection also require AA and EIA”, and that accordingly the determinations made under s. 5 by the second and third named respondents are wrong in law. The applicant asserts that as a matter of fact and circumstance the screenings undertaken by the second and third named respondents were incorrect and that EIA and AA were required in respect of the consideration of the s.5 references.
9.4 He contends that by adopting a two stage approach – s.5 referrals for the grid connections, and s.37A for the windfarm approval – there was so-called project-splitting contrary to EU law.
9.5 As to his challenge to the validity of s. 5 of the 2000 Act under European law, he further pleads in his Statement of Grounds as follows:-
“13. The procedure under s. 5 of the Act does not require public notification and the public concerned, including the applicant herein has no opportunity to participate in the decision making. Similarly, the public is not notified of the decision and/or of any right to take judicial review. This is contrary to fair procedures and natural justice. In particular having regard to the within referral, concerning exclusively whether or not an EIA or an AA is required, the provisions of the EIA and the Public Participation Direction and the Aarhus Convention require that the public be given an opportunity to participate in such decision making. This is not permitted or facilitated under the provisions of section 5. Accordingly, the said section is contrary to European law.”
10 Summary of Facts relevant to an extension
10.1 The applicant in his affidavits gives a number of reasons which it is claimed justify the extension of time for challenging the s. 5 declarations and s. 5 itself. The respondents and notice party brought further facts to the courts attention. The factors raised by the applicant may be summarised as follows:
(1) That he only became aware of the fact of the s. 5 references during the course of the application by the notice party to the Board, whereupon he wrote to the Board on 12th October, 2015 seeking to appeal the second named respondent’s s. 5 declaration. He points out that he was already outside of the eight week period for seeking judicial review of the s. 5 declarations at that point in time.
This is the only basis for extension of time raised in the applicant’s first affidavit of 12th September, 2016, and accordingly was the only factual basis for an extension of time presented to the leave judge.
The following further reasons appear from the affidavit that the applicant swore on 2nd December, 2016 in response to the applications to set aside:
(2) He points out that s. 5 referrals are not advertised or otherwise notified to the public and that he had no way of knowing of their existence, or of the determinations. He asserts that there are a great many s. 5 referrals to planning authorities and it would not be logistically possible to track all such referrals or determinations by attending at the public counters in thirty-one planning authorities.
(3) He only received the second named respondent’s s. 5 file with their letter of 8th October, 2015.
(4) He was not furnished with the third named respondent’s file.
Having regard to his age (74) and condition (he suffers from a back and leg injury and does not drive) and the fact that he lives in North Mayo, it was not “in order for me to inspect the public file in Kerry”.
(5) He also says that his income is limited to the old age pension and he would not have the resources to spend on hotel rooms and photocopying fees. He considered appealing the determination of the third named respondent but “at the time, I did not have the necessary fee”.
(6) He considered that he had two alternative remedies:-
(a) Appeals to the Board in respect of the s. 5 declarations; and
(b) The substantive planning application of the notice party which was then being considered by the Board.
He did in fact attempt to appeal the second named respondent’s s.5 declaration but was out of time.
(8) He sought legal advice in relation to the s. 5 referrals and to the possibility of obtaining an extension of time to judicially review same. This appears to have been in or about November 2015. The advice received was that the s. 5 declarations related to development that was part of the overall Wind Farm project, and that following the O’Grianna decision the grid connection could not be divorced from the Wind Farm; that the Board would have to approach the application before it in the light of O’Grianna; and that any judicial review proceedings brought (at that time) against the s. 5 declarations “would be likely to be considered premature pending the determination of the Board”.
(9) That he did seek to appeal the s. 5 declaration of the second named respondent, but the appeal was rejected as having been made outside the permitted time.
(10) That he believes that the Board is the competent authority obliged to take all measures to remedy the failure to carry out assessment of environmental effects of the project as a whole, and he expected that the Board would rectify what he suggests were deficiencies in the consideration of the s. 5 referrals.
10.1 The respondents/notice party on their part emphasise:
(a) The length of delay – of over one year.
(b) That the applicant was aware of the time limit for bringing judicial review proceedings, and was therefore aware that the eight week period had expired in respect of the third named respondent’s s. 5 declarations on 26th May, 2015, and in respect of the second named respondent’s s. 5 decisions on 30th June, 2015. He confirmed that having been involved in many judicial review cases he is fully aware of this eight week time limit. He does not dispute the averment of Mr. Kelly to the effect that he has been a party in over thirty separate judicial review proceedings.
(c) The applicant having become aware of the s.5 Declarations failed to seek leave promptly.
(d) Having received legal advice the applicant still failed to seek leave, and sat on his rights. The fact of having sought legal advice was not, but should have been, brought to the attention of the leave judge.
(e) The notice party acted on foot of the s.5 declarations and would suffer actual prejudice if the time extension were to be confirmed. The second and third respondents would suffer general prejudice in that its s.5 declarations in general would be at risk of late judicial review after the period of 8 weeks had elapsed.
11 Discussion
11.1 Section 5 does not require that there be any public notification of a referral, and there are no statutory consultees, and no right of the public to participate. The evidence that the applicant was unaware of the s. 5 referrals, or the declarations of exemption made on 1st April, 2015 and 6th May, 2015, until some date in September 2015, was not contested. The absence of notification or publication in the circumstances meant that the applicant could not have, and could not reasonably be expected to have, known about these declarations.
11.2 On these facts it is clear that the applicant satisfied the test at s. 50(8)(b) namely that the circumstances that resulted in his failure to make an application for leave to seek judicial review of the s. 5 declarations within the period of eight weeks from the date of those declarations “were outside the control of the applicant for the extension”.
11.3 The court must then consider s.50(8)(a). The onus is on the applicant seeking an extension of time to demonstrate “good and sufficient reason” for such extension covering the entire period at least up to the date that papers seeking leave were lodged on 14th September, 2016. The court approaches this aspect upon the basis that the applicant first became aware of the referrals and declarations at some point between 7th and 17th September, 2015. At that stage the applicant became aware that the referrals related to the grid connection, and that declarations of exemption had been made. He must also be taken to be aware at that time that the exemptions necessarily meant that each local planning authority was determining that EIA and AA were not required – this follows because as a matter of law as s.4(4) of the 2000 Act provides that no development that requires EIA or AA can be exempted development.
11.4 The applicant was well aware that he was already outside of the time limit for bringing judicial review of the s. 5 declarations. Such was his familiarity with planning law that he was also familiar with the requirements for seeking an extension of time under section 50(8). This is a factor that this Court is entitled to take into account. It was incumbent on him to act promptly from the time he became aware of the declarations. In a case that bears some similarity to the present one, Bracken v Meath County Council [2012] IEHC 196, Birmingham J dismissed judicial review proceedings initiated by the applicants and seeking to review s.5 declarations of exemption which they only became aware of some six months on. He held:
“18. Turning to the substantive issue, in this case the applicants were completely unaware of the declaration that has been made until the 17th November, 2011. In the circumstances of this case and, in particular, given the history surrounding the development which had seen Circuit Court proceedings commenced by the applicant’s late mother and compromised, there can be no question of the applicants being out of time and refused an extension, before they were aware of the declaration. However, once they learnt of the Declaration of Exemption it was incumbent on them to move with all possible expedition. This they singularly failed to do. I find the explanation of waiting for a replying affidavit in the Circuit Court proceeding quite unconvincing. In mid/late November the applicants found themselves affected by a decision made more that six months earlier. If they were to succeed in mounting a challenge, no further time could be lost, but instead further time was allowed to pass, including approximately five weeks after the replying affidavit was delivered in the Circuit Court.
“18.[sic] In my view the good and substantial reasons which would have justified extending time ceased to have effect around the 8th December or thereabouts and thereafter there were not good and substantial reasons in existence justifying an extension of time. Moreover, from a date fairly shortly after the 17th November, 2011 it was very plainly, to echo the language of Hardiman J., not the situation that the failure to commence judicial review proceedings was due to circumstances beyond the applicant’s control. Far from that being the case, the applicants, on their own account, consciously and deliberately decided to defer action.”
11.5 It may be said that to have attempted to challenge the s. 5 declarations without first reviewing the s. 5 referral files might have been inadvisable. Having regard to the lapse of time it was incumbent on the applicant, if intending to pursue judicial review, to obtain and review those files “with all possible expedition”. He did this with the second named respondent, and was in a position to consider their file on or shortly after 8th October, 2015. At that point in time he was or ought to have been in possession of such planning authority information as he might have required to seek leave of the court to challenge the validity of that decision. He did not do so.
11.6 The third named respondent declined to send him a full copy of their file but did proffer the Planner’s Report. There is no evidence that the applicant took up that offer, and it could have been sent to him in the post. Quite possibly that report would have given him sufficient further information to launch proceedings. He has only himself to blame for that omission. They also offered inspection, and again the applicant did not take up that offer – he says for logistical/financial reasons.
11.7 The court cannot accept as “good or sufficient” reason the personal or financial difficulties raised by the applicant in terms of inspecting the third named respondents s. 5 file, or commencing proceedings in 2015. This is particularly so in the case of this applicant who avers that he has an interest in renewable energy and wind farm developments, and a particular interest in the protection of habitats and wild flora and fauna, and professes concerns that Irish planning decision-making complies with the European legislation relating to EIA and AA. In the sense that the applicant is geographically remote from the development of the Grousemount Wind Farm and associated grid connection, but chooses to be interested and involved in the planning process related to those developments, he must accept as a possible consequence of that interest or involvement that he will need to inspect local planning authority files, and indeed that he may need to visit and inspect the project location. While, looked at from the applicant’s personal perspective, his age, physical condition and financial circumstances may amount to good reason for his delay, it cannot have been intended by the Oireachtas that such personal circumstances would amount to “sufficient” reason for a court to extend time, or at any rate as sufficient to grant anything other than a short extension of time. To decide otherwise would be contrary to the intention of the legislator which, as has been noted, was to confine, in a manner that balances the rights of developers and planning authorities with those of objectors, the opportunity for persons to impugn the validity of planning decisions. It would also be inconsistent with the approach taken by the courts as to the strictness of time limits, and the extension of time limits, in planning judicial review. It is further inconsistent with the fact that the applicant was in a position to take legal advice at that time, and indeed that he was financially and otherwise in a position to commence the present proceedings in September, 2016.
11.8 If, which this court does not accept, the applicant had good and sufficient reason not to commence proceedings in the autumn, those reasons ceased to be valid after he had taken legal advice in or about November, 2015.
11.9 Turning to the first of the two alternative remedies suggested by the applicant, namely appeals to the Board in respect of the s. 5 declarations, the first and obvious point is that he did not appeal the third named respondent’s declaration. Secondly his appeals were out of time and it is abundantly clear from s. 5 of the 2000 Act that the board has no power to extend time for appeals. Thirdly as this Court has observed earlier the right to appeal is restricted to “any person issued with a declaration” (s. 5(3)), which in turn is restricted to the person seeking the declaration and the owner / occupier of the land in question (s. 5(2)(a)). Notwithstanding that this was not given as a reason by the board in its refusal to accept the appeal of the second named defendant’s s.5 declaration, the applicant does not appear to have had any statutory right to appeal either of the declarations. Whether this is right as a matter of EU law in entirely another matter.
12 Prematurity
12.1 The second “alternative remedy” – really one of prematurity – suggested by the applicant is the substantive planning approval application of the Notice Party which was then under consideration by the Board, and which he asserts could and should have resulted in full EIA/AA of the entire project including the grid connection. The applicant felt, and was so advised in November, 2015, that a challenge to the s. 5 declarations would be premature pending the decision of the Board on the wind farm approval application, and that judicial review is a matter of last resort, and he should await the outcome of the Board’s decision – which was delivered on 21st July, 2016.
12.2 In support of the prematurity argument the applicant relied on O’Grianna. As has been said, that case on project splitting is central to the merits of his challenge to the Board’s decision, and is a ground upon which he obtained leave and which it is not sought to have set aside. However it is necessary to give it some further consideration to assess whether that decision could of itself amount to “good and sufficient” reason to delay any challenge until after the Board’s decision.
The circumstances considered by Peart J. in O’Grianna were somewhat different. In that case the details of the connection to the national grid were unknown when approval was sought and given for the windfarm. It is correct to say that Peart J. determined that the grid connection was an integral part of the overall development and the construction of the turbines but he carefully stated:-
“In that way, the connection to the national grid is fundamental to the entire project, and in principle at least the cumulative effect of both must be assessed in order to comply with the Directive.” (para. 27)
He repeats this in para. 28 where he states:-
“…then in due course when the details of the connection to the national grid are known, a cumulative assessment of the environmental impact of both can be carried out…”
His decision does not go so far as to say that separate EIA / AA of the grid connection must be carried out. Nor does his decision deal with the status of an earlier s.5 declaration of exemption in respect of the grid connection, or the impact of such a declaration on a later application for planning approval.
If the advice to or belief of the applicant in November, 2015 was that this decision bound the Board to carry out full and separate EIA/AA of the grid connection, it was at best an opinion or belief on a matter of the law on which the jurisprudence was unclear or inconclusive. The court notes in passing that in its decision in the present case the Board states:-
“The Board completed an Environmental Impact Assessment in relation to the proposed development and concluded that, by itself and in combination with other development in the vicinity, including the proposed grid connection route, and subject to the implementation of the mitigation measures proposed, the effects of the proposed development on the environment are acceptable.”
In other words it says it carried out a cumulative EIA. Further with regard to AA the Board’s decision states that:-
“In completing the screening exercise, the Board adopted the report of the Inspector and concluded that, by itself or in combination with other development in the vicinity, including the proposed grid connection route, the proposed development would not be likely to have a significant effect on any European Site in view of the Site’s conservation objectives, and that a Stage 2 Appropriate Assessment (and submission of a Natura Impact Statement) is not, therefore, required.”
It was therefore unsafe and unsound for the applicant in November, 2015 to reserve such right and opportunity as he had at that time to seek an extention of time to seek leave to judicially review the s.5 declarations based on O’Grianna.
12.3 Further in that the applicant relies on the legal advice that he obtained in November, 2015 for delaying issuing proceedings, it is a matter of concern to this Court, and one that is raised by the respondents, that this only appeared for the first time in the applicant’s second affidavit sworn on 2nd December, 2016, and was not brought to the attention of the leave judge. It is well established that an applicant moving ex parte has an obligation of candour to the court, and to bring to the court’s attention all matters that are or could be relevant to its decision. In not disclosing to the leave judge that the applicant had sought legal advice in November, 2015, on foot of which he decided not to seek judicial review of the s. 5 declarations at that time, the applicant was failing to disclose a material fact. This is a further factor that this Court is entitled to take into account in determining the set aside applications, although I do not consider it to be of great importance on this occasion given the applicant’s admitted extensive and intimate knowledge of domestic and EU planning law and practice.
12.4 In further support of the ‘prematurity’ argument counsel for the applicant adverted to a recent decision on the nature and status of a s. 5 declaration. This was considered by the Court of Appeal in Killross v. ESB [2016] IECA 207, in the context of a s. 160 injunction application. Hogan J., delivering the judgment of the court held:-
“27. In my view, it is clear both from a consideration of these authorities and an examination of this question from first principles that the High Court cannot go behind a determination in a s. 5 reference in the course of a s. 160 application. One can arrive at this conclusion for a variety of different – if overlapping – reasons.
28. First, it can be said that as the planning authorities (or, the Board, as case may be) determined that the works in question represent exempted development, it necessarily follows that no planning permission is required. The logical corollary of this conclusion is that the development in question cannot by definition be ‘unauthorised’ within the meaning of s. 160 if no planning permission is required so that consequently any such s. 160 application is bound to fail.
29. Second, it could equally be said that the s. 160 application represents a collateral attack on the decision of the planning authority, since it effectively invites the Court to re-visit the merits of the issue which had already been determined in the course of the s. 5 determination. This is further re-inforced so far as the present proceedings are concerned, since Killross elected to challenge the validity of three of the s. 5 determinations in judicial review proceedings and failed in that endeavour.
30. Third (and related to it the second argument), could be said that the s. 160 proceedings represents an attempt indirectly to challenge the validity the s. 5 determinations otherwise than by means of the judicial review requirement specified by s. 50 of the 2000 Act.”
12.5 This decision is significant and in the court’s view tends to support the proposition that in November 2015 the applicant could not afford to risk delaying his challenge. While it might have been thought, before Killross, that a s. 5 declaration was no more than a declaration that a particular development was exempt from the requirement of planning permission or approval, it clearly does have a status in itself. It establishes that a particular development is not “unauthorised”, and the High Court cannot go behind that, and cannot permit a collateral attack. As the Court of Appeal found, a s.160 application in respect of an “exempted” development is bound to fail. Although not adverted to in Killross, because it did not arise, it must logically follow from s. 4(4) of the 2000 Act (which provides that a development cannot be an exempted development if an EIA or AA is required) that the High Court cannot entertain a collateral challenge to a s. 5 declaration on the basis that an EIA or AA is required. The s.5 declaration is a matter that can only be reviewed by appeal to the Board, or by judicial review brought in time in the High Court, and after that it is beyond attack.
12.6 Further it is self evident that the s. 5 declarations of the second and third named respondents were not decisions of the Board, and arose under a different jurisdiction to that invoked by the application to the Board for approval of the Grousemount Wind Farm – a Strategic Infrastructure Application considered under s. 37E of the 2000 Act. The above considerations serve to emphasise the difference between the two applications, the s. 5 references being made to different planning authorities.
12.7 Counsel for the applicant sought to counter this by arguing that the s. 5 declarations were preliminary or administrative acts or decisions leading to the determination by the Board on the Strategic Infrastructure approval application, such as to justify the deferral of a leave application in November 2015. He relied on North East Pylon Pressure Campaign Limited v. An Bord Pleanála [2016] IEHC 300, where Humphreys J. refused leave to challenge the validity of an application for Strategic Infrastructure Development which was pending before the Board on the grounds that it was premature. Among the grounds of challenge included was that the application was invalid because it was not lodged by the correct applicant who would fall within s. 182A of the 2000 Act, as carrying out the proposed electricity development, and that the EIS was inadequate. Humphreys J. held the proceedings to be premature stating at para. 213:-
“213. The challenge of this type must therefore be held to be premature. It may be that development consent will be refused, in which case the applicants will have no further complaint. If the application is granted, and the applicants at that stage wish to pursue judicial review, they will in accordance with the statutory intention have to demonstrate substantial grounds. An interpretation that an approach that the present application is premature serves that statutory purpose and best husbands the resources of the court.
214. An application of this type must therefore be viewed as premature not just in relation to matters that can be specifically resolved by the decision-maker (in this case, everything other than the challenge to the ministerial designation), but also as to any matters that will be resolved as a matter of practicality by a favourable decision (thus, if the board finds against EirGrid, the challenge to the designation is resolved by being rendered moot).”
Humphreys J. went on to state at para. 239:-
“(h) Section 50 must therefore be interpreted as meaning that substantive and determinative acts and decisions of a local or planning authority or the board which are not capable of being substantively re-visited in the final decision are the type of acts and decisions to which the section applies. Administrative, subordinate, minor, tentative, provisional, instrumental or secondary steps taken are not acts or decisions to which s. 50 applies. In general therefore, the date on which time begins to run must be taken to be the date of the final decision complained of, although there may be exceptional cases where an interim decision is so substantive and determines rights and liabilities irreversibly and to such an extent as to warrant it being regarded as a decision to which s. 50 applies. Thus only a formal decision having irreversible effects triggers the start of the running of time for the purposes of s. 50.
(i) By way of example, s. 50 has no relevance to decisions such as steps in the pre-statutory process, decisions to accept and process an application, decisions to convene or conduct an oral hearing, or a decision to issue an opinion as to the contents of the environmental impact statement under section 182E.”
12.8 In the court’s view, by reason of the differences between s. 5 declarations and s. 37E infrastructural applications to the Board, prematurity does not arise in the instant case under domestic law. The s. 5 declarations were subject to a right of appeal to the Board albeit restricted. They were not “administrative, subordinate, minor, tentative, provisional, instrumental or secondary steps” within the Strategic Infrastructural approval process governed by s.37E. As Killross demonstrates, they were of significant legal effect, and not capable of challenge or review before the High Court – save by way of judicial review brought in time. They were “formal decision(s) having irreversible effects”. Thus they could not be substantively reviewed by the Board. When not appealed within 4 weeks or subjected to judicial review within 8 weeks they became final and binding in their own right, and their correctness could not be revisited by the Board. I therefore accept the submissions by the respondents to the effect that the s. 5 declarations, and the grant of planning approval, were discrete and distinct decisions which were made by different planning authorities exercising different jurisdiction under the 2000 Act and concerning different, albeit related, development. The applicant could not afford to ignore them in November, 2015.
12.9 Counsel for the applicant relied to the same effect on the decision of the House of Lords in R v. London Borough, Ex P Burkett [2002] UKHL 23, in support of the contention that he had no obligation to seek review of the s. 5 declarations even after he became aware of them in October/November 2015. There, the court considered the time limits for judicial review in the context of European law. In reference to Council Directive 97/11/EEC (the amending Directive concerning environmental assessment), Lord Steyn stated at p. 1599:-
“The Directive creates rights for individuals enforceable in the courts …. There is an obligation on national courts to ensure that individual rights are fully and effectively protected: see the Berkeley case, at pp 608D (Lord Bingham of Cornhill) and 618B-H. The Directive seeks to redress to some extent the imbalance in resources between promoters of major developments and those concerned, on behalf of individual or community interests, about the environmental effects of such projects.”
While this may be accepted as a general proposition, that case does not assist the applicant because the House of Lords held that under the law of the UK the planning authority resolution, unlike the s.5 declaration, “…is not a juristic act giving rise to rights and obligations. It is not inevitable that it will ripen into an actual grant of planning permission.” This contrasts with the finding of the Court of Appeal in Kilross as to the status of s.5 declarations.
13 EU Law
13.1 Counsel for the applicant also called in aid in case law of the Court of Justice of the European Union, in relation to domestic law time limits for the review of decisions in which the EIA Directives are engaged. Article 11 of Directive 2011/92/EU, so far as relevant, states:-
“1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.
3. …
4. …
5. In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.”
13.2 Counsel accepted that under this provision, Member States have the freedom to legislate in relation to the time limits applicable to the review of relevant decisions. However, he argued that s. 50(8) lacked a requisite certainty because of its discretionary nature, and that the s. 5 decisions fell foul of the requirement that they did not contain practical information in relation to the appeal procedure, and more particularly, the right to seek judicial review.
13.3 He relied on Uniplex (UK) Limited v. NHS Business Services Authority C-406/08. That was a public procurement case in which review provisions in the UK Public Contracts Regulations 2006 required that judicial review proceedings must be:-
“…brought promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose unless the court considers that there is good reason for extending the period within which proceedings may be brought”.
The court held that this provision gave rise to uncertainty:-
“41. The possibility cannot be ruled out that such a provision empowers national courts to dismiss an action as being out of time even before the expiry of the three-month period if those courts take the view that the application was not made ‘promptly’ within the terms of that provision.
42. As the Advocate General observed in para 69 of her opinion, a limitation period whose duration is placed at the discretion of the competent court is not predictable in its effects. Consequently, a national provision providing for such a period does not ensure effective transposition of Directive 89/665.
43. It follows that the answer to the first part of the second question is that Article 1(1) of Directive 89/665 precludes a national provision, such as that at issue in the main proceedings, which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.”
13.4 It was submitted that while the eight week period provided for in s. 50(6) was certain and predictable, to interprete s.50(8) as enshrining an additional obligation to act promptly thereafter would not be certain or predictable in its effects.
13.5 Uniplex was a case concerned with public procurement. In my view there are differences in the EU and domestic rules and regulations relating to public procurement processes on the one hand, and planning and environmental matters on the other, that are material. Fundamentally, procurement is a contractual process driven by commercial motives, and regulated only to encourage and ensure compliance with free and fair movement of goods and services within the EU. Time limits within a procurement process are usually strict and immutable, or only extendable in the most exceptional circumstances – see for example, this Court’s decision in BAM v. NTMA [2016] IEHC 546.
13.6 Leaving aside such considerations, Uniplex is not authority for the proposition that, once there is a certain and predictable period within which review proceedings must be initiated, any extension thereof that is discretionary is a contravention of Article 11. As counsel concedes, the eight week period in s.50(6) is certain and predictable – unlike in Uniplex where, even if proceedings were instituted within the three month period, but were not brought “promptly”, they could be held to be out of time. Such a provision was inherently uncertain. Section 50(6) gives certainty to any person aggrieved with a planning decision. If there was no s. 50(8), it may be questioned whether the eight week time limit of itself would infringe EU law. Of course, the absence of any power to extend time under the former provision was held unconstitutional, and led to the enactment of s. 50(8). But the effect of that discretionary power is not one that can be used to cut down the basic period (unlike the UK provision in Uniplex) but rather one that can only be used to extend time. It, therefore, exists for the benefit of the applicant, who for reasons outside of his or her control was unable to seek leave in time, and has good and sufficient reason for an extension.
13.7 Counsel also relied upon the following passage from the judgment of the court in Uniplex to support the argument that time only starts to run from the ‘date of knowledge’:-
“32. It follows that the objective laid down in Article 1(1) of Directive 89/665 of guaranteeing effective procedures for review of infringements of the provisions applicable in the field of public procurement can be realised only if the periods laid down for bringing such proceedings start to run only from the date on which the claimant knew, or ought to have known, of the alleged infringement of those provisions (see, to that effect, Universale-Bau and Others, paragraph 78).”
However this passage must be read in the context of public procurement. This is apparent from the immediately preceding paragraphs:-
“30. However, the fact that a candidate or tenderer learns that its application or tender has been rejected does not place it in a position effectively to bring proceedings. Such information is insufficient to enable the candidate or tenderer to establish whether there has been any illegality which might form the subject matter of proceedings.
31. It is only once a concerned candidate or tenderer has been informed of the reasons for its elimination from the public procurement procedure that it may come to an informed view as to whether there has been an infringement of the applicable provisions and as to the appropriateness of bringing proceedings.”
13.8 Section 50(8) clearly allows the court to consider when the applicant for judicial review of a planning decision first became aware or ought to have become aware of the impugned decision. As found in Skydiving the eight week period does not commence on the date of knowledge. However, it is of essential relevance to the exercise by the court of its discretion to extend time in any particular case because the effect of s. 50(8)(b) is that a court considering extending time must consider when the applicant first became aware of the decision where the applicant claims that the access to such knowledge was outside of his or her control.
13.9 The applicant’s argument based on Uniplex as to uncertainty in the s. 50(6) time limit and the s. 50(8) power to extend time, and the suggestion that time only runs from the ‘date of knowledge’ must therefore be rejected.
14 Non-notification of right to appeal or to seek judicial review
14.1 Counsel further submitted that the s. 5 declarations did not contain the necessary notification of the right of appeal or right to seek judicial review, and hence that time was correctly extended by the leave judge. Counsel relied on the decision in Commission v. Ireland (C-427/07) in which the applicant was entitled to be provided with practical information on how to challenge a planning decision. It is as a result of that decision that such information is now provided by the Board in the form of a judicial review notice accompanying all of its decisions. The court held:-
“96 As regards the fifth argument, it must be borne in mind that one of the underlying principles of Directive 2003/35 is to promote access to justice in environmental matters, along the lines of the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters.
97 In that regard, the obligation to make available to the public practical information on access to administrative and judicial review procedures laid down in the sixth paragraph of Article 10a of Directive 85/337, inserted by Article 3(7) of Directive 2003/35, and in the sixth paragraph of Article 15a of Directive 96/61, inserted by Article 4(4) of Directive 2003/35, amounts to an obligation to obtain a precise result which the Member States must ensure is achieved.
98 In the absence of any specific statutory or regulatory provision concerning information on the rights thus offered to the public, the mere availability, through publications or on the internet, of rules concerning access to administrative and judicial review procedures and the possibility of access to court decisions cannot be regarded as ensuring, in a sufficiently clear and precise manner, that the public concerned is in a position to be aware of its rights on access to justice in environmental matters.”
14.2 Based on this, counsel submitted that judicial review notices should have been published notifying the public concerned of their rights to take judicial review in respect of the s. 5 declarations and the time limits applicable.
14.3 This argument goes more to the merits of the challenge to s.5 as infringing EU law, rather than extension of time. Notwithstanding the lack of public notices and notification, the applicant did, in fact, become aware of the s. 5 declarations in September 2015. He also admits that he was aware of the eight week time limit and the jurisdiction of the court to extend time for seeking leave in appropriate circumstances in accordance with s. 50(8). He cannot, therefore, use this argument as one that justifies the extension of time in his case. Had he commenced his challenge within a reasonable time of becoming aware of the s. 5 declarations, he would have stood a reasonable prospect of obtaining an extension of time, and if successful, he could have pursued his challenges to those decisions and to the validity of s. 5 under European law. It is true that the leave judge was satisfied that this ground was substantially arguable sufficient to warrant the grant of leave, but this cannot excuse this applicant for the further delay of nine or ten months before commencing the present proceedings.
15 Gruber
15.1 Counsel for the applicant also placed particular reliance on the decision in Gruber v. UVK (C-570/13 of 16th April, 2015). That was a request for a preliminary ruling, and concerned a development consent for the construction and operation of a retail park on land bordering property belonging to Ms. Gruber. The competent Austrian authority had determined at a preliminary stage on 21st July, 2010 that the development did not require EIA. As a neighbour Ms. Gruber raised objections to this on 8th March, 2011, but the development consent issued without prior EIA on 21st February, 2012. She brought an action for annulment of that decision. However, notwithstanding that as a neighbour she had the right to raise objections during the consent procedure, under Austrian law the right to bring an action reviewing the consent decision was reserved to the project applicant, the participating authorities, and the Ombudsman for the environment, and the municipality concerned. The following extracts from the judgment of the court are relevant:-
“36. Article 11(3) of Directive 2011/92 provides that Member States are to determine what constitutes a sufficient interest or impairment of a right, consistently with the objective of giving the public concerned wide access to justice. In that regard, the second paragraph of Article 9(2) of the Aarhus Convention provides that a sufficient interest or impairment of a right is to be determined ‘according to the provisions of domestic law and in accordance with the objective of giving the public concerned wide access to justice’. In compliance with this objective, the implementation of that condition of admissibility is a matter of national law.
37. It should also be recalled that where, in the absence of EU rules governing the matter, it is for the legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, those detailed rules must not be less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness)…”
15.2 Having referred to the relevant provisions of Austrian law, the court proceeded:-
“42. Having regard to that provision’s terms, it appears that persons falling within the concept of ‘neighbour’ may be part of the ‘public concerned’, within the meaning of Article 1(2) of Directive 2011/92. Those ‘neighbours’ can bring an action only against a consent granted for the construction and operation of a facility. Since they are not parties to the procedure examining whether an EIA need be carried out, they cannot challenge that decision in the context of an action against the development consent decision. Thus, by restricting the right to bring an action against decisions examining whether an EIA need be carried out in relation to a project only to the project applicants, the participating authorities, the ombudsman for the environment … and the municipality concerned, the UVP-G 2000 deprives a large number of individuals from exercising that right to bring an action, including, in particular, ‘neighbours’ who may meet the conditions laid down in Article 11(1) of Directive 2011/92.
43. That near general exclusion restricts the scope of Article 11(1) and is accordingly incompatible with Directive 2011/92.
44. It follows that an administrative decision not to carry out an EIA taken on the basis of such national legislation cannot prevent an individual, who is part of the ‘public concerned’ within the meaning of that directive and satisfies the criteria laid down in national law regarding ‘sufficient interest’ or, as the case may be, ‘impairment of a right’, from contesting that administrative decision in an action brought against either that decision, or against a subsequent development consent decision.” [Emphasis added]
15.3 With due respect to counsel, this decision relates to a different point, not raised in these proceedings, namely the validity of domestic legislation limiting the categories of person who may challenge a preliminary decision screening out the need for EIA, and in particular legislation that prevents neighbours taking that challenge. Such a point might be raised in the context of the limited right of appeal to a s. 5 declaration – rather surprisingly neighbours are not amongst those who can appeal such a declaration to the Board. However, that is not a point taken in these proceedings, and indeed, the applicant who resides in Co. Mayo might not have locus standi to raise such a point. Whatever may be said of the limitations of s. 5, s. 50 does not limit the categories of a person who may bring proceedings by way of judicial review challenging a planning decision, including a declaration under section 5. If the applicant were able to satisfy the High Court that he was entitled to an extension of time within which to seek leave, he would be entitled to challenge the validity of the s. 5 declarations. Gruber, therefore, does not assist him.
16 Third Party Prejudice
16.1 As Clarke J. in Kelly v. Leitrim County Council stated, when listing some of the factors that may be relevant to a court considering extending time:-
“…It therefore seems to me that the question of whether third party rights might be involved in the late challenge to a decision is a factor which the court is entitled to take into account.”
16.2 This is very relevant in the present case. Had the applicant sought and obtained leave to seek judicial review of the s. 5 declarations in late 2015, he could also have sought a stay or injunction preventing the ESB from carrying out works the subject matter of the declarations i.e. work on the grid connection pending the trial on those proceedings. Even if he had not sought or obtained a stay or injunction, it is unlikely that work on the grid connection would have commenced. At any rate, in the absence of any injunction, or any request that work not commence, that work in fact commenced in March 2016, and progressed apace.
16.3 The applicant still did not seek an injunction notwithstanding averments in the affidavit of Mr. John Kelly sworn on 10th October, 2016, on behalf of the notice party, to the effect, that it was moving forward with the project including the grid connection and negotiations with EirGrid plc in relation to linking to the grid, and that it had a construction programme of some eighteen months, and time constraints in relation to the Refit 2 Scheme.
16.4 In the supplemental affidavit sworn by Mr. Kelly on 17th November, 2016, he deposes to the extent to which ducting had already been laid pursuant to the two s. 5 declarations: at that time approximately 6850m of the ducting due to be installed in Co. Kerry, the total length being 7250m; and 800m within the Cork County Council functional area. In circumstances where there was no challenge to the validity of the s. 5 decisions, the notice party was lawfully entitled to treat the grid connection works as exempted development, and to proceed with the works. In so doing, it is clear that it expended considerable monies – this is part of a €2m overall wind farm/grid connection development – and is commercially obliged to forge ahead in this fashion in order to meet deadlines.
16.5 I am satisfied that there was significant third party prejudice. While this is a factor that was not brought to the attention of the leave judge, there is no evidence that this was due to any lack of candour on the part of the applicant. It may well be that he was unaware that such works had commenced in March 2016, in Co. Cork and Co. Kerry, simply because he was residing in Co. Mayo. Be that as it may, there were, before this Court, significant new material facts relevant to the question of extension of time. It is a very significant factor that this Court takes into account in finding that the applicant is not entitled to an extension of time within which to challenge the s. 5 declarations.
17 The Remedial Obligation
17.1 The applicant further argues that if this Court sets aside the order granting extension of time for leave to seek judicial review in respect of the s. 5 declarations, this Court will be in breach of the general remedial obligation to ensure that there is an effective remedy for breaches of the EIA Directives, and/or failure to carry out AA under the Habitats Directive. It is argued that as s. 5 declarations cannot be revisited by the High Court (Killross), they effectively entitle the developer to carry out the development, and therefore constituted development consent for the purposes of the EIA Directives. At para. 59 of his written submission, counsel for the applicant develops this:-
“That being so, the development that will be carried out on foot of the s. 5 declarations will be immune from enforcement. If the applicant is correct and this development requires consent, EIA and AA, then, the development will be carried out in breach of EU law. Moreover, the fact that this breach or the possibility of the development being carried out without such consent and assessments only crystallised when the Board granted permission without consenting or assessing the grid connection. This is when the breach of EU law in fact occurred, the granting of a consent without assessing the entire development. It is the applicant’s case that the State, and this Honourable Court, is under an obligation to remediate breaches of Community law. As no development has yet been commenced, and all of the parties, including the developer are State bodies, this is particularly significant in the instant case….”
17.2 A number of points may be made in answer to this argument. Firstly, it is based on an incorrect factual assumption that the development work had yet to be carried out – as averred to in Mr. John Kelly’s second affidavit, the construction work on the grid connection had already commenced as of March 2016.
17.3 Secondly, the submission only serves to emphasise the importance of the applicant moving to seek an extension of time for leave to seek judicial review as promptly as possible after the expiry of the eight week period from the making of the declarations, and after he had become aware of them in September 2015.
17.4 Thirdly, the applicant has obtained leave to challenge the validity of the Board’s approval. As part of that substantive challenge, it remains open to the applicant to argue that the Board’s decision infringes the obligation to remediate breaches of Community law.
17.5 Were this Court to decide otherwise, it would mean that s. 5 declarations could be subjected to judicial review many months, if not years, after the time permitted for judicial review or any reasonable extension that might be allowed under s. 50(8) has expired, purely on the basis of a remedial obligation. This is emphatically not what the Oireachtas provided in the 2000 Act, nor is it how the Irish courts have consistently construed and applied s.50(8). Article 11 of the Directive, in giving Member States the power to legislate for effective review procedures, cannot have intended the remedial obligation to have such an over-arching effect. In the present case by the time leave was granted in September 2016 well over one year had elapsed from the date of expiry of the eight week period. The applicant simply cannot circumvent the fact that he sat on his rights for a period of some ten months, in the course of which substantial works were actually carried out by the notice party.
17.6 The court will therefore set aside the leave granted to seek the reliefs sought at paragraph (c)(2) and (3) against the second and third named respondents.
18 Declaratory relief that Section 5 is contrary to European Law
18.1 The State parties submit that the consequence of the court setting aside the grant of leave to apply for judicial review in respect of the s. 5 declarations is that the challenge to the validity of s. 5 sought at para. 4 of the statement of grounds – which is effectively a claim against the State respondents, and a general attack on s. 5 which it is said breaches European law – must also be set aside. It is argued that if the applicant is not entitled to pursue a challenge in respect of the s. 5 declarations, he then has no standing to bring a general challenge to the validity of s. 5, and in any event, the same time limits apply.
18.2 The grounds for the general challenge to s. 5 are those set out in paras. e(13) and e(14) of the statement of grounds. Ground e(13) asserts that the s. 5 procedure is flawed because it does not require public notification, and the public concerned have no opportunity to participate in the decision making, contrary to fair procedures and natural justice and contrary to the EIA Directives, the Habitats Directive, the Public Participation Directive and the Aarhus Convention. It is noteworthy that this ground is worded in general terms, and without reference to the second and third named respondents’ s.5 declarations.
18.3 Ground e(14) pleads that the applicant only became aware of the fact of the s. 5 declarations when addressing the approval application to the Board, that he was out of time to appeal to the Board, that the approval application “left no doubt” but that EIA and AA were required, and that at this point he was already out of time.
18.4 Counsel for the State argued:-
(1) that these two grounds amount to a collateral attack on the s. 5 declarations. As such, the same time limit which applies to the s. 5 declarations applies also to the challenge to the lawfulness of s. 5 under EU law.
(2) that the applicant does not have any locus standi to challenge the validity of s. 5 under European law.
18.5 Counsel for the applicant argued that the time limit of 8 weeks did not apply to a challenge to legislation, and that the failure of the 2000 Act to require notification of s.5 referrals brought about the situation where the applicant was unaware of the declarations in time. He argued that here there were direct attacks on the s.5 declarations and the Board’s decision. He further argued that the attack on s.5 itself would not necessarily and as a natural consequence undermine these two particular s.5 declarations and was not therefore a collateral attack. As a fall-back position Counsel advised the court that the applicant wished to challenge s.5 even if he is not permitted to challenge the actual s.5 declarations, and emphasised that in such circumstances the applicant would not be pursuing any collateral challenge to the s.5 declarations but rather pursuing points related to the absence of public participation in the referral process. He would be seeking purely declaratory relief in respect of s.5.
18.6 It is appropriate first to refer to the provision of the 2000 Act relating to the interest that an applicant must establish in order to obtain leave to seek judicial review of planning matters. Under s.50A(3) of the 2000 Act (as amended) the court granting leave must be satisfied that –
“(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b) (i) the applicant has sufficient interest in the matter which is the subject of the application,…”
Section 50A(4) now provides:-
“(4) A sufficient interest for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.” [Emphasis added].
The word ‘sufficient’ was inserted in both subsections by s.20 of the Environment (Miscellaneous Provisions) Act, 2011.
18.7 Having determined that the applicant cannot now challenge the s.5 declarations it is necessary to revisit the question whether he has “sufficient interest” to be permitted to continue with his general challenge to s.5.
18.8 What is “sufficient interest”? This must be considered on a case by case basis, but the very requirement suggests some constraints on what can suffice. It clearly means more than an idle, passing, casual or ‘mere interest’. Implicit is that there should be some real connection between an applicant and the matter in suit to give the “interest” relevance or foundation.
Further the definition must be read in the context of the reference in s.50A(3)(b)(i) to “…the matter which is the subject of the application”. Section 50A(1) also defines “section 50 leave” to mean :-
“…leave to apply for judicial review under the Order in respect of a decision or other act to which section 50(2) applies”.
Therefore a section 50 leave means a leave in respect of “a decision or other act” of the Board or a local or planning authority.
18.9 At the level of principle therefore the applicant needs to demonstrate “sufficient interest” by reference to a particular decision or other act of the Board or local or planning authority – it is not “sufficient” to bring a free-standing challenge to a statutory provision without such connection. The leave must engage a particular planning decision.
18.10 The applicant is not a statutory consultee in respect of s.5 referrals, the s.37E application, or indeed any planning applications. He had no role in the particular s.5 planning referrals. He has no direct or indirect relationship or proximity, physical, legal, commercial or otherwise, to the Grousemount windfarm or grid connection, other than through his submission to the Board on the windfarm approval application. But that involvement cannot give him “sufficient interest” in the earlier, different, s.5 referrals. He will not be impacted personally by the windfarm project. Absent any leave to challenge the s.5 referrals his only interest is an individual with a general and well-informed interest in protection of the environment and ensuring that the State and planning authorities comply with their EIA/AA obligations under domestic and EU law. In my view this is not “sufficient interest” to entitle him to make a general attack on s.5 itself.
18.11 This conclusion may also be reached by another route, namely by analogy to the test applied by the courts in assessing sufficiency of interest to bring a constitutional challenge. Counsel for the State referred the court to Nawaz v. Minister for Justice [2013] 1 IR 142, where the Supreme Court clarified, in the context of a challenge to the constitutionality of s. 3 of the Immigration Act 1999, that a party only has locus standi to challenge the constitutionality of a statutory provision if “imminently affected by a decision made or about to be made under it”. This test was stated by Henchy J in Cahill v Sutton [1980] I.R. 269 at 286 thus:
“The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that person’s interests have been adversely affected or stand in real or imminent danger of being adversely affected, by the operation of the statute.”
Also mentioned in the judgment of Clarke J in Nawaz is the earlier decision of The State (Lynch) v Cooney [1982] I.R.337. In a much-quoted passage Walsh J stated at p.369:-
“The question of whether or not a person has sufficient interest must depend upon the circumstances of each particular case. In each case, the question of sufficient interest is a mixed question of fact and law which must be decided upon legal principles but, it should be added, there is greater importance to be attached to the facts because it is only by an examination of the facts that the court can come to a decision as to whether there is a sufficient interest in the matter to which the application relates.”
18.12 The applicant has singularly failed to establish how he personally (or any other person on whose behalf he might be entitled to speak) can maintain that he has been or would be adversely affected by the s.5, as a matter of fact or law, if leave to challenge the particular s.5 declarations is set aside. This is emphasised by the fact that having become aware of the s.5 declarations he took no action for a period of some ten months or so, and does not seem to have been aware that the construction work on the grid connection commenced in March 2016.
18.13 His arguments simply do not address “sufficient interest” or the State’s argument based on Nawaz, and no other authority was cited. In light of the strict regime established by the 2000 Act for the challenge of planning decisions, it cannot be accepted that a stand-alone challenge can be mounted to a provision such as s.5 without engaging any s.5 decision and independent of the time limits in s.50. His general section 5 challenge was dependant on the leave granted to challenge the second and third named respondents’ declarations, and when that leave is withdrawn his general claim that s.5 infringes European law is not one that he has sufficient interest to pursue in these proceedings.
18.14 Further to now permit a general challenge to s. 5 would be to allow a collateral attack on the s. 5 declarations, or at least the validity of those declarations insofar as they were relied upon by the Board in reaching its approval decision. In its decision the Board relied on the planning history of the lands, and from the Inspector’s Report (which is to be read with the decision) that history includes the s.5 grid connection declarations (see para. 1.3.3).
18.15 I am not, therefore, satisfied that the applicant was or is entitled to such extension of time as he required in order to bring a stand alone challenge in respect of s. 5 of the 2000 Act, or that he has sufficient interest to maintain such a challenge.
19 Conclusion
19.1 For these reasons I am satisfied that this is a very plain case in which the court should exercise the jurisdiction to set aside part of the leave order on grounds of exceptional delay, and, in respect of the challenge to s.5 itself, lack of sufficient interest. I am further not satisfied that the applicant has made out good or sufficient reason for extending time.
19.2 I will grant orders setting aside the order of Humphreys J. made on 10th October, 2016, insofar as it granted the applicant leave to seek judicial review in respect of the reliefs sought at paragraph (c) in sub-paragraphs 2, 3 and 4 of the statement of grounds. The substantive application for judicial review may, therefore, proceed on the basis that the applicant is permitted to seek the reliefs sought at paragraph (c) in sub-paragraphs 1, 5, 6, 7 and 8, upon the grounds pleaded in paragraph (e) of the statement of grounds relevant to those reliefs.
SC SYM Fotovoltaic Energy Srl v An Bord Pleanála (No. 1)
[2018] IEHC 20
JUDGMENT
Introduction
1. On 2nd October, 2017, the Applicant, a Romanian company, obtained leave to seek a number of reliefs by way of judicial review in respect of a decision made by the Respondent, Mayo County Council (the “Council”) on 6th June, 2017 pursuant to s. 5 of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as amended)”). One of the reliefs sought by the Applicant was an extension of time to bring its application. On foot of the order of the High Court (Noonan J.) made on 2nd October, 2017, the Applicant was given leave to seek such an extension of time.
Preliminary Issue
2. On 6th November, 2017, the High Court (McGovern J.) entered the proceedings into the Commercial List on the application of the first named Notice Party, Aeolus Wind Farms Ltd. (“Aeolus”), and gave directions for the hearing of a preliminary issue as to whether the Applicant was out of time in respect of its application and for the hearing of the substantive application for judicial review in February, 2018.
3. On 13th November, 2017, on the application of Aeolus, the High Court (McGovern J.) brought forward the hearing of the preliminary issue as to whether the Applicant was out of time for bringing the proceedings and listed that issue to be heard on 6th December, 2017. The court gave the necessary directions to enable this to happen. The preliminary issue is described in both of the orders of 6th November, 2017, and 13th November, 2017, as being whether the Applicant was out of time for bringing its application for judicial review. The sequence of the directions given for the exchange of affidavits and submissions was that the Council and Aeolus were to serve their affidavits and written submissions first and that the Applicant would reply. The second named Notice Party, ESB Networks Ltd. (“ESBN”), had informed the court on 6th November, 2017, that it would not be participating in the proceedings.
4. The preliminary issue came on for hearing before me on 6th December, 2017. It seemed to me that there was no dispute between the parties that the Applicant’s application for judicial review was brought outside the eight week period provided for in s. 50(6) of the 2000 Act (as amended) and that the proceedings could only be entertained if the Applicant obtained an extension of time under s. 50(8) for bringing them. On that basis, at the outset of the hearing of the preliminary issue, I indicated my view that it was appropriate that the issue should proceed on the basis that the Applicant should go first and move its application for an extension of time for bringing the proceedings and that the Council and Aeolus should respond. The parties agreed with that suggestion. The application proceeded, therefore, as the Applicant’s application pursuant to s. 50(8) of the 2000 Act (as amended) for an extension of time to seek the reliefs sought in its amended statement of grounds dated 4th October, 2017, in respect of the Council’s decision of 6th June, 2017, pursuant to s. 5 of the 2000 Act (as amended).
5. In order to succeed in its application for an extension of time, the Applicant has to demonstrate that the requirements of s. 50(8) are satisfied. In particular, the Applicant has to persuade me that:-
(a) there is “ good and sufficient ” reason for extending the period of eight weeks from the date of the decision within which to make the application for leave, and that
(b) the circumstances that resulted in the failure to make the application for leave within the eight week period were outside the control of the Applicant.
Factual Background
6. Before considering the relevant statutory provisions and the legal principles governing an application for an extension of time pursuant to s. 50(8) of the 2000 Act (as amended), it is necessary at the outset briefly to sketch out the relevant factual background. It was agreed by the parties that there was very little disagreement between them on the facts and the hearing proceeded on the basis of the affidavit evidence only with no cross-examination of the deponents. It must be said, however, that there are a small number of issues of fact on which the parties are not in agreement and, where possible and where necessary for the determination of the Applicant’s application for an extension of time, I will attempt to resolve those issues but at all times I bear in mind the absence of any cross-examination of the deponents.
7. On 6th June, 2017, the Council issued a declaration under s. 5 of the 2000 Act (as amended) that a proposed development to be undertaken by Aeolus was exempt development (the “s. 5 declaration”). The proposed development consisted of the laying of underground cabling and ducting along a particular route linking an existing EirGrid substation, known as the Glenree substation, at Bonniconlon East in County Mayo and a proposed wind farm substation at Bonniconlon East which Aeolus intends to develop. Aeolus had applied to the Council for the s. 5 declaration on 20th March, 2017 (the “s. 5 application”). Planning permission for the wind farm which Aeolus intends to develop at Bunnyconnellan (the “Bunnyconnellan wind farm”) was granted by An Bord Pleanála on 13th December, 2013, subject to a number of conditions. The application for that permission was made by a number of commonage landowners who have entered into a lease agreement with Aeolus permitting it to erect, inspect and maintain a wind farm on their lands. One of the conditions of the permission granted by An Bord Pleanála was that the permission “ shall not be construed as any form of consent or agreement to connection to the national grid or to the routing or nature of any such connection ” (Condition 2). While the application for the s. 5 declaration described the location of the proposed development as “Bonniconlon East”, and while the application for permission for the wind farm which Aeolus intends to development described the area as “Bunnyconnellan East”, the developments are in the same area notwithstanding the different spellings.
8. A small portion of the works the subject of the s. 5 declaration was required to be undertaken on lands now owned by the Applicant and comprised in Folio 33457 of the Register, County Mayo (the “MY 33457 Lands”). The Applicant did not own the MY 33457 Lands on 20th March, 2017, when the s. 5 application was made or on 6th June, 2017, when the s. 5 declaration was made by the Council. At that stage, those lands together with adjoining lands comprised in Folio 31669 of the Register, Co. Meath (the “MY 31669 Lands”) (together “the Lands”) were owned by another company, Aeropower Wind Energy Ltd. (“Aeropower”) which had acquired them from Powercon Wind Energy Ltd. (“Powercon”) in June, 2016. The Applicant acquired the Lands on 18th July, 2017, on foot of a contract of sale it entered into with Aeropower on 4th July, 2017, that sale being completed on 18th July, 2017. The Lands (and, particular, the MY 33457 Lands) surround the Glenree substation which was constructed on lands comprised in Folio 68384F of the Register, Co. Meath owned by the ESB and are now under the control of ESBN. The MY 33457 Lands are subject to a right of way in favour of the ESB.
9. Aeolus did not inform the Council in its s. 5 application that the Lands were, at the time of the application in the ownership of another entity, namely, Aeropower. Aeolus have asserted that it is entitled to carry out the works on the Lands in order to connect its proposed Bunnyconnellan wind farm with the Glenree substation on foot of letter of undertaking dated 7th December, 2009, given by Michael Rouse on behalf of Powercon, Aeropower’s predecessor in title to the Lands, to Aeolus (the “Undertaking”). Under the terms of the Undertaking, Powercon irrevocably agreed and undertook to grant the ESB a wayleave and/or an easement in respect of a 38kV electricity line or cable as defined in s. 46 of the Electricity (Supply) (Amendment) Act, 1945 over or underground through the Lands to service the wind farm being developed on adjoining lands by Aeolus, its agents, successors or assigns, and:-
“not to object in any way to any planning application regarding the development of to (sic) the said 38kV line or any poles or cables required in connection with it”.
While some argument before me was directed to the validity and effectiveness of the Undertaking to enable Aeolus to enter and carry out works on the Lands, that is not a matter on which I need express any view on this application for an extension of time. An unsuccessful challenge to the Council’s s. 5 declaration will mean that that decision is immune from challenge but will not in itself mean that Aeolus can lawfully enter and carry out works on the Lands.
10. The circumstances in which the Applicant acquired the Lands are that on 4th July, 2017, the Applicant entered into a contract of sale with Aeropower, to purchase the Lands for €45,000.00. The Applicant was represented by Lanigan Clarke solicitors, the solicitors acting for it in these proceedings, in connection with the acquisition of the Lands. Prior to executing the contract, the Applicant’s solicitors had raised objections and requisitions on title on 29th June, 2017. They were replied to by Aeropower’s solicitors on 4th July, 2017. The replies did not refer to the declaration made by the Council on 6th June, 2017. Reply 12.1(a) stated, in response to a question as to whether any notice, certificate or order had been served on or received by Aeropower or whether Aeropower had notice of any intention to serve any notice or issue any certificate or make any order relating to the Lands or any part of them under (inter alia) the Local Government Planning and Development Acts, “Not to Vendor’s knowledge.” A series of questions were asked and replies given in para. 26 concerning the Planning Acts. The existence of the s. 5 declaration was not mentioned. However, in a letter dated 14th July, 2017, Aeropower’s solicitors stated that reply 26.10 of the replies had been amended to take account of an ongoing planning application for the development of another (unrelated) wind farm development, the Blacklough wind farm, in respect of which a decision had not by that stage been received.
11. Aeropowers’s solicitors further stated in that letter:-
“We are instructed to confirm on behalf of the Vendor that it has not received any s. 5 notification from the Local Authority for any other development on the Property.”
The Lands were transferred by Aeropower to the Applicant by deed of transfer dated the 18th July, 2017.
12. The circumstances leading to the making of the s. 5 declaration by the Council on 6th June, 2017, were as follows. The s. 5 application was made on 20th March, 2017, by Highfield Energy Services Ltd. (“Highfield”) on behalf of Aeolus. Highfield requested a declaration under s. 5 of the 2000 Act (as amended) that the proposed underground cabling and ducting described in the application was exempted development. The description of the proposed development in the s. 5 application was as follows:-
“Underground MV cabling and ducting linking existing Glenree EirGrid substation at Bonniconlon East, Bonniconlon, Co. Mayo, … and proposed Bonniconlon wind farm substation at Bonniconlon East, Bonniconlon, Co. Mayo …”.
13. The s. 5 application set out the basis on which it was considered that the proposed development was exempted development and attached various documents including an Appropriate Assessment Screening Report dated July, 2016. As noted earlier, the s. 5 application did not refer to the ownership of the Lands (which were at that stage owned by Aeropower). Nor did it refer to the Undertaking in favour of Aeolus given by Powercon, predecessor in title to the Lands. The Council requested further information on 6th April, 2017, seeking (a) an archaeological assessment of the proposed development and (b) an ecological impact assessment report. Highfield furnished the information requested on behalf of Aeolus on 17th May, 2017. The Council issued the s. 6 declaration on 6th June, 2017, recording the Council’s decision that the proposed decision consisting of the laying of the electrical grid connection along the route indicated was development and was exempted.
14. Ms. Carina Carolan, an executive planner with the Council, swore an affidavit on behalf of the Council in these proceedings on 21st November, 2017. She swore that the s. 5 declaration was entered on the planning register and exhibited a copy of the entry on the register (the printout exhibited was dated 10th November, 2017). The Council was required to enter details of the s. 5 declaration in the register by s. 5(5) of the 2000 Act (as amended). The Council was required to keep such a register and to enter in the register particulars of the s. 5 declaration by s. 7 of the 2000 Act (as amended). Ms. Carolan stated that the s. 5 declaration was not uploaded onto the Council’s website as the Council had been directed by the Data Protection Commissioner on 30th May, 2012, “ not to upload a s. 5 file onto the internet ”. Ms. Carolan confirmed that the register and the file itself concerning the s. 5 declaration, were at all times available for inspection “ in their entirety ” at the Council’s offices in Castlebar, Co. Mayo. The question as to what was entered on the register and when any such entry was made is a matter of some controversy between the parties and is potentially relevant to the Applicant’s application for an extension of time. It will be necessary for me to make certain observations in relation to the evidence on that question when considering, in particular, the Applicant’s case in respect of s. 50(8)(b) of the 2000 Act (as amended).
15. It is accepted by the Applicant that it did not carry out any planning search, whether online or by attending at the Council’s offices, prior to its acquisition of the Lands in July, 2017 and that it did not do so until 2nd August, 2017, after it discovered the existence of works adjacent to and on the Lands. The Applicant argues that even if it had done so it would not have discovered the existence of the s. 5 declaration. It relies, in particular, on the evidence of Brendan Kelly, an engineer, who swore an affidavit in support of the Applicant’s application for an extension of time on 30th November, 2017. I comment on Mr. Kelly’s evidence and on the nature and extent of the searches apparently undertaken by him later in my judgment.
16. In any event, the Applicant did not carry out any planning search prior to its acquisition of the Lands and claims that it did not know of the s. 5 declaration until 2nd August, 2017, in circumstances which are described in an affidavit sworn on its behalf by Ms. Simona Brana on 2nd October, 2017.
17. In her affidavit, Ms. Brana explained that on 29th July, 2017, a representative of the Applicant, Christian Dolea, visited the Lands for the purpose of assessing forestry and while there saw plant, machinery and ducting material on the Lands. There was no work being carried out at the time. Ms. Brana explained that Mr. Dolea noted that it appeared as if a lock had been removed or cut from the security chain used for locking the gate to the Lands. Ms. Brana stated that John Keenan, a planning consultant based in Dublin, was then retained on behalf of the Applicant and requested to investigate the construction works on the Lands.
18. Mr. Keenan (who has also sworn an affidavit in support of the Applicant’s application) attended at the Lands on 31st July, 2017, and spoke with Liam Scott of Liam Scott Construction which appeared to be the construction company carrying out the works. Mr. Scott confirmed that the works were being carried out on behalf of Aeolus. Ms. Brana explained that it was in those circumstances that the Applicant discovered that the purpose of the works was to connect the proposed Bunnyconnellan wind farm to be developed by Aeolus to the Glenree substation and that this could only be done through the Lands. Ms. Brana then explained that Mr. Keenan attended at the office of the Planning Department of the Council on 2nd August, 2017 and discovered that a s. 5 declaration had issued in respect of the works confirming that the works were exempted development.
19. Mr. Keenan described his interaction with the planning officials of the Council on 2nd August, 2017, in the affidavit which he swore and I will refer to his evidence in that regard below. Following Mr. Keenan’s visit to the Council’s offices, he re-attended at the Lands on 3rd August, 2017 and saw that the contractors had abandoned the cable route through the Lands and were carrying out works to lay the cable on adjoining lands to the north but that some of the plant, machinery and ducting remained on the Lands.
20. The Applicant then retained the services of a security firm to protect the Lands. The security personnel attended at the Lands on 5th August, 2017 and discovered an excavator digging inside the boundary of the Lands. Having being so informed, Ms. Brana informed the security personnel that all persons and equipment were to be removed from the Lands, that the gate was to be locked and that a security presence was to be maintained on the Lands. The gardaí were called and informed the contractors to remove all equipment from the Lands and not to re-enter the Lands thereafter.
21. Ms. Brana then explained that an attempt was made by a person purporting to be an engineer supervising the works to produce a copy of the Undertaking purporting to authorise the carrying out of the works on the Lands. Some interaction took place between the engineer and the security personnel engaged by the Applicant. On 7th August, 2017, the contractor requested permission to re-enter the Lands to remove the plant, machinery and ducting which had remained there. The Applicant consented to this and the plant, machinery and materials were then removed from the Lands and brought onto adjoining lands.
22. As regards the works themselves, a detailed description of the works was provided in affidavits sworn on behalf of Aeolus by Frank Ennis. In his first affidavit, which was sworn on 25th October, 2017, Mr. Ennis explained that having obtained the s. 5 declaration, Aeolus commenced works on 28th July, 2017, on the construction of the underground electrical grid connection linking the existing Glenree substation to the proposed Bunnyconnellan wind farm substation and that Aeolus had started the works in order to facilitate work which the ESBN would carry out in respect of the underground electrical connection. He explained that by the time the Applicant intervened the works were close to completion, that the only portion of the works remaining was on the Lands and that Aeolus was relying on the Undertaking to enter and carry out the works on the Lands. Those works ceased on 5th August, 2017.
23. Mr. Ennis explained that had the works not ceased at that date, they would have been completed in or about 8th August, 2017. All that would have then remained to be done for ESBN to complete the grid connection works was to install a cable through the ducts already laid, to test and retest the cable and to connect the cable to both substations for energisation.
24. In his second affidavit, sworn on 22nd November, 2017, Mr. Ennis stated that the work on the Lands had started on 26th July, 2017. On 27th July, 2017, Pentico Contracting Limited (“Pentico”), which had been appointed by Highfield on behalf of Aeolus to supply and install the underground ducting for the grid connection, commenced setting out and laying the ducting for the grid connection with trenching being commenced on 28th July, 2017 and continuing over the weekend of 29th and 30th July, 2017, and through the following week until 5th August, 2017. By that stage, Mr. Ennis explained, over 800m of duct work had been laid and approximately 120 – 130m of duct work remained to be laid to complete the connection to the Glencree substation.
25. Mr. Ennis further stated that prior to commencing those works on 27th July, 2017, Pentico carried out mobilisation works on site on 26th and 27th July, 2017, which including drawing stone and delivering plant and pipe work to the site and that this involved keeping a dumper truck and pipe work on the Lands. Mr. Ennis reiterated Aeolus’s claim to be entitled to enter onto and to carry out the works on the Lands on foot of the Undertaking. There is no dispute between the parties that the works on the Applicant’s lands ceased as of 5th August, 2017.
26. As noted earlier, the Applicant engaged the services of Mr. Keenan, a planning consultant, on 30th July, 2017. Mr. Keenan swore an affidavit in support of the Applicant’s application for leave to seek judicial review on 29th September, 2017. He explained that on 30th July, 2017, he was requested by the Applicant to investigate works which were being carried out on and adjacent to the Lands. He outlined what he saw when he attended at the Lands on 31st July, 2017. He discovered a tractor, trailer, dumper, excavator and ESB ducting and gravel on the Lands as well as workers taking materials stored on the Lands to the adjacent lands. He also referred to the discussion he had with Mr. Scott, the contractor, referred to earlier.
27. Mr. Keenan explained that he was aware that the Applicant had purchased the Lands in July 2017. He stated that a search he carried out in the planning section of the Council’s website did not reveal anything in relation to the works which were being carried out by Aeolus. He explained that he attended at the Planning Department of the Council on 2nd August, 2017, where he was seen by Ms. Mary Killoran Coyne. He asked to see the planning register and Ms. Killoran Coyne asked whether he was looking for anything specific. Mr. Keenan indicated that electricity cable was being laid on behalf of Aeolus on and beside the Lands and that there was no reference to such development on the Council’s website. Mr. Keenan stated that Ms. Killoran Coyne informed him of the s. 5 application and the s. 5 declaration made by the Council, in respect of the underground grid connection serving the wind farm to be developed by Aeolus nearby (i.e. at Bunnyconnellan East).
28. He stated that he was then presented with a copy of the s. 5 application made on behalf of Aeolus for inspection. He requested a copy of the completed application and said that he would pay the relevant fee but that this was refused. Ms. Killoran Coyne quoted and referred to s. 5(5) of the 2000 Act (as amended) to support the refusal.
29. Mr. Keenan stated that the information about the s. 5 application was not in the public domain and requested Ms. Killoran Coyne for a letter confirming why s. 5 applications were not available on the Council’s website. Ms. Killoran Coyne provided Mr. Keenan with such a letter dated 2nd August, 2017.
30. In that letter, Ms. Killoran Coyne stated that:-
“Mayo County Council cannot make such applications available on its planning website as a result of a decision by the Data Protection Commissioner in which he asked that all such details be taken down from the publicly accessible website.”
31. Ms. Killoran Coyne also provided Mr. Keenan with a copy of the Council’s letter dated 6th June, 2017, to Aeolus’s agent, Highfield, informing it of the s. 5 declaration, namely, its decision that the particular development was exempted development. Mr. Keenan exhibited a copy of that letter to his affidavit. That letter set out the Council’s decision in respect of the s. 5 application and the reasons for its conclusion that a declaration should be granted in respect of the development pursuant to s. 5 of the 2000 Act (as amended).
32. Mr. Keenan was also permitted to take photographs of plans relating to the s. 5 application and did so. Mr. Keenan stated that he asked Ms. Killoran Coyne why it appeared that the owner of the Lands which were the subject of the development had not received a copy of the Council’s s. 5 declaration and that Ms. Killoran Coyne stated that the Council had not been made aware of the identity of the owner of the Lands in the s. 5 application and that the Council had only informed the Applicant for the s. 5 declaration of its decision.
33. In any event, it is clear from Mr. Keenan’s affidavit that as of 2nd August, 2017 the Applicant was aware of the fact that the Council had issued the s. 5 declaration in respect of the development on 6th June, 2017; Mr. Keenan had obtained a copy of the Council’s letter notifying Highfield on behalf Aeolus of the s. 5 declaration and of the reasons for its decision and was aware that the owner of the Lands over which part of the development, the subject of the s. 5 declaration, was to take place had not been informed of the application or of the Council’s decision on the application.
34. In circumstances which have not been explained at all on behalf of the Applicant, the Applicant then chose to retain the services of another planning consultant, Jim Harley of Strabane, Co. Tyrone, later in August 2017. In the meantime, and before turning to the involvement of Mr. Harley, the Applicant engaged in correspondence with Aeolus and its solicitors and also with Aeropower, which had sold the Lands to the Applicant in July 2017. The Applicant’s solicitors, Lanigan Clarke, who, as noted earlier, had acted for the Applicant in connection with the purchase of the Lands in June and July 2017, wrote to Aeolus on 10th August, 2017. The letter referred to the alleged unlawful entry by persons on behalf of Aeolus on to the Applicant’s Lands and the alleged damage caused to the Lands. Importantly, for present purposes, the letter referred to the fact that the Applicant had by that stage inspected the s. 5 application made on behalf of Aeolus to the Council in respect of the proposed works and asserted that this application had only come to its attention as a result of the discovery of persons acting on behalf of Aeolus on the Lands in late July, 2017. The letter then stated that the Applicant noted that the Council “ failed to notify the land owner of its decision in respect of this s. 5 application in accordance with the Planning and Development Act 2000” and stated that the Applicant believed that this was as a consequence of Aeolus’s failure to provide full disclosure in its s. 5 application in relation to the ownership of the Lands. The letter then stated:-
“Our client fully intends to seek a judicial review in respect of this s. 5 application (sic) and make representations to Mayo County Council in respect of noncompliance with same”.
The letter then sought a written undertaking from Aeolus confirming that Aeolus would immediately desist from entering onto the Lands failing which injunction proceedings would be issued. Both the Council and Aeolus placed significant weight in their submissions on the fact that as of the date of this letter, 10th August, 2017, the Applicant had inspected the s. 5 file, was aware of and had seen the s. 5 declaration and the reasons for it, was aware that the Council had failed to notify the owner of the Lands of the s. 5 application, as allegedly required by the 2000 Act (as amended), that the Applicant “ fully intended ” to bring judicial review proceedings in respect of the decision taken by the Council on foot of the s. 5 application and would allege noncompliance with the provisions of section 5.
35. On the same date the Applicant’s solicitors also wrote to Aeropower. In that letter, they stated that it had come to the attention of the Applicant that prior to its acquisition of the Lands, the s. 5 application had been made to the Council on behalf of Aeolus and that the Applicant had reason to believe that Aeropower had “ full knowledge of this application, and associated works ”. The letter observed that the Council had failed to notify Aeropower of its decision on foot of the s. 5 application in accordance with the 2000 Act (as amended) and that the Applicant believed that this was as a consequence of the failure (by Aeolus) to provide full disclosure in its s. 5 application concerning the ownership of the property the subject of the application. The letter then put Aeropower on notice of the Applicant’s intention to bring judicial review proceedings in respect of the Council’s decision. It further sought confirmation as to any dealings between Aeropower and Aeolus in respect of the Lands and confirmation as to whether or not Aeropower was aware of the s. 5 application and associated works.
36. On 14th August, 2017, Poe Kiely Hogan Lanigan, solicitors acting on behalf of Aeolus, replied to the Applicant’s solicitors’ letter of 10th August, 2017. They sought time to take further instructions and confirmed that in the meantime Aeolus would not enter on to the Lands. They also enclosed a copy of the Undertaking. On 16th August, 2017, in an exchange of emails between the Applicant’s solicitors and Aeolus’s solicitors, it was confirmed that the Applicant acquired an interest in the Lands on 4th July, 2017 (being the date of the contract of sale) and that the Applicant’s solicitors had acted for the Applicant in connection with the acquisition of the Lands.
37. Aeolus’s solicitors replied to the Applicant’s solicitors on 16th August, 2017. In their letter, they asserted that Aeolus was entitled to act on foot of the Undertaking and had entered on the Lands with the intention of carrying out preliminary works for the laying of an electric cable in accordance with the terms of the Undertaking. They contended that the Applicant was obliged to comply with the terms of the Undertaking as successors in title to Powercon and further alleged that Michael Rouse had been informed of the outcome of the s. 5 application within days of the decision of the Council on 6th June, 2017. The Applicant’s solicitors replied on 18th August, 2017. They disputed any obligation on the part of the Applicant to comply with the terms of the Undertaking and made a number of points in relation to its terms. The letter further stated that the Applicant had not been advised of the existence of an Undertaking at the time of the purchase the Lands.
38. Aeolus’s solicitors informed the Applicant’s solicitors in a further letter of 18th August, 2017 that, pending a full response to their letter of that date, Aeolus would not enter on to the Lands. Mr. Rouse sent an email to the Applicant’s solicitors on 21st August, 2017 stating that:-
“We have an overall level of general knowledge about various projects, however we had not been informed by Aeolus Windfarms Ltd. or any other party about this s. 5 application being made, or as owners of the property we did not receive any notification from Mayo County Council about their decision in respect of same, [and that] this can be verified by an inspection of the respective file at the office of Mayo County Council Planning Section, Castlebar, Co. Mayo”.
Mr. Rouse also confirmed that Aeropower did not engage in any dealings with Aeolus in respect of the Lands.
39. The Applicant’s solicitors wrote a further letter to Aeolus’s solicitors on 29th August, 2017 alleging that Aeolus had carried out unauthorised works outside the scope of the s. 5 declaration on lands owned by others comprised in Folios MY2559F and Folio MY34444. The letter put Aeolus’s solicitors on notice that it was the Applicant’s intention to bring proceedings under s. 160 of the 2000 Act (as amended) requiring Aeolus to cease the alleged unauthorised works. The letter further asserted that Aeolus was aware that the works carried out on lands adjacent to the Lands were unauthorised as Aeolus had made an application to the Council under s. 5 of the 2000 Act (as amended) for works other than those actually carried out. The letter concluded by stating:-
“It is also noted that in the s. 5 application, relating to works which materially differ from the unauthorised works carried out, your client did not disclose to Mayo County Council the identity of the then owner of our client’s property being part of the lands, which were the subject of the application, even though your client was aware of the owner’s legal interest.”
A letter in almost identical terms was sent by the Applicant to Aeolus itself on 28th August, 2017. It is not clear, and is unexplained on the evidence before me, as to why it was felt necessary for two letters in similar terms to be written on behalf of the Applicant.
40. On 7th September, 2017, Aeolus’s solicitors responded to the Applicant’s solicitors’ letter of 18th August, 2017. In that letter, Aeolus’s solicitors contended that any challenge by the Applicant to the s. 5 declaration was out of time. The point was also made that the Applicant had no locus standi to challenge the Council’s decision as it was not the owner of the Lands at the time of the decision. The letter further asserted that Mr. Rouse was informed at the time of the decision that the s. 5 declaration had been made. Finally, it was submitted that Aeolus was entitled to rely on the Undertaking to enter and carry out the works on the Lands and that the works carried out were in compliance with the terms of the s. 5 declaration.
41. It is now necessary to comment on the role of Mr. Harley. As noted earlier, Mr. Harley, another planning consultant, was engaged by the Applicant in late August 2017 in circumstances where Mr. Keenan had previously been so engaged and had made the discovery of the s. 5 declaration when he attended at the Council’s offices on 2nd August, 2017. Mr. Harley has sworn two affidavits in support of the Applicant’s application. In the first of his affidavits, which was sworn in early October 2017 for the purposes of the Applicant’s application for leave to seek judicial review, Mr. Harley stated that he was first contacted by representatives of the Applicant on 15th August, 2017 and requested to act as a planning consultant for the Applicant in respect of the Lands and the development of the Bunnyconnellan wind farm by Aeolus nearby. No reason has been given on behalf of the Applicant as to why it was felt necessary to engage the services of Mr. Harley in circumstances where Mr. Keenan had previously been engaged. While it is, of course, entirely a matter for the Applicant as to who it retains as its planning consultant, the delay brought about as a result of Mr. Harley’s engagement is a matter which I may have to consider in assessing whether an extension of time should be granted to the Applicant. Having been approached on 15th August, 2017, Mr. Harley responded on 18th August, 2017 confirming his willingness to act and setting out the terms in which he was prepared to do so. Mr. Harley was then retained by the Applicant one week later, on 25th August, 2017. It should be noted, however, that by this stage more than three weeks had passed since Mr. Keenan’s discovery of the s. 5 declaration on 2nd August, 2017 and some 25 days had passed since the eight week period provided for in s. 50(6) had expired.
42. Mr. Harley stated in his first affidavit that he advised the Applicant to obtain a copy of the s. 5 file and that an application should be made for this under the Freedom of Information Acts. A Freedom of Information Act request was made by the Applicant to the Council on 28th August, 2017 (the “FOI request”). By this stage, some 26 days had passed since Mr. Keenan’s discovery of the s. 5 declaration on 2nd August, 2017. Further, 13 days had passed since Mr. Harley was first contacted to act on behalf of the Applicant. The Council had a period of four weeks to provide the material sought on foot of the FOI request. The documentation requested was provided by the Council to Mr. Harley and received by him on 21st September, 2017. The documentation provided on foot of the FOI request was exhibited by Ms. Brana to her affidavit. The Applicant has contended that it required sight of this documentation before determining the grounds of its challenge to the s. 5 declaration and before commencing judicial review proceedings challenging the Council’s decision. Following receipt of the documentation, the Applicant’s solicitors wrote to the Council on 22nd September, 2017 stating that, subject to the review of the documentation received and the potential release of further documents, they had been instructed by the Applicant to bring judicial review proceedings in respect of the Council’s decision. The letter further stated that among the grounds which the Applicant would raise in those proceedings was the contention that the Council’s determination that the laying of the electrical grid connection along the route the subject of the s. 5 declaration was exempt development was erroneous since that connection was part of the same project as the Bunnyconnellan wind farm development to be undertaken by Aeolus which required an Environment Impact Assessment (“EIA”) and could not, therefore, be exempt development. In addition, the letter made the point that the Applicant needed to be in possession of all potentially relevant information and documentation prior to the institution of proceedings so that it could be put before the court. The letter also made the point that insofar as the Applicant might require an extension of time within which to bring judicial review proceedings, there was delay and “ deliberate withholding of information ” by the Council which, it was contended, amounted to “ good and sufficient ” reason to extend the time in circumstances where the delay was outside the control of the Applicant.
43. Prior to the commencement of the proceedings by seeking leave on 2nd October, 2017, the Applicant engaged an engineer, Brendan Kelly, on 27th September, 2017 to carry out a planning search in respect of the Lands. Mr. Kelly swore an affidavit on 30th November, 2017. He exhibited the terms of his instructions from the Applicant’s solicitors which had requested him simply to carry out a planning search in respect of the Lands. Mr. Kelly explained in his affidavit what he did. Having ascertained the location of the Lands from the Property Registration Authority website and having obtained maps of the Lands, he then used those maps to carry out a “ map based search ” on the Council’s website. He then attended at the Council’s offices and inspected the planning register. He noted four entries on the register affecting the lands, being three permissions granted to the ESB in 2009, 2010 and 2015 and one permission granted to Tapbury Management Ltd. on 28th August, 2017 (in respect of a grid connection development for the Blacklough wind farm). He did not discover the s. 5 declaration. He communicated the results of this search to the Applicant’s solicitors on 2nd October, 2017 and they were exhibited to his affidavit. The extent of the instructions given to Mr. Kelly and the nature and extent of his search were subjected to considerable criticism by the Council and by Aeolus at the hearing.
44. The Council and Aeolus attach much significance to the fact that as of 2nd August, 2017 Mr. Keenan had been informed of the application for and the s. 5 declaration itself, had been provided with a copy of the s. 5 application file for inspection and had been permitted to take photographs of documents contained in the file. He had also been provided with a copy of the Council’s letter of 6th June, 2017 informing Highfield, as agents for Aeolus, of the terms of the s. 5 declaration. It is also notable that as of that date, Mr. Keenan was also aware of the fact that the underground grid cable the subject of the s. 5 declaration was intended to serve the Bunnyconnellan wind farm to be developed by Aeolus nearby. It was correctly accepted on behalf of the Applicant at the hearing that the planning permission granted by An Bord Pleanála in respect of that wind farm was readily available.
45. Moreover, Mr. Ennis swore a second affidavit on behalf of Aeolus on 22nd November, 2017 outlining his visit to the Council’s Planning’s Department on 26th October, 2017 in order to check the information which was available to the public there. He explained that he asked a member of staff at the counter, Ms. Timothy, if she could show him the planning information on the public record relating to Bunnyconnellan in North East Mayo and that she asked Mr. Ennis if there was any particular planning information that he was looking for. He stated that he was looking for information in relation to a s. 5 application in Bunnyconnellan on behalf of Aeolus. Mr. Ennis explained that Ms. Timothy went to a personal computer mounted on the public counter and quickly called up the details in relation to the s. 5 declaration and showed them to Mr. Ennis on the screen. Mr. Ennis then asked Ms. Killoran Coyne, who was also present, if she could provide him with a certified copy of the information on the screen and she did so. Mr. Ennis exhibited a copy of the print-out (which bears the date of his visit, 26th October, 2017). The print-out refers to the fact of the s. 5 application and the date of that application, the date on which further information was requested by the Council and provided by Aeolus, a description of the proposed development, a comment that the route indicated was development and exempted development and the date of the s. 5 declaration on foot of that application (amongst other details). Mr. Ennis explained that Ms. Killoran Coyne informed him that this information was not available to those accessing the Council website externally as the Council had been requested by the Data Protection Commissioner not to provide it for general access. Mr. Ennis then requested a copy of the written register which was produced to him and contained information in relation to the s. 5 application, its reference number and the date on which it was entered on the written register. Mr. Ennis was also shown a separate and distinct written register at the back of the register book for s. 5 applications which also contained information in relation to the relevant s. 5 application. Mr. Ennis also requested sight of a copy of the planning file in respect of the s. 5 application which was produced to him and he was informed that, as he was representing the Applicant for the s. 5 declaration, a copy could be provided to him to take away on request. However, he was informed that unconnected parties, such as members of the public, would be provided with copies of the register entries and a copy of the s. 5 declaration itself but such persons could not be given a copy of the file itself to take away unless they were connected with the application such as the applicant for the declaration or its agents, in accordance with the instructions given by the Data Protection Commissioners. Ms. Killoran Coyne confirmed to Mr. Ennis that this information was available to the general public at the planning desk on request both for viewing in the register book itself and on the computer and that copies of the information viewed on screen were also available to any member of the public on request. In addition, the entire file in respect of an application could be accessed by a member of the public and viewed in the Council’s office for as long as was required.
46. Ms. Carolan swore an affidavit on behalf of the Council on 21st November, 2017. As noted earlier, she confirmed that the s. 5 declaration was entered on the planning register and exhibited a copy of the entry (the date of the print-out exhibited by her was 10th November, 2017, some days before she swore her affidavit). She confirmed that the s. 5 declaration was not uploaded on to the Council’s website in accordance with the Data Protection Commissioner’s instruction. She further confirmed that the register itself and the file in respect of the s. 5 application were at all times available for inspection in their entirety at the Council’s offices. She also referred to Mr. Keenan’s visit to the Council’s offices and to the access which he was afforded to the file in respect of the s. 5 application.
47. Both the Council and Aeolus criticised the instructions given to Mr. Kelly and the search which Mr. Kelly carried out on behalf of the Applicant in late September/early October 2017 having regard to what Mr. Keenan and Mr. Ennis were able to discover when they attended at the Council’s offices on 2nd August, 2017 and 26th October, 2017, respectively, and having regard to what Ms. Carolan had stated on affidavit on behalf of the Council.
The Application for Leave to Seek Judicial Review
48. An application for leave to seek judicial review in respect of the s. 5 decision was made by the Applicant to the High Court (Noonan J.) on 2nd October, 2017. The application was grounded on affidavits sworn by Ms. Brana, Mr. Keenan and Mr. Harley. The eight week period provided for in s. 50(6) of the 2000 Act (as amended), however, had expired on 31st July, 2017. By the time leave was sought to seek judicial review in respect of the s. 5 declaration, some 17 weeks had passed since the date of the decision and some nine weeks had passed since the eight week period had expired. Not surprisingly, therefore, one of the reliefs sought by the Applicant was an extension of time to bring the application for leave. The other reliefs sought were orders of certiorari quashing the s. 5 declaration and various declarations impugning the making of the s. 5 declaration by the Council on various grounds including alleged noncompliance with s. 4(4) of the 2000 Act (as amended), the failure to give any or any adequate reasons for the decision, the failure to comply with fair procedures and/or to respect the property rights of affected land owners and the failure to comply with the provisions of the Planning and Development Regulations 2001 (the “2001 Regulations”). The High Court (Noonan J.) granted leave that day to the Applicant to seek the reliefs on the grounds set out in the statement of grounds (subsequently amended on 4th October, 2017), including leave to the Applicant to seek an extension of time for making the application for leave to seek judicial review.
The Grounds for the Applicant’s Challenge to the Section 5 Declaration
49. Essentially, the Applicant’s challenge to the s. 5 declaration is based on three main grounds:-
(1) It is alleged that the Council erred in law in finding the development, the subject of the s. 5 application to be exempted development where it is part of a project which requires an EIA.
(2) It is alleged that the Council failed to comply with fair procedures and failed to respect the property rights of affected landowners (including the Applicant) by failing to notify them of the making of the application and affording them an opportunity to make submissions in relation to it.
(3) The Applicant further contends that the Council erred in failing to give any or any adequate reasons for its decision that the proposed development the subject of the s. 5 application was exempted development under the relevant provisions of the 2001 Regulations.
50. Bearing in mind these grounds of challenge and the evidence, I must now consider whether the Applicant has discharged the burden of showing that it is entitled to an extension of time under s. 50(8) of the 2000 Act (as amended). I will first consider the relevant statutory provisions. I will then consider the relevant case law and set out the applicable legal principles. I will then seek to apply those principles to the facts and set out the arguments and my conclusions on the Applicant’s application for the extension of time.
Relevant Statutory Provisions
51. The decision of the Council which the Applicant seeks to challenge in these proceedings was made pursuant to s. 5 of the 2000 Act (as amended). This is the provision under which a person may request in writing from the relevant planning authority a declaration on the question as to what, in any particular case, is or is not development or is or is not exempted development (section 5(1)). Under s. 5(2)(a), a planning authority:-
“… shall issue the declaration on the question that has arisen and the main reasons and considerations on which its decision is based to the person who made the request under subsection (1), and, where appropriate, the owner and occupier of the land in question, within 4 weeks of the receipt of the request.”
52. Under s. 5(5), the details of any declaration issued by planning authority under s. 5 are required to be entered in the planning register. The planning register itself is provided for in section 7. Under s. 7(1), the planning authority is required to keep a register for the purposes of the 2000 Act (as amended) in respect of all land within its functional area and is required to make entries and corrections to the register as may be appropriate in accordance with s. 7(2) and the other provisions of the Act and the Regulations made under it. Under s. 7(2)(h), a planning authority is required to enter in the register “particulars of any declaration made by a planning authority under s. 5 …”. By virtue of s. 7(3), the planning authority is required to make the required entries to the register “ as soon as may be” after the making of the decision. Under s. 7(6)(a), the register is required to be kept at the offices of the planning authority and to be open for inspection during office hours.
53. Section 4(4) of the 2000 Act (as amended) provides that a development shall not be exempted development if an EIA or an Appropriate Assessment (“AA”) of the development is required.
54. The status of a s. 5 declaration was recently considered by Haughton J. in Sweetman v. An Bord Pleanála and others [2017] IEHC 46. Having referred to the decision of the Court of Appeal in Killross v. ESB [2016] IECA 207, in which that Court held that a court could not go behind a s. 5 declaration in subsequent proceedings and could not revisit the merits of an issue which had already been determined in the s. 5 declaration, Haughton J. observed that a s. 5 declaration clearly has a status in itself. He continued:-
“It establishes that a particular development is not ‘unauthorised’, and the High Court cannot go behind that, and cannot permit a collateral attack. As the Court of Appeal found, a s. 160 application in respect of an ‘exempted’ development is bound to fail. Although not adverted to in Killross, because it did not arise, it must logically follow from s. 4(4) of the 2000 Act (which provides that a development cannot be an exempted development if an EIA or AA is required) that the High Court cannot entertain a collateral challenge to a s. 5 declaration on the basis that an EIA or AA is required. The s. 5 declaration is a matter that can only be reviewed by appeal to the Board, or by judicial review brought in time in the High Court, and after that it is beyond attack.” (per Haughton J. at para. 12.5).
55. As regards the manner in which and the time within which a s. 5 declaration can be challenged by way of judicial review, it is necessary to turn to s. 50 of the 2000 Act (as amended). Under s. 50(2), a person shall not question the validity of any decision made or other act done by a planning authority in the performance or purported performance of a function under the 2000 Act (as amended) otherwise than by way of an application for judicial review under O. 84 of the Rules of the Superior Courts. The making of a s. 5 declaration by a planning authority is clearly a decision made by it in the performance or the purported performance of a function under the 2000 Act (as amended). Therefore, if a s. 5 declaration is to be challenged by way of proceedings (leaving aside the possibility of a review by An Bord Pleanála), it can only be done by way of judicial review proceedings under Order 84.
56. The time within which to bring such a challenge is provided for in section 50(6). It provides as follows:-
“Subject to subsection (8), an application for leave to apply for judicial review under [ O. 84 ] in respect of a decision or other act to which subsection (2)(a) applies shall be made within the period of 8 weeks beginning on the date of the decision or, as the case may be, the date of the doing of the act by the planning authority …, as appropriate.”
57. Section 50(8) provides for the possibility of an extension of time to that eight week period. Section 50(8) provides:-
“The High Court may extend the period provided for in subsection (6) … within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that —
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the Applicant for the extension.”
Legal Principles Applicable to Applications for Extension of Time under Section 50(8)
58. The principles to be applied in considering whether an applicant for leave to seek judicial review may obtain an extension of time for making that application are reasonably well settled and have been helpfully and comprehensively discussed and analysed in a number of recent decisions on which all the parties in these proceedings have relied.
59. The starting point for the consideration of the legal principles applicable to an application for an extension of time seek to judicially review a planning decision under s. 50(8) is the decision of Clarke J. in Kelly v. Leitrim County Council [2005] 2 I.R. 404. In that case, the court was dealing with an earlier version of what is now s. 50(8) of the 2000 Act (as amended) (the relevant provision then was s. 50(4)(a) of the 2000 Act). Under the provision as it then stood, the court could not extend the eight week period unless it considered that there was “ good and sufficient reason for doing so ”. The applicant in that case sought leave to seek judicial review of a decision of An Bord Pleanála but was outside the eight week period for bringing such an application by 19 days. The applicant argued that he had been unable to bring proceedings within the requisite time limit due to difficult personal circumstances and conflicting advice from counsel. The High Court (Clarke J.) refused to grant an extension of time. Having referred to the restricted time limits for challenging planning decisions and decisions in other areas such as public procurement and immigration and to the intention of the Oireachtas that such challenges should be brought within very short periods, Clarke J. identified a number of non-exhaustive factors which may need to be considered in deciding whether or not to extend the time for bringing proceedings in these areas. The factors identified were:-
(a) The length of time specified in the relevant statute within which the application must be made;
(b) The question of whether third party rights may be affected (and as was made clear by the Supreme Court in K.S.K. Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R.128, it is part of the legislative intention that a person who had obtained planning permission should within a short period of time, be in a position to know that the permission, if not challenged, was absolute);
(c) Notwithstanding (b), there is nonetheless a clear legislative policy which requires that, irrespective of the involvement of third parties’ rights, determinations of particular types should be made certain within a short period of time in order to confer certainty on certain categories of administrative or quasi-judicial decisions. Therefore, the absence of third party rights or prejudice to third parties, should not be regarded as conferring a wide or extensive jurisdiction to extend time;
(d) Blameworthiness and, particular, the extent to which the applicant concerned may be able to explain the delay;
(e) The nature of the issues involved;
(f) The merits of the case and, particular, the issue as to whether the applicant has established an arguable case (unless the court is considering the extension of time issue on a standalone basis).
60. On the particular facts of the case, Clarke J. took into account the following factors:-
(a) He found that the period involved (being eight weeks), “ while short is not unduly harsh ” and noted that that was particularly so where an applicant for permission may well already have the benefit of expert professional advice prior to the commencement of the time running;
(b) He noted that the nature of the decision being challenged must be taken into account (being a planning decision);
(c) He noted the absence of any significant third party rights being involved in that case;
(d) Nonetheless, Clarke J. observed that the delay of 19 days in relation to a period of 56 days (eight weeks) was significant “ having regard to the necessity to bring finality to all planning matters even those that do not involve third parties ”;
(e) Clarke J. noted that while some degree of explanation had been given for the fact that the application was not made within the eight week period, he regarded it as only a “partial explanation”. He concluded that no real explanation had been given for the delay.
61. The principles identified, and the factors outlined, by Clarke J. in Kelly have been considered and applied in several subsequent cases. Most relevant for present purposes are the decision of Baker J. in Irish Skydiving Club Ltd. v. An Bord Pleanála [2016] IEHC 448 and that of Haughton J. in Sweetman v. An Bord Pleanála and others [2017] IEHC 46. All parties before me relied on these cases and for that reason I now consider them in some detail.
62. In Irish Skydiving Club, the applicant sought to challenge a s. 5 declaration which had been made on 14th January, 2015. The eight week period under s. 50(6) expired on 10th March, 2015. The applicant applied for leave to seek judicial review in respect of the decision on 27th March, 2015, i.e. 17 days after the eight week period had expired. In her judgment, in which she refused to grant the extension of time sought, Baker J. noted that “ the time limit is strict, and one in respect to which the power to grant an extension is to also be strictly construed ” (at para. 11). She referred to a number of authorities in support of that proposition including Kelly v. Leitrim County Council. Baker J. observed that all of those judgments noted “ the public policy considerations reflected in the imposition of strict and short time limits ” (para. 16). On the facts, Baker J. concluded that the applicant was aware within the eight week period that the relevant s. 5 decision had been made by An Bord Pleanála and that it had within that period written to the Board asserting that it had breached the rights of the applicant in not putting it on notice of the s. 5 referral to the Board. The explanation offered for the delay in bringing the application for leave was that it was necessary for the applicant to undertake “detailed preparatory work to establish the case, and to take advice with regard to the substantive findings and whether there were ground of challenge” (para. 32). Baker J. rejected the argument that it was necessary for the applicant to understand fully the substance of the decision before time could begin to run against it. She noted that the challenge made was pleaded along “ classical judicial review grounds, namely that fair procedure was not afforded and that the Board wrongly disregarded the views of its inspector ” (para. 41). Baker J. held that time began to run from the date the decision was made and not from the date on which an aggrieved or potentially aggrieved party came to know of the decision. She further rejected the argument that it was not until the applicant understood the basis of the decision or had a clear picture of what it meant that time could begin to run. She pithily stated “ time is linked expressly to the date of the decision ”.
63. In the course of her judgment, Baker J. referred to the decision of McCarthy J. in Talbotgrange Homes Ltd. v. Laois County Council and others [2009] IEHC 535, in which the court did not accept that it was necessary for the applicant in that case to wait until it received certain information before bringing proceedings and stressed that this was particularly so given that the applicant knew that it had not been notified or consulted prior to the making of the impugned orders. Baker J. also referred to an earlier judgment of Hedigan J. in Pearce v. Westmeath County Council [2012] IEHC 300 where a delay of eight days beyond the eight week period was considered excusable but she distinguished that case on the basis that the court in that case had accepted that members of the public had been misled into believing that the decision had been made on a different date.
64. Baker J. concluded that the test which an applicant for an extension of the “strict time limits” under s. 50(6) had to meet was “ cumulative and mandatory ” and that the court could not extend the time unless it was satisfied that both tests were met. In that case, as in many of the cases under s. 50(8), the court considered first whether the requirements of s. 50(8)(b) had been met such that it was demonstrated that the circumstances which resulted in the failure to make the application for leave within the eight week period were “ outside the control of the applicant for the extension ” (i.e. the second part of the test). Baker J. held that on the facts the applicant knew of the decision within time and had threatened litigation within that period and that there was no explanation why it did not move at that stage. Therefore, the applicant had not satisfied the requirements of section 50(8)(b). In those circumstances Baker J. did not find it necessary to consider whether the first part of the test i.e. the requirements of s. 50(8)(a) had been satisfied.
65. I found this decision particularly helpful in identifying the approach which the court which I should take in considering the present application for an extension of time under section 50(8). It should be said, however, that there are some differences between the present case and Irish Skydiving Club. The principal difference is that it was established as a matter of fact that the applicant in that case was aware of the s. 5 decision within the eight week period and indeed had threatened proceedings within that period. Here, it is accepted that the Applicant was not in fact aware of the s. 5 declaration. The case made by the Council and by Aeolus is that the Applicant ought to have been aware of the decision and would have been aware of it had it carried out the necessary searches at the Council’s office and that the Applicant’s failure to do so meant that it could not satisfy the court that the circumstances that resulted in the failure to make the application for leave within the eight week period were outside the control of the Applicant. That is undoubtedly a distinction between the facts of Irish Skydiving Club and the present case. However, the principles identified and applied by Baker J. in Irish Skydiving Club and the approach taken by her in that case are of considerable assistance in resolving the present application.
66. The next case on which reliance was placed by all parties before me is the decision of Haughton J. in Sweetman v. An Bord Pleanála and others [2017] IEHC 46. In that case, one of the reliefs which the applicant was seeking was to quash certain s. 5 declarations made by Cork County Council and Kerry County Council on 6th May, 2015 and 1st April, 2015 respectively, in circumstances where the applicant became aware of those declarations in September, 2015 but did not seek leave to challenge them until September 2016. In refusing to extend time to challenge those s. 5 declarations, Haughton J. cited with approval and applied the principles in Kelly v. Leitrim County Council and Irish Skydiving Club. Haughton J. rejected an argument which had been made that the eight week period only commenced in September 2015 when the applicant first became aware of the declarations. He also endorsed the conclusion of Baker J. that the requirements in s. 50(8)(a) and (b) are “ cumulative and mandatory requirements ”. Significantly, Haughton J. held that the requirement of “ good and sufficient reason ” in s. 50(8)(a) was directed to the reasons given for the extension of time in respect of the entire period for which the extension is required and that it is not limited to any particular period of time. Haughton J. stated:-
“ The applicant seeking an extension of time must therefore firstly satisfy the court that the circumstances that result in the failure to make the application for leave within the period of eight weeks were outside of his or her control. Thereafter the applicant for extension must satisfy the court that there is good and sufficient reason for an extension. This phrase requires that the reason be both ‘good’ and ‘sufficient’. Moreover it is incumbent on the applicant to satisfy the court that such good and sufficient reason encompasses the entirety of the period from the expiry of the eight weeks up to the date upon which the leave application was made in the High Court, or at any rate the date upon which the leave papers were lodged in the Central Office.” (para. 6.8)
67. On the facts of that case, Haughton J. was satisfied that the applicant had satisfied the test in s. 50(8)(b) and that the circumstances which resulted in the applicant’s failure to make the application for leave within the eight week period were outside his control. The court then went on to consider s. 50(8)(a) and again reiterated that the applicant had to demonstrate “ good and sufficient reason ” for the extension covering the entire period at least up to the date on which the papers seeking leave were lodged in the Central Office in September 2016. The court noted that as of September 2015 (when the applicant first became aware of the relevant decisions) the applicant was aware that the decisions related to a grid connection and that declarations of exemption had been made. The court held that the applicant also had to be taken to be aware at that time that the exemptions necessarily meant that each planning authority had determined that an EIA and AA were not required, having regard to the fact that under s. 4(4) of the 2000 Act (as amended) no development requiring an EIA or AA could be exempt development. The court held that it was incumbent on the applicant to act promptly from the time he became aware of the declarations and referred in that context to the decision of Birmingham J. in Bracken v. Meath County Council [2012] IEHC 196. In that case, the applicants had discovered that a s. 5 declaration had been made some six months earlier. Birmingham J. found that once they had learned of that declaration it was incumbent on the applicants to move “ with all possible expedition ” and that if they were to succeed in bringing proceedings out of time “ no further time could be lost ”. However, the applicants in that case did not do so. Birmingham J. found “ quite unconvincing ” the explanation that it was necessary to await further information before moving.
68. In Sweetman, Haughton J. noted that the applicant did request and did consider the s. 5 file of Cork County Council in October, 2015 and at that stage was, or, ought to have been in a possession of such information as might have been required to seek leave of the court to challenge the validity of its decision but did not do so. As regards Kerry County Council, it had declined to send the applicant a full copy of its file but proffered the planner’s report and there was no evidence that the applicant had taken up that offer. It also offered inspection – another offer which the applicant did not take up for “ logistical/financial reasons ”. Haughton J. rejected as “ good and sufficient ” reason the personal or financial difficulties raised by the applicant. He held that it could not have been intended by the Oireachtas that the personal circumstances proffered could amount to “ sufficient ” reason for extending time or for anything other than a short extension and that to decide otherwise would be contrary to the intention of the Oireachtas which “ was to confine, in a manner in a manner that balances the rights of developers and planning authorities with those of objectors, the opportunity for persons to impugn the validity of planning decisions ” and would also be inconsistent with the approach taken by the courts as to the “ strictness of time limits, and the extension of time limits ” in planning judicial review (para. 11.7). Haughton J. held that the applicant did not have “ good and sufficient ” reason for not commencing proceedings in the autumn of 2015 and, even if he had, those reasons would have ceased to be valid after the applicant had taken legal advice in November 2015.
69. Haughton J. also considered the question of third party prejudice, which had been adverted to by Clarke J. in Kelly v. Leitrim County Council. On the facts of Sweetman, in the absence of any challenge the work the subject of the impugned decisions had commenced in March 2016 and had progressed. Haughton J. was satisfied that there would be significant third party prejudice if the time were extended in light of the applicant’s delay having regard to the construction programme and time constraints which existed in relation to the REFIT 2 Scheme. Similar considerations arise in the present case. In those circumstances, Haughton J. was not satisfied that the applicant had made out good or sufficient reason for extending time to challenge the s. 5 decisions.
70. I should briefly mention a very recent decision merely for the purpose of noting that the court in that case adopted and applied the same principles in adjudicating on an application for an extension of time to challenge a planning decision (albeit not a decision under s. 5 of the 2000 Act (as amended)). The case is Cassidy v. Waterford City and County Council [2017] IEHC 711. In that case leave was sought and granted to the applicant to challenge a decision by the respondent to make a draft Tree Preservation Order (TPO) under the 2000 Act (as amended) some 25 days after the expiration of the eight week time limit. An application was made to set aside the grant of leave on the grounds that the application was brought outside time and that there were no grounds for an extension of the eight week period under section 50(8). Eagar J. refused the extension of time and set aside the grant of leave. He applied (inter alia) Kelly v. Leitrim County Council and Irish Skydiving Club. On the facts, he held that the applicant was aware of the decision being challenged before time had expired and indeed had written threatening to challenge the decision within the eight week time period. However, the first letter sent by the applicant’s solicitors threatening proceedings was sent after the expiry of the eight week period.
71. Eagar J. held that the applicant had failed to satisfy the second part of the test. He held that the circumstances resulting in the failure to bring the proceedings within the eight week period were not outside the applicant’s control. Having reached that conclusion, the court did not need to proceed to consider whether the applicant had met the first part of the test.
Summary of Principles Applicable to Applications for Extension of Time under Section 50(8)
72. It is possible to distil from these cases the following principles to be applied when considering an application for an extension of time under s. 50(8) of the 2000 Act (as amended):-
(1) The eight week time limit in s. 50(6) of the 2000 Act (as amended) is a strict time limit and, while the court has a discretion to extend the time in accordance with the provisions of s. 50(8), the provisions of that subsection are to be strictly construed and applied.
(2) The requirements in s. 50(8)(a) and (b) are cumulative and mandatory. It is necessary, therefore, for an applicant for an extension of time to satisfy both subparas. (a) and (b) of section 50(8).
(3) The court will generally consider first of all whether an applicant for an extension has satisfied the requirements of s. 50(8)(b) i.e. the second part of the test, under which an applicant for an extension must show that the circumstances which led to the failure to bring proceedings within the eight week time limit were outside the control of the applicant. If the applicant cannot satisfy that part of the test, then it is generally not necessary to consider whether the applicant has satisfied the first part of the test (in section 50(8)(a)).
(4) The time for challenging a planning decision covered by the s. 50 of the 2000 Act (as amended) runs from the date of the decision and not from the date on which the applicant first becomes aware of or fully understands the substance of the relevant decision.
(5) In considering whether the applicant has satisfied the requirements of the first part of the test by demonstrating that there is “ good and sufficient ” reason for extending the time, the reasoning offered by the applicant to demonstrate compliance with this test must relate to the entire of the period of the delay beyond the eight week period and not merely for some part of that period.
(6) To satisfy the first part of the test, an applicant for an extension of time must satisfy the requirement of showing both “ good ” and “ sufficient ” reason for the extension. In most cases if a reason is found to be “ good ”, it will be “ sufficient ” for the purposes of the first part of the test. It is hard to envisage a case where a reason will be found to be “ good” but not “ sufficient ”. That is not to say, however, that such a case does not exist.
(7) The court will assess carefully the explanation given for the failure to apply for leave for judicial review within the eight week period. While each case must be considered on its own particular facts, the court will assess carefully and critically any explanation put forward on behalf of an applicant for an extension of time that more information or additional material was required before proceedings could be brought. Of particular relevance in considering an explanation along those lines is the nature of and the reasons for the challenge to the planning decision in question.
(8) Among the factors which may have to be considered by the court in considering an application for an extension of time under s. 50(8) are those factors listed non-exhaustively by Clarke J. in Kelly v. Leitrim County Council, including:-
(a) the length of time specified in the 2000 Act (as amended) and the delay beyond that period before the application for leave is sought to be made.
(b) Whether third party rights are affected and whether there has been any prejudice to third parties as a result of the delay by the applicant for the extension of time in making the application for leave outside the statutory period (although it is not necessary to demonstrate the prejudice in all cases).
(c) The blameworthiness or otherwise on the part of the applicant for the extension and the reasons given to explain the delay which must cover the entire period of that delay.
73. It can be seen from the short review of the leading authorities that the courts have refused extensions of time where applicants delayed for 17 days (in the case of Irish Skydiving Club), 19 days (in the case of Kelly v. Leitrim County Council), 25 days (in the case of Cassidy) and even five days (in the case of Duffy v. Clare County Council [2016] IEHC 618, a decision of Barrett J.) after the expiry of the eight week time period before applying for leave to seek judicial review. In the present case, the application for leave to seek judicial review was made some nine weeks (63 days) after the expiry of the eight week period in section 50(6).
Application of Principles and Conclusions on Application for Extension of Time
74. I will now consider the basis on which the Applicant seeks an extension of time by reference to the evidence, the statutory provisions and the legal principles discussed above.
Section 50(8)(b)
75. As is common in these types of applications I will first consider whether the Applicant has satisfied the second part of the test, namely, whether the Applicant has established that the circumstances which resulted in its failure to make the application for leave within the eight week period were “ outside the control ” of the Applicant under section 50(8)(b).
(a) Applicant’s Case on Section 50(8)(b)
76. The Applicant makes a simple case. It states that it was not aware of the s. 5 declaration until Mr. Keenan discovered it on 2nd August, 2017, when he attended at the Council’s offices following the discovery of works on and adjacent to the Lands in late July 2017. The Applicant relies on the fact that it purchased the Lands on foot of a contract dated 4th July, 2017 and that the sale completed on 18th July, 2017. It relies on the fact that it is accepted that the s. 5 application was not notified to the then owner of the Lands (Aeropower) at any time before the s. 5 declaration itself was made. Although there is a dispute as to whether Aeropower and, in particular, one of its directors, Mr. Rouse, was informed of the making of the s. 5 decision at the time, I do not have to resolve that dispute.
77. The Applicant also relies on the replies to the objections and requisitions on title provided to its solicitors in the course of the purchase of the Lands and to the provisions of the contract itself. Particular weight is attached to the amended replies to requisitions on title provided by Aeropower’s solicitors on 14th July, 2017 and to the statement in their letter of that date that they were “ instructed to confirm on behalf of the Vendor that it has not received any s. 5 notification from the Local Authority for any other development on the Property”.
78. The Applicant accepts that no planning search was carried out prior to its purchase of the Lands. It does not dispute the expert evidence put forward on behalf of Aeolus by Patrick Sweetman, an expert conveyancing solicitor, in an affidavit sworn by him on 21st November, 2017. Mr. Sweetman stated in that affidavit that:-
“7.7 A planning search ought to be carried out while physically attending at the public counter of the relevant planning authority, producing a map to show the extent of the Lands in question and establishing from an inspection of the register as to what applications, permissions, orders, notices, or other entries as appear on the register which affect the Lands.
7.8 An online search of a local authority website would not be accepted as a satisfactory planning search in the context of proper conveyancing practice.”
79. The Applicant contends that this is what Mr. Kelly did in late September/early October 2017 after he was retained to carry out a planning search on behalf of the Applicant. He did not find the s. 5 declaration when carrying out his search. The Applicant submits, therefore, that even if it had carried out a planning search of the type described by Mr. Sweetman, it would still not have discovered the making of the s. 5 declaration. The Applicant submits that it could not have found out about the s. 5 declaration before Mr. Keenan discovered it on the 2nd August, 2017. In those circumstances, it contends that the circumstances which resulted in its failure to make the application for leave within the eight week period, which expired on 31st July, 2017, were outside its control. It submits, therefore, that the second part of the test in s. 50(8) has been satisfied.
(b) Council’s and Aeolus’s Case on Section 50(8)(b)
80. Both the Council and Aeolus submit that had the Applicant carried out the appropriate searches at the time of the acquisition of the Lands in July 2017, it would have discovered the fact of the making of the s. 5 declaration and would have been in a position to make the application for leave before the expiry of the eight week period. In those circumstances, they contend that the Applicant has failed to satisfy the second part of the test. They rely significantly on the evidence of Mr. Keenan as to what he was in a position to find when he attended at the Council’s offices on 2nd August, 2017. On his own evidence, Mr. Keenan was informed by Ms. Killoran Coyle of the s. 5 application and of the s. 5 declaration in respect of the underground grid cable serving the wind farm being developed by Aeolus nearby. He was shown a copy of the s. 5 application and permitted to inspect it. While he was not provided with a copy of the s. 5 application, he was permitted to take photographs of the contents of the application. He was also furnished with a copy of the Council’s letter to Highfield, on behalf of Aeolus, containing the Council’s notification of the s. 5 declaration and the reasons for the Council’s view that the proposed development was exempted development.
81. They point out that Mr. Keenan was able to find out these things simply by attending at the Council’s offices. They rely on Mr. Sweetman’s evidence as to the searches which they say ought to have been carried out at the time of the purchase of the Lands by the Applicant. They contend that had the Applicant carried out the appropriate searches at the time of the acquisition of the Lands in July 2017, the Applicant would have discovered precisely the same information as Mr. Keenan discovered when he attended at the Council’s offices on 2nd August, 2017. They further rely on the evidence of Ms. Carolan who swore an affidavit on behalf of the Council on 21st November, 2017 in which she swore that the declaration that the development was exempted development was entered on to the planning register and she exhibited a copy of the entry on the register (the print out being dated 10th November, 2017, prior to the swearing of her affidavit) (para. 11). Ms. Carolan further confirmed that the register and the s. 5 file (being the file containing the s. 5 application and the decision itself) were “ at all times available for inspection, in their entirety ” at the Council’s office (para. 13). Ms. Carolan swore that Mr. Keenan was not impeded from viewing the contents of the s. 5 file and that he had access to the documents illustrating the nature of the application and the decision made by the Council which recorded the reasons for its decision (para. 16).
82. Reliance is also placed on the affidavit sworn by Mr. Ennis on 22nd November, 2017 in which he outlined the information he was provided by the Council when he attended at the Council’s offices on 26th October, 2017. I summarised Mr. Ennis’s evidence on this issue earlier. Mr. Ennis was given a print out of the relevant entry on the register containing reference to the s. 5 decision. He was also provided with the s. 5 file for review as well as being provided with a copy of the written register which recorded the s. 5 application made on behalf of Aeolus.
83. Both the Council and Aeolus are critical of the extent of the searches undertaken by Mr. Kelly in late September 2017. In particular, they are critical of the fact that Mr. Kelly does not appear to have spoken to anyone at the counter in the Council’s office and asked whether there was any relevant application or decision concerning development at or in the vicinity of the Lands and the Glenree substation. They maintain that had the Applicant carried out the appropriate searches prior to 31st July, 2017, it would have found out precisely what Mr. Keenan found on 2nd August, 2017 and would, therefore, have been in a position to make its application for leave prior to the expiry of the eight week period.
84. The Council, in particular, relies on the nature of the case being made by the Applicant, and contends that there was no reason why that case could not have been made prior to the expiry of the eight week period.
(c) My Conclusions on Section 50(8)(b)
85. In many of the cases on extensions of time under s. 50(8) of the 2000 Act (as amended) the applicant is actually aware of the decision the subject of the challenge within the eight week period. That was so, for example, in Irish Skydiving Club and in Cassidy. In both those cases, the court held that the Applicant had failed to satisfy the second part of the test. It is necessarily more difficult to satisfy the test in circumstances where the applicant is aware of the relevant decision within the statutory period.
86. The applicant in Sweetman was not aware of the relevant decisions within the period and it was held on the facts that the applicant could not have been aware of them within that period. The applicant in Sweetman, therefore, did satisfy the second part of the test. It seems to me, however, that this case is somewhat different.
87. The Applicant, on its own admission, failed to carry out any planning search at the time of its purchase of the Lands. I accept the uncontested evidence of Mr. Sweetman that at the time of the purchase a planning search ought to have been carried out by physically attending at the Council’s offices and establishing by reference to a map showing the extent of the Lands from an inspection of the register what application, permissions, orders, notices or other entries appear on the register effecting the Lands. I am also satisfied that an online search would not be satisfactory in the context of proper conveyancing practice. Asking basis questions such as those asked by Mr. Keenan and by Mr. Ennis would also seem to me to be consistent with common sense and good practice. The Applicant fairly admitted that it did not carry out any planning search at the time of the purchase but does rely on the replies to objections and requisitions on title and on the express statement by Aeropower’s solicitors on 14th July, 2017 that Aeropower had not received any s. 5 “ notification ” from the Council for any other development affecting the Lands (apart from the development concerning the Blacklough wind farm). However, good conveyancing practice required the Applicant to do more than that and I accept that Mr. Sweetman’s evidence in that regard. I do not accept that a proper planning search along the lines described by Mr. Sweetman would not have disclosed all of the relevant information to enable the Applicant to form a decision to apply for and to apply for leave to seek judicial review. I accept Ms. Carolan’s evidence that the s. 5 declaration was entered on to the planning register and that the register and the s. 5 file itself was at all times available for inspection in their entirety at the Council’s offices. Ms. Carolan so swore and no application for leave to cross-examine her was sought and she was not, therefore, cross-examined on her averments. Significantly, Mr. Keenan was in a position to find out all of the relevant information when he attended at the Council’s office on 2nd August, 2017. He did so by simply asking at the counter and being shown the relevant material. He was informed of the s. 5 application and of the Council’s decision on foot of that application. He was informed that the development the subject of the application and the Council’s decision concerned an underground grid cable serving a wind farm being developed by Aeolus nearby. He was provided with the s. 5 application for inspection and permitted to take photographs of the contents of the file. He was given a copy of the Council’s letter of 6th June, 2017 setting out the terms of its s. 5 decision and the reasons for that decision. He could have asked for a print out from the register (as Mr. Ennis did when he attended subsequently).
88. In my view, the Applicant’s reliance on the search conducted after the event by Mr. Kelly following his engagement on 27th September, 2017 is misplaced. The nature of the search was plainly inadequate as is evident from the fact that Mr. Keenan (and subsequently, Mr. Ennis) was able to find out the information and to obtain the material which he did on 2nd August, 2017 whereas Mr. Kelly was apparently unable to do so in late September 2017. It appears from Mr. Kelly’s affidavit that he did not ask anyone at the public counter at the Council’s offices about any relevant decisions effecting the Lands. Ms. Carolan has confirmed on affidavit that the register and the s. 5 file itself were at all times available for inspection in their entirety at the offices of the Council. Mr. Kelly does not appear to have enquired about this or asked for inspection of this material. While the search undertaken by Mr. Kelly may have been adequate for other purposes, it would not, in my view, have amounted to compliance with good conveyancing practice in accordance with the standard identified by Mr. Sweetman, which I accept, or with common sense (as evidenced by the approach taken by Mr. Keenan and by Mr. Ennis).
89. I am also satisfied that had the information which Mr. Keenan discovered on 2nd August, 2017 been discovered at or even shortly after the time of the purchase of the Lands in July 2017, the Applicant would probably have had sufficient information to enable it to form a view as to whether it had a basis for making an application for leave to seek judicial review and making that application. As I noted earlier, the Applicant was represented by the same firm of solicitors in connection with the acquisition of the Lands as now represent it in these proceedings. Having regard to the nature of the case being made by the Applicant in respect of the s. 5 declaration being based on the three main grounds identified earlier, and having regard to the fact that there was no impediment to the Applicant finding out about the planning permission obtained in respect of the Bunnyconnellan wind farm being developed by Aeolus nearby (and it was very properly accepted on behalf of the Applicant that that permission was readily available), had the information been obtained by Mr. Keenan on 2nd August, 2017 been obtained by the Applicant at the time of the acquisition of the Lands, it would have been in possession of sufficient information to enable it to decide whether there was a sufficient basis for challenging the s. 5 decision and to make the application for leave to do so within the eight week period or within a very short period thereafter. It is my conclusion, therefore, that the circumstances in which resulted in the Applicant’s failure to make the application for leave for judicial review within the eight week period were not outside the control of the Applicant. I conclude, therefore, that the Applicant has not satisfied the second part of the test (contained in section 50(8)(b)).
90. For completeness, and in case I am incorrect in my conclusion in relation to the Applicant’s failure to satisfy the second part of the test, I will proceed now to consider whether the Applicant has satisfied the first part of the test.
Section 50(8)(a)
91. The first part of the test (in s. 50(8)(a)) requires an applicant to demonstrate that there is “ good and sufficient ” reason for extending the time within which to make an application for leave to seek judicial review in respect of a planning decision. Therefore, the Applicant must establish that there is “ good and sufficient ” reason for extending the time for it to make the application for judicial review to 2nd October, 2017, when the application was made to the High Court (Noonan J.) (that being the relevant date rather than the date of service of the motion, in circumstances where the application for leave was an ex parte application).
(a) Applicant’s Case on Section 50(8)(a)
92. The Applicant relies on various matters to demonstrate what it contends is “good and sufficient” reason for granting the extension of time under section 50(8). In particular, the Applicant relies on the following:-
(1) It first learned of the s. 5 declaration on 2nd August, 2017 when Mr. Keenan attended the Council’s offices. The Applicant relies on the fact that the Council refused to provide a copy of the full s. 5 file (comprising the s. 5 application and supporting material and so on).
(2) The Applicant is a Romanian company and acted with appropriate speed following the discovery of the s. 5 declaration.
(3) The s. 5 declaration was not published or available on the Council’s website.
(4) The s. 5 application and the decision made by the Council on foot of that application was not notified to the Applicant’s predecessors in title to the Lands, Aeropower.
(5) The Applicant alleges that Aeolus did not make full disclosure to the Council in relation to the route of the cable and, in particular, did not inform it that part of the route was over the Lands. Neither the Applicant nor its predecessors in title, Aeropower, were notified or given the opportunity to make representations in relation to the decision.
(6) The Applicant put Aeolus on notice of the fact that it intended to bring judicial review proceedings in respect of the s. 5 declaration on 10th August, 2017.
(7) During the month of August 2017, the Applicant was addressing by way of correspondence the ongoing alleged trespass on its Lands by Aeolus and there was a delay on the part of Aeolus and Aeropower in responding to correspondence during that month.
(8) The Applicant contends that it would have been inappropriate and inadvisable to bring proceedings challenging the s. 5 decision without obtaining a full copy of the file. Indeed, it is submitted that it would have been reckless to institute proceedings prior to obtaining the information sought on foot of the FOI request and prior to obtaining advise in relation to the material obtained.
(9) The Applicant contends that as a non-national company it was at a particular disadvantage and needed to take and did take active steps to obtain expert advice in relation to the s. 5 declaration. It was in that context that the Applicant contacted Mr. Harley on 15th August, 2017.
(10) The Applicant relies on the fact that it was advised by Mr. Harley to obtain a copy of the s. 5 file by way of an FOI request and that Mr. Harley commenced work for the Applicant on 25th August, 2017 and advised that the full s. 5 file be obtained. The FOI request was made on 28th August, 2017. The Applicant contends that it needed that information in order to obtain a proper understanding of the s. 5 declaration and that the proceedings could not have been formulated without sight of the material. The Applicant further contends that it would have been in breach of its duty to make full disclosure to the court on an ex parte application were it to have proceeded to make that application in the absence of the material the subject of the FOI request.
(11) The Applicant relies on the fact that the Council was informed of the Applicant’s intention to make an application for leave to seek judicial review in respect of the s. 5 declaration on 22nd September, 2017 and of the fact that it would need to seek an extension of time in respect of that application.
(12) The Applicant relies on the fact that the issues raised in the proceedings include issues of EU law and, in particular, the alleged breach of the EIA Directive.
(13) The Applicant alleges that no prejudice would be suffered by any party, including Aeolus, in circumstances where it contends that it immediately put the Council and Aeolus on notice of its possible intention to issue judicial review proceedings. The Applicant also criticises the evidence of alleged prejudice put forward on behalf of Aeolus and disputes the existence of any alleged prejudice to Aeolus or any other party.
(14) The Applicant further contends that the court should not focus exclusively on the alleged delay on the part of the Applicant (and the Applicant denies that it delayed unreasonably in making the application) but rather the court should look at all the circumstances in its consideration as to whether it should exercise its discretion to extend the time for making the application to 2nd October, 2017. The Applicant argues that the test is whether it is established that there is “ good and sufficient ” reason for extending the time rather than whether there was “ good and sufficient reason ” for the delay. Amongst the other considerations which the Applicant contends I should take into account is the alleged failure by Aeolus to set out fully the nature of its relationship with the ESB. The Applicant further contends that Aeolus improperly sought to obtain the s. 5 declaration in circumstances where it was not entitled to it having regard to the inter-relationship between the development the subject of the s. 5 declaration and the Bunnyconnellan wind farm development for which permission was granted by An Bord Pleanála. The Applicant argues that some weight should be attached to the fact that Aeolus is seeking to sell its proposed wind farm development, being the Bunnyconnellan wind farm.
(b) Council’s and Aeolus’s Case on Section 50(8)(a)
93. Both the Council and Aeolus submit that the Applicant has failed to establish “ good and sufficient reason” for granting the extension sought. Similar arguments are addressed by each of them in response to the Applicant’s contentions. The Council, in particular, sought to break down the periods of delay on the part of the Applicant in to three periods. The first was the period from the end of June 2017 when the Applicant was in negotiation for the purchase of the Lands until 2nd August, 2017, when Mr. Keenan found out about and ascertained details of the s. 5 declaration at the Council’s offices. The second period of what the Council contends was “ culpable delay ” on the part of the Applicant was from 2nd August, 2017 until the engagement of Mr. Harley on 25th August, 2017. The third period of alleged culpable delay was from the date of Mr. Harley’s engagement on 25th August until the application for leave was made on 2nd October, 2017. The Council contends that no adequate explanation was given by the Applicant for any of these periods of delay.
94. Both the Council and Aeolus contend that as of 2nd August, 2017 the Applicant was in possession of all of the information which it needed in order to form a view as to whether proceedings should be brought and to make the application for leave. As of that date, they contend that the Applicant knew of the fact of the s. 5 declaration, had a copy of the Council’s decision (or at least the letter setting out the terms of the decision and the reasons for it), had been given an opportunity to inspect the s. 5 application file at the Council’s office, could have viewed the information on the register and obtained a print-out of that information (as Mr. Ennis had done and as Ms. Carolan had explained in her affidavit) and was aware of the permission obtained in respect of the Bunnyconnellan wind farm. Having regard to the nature of the case which the Applicant seeks to make in respect of the s. 5 declaration, both the Council and Aeolus contend that the Applicant had all of the necessary information available to it as of 2nd August, 2017 (and ought to have had that information before 31st July, 2017) and that there was no reason for any further delay thereafter. They point out that the Applicant wrote to Aeolus and Aeropower on 10th August, 2017 stating that the Applicant “ fully intends ” to seek a judicial review in respect of the s. 5 declaration. However, the application for leave was not made until 2nd October, 2017. They point out that notwithstanding that the Applicant had engaged a planning expert (Mr. Keenan) in late July/early August 2017, the Applicant proceeded to approach another planning expert (Mr. Harley) on 15th August, 2017 and only engaged Mr. Harley on 25th August, 2017. They note that the Applicant offered no explanation for the need to engage another planning expert or excuse for the delay caused by its decision to do so. They further dispute the contention that it was necessary for the Applicant to seek material under the Freedom of Information Acts with the further delay which that application caused.
95. Aeolus, in particular, relies on prejudice to its position as outlined in the two affidavits sworn by Mr. Ennis on 25th October, 2017 and 22nd November, 2017. The prejudice relied on includes the fact that grid connection the subject of the s. 5 declaration was almost complete by early August 2017 when the Applicant intervened, that the completion of the development was a crucial part of Aeolus’s planned Bunnyconnellan wind farm, that the proceedings have created uncertainty in respect of the development and that this is particularly significant as Aeolus is considering offers for the purchase of its interest in the Bunnyconnellan wind farm development and the proceedings will have a negative impact on those offers. Aeolus further contends that the proceedings have materially increased the risk to the viability of its Bunnyconnellan wind farm development and that further delays to the start of construction of that wind farm development would place the project at material risk of not meeting the criteria for the REFIT 2 Scheme which risks the viability of the project. Mr. Ennis estimated that Aeolus could incur a financial loss of over €100,000.00 for every month that the project is delayed in 2017 and 2018. It should be said that the Applicant has disputed the detail of the evidence put forward on behalf of Aeolus in support of its claimed prejudice. Finally, Aeolus rejects the suggestion that it did not provide sufficient information in relation to its relationship with the ESB in connection with the development the subject of the s. 5 decision.
(c) My Conclusions on Section 50(8)(a)
96. I am not satisfied that the Applicant has established that there is “ good and sufficient ” reason for extending the time for making the application for leave to October 2017. I agree with the Council and Aeolus that as of 2nd August, 2017 (at the latest) the Applicant was in possession of sufficient information to enable it to decide whether to bring proceedings to challenge the s. 5 declaration and the grounds on which it might do so. I have considered in this context the nature of the case which the Applicant seeks to make in order to impugn the s. 5 decision. The case is made on classic judicial review grounds. The three main grounds of attack on the s. 5 decision have been summarised earlier. Essentially, the Applicant claims that the Council should not have made the s. 5 decision in circumstances where the development is part of a project requiring an EIA; the Council failed to comply with fair procedures; and the Council did not give adequate reasons for its decision. In my judgment the Applicant had all of the necessary information to consider whether to mount could have mounted a claim making these points on or shortly after 2nd August, 2017 (at the latest).
97. Insofar as an explanation has been given for the significant delay thereafter, to 2nd October, 2017, I am unconvinced by that explanation. I draw attention again to the fact that the Applicant’s solicitors (who acted for it in the purchase of the Lands) were in a position to write to Aeolus on 10th August, 2017 stating that they “ fully intend[ed]” to bring judicial review proceedings in respect of the s. 5 declaration (the letter referred to the s. 5 application but a judicial review would necessarily have been directed to the decision itself). The Applicant’s solicitors corresponded in similar terms to Aeropower on the same date. Insofar as the Applicant wished to make a case concerning the interrelationship between the development the subject of the s. 5 declaration and the permitted development by Aeolus of the Bunnyconnellan wind farm, it is clear that Mr. Keenan was aware of the Bunnyconnellan wind farm permission on 2nd August, 2017 and the applicant has accepted that there was no impediment to the Applicant obtaining information about and details of the permission granted by An Bord Pleanála in respect of that development.
98. Instead of proceeding on the basis of the information it had on or shortly after 2nd August, 2017, the Applicant engaged in the correspondence just mentioned with Aeolus and with Aeropower and engaged in further related correspondence alleging trespass. I do not believe that that correspondence explains or excuses the delay which occurred over the course of August and September 2017.
99. As regards the engagement of Mr. Harley, it was, of course, entirely a matter for the Applicant as to whether it wished to engage another planning expert. However, the engagement of Mr. Harley in circumstances where Mr. Keenan had already been engaged did lead to further significant delay. Some 23 days elapsed between the date of Mr. Keenan’s visit to the Council’s offices and the date in which Mr. Harley was engaged, on 25th August, 2017. A period of 23 days is not insignificant in the context of the statutory time period of 56 days (eight weeks).
100. Nor am I convinced by the Applicant’s contention that it was necessary for it to obtain material on foot of the FOI request before being in a position to consider and bring an application for leave to seek judicial review. As I have already found, the Applicant had sufficient information as of 2nd August, 2017 to obtain advice and to make an application for leave to seek judicial review, if so advised, at that stage. It appears to have formed the intention to do so and so informed Aeolus in correspondence on 10th August, 2017. I do not accept that it was necessary for the Applicant to obtain the information sought in the FOI request in order to satisfy its duty of full disclosure to the court on an ex parte application. The Applicant could have informed the court in that application that an FOI request had been made and that on receipt of information on foot of the request, it would be put before the court and also that it might be necessary for an application to be made to amend or expand the grounds of challenge in light of that information and that such application would be made soon as possible on receipt of the information on foot of the request. If that had been done, there could have been no conceivable basis for contending that the Applicant had failed to comply with a duty of disclosure to the court. The consequence of making the FOI request was to give rise to a further delay between 28th August, 2017, when the FOI request was made, and 21st September, 2017, when the information was obtained on foot of that request. This is another significant very period in the context of the eight week statutory period. There then followed a further short delay from 21st September, 2017 until 2nd October, 2017 when the application for leave was made.
101. Overall, therefore, the application for leave was made 17 weeks after the date of the s. 5 declaration, nine weeks (63 days) after the eight week period in s. 50(6) expired on 31st July, 2017 and more than eight weeks after Mr. Keenan discovered the information at the Council’s offices on 2nd August, 2017. This is a significant delay in the context of the statutory time period and the clear legislative policy requiring a strict time limit to challenge planning decisions. While the Applicant is correct in its submission that in considering whether to grant an extension of time within which an application for leave may be made the court does not look simply at the delay itself but must consider whether there is “ good and sufficient ” reason for granting the extension, the delay is significant in this case. It is particularly so when compared with delays in other cases in which extensions have been refused (17 days in Irish Sky Diving Club and 19 days in Kelly v. Leitrim County Council, for example). While each case must turn on its own facts, nonetheless a delay of nine weeks (63 days) is particularly significant.
102. While by no means determinative of the position, it is also relevant that during the entire period from July 2017 onwards, the Applicant had the benefit of a number of professional advisers of various disciplines, and in particular, legal and planning. This was not a case in which the Applicant, a Romanian company, was attending to matters on an its own on a long distance basis. It had people on the ground in Ireland including solicitors and planning consultants.
103. I am not satisfied that the fact that the Applicant’s solicitors were engaged in correspondence concerning the alleged trespass is a reason for not acting more quickly in considering and bringing an application for leave to seek judicial review.
104. Again, while it is by no means determinative in itself of the position, I am satisfied that prejudice to Aeolus will occur if an extension of time is granted. The works the subject of the development exempted by means of the s. 5 declaration were almost complete at the time the Applicant intervened in late July/early August 2017. An extension of time permitting the Applicant to bring the proceedings will further prejudice Aeolus by creating uncertainty in relation to the development and the proposed intended Bunnyconnellan wind farm development. While the Applicant has a point that Aeolus has put forward very little material in support of its claimed prejudice if the extension is granted, the information provided on affidavit (without cross-examination) is enough for me to conclude that some prejudice is very likely to be suffered. If the completion of the works is delayed by virtue of a challenge to the s. 5 declaration, then that is likely to impact adversely on the Bunnyconnellan wind farm development and any efforts by Aeolus to sell that development. A delay in completing the Bunnyconnellan wind farm development is also likely to give rise to financial loss to Aeolus and may prejudice its entitlements under the REFIT 2 Scheme. There is at least a real risk of this occurring. I should stress, however, that I am considering these factors in the context of a challenge to the s. 5 declaration. I am not taking into account in this context any uncertainty about Aeolus’s entitlement to enter the lands on foot of the Undertaking which, as noted earlier, is not an issue which arises for consideration in these proceedings.
105. In summary, I am unpersuaded by the case made by the Applicant that there is “ good and sufficient ” reason for extending the time for the Applicant to make its application for judicial review to 2nd October, 2017. I have considered all of the points advanced by the Applicant in support of its application and the responses by the Council and Aeolus to those points. I have considered all of the evidence and have sought to assess that evidence in the context of the applicable legal principles discussed earlier. Having done so, I have concluded that the Applicant has failed to satisfy the first part of the test in s. 50(8), namely that there is “ good and sufficient ” reason for granting the extension of time sought.
Conclusion on Application
106. In conclusion, therefore, I have decided that the Applicant has not satisfied the requirements of s. 50(8) of the 2000 Act (as amended). I have concluded that the Applicant has failed to establish that the circumstances that resulted in its failure to make the application for leave to seek judicial review within the eight week period were outside its control. Normally that would be sufficient to dispose of the application in circumstances where the requirements in paras. (a) and (b) of s. 50(8) are “ cumulative and mandatory”. However, in the event that I am incorrect in my conclusion in relation to the Applicant’s failure to satisfy the second part of the test, I have proceeded to consider whether the Applicant has satisfied the first part of the test. I have concluded that the Applicant has not done so and, in particular, has not established that there is “ good and sufficient ” reason for extending the time within which to make the application for leave to seek judicial review in respect of the s. 5 declaration at issue in the proceedings.
107. In those circumstances, I refuse the Applicant’s application for an extension of time to seek the reliefs sought in its amended statement of grounds in respect of the Council decision of 6th June, 2017.
Marshall & Anor v. Arklow Town Council
[2004] IEHC 117 (30 June 2004)
Judgment of Mr Justice Michael Peart delivered on the 30th June 2004:
The applicants seek leave to apply for judicial review, under s. 50 of the Planning and Development Act, 2000 (“the 2000 Act), for the reliefs set forth in their Notice of Motion dated 26th April 2004 (filed the 28th April 2004).
The decision sought to be impugned is one made by the Respondent on the 18th February 2004 wherein it decided to grant permission to the first named Notice Party for development of land, namely to erect two town houses and connect to existing services at Ticknock Lane, Dublin Road, Arklow, in accordance with the plans submitted with the application.
The applicants are brother and sister, and together with their elderly mother are the owners of and reside in a house immediately to the north of and adjacent to the development land the subject of the decision to Grant Planning Permission. They have resided there since about 1961.
It appears that in June 2003, the applicants became aware of an application for planning permission which was at that time lodged in respect of this site by the previous owner of the site, one Bridget Keogh. They together with their mother lodged objections to that application, and it is said that as a result of that objection certain conditions were attached to the permission which ultimately was granted, which satisfied the applicants’ concerns. That application was for the construction of a single house on the site. It appears that after that permission was granted, the Keoghs placed the site for sale – something which the applicants were unaware of. The site was sold to the first named applicant and one Gary Doyle, who are the co-owners. The second named Notice Party, David Dempsey is a brother of the first named Notice Party, and is a Consulting Engineer who was retained by the Notice Parties in relation to the application for a new planning permission, namely for the erection of two houses on the site.
Unknown to the applicants, this application for a new permission for two houses was lodged with the Respondent on or about the 19th December 2003. As already referred to, the Respondent issued a Notification of Decision to Grant Permission on the 18th February 2004. The applicants say that even though construction of these two houses has commenced, no final planning permission has been issued following the Decision to Grant.
At the heart of this application is the contention by the applicants that this Decision is invalid because the owners of the site did not erect, in accordance with the planning regulations, the required Notice under Article 19 of the Regulations, which, if it had been so erected would have alerted the applicants to the intended application, and they say that they would have exercised their rights to object to the application, make submissions and so forth. Unfortunately, as is freely admitted, the Respondent accepts that it did not cause any official to actually inspect the site in order to ensure that the site notice was in situ, but the Notice Parties have sworn that such a site notice was indeed erected in a proper way at the required time. The applicants say that they never saw any such site notice at the relevant time. The affidavit sworn by the first named applicant states at paragraph 10:
“I was shocked to learn that permission had been sought and might have been obtained in respect of two dwellings at the site on Ticknock Lane. I saw no site notice whatsoever during the relevant period. I pass this property regularly, and sometimes twice daily. I walk our family dog regularly and I pass by the lands on Ticknock Lane and I saw no notice of an application. I commonly take an interest in local planning matters and would routinely look at site notices in a casual way.”
At paragraph 11 he states that if he had been aware of the application he would have made an objection or observation, and/or participated in an appeal, and that he is satisfied that no such notices were fixed or attached to the lands in question either in December 2003 or January 2004. There is therefore on the affidavits a complete conflict of evidence, since the second named Notice Party, Mr Dempsey has sworn not only that such a notice was placed, but that he himself so erected it, and even that when it fell down he put it back up again. This conflict cannot be resolved by the production of any dated photograph of the sign in position, nor by any evidence from the Respondent that upon inspection of the site at a relevant time, the notice was seen to be in position. If this application proceeds to a hearing, no doubt oral testimony will have to be heard, either by way of Notices to Cross-Examine being served, or by an oral hearing being directed.
The first hurdle placed in the applicants’ path is a point being made by the Notice Parties, and which is supported by the Respondent, that the applicants have delayed in bringing this application, and are out of time. It is submitted also on behalf of the Notice Parties that they have been prejudiced by this delay in as much as when the proceedings were commenced they ceased any further construction in order to await the decision of this court. I have been informed by the Respondent that when they learned of the problem emanating from the applicants, they issued an Enforcement Notice to the Notice Parties requiring work to cease for a number of stated reasons, but it has been accepted by the Respondent that for reasons which have not been actually given to the Court the Respondent would not be in a position to enforce that Notice. I mention that point since it is in some respects relevant to the question of prejudice, namely whether by granting leave this Court would be effectively preventing further work being carried out pending the Court’s decision, or whether such further work would in any event be prevented by the currency of that Enforcement Notice.
This judgment relates only to the question as to whether the delay in commencing these proceedings is such that the Court ought not to exercise its discretion under s. 50(4)(a)(iii) of the 2000 Act, to extend the time for making application on the basis that the Court “considers that there is good and sufficient reason for doing so.”
The applicants say that they first became aware of the fact that development was taking place on the 23rd March 2004, when the first named applicant observed building on the site in question. At that time, not being aware that the site had been sold on the 19th December 2003, he presumed that it was Mrs Keogh who was building pursuant to her permission for one house. He goes on to say that on the 25th March 2004, the second named Notice Party telephoned him to discuss putting a boundary wall between the site and the applicants’ adjoining property. He says in his affidavit that at this point, he told Mr Dempsey that “the matter had gone beyond this and was now in the hands of my solicitor.” This comment certainly suggests that on some date prior to that conversation the applicants, or at least the first named applicant, had become aware of the later Decision to Grant permission for two houses. It is relevant in this regard to refer to an affidavit sworn on the 26th April 2004 by Terry Keogh, one of the previous co-owners of the site who sold the site to the first named Notice Party and her co-purchaser. He states at paragraph 7 thereof:
“On the 18th day of March 2004 I attended at the offices of Arklow Town Council where I saw a notice which indicated that the Notice Parties had applied for and been granted planning permission to build two dwellings on the site at Ticknock Lane.”
He also says that he saw no site notices in place, and that he passes the property regularly, and that had one been erected he would certainly have taken an interest in same.
It is reasonable to assume, judging from what the first named applicant stated on the telephone to Mr Dempsey, that at some time prior to that date the first named applicant must have become aware, perhaps from Mr Keogh, that permission was being granted for two houses. The applicants in all probability became aware of this fact about the 18th March 2004, or immediately thereafter, since by the 25th March 2004, the applicants had already consulted their solicitor about the matter.
Under s. 50(4)(a)(i) of the 2000 Act, it is provided as follows:
“Subject to subparagraph (iii), application for leave to apply for judicial review under the Order in respect of a decision referred to in paragraph (a)(i) or (b)(i) of subsection (2), shall be made within the period of 8 weeks commencing on the date of the decision of the planning authority or the Board, as the case may be.”
That being so, and subject to any extension which may be granted, these proceedings must have been commenced not later than 8 weeks from the 18th February 2004, namely before the 14th April 2004. These proceedings were filed on the 28th April 2004, and therefore some 14 days late. It is therefore necessary to consider what steps were taken by the applicants prior to the expiration of that time, and following their becoming aware of the Decision to Grant Permission dated 18th February 2004. The Court will also consider, as contended for by the applicants, whether the time should be calculated, not from the date of that Decision, but rather from the date upon which the applicant became aware of the making of the Decision, which in my view was sometime between the 18th March 2004 and the 25th March 2004. If time is calculated from that time, then the application is not late at all. Alternatively, of course, the applicants submit that the circumstances of this case are such as to provide “good and sufficient reason” as to why time should be extended, if they are out of time.
Mr Michael O’Donnell BL for the Notice Parties has submitted in this regard that time must be calculated from the 18th February 2004, and that since his clients have suffered prejudice by being held up in relation to the construction of the houses, and since time has expired, it ought not to be extended, and he has referred the Court to some authority in that regard, which I shall consider in due course. But he also makes the point that in the Notice of Motion dated 26th April 2004, filed on the 28th April 2004, the applicants do not seek any extension of time for bringing this application, and neither is it stated in the draft Statement of Grounds to be one of the reliefs sought. Counsel seeks to amend his papers in this regard, if necessary.
The first named applicant avers in his grounding affidavit sworn the 26th April 2004 at paragraph 18 that having taken legal advice “during the Easter vacation” he instructed his solicitor to write to the Respondent and to the first named notice party to inform them of the applicants’ concerns about the planning permission. Such a letter was written on the 5th April 2004 in which the problem of the site notice was outlined, and certainly in the letter to the Respondent which has been exhibited, that body is requested to take “the requisite steps to stop all development until all the proper procedures have been complied with”, and it was warned that unless the solicitors heard in reply within 24 hours, they were instructed to seek judicial review. It is safe to presume that the Notice Parties were written to in similar terms.
Solicitors acting on behalf of the notice parties replied by letter dated the 7th April 2004, stating that their clients were “most upset and infuriated by the allegation that there was a failure to comply with the statutory regulations regarding the publication of the site notice”, and confirming that such a notice was erected in accordance with the regulations, and that while they had noticed that on a couple of occasions the notice had been knocked over, or blown down by the wind, or interfered with by third parties, it was immediately re-erected by their clients. They stated that any proceedings commenced would be strenuously defended.
It is clear that by the time the Notice Parties received the letter dated 5th April 2004, they were aware of the intention of the applicants to commence Judicial Review proceedings in the event that their letter did not evoke a satisfactory response from their viewpoint. This fact has some relevance to the question of the delay in commencement of these proceedings and whether this Court should extend the time for such commencement.
In his supplemental affidavit filed on the 25th June 2004, the first named applicant, inter alia, makes certain averments relevant to the delay point. He states in paragraph 20 that on the 25th March 2004 he determined that he would need legal advice and obtained the name of a solicitor to act. This is after having observed building for the first time on the 23rd March. He instructed that solicitor on the 2nd April 2004. He avers that this solicitor prepared a case for Counsel to advise during the Easter vacation period. Although it is not averred to, I am entitled to know that this period was from 3rd April 2004 until 19th April 2004. He says that a warning letter was sent on the 5th April 2004. It is averred also that by the 27th April 2004 papers had been drafted and the grounding affidavit was sworn on the 26th April 2004, and was filed in the Central Office of the High Court, and were served, on the 28th April 2004. He states that the absence of the site notice left him ignorant of the planning application in question, and that immediately he learned of it, he acted promptly, and that had he learned of the planning situation at an earlier stage he would have been able to instruct solicitors, and serve the necessary papers closer in time to the date of the decision in question. He also states that before the application could be commenced it was necessary for enquiries to be made of the Respondent Town Council and documents to be inspected, and this took time.
He says in his affidavit, and Counsel has so submitted on his behalf, that it would be unfair to be denied access to the Courts for the purpose of this application because he commenced outside the strict time limit imposed by the Act, and in circumstances where, in the absence of the site notice having been erected, he had no way of knowing that an application had been lodged in the first place. That of course ignores the other requirement on an applicant for planning permission, namely the requirement to place a notice in a national newspaper. In this case I am told that such a notice was inserted in the Evening Herald newspaper. The applicants did not see that notice.
The Notice Parties say that they took steps on foot of the Notification of the Decision to Grant Permission dated 18th February 2004, namely that they commenced construction of the houses, and that they will be and are prejudiced by the delay on the part of the applicants. Their development is effectively halted until such time as these proceedings are determined. The applicants submit, however, that since an actual permission has not yet issued on foot of that Decision, the applicants are not in any event entitled to have commenced construction. Mr O’Donnell submits, however, that once the Decision has been issued, the Planning Authority must grant permission after the expiration of the appropriate time under the Act.
The submission by the applicants that time should be extended because the actual date of knowledge on the part of the applicants in relation to the decision was 23rd March in the absence of the site notice being in place, begs the entire question at the heart of this case, namely whether the site notice was or was not in place as required. On that basis, I would have to reject the sworn evidence of the Notice Parties in order to accede to the application for an extension of time, or indeed to find that no such extension is required. On the other hand, to refuse to extend the time would in effect be to reject completely the applicants’ averments and that of some other persons who have sworn similarly, that no notice was in place. I cannot on this application make any finding which in any way determines the central issues to be decided.
Before setting out my conclusions in relation to the time point, I want to refer to the submission made by Mr O’Donnell at the outset, namely that this question of delay and extension of time must be disposed of ahead of any consideration as to whether the applicants have made out a sufficient case to be granted leave to seek judicial review. He submitted that it was not appropriate to deal with the substantive issues, and if granting leave in relation thereto, to leave over to the substantive hearing a determination in relation to an extension of time and delay generally. He referred the Court to the decision of the Supreme Court in B. v. The Governor of the Training Unit Glengariff Parade Dublin and another [2002] 2 ILRM 161, wherein it was held, inter alia, that in circumstances where an extension of time is required, until it is granted there is no application for leave in existence. While that decision is in the context of the Illegal Immigrants (Trafficking) Act, 1999, and the time limits specified therein for bringing applications for judicial review, there is no reason why the principles set forth therein ought not to equally apply in the present case when the court is being asked to extend the time for bringing a judicial review application. It follows that this Court must determine first of all whether an extension is required and, if so, whether it should be granted for good and sufficient reason. A refusal of such an extension has the effect of finally determining the application from the applicants’ viewpoint, in the sense that without it they cannot proceed further. To deal with the merits of the application at the same time as determining the time point would result in the Court dealing unnecessarily with the substantive merits in a case where an extension of time is found not to be merited. That consideration must outweigh any countervailing consideration such as having the entire matter aired at one sitting, rather than dealing with each aspect separately. I have therefore decided to proceed with my decision in relation to time and delay, and if finding in favour of the applicants on that issue, I will then proceed to fix as early a date as possible for the hearing of the substantive application for leave.
In response to the submissions made on behalf of the applicants by Aillil O’Reilly BL, Mr O’Donnell has referred the Court to the judgment of the Supreme Court (O’Higgins CJ) in The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others [1981] IR. 181, in which the prosecutor’s claim failed because he had commenced proceedings for an order of certiorari four months after the decision in question had been made, and because others had taken steps on foot of the decision in the meantime and would be prejudiced if the decision were to be set aside. The then Chief Justice during the course of his judgment stated that as soon as he became aware of the making of the decision in question “it behoved the prosecutor to move with dispatch to have the Commissioners’ recommendation undone.” He then referred to a judgment of Lord Denning in R. v. Herrod [1976] QB. 540 at page 557 in which that learned judge stated as follows:
“If a person comes to the High Court seeking certiorari to quash the decision of the Crown Court – or any other inferior tribunal for that matter – he should act promptly and before the other party has taken any step on the faith of the decision. Else he may find that the High Court will refuse him a remedy. If he has been guilty of delay at all it is for him to get over it and not for the other side.”
In The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others, O’Higgins CJ stated at page 196:
“What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend on the circumstances of the case. I have no doubt that in this case it would be unjust to grant either mandamus or certiorari.”
As I have already mentioned, part of those circumstances were that persons had taken steps on foot of the decision, and, as stated by the late Chief Justice had been “induced to make plans for the future and to enter into commitments from which they should not now be compelled to withdraw.”
Mr O’Donnell has submitted in the light of this judgment that in view of the fact that his clients have proceeded on foot of the Decision to Grant Permission, as according to them they were entitled to do given the inevitability of the actual Grant of Permission following, were it not for the intervention of these applicants, they have suffered prejudice in the sense that they have committed funds to the construction of the houses, and the two houses are already partially constructed, one being more advanced than the other, but nevertheless substantially commenced.
I think it must be remembered that the decision in The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others, was a result of an application brought under the old Rules of Court, perhaps best described as the predecessor of the current Order 84 procedures, rather than under a Statute containing its own rules as to the time within which judicial review proceedings must be commenced. It is for that reason that the late Chief Justice states that there is an onus on an applicant to move “with dispatch”, and in the circumstances of that case a period of four months from the date of the impugned decision was regarded as not fulfilling that criteria. The present Order 84, r. 21(1) of the Rules of the Superior Courts provides:
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.”
That Rule reflects the need described by the late Chief Justice as “moving with dispatch.”
In such an application, the Court can refuse leave even where the applicant has moved first within the outer limit of three or six months, if satisfied that in any event the applicant failed to move “promptly”. The situation is different from the present case where the applicant is mandated to bring any application within a period of eight weeks. It must be presumed that the legislature was aware of the provisions of O.84, r. 21(1), and decided that in planning matters there was a need to ensure that applications were commenced within a shorter time than either three or six months, as the case may be, but it cannot be said that even though an application is brought within that period of eight weeks, the Court could nevertheless refuse leave because it regarded the applicant as not having moved promptly within the eight week period. That is a distinction, even though the question of prejudice to the Notice Parties is still a very relevant one within the context of any assessment of the delay on the part of an applicant beyond that eight week period.
First of all I am satisfied that this Court has no power to regard the date of the applicants’ first knowledge of the planning decision as the date from which time must be calculated for the purpose of the eight week period. The section is absolutely clear and unambiguous in that regard, and specifies that the application for leave shall be made “within the period of eight weeks commencing on the date of the decision of the planning authority, or the Board, as the case may be.”
This application must be considered under s. 50(4)(iii) of the Act, and the Court must therefore be satisfied that there is good and sufficient reason for extending the time. Prejudice is a matter which must be taken into account, and I cannot make any assumption, even confined to the context of the present decision, that the site notice was not in place in accordance with the provisions of the Regulations made under the Act. It falls to be decided solely on the basis of whether the Court is satisfied that in the circumstances of this case the applicants moved with an amount of dispatch, or as promptly as they could reasonably be expected to do in the circumstances in which they found themselves. I must take into account the arguments as to prejudice put forward by the Notice Parties, and balance these factors in order to achieve justice and fairness between the parties.
I am satisfied that the applicants are being truthful when they say they did not see the site notice. That is not a finding that it was not placed there by the Notice Parties. It is simply an acceptance that if it was there the applicants did not see it. That is a reality. Whether it is something they can ultimately rely on in the face of testimony tested under cross-examination at the substantive hearing is quite another matter, but it is something I can have regard to when considering the behaviour of the applicants in relation to the speed with which they moved in this matter. I have outlined the facts regarding the date when they say they first noticed that building had commenced, and the steps they took thereafter to launch these proceedings. They moved from that time with as much haste as was reasonable in the circumstances in which they found themselves. Within a matter of a few days they had engaged a solicitor and he was instructed to write to the Notice Parties and the Respondent, and he did so immediately. Thereafter these parties were at least alerted to the prospect of proceedings being issued, in contradistinction to the persons concerned in the case of The State (at the prosecution of Gerald H. Cussen) v. Joseph Brennan and others, to which I have referred, and who had to wait a period of four months before hearing anything from the prosecutor in that case. It is a fact that an Easter vacation intervened and delay resulting from Counsel’s unavailability cannot in fairness be laid at the applicants’ door. Were it not for the coincidence of that lost time, this application would have commenced within the eight week period. I must take that into account when weighing the competing interests. Prior to that vacation period intervening the Notice Parties and the Respondent were aware of the applicants’ intentions.
I am satisfied that the applicants have demonstrated good and sufficient reason as to why time ought to be extended. That reason is the fact that if the sign was in situ they did not see it, and therefore were not aware of fact that time was running against them, and that when they realised the position, they acted as speedily as could be expected in the circumstances. This is a sufficient reason given also that by the 5th April 2004 all parties were put on notice, and given that the application was filed only fourteen days outside the 8 week period, and that this is accounted for solely, in my view, because of the intervention of the Easter vacation period.
I will also permit the applicants to amend their Notice of Motion by including therein a prayer seeking an extension of time, and extend the time for the commencement of these proceedings up to the 28th April 2004 which is the date on which the application was filed.
I will also hear the parties with a view to fixing an early date for the resumption of the application for leave, so that the matter can be progressed with the urgency which the case deserves given the prejudice asserted on behalf of the Notice Parties.
Cases General
Patrick McNamara v An Bord Pleanála and Kildare County Council
l, Dublin County Council, South Dublin County Council, Fingal County Council, Dun Laoghaire/Rathdown Corporation and Dublin Corporation and Others (notice parties)
1994 No. 355 JR
High Court
10 May 1996
[1996] 2 I.L.R.M. 339
(Barr J)
BARR J
delivered his judgment on 10 May 1996 saying: Dublin County Council (now sub-divided into several independent local authorities) applied in 1992 to Kildare County Council for planning permission relating to the creation of a huge municipal dump for baled waste of 64 hectares at Arthurstown, Co. Kildare which is 1.6 km from the village of Kill. If it comes into being, it will be by far the largest municipal dump in Ireland and will receive approximately five million tonnes of municipal refuse from the city and county of Dublin over *345 a ten year period. Some idea of the size of the proposed project is derived from the fact that heavy vehicle movements to and from the site are likely to be in the order of one every three minutes for six days each week for not less than ten years from commencement. The lands comprise a former Roadstone sand and gravel quarry and an adjacent smaller quarry or dump formerly owned by Mr T. Gavin. The site originally comprised a large hill which was excavated over many years together with other adjoining lands. Roadstone which worked 52 hectares estimate that six to seven million tonnes of sand and gravel were extracted from 1947 until it ceased operations in 1980 when its quarry was worked out. Sand and gravel in the Arthurstown area are classified as a zone 3 acquifer and ground water is extracted for use in farms and residential properties in the area. Lands in the vicinity of the site comprise agricultural holdings and there are two stud farms on its border. Gavin’s land was used for some time as an unauthorised dump for toxic waste which remains a source of contamination of some ground water. The Roadstone lands were the subject of a previous planning permission for a 32 acre baled waste landfill, granted by An Bord Pleanála in 1986 to Rent-a-Bin (Tullamore) Ltd. However, no development has taken place and the permission expired in 1991.
The application by Dublin County Council and an environmental impact statement (EIS) relating to the proposed dump were lodged with Kildare County Council in July 1992. Ultimately, the latter authority refused planning permission on 29 July 1993 for 29 stated reasons. The proposed developer brought an appeal to An Bord Pleanála (the board) dated 27 August 1993. An oral hearing was directed by the latter and was conducted by Mr Padraig Thornton, a senior planning inspector, on behalf of the board. There was a lengthy hearing of 20 days from 18 January to 16 February 1994. 68 witnesses gave evidence. Mr Thornton’s report is dated 1 July 1994. He recommended the board to refuse permission for the proposed dump. However, it decided not to accept his advice and granted planning permission on 29 July 1994, subject to 26 conditions. The applicant on his own account and on behalf of Kill Residents’ Group, issued and served on all concerned a motion for judicial review dated 27 September 1994 together with a statement grounding the application and his verifying affidavit, all of that date. It is not in dispute that these documents were duly served within the statutory limitation period of two months from the date when planning permission was granted by the board. However, further affidavits were filed and served in support of the applicant’s motion, i.e. , two were sworn by Ms Suzanne O’Sullivan, a consultant hydrogeologist, dated 7 December 1994 and 24 June 1995 respectively, together with a supplementary affidavit sworn by the applicant dated 8 December 1994. It is submitted on behalf of the board, inter alia, that the later affidavits have introduced new grounds in support of the applicant’s motion which were not referred to in the documentation served on his behalf within the statutory time limit and which could not reasonably be inferred or *346 implied from any of the documentation originally filed in support of the motion.
The application for liberty to proceed for judicial review was made to Carroll J. She reserved her decision and delivered a formal judgment on 24 January 1995. The learned judge has referred in her judgment to the relevant statutory provisions relating to an application for judicial review of a decision of the board and I do not propose to set out all of them again herein.
Carroll J summarised the judicial function in adjudicating on such an application as follows:
What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the board’s decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are ‘substantial’ … I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit.
The grounds on which the applicant sought relief were stated by Carroll J to be:
(a) The EIS accompanying the application for planning permission is defective and fails to comply with the statutory requirements.
(b) The newspaper advertisement as published and on foot of which Dublin County Council advertised its intention to make application for planning permission, is defective and fails to comply with the statutory requirements.
(c) [This ground was not pursued.]
(d) The purported decision of the respondent under reference PL09.091910 Planning Register No. 92/942 insofar as it purports to impose conditions, inter alia, conditions No. 3, 13, 17, 18, 20 and 22 (9 and 19 having been dropped) and which are directed to be matters for agreement as between Dublin County Council, the applicant for planning permission, and Kildare County Council as the planning authority are such as constitute an abdication of responsibility of the respondent, [in] consequence of which no valid or proper determination has been made by the respondent on foot of the appeal and such decision as purports to have issued is null and void and of no effect.
(e) The respondent failed to determine all matters essential to the proper planning and development of the area and has abdicated such further responsibility as a consequence of which there has been no true or proper determination on foot of the application.
(f) The respondent acted ultra vires in reaching a conclusion that no reasonable *347 planning authority applying appropriate standards of reason and common sense and having due regard for proper planning and development considerations [would reach] and insofar as the respondent has reached the decision to grant permission under reference No. PL09.091910, the respondent has acted contrary to the weight of the evidence as adduced and such decision is manifestly unreasonable and without justification. [This ground is limited to the conditions relating to traffic only].
(g) The respondent, in purporting to refer conditions 3, 7, 13, 17, 18, 20 and 22 (9 and 19 having been dropped) for agreement as between the planning authority, Kildare County Council, and the applicant for planning permission, Dublin County Council, without the involvement of the respondent or an independent body nominated by the respondent, has wrongfully delegated its powers in consequence of which the purported decision under reference No. PL09.091910 is ultra vires the powers of the respondent.
Carroll J considered the arguments advanced on behalf of the applicant in support of his case and held that the grounds relied upon by him are of sufficient substance and weight to entitle him to an order giving liberty to proceed with his application for judicial review. The learned judge also reviewed relevant authorities and decided to grant leave to the applicant to proceed for judicial review on grounds (a), (b), (d), (e), (f) and (g) with the deletion of the reference to conditions 9 and 19 in grounds (d) and (g) and the confinement of ground (f) to the conditions relating to traffic. As to the objection taken on behalf of the board and the developer to the introduction of alleged grounds not contained in or reasonably implied from the documentation served on behalf of the applicant within the statutory time limit, Carroll J concluded that that matter ought to be left over for decision at the substantive hearing.
The issues
The effect of the statutory time limit
Were additional grounds introduced by Ms O’Sullivan in her affidavits and/or by the applicant in his supplementary affidavit which were not stated in or reasonably derived or inferred from the documentation filed on behalf of the applicant within time?
The conditions imposed by the board in its planning permission which were challenged by the applicant in the documentation served within the statutory time limit are conditions 3, 7, 9, 13, 17, 18, 19, 20 and 22 — see paragraph 3(2) of the statement grounding the application for judicial review. (Conditions 9 and 19 were not proceeded with and were excluded by Carroll J). As already stated, it is submitted on behalf of the board that further grounds are raised in Ms *348 O’Sullivan’s affidavits and in the supplementary affidavit sworn by the applicant — all of which came into being long after the statutory time limit had expired. In Ms O’Sullivan’s affidavit of 7 December 1994, she introduced a criticism of condition 10 attached to the board’s permission. She contended that it entailed the removal of approximately four million tonnes of sand and gravel which would deepen and enlarge the capacity of the proposed dump and would interfere with the acquifer which serves a number of third party properties in the vicinity of the site. She averred that this was not referred to in the original EIS and that a supplementary statement in that regard should have been furnished for consideration by the board and interested parties before any such condition was introduced. In his supplementary affidavit the applicant dealt with that point and also a different aspect of the same problem. He attacked condition 22 on the basis that the board had not taken into account substantial additional traffic movements relating to extra user which he submitted would be generated by the mandatory removal from the site of circa four million tonnes of sand and gravel pursuant to condition 10.
The applicant also introduced in his supplemental affidavit a criticism not previously made that condition 23 did not specifically specify that the sum of £800,000 to be paid by the developer to Kildare County Council should be spent on improving the Arthurstown/Turf Bog Lane road which in all probability would be the only service route for the dump; nor did it specify that such improvements were to be made as a condition precedent to the opening of the dump.
There is no doubt that the foregoing points raise substantial grounds touching upon the validity of the planning permission for the dump. However, it is not open to the court to consider them if the board is correct in its submission that they were not notified to it and all other parties within the statutory time limit.
It is provided by s. 82(3B) of the Local Government (Planning and Development) Act 1963 (as amended by s. 19(3) of the Local Government (Planning and Development) Act 1992) that an application for leave to apply for judicial review under O. 84 of the RSC regarding a decision of the board on an appeal shall ‘be made within the period of two months commencing on the date on which the decision is given’ (see s. 82(3B)(a)(i)). It is provided that any such application shall be made ‘by motion on notice (grounded in the manner specified in [O. 84] in respect of an ex parte motion for leave)’. The relevant rule in the RSC is O. 84, r.20(2) under which the applicant’s motion shall be grounded on a notice containing certain specified information which includes ‘the relief sought and the grounds upon which it is sought’. It is also provided that there shall be an affidavit verifying the facts relied on.
The foregoing provisions were considered by the Supreme Court in K.S.K. Enterprises Ltd v. An Bord Pleanála [1994] 2 IR 128; [1994] 2 ILRM 1. The judgment of Finlay CJ contains the following analysis of the statutory provi *349 sions:
The general scheme of the subsection now inserted by the Act of 1992 is very firmly and strictly to confine the possibility of judicial review in challenging or impugning a planning decision either by a planning authority or by An Bord Pleanála. The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested in the court to extend the time….
From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should at a very short interval after the date of such decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision….
In the case of a motion on notice which is what is provided for in this subsection, I am quite satisfied that it could not be said to have been made under any circumstances until notice of it had been given to the parties concerned. Such a construction of the phrase ‘application made by motion on notice’ seems to me entirely consistent with the plain objects of this subsection and with its other provisions. The vital and important thing is that within the very sharply limited time scale the parties concerned, and it would seem to me very particularly the person who had received the decision permitting him to develop, must be made aware of the challenge which it is sought to bring by way of judicial review to the validity of that decision.
It is argued on behalf of the board that one can only be aware of the challenge which it is sought to bring within the two-month time limit if the challenge or challenges in question are notified to the relevant parties within that period. It was further submitted that the applicant cannot expand the grounds of challenge beyond the statutory time limit; that this is the logical consequence of the K.S.K. decision and has been expressly so held in a subsequent judgment by Murphy J in Keane v. An Bord Pleanála delivered ex tempore on 23 May 1995. Murphy J held:
It seems to me that the application cannot be allowed or admitted. In the first place, the legislation requires that an application for judicial review of what might loosely be termed planning matters must be brought within two months.
This is an extraordinarily brief time limit within which to bring the proceeding but to permit an amendment at a later stage, however well founded the new *350 ground might appear to be, seems to me to be impermissible. I think counsel for the applicants might concede that this is so although in certain circumstances might challenge the constitutionality of such a provision. But I accept the argument made on behalf of the respondent that to add any new grounds after the two-month time period is impermissible.
Neither of the foregoing challenges were made in the applicant’s ‘within time’ documentation. His argument that he is not precluded from relying on the points made by Ms O’Sullivan and by him out of time as to conditions 10, 22 and 23 is twofold. First, he relies on ground (e) in the grounds of objection served within time to cover the matters raised in the affidavits sworn and served after the time limit had expired and to a lesser extent on grounds (a) and (f). They are as follows:
(e) The respondent failed to determine all matters essential to the proper planning and development of the area and has abdicated such further responsibility as a consequence of which there has been no true or proper determination on foot of the application.
(a) The EIS … is defective and fails to comply with the statutory requirements.
(f) … the respondent acted contrary to the weight of the evidence as adduced and such decision [to grant permission for the dump] is manifestly unreasonable and without justification. [This ground was limited by Carroll J to conditions relating to the traffic only.]
Secondly, the applicant interprets the judgment of the Supreme Court in K.S.K. as going no further than requiring that the beneficiary of a planning permission shall know within a short and strict time limit whether or not a legal challenge is being made to the proposed development. He contends that the Supreme Court did not lay down, nor is it contained in s. 82(3A) of the 1963 Planning Act as amended, that once the challenge has been initiated and communicated to all concerned within the required time limit, that the ordinary principles of processing the application do not apply. It was submitted that s. 82(3A) is concerned with ensuring that a legal challenge is initiated and communicated within a particular time and in a particular manner. It is not concerned with limiting the grounds of that challenge except only to require that they be substantial, and that additional grounds of challenge not previously notified may be introduced after the expiration of the statutory time limit, provided that the judicial review proceedings challenging the planning permission granted by the board were duly initiated and served within time.
I do not think that these submissions are well-founded. O.84, r. 20(2) requires that the applicant must specify ‘the relief sought and the grounds on which it is *351 sought’. In conjunction with the statutory requirements regarding the time limit already referred to, this clearly means not only that he must initiate proceedings and specify the relief claimed within the two-month time limit, but when so doing, he must also specify the grounds on which relief is sought. In short, the developer was entitled to know within the required period that its planning permission was being challenged and also the specific grounds on which the challenge was based. Ground (e) is a broad, general ‘catch-all’ plea which tells the developer little or nothing as to the actual nature and basis for the challenge and what it should do to meet the case which will be presented against it on judicial review. Ground (a) is also too wide and ought to have specified in what respects the EIS was alleged to be defective and/or failed to comply with statutory requirements. The applicant is not entitled to rely on a general complaint about the EIS as an umbrella to justify subsequent specific allegations not notified as grounds within time. As to ground (f); this raises a fundamental argument that the board’s decision in granting permission was irrational and therefore void. However, the allegation of irrationality as formulated in ground (f) which is confined to traffic only, is in general terms and lacks specifics. In my view it does not comply with the statutory requirements as to notification of grounds of objection within time. The nature of the irrationality alleged ought to have been specified in the grounds of objection submitted by the applicant within the two-month limitation period. As he did not do so, he cannot rely on that ground either to sustain grounds subsequently introduced out of time. In my opinion, the grounds of objection should also have drawn the developer’s attention specifically to the alleged absence of an EIS in support of condition 10; the alleged failure to consider the enlarged capacity of the dump occasioned by compliance with that provision; the effect on neighbouring property of removing the acquifer and the alleged effect of substantial additional traffic in consequence of that condition and also the absence of an EIS in that regard. At the judicial review hearing these matters formed the basis for far-reaching submissions made on behalf of the applicant of which the developer had no warning within time. The challenge to condition 23 and condition 22 (as to volume of traffic) was even more far-reaching as it involved a contention that it amounted to irrational crucial decisions by the board (within the concept of the Stardust and O’Keeffe judgments of the Supreme Court (State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642; [1987] ILRM 202 and O’Keeffe v. An Bord Pleanála [1993] 1 IR 39; [1992] ILRM] 237) the alleged effect of which was to render the purported planning permission null and void. The grounds of objection ought to have specifically referred to condition 23 and the allegations that the board had failed to provide that the required payment of £800,000 by the developer to Kildare County Council was for the improvement of the Arthurstown/Turf Bog road and that such works should be completed as a condition precedent to the opening of the dump.
*352
The applicant’s interpretation of the judgment of the Supreme Court in K.S.K. is contrary to the dictum of Finlay CJ where he stated that:
the vital and important thing is that within the very sharply limited time scale, the parties concerned …very particularly the person who had received the decision … must be made aware of the challenge which it is sought to bring by way of judicial review….
This clearly implies that the obligation on the applicant includes not merely informing the developer within time that his planning permission is being challenged, but also within the requisite time scale making him aware of the specific grounds for the proposed challenge so that he may know the case he has to meet. The applicant is not precluded from introducing evidence after expiration of the two-month limitation period in further support or amplification of the grounds of objection he relies on; provided that such grounds are specified in his original documentation which has been served on all relevant parties within time. It should be emphasised, however, that the applicant’s statutory obligation regarding appropriate notice to the developer within time, extends only to his grounds for challenging the planning permission. Apart from service of an affidavit verifying such grounds, he has no obligation to furnish any other information within the limitation period as to evidence or arguments in support of the case he proposes to make on judicial review.
In my opinion, the board’s submission is well founded that the applicant’s grounds of objection relating to conditions 10, 22 (insofar as it relates to additional traffic allegedly generated by condition 10) and 23 were first introduced out of time and cannot reasonably be inferred from the applicant’s ‘within time’ documentation. It follows that these grounds cannot be relied on in support of his application for judicial review.
Other grounds which the respondent alleges are out of time
In addition to grounds relating to conditions 10, 22 and 23 to which I have referred, the respondent also contests the right of the applicant to proceed with his challenge to conditions 11, 12 and 14 in the planning permission on the basis that, as in the other cases, the applicant did not specify the grounds for his attack on these conditions in his ‘within time’ documentation. They are as follows:
Condition 11: The ground water level beneath the landfill area shall be maintained below the base level of the clay soil layer of the lining system by the provision of a perimeter drainage system incorporating trenches and field drains. The facilities for regulating the ground water level shall be maintained on a permanent basis after cessation of landfilling operation and the rehabilitation of the lands.
Reason: to reduce the risk of water pollution.
Condition 12: A drainage system shall be installed above the liner at the base of the waste. Leachate shall be collected from the cells and piped to a leachate storage lagoon. The leachate shall be transported from the storage lagoon in sealed tankers and shall be discharged to the public sewage system as proposed. The level of leachate (head) in the waste containment cells shall not exceed one meter above the lowest level of the flexible membrane liner. The maximum head referred to shall be permanently maintained after closure of the landfill. In the event of leachate being re-circulated through the waste, it shall be re-circulated only beneath the surface of the waste through an infiltration system.
Reason: to reduce the risk of water pollution and to protect the amenities of the area.
Condition 14: The remediation of ‘Gavin’s Dump’ (including the proposed capping) shall be completed prior to the completion of phase 1 of the landfill development. The proposed ‘cut-off wall’ containment shall be founded on low permeability competent bedrock below the weathered surface. The ‘cut-off wall’ shall consist of high density polyethylene (HDPE) sheeting and/or bentonite — cement slurry which shall have a maximum hydraulic conductivity of 1 × 10 to the power of minus 9 meters per second. The ‘cut-off wall’ shall also incorporate an inner layer of granular material in order to facilitate gas venting. Landfilling of baled waste shall not be carried out above the area enclosed by the ‘cut-off wall’.
Reason: to protect the water resources in the area.
None of the foregoing conditions were referred to specifically in the applicant’s original documentation and it appears that, again, he is obliged to rely on the ‘catch-all’ ground (e). For the reasons already stated, I am compelled to hold that the applicant’s challenges to conditions 11, 12 and 14 also cannot be relied upon as notification of them was out of time.
I should add that if each of these grounds of objection ( i.e. as to conditions 11, 12 and 14) had been made by the applicant within the prescribed time limit, I would not have been disposed to accept his case on any of them. In the premises it is unnecessary to review the arguments which have been advanced on his behalf in that regard. Suffice it to say that I regard the contrary case submitted on behalf of the board in its written submissions as being well-founded.
2. Alleged unlawful delegation of responsibility by the board to the planning authority and the developer
The gravamen of the applicant’s case in this regard is that the board has failed to exercise and has abandoned its decision making obligation regarding certain specific matters which the applicant contends are of major importance in the overall plan for the proposed development which must be decided by the board *354 and may not be delegated to anyone else. The board has left it to the developer and Kildare County Council as the planning authority to agree upon the details relating to such matters. The applicant submits that the board’s statutory powers of delegation do not extend to major decision making in areas such as those in question, in consequence of which the introduction by the board of the conditions providing for delegation of decision making to the planning authority in such matters in collaboration with the developer, being ultra vires the board’s power, vitiates the planning permission which it has purported to grant. It is also arguable that a consequence of such unlawful delegation of authority was that the applicant and other interested parties were excluded from the decision making process and had no opportunity of being heard before such decisions were made. The board’s conditions which are challenged on the ground of unlawful delegation of authority are Nos. 3, 7, 13, 17, 18, 20 and 22.
It is not in dispute that the board has statutory power to delegate matters for decision by the planning authority in consultation with the developer — see the Local Government (Planning and Development) Act 1963, s. 26(1) and (2), and s. 14(4) of the amending Act of 1976. The question is what are the parameters of that power and its limitations in the circumstances of the particular case. There can be little doubt that in regard to a major development of a novel specialised nature such as that under review which, if allowed, will be evolving for at least ten years, it is impractical for the board to concern itself directly in every aspect of the proposed development and it is reasonable to provide that certain details, which are not fundamental to the project per se, shall be delegated to the planning authority for ultimate decision as they arise. In Houlihan v. An Bord Pleanála High Court 1992 No. 135 JR, 4 October 1993, Murphy J in the High Court summarised the problem as follows:
… Undoubtedly some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise. The issue then is whether the nature or quantity of the matters left undefined is such as to render the permission granted invalid. In my view — and as I understand it neither party would disagree — the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree….
In reviewing the exercise by the board of its delegatory power, the court must decide whether or not in the circumstances of the given case, it has crossed the boundary between authorised delegation of responsibility to the planning authority and an unlawful delegation of or failure to exercise its powers as to the regulation of the proposed development in a major respect. If that line is crossed by the board in a matter of substance, the effect is to render its planning permission invalid.
The delegation by the board to a local authority of decision making as to the *355 regulation of traffic in connection with a major ro-ro development in Dun Laoghaire harbour was the subject matter of judicial review by Keane J in Boland v. An Bord Pleanála High Court 1994 No. 352 JR, 20 December 1994. He decided that the traffic conditions challenged by the applicant constituted a lawful delegation of responsibility by the board. However, as the case raised an issue (regarding the parameters of the board’s power to delegate decision making to a planning authority) which involved a point of law of exceptional public importance, Keane J referred the matter to the Supreme Court pursuant to s. 82 of the Local Government (Planning and Development) Act 1963 as amended by s. 19(3) of the 1992 Act. The matter came before Hamilton CJ, Blayney and Barrington JJ. Reserved judgments were delivered on 21 March 1996.
In course of his judgment the Chief Justice reviewed the existing law, including the judgments of Murphy J in Houlihan and Keane J in Boland. He accepted the principles which they had laid down and he summarised the position of the board as to the imposition of certain types of condition relating to planning permission, including factors which the board is entitled to take into account in deciding whether or not any particular matter may be left over for subsequent agreement be‘tween the developer and the planning authority. The following passage commences at p. 34 of the judgment of the Chief Justice following upon reiteration of the statements of principle made by Murphy J and Keane J in Houlihan and Boland respectively:
Accepting, as I do, these statements the position of the board would appear to be as follows:
1. The board is entitled to grant a permission subject to conditions.
2. The board is entitled, in certain circumstances, to impose a condition on the grant of a planning permission in regard to a contribution or other matter and to provide that such contribution or other matter be agreed between the planning authority and the person to whom the permission or approval is granted.
3. Whether or not the imposition of such a provision in a condition imposed by the board is an abdication of the decision making powers of the board depends upon the nature of the ‘other matter’ which is to be the subject matter of agreement between the developer and the planning authority.
4. The ‘matter’ which is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and the circumstances of each particular application and development.
5. In imposing a condition, that a matter be left to be agreed between the developer and the planning authority, the board is entitled to have regard to:
(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to *356 the nature of the enterprise;
(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require redesign in the light of practical experience;
(c) the impracticability of imposing detailed conditions having regard to the nature of the development;
(d) the functions and responsibilities of the planning authority;
(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;
(f) whether the enforcement of such conditions require monitoring or supervision.
6. In imposing conditions of this nature, the board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement; to state clearly the reasons therefor and to lay down criteria by which the developer and the planning authority can reach agreement.
Blayney J in his judgment agreed with the foregoing criteria laid down by the Chief Justice but added a further criterion which was accepted by the Chief Justice. It is as follows:
7. Could any member of the public have reasonable grounds for objecting to the work to be carried out pursuant to the condition, having regard to the precise nature of the instructions in regard to it laid down by the board, and having regard to the fact that the details of the work have to be agreed by the planning authority?
The foregoing criteria laid down by Hamilton CJ and Blayney J in Boland comprise the parameters within which the board may lawfully provide by way of condition attaching to a planning permission that a specified matter may be left over for subsequent agreement between the developer and the planning authority. Reviewing the applicant’s challenges to conditions 3, 7, 13, 17, 18, 20 and 22 in the light of these requirements, the following emerges:
Condition 3:
In essence this condition prohibits the deposit of waste within 30 meters of certain defined reference points and the developer is obliged to submit to the planning authority for agreement revised plans dealing with such matters as the required set-back and plans for landscaping and ground contouring in the buffer zone land. This condition deals with peripheral details which are not fundamental to the development per se. It seems to me that it is clearly within the criterion *357 laid down by Hamilton CJ at 5(b) at pp. 35–6 of his judgment in Boland. It is also of interest that the first condition imposed by the board in Houlihan’s case required revision of the layout plan to accommodate the re-siting of the northern boundary of the property in question. That condition, among others, was challenged. It was upheld by Murphy J who stated:
I should say, however, that I do not doubt their right [i.e. the board’s right] to delegate to the planning authority power to agree with the developer the revisions of the layout which would be consequent upon the re-siting of the boundary.
That particular condition is similar in nature to condition 3. It is clearly one where delegation of authority by the board is permissible.
Condition 7:
Details of a bird and vermin control scheme shall be submitted to and agreed with the planning authority prior to any waste being deposited on the site. The scheme shall be implemented on an on-going basis during the operational phase of the development and for as long as is agreed with the planning authority after the closure of the land filling facility.
This condition is within the ambit of 5(b) and (f) at p. 36 in the judgment of the Chief Justice in Boland. A scheme for the control of birds and vermin would require monitoring by the local authority and this appears to be envisaged in condition 7. It is also a technical provision involving a peripheral detail which is suitable to be agreed between the developer and the planning authority.
Conditions 10, 11 and 12:
As already held, the challenges to these conditions are all out of time.
Condition 13:
Details of the area and size of the cells to be constructed in each phase of the land filling operation shall be submitted to and agreed with the planning authority prior to any cell being constructed in that phase. The details to be submitted shall include detailed calculations of the water balance and projected maximum leachate production arising from a two and five day design rainfall during each phase, having regard, inter alia, to the size of the cells. The leachate storage lagoon shall have a minimum capacity of 2,500 cubic meters and additional storage capacity shall be provided if required by the planning authority subsequent to the submission of the detailed calculations referred to above. Provision shall be made for the aeration of the leachate storage lagoon. Details of aeration facilities shall be agreed with the planning authority or, in *358 default of agreement shall be as determined by An Bord Pleanála.
The proposed plan for the dump envisages that it shall be divided into a series of cells to be constructed in each phase of the development as it evolves. The area and size of the cells are to be agreed with the planning authority. Specific technical requirements are laid down in the condition as to what the details to be submitted by the developer shall cover. It seems to me that this accords with 5(a), (b) and (c) in the criteria laid down by the Chief Justice in Boland. The details in question do not affect the overall size or extent of the project and are within what Keane J called the ‘ring fence’ of the overall development. In my opinion they are in the nature of technical details which may properly be left for agreement between the developer and the planning authority.
Condition 14:
The challenge to this provision is also out of time.
Condition 17:
The surface water drainage system shall be revised to cater for a minimum return period of ten years rather than five years as proposed. Revised plans indicating compliance with this requirement shall be submitted to and agreed with the planning authority prior to works being commenced on the proposed development or, in default of agreement shall be as determined by An Bord Pleanála.
This condition imposes a more stringent requirement than that proposed by the developer. It entails the redesign of the surface water drainage system to provide for ‘a minimum return period of ten years rather than five years as proposed’. The obligation on the developer created by this condition to submit a revised plan to the local authority is a detail arising out of the change made by the board in stipulating a period of ten rather than five years as originally intended. This is also within the ambit of 5(b) at p. 36 in the judgment of the Chief Justice in Boland. It will be observed that the condition contains a provision for the matter to be decided by the board in default of agreement as envisaged in the amending Act of 1976 at s. 14(4).
The applicant also raises an alternative challenge to this condition, i.e. , that the amended period of ten years is itself inadequate having regard to the level of sand and gravel extraction. However, it is not contended that the board in devising and imposing condition 17, acted unfairly or irrationally. The applicant’s criticism goes to the merits of the board’s decision and as such is not reviewable by the court.
Condition 18: *359
The surface water drainage system shall discharge to the Hartwell River (by pumping if necessary) at a rate to be agreed with the planning authority following the submission of revised surface water proposals incorporating the requirement set out in condition No. 17 and providing for the provision of detention storage (ponds or lagoons). The detention storage facility shall be designed to control the quantity and quality of the surface water to be discharged and it shall be indicated on the revised plans to be submitted for the agreement of the planning authority in accordance with condition No. 17.
This condition is intimately bound up with condition 17 and they should be read together. It appears that both are subject to the default provision in the latter condition. Plans for the revised surface water drainage system provided for in condition 17 are required to deal with, inter alia, the rate of discharge of the water and the provision of detention storage ponds or lagoons. The board has specifically reserved to itself the power to decide these matters in default of agreement between the developer and the planning authority. I am satisfied that condition 18 also deals with technical matters which the board is entitled to delegate to the planning authority. It was also argued on behalf of the applicant that conditions 17 and 18 do not deal adequately with the risk of water contamination from Gavin’s dump. This criticism also goes to the merits of the planning decision and as such is not reviewable by the court.
Condition 20:
A detailed monitoring scheme incorporating sampling and testing from a minimum of 12 additional ground water boreholes and additional monitoring points for gas analysis shall be submitted to the planning authority for agreement. Monitoring shall be carried out in accordance with the agreed scheme at a frequency to be agreed with the planning authority. The results of the monitoring shall be submitted to the planning authority on an agreed regular time-scale. The monitoring shall continue for a minimum period of 30 years following the closure of the landfill facility.
This provision is a technical requirement which entails, inter alia, long term monitoring. The board does not have facilities for discharging that role. The obvious body to do so is the local authority. It is also reasonable that the latter should have the function of approving the proposed scheme which is a matter of technical detail subsidiary to the development per se. It is clearly within 5(b) in the criteria laid down by the Chief Justice at p. 34 of his judgment in Boland.
Condition 22:
Heavy commercial vehicular traffic travelling to and from the landfill facility shall not use the existing roads through Kill village or turn right at the junction *360 of Turf Bog Lane and the N7. An agreement shall be entered into between the developer and Kildare County Council to regulate the route to be used by traffic associated with the development. This agreement shall be entered into prior to any work being carried out on the proposed development.
This condition prohibits heavy waste transport vehicles from travelling to and from the dump via Kill village and from turning right at the junction of Turf Bog Lane and the N7, a dual carriageway from Dublin to the south, when returning to the city. These provisions are challenged on two grounds. First, the board has no power to regulate traffic on public roads. Secondly, that the proposed agreement between Kildare County Council and the developer regulating the route to be used by the dump traffic is an unlawful delegation of the board’s obligations.
As to the first point: I accept that the board has no power to regulate the generality of traffic using the public highway for a particular purpose (e.g., all motor vehicles travelling on public roads to or from a local authority refuse dump). However, that is not what the board has sought to do in the instant case. Its planning permission excludes direct dumping of waste at the site by the public. Only the developer and its agents may do so. The board is not seeking to impose route restrictions on the public at large in relation to the dump, but only restrictions on the developer and its agents as to routes which heavy vehicles must avoid or adopt in connection with user of the dump. In my view this is within the powers of the board. The requirements which it has specified in condition 22 appear to be eminently sensible. It is proper for the board to protect the small village of Kill from a flow of heavy vehicles every three minutes, six days a week for ten years. Likewise, it is probable that very serious interference with the main arterial highway from the city of Dublin to the south would ensue if heavy vehicles returning to the city from the dump were permitted to turn right at the junction in question. This would hold up traffic on both sides of the dual carriageway. The alternative route entails a substantial detour of several miles to a roundabout near Naas. It is submitted on behalf of the applicant that in practice at least some lorry drivers will ignore the latter stipulation and will turn right for Dublin at the Turf Bog Lane intersection with the N7. If that happens and on complaint from Kildare County Council the developer does not remedy the situation, the planning authority has adequate statutory powers under s. 27 of the 1976 Act to restrain breach of the traffic condition imposed by the board. If the developer failed to comply with a court order under s. 27, the entire project could be put in jeopardy. I apprehend that Dublin County Council and its agents will be at all times concerned to ensure due compliance with the traffic regulations comprised in condition 22.
The applicant’s second argument relates to improper delegation of responsibility by the board. As already stated, the latter has no statutory function in the *361 matter of regulating the public at large as to traffic on public roads relating to use of the dump, but it may regulate the developer’s heavy vehicle traffic in that regard. However, the most appropriate course for the board is to delegate its function to Kildare County Council, as the traffic authority concerned and provide that it shall regulate the route to be taken by the developer’s heavy vehicles serving the dump. Such regulation was specifically contemplated by 5(e) in the criteria laid down by the Chief Justice in Boland which relate to off-site problems. In my opinion both arguments advanced on behalf of the applicant in attacking condition 22 are unfounded. It is not ultra vires the powers of the board as it does not interfere with the rights of the public at large as to user of the roads in question.
Notwithstanding that the applicant’s challenge to condition 23 (being out of time) cannot be entertained by the court, it is appropriate to add that in my view conditions 22 and 23 should be read as one. A reasonable interpretation of their combined effect is that an agreement shall be entered into between the developer and Kildare County Council to regulate the route to be used by heavy vehicles associated with the intended dump and that agreement shall be a condition precedent to the performance of any work relating to the proposed development. Secondly, the developer shall pay to Kildare County Council £800,000 (up dated as to inflation) as ‘a contribution towards expenditure on roadworks which are required to facilitate the proposed development’. These conditions clearly envisage that Kildare County Council shall decide upon the appropriate route for heavy traffic serving the proposed dump and shall receive from the developer a specific financial contribution towards the cost of necessary road building or improvement. In short, it is a matter for Kildare County Council to decide the route and to build it (if a new road is preferred) or up-grade an existing route to serve the purpose, having been put in funds by the developer so to do. I do not accept the argument advanced on behalf of the applicant that such a scheme is unreal or irrational in the O’Keeffe/Stardust sense because the board did not indicate more specific details and strict time limits. In my view, it was proper that it should be left to Kildare County Council, as the road authority in question, to decide finally whether there should be a new road serving the dump as originally proposed or an up-grading of the Arthurstown/Turf Bog Lane route which in the end appears to have been the preferred option. Although Kildare County Council opposed the creation of the Arthurstown dump, there is no evidence to suggest that, the board having granted planning permission, the local authority would act unreasonably or drag its feet as to the implementation of the foregoing pre-conditions relating to service routes. Conduct of that sort, if it arose, could well lead to judicial review proceedings which would be likely to ensure a realistic implementation of these conditions within a fair and reasonable time scale.
There is one other general point which has been raised on behalf of the *362 applicant as to the delegation of authority by the board and to which I have already made brief reference. It is submitted that the effect of delegating authority is to prevent or inhibit the applicant and other interested parties from contributing to decision making in regard to delegated matter. I do not think that that is so. There is no reason to believe that Kildare County Council, as the planning authority concerned, will not co-operate with the applicant or any other interested party in the matter of submissions they may wish to make on functions delegated to the planning authority by the board and, if asked, will inform them of developments in that regard before decisions are taken. In short, delegation of authority by the board to the planning authority within the confines of the criteria laid down by the Supreme Court in Boland does not shut out interested parties from contributing to the decision-making process.
The advertisement
It was published in the Irish Press and is as follows.
Co. Kildare. Dublin County Council intends to apply for planning permission for the development of a sanitary landfill for baled municipal waste including ancillary building (137 meters square) on a site of 64 hectares at Arthurstown and Hartwell Lower, Kill, Co. Kildare with a new access on to Arthurstown Road. The application will provide for phasing, for landscaping and for the restoration of the site. Proposals will be made to deal with the existing situation arising from the former landfill operations on part of the site. The application will be accompanied by an environmental impact statement.
Ground (b) relates to the advertisement in support of the developer’s application for planning permission which, it is submitted, ‘is defective and fails to comply with the statutory requirements’. This general contention is amplified in paragraphs 56 to 59 of the applicant’s affidavit of 27 September 1994. Four specific points are made therein, but they were not relied on at the judicial review hearing. A different argument was advanced then i.e. , that the Local Government (Planning and Development) Regulations 1977, article 15(c) specifies that the advertisement shall state ‘the nature and extent of the development’. It was submitted that the extent of the development was misstated in two respects:
(i) It was not stated that the Arthurstown Road/Turf Bog Lane route probably would be the only one to serve the dump during all or most of its life and not merely a short-term expedient.
(ii) There was no reference to an effect on the acquifer beneath the dump.
The board’s primary argument in response was that these grounds were new and were not based on or reasonably inferred from the case made by the applicant within time. It is evident from the relevant documentation that that is so. It follows, therefore, that the applicant’s case as to the adequacy of the advertise *363 ment fails, as the grounds on which it is based were not notified to the board within the statutory time limit.
It was also argued on behalf of the board that the advertisement did adequately state ‘the nature and extent of the development’ as required by article 15(c). As will be seen from the advertisement, it does refer to ‘a new access on to Arthurstown Road’ thus implying that that road would be used. The development plans and the EIS referred to in the advertisement, which were available to interested parties, indicated that a proposed new distributor road was (at that time) the preferred option, but that the Arthurstown Road route would be used for an undetermined time pending the building of the new road. The EIS contained a full evaluation of both alternate routes. I accepted the board’s submission that the advertisement adequately alerted the public to the possibility that the Arthurstown Road route would be used.
The second point made on behalf of the applicant that there was no reference to the effect of the development on the underlying acquifer introduces an element which in my opinion goes far beyond a description of ‘the nature and extent of the development’ as required by article 15(c).
Finally, on this topic, it is pertinent to point out that the relief which the applicant seeks (an order of certiorari quashing the board’s planning permission) is a discretionary remedy. Even if the advertisement was defective as alleged and the grounds for criticising it had been notified within time, I would not be prepared to strike down the board’s planning permission by reason only of the alleged defects in the advertisement. There was a very full appeal hearing conducted by Mr Thornton at which the points in question were fully debated. I am not aware of anyone who contends that he/she was misled by the advertisement or was inhibited from making his/her case at the appeal on that account.
Having considered all of the grounds of criticism argued on behalf of the applicant, I am not satisfied that a sufficient case has been made out to vitiate the planning permission granted by the board for the developer’s proposed refuse dump at Arthurstown and I refuse the application.
An Taisce -v- An Bord Pleanala & ors
[2018] IEHC 315 (17 May 2018)
JUDGMENT of Mr Justice Max Barrett delivered on 17th May, 2018.
1. The first-named notice party owns a quarry at Lemgare, Co Monaghan, that on 25th April, 2014, was granted a substitute consent by An Bord Pleanála pursuant to s.177C(2)(a) and D(1)(a) of the Planning and Development Act 2000, which provide as follows:
“177C. –
…(2) A development in relation to which an applicant may make an application referred to in subsection (1) is a development which has been carried out where an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required, and in respect of which
(a) the applicant considers that a permission granted for the development by a planning authority or the Board may be in breach of law, invalid or otherwise defective in a material respect, whether pursuant to a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise by reason of –
(i) any matter contained in or omitted from the application for permission including omission of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or
(ii) any error of fact or law or a procedural error,
or [emphasis added]
(b) the applicant is of the opinion that exceptional circumstances exist such that it may be appropriate to permit the regularisation of the development by permitting an application for substitute consent.
…
177D. – (1) The Board shall only grant leave to apply for substitute consent in respect of an application under section 177C where it is satisfied that an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required in respect of the development concerned and where it is further satisfied –
(a) that a permission granted for development by a planning authority or the Board is in breach of law, invalid or otherwise defective in a material respect whether by reason of a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of –
(i) any matter contained in or omitted from the application for the permission including omission of an environmental impact statement or a Natura impact statement or both of those statements as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or
(ii) any error of fact or law or procedural error,
or [emphasis added]
(b) that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.”
2. Previous to the granting of the said substitute consent, the quarry had been registered pursuant to s.261 of the Act of 2000. Section 261(7) of that Act provided as follows:
“(a) Where the continued operation of a quarry –
(i) (I) the extracted area of which is greater than 5 hectares, or
(II) that is situated on a European site or any other area prescribed for the purpose of section (10)(2)(c), or land to which an order under section 15, 16 or 17 of the Wildlife Act, 1976, applies,
and
(ii) that commenced operation before 1 October 1964,
would be likely to have significant effects on the environment (having regard to any selection criteria prescribed by the Minister under section 176(2)(e)), a planning authority shall not impose conditions on the operation of a quarry under subsection (6), but shall, not later than one year after the date of the registration of the quarry, require, by notice in writing, the owner or operator of the quarry to apply for planning permission and to submit an environmental impact statement to the planning authority not later than 6 months from the date of service of the notice, or such other period as may be agreed with the planning authority.
…
(c) A planning authority, or the Board on appeal, shall, in considering an application for planning permission made pursuant to a requirement under paragraph (a), have regard to the existing use of the land as a quarry.”
3. Pursuant to s.261(7) of the Act of 2000, Monaghan County Council directed that an application for planning permission, together with an environmental impact statement, be submitted to it. Thereafter, on 2nd March, 2004, an application for planning permission was made by the first-named notice party. Following on this application, Monaghan County Council granted planning permission for the quarry.
4. An Taisce appealed this decision to An Bord Pleanála. In its appeal, An Taisce contended that the application for permission was a retention application in respect of a development that required an environmental impact assessment and, accordingly, that permission could not be granted, having regard to the EIA Directive and the decision of the Court of Justice in Case C-215/06 Commission v. Ireland (of which more anon). Notwithstanding the grounds set out in the appeal, on 20th July, 2009, An Bord Pleanála granted permission for the quarry. An Taisce then commenced judicial review proceedings challenging the lawfulness of the decision of An Bord Pleanála.
5. On 25th November, 2010, Charleton J. made an order of certiorari quashing the decision of An Bord Pleanála. In his decision, Charleton J. held, inter alia, that An Bord Pleanála was required to consider whether or not the development that was the subject of the application was unauthorised development. As An Bord Pleanála had not considered same, its decision was quashed.
6. Subsequent to the said decision of Charleton J., the first-named notice party applied to An Bord Pleanála for leave to apply for substituted consent pursuant to s.177C of the Act of 2000. An Bord Pleanála granted the said leave. It is as well to take a detour at this point and consider what was afoot in the making of this application under s.177C. That provision came about as a result of the previously mentioned decision of the Court of Justice in Commission v. Ireland. That was a case in which the CJEU found Ireland to be in breach of European Union law because, prior to the Planning and Development (Amendment) Act 2010, there was no restriction under Irish law as to the circumstances in which retention planning permission could be sought, thus effectively offering a means to circumvent the requirements of the EIA Directive, the CJEU observing, inter alia, as follows:
“54 As the Irish legislation stands, it is undisputed that environmental impact assessments and planning permissions must, as a general rule, be respectively carried out and obtained, when required, prior to the execution of works. Failure to comply with those obligations constitutes under Irish law a contravention of the planning rules.
55 However, it is also undisputed that the Irish legislation establishes retention permission and equates its effects to those of the ordinary planning permission which precedes the carrying out of works and development. The former can be granted even though the project to which it relates and for which an environmental impact assessment is required pursuant to Articles 2 and 4 of Directive 85/337 as amended has been executed.
56 In addition, the grant of such a retention permission, use of which Ireland recognises to be common in planning matters lacking any exceptional circumstances, has the result, under Irish law, that the obligations imposed by Directive 85/337 as amended are considered to have in fact been satisfied.
57 While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.
58 A system of regularisation, such as that in force in Ireland, may have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria of Article 2(1) of Directive 85/337 as amended, and consequently, not to undertake the action required for identification of the effects of those projects on the environment and for their prior assessment. The first recital of the preamble to Directive 85/337 however states that it is necessary for the competent authority to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes, the objective being to prevent the creation of pollution or nuisances at source rather than subsequently trying to counteract their effects.
59 Lastly, Ireland cannot usefully rely on Wells. Paragraphs 64 and 65 of that judgment point out that, under the principle of cooperation in good faith laid down in Article 10 EC, Member States are required to nullify the unlawful consequences of a breach of Community law. The competent authorities are therefore obliged to take the measures necessary to remedy failure to carry out an environmental impact assessment, for example the revocation or suspension of a consent already granted in order to carry out such an assessment, subject to the limits resulting from the procedural autonomy of the Member States.
60 This cannot be taken to mean that a remedial environmental impact assessment, undertaken to remedy the failure to carry out an assessment as provided for and arranged by Directive 85/337 as amended, since the project has already been carried out, is equivalent to an environmental impact assessment preceding issue of the development consent, as required by and governed by that directive.
61 It follows from the foregoing that, by giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development, when, pursuant to Articles 2(1) and 4(1) and (2) of Directive 85/337 as amended, projects for which an environmental impact assessment is required must be identified and then – before the grant of development consent and, therefore, necessarily before they are carried out – must be subject to an application for development consent and to such an assessment, Ireland has failed to comply with the requirements of that directive.”
7. Subsequent to the judgment of the CJEU in Case C-215/06 Commission v. Ireland, the following provision was made in s.34(12) of the Planning and Development Act 2000 (as amended by s.23 of the Planning and Development) Amendment Act 2010:
“A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced the application would have required that one or more than one of the following was carried out –
(a) an environmental impact assessment,
(b) a determination as to whether an environmental impact assessment is required, or
(c) an appropriate assessment.”
8. Part XA of the Act of 2000, as inserted by s.57 of the Planning and Development Act 2010, makes related provision allowing for the possibility of applying for a retrospective development consent, known generally as a ‘substitute consent’. There are three routes (gateways) whereby a developer can seek a substitute consent. The within application, as mentioned, is focused on the gateway offered by s.177C(2)(a) and D(1)(a) whereby leave to apply for substitute consent may be sought on the basis that an existing permission may be in breach of law, invalid or otherwise defective in a material respect.
9. Part XA was commenced on 21st September 2011. The first-named notice party made its application for leave to apply for substitute consent in January 2012. An Bord Pleanála made a decision to grant leave to apply on 28th May, 2012. So far as An Taisce had any complaint as to the validity of that decision, it had, pursuant to ss.50 and 50A of the Act of 2000, as amended, eight weeks to bring such challenge. It did not bring any such challenge. This raises an insurmountable difficulty for An Taisce when it comes to the within proceedings. Its complaint, in essence, is that the first-named notice party should not have been allowed to apply for development consent retrospectively; however, the decision which allowed the first-named notice party to apply for development consent was the decision on 28th May, 2012, to grant leave to apply for substitute consent.
10. An Taisce seeks to get around the timing difficulty which presents by challenging the decision of An Bord Pleanála of 25th April, 2014 to grant the substitute consent. But of course that later decision could never have been granted were it not for the decision of 28th May 2012. What presents, in truth, is an out-of-time attack and an impermissible collateral attack, on the decision of 28th May, 2012, under the guise of an attack on the decision of 25th April, 2014. It is not a million miles from relying on a referee’s decision on a penalty-kick to challenge the decision to hold a football match in the first place. Such a collateral attack runs contrary to a line of jurisprudence that includes Goonery v. Meath County Council [1999] IEHC 15 and Lennon v. Cork City Council [2006] IEHC 438, with the judgments in those cases emphasising that the courts will look to the substance of the relief sought in proceedings, rather than its mere form, so that a failure to seek e.g., an order of certiorari in respect of an order which comes first in time not being fatal to a conclusion by a court that, as here, it is that decision and not one later in time which is truly under attack.
11. The clear purpose and effect of statutory time-limits such as the eight-week time limit referenced above is to empower persons affected by such decisions to rely on them after a brief period, safe in the knowledge that the decisions are then beyond challenge, or, to use a colloquialism, to allow them to ‘get on with their lives’ without fear that the legal basis on which their lives are being constructed will be cut from underneath them. As Clarke C.J., for the Supreme Court, recently put matters in Sweetman v. An Bord Pleanála [2018] IESC 1, echoing the much earlier judgment of Finlay CJ in KSK Enterprises Ltd v. An Bord Pleanála [1994] 2 IR 128, 135:
“7.1 The rationale behind the collateral attack jurisprudence is clear. A party who has the benefit of an administrative decision which is not challenged within any legally mandated timeframe should not be exposed to the risk of having the validity of that decision subsequently challenged in later proceeding which seek to quash the validity of a subsequent decision on the basis that the earlier decision was invalid….
7.2 The requirements of legal certainty make clear that a person who has the benefit of a decision which is not challenged within whatever time limit may be appropriate is entitled to act on the assurance that the decision concerned is now immune from challenge subject to very limited exceptions such as fraud and the like.”
12. Clarke C.J. immediately moves on to make helpful comment concerning the position where, as in the case at hand, there is a two-stage process, observing, inter alia, as follows:
“7.3 However, the application of that general principle can become complex in circumstances where there is a two or more stage process leading to the substantive administrative decision concerned. In such a case is it permissible to leave a decision made at an earlier stage in the process go unchallenged and then raise a point which could have been made in respect of that initial decision at a later stage in the process? In such a case it seems to me that it is necessary to analyse the process concerned for the purposes of determining whether it is the overall intent of the scheme in question that the relevant issue or question be definitively and finally decided at the first stage with no capacity to revisit the issue at any subsequent stage in the process.
7.4 In some circumstances, for example, an initial decision may simply be to the effect that there is an arguable case or a case to answer or the like so that all of the issues remain open for full debate as the process continues. In other cases it may be clear that the initial decision is designed to definitively determine some relevant matter such as whether jurisdiction exists or qualifying factors are present. In such a case the scheme does not envisage those issues as being capable of being revisited once established at the initial stage.
7.5 While the distinction which I have just identified may be relatively easy to express in general terms, the analysis which may be required to decide on the proper characterisation of any particular scheme may not always be quite so easy. This may particularly be so where the scheme is not express in its terms as to whether particular issues are capable of being raised at various stages in the process or alternatively are to be taken to be definitively determined at a particular point. But in an overall sense I am satisfied that the proper approach for the court to take is to consider whether, taking the scheme as a whole and having regard to its express terms and any additional matters which can properly be implied, it can be said that it is clear that a particular question or issue is to be definitively determined at an earlier stage so that there is no possibility to have that issue or question re-opened at a later stage. In such a case it is appropriate to require anyone who wishes to challenge that initial decision to do so within any relevant statutory time limit or time provided for in Rules of Court. Any failure to do so within such time limit, including any extended time limit which the court may, in accordance with its jurisdiction, permit, will render the initial decision incapable of challenge and will further preclude any challenge to any subsequent decision made in the process which is based on a contention that the initial decision was not lawfully made.”
13. Here, it seems to the court to be entirely clear from the scheme of the Act of 2000 that once the first-named notice party was through the s.177D(1)(a) gateway, it would not have to satisfy any additional criteria, in particular exceptional circumstances under s.177D(2) of the Act of 2000. Thus, if An Taisce wished to argue that the quarry operator was not entitled to obtain substitute consent on the s.177D(1)(a) basis, it fell to it to do so within eight weeks of the decision of 28th May, 2012. To the extent that there is suggestion that An Taisce could not raise at the ‘leave to apply stage’ the points that it now seeks to raise, that contention is not accepted by the court: once the decision of May 2012 was made it was open to An Taisce to come to court and challenge it (and it is notable in this regard that the fact of the decision is greatly publicised; thus under s.177D(8) of the Act of 2000 the decision of An Bord Pleanála is notified to the local planning authority and entered in the statutory register; the decision is also included in the weekly list of An Bord Pleanála pursuant to reg.72(1)(f) of the Planning and Development Regulations 2001). To allow An Taisce to challenge a decision where it was somewhere over 90 weeks beyond the permitted eight-week period in coming to court, in circumstances where there were not (and An Taisce has not even pleaded that there were) exceptional circumstances outside its control which prevented its bringing its application in a timely fashion, would be fundamentally and improperly to undermine the certainty which that eight-week period seeks for entirely legitimate reasons to bring to the planning regime.
14. As to any notion that no breach of the EIA Directive can arise until a substitute consent issues and thus that the within application is within time, such an argument cannot succeed in the face of the procedural autonomy of member states acknowledged, inter alia, in Art.11 of the codified EIA Directive (Directive 2011/92/EU of the European Parliament and of the Council of 13th December 2011 on the assessment of the effects of certain public and private projects on the environment (O.J. L26 28.01.12, 1) and e.g., Case C-201/02 R. (Wells) v. Secretary of State for Transport, Local Government and the Regions, para 70, with Art. 11(2) expressly providing that “Member States shall determine at what stage the decisions, acts or omissions may be challenged”.
15. Leaving aside for one moment the insurmountable difficulty that confronts An Taisce time-wise, what are its concerns within the context of the first-named notice party’s successful application for substitute consent? First, it is concerned that in its determination An Bord Pleanála makes no reference to its obligations under European Union law or as to the presence of exceptional circumstances, with there likewise being no mention in the planning inspector’s report of exceptional circumstances. Second, An Taisce claims that Ireland has failed properly to transpose European Union law by failing to ensure that substitute consent is only available where exceptional circumstances are proved. Third, it contends that the substitute consent is retrospective and makes no or no proper assessment of the impacts of the proposed development, that it prescribes no or no proper remedial steps to be taken, with the remedial environmental impact statement (rEIS) failing properly to outline and describe the restoration to be carried out on-site, leaving over the issue of restoration.
16. The first and second points can conveniently be taken together. There is nothing in the judgment in Commission v. Ireland which suggests that it is not open to individual member states to identify, by way of legislation, particular circumstances in which it will be permissible to apply for development consent retrospectively. And in Part XA of the Act of 2000, one finds Ireland doing precisely that, seeking properly to address the particular mischief that the CJEU considered to present in Commission v. Ireland, being that prior to the Planning and Development (Amendment) Act 2010, there was in effect no restriction under Irish law as to the circumstances in which retention planning permission could be sought, thus offering a means to circumvent the requirements of the EIA Directive. Moreover exceptionality, when sought, is in any event readily to be found: the exceptional circumstance that presents in respect of the quarry at Lemgare is that it has been able to squeeze itself through the gateway offered by s.177C(2)(a) and D(1)(a). That is no easy achievement and not all quarries will find themselves so placed. Moreover, any notion that the circumvention which was the focus of the decision in Commission v. Ireland remains available through the gateway offered by s.177C(2)(a) and D(1)(a) of the Act of 2000 is entirely unfounded: once through the gateway afforded by s.177C(2)(a) and section 177D(1)(a) there is no presumption that a substitute consent will be granted; any application done via that route is subject to assessment and consent must be refused if the development is contrary to proper planning and sustainable development; moreover, An Bord Pleanála is required to have regard, inter alia, to the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was carried out.
17. As to any notion that because s.177C(2)(b)/s.177D(1)(b) allows, by way of alternative, for other exceptional circumstances it follows that what is referred to in s.177C(2)(a)/s.177D(1)(a) must be less than exceptional, that is not accepted by the court. Providing for one exceptional route and allowing for other exceptional cases does not rob either of their essential and respective exceptionality.
18. It follows from all of the foregoing, inter alia, that the court does not consider there to have been any failure of transposition as claimed.
19. As for the further specific points raised by An Taisce, there does not need to be express mention of European Union law by An Bord Pleanála for An Bord Pleanála to be compliant with same (which it is). There is no need to identify individual exceptional circumstances under s.177D(1)(a). As to the contention (if there be contention) that An Bord Pleanála should dis-apply national law to apply its interpretation (or, more exactly, An Taisce’s mistaken interpretation) of European Union law, the notion that national law which has not been found by the courts to be infirm should be dis-applied by administrative or quasi-judicial bodies exercising statutory functions has been rejected, inter alia, in An Taoiseach v. Commissioner for Environmental Information [2010] IEHC 241, albeit that the law in this area may or may not fall to be re-interpreted following the awaited ruling of the CJEU on the reference made by the Supreme Court in Minister for Justice, Equality and Law Reform & ors v. The Workplace Relations Commission & ors [2017] IESC 43.
20. As to the third of An Taisce’s three points, first of all there is nothing in Commission v. Ireland which suggests that there cannot be retrospective substitute consent. Paragraph 57 of that judgment expressly contemplates that there can be regularisation of operations or measures which are unlawful in the light of Community law and, as Sullivan LJ. observes in R (on the application of Ardagh Glass Ltd) v. Chester City Council [2010] EWCA Civ 172, para.15, in a series of comments which accurately reflect the nature of the discretion as to forms and methods allowed to individual member states, it would be an “affront to common sense” if there could not be instances in which retrospective planning permission (here, a retrospective substitute consent) was forever and in all instances impermissible. Indeed, as Sullivan LJ. goes on to note, at para. 16, while it is (and it is) for “member states…[to] take all appropriate measures to ensure compliance with the [EIA] Directive and to nullify the effects of any breach”, member states do not enjoy a free-for-all in this regard: “[I]t is a fundamental principle of community law that such measures must themselves be proportionate….[A] prohibition upon the grant of retrospective planning permission for EIA development, regardless of the circumstances surrounding, and the environmental consequences of, the breach of the Directive, would be wholly disproportionate.” Turning, at para.17 of his judgment, to the Commission v. Ireland case, Sullivan LJ. then makes the following comments which (as with the just-mentioned comments) the court would respectfully associate itself, viz:
“The ECJ would no doubt have had such considerations well in mind when it said, in paragraph 57 of its judgment in the Ireland case:
‘While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the condition that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.’
In paragraph 61 the ECJ said that Ireland had failed to comply with the requirements of the directive,
‘by giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development …’
Those passages seem to me to be an express recognition by the ECJ that, subject to certain conditions, there may be exceptional circumstances in which a retention permission may be granted for EIA development.”
21. If there were any doubt as to the proper reading of the import of Commission v. Ireland that doubt is surely obviated by last year’s decision of the Court of Justice in Joined Cases C-196/16 and C-197/16 Comune di Corridonia and Alessandrini. Those cases involved two preliminary references from the courts of Italy on the issue of whether an environmental impact assessment pursuant to the codified EIA Directive can be carried out after the project concerned has already been realised. In its judgment, the CJEU arrives at the following answer, at para.43:
“[I]n the event of failure to carry out an environmental impact assessment required under Directive 85/337, EU law, on the one hand, requires Member States to nullify the unlawful consequences of that failure and, on the other hand, does not preclude regularisation through the conducting of an impact assessment, after the plant concerned has been constructed and has entered into operation, on condition that:
– national rules allowing for that regularisation do not provide the parties concerned with an opportunity to circumvent the rules of EU law or to dispense with applying them, and
– an assessment carried out for regularisation purposes is not conducted solely in respect of the plant’s future environmental impact, but must also take into account its environmental impact from the time of its completion.”
22. This is precisely what Part XA of the Act of 2000 achieves.
23. Moving on, as regards the contention that, in effect, the entire assessment conducted by An Bord Pleanála is flawed, that is so general an assertion that it just cannot be a proper ground of attack in a judicial review proceeding. As regards the related contention that the remedial environmental impact statement (rEIS) failed properly to outline and describe the restoration to be carried out at the site of the quarry at Lemgare, An Taisce was invited to comment on the rEIS, failed to do so beyond making an ‘exceptional circumstances’ point (akin to that rejected by the court above) and, pursuant to (i) Lancefort v. An Bord Pleanála [1999] 2 IR 270, 315, cannot now raise any arguments regarding the contents of same, and/or (ii) M&F Quirke v. An Bord Pleanála [2009] IEHC 426, para.11.3 is estopped from so doing.
24. In its statement of grounds, An Taisce seeks: (a) an order of certiorari by way of application for judicial review quashing the decision of An Bord Pleanála, of 25th April, 2014, granting a substitute consent to the first-named notice party in respect of the quarry at Lemgare; (b) if necessary, a declaration that Part XA of the Act of 2000 is incompatible with Ireland’s obligations under European Union law, in particular the EIA Directive; (c) if necessary, a reference to the CJEU as to whether the substitute consent has been granted in accordance with European Union law; and (d) certain ancillary reliefs. It follows from all that the court has stated above that the court considers the within proceedings, which ostensibly challenge a decision of 25th April, 2014 but in truth seek to assail a decision of 28th May 2012, have been commenced hopelessly out of time and represent an impermissible collateral attack on the earlier decision. In an abundance of prudence, the court has in any event considered the substance of An Taisce’s complaints and respectfully finds no merit in them. The court does not consider that, to borrow from the terminology of Art. 267 TFEU, it is presented in the within proceedings with one or more questions of European Union law in respect of which a decision of the CJEU is necessary to enable this Court to give judgment. The court therefore declines to grant all the reliefs sought.
25. The court cannot but note in passing that there appears to be something of a disconnect between (i) applicable statute-law curtailing the time available for the commencement of judicial review proceedings in the planning and environmental law context and (ii) the process whereby judicial review proceedings can be commenced when, as here, (a) statute-law seeks to establish legal certainty by giving an eight-week period for the bringing of court proceedings challenging a decision, but (b) court proceedings regarding that decision are nonetheless commenced long outside that eight-week period, with the result that (c) there is a delay of several years before that certainty which the Oireachtas contemplated that the first-named notice party would have enjoyed sometime in 2012 only now arises or, at the least, draws closer.
Stack Shanahan v An Bord Pleanála (No. 2)
[2013] IEHC 348
Judgment of Ms. Justice lseult O’Malley delivered the 19th July, 2013.
Introduction
1. In a judgment delivered on the 12th November, 2012 this court refused the various reliefs sought by the applicants in a case concerning the decision of An Bard Pleanala to grant approval for the development by the County Council of a dual carriageway from Baile Bhuirne to Coolcour, bypassing Macroom.
2. The applicants, who represented themselves throughout the hearing, have now instructed solicitor and counsel for the purpose of seeking leave to appeal.
3. By virtue of s. 50(7) of the Planning and Development Act, 2000 as substituted by s.13 of the Planning and Development (Strategic Infrastructure) Act, the determination of the court on such an application is final save where the court grants leave to appeal. Leave is to be granted only where the court certifies
“that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
4. The applicants now seek certification of the following questions:
1. Whether the Board can be considered to have conducted an environment impact assessment within the meaning and requirements of the EIA Directive and/or the Act in circumstances where the impact of certain of the environmental factors prescribed for impact assessment by article 3 of the EIA directive were not assessed by the Board but where the Board restricted itself to considering whether the impacts on those factors identified by the Board’s inspector would justify refusal by the Board of the development in question.
2. Whether a development consent process that asks whether certain selected adverse environmental impacts justify refusal of a development already adjudged acceptable in light of non-adverse environmental impacts constitutes an environmental impact assessment that complies with the requirements of the EIA Directive and/or sections 171A and 172 of the Act for development projects where environmental impact assessment is a necessary pre-condition.
3. Whether the Board must record the environmental impact carried out by it in such a way so as to enable the courts and interested persons to review the legality of the assessment and/or decision taken following the assessment.
4. Whether section 5OB of the Planning and Development Act, at the date of issue of these proceedings and/or as amended, properly implements the State’s obligations under the Aarhus Convention and for under article 10a of the EIA Directive, and/or under article 11 of Directive No. 2011/92/EU.
5. Whether section 5OB of the Planning and Development Act, at the date of issue of these proceedings and/or as amended breaches the provisions of article 34.1and/or article 40.3.1of the Irish Constitution and for the principle of effective judicial protection/effective access to justice under EU law.
6. Whether section SOB of the Planning and Development Act, at the date of issue of these proceedings and/or as amended, breaches the principle of equivalence and/or effectiveness under EU law.
7. In the context of this case the application is concerned with two issues. The first is the adequacy of the compliance with the EIA Directive. The second relates to the impact of s.50B of the Act, which, both in its original form and as amended, placed certain limitations on the rights of litigants to recover their costs in proceedings under the Act.
Criteria for the grant of leave to appeal
6. In Glancre Teoranta v. Mayo County Council [2006] IEHC 250 MacMenamin J. considered the test to be applied on an application for leave to appeal. Having referred to a number of authorities he set out ten principles governing the approach of the court. The formulation of these principles has been adopted and applied both in other cases under the planning code and in immigration cases, where the statutory wording in relation to leave to appeal is the same. In so far as they are applicable to this case, the principles are:
• It is not enough that the point of law emerges in and from the case. The requirement that the point be one of exceptional importance is a clear and significant additional requirement.
• The jurisdiction to certify such a case must be exercised sparingly.
• The law relating to the proposed question must be in a state of uncertainty. It must be necessary in the public interest that the law be clarified so as to enable the courts to administer that law not only in the instant, but in future cases.
• The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.
• The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which, although they may overlap, to some extent require separate consideration by the court.
• The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.
• Normal statutory rules of construction apply which means inter alia that “exceptional” must be given its normal meaning.
• “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
• Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.
7. These principles were adopted and followed by Clarke J. (in Harding v. Cork County Council [2006] IEHC 450) who added a caveat that there might be some cases where the point did not arise from the decision because, due to inadvertence, it might not have been considered in the judgment.
Submissions on behalf of the applicants
8. Dealing with the first three proposed questions (“the EIA points”) Mr. Conleth Bradley SC submitted that the applicants had challenged the decision of the Board on the basis that the Board had failed to satisfy the requirement of Article 3 of the Directive in that it failed to assess the project’s direct and indirect effects in an appropriate manner. The applicants had, is submitted, argued that there was nowhere in the decision-making process a consideration of the interrelationship between the impacts on cultural heritage and the impacts on landscape, in particular the landscape that is the physical setting of Carrigaphooca Castle and the stone circle.
9. In support of this argument, for the purposes of this application, the applicants’ submissions rely on the analysis of the Board’s decision found in the affidavit of the notice party, where the criticism was made that the Board failed to “identify, describe and assess in an appropriate manner” the impacts of the project. It is also noted that the first named applicant had focussed on the failure of the Board “to give due consideration principally to the cultural heritage, landscape and aesthetics in the heritage rich environment of Carrigaphooca”.
10. It is submitted that in giving judgment in this case the Court made no explicit finding as to the legality of the Board’s process having regard to the EIA Directive but restricted itself to finding “no material flaw” in that process. It is therefore submitted that the Court either inadvertently failed to deal with the questions as to the validity of the Board’s process in relation to environmental impact assessment, or found that the Board properly acquitted itself in that regard. In either case, it is said, the decision of the Court involves a point of exceptional public importance relating to the sufficiency of the assessment carried out by the Board.
11. The argument here is that, having regard to the views of the European Court of Justice expressed in Case C-50/09 Commission v. Ireland (in which the Court found that Ireland had not, at that stage, adequately transposed the requirements of the EIA Directive), the Board itself must “identify, describe and assess in an appropriate manner” the “direct and indirect effects” of the project on human beings, flora, fauna, soil, water, air, climate, the landscape, material assets, cultural heritage and the interaction between all of these factors. It is not, therefore, sufficient to record the findings of the Inspector and then set out the view of the Board that the impacts identified by him did not justify refusal of the development.
12. Further or in the alternative it is submitted that if the Board could be described as having carried out an assessment it did not properly describe or record it in writing. It is argued that this is an inherent obligation under the EIA Directive, now recognised and enforced by the European Union (Environmental Impact Assessment) (Planning and Development Act 2000) Regulations 2012 (SI 419/2012).
13. Following Mr. Bradley, Mr. Michael O’Donnell BL submitted that in paragraph 49 of the judgment the Court had effectively applied an O’Keeffe-type test, which he said was not an appropriate approach to the question whether the Directive had been complied with. He submitted that there must be a review procedure which allows a review of the substance of the decision, not simply the procedural legality of the process. The absence of such a substantive review was described as a fundamental omission in the case. It was contended that the court can itself conduct an EIA.
14. Mr. O’Donnell accepted that no submission to this effect had been put before the court, but pointed out that the applicants did not have the benefit of legal advice.
15. In relation to the proposed questions 4, 5 and 6 (“the 5OB points”), Mr. Bradley submitted that s. SOB as it stood at the date of commencement of the proceedings, did not properly implement the State’s obligations under the Aarhus Convention, was in breach of Article 34.1 and Article 40.3.1 of the Constitution and was in breach of European Union law. It was submitted that the applicants had made a protected costs application, which somehow got mixed up with the application to amend the proceedings to include the compulsory purchase order.
16. Anticipating the argument of the respondents that the issue did not arise until costs came to be determined, Mr. Bradley cited the judgment of the Court of Justice in the case of R (on the application of Edwards and Pallikaropoulos) v. Environment Agency & Ors. (C-260/11, 11th April 2013) dealing with certain questions referred by the United Kingdom Supreme Court, as authority for the proposition that the question could be looked at either prospectively or at the end of the proceedings.
Discussion
The EIA points
17. Reviewing the judgment, it is apparent that there are aspects which could have been explained with greater clarity or with more extensive citation of authority. However, I think it best to avoid the temptation to improve or strengthen it at this stage and to leave it as it stands.
18. Counsel now retained on behalf of the applicants have, as one would expect, presented their arguments with skill. However it seems to me that, ultimately, the points they make either were not in issue in the case as it ran, and therefore do not arise from the judgment, or were decided on the basis of very well established authority.
19. The argument put forward by Mr. O’Donnell simply does not arise and for the purpose of this application it is not sufficient to say that the applicants did not have the benefit of legal advice. Leave to appeal cannot be given on a point that was not made at first instance.
20. The applicants have submitted that the court did not make “an explicit finding as to the legality of the Board’s process”. This is somewhat difficult to understand in circumstances where the applicants devoted a great deal of time and energy on the proposition that the Board’s process was fundamentally invalid, for very many reasons, and the court in its decision upheld the Board. The finding of “no material flaw” is a finding that there was no illegality.
21. The applicants’ case was built upon a very extensive factual critique of the entire process from the public consultation/information stage through to the decision of the Board. They cited an equally extensive volume of case-law. However, there was no legal issue on which the authorities conflicted or where the court found any doubt or uncertainty as to the applicable law. The legal findings are based on very well-established legal principles.
The 50B(2) points
22. Section 5OB(2) of the Planning and Development Act, 2000, as amended, provided at the date of the institution of these proceedings that in cases to which it applied (this case being one such) “each party (including any notice party) shall bear its own costs.” As an exception, an award of costs could be made in favour of a party “in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so”. There were also exceptions where costs might be awarded against a party whose claim or counterclaim was frivolous or vexatious, or who was in contempt of court, or because of the manner in which the litigation was conducted.
23. The applicants in this case were granted leave to seek a declaration that “the matters of this judicial Review are of “Public Importance’: are of “Special Circumstances” and are “in the interests of justice” to merit any relief that the Court deems suitable”. This was clearly a reference to the provisions of s. 5OB, with a view to the possibility of a costs application.
24. At the hearing, the applicants wished to file an amended statement of grounds, which amended their pleadings in relation to a number of aspects. As set out in paragraphs 7 and 8 of the judgment, most of the amendments were uncontroversial. However, objection was taken to the addition of two new reliefs. The court reserved its decision on those matters and did not grant leave, having regard to the fact that the applicants had not previously sought leave despite having been told by the President almost a year earlier that any proposed amendments should be brought forward by the 31st July, 2011.
25. On the day on which the judgment was given, it was explained to the applicants (with the assent of counsel for the other parties) that if they wished to appeal a refusal of leave, they were required to mention the matter in the Supreme Court. I am not aware any application having been made in that regard.
26. No decision was made in respect of the declaratory relief in respect of s.50B(2) for which the applicants did have leave because, by agreement between the parties, costs issues were left over until the end of the case.
27. It seems to me therefore that the application for leave to appeal in relation to this issue is misconceived. There is no point of law determined in the judgment which could give rise to the proposed questions.
Conclusion
28. Having regard to the foregoing, I refuse leave to appeal on the proposed questions.
Connolly v An Bord Pleanála
(No. 2) [2016] IEHC 624
JUDGMENT of Mr Justice Max Barrett delivered on 8th November, 2016.
I. Overview
1. On 14th June last, the court gave judgment in the above-titled proceedings. An Bord Pleanála, which was unsuccessful in those proceedings, considers that certain points of law of exceptional public importance arise from that judgment and that it is desirable in the public interest that an appeal be brought. An appeal from the judgment of a trial court usually proceeds without further regard to the trial judge, save perhaps as regards seeking that the trial judge put certain incidental or transitional arrangements in place pending such appeal. The difficulty that presents for An Bord Pleanála as regards bringing an appeal from the court’s decision of 14th June is that, by virtue of s.50A(7) of the Planning and Development Act 2000, as amended, the Oireachtas has decided, it would appear with the intention of bringing some finality to planning matters, that no appeal shall lie from a decision, such as that of 14th June, “save with leave of the [High] Court which leave shall only be granted where the [High] Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken…”. An Bord Pleanála has therefore returned to ask the court to grant the requisite certificate in respect of one or more of seven points of law of exceptional public importance that it contends to arise from but a single judgment.
II. Applicable Law and Legal Principles
2. In its judgment in Dunnes Stores v. An Bord Pleanála [2016] IEHC 263, the court has considered the law applicable to an application such as that now presenting and proceeds by reference to the law as identified there. The critical principles applicable were identified by McMenamin J. in Glancré Teoranta v. Mayo County Council [2006] IEHC 250 and have been accepted as correct, inter alia, by the High Court in cases as various as Harding v. Cork County Council [2006] IEHC 450, Sweetman v. An Bord Pleanála [2016] IEHC 374 and in the decision of this Court in Dunnes. Indeed, although the law is in a constant state of evolution, the Glancré principles represented a correct statement of relevant law in their time and continue to represent a correct statement of relevant law at this time. This Court would but emphasise that, to borrow from s.50A(7), what must be identified is “a point of law of exceptional public importance”. That a point of law may relate to a matter of some private significance does not suffice to convert it into “a point of law of exceptional public importance”, even where the party claiming such a point to arise is a public body. Moreover, a point of law of exceptional public importance is, by its nature, not just a point of law of public importance (itself a difficult enough hurdle to jump) but of a degree of public importance that is exceptional (a still higher hurdle to be vaulted). In this last regard, the court cannot but note that in the within case it is claimed that the court’s judgment of 14th June last raises up to seven points of law of exceptional public importance; in Aherne & ors v. An Bord Pleanála & ors [2016] IEHC 536, a very recent s.50 judgment that issued while the text of the within judgment was being finalised, some six points of law of exceptional public importance were claimed to arise (all of which were rejected by the court in that case). That two judgments would be contended to raise, between them, some thirteen points of law of exceptional public importance suggests, at the very least, that there is something of a yawning chasm growing between bar and bench as to the true nature of exceptionality.
III. Alleged Divergence in Authority
3. The court’s decision in its judgment of 14th June last rested to a significant extent on the decision of the Court of Justice of the European Union in Mellor [2009] ECR I-3799, the decision of Clarke J. in Christian v. Dublin City Council [2012] IEHC 163, and the decision of Finlay Geoghegan J. in Kelly v. An Bord Pleanála [2014] IEHC 400. An Bord Pleanála maintains that the court has interpreted s.172(1J) of the Act of 2000 to require more from An Bord Pleanála than one finds in four decisions by three judges of the High Court last year, viz. Ratheniska v. An Bord Pleanála [2015] IEHC 18, People Over Wind v. An Bord Pleanála [2015] IEHC 271, McEntee v. An Bord Pleanála (Unreported, High Court, Moriarty J., 10th July, 2015) and Aherne v. An Bord Pleanála [2015] IEHC 536. This is a contention that does not hold true when one engages in even a limited analysis of those other cases. So, for example:
– Ratheniska concerned a case in which An Bord Pleanála followed a broadly positive inspector’s analysis. In the present case, there was a rather contrary inspector’s report which was not unfailingly positive and was overtaken by further information that involved a complete re-design of the relevant development. There is therefore a striking divergence in the facts and no conflict between the decisions made in that case and this.
– in People Over Wind, s.172(1J) was considered. However, the court concluded in that case that there was no deficiency in the assessment; in effect it was the manner in which An Bord Pleanála’s file was kept that was the issue. Again, this bears no resemblance to the facts at issue in the within case where specific deficiencies in the assessment were contended and found to arise.
– in Aherne, the case appears to have progressed more on the basis of arguments by the applicant that An Bord Pleanála had failed to discharge its obligations under s.34(10) of the Act of 2000, as opposed to An Bord Pleanála’s functions under s.172(1J). This last provision is not the subject of any particular analysis by Noonan J. Certainly there is nothing in Noonan J.’s analysis that appears to depart from this Court’s analysis in its judgment of 14th June last.
– in McEntee, further information was received after the report of the inspector that, while given to the inspector, was not assessed by the inspector. This information did not relate to a re-design but was simply further information. The applicant sought to argue that the determination of An Bord Pleanála was contrary to s.172(1J). However, the court held that this argument had not been pleaded in the statement of grounds, and so it was never considered by the court.
4. Also mentioned by the parties is the decision of Barton J. earlier this year in Balz v. An Bord Pleanála [2016] IEHC 134. That judgment issued after the hearing of Ms Connolly’s application and before the court issued its judgment of 14th June last, but was considered by the court in its judgment at the invitation of the parties. Far from presenting some divergence in case-law, the court expressly concluded, at para. 29 of its judgment of 14th June, that it saw nothing in, inter alia, the decision in Balz, “that would cause it to depart from or vary the reasoning applied, or conclusions reached, in this judgment”. The court remains of that view.
5. In any event, by reference to the foregoing, An Bord Pleanála seeks the certification of the following two questions:
“[1] In the context of s.172(1J) of the Planning Acts and the carrying out of an environmental impact assessment, where the Board does not agree with the recommendation of its inspector and sets out the reasons for its disagreement, what are the requirements on the Board in its decision to set out in positive terms those aspects of the inspector’s report or those aspects of the documents before the Board that it accepts?
[2] Where the Board has in the reasons for its decision included a statement that it generally adopted the inspector’s assessment of environmental impacts, with the exception of the matters set out in the decision, and has concluded that the proposed development would not have unacceptable effects on the environment, what more (if any) is required of the Board in setting out its ‘evaluation of the direct and indirect effects of the proposed development’?”
6. It is not entirely clear to the court that these are truly points of law; the questions seem to involve the An Bord Pleanála seeking direction as to its practices and procedures. But insofar as these questions do raise points of law as to the applicable obligations, those have been answered clearly in the court’s judgment of 14th June last. Section 172(1J) is plain in its meaning and effect; no cause for certification arises. The court will, therefore, decline to certify Questions [1] and [2].
IV. Appropriate Assessment
7. By way of third proposed question, An Bord Pleanála proposes to appeal as to whether “[3] In cases where an appropriate assessment is carried out, to what extent can a failure or inadequacy of reasons given for a screening decision under section 177U(6) of the Planning Acts invalidate the ultimate decision of the Board?”
8. Section 177U(6) is clear in meaning and purport. It requires that An Bord Pleanála record and give notice of a positive screening for appropriate assessment. An appropriate assessment done without recording and notifying the screening determination is not done in accordance with law. Thus it does not seem to the court that there is any point of law arising: the statutory duty arising is clear, and there is an abundance of case-law on the consequences of breach of statutory duty. The court will therefore decline to certify Question [3].
9. An Bord Pleanála also proposes that the following questions should be certified:
“[4] If the conclusion of the Court rests of the standard of Board’s reasons, is it appropriate to conclude that the Board has not carried out an AA where that has not been proven?
[5] In order for the Board to have made complete, precise and definitive conclusions on AA, what degree of reference is the Board permitted or required to have to documents and matters before it?
[6] Is the Board entitled in setting out its conclusions on AA to refer to and incorporate the contents of another document (whether that be the Inspector’s Report or NIS or other document) by referring to same and indicating its agreement or adopting of same without further express citation from same?
[7] In assessing the Board’s reasons, what standard of knowledge ought to be presumed of the applicant for judicial review and to what extent can reference be made on behalf of the Board in the course of the judicial review proceedings to materials that were before the Board and which are publicly available? In particular to what extent can that material be referred to where (i) the material in question was generated by the Board itself in the course of the decision-making process and/or (ii) the material is expressly referenced on the face of the Board’s decision?”
10. As to [4], An Bord Pleanála appears to be querying whether, if an applicant fails to prove that An Bord Pleanála has lawfully completed an appropriate assessment, the court cannot conclude that an appropriate assessment has not lawfully been done. This is not a point of law arising from the court’s decision. For in its judgment (as in Mellor and Kelly), the court concluded that An Bord Pleanála’s decision was unlawful, not by reference to some such conclusion aforesaid but by reference to the fact that, in its decision, An Bord Pleanála had failed to provide proper information. The court will therefore decline to certify Question [4].
11. As to [5], it is clear from Kelly that An Bord Pleanála must provide complete, precise, definitive findings regarding the effects of a proposed development on a European site. It is trite to observe that reference may be had by An Bord Pleanála in this regard to such materials as have been placed before it, but an assessment of these materials is required and patently this must feature in the decision of An Bord Pleanála. There is nothing uncertain about the obligations presenting for An Bord Pleanála in this regard: they are clearly set out in European law and in the decisions of Sweetman and Kelly, which were applied by the court in its judgment of 14th June. Indeed, to the extent that there is any issue arising in this regard, and the court does not consider that there is, it would arise (if it arose, and it does not) from those earlier decisions, not from the court’s decision of 14th June. The court will therefore decline to certify Question [5].
12. As to [6], An Bord Pleanála effectively asks whether it can conduct an appropriate assessment and record same by reference to other documentation. Again, as indicated previously above, there is no uncertainty or ambiguity as regards the legal obligations arising: they are clearly set out in European law and in the decisions of Sweetman and Kelly, which were applied by the court in its judgment of 14th June. How the obligations are to be discharged in a particular case will depend on the facts of that case. The court will therefore decline to certify Question [6].
13. As to [7], it is well to recall that in this case the inspector did not purport to carry out an appropriate assessment, the inspector never saw the Natura Impact Statement, and An Bord Pleanála did not undertake or record its own assessment. The standard of knowledge of Ms Connolly is irrelevant in the context of those facts and the court’s decision must be viewed in the context of those facts. The court will therefore decline to certify Question [7].
V. Form of Present Application
14. Section 50 applications are typically heard by the judge who delivered the judgment that is claimed to raise one or more points of law of exceptional public importance. When this Court queried at the end of the hearing of the within application whether it is not curious that the judge who issues the original judgment should decide a subsequent s.50 application, all of the counsel present in court nodded vigorously. They were right to do so. In theory, the judge who issued the original judgment is being asked to determine in a detached and clinical manner whether one or more points of law of exceptional public importance arises from that judgment. In practice, if the s.50 application is unsuccessful the disappointed applicant will unavoidably be left with the sour sense that if only some judge other than the judge who delivered the original judgment had heard the s.50 application the applicant might have stood a better chance of success. In truth, trial judges do not feel attachment to judgments that they have issued. Once a judgment issues they become functus officio and if, say, a s.50 application is later brought in respect of that judgment, they will seek to arrive at a sensible decision in that application, as in others. But one judge is as good as another in deciding whether a point of law of exceptional public importance arises from a particular written decision; and counsel are eminently capable of explaining some point of fact or law on which a judge other than the trial judge may require assistance by virtue of coming fresh to matters in a s.50 application. So if the process of s.50 applications is not to be perceived by would-be appellants as inherently coloured against them, notwithstanding that judges may themselves know such perception to be unfounded, there seems, to this Court, to be good reason why the present practice as to the hearing of s.50 applications should change, with such applications typically being heard by a judge other than the judge who issued the original judgment. In that way, any sense on the part of a disappointed applicant that s/he would have fared better with a judge other than the judge who issued the original judgment can be (and it needs to be) avoided. This is especially important when one recalls that, thanks to s.50A(7) of the Act of 2000, a refusal of a s.50 application effectively closes out any prospect of appeal. The court’s comments in this Part V are, of course, entirely obiter.
Alen-Buckley v An Bord Pleanála (No. 1)
[2017] IEHC 311JUDGMENT of Ms. Justice Costello delivered on the 12th day of May, 2017
1. This is an application brought by the second named respondent (“the State defendants”) for: –
“An Order seeking the dismissal and/or striking out of the Applicant’s proceedings and/or the pleas and claims made herein sought against the Second Named Respondent pursuant to Order. 19 rules. 27 and/or 28 RSC and/or the inherent jurisdiction of his Honourable Court insofar as the same discloses no reasonable cause of action against the Second Named Respondent and/or is frivolous and/or vexatious and/or an abuse of process and/or is bound to fail”.
2. The applicants brought an application for leave to seek judicial review to quash a decision of An Bord Pleanála (“the Board”) of the 14th December, 2016, granting the second named notice party planning permission (Reg. REF. PL 93.244006) for a development comprising inter alia eight no. wind turbines with an overall height of up to 126.6 metres, one no. meteorological mast with wind measuring equipment attached, access roads, electrical substation compound, equipment and control building and ancillary site works at Knocknamona, and other town lands, Co. Waterford.
3. On 16th February, 2017, the applicants applied ex parte for leave to seek judicial review of the decision. The application was adjourned to 20th February, 2017, and on 20th February, 2017, Noonan J. granted the applicants leave to seek the judicial review as sought. In the usual way, the order recites that leave to apply by way of application for judicial review for the reliefs set out at para. 4 of the statement of grounds is granted on the grounds set forth in para. 5. The reliefs at para. 4 of the statement of grounds are as follows: –
“(i) an order of certiorari quashing the decision of An Bord Pleanála to grant planning permission for a proposed development and construction of eight no. wind turbines of up to a height of 126.6 metres together with ancillary equipment of Knocknalogh, Lower/Earanctok, Upper/Knocknamona, Woodhouse/Tinakilly/Monageela/Killatar, Dungarvan, Co. Waterford which application planning register reference no. 4/600109 An Bord Pleanála reference PL 93/244006 was made on 14 day of December 2016;
(ii) A declaration that the application made and in particular the public notice failed to comply with the requirements of Environmental Impact Assessment Directive 2011/92 EU and in respect of the project the subject matter of that Environmental Impact Assessment failed to properly notify the public as is required under the Directive about the true nature and extent of the Development.
(iii) A Declaration that by virtue of the nature and extent of the application and in particular the failure to identify as part of the application the grid connection works, the Respondent Planning Appeals Board was not capable of adequately conducting an Environmental Impact Assessment in respect of that development and in particular from imposing mitigation measures in respect of that part of the grid connection which was not included in the application.
(iv) A Declaration that in seeking to impose conditions in respect of a part of a development, namely the connection of a proposed windfarm by way of a grid connection to the network, the Respondent could not impose conditions on land which lay outside the control of the developer and/or impose conditions on lands did not form part of the application and/or in respect of part of the development which is not the subject matter of a planning application.
(v) A Declaration that a planning application for a wind turbine development which requires as part of the project a connection to the national grid must contain the totality of the application to the relevant Planning Authority and must insofar as development is described in the Environmental Impact Statement must (sic) be consistent with development for which planning permission is sought and it is ultra-vires to determine an application and purport to include conditions relating (sic) a development which did not form part of the application.
(vi) A Declaration that the application lodged pursuant to An Bord Pleanála ref. PL 92.244006 did not comply with the provisions of the Planning and Development Regulations 2001 and in particular Part 4 of the Planning and Development Regulations 2001 (as amended).
(vii) A stay on the implantation of planning permission PL 92.244006.
(viii) Interim and interlocutory relief.
(ix) Further and other relief.
(x) The costs of this application”.
4. On the 23rd February, 2017, the proceedings were served on the State defendants. The second named notice party applied to have the proceedings admitted into the commercial list of the High Court. On the 13th March, 2017, by order of the High Court (McGovern J.), the proceedings were entered into the commercial list and a timetable for a trial on the 11th July, 2017, established. On the 15th March, 2017, the State defendants’ solicitors wrote to the applicants’ solicitors pointing out that as no express relief had been sought against the State defendants if they would confirm that they would permit the State defendants to be released from the proceedings and discontinue the proceedings as against them, in that event they undertook that they would not seek costs to date as against the applicants.
5. On the 20th March, 2017, the applicants’ solicitors replied to the letter of the 15th March, 2017 in the following terms: –
“These proceedings relate in part to issues relating to the transposition of Council Directives 92/43/EU and 2011/92 EU.
We refer you in particular to the granted (sic) at paragraphs. 4 and (ii), (iii) and (iv) of the Statement required to ground the application for judicial review based on the grounds set out at paras. 5 xvii, xviii, xxv, xxvi, xxvii, xxviii and xxxiv in this regard.
The primary respondent is the Board of (An Bord Pleanála) as the entity who made the decision and to the extent that it acted ultra vires due to the manner it determined the application.
We are however concerned lest the Board may rely on the domestic law provisions to authorise and justify the manner in which it determined the application. In the event that it does so then the extent to which any such domestic law provision appropriately transposes the requirements of the Directives must be reviewed and accordingly clearly Ireland and the Attorney General are appropriate respondents.
It may be that these issues will become clearer when the respective Statements of Opposition and replying affidavits are filed and we have no objection if the State wishes to reserve it’s (sic) position pending the extent to which the Board seeks to raise transposition issues and the extent of the State’s involvement that will be required in those circumstances can be reviewed at that stage.”
6. In light of that letter, the State defendants brought the motion which came on for hearing before me on the 4th May, 2017.
The Case of the State Defendants
7. The State defendants argue that the applicants seek no relief against the State defendants and accordingly these judicial review proceedings should be dismissed as against the State defendant.
8. Secondly, they state that only three of the 37 grounds set out in the statement of grounds in anyway concern the State defendants. These are (xxv), (xxvi) and (xxvii). They read as follows: –
“(xxv) the Respondent erred in law and in fact in the assessment of the visual impact of the development which assessment was based not on Development Plan policies as is required under the Planning & Development Act but on the guidance set out in the Wind Energy Guidelines 2006. The Respondent failed to have regard to relevant considerations in it’s (sic) determination of the application. Insofar as the Respondent Planning Appeals Board acted without jurisdiction in determining an application where the development the subject matter of the planning application is materially different than (sic) the development the subject matter of the Environmental Impact Statement, Second Named Respondent has failed to transpose the requirements of Council Directive 2011/92/EU.
(xxvi) The Second Named Respondent has failed to transpose Council Directive 2011/92/EU in providing for a process which fails to adequately notify the public and to allow appropriate and/or effective notification of the public which is expressly provided for in the Environmental Impact Assessment by the publication of notices which failed to disclose to the public the true nature and extent of a development the subject matter of the Environmental Impact Assessment.
(xxvii) The determination of planning application 14/600109 An Bord Pleanála Reference PL93.2440006 if made in a manner consistent with the Planning & Development Act and Planning & Development Regulations 2001 (as amended) made thereunder, renders the statutory scheme inconsistent with and incompatible to Council Directive 2011/92/EU and the Second Named Respondent failed to appropriately transpose the requirements of the Directive.”
9. In relation to ground (xxv), the State defendants submit that they cannot understand what is meant, but that whatever it means, it does not give rise to a transposition point.
10. In relation to ground (xxvi) they submit that the court must first determine that the procedure followed by the Board was lawful and authorised by either the Act or the Regulations. If the actions of the Board were not lawful, then that is the end of the matter. If, on the other hand, the court holds that the actions of the Board were lawful, in the sense that they were authorised by the Act or the Regulations, it is only then that the court will have to consider whether the legislation or the Regulations fails properly to transpose the Directive into Irish law as alleged by the applicants. It is only at this point that there could be a case to answer. However, even if a court were to proceed to conclude that the Directive had not been properly transposed into Irish law, the fact remains that the applicants have neither sought nor obtained leave to seek any relief against the State defendants and in particular have not sought a declaration that any provision of the Directive has not been properly transposed into Irish law or that any provision of Irish law is inconsistent with the requirements of the Directive. It follows therefore that there is no issue for the court in fact to determine.
11. They make a similar argument with regard to ground (xxvii). They say that the court must first determine whether the actions of the Board were lawful or otherwise permitted by the Irish domestic legislation before any issue regarding transposition of the Directive can arise.
12. The State defendants submit that the applicants have failed to identify any provision of the Directive upon which they rely. They have failed to identify any provision of either the Planning and Development Act 2000 or the Regulations which they say was relied upon by the Board in this case, and which the applicants say did not properly transpose any provisions of the Directive which they have identified as having direct effect. In essence they say the applicants have failed to identify in their pleadings what Ireland is alleged to have done wrong. The pleadings do not therefore disclose a cause of action against the State defendants.
13. They say that the applicants have not complied with the requirements of the rules of court. Order 84, r. 18 requires that an application for leave to seek judicial review must be made in accordance with O. 84. Order 84, r. 20 (3) provides: –
“It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs. (ii) or (iii) of sub rule (2) (a) in assertion in general terms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground”.
14. The State defendants say that the applicants’ proceedings clearly do not satisfy this requirement. Grounds (xxv), (xxvi) and (xxvii) quoted above are vague and not precise. They do not identify in respect of each ground the facts or matters relied upon as supporting that ground as required by r 20 (3).
15. The State defendants also point to the provisions of O. 84, r. 22 (5) which imposes a mirror obligation upon a respondent. It states: –
“It shall not be sufficient for a respondent in his statement of opposition to deny generally the grounds alleged by the statement granting the application, but the respondent should state precisely each ground of opposition, giving particulars where appropriate, identify in respect of each such ground the facts or matters relied upon as supporting that ground, and deal specifically with each fact or matter relied upon in the statement grounding the application of which he does not admit the truth (accept damages, where claimed).”
16. The State defendants submit that the applicants’ pleadings do not permit them to comply with their obligations under r 22 (5).
17. The State defendants refer to the affidavit of Ms. Deirdre Courtney, the applicants’ solicitor, sworn in opposition to the motion on the 2nd May, 2017, and in particular to para. 25 where she avers:
“In the event that the First Named Respondent succeeds and says that it has acted in a manner consistent with Irish Domestic law the applicants may be significantly prejudiced by failing to have the appropriate entity before the Court, namely the Second Named Respondent, who is responsible for and the appropriate person answerable in respect of issues of transposition”.
18. The State defendants argue that it is not appropriate for an applicant for judicial review to seek in effect to hold a party in reserve. An applicant seeking judicial review must bring forward the whole of his case within the time limited by O. 84, r. 23 (1). The conduct of the applicants in this regard effectively circumvents this requirement and amounts to an abuse of the process of the court.
19. The State defendants move the motion on the basis of the provisions of O. 19, r. 28 of the Rules of the Superior Courts and the inherent jurisdiction of the court. Rule 28 provides as follows: –
“The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the court may order the action to be stayed or dismissed, or judgment to be entered accordingly as may be just.”
20. Insofar as the State defendants rely upon the provisions of O. 19, r. 28, they submit that the pleadings disclose no cause of action against the State defendants. No relief has been sought against them. It is not possible to discern any precise allegation of wrongdoing maintained against them in the proceedings. They rely upon the well known decision of Barry v. Buckley [1981] I.R. 306 as authority that if the pleadings do not disclose a cause of action, then the court may dismiss the proceedings.
21. In addition, they rely upon Barry v. Buckley as authority for the proposition that apart from O. 19, the court has an inherent jurisdiction to stay or strike out proceedings to ensure that an abuse of the process of the courts does not take place. If proceedings are frivolous or vexatious, they will be stayed and if it is clear that the plaintiff’s claim must fail they will also be stayed.
22. They state where no relief at all is sought against a party they are not necessary to the proceedings and in that sense the maintenance of the proceedings against the party constitutes an abuse of process or, in the language of the case law, the proceedings are frivolous or vexatious.
23. The State defendants relied upon the decision of Lowes v. Coillte Teo (Unreported High Court, Herbert J., 5th March 2003) as authority for the proposition that an application to dismiss a claim as an abuse of process may properly be brought in respect of an application for judicial review where leave to bring the proceedings has already been granted. At p. 28 of the judgment Herbert J. stated: –
“The fact that the leave to apply procedure provided by Order.84 Rule 20, “is designed so as to ensure that cases which are frivolous, vexatious or of no substance cannot begin”, [per Kelly J. in O’Leary v. Minister for Transport Energy and Communications (2000) 1 ILRM., 391 at 397], does not apply because such leave has been granted an arguable case must be presumed to have been established by the Applicant so that an application to set aside the leave given and to dismiss or stay the proceedings could not thereafter be properly entertained. [Toma Adams & Ors v. Minister for Justice, Equality and Law Reform, Ireland and Attorney General (2001) 2 ILRM., 452, Supreme Court]. Other than in exceptional circumstances applications for leave to seek judicial review are made ex parte. Occasions will undoubtedly arise, particularly where issues of fact are concerned, where the basis for an application to set aside the leave given and to strike out or to stay the Judicial Review proceedings as an abuse of the processes of the Court will become apparent only when the Respondent has an opportunity of being heard, and without any suggestion of a failure on the part of the Applicant for leave to seek Judicial Review to make full and frank disclosure to the Court in the course of the ex parte application of all material facts and law. The fact that an Applicant has been given leave to seek Judicial Review does not in my judgment impose a standard of proof greater than the ordinary civil standard on a respondent seeking to have Judicial Review proceedings dismissed or stayed as an abuse of the process.”
They say it is clear form this passage that the court has jurisdiction to grant the relief sought by the State defendants despite the fact that these are judicial review proceedings and that the applicants have been granted leave to seek judicial review in terms of their statement of grounds and that this is an appropriate case in which to exercise that jurisdiction to avoid an abuse of the process of the court by continuing proceedings against a party in respect of whom no relief is sought.
The Submissions of the Applicants
24. The applicants submitted that the fact that leave to seek judicial review had been granted was a complete answer to the motion of the State defendants. They emphasised that leave had been granted not merely to seek judicial review but to seek judicial review pursuant to the provisions of ss. 50 and 50B of the Planning and Development Act 2000. This required the applicant to satisfy the High Court that it had raised substantial grounds and that the applicants had a substantial interest in the proceedings. This was a high threshold which the applicants had satisfied in this case.
25. It was submitted that in those circumstances, it could not be said that the pleadings failed to disclose a cause of action or that they were frivolous or vexatious or bound to fail. It was submitted it would be improper even to “engage with the findings of the court already made”.
26. It was submitted that it was perfectly legitimate for the applicants to raise the issue of the transposition of the Directive into Irish law in the manner in which they did. They would be criticised if, at the hearing of the application for judicial review, they sought to challenge the proper transposition of the Directive into Irish law if the Sate defendants were not made parties to the proceedings.
27. They emphasised that the jurisdiction to strike out proceedings, whether pursuant to O.19 r. 28 or pursuant to the inherent jurisdiction of the court, should always be exercised very sparingly and with great caution and only when it was very clear that the proceedings were bound to fail. They referred to Mark De Blacam, Judicial Review, 2nd Ed. (Dublin, 2009) to the effect that relief under O. 19, r. 27 or 28 is less likely to be invoked in judicial review proceedings since the applicant must obtain leave before the making of his application. They noted that in O’Connell v. the Environmental Protection Agency [2001] 4 IR 494 the court refused to strike out proceedings against the Environmental Protection Agency citing the difference between judicial review proceedings and other proceedings which may be issued without obtaining the leave of the court.
28. The applicants submitted that the fundamental error which arose in this case was that An Bord Pleanála conducted an Environmental Impact Assessment that was far greater in scope than the planning permission actually applied for. The applicant had applied to develop the wind farm and notices in respect of the development related to that application for planning permission. When considering the matter, the Board required the second notice party to submit further information in relation to the proposed options for connecting the wind farm to the grid and conducted an EIA in relation to those proposals in addition to the actual development in respect of which planning permission was sought.
29. The applicants argue that this was impermissible and ultra vires. The notices to members of the public including the applicants related to the application for planning permission and not to the wider subject matter of the EIA. If this was impermissible under domestic law, then the decision of the Board was ultra vires. If the approach was permitted by domestic law, then the applicants submit that this deprives them of the notice to which they are entitled under the provisions of the Directive and therefore it must follow that the State has failed properly to transpose the Directive into national law.
30. The applicants argue that these and other arguments which they say flow from the difference between the application for planning permission and the scope of the EIA conducted by the Board are substantial arguments and are not frivolous and vexatious and are not bound to fail.
31. The applicants submit that they have sought relief against the State defendants in paragraphs 4 (i) and (ii) of the Statement of Grounds and therefore the submissions of the State defendants are incorrect insofar as they say no relief has been sought.
32. The applicants deny that they have in their pleadings failed to comply with requirements of O. 84, r. 20 (3) or that the State defendants would not be able to plead their grounds of opposition in compliance with the requirements of O. 84, r. 22 (5).
33. Finally, the applicants submit that the State defendants, had they wished to pursue the argument advanced by this motion, ought properly to have brought an application to set aside the leave that was granted by Noonan J. They submit that had such an application been brought, then the State defendants would have had to satisfy the court that it was appropriate to set aside the leave that has been granted and it was not permissible to adopt the alternative approach of the State defendants in the circumstances.
Discussion
34. The applicants’ fundamental argument that the order granting them leave to seek judicial review is determinative of this motion is not correct. If it is open to a party to seek to set aside a grant of leave to seek judicial review, as was submitted by the applicants, then it follows that it cannot be improper to “reengage with the findings of the court already made” as was submitted by the applicants. If it is permissible to do so – for the purposes of setting aside the grant of leave – it must likewise be permissible for the purpose of dismissing a claim that discloses no cause of action, is bound to fail, is frivolous or vexatious or an abuse of process.
35. Secondly, Lowes v. Coillte Teo is clearly authority for the proposition to the contrary. Further support for this authority is to be found in a book of authorities handed in to the court on behalf of the Sate defendants. Two cases were submitted to the court where Clarke J. and Irvine J. each in the High Court, dismissed judicial review proceedings brought pursuant to s. 50 of the Planning and Development Act, 2000 (as amended). In Ryanair Ltd v. An Bord Pleanála [2008] IEHC 1 Clarke J. held that the court had jurisdiction to entertain an application to dismiss or strike out the judicial review proceedings brought by the applicant seeking to quash a decision of the respondent to grant a planning permission for the development of a second terminal at Dublin Airport.
36. In Connolly v. An Bord Pleanála [2008] IEHC 224 the notice party brought an application to dismiss the judicial review proceedings. The applicant submitted that the procedure adopted by the notice party in this regard was irregular. He contended that the court did not enjoy the requisite jurisdiction to dismiss the judicial review proceedings. Irvine J. rejected this submission. At p. 15 of the judgment she stated: –
“Whilst applications which are brought seeking to invoke the court’s inherent jurisdiction are normally brought by a defendant in the context of plenary proceedings issued by a plaintiff, there is no reason to believe that this fact in any way precludes a court considering a motion such as the present one brought by the notice party to dismiss judicial review proceedings which he states are an abuse of the court’s jurisdiction …”
37. I am satisfied that each of these cases establishes that the court had jurisdiction to deal with the motion to dismiss judicial review proceedings even in circumstances where leave to seek judicial review has previously been granted. It follows logically that if a motion may properly be brought seeking to dismiss the proceedings, then the grant of leave in and of itself cannot be determinative of the issue. This was confirmed by Herbert J. in Lowes. In O’Connell v The Environmental Protection Agency, the court did not hold to the contrary, which is not surprising as the judge in that case was Herbert J. also.
38. It seems to me that the applicants’ submission is based on a misconception of effect of the grant of leave to seek judicial review. While of course it is necessary for the applicant to satisfy the court that he can advance substantial grounds and the court may only grant leave to seek judicial review where the court is satisfied that the applicant has made out such substantial grounds and that the applicant has a substantial interest in the proceedings, this does not amount to a finding of the court. On the contrary, the court is precluded from making any finding on an application for leave.
39. Insofar as the applicants were obliged to satisfy the court that they had a substantial interest in the application in order to obtain leave to seek judicial review, this does not assist the applicants in responding to this motion. The issue of a substantial interest does not go to the merits of the case, but to the standing of the applicant. It in no way addresses the question as to whether or not the pleadings fail to disclose a cause of action or are frivolous or vexatious or are bound to fail.
40. Even if it were the case that the court was somehow obliged to treat the order granting leave to seek judicial review as deciding that the proceedings were neither frivolous nor vexatious nor bound to fail, the order in this particular case does not assist the applicants. By reason of their own pleadings, Noonan J. did not in fact give the applicants leave to seek any relief against the State defendants. Therefore the argument that the order of the 20th February, 2017, precludes an argument that the pleadings disclose no cause of action or are frivolous or vexatious or are bound to fail is nihil ad rem.
41. It is noteworthy that the applicants advanced no explanation as to why they did not seek any relief expressly against the state defendants. It was open to them, had they so wished, to have sought declaratory relief to the effect that the Directive had not been properly transposed into Irish law, if that was the case which they wished to advance. Of course, such a case would have to be properly pleaded in accordance with the requirements of O. 84, r. 20 (3). In addition, it would have to be pleaded when the leave application was moved and to have been within the time limited for bringing judicial review proceedings. No explanation was provided to the court as to why the applicants did not seek to identify any provisions of either the Directive or Irish statute law or regulations upon which they wish to advance their case that Irish law had failed properly to transpose the Directive.
42. It appears that the applicants wished to reserve their position to see what position was adopted by the Board. Once the Board had clarified its position then the applicants would respond. This was made clear in the letter of the 20th March, 2017, which I have quoted above. They stated that “… the extent to which any such domestic law provision appropriately transposes the requirements of the Directives must be reviewed …” once the Board has made clear which if any provision of domestic law it may rely upon. It expressly stated that the issues will become clearer when these statements of opposition and replying affidavits are filed.
43. The implications of the letter are inescapable. The applicants wish to finalise their case in relation to the alleged or possible failure properly to transpose the Directive into national law when they have received opposition papers from the Board. This is clearly impermissible and contrary to the rules of court. The applicants are required to advance the case they wish to make in full in the statement of grounds. They must do so within time. Leave to amend their statement of grounds must be specifically sought and the permission granted pursuant to O. 84, r. 23 (2). The rules cannot be implicitly circumvented.
44. In my opinion, the proceedings in fact seek no relief whatsoever against the State defendants, notwithstanding the attempt of the applicants to argue to the contrary. Therefore, the continued maintenance of these proceedings against these respondents is vexatious and amounts to an abuse of process. On the pleadings as they stand, even if the applicants were to succeed entirely in the case they have advanced to date, no relief could be granted against the State defendants. It follows inescapably in my opinion that the proceedings fail to disclose a cause of action on their face within the meaning of O. 19, r. 28.
45. While it is not necessary for the purpose of my decision, I wish to record that I agree with the submissions of the State defendants based upon O. 84, r. 20 (3) and 22 (5), though this does not form part of my decision.
46. While I am of course aware that the jurisdiction to dismiss a case on the basis of O. 19, r. 28 or the inherent jurisdiction of the court should only be exercised sparingly and in the clearest of cases, this is a case where it is appropriate to exercise the jurisdiction. The continuance of these proceedings against the State defendants is an abuse of process for the reasons I have identified. Accordingly, I dismiss the proceedings against the State defendants on the basis of O. 19, r. 28 and separately on the basis of the inherent jurisdiction of the court.
Fitzpatrick v An Bord Pleanála (No. 1)
[2017] IEHC 585
JUDGMENT of Mr. Justice McDermott delivered on the 1st day of November, 2017
1. The applicant seeks a certificate from the court for leave to appeal the judgment delivered on 12th October, 2017 in the above titled proceedings pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) which provides:
“The determination of the court … of an application for judicial review … shall be final and no appeal shall lie from the decision of the court to the Supreme Court… save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
The reference to the Supreme Court is now to be construed as a reference to the Court of Appeal pursuant to ss. 74 and 75 of the Court of Appeal Act 2014 and section 7A(2) of the Courts Act 1961 as inserted by section 8 of the 2014 Act.
2. The principles applicable to the determination of whether a certificate should be granted under the section were considered by MacMenamin J. in GlancrÉ Teoranta v. An Bord Pleanála [2006] IEHC 250 and summarised as follows:
“1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.
2. The jurisdiction to certify such a case must be exercised sparingly.
3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.
4. …
5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.
6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).
7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.
8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.
9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”
These principles have been endorsed and applied in a number of decisions including Arklow Holidays Limited v. An Bord Pleanála [2008] IEHC 2, Ashbourne Holdings Limited v. An Bord Pleanála [2002] IRLM 321, Kenny v. An Bord Pleanála (No. 2) [2001] 1 IR 704, Ógalas Limited (t/a Homestore and More) v. An Bord Pleanála [2015] IEHC 205, Callaghan v. An Bord Pleanála (No. 3) [2015] IEHC 493 and Dunnes Stores v. An Bord Pleanála [2015] IEHC 387.
3. The proposed points advanced by the applicant for certification are: –
“(i) To what extent does interconnectivity or interdependence between various developments need to be considered in determining whether or not a development is a stand alone development? In circumstances where a development proposed comprises the construction of a 20 acre grid connection and is expressed to be constructed to power a development of 240 MW, can such development be consented to without considering the effects of the power demand of such development? Similarly, where a development is part of an overall masterplan but can be constructed independently, is this potential independence determinative of its status as a stand alone development?
(ii) When presented with an application for development consent for a “stand alone project” that forms part of a larger envisioned “masterplan” development, is it lawful under the Environmental Impact Assessment (EIA) Directive (2011/92/EU as amended by Directive 2014/52/EU) to assess the “masterplan” for the purposes of Article 5(1) (d) and Annex IV (2), relating to the alternatives assessment (including assessment of alternative locations), while simultaneously only assessing the “stand alone project” for the impact assessment required under Article 5(1)(d) and Annex IV (5).
(iii) What is the legal extent of “as far as practicable” in the context of the scope of an EIA of a development that is the first phase of an overall masterplan? In particular, where the broad parameters of the overall masterplan are known (and are fundamental to the sites location for the development proposal) to what extent can the lack of precise detail prevent the conduct of an assessment?
(iv) In the event of the Board being unable to assess the entire masterplan development what is the Board’s obligation to assess the development as a stand alone development, and in particular to assess the impacts and sustainability of the development in terms of site location and consideration of alternatives?
(v) What is the obligation to identify the main effects of the development and the main measures to reduce or off set same under National and EU law? What is the Board’s obligation to record such identification, and is it met by the adoption of an inspector’s report that itself highlights and identifies deficiencies in the information provided and questions the mitigation proposed (or indeed, concludes negatively in respect of same)?”
4. The applicants were granted leave to apply for judicial review in respect of the Board’s decision to grant permission for a project involving the construction of one data hall and ancillary services together with an associated grid connection at Athenry, Co. Galway. A declaration was also sought that the decisions of An Bord Pleanála were in breach of Directive 2011/92/EU of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment and the related jurisprudence. Leave was granted on thirteen grounds which are addressed in the judgment. The applicants submit that the questions set out above constitute points of law that arise from the judgment. The draft points proposed at (i) to (v) above are heavily focused upon the circumstances of the particular overall project contemplated by Apple and a suggested obligation on the Board to carry out an EIA in respect of the company’s masterplan to construct eight data halls and ancillary services together with the associated grid connection which will ultimately be the conduit for power to the entire complex if it were fully constructed and operational. It is clear that it is not envisaged that the plant would operate at full capacity in the near future. It is anticipated that full capacity may be reached in 2030 to 2035.
5. The development or project which was the subject of the initial consent or permission application to Galway County Council which was ultimately granted by An Bord Pleanála constituted the first phase of the more extended project. Permission was also granted by An Bord Pleanála in respect of the infrastructural grid connection development through which electricity will be supplied to the data hall in respect of which permission has been granted. The maximum consumption of electricity in respect of the phase one data hall is 30MW of electricity which will not be required until approximately 2023. The applicants submit that because of the enormous potential environmental effect of the production and consumption of this amount of electricity on the climate and on the national grid, the entire masterplan should have been the subject of an Environment Impact Assessment (EIA).
6. This proposition underpins the grounds upon which leave was granted and the judicial review hearing was conducted. In this regard, the court is satisfied, and it is accepted by the applicants, that there is a considerable overlap between the questions set out at (i) to (iv). The court considers that they consist of a critique of the court’s determination of the issues set out in its judgment. The court sought to distil from the questions posed at (i) to (iv) a point of law of exceptional public importance upon which a certificate under s. 50A(7) might be granted but is not satisfied that one exists.
7. Counsel for the applicants accepted without abandoning any of the potential questions set out in paras. (i) to (iv) that there was some overlap and interconnection between them and submitted that the proposed issue was best summarised in point (ii). It posed the question:-
“When presented with an application for development consent for a “standalone project” that forms part of a larger envisioned “masterplan” development, is it lawful under the Environment Impact Assessment (EIA) Directive … to assess the “masterplan” for the purposes of Article 5(1)(d) and Annex IV(2) relating to the alternatives assessment (including assessment of alternative locations), while simultaneously only assessing the “standalone project” for the impact assessments required under Article 5(1)(b) and Annex IV(5).”
This issue is presented in various different forms as it was during the hearing of the application. The question whether the interconnectivity or interdependence between various developments needs to be considered when determining whether or not a development is a standalone development is raised in point (i). A question is posed whether a grid connection with a capacity of 240MW could be the subject of a consent without considering the effects of the power demand of that development. In point (iii) the question is posed as to the “legal extent” of “as far as practicable” in the context of the scope of a EIA of development that is the first phase of an overall masterplan. It was submitted that the phrases “as far as practicable” or “as far as practically possible” are unclear. The applicants question the extent to which a lack of precise detail ought to prevent the conduct of an EIA where the broad parameters of the overall masterplan are known. In point (iv) a question is posed as to the Board’s obligation to assess the entire development and all of its impacts and sustainability including site location where it is unable to assess the entire masterplan development. The main point advanced by the applicants at this stage is that as a matter of exceptional public importance the court ought to certify as a point of law whether the 240MW development could be subject to a consent or permission together with phase one permission without considering the effects of the power demand of the entire development at this stage and whether it is essential as a matter of European law to conduct an EIA in respect of the entire masterplan before considering the grant of permission.
8. It is clear from the submissions made in the course of this hearing that the test which the applicants and respondents agree should be applied in a situation of this kind is that set out by Advocate General Gulmann in Case C-396/92 Bund Naturschutz in Bayern v. Freistaat Bayern. The relevant extracts from the opinion are set out at pp. 37 to 40 of the judgment. Of particular importance was para. 71 which states:-
“The important question in the present connection is not, however, which projects are to be subject to an Environmental Impact Assessment. It is whether, in connection with the Environmental Impact Assessment of the specific project, there is an obligation to take account of the fact that the project forms part of a larger project, which is to be carried out subsequently, and in the affirmative, the extent to which account is to be taken of that fact. The subject matter and content of the Environmental Impact Assessment must be established in the light of the purpose of the Directive, which is, at the earliest possible stage in all the technical planning and decision making processes, to obtain an overview of the effects of the projects on the environment and to have projects designed in such a way that they have the least possible effect on the environment. That purpose entails that as far as practically possible account should also be taken in the Environmental Impact Assessment of any current plans to extend the specific project in hand.”
9. The applicants have not identified any uncertainty in the principle adumbrated by the Advocate General or in its interpretation subsequently in Friends of the Curragh Environment v. An Bord Pleanála [2006] IEHC 243 or Bowen-West v. Secretary of State [2012] Env LR 22 or any of the other authorities cited in the judgment.
10. It is useful to reprise the third question referred for the opinion of the court in Bund Naturschutz in Bayern to which the Advocate General’s opinion is addressed. The question posed was whether the word “project” in the Directive was to be understood as meaning in its application, in that case to motorways and express roads that the environmental impact:-
“(a) is to be assessed solely for the section of a road link for which development consent has been sought, or
(b) in addition to the area covered by that section, for the road link as a whole?”
The Advocate General confirmed that the Directive should not be interpreted to mean that an Environment Impact Assessment is mandatory for projects other than the specific projects submitted by developers to the competent authorities to obtain authorisation to carry out construction or other works “even if the actual application relates to only one part of a longer road link which as normally happens in practice, is to be constructed in stages”. The fundamental principle is that an EIA must be carried out for projects in respect of which the public or private developer is seeking development consent. Otherwise there would be difficulties in laying down what comprises “an entire project” when that concept is not the same as “a specific project in respect of which an application has been submitted”. It was noted that there could be difficulties in carrying out an EIA pursuant to the Directive for projects which had not yet been worked out in detail. It was self-evident that the Directive could not indirectly have the effect of forcing a Member State to depart from the normal practice according to which long road links were executed by constructing sections over staggered periods. It was also accepted that the purpose of the Directive should not be circumvented by presenting them in a form which rendered an Environment Impact Assessment meaningless. They should not be circumvented by a definition that is overly strict or otherwise inappropriate “in the light of the purpose of the Directive”. All parties were satisfied that this case was not one in which Apple sought to avoid the carrying out of an EIA by project splitting. Although the Board did not carry out an EIA which subjected the likely effects of the possible future construction and operation of seven additional data centres nevertheless it did not exclude consideration of their potential effects and the power likely to be required for same “as far as practically possible”.
11. This Court was satisfied that the extent to which the EIA of a specific project was required to take account of the fact that the project forms part of a larger project was to be established in the light of the purpose of the Directive which was “at the earliest possible stage in all the technical planning and decision making processes, to obtain an overview of the effects of the projects in the environment and to have projects designed in such a way that they the least possible effect on the environment”. An important sentence from the Advocate General’s opinion is contained at para. 71 quoted already:-
“That purpose entails that as far as practically possible account should also be taken in the Environment Impact Assessment of any current plans to extend the specific project in hand.”
12. This Court having considered the submissions of all parties in respect of the application of that legal principle to the facts of the case reached the following conclusion:-
71. The court is satisfied that the Inspector and the Board in its decisions took into account the fact that the project which forms the basis of the application for the permissions granted in this case forms part of a larger project which is to be carried out subsequently. The court has also considered whether at the earliest possible stage in all the technical planning and decision making processes to date the purpose of the EIA in obtaining an overview of the effects of the project on the environment and to have projects designed in such a way that they have the least possible effect on the environment has been achieved. It is achieved if “as far as practically possible” account is taken in the EIA of any current plans to extend the specific project in hand. The court is satisfied that it is clear from the information sought and gathered by the Inspector and by the Board, and the considerations set out in the evidence adduced before the court, that the obligations cast upon the Board have been fully discharged. Future contingencies and occurrences in relation to future aspects of the project have been extensively explored and considered in the course of this process. It is abundantly clear that the possible future expansion requirements of the developers were considered. The Board concurred with and adopted the Inspector’s assessment which, inter alia, included an extensive assessment of later potential phases of the project relevant to the assessment of the site location and in assessing the potential material impact in terms of climate change of a future build out of the masterplan.
72. The court is not satisfied that there was any obligation to carry out an EIA of the entire masterplan which was not the subject of the planning permission application. Of primary concern to the competent authority is the development in respect of which the EIA is required.”
13. The court is not satisfied that there is any uncertainty about the legal principle applicable in a case such as this and which it applied. The principles of the Directive and the basis upon which they should be applied have been clearly set out in the Advocate General’s opinion as also applied in numerous CJEU, UK and Irish authorities considered in the judgment. The court is satisfied that the points of law (i) to (iv) posed by the applicants and said to arise out of this judgment are concerned with the application of these clear legal principles to the facts of this particular case.
14. The court was satisfied that the Board considered the relevance of the masterplan development to the issues which arose in the course of its consideration. In particular, it considered its relevance to the determination as to whether the selection of the development site outside Athenry was justified. It is clear that any subsequent permissions in relation to any further phases of the development will require a full EIA on the full extent and effects of the extended permission sought and any cumulative effects which may arise which will be considered at that stage. The court was satisfied that the Inspector and the Board understood that future permission would be required for an expanded development beyond phase one. This was one of the circumstances taken into account in the decision to grant permission. The court was also satisfied that the Board had considered the overall potential for a change in circumstances including potential national policy developments, the availability of green sources of power, the effect of electricity consumption on climate change and on the national grid infrastructure but that these were best considered at the time of any additional phase of development which would require permission. The court was satisfied that that was the type of “practical and reasonable consideration” appropriate to the determination of consent or permission in respect of the phase one development.
15. There is a heavy emphasis in the submissions made in the course of this application on the facts of the particular case and the merits of the original application for judicial review. The court is not satisfied that any of these points are “points of law of exceptional public importance”. Each of them concerns how the relevant legal principles should be applied to the facts of this case. Thus the court is not satisfied that the proposed points “transcend … the individual facts of [this] case”. Furthermore, the court is not satisfied that these points satisfy the requirement that their resolution is “desirable in the public interest”.
16. In Arklow Holidays Ltd. v. An Bord Pleanála [2007] 4 IR 112 Clarke J. considered the question whether it was in the public interest to grant a certificate to appeal. In reaching the conclusion that it was not appropriate in that case he stated:
“24. … The public interest, in an issue such as this, needs to take into account the nature of the development proposed and the potential consequences of a significant further delay in the matter being finally disposed of before the courts. While it is undoubtedly the case that issues and questions concerning the public nature of the project involved are not necessarily decisive (it would be wrong to say that the public importance of the project concerned must necessarily outweigh all other considerations in the case), such factors are, nonetheless, in my view, matters which have to be taken into account by the court in assessing whether it is in the public interest to grant the certificate. Having regard, on the one hand, to the importance of the issue raised by counsel on behalf of the applicant and, on the other hand, to the importance of the project and the consequences of the likely delay that would be incurred, I have come to the view that it would not be in the public interest to grant a certificate notwithstanding my finding that the point of law raised by counsel on behalf of the applicant is a point of law of exceptional public importance.”
In a further reference to this issue in Arklow Holidays Ltd. v. An Bord Pleanála (No. 2) [2007] 4 I.R. 124 Clarke J. added that:-
“An early resolution of legal questions concerning all projects is an important aspect of the statutory regime and, in my view, such a policy applies with particular force in respect of major public infrastructural projects.”
This approach to public projects was also said to be applicable to private projects in Dunnes Stores v. An Bord Pleanála [2016] IEHC 263 (per Barrett J. at para. 13). The particular interest of the public in this case relates primarily to the issues raised concerning the effect of future power consumption nationally and on the climate. There are other public issues concerning employment and industrial development in the West of Ireland. A further significant public issue might have arisen if there were some legal uncertainty as to the principle that applies to a consideration of larger projects in the future and the appropriate level of EIA that should be carried out in respect of such projects. As indicated I do not consider that any uncertainty applies in relation to that legal principle or its application. Furthermore, insofar as an appeal might delay this project further, the court would be slow to presume that there would be any unreasonable delay in the processing of any appeal properly taken to the Court of Appeal or indeed the Supreme Court or such as would give rise to the same level of concern as that expressed by Clarke J. in respect of the proposed appeal in the Arklow Holidays Ltd. Case. That case concerned the completion of important public works related to public health and safety. The project in this case is a private project with a public dimension and I do not find the argument concerning delay to be as compelling as in the case of that kind of public project.
17. The court is not satisfied in relation to points (i) to (iv) that the decision of the court involves a point of law of exceptional public importance because the legal principle applicable to the facts of this case is clear and well established and also because the court does not consider in the circumstances of this case that it is in the public interest that an appeal be taken having balanced the importance of the issues raised on behalf of the applicant, the importance of the project and the consequences of any likely delay.
18. The applicants’ last point (v) raises an issue concerning the obligation by the Board to identify the main effects of the development and the main measures to reduce or offset these effects under national and European Union law. The question is posed whether the Board’s obligation to record the identification of the main effects of the development and measures to reduce same is met by the adoption of the Inspector’s report which is said to highlight and identify deficiencies in the information provided and question the mitigation measures proposed. This Court was satisfied that the Board’s decisions in the two cases under review when read together with the Inspector’s reports constituted an adequate record of the EIA carried out by the Board in both cases and was in compliance with its statutory obligation. The court is satisfied that there is no legal uncertainty on this issue. The court is satisfied that it is well established that if the Board accepted the Inspector’s report and did not deviate from it or reject any of its conclusions the Board is taken as in effect adopting the Inspector’s report. (Maxol v. An Bord Pleanála and Ors [2011] IEHC 537 per Clarke J.; Fairyhouse Club Ltd v. An Bord Pleanála (unreported High Court 18th July, 2001 per Finnegan J.); Ogolas v. An Bord Pleanála and Ors [2015] IEHC 205 per Baker J. ; Edward Buckley v. An Bord Pleanála [2015] IEHC 572 per Cregan J. at pp. 39 to 44 and Ratheniska Timahoe and Spink (RTS) Substation Action Group v. An Bord Pleanála and Eirgrid plc. [2015] IEHC 18 per Haughton J. at para. 85).
19. The applicants submit that there is no record of any determination in respect of the sustainability of the first phase of the development and whether it was acceptable or sustainable to permit a single data hall and the substation on its own absent the balance of the masterplan. It is submitted that site location is assessed and justified solely on the basis of the entire masterplan. The court is satisfied that the law in relation to the recording of the Board’s decision is clear from the authorities cited above and in the judgment. Each of the issues which are set out in the applicants’ submissions and points have been addressed at length in the Inspector’s report. The matter is dealt with at paras. 27 to 42 of the judgment. The court concluded in relation to site selection:-
42. … The court is satisfied that the Board adopted the Inspector’s report and his findings in relation to the issue of site location which were in favour of the development. It was clearly satisfied to adopt his opinion that the eight halls were necessary at this time. It is clear that the Inspector on the basis of the information presented concluded that the case made concerning the need in terms of a projected increase in data storage demand and the likelihood of significant change in technology use was “robust”. He thought that the alterative scenario of the development of new technology rendering conventional data centres obsolete “unlikely”. He concluded that Apples case was convincing regarding the likely increase and demand for data storage and the need for development of additional storage capacity in the future. The court is satisfied that while the issue was regarded as fundamental both by the Inspector and for the Board in its consideration, the Board accepted the case made by Apple based on the Inspector’s conclusions and recommendations which it was entitled to do. Consequently, the court is not satisfied that the Board did not give any consideration to this issue or did not record its determination in that regard. That element of ground 2 is rejected. Furthermore, the suggestion that the Board’s conclusion in relation to that issue is unreasonable and irrational is not sustained having regard to the contents of the Inspector’s report and the decision of the Board.”
The court was also satisfied that the Inspector considered and assessed the potential environmental impact of later phases of the development insofar as that was practicable or reasonably possible but ultimately concluded that such an assessment was best made at a later stage when a future planning permission accompanied by an appropriate Environment Impact Assessment in respect of same was made in respect of later phases of the development. The court has set out in some detail the review carried out by the Inspector in his report which was ultimately adopted by the Board in the judgment which quotes extensively from the relevant sections of the report.
20. The court is not satisfied that the applicants have established that point (v) constitutes a point of law of exceptional public importance or one in respect of which there is a degree of legal uncertainty. Insofar as any issue of law is raised the court is satisfied in relation to the recording of the Board’s decision that the law is well established and was applied in the judgment. The applicants have not succeeded in establishing that it is in the public interest that this point of law be revisited.
21. The court is also satisfied that many of the arguments addressed in the applicants’ submissions on this application seek to reargue aspects of the case which were the subject of argument before the Inspector and later before this Court in the course of the judicial review. It seems to me that much of this argument is based on the fact that the applicants disagree with the Inspector’s conclusions and disagree with the court’s application of the legal principles which govern the issues in this case as they are applied to the facts of this case. In essence none of the five points advanced transcend the facts of this particular case. The court is not satisfied that the applicants meet the criteria set out in the authorities for the certification of a point of law of exceptional public importance under s. 50A(7) in respect of any of the five points advanced.
22. For all of the above reasons the application is refused.
Clonres Clg v An Bord Pleanála and Minister for Culture, Heritage and The Gaeltacht
Remit to ABP
(Respondents) and Crekav Trading GP Limited and Dublin City Council (Notice Parties)
Peter Sweetman v An Bord Pleanála, Ireland and The Attorney General (Respondents) and Dublin City Council and Crekav Trading GP Limited (Notice Parties)
John Conway and Louth Environmental Group v An Bord Pleanála, Ireland and The Attorney General (Respondents) and Crekav Trading GP Limited and The Legal Aid Board (Notice Parties)
2018 426 JR; 2018 422 JR; 2018 423 JR
High Court
31 July 2018
unreported
[2018] IEHC 473
Mr. Justice David Barniville
July 31, 2018
In the Matter of the Planning and Development Act, 2000 and The Residential Tenancies Act, 2016
In the Matter of the Planning and Development Act, 2000 (As Amended)
JUDGMENT
Introduction
1. The above three sets of judicial review proceedings have been dealt with by me in the Strategic Infrastructure Development (“SID”) list as the proceedings concern the decision of An Bord Pleanála, (the “Board”) which is a respondent to each of the proceedings, made on 3rd April, 2018 to grant permission for the development of 536 residential units at lands which previously formed part of St. Anne’s Park and subsequently part of St. Paul’s College in Raheny, Dublin 5. On 14th June, 2018 I granted leave to each of the applicants to bring proceedings by way of judicial review seeking various reliefs in connection with that decision. The return date for the motions in each of those proceedings was 28th June, 2018.
2. On that return date, I was informed by counsel on behalf of the Board that the Board was accepting that there was an error on the face of the record in terms of the recording of the test applied by the Board in carrying out an Appropriate Assessment (“AA”) for the purposes of the Habitats Directive in the Board’s formal decision granting permission in respect of the development. It was indicated that the Board was prepared to consent to an order of certiorari in respect of the decision. The proceedings were adjourned to enable the parties to consider how best to proceed in light of the position adopted by the Board.
3. Correspondence was then exchanged between the parties’ respective solicitors. The Board’s solicitors circulated a draft form of order which it was proposing should be made in light of the concession made by the Board. Among the orders which the Board was proposing should be made was an order remitting the application for permission to the Board on a particular basis. The applicants did not agree with the terms of the proposed order and, in particular, did not agree that the application should be remitted to the Board on the basis proposed or at all.
4. The terms of the order to be made and the question as to whether the application should be remitted to the Board and, if so, the basis on which that should be done, were addressed by all of the parties in oral submissions before me on the 26th July, 2018. I reserved my judgment in respect of those issues to today.
5. I have concluded that the appropriate order to make is an order of certiorari and an order remitting the application to the Board on the particular basis set out in this judgment. I have reached that conclusion for the reasons set out below.
Procedural History
6. By a decision dated 3rd April, 2018, the Board decided to grant permission for a development of 536 residential units on lands which were formerly part of St. Anne’s Park and subsequently part of St. Paul’s College in Raheny. The applicant for the permission was Crekav Trading GP Ltd (“Crekav” or the “developer”). Crekav is a notice party to each of the three sets of proceedings. The application was for a strategic housing development and was made pursuant to s. 8 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (the “2016 Act”). Applications for leave to seek judicial review in respect of the decision were made by the applicants in each of the above three sets of proceedings. On the basis that the development in question was a strategic infrastructure development under the Planning and Development Act 2000 (as amended) (the “2000 Act (as amended)”), the applications for leave were heard and determined by me in the SID list in accordance with Practice Direction HC74 — Judicial Review Applications in respect of Strategic Infrastructure Developments, made by the President of the High Court on 2nd February 2018.
7. On 14th June, 2018 I gave leave to the applicants in each of the proceedings to seek various reliefs by way of judicial review in respect of the Board’s decision of 3rd April, 2018 on the grounds set out in the statement of grounds in each of the proceedings. Each of the applicants raised a large number of grounds in their respective proceedings. While there was a considerable degree of overlap between the grounds raised by each of the applicants, the grounds were not identical in each case. For example, in his case, Mr. Sweetman advanced an alternative case that the State had failed properly to transpose the provisions of Council Directive 92/43/EEC (as amended) (the “Habitats Directive”) into Irish law. In their proceedings, Mr. Conway and the Louth Environmental Group raised grounds which affected the State and the Legal Aid Board (which was named as a notice party to those proceedings) asserting a failure by the State to comply with obligations relating to legal aid under EU law and/or under the Aarhus Convention and/or under Article 47 of the Charter of Fundamental Rights and Freedoms and on other grounds. These grounds did not form part of the case sought to be made by Clonres in its proceedings.
8. In any event, having considered the papers and having heard submissions on behalf of each of the applicants, I concluded that the grounds sought to be advanced by each of the applicants were “ substantial grounds ” and I granted leave to the applicants to seek relief by way of judicial review on those grounds pursuant to s. 50A of the 2000 Act (as amended). I directed that a notice of motion in each case be issued and made returnable for 28th June, 2018 so that further directions could be made on that occasion with a view to ensuring a fair, just and expeditious hearing of the proceedings.
9. On the return date of the motions, counsel on behalf of the Board informed the court as follows (as appears from the transcript):-
“We have now had an opportunity to take instructions and it is the case that there is an error on the face of the record in terms of the recording in the Board’s formal decision granting planning permission of the test applied by the Board in carrying out an appropriate assessment for the purposes of the Habitats Directive, and that is a point that is reflected in ground E32 of Mr. Sweetman’s statement of grounds and at ground E34 of Clonres’ statement of grounds. In those circumstances the Board is prepared to consent to an order of certiorari of the decision granting planning permission.”
10. The other parties to the proceedings had not been informed of this very recent development prior to the hearing on 28th June, 2018. Understandably, those parties sought time to enable them to consider their respective positions in light of the Board’s concession. The proceedings were adjourned to 16th July, 2018 and, ultimately, for further hearing to 28th July, 2018.
11. In the meantime, correspondence was exchanged between the parties as to what the court should do in light of the Board’s concession. I now turn to that correspondence.
Correspondence
12. In letters dated 29th June, 2018 the Board’s solicitors wrote to solicitors for the applicants in each of the three sets of proceedings. The letters were sent in virtually identical terms. In those letters it was confirmed that the Board was:-
“[P]repared to consent to an Order of certiorari of its Decision made on 3 April 2018 in case File Ref. ABP-300559-18 on the basis that there is an error on the face of the record of its decision as regards the recording of the test applied by the Board in reaching its Appropriate Assessment conclusion.”
The letters stated that:-
“This is pleaded at ground E.32 of the [Sweetman] proceedings and at ground E.34 of the Clonres CLG proceedings …”
It was proposed on behalf of the Board that an order of certiorari be made in Mr Sweetman’s case as that was said to be first in time.
13. The Board’s solicitors wrote again to solicitors for the applicants in each of the proceedings on 12th July, 2018. In those letters it was confirmed that the Board would consent to an order of certiorari of the Board’s decision on Ground E.32 of the statement of grounds in the Sweetman proceedings. It was further stated that the Board would be seeking an order that the application for permission be remitted to the Board to be determined in accordance with law. It was noted that having regard to the time limits prescribed in s. 9 of the 2016 Act, the Board would be asking the court to give certain directions in relation to timing. The letters proposed that the Clonres proceedings and the Conway proceedings be struck out in light of the order which it was proposing should be made in the Sweetman proceedings. It was further proposed that in each case the Board would pay the applicants’ costs (to include reserved costs) up to and including 16th July, 2018 to be taxed in default of agreement on the basis that final orders could be made on that date. (For reasons which it is not necessary to go into, it was not possible to deal with the issues on 16th or 19th July, 2018 and they were adjourned to 26th July, 2018).
14. The letters enclosed a draft proposed order to be made in the Sweetman case (the proposal being that each of the two other sets of proceedings would be struck out). The draft proposed order in the Sweetman case was as follows:-
“1. An Order of Certiorari quashing the decision of the First Named Respondent dated 3 April 2018 (Case Ref: PL29N.300559) to grant permission to the Second Named Notice Party for development on lands east of St. Paul’s College, Sybil Hill Road, Raheny, Dublin 5 on the ground that the said decision contained an error on the face of the record for the reasons set out at paragraph (E)(32) of the applicant’s statement of grounds.
2. An Order remitting the application for permission to the First Named Respondent to be determined in accordance with law, such remittal to take effect from the point in time at which its Senior Planning Inspector signed her report.
3. An Order deeming that the time period set out in section 9(9)(a) of the Planning and Development (Housing) and Residential Tenancies Act 2016, as amended, shall, in respect of the application remitted herein, expire four weeks from the date of the perfection of the Orders made herein.
4. An Order for the Applicant’s costs as against the First Named Respondent, to include reserve costs, to be taxed in default of agreement.
5. No further Order.”
15. Solicitors for the applicant in the Clonres proceedings replied on 12th July, 2018. They asserted that the Board’s decision was “ fundamentally flawed, being based on AA screening documents which wrongly assert that AA is not required for various aspects of the development” . It was contended that the reasons for those conclusions were bad in law and could not be fixed. It was further contended that the Natura Impact Statement (“NIS”) was inadequate in various respects and could not form the basis of a valid decision. It was asserted that under s. 8(3) of the 2016 Act, the Board could refuse to deal with an application where a NIS was inaccurate or incomplete and that the Board could not grant permission on foot of such a NIS, had no power to give the developer an opportunity to mend its hand by submitting a revised NIS, had no power to take additional submissions on the matter and that any decision which the Board might make would breach the requirements of natural justice. In those circumstances it was contended that no purpose would be served by remitting the matter to the Board. Various other grounds were asserted in the letter in support of the contention that it would not be appropriate to remit the matter to the Board and that no purpose would be served in doing so in circumstances where “ no valid grant could ever issue on foot of the present application”. In those circumstances, it was stated that Clonres was not consenting to the proposed order and that, unless the Board consented to an order quashing the decision simpliciter, Clonres would be asking the court to determine the other grounds raised in the proceedings and to fix the time for the filing of opposition papers. It was further asserted that the proposed order of certiorari should be made in the Clonres proceedings also.
16. The Board’s solicitors replied on 13th July, 2018. In that letter it was noted that the Board had conceded the matter on a specified ground and was seeking to have the application remitted to it to be determined in accordance with law. The Board was not prepared to consent to an order quashing the decision simpliciter. In response to the indication that Clonres would be asking the High Court to proceed to hear its application for judicial review, the letter stated:-
“In circumstances where the Board has conceded the application for judicial review on a specified ground, such an approach is contrary to well-established principles and practice and would entail an unnecessary and inappropriate use of resources, including Court time, to determine what would, in effect, be a moot. Any such application by your client will therefore be vigorously opposed by the Board.”
It was further indicated that the Board had no particular difficulty in making a similar order in the Clonres proceedings to the order it was proposing in the Sweetman proceedings, although it did not consider that to be necessary.
17. The only further relevant item of correspondence was a letter from Mr. Sweetman’s solicitors to the Board’s solicitors dated 18th July, 2018. In that letter it was confirmed that Mr. Sweetman was not consenting (and had never consented) to the form of remittal proposed by the Board as set out in the draft proposed order. While Mr. Sweetman had no difficulty with the decision being quashed and with the order for costs being proposed, he did have “ significant difficulty with such a limited remittal which fails to adequately address the issues in the proceedings ”.
Oral Submissions on 26th July, 2018
18. In oral submissions on 26th July, 2018, counsel for Clonres argued that an order of certiorari should be made in respect of the Board’s decision. It was not contending that the court should proceed to hear the case (as had been urged in the letter from Clonres’s solicitors of 13th July, 2018). However, counsel disagreed that the application should be remitted to the Board on the terms proposed by the Board or at all. He submitted that the application should go back to scratch, as it were, and should start again. He further objected to the manner in which the Board had communicated its position in the letter from its solicitors of 29th June, 2018 and submitted that this effectively amounted to the Board “ adding to, explaining or contradicting ” the decision in a manner precluded by the Supreme Court decision in The State (Crowley) v. Irish Land Commission & Ors [1951] I.R. 250 (“Crowley”) (per O’Byrne J. at 264). He contrasted the position adopted by the Board in this case with the approach which it had taken in Usk and District Residents Association Ltd. v. An Bord Pleanála [2007] IEHC 86 (“Usk”). In that case, affidavits were sworn by members of the Board to explain the reason why the Board was conceding that an order of certiorari should be made in the case (on a ground which had not in fact been raised by the applicants in the case).
19. The essential point made by counsel on behalf of Clonres in opposing the remittal sought by the Board was that the complaint by Clonres was not that the Board’s decision incorrectly recorded the test applied by the Board in carrying out the appropriate assessment and in reaching its conclusion on that assessment but rather that the Board had applied the incorrect test and that this error on the part of the Board tainted the entire process before the Board. It was not, therefore, possible for the court to remit the application to the Board to the point in the proceedings where the error was made as the entire process was tainted by the error and the application for permission was invalid ab initio.
20. As a fall back and alternative position, counsel for Clonres submitted that if the application was to be remitted to the Board it should be remitted to the point at which it appeared from the Board Direction (which was provided to the Court) that the error must have occurred, namely, at or around the time of the meeting of the Board held on 27th March, 2018 at which decisions were apparently made by the Board which were recorded in the Board Direction dated 28th March, 2018.
21. Counsel further submitted that it was not open to the court to give any direction in relation to the time limits within which the Board should make its decision in the event of a remittal as the time limits contained in the 2016 Act could not be complied with in respect of Crekav’s application (although counsel did not elaborate on that submission in any detail).
22. Finally, counsel submitted that if the application were to be remitted to the Board, it should be remitted to a differently constituted Board. He relied on Usk in that regard where Kelly J. made “ suggestion ” that the application, having been remitted to the Board, should be dealt with and considered by members of the Board who had not considered the earlier application.
23. Counsel for Mr. Conway and Louth Environmental Group added some submissions to those made by counsel for Clonres. He objected to the terms of the order of certiorari proposed and to the remittal of the application to the Board although it was acknowledged that these applicants had not raised the particular point or a variant of it which had given rise to the concession made by the Board (in contrast to the position of Clonres and of Mr. Sweetman who had). Counsel referred to para. E34 of the statement of grounds in the Clonres case and noted that the ground advanced by Clonres was not that the decision of the Board contained an error on the face of the record in relation to the recording of the test applied by the Board in reaching its AA conclusion but rather that the decision of the Board was ultra vires as having adopted and applied the incorrect test for AA. He submitted (by reference to Hogan and Morgan, Administrative Law in Ireland , 4th Ed., (Round Hall, 2010), para. 10-158) that the case made by Clonres was not that there was an error on the face of the record but rather that the decision was ultra vires (which he submitted is not the basis for review in the case of error on the face of the record). Counsel further objected to the basis on which the Board had communicated its position in the form of the letter from its solicitors of 29th June, 2018 and contrasted what the Board did in Usk with what was done in this case. As noted earlier, in Usk affidavits were sworn on behalf of the Board to explain what had happened before the Board.
24. In reliance on the decision of Clarke J. in Christian v. Dublin City Council [2012] IEHC 309 (“Christian”), counsel submitted that if the matter were to be remitted, it should be remitted to a point no further back than is necessary to undo the consequences of the error. He submitted that the error conceded was an error in recording the test and that such recording took place on 28th March, 2018 (in the Board Direction). Therefore, the application should not be remitted to a point before that.
25. Finally, counsel stressed that the applicants for whom he acted were not abandoning any of the grounds which they had advanced in the statement of grounds for which leave had been obtained. Those grounds would be pursued in the event that fresh proceedings were necessary following any further decision by the Board on Crekav’s application.
26. Counsel for Mr. Sweetman adopted the submissions made on behalf of the other applicants. He urged the court not to remit the application to the Board at all and submitted that if this were done it would give rise to even greater problems than had already arisen. He submitted that if the application were remitted it was virtually certain that further proceedings would be brought. Counsel further submitted that the court had no power to give directions in relation to the time period proposed in the draft order put forward by the Board. He effectively submitted that the court had no power to alter or tamper with the time periods contained in the 2016 Act. He argued that the court had no power to enlarge the 16 week period referred to in s. 9(9) of the 2016 Act. He relied on a judgment of McKechnie J. in Brooks v. Sligo County Council (although no written judgment is apparently available) (it appears that this judgment concerned a default planning permission and is not directly on point). Counsel’s main argument was that any permission emerging from the process following remittal would be challenged and, therefore, the most appropriate order for the court to make in its discretion was to quash the decision and require the applicant to start again.
27. In response, counsel for the Board rejected any criticism of the manner in which the Board had communicated the limited concession which it was prepared to make for the purposes of consenting to an order of certiorari. She distinguished the present case from Usk where affidavits were sworn by members of the Board (including its chairman) as the ground on which the Board was consenting to an order of certiorari in that case was not one which had been raised by the applicants and arose from facts not known to the applicants or to the court. In those circumstances, it was submitted that it was appropriate for the Board to swear affidavits setting out what had happened before the Board in that case. That was not so in the present case where the Board’s solicitors’ letter identified a legal error in the Board’s decision which had been identified in the statement of grounds in the Clonres case and in Mr. Sweetman’s case, albeit not in precisely the same terms in those cases. She referred to para. E32 of Mr. Sweetman’s statement of grounds and to para. E34 of the statement of grounds in the Clonres case. The Board was conceding that the test which is recorded in the Board’s decision as having been applied in the case of appropriate assessment is the wrong statutory test. In those circumstances, the Board was not defending the proceedings and was consenting to an order of certiorari. Counsel accepted that the question as to whether the Board did in fact apply the correct or incorrect test for appropriate assessment may be a matter for another day or other proceedings but that that question does not have to be determined in these proceedings. She accepted that the Board’s concession and its consent to an order of certiorari would not give rise to any res judicata in subsequent proceedings.
28. As to the point in time to which the application should be remitted, the Board submitted that it should go back to the stage where it was immediately prior to the meeting held by the Board on 27th March, 2018 at which submissions in relation to the application and the Inspector’s report (which was dated 23rd March, 2018) were considered (as appears from the Board Direction). Counsel submitted that if the decision of the Board is quashed by certiorari, the Board would have to make another decision and would have to meet or convene in order to make that decision.
29. Counsel for the Board further submitted that the court should give directions in relation to timing in light of the provisions of the 2016 Act which in s. 9(9) required the Board to make its decision on the application within 16 weeks of the date on which the application was lodged with the Board (or within such other period as may be prescribed, something which does not arise in the present application). Counsel submitted that the deadline under the legislation for the Board to make its decision on this application expired on 12th April, 2018. The Inspector’s report was finalised on 23rd March, 2018. Therefore, there were 20 days left from that date until the date the statutory period was to expire. The Board had met on 27th March, 2018, the Board’s direction was dated 28th March, 2018 and the Board’s decision was signed off on 3rd April, 2018. The Board requested that the matter be remitted to the point in time of the process at which the Inspector’s report was finalised, namely, 23rd March, 2018. That would leave the Board with 20 days plus weekends and holidays (which are to be added back in by virtue of s. 251 of the 2000 Act (as amended) which is to be construed with the 2016 Act). Counsel submitted that a further nine days should be added to the 20 days by virtue of s. 251 and that would give rise to 29 days which the Board was rounding down to four weeks. It was on that basis that the Board was seeking in the order which it was proposing that the court should make an order deeming that the time period set out in s. 9(9)(a) of the 2016 Act should, in respect of the application at issue, expire four weeks from the date of perfection of the order. However, in light of the submission made by a number of the applicants that if the application were to be remitted to the Board, it would have to be dealt with by a differently constituted Board to that which made the impugned decision, counsel submitted that it might be necessary to seek an additional period of time. This was because the point had not been made on behalf of the applicants prior to the hearing and it had not been possible to obtain instructions from the Board as to whether there would be difficulty in the Board constituting itself with different personnel bearing in mind the time of the year. In those circumstances it might be necessary to extend the period of time from the four weeks originally sought in the proposed draft order.
30. Counsel for the Board rejected the submission made on behalf of Mr. Sweetman that s. 9 contains some form of guillotine which requires the Board to take a decision within the statutory period failing which the decision would be deemed to be refused or to have some such similar consequence. She submitted that s. 9(9) of the 2016 Act does not so provide. She further directed my attention to s. 9(13) of the 2016 Act where it is provided that if the Board has failed to make a decision within the period specified in s. 9(9)(a), the Board should proceed to make the decision notwithstanding that the period has expired. The consequence of such failure is that the Board will be required to make a payment (referred to as the “ appropriate sum ” in s. 9(13)(b) and (d)) to the applicant for the particular permission.
31. Further, counsel for the Board rejected the submission made on behalf of Mr. Sweetman to the effect that if the application had to start again from scratch it could be dealt with within 16 weeks which would only be 12 weeks more than the period provided for in the draft order proposed by the Board. Counsel pointed out that that submission ignored the fact that if the application had to go back to the start it would have to comply with the provisions of ss. 5 and 6 of the 2016 Act requiring Crekav, the developer, before making an application to request the Board to enter into consultations in relation to the proposed application and that such consultations are a pre-condition to making the application. Therefore, if the application had to start from scratch it would take considerably longer than 16 weeks to be decided, when the statutory pre-application consultation requirements are taken into account.
32. Finally, counsel for the Board referred to the decision of Peart J. in O’Grianna v. An Bord Pleanála [2015] IEHC 248 (“O’Grianna”) and to the court’s description of the Board in that case as a “ disinterested party ” which does not have a vested interest in the outcome of a development one way or the other in the context of the court’s consideration as to the appropriateness or otherwise of remitting an application back to the Board. In those circumstances, the Board submitted that I should make an order on the terms proposed with the possible provision for additional time for the Board to determine the application following its remittal.
33. Counsel for the State supported the Board’s submissions and stressed that the 2016 Act envisages an expeditious process. In those circumstances, the State supported the remittal of the application to the Board. Counsel for the Legal Aid Board appeared but in light of the fact that any issues concerning legal aid did not now arise in the proceedings, he had nothing to add to the Board’s submissions.
34. Counsel for the developer, Crekav, also supported and adopted the submissions made by the Board and made some additional submissions in support of the draft order proposed by the Board. First, counsel submitted that the present case was significantly different to Usk. In Usk, the Board could not stand over the decision but not for any of the reasons advanced by the applicants in that case. It was in those circumstances that the Board felt it necessary to swear affidavits explaining the basis on which it was consenting to an order of certiorari. Second, counsel submitted that there was no reason why, if the application were remitted to the Board on the basis proposed by the Board (namely, on the basis of an error on the face of the record), the Board would have to constitute itself differently in deciding the application again following the remittal. He submitted that the present case is different to Usk in that in Usk there were affidavits from the applicants complaining about the procedure and stating that they had lost faith in the ability of the particular Board members properly to determine the application. Third, counsel rejected the contention that the correspondence from the Board in some way infringed any rule or principle identified in Crowley on the basis that in that case the Supreme Court was concerned with an attempt to expand upon a decision and to draw in other material on which the decision-maker was attempting to rely to supplement the written decision. That does not arise in the present case. Fourth, counsel submitted that an order of certiorari is appropriate in circumstances where the Board has conceded an error on the face of the record and that it does not matter whether the decision could be said to be ultra vires or not as a consequence of that concession since it is clear that certiorari can in any event lie in respect of a decision affected by an error on the face of the record. In circumstances where none of the applicants were seeking to persuade the court to embark on a hearing of all of the other issues in the case, counsel submitted that it was appropriate for the court to make an order of certiorari on the terms proposed by the Board. Fifth, he submitted that if such an order is made, the court should remit the application to the Board to allow the Board to “ pick the matter up again ” from the point at which the error is accepted to have occurred, which counsel submitted was the point in time proposed by the Board.
Certiorari
35. The Board is consenting to an order of certiorari on the basis of its concession that the decision to grant permission in respect of the development contained an error on the face of the record as regards the recording of the test applied by the Board in reaching its conclusion on appropriate assessment under the Habitats Directive. That is the only basis on which the Board is conceding that an order of certiorari should be made. That concession by the Board was initially made in correspondence and was confirmed by its counsel in open court.
36. The first issue which arises in this context is the complaint raised by a number of the applicants in relation to the manner in which the Board made that concession. Counsel for Clonres and for Mr. Conway have objected to the manner in which that concession was made in the letter from the Board’s solicitors dated 29th June, 2018. Reliance was placed on the comments of O’Byrne J. in the Supreme Court in Crowley. There is no basis for those complaints. In Crowley, the applicants sought to quash by certiorari a judgment and orders of the respondents. The respondents sought to supplement the judgment and orders by reference to an affidavit sworn by the Lay Commissioners. The Supreme Court held that it was not open to the respondents to have recourse to such an affidavit. O’Byrne J. stated that:-
“The determination of the Lay Commissioners appears in, and must be gathered from, the formal orders made by them and the affidavit cannot be utilised for the purpose of adding to, explaining, or contradicting their written orders.”
37. I do not see the Board’s solicitors letter of 29th June, 2018 which set out the basis of the Board’s concession as being an attempt to add to, explain or contradict the Board’s decision of 3rd April, 2018. The letter set out the terms in which the Board was conceding that an order of certiorari could be made. That concession does not, in my view, in anyway add to, explain or contradict the terms of the Board’s decision. In the circumstances, I do not accept that there was anything wrong or improper with the Board’s solicitors communicating with the solicitors for the other parties the basis on which the Board was prepared to concede that an order of certiorari could be made. The letter repeated and confirmed a concession already made by the Board’s counsel in open court on 28th June, 2018 and that concession was re-confirmed by counsel in open court on 26th July, 2018.
38. Nor do I accept the further submission made on behalf of a number of the applicants that the Board ought to have set out the basis for its concession in the form of an affidavit or affidavits by members of the Board. The circumstances of this case are quite different to those which arose in Usk. In that case, the Board was conceding that an order of certiorari should be made in respect of its decision on grounds which had not been raised or pleaded by the applicants and were completely unknown to them. In those circumstances, it was particularly appropriate that affidavits be sworn by the relevant members of the Board. In the present case, the applicants in two of the proceedings were advancing grounds directed to the appropriate assessment carried out by the Board (para. E34 of the statement of grounds in the Clonres proceedings and para. E32 of the statement of grounds in the Sweetman proceedings). One of those applicants (Mr. Sweetman) was expressly making the case that the decision of the Board (where it refers to the appropriate assessment carried out by it) was “ wrong on its face ” (para. E32 of Mr. Sweetman’s statement of grounds). In my view, it was appropriate, lawful, pragmatic and cost effective for the Board to communicate its concession by way of a letter from its solicitors and it was not necessary for it to swear an affidavit or affidavits setting out the basis and reasons for that concession. I should make clear, however, that it would have been open to the Board to swear an affidavit or affidavits setting out the basis and reasons for its concession and this would not, in my view, have contravened any principle identified or applied by the Supreme Court in Crowley.
39. I am satisfied that it is appropriate to make an order of certiorari on the terms proposed by the Board. The Board has made a limited concession that an error on the face of the record was made. That error, as conceded by the Board, was the recording of the test apparently applied by the Board in reaching its conclusion on appropriate assessment under the Habitats Directive. A decision which contains an error of law on the face of the record is amenable to an order of certiorari (notwithstanding that the basis for the court’s power to review on that ground may not be based on the doctrine of ultra vires). (Hogan and Morgan, Administrative Law in Ireland , 4th Ed., (Round Hall, 2010), p. 497, para. 10-158; see also Solomon v. Nicholson [2006] IEHC 29.)
40. While many grounds have been advanced by each of the applicants in these three sets of proceedings, and while the Board has conceded that an order of certiorari can be made on one ground raised directly by one of the applicants (Mr. Sweetman) and indirectly or peripherally by another applicant (Clonres), it has not been suggested by any of the applicants that the court should require the delivery of opposition papers in respect of all of the other grounds raised and should proceed to conduct a hearing and deliver judgment on all of those other grounds. It would, in my view, be inappropriate, in light of the concession made by the Board, to take such a course. I adopt the approach taken by Kelly J. in Usk where he granted an order of certiorari solely on the ground conceded by the Board in that case. Kelly J. went on to state:-
“Whilst the applicant raises other questions which might arguably provide additional grounds for granting certiorari, it is not in anybody’s interest that the public time of the court or the expensive time of the litigants and their advisers be expended on such an exercise. Judicial restraint dictates that the court should confine itself to facts and findings necessary to support the order of certiorari. It should not go beyond them.”
(per Kelly J. at p. 9).
41. I agree with those observations. I will, therefore, make an order of certiorari in the terms set out in para. 1 of the draft order proposed by the Board.
42. I should make clear however that that is the only basis on which I am making the order of certiorari. I have not adjudicated on or determined any of the other grounds advanced by the applicants in any of these three sets of proceedings. No issue of res judicata or issue estoppel arises by virtue of the order of certiorari which I have decided to make on the basis of the limited concession made by the Board. Should the applicants decide to commence fresh proceedings arising out of any further decision which the Board may make in light of the order of certiorari, they will be free to advance all or any of the grounds which they have advanced (and on which I had previously found to be “ substantial grounds ”) in those proceedings. This is, of course, subject to the applicants persuading the court in the event of such further proceedings being brought that “ substantial grounds ” arise in respect of a challenge to any further decision which the Board may make on foot of Crekav’s application.
Remittal
43. The next issue which arises is whether I should remit the application to the Board and, if so, the point in time at which it should be remitted or whether I should simply make the order of certiorari so that the application would have to start again from scratch if the developer wishes to pursue it. Further issues arise in the event that I were to decide to remit the application to the Board. They include the directions (if any) which ought to be made in the event of such remittal in relation to the timing of the decision which would have to be made by the Board and in relation to the composition of the Board in making any such decision.
44. There are a number of relevant authorities on the question of remittal and the basis on which the court should exercise its jurisdiction to remit. The most significant authorities in this context are the decisions of Kelly J. in Usk, Clarke J. in Christian and Peart J. in O’Grianna. The following principles can be discerned from those decisions:-
(1) The court has an express power to remit a decision in respect of which an order of certiorari has been made. That power is conferred by O. 84, r. 26(4) of the Rules of the Superior Courts (Usk, p. 12). The court may also have an inherent jurisdiction to remit a decision although it is not necessary to express a concluded view on the existence of such an inherent jurisdiction (Usk, p. 13). Order 84, rule 26(4) RSC states:-
“Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.”
(2) The court has a wide discretion to remit. That discretion “ must be exercised both judicially and judiciously with the overall objective of achieving a just result ” (Usk, pp. 13 and 15). The court should decide whether or not to remit a decision to a decision-maker in the event of an order of certiorari being made “ on the basis of fairness and justice ” (O’Grianna, para. 10).
(3) The “ overriding principle ” behind any remedy in civil proceedings including in considering whether to remit “ should be to attempt, in as clinical away as is possible, to undo the consequences of any wrongful or invalid act but to go no further” (per Clarke J. in Christian at para. 4.6 referring to his earlier judgment in Tristor Ltd. v. Minister for the Environment and others [2010] IEHC 454 (“Tristor”)). Further, “ the sole function of the Court is to fashion an order which puts matters back into a position in which they were immediately before the wrongful exercise of a ministerial discretion occurred” (Christian para. 4.6 quoting from Tristor para. 4.4).
(4) Where a particular process has been conducted in a regular and lawful way up to a certain point in time, “the court should give consideration as to whether there is any good reason to start the process again ”, “ active consideration should be given to the possibility of remitting the matter back to the decision-maker or decision-makers to continue the process from the point in time where it can be said to have gone wrong” and “ a court should lean in favour of standing over a properly conducted process and only require any part of the process which was invalid to be revisited in the context of a matter being referred back ” (Christian para. 4.8). Further, “ the court should endeavour to avoid an unnecessary reproduction of a legitimate part of the process ” (Christian para. 4.12).
(5) In considering whether the court should remit a decision to the decision-maker, the court should take account of the expense and inconvenience which would be caused by sending the project “ back to the drawing board ” and should also consider the “ inevitable and disproportionate delay ” in having the matter dealt with again from the start (Usk pp. 16-17).
(6) In considering whether to remit an application to the Board, the court should treat the Board as a “ disinterested party ” which has “ no stake in the commercial venture being pursued by [the developer] ” (O’Grianna para. 9). Further, where the Board, as the statutory decision-maker, has taken the view that it can carry out its statutory function in light of the findings of the court if the matter is remitted to it for a fresh decision, the court “ should not lightly reject such an application to remit in favour of simply quashing the decision simpliciter with the result that the application goes back to square one ” (O’Grianna para.9). That would have “ the potential to be wasteful in terms of delay and cost ” and the court ought not to adopt a course which is “ unnecessarily onerous upon the developer ” (O’Grianna para. 9).
(7) By remitting a decision or application to the Board, the court is not giving “in advance […] some sort of ‘imprimatur’” to whatever decision or approach is taken by the Board following the remittal (O’Grianna para. 10).
(8) If the applicants are not satisfied with the further decision taken by the Board following remittal of the application to it, the applicants will be entitled again to seek leave to challenge the decision (O’Grianna para. 10).
(9) Where the court remits or refers a matter back to the decision-maker, such as the Board, the court has an inherent jurisdiction to give directions as to the process to be followed following such remittal (Christian para. 4.17). The court should in giving such directions, “ attempt to replicate, insofar as it may be practicable, the legal requirements that would apply, whether under statute, rules or the like, to the making of decisions of that type ” while recognising that it may not always be possible to ensure “ exact compliance with the relevant regime ” (Christian para. 4.17).
(10) Short of giving directions in the event of a remittal, it is open to the court to make recommendations in remitting the matter (Usk p. 17). Such recommendations would not interfere with or trespass upon the discretion vested in the decision-maker, such as the Board. Such recommendations could include those in relation to the re-opening of an oral hearing and in relation to the composition of the membership of the Board which decides on the application following its remittal (Usk pp. 18 and 19).
45. While some of the principles summarised above may not be directly applicable to the present case, where I have decided to make an order of certiorari on the basis of the limited concession made by the Board that the decision contained an error on the face of the record, most of the principles are readily applicable. In light of those principles and the considerations underlying them, I have decided that it would be appropriate for me to remit the application to the Board rather than to make an order of certiorari simpliciter. If I were not to exercise my discretion to remit the application to the Board, it would give rise to an unnecessary and disproportionate delay in finalising the statutory process and would be unnecessarily and disproportionately onerous on the developer. I bear in mind the observations in all of the cases mentioned earlier that the court should give careful consideration to whether it is possible to remit a decision to the decision-maker and should lean in favour of doing so. I am also conscious of the observations of Clarke J. in Christian and in Tristor that, in the event of a remittal, the court should not remit the matter back excessively far in time in the process and should seek to ensure that the process can re-commence at the latest point in time consistent with the legality or invalidity found or, in this case, conceded by the decision-maker. In exercising my discretion to remit in the present case, I will endeavour to remit the application no further back in the process than is necessary to undo the consequences of the conceded invalidity so that the process can resume before the Board as far as possible immediately before the unlawful or invalid step which has given rise to the order of certiorari.
46. I bear in mind the reliance placed by the applicants in the Clonres proceedings and in the Conway proceedings on the Board Direction, which is dated 28th March, 2018, and their contention that the Direction sets out (or records) an incorrect test for the purposes of appropriate assessment and that if the matter were to be remitted (contrary to their principal contention that it should not be so remitted), it would have to be remitted back in the process to the point where the Board met to consider the submissions and the inspector’s report (which was finalised on 23rd March, 2018). That meeting was held on 27th March, 2018 (according to the Board Direction). I have also taken into account the reasonable acceptance by counsel for Mr. Conway that there could be no difficulty with the Board having another meeting if the matter were remitted to it should the Board deem it necessary to have such a meeting.
47. In light of all of these considerations, and bearing in mind that it is necessary to attempt to achieve some precision as to the point in time to which the matter should be remitted, it seems to me that the appropriate order to make in the exercise of my discretion is to refer the application back to a point immediately after the Inspector finalised her report on 23rd March, 2018. While I considered whether or not it would be possible to frame the terms of the remittal in such a way as to send the application back to the Board to take it up again at the point of any meeting which the Board may feel necessary to convene to reach a decision on the application, I found it difficult to frame the terms of the remittal precisely enough to ensure certainty and to avoid excessive interference with the discretion of the Board in the exercise of its functions. In those circumstances, doing the best that I can, I have concluded that the appropriate point in time to which to remit the application is the point immediately after the Inspector finalised her report on 23rd March, 2018.
48. Bearing in mind the limited nature of the concession made by the Board which is the basis on which the order of certiorari is made, it should be stressed that I have not determined any of the other grounds which have been raised by the applicants in these three sets of proceedings and on which I previously found the applicants had satisfied the test of raising “ substantial grounds ” for the purpose of obtaining leave to seek judicial review in respect of the Board’s decision. No issue estoppel or res judicata arises in respect of any of those grounds. In the event that proceedings are brought by the applicants in respect of any further decision which the Board may make on foot of the application following its remittal, it remains open to the applicants to raise any of these grounds in any such further proceedings (subject, of course, to persuading the court in any such further proceedings that those grounds amount to “ substantial grounds ” for the purpose of challenging any such further decision which the Board may make on the application).
Directions
49. As is clear from the authorities discussed above, it is open to the court when remitting an application to the Board to give directions. It is also open to the court to make recommendations, or suggestions short of directions. The court’s discretion is very wide in that regard. The Board has requested that directions be given in relation to the time period within which the Board should make its decision on the application following its remittal. I agree that it is open to me to give such directions. In doing so, I bear in mind the observations of Clarke J. in Christian (at para. 4.17) that I should attempt to replicate, insofar as may be practicable, the legal requirements which would apply under statute in respect of the making of the decision by the Board (subject, of course, to there being no statutory impediment to such directions).
50. I am satisfied that it is appropriate to make a direction along the lines proposed by the Board at para. 3 of the draft proposed order save that I will vary the proposed direction to replace the period of four weeks referred to in the draft with a period of six weeks for reasons which I will explain shortly. I referred earlier in my judgment to the parties’ respective submissions in relation to the timing directions sought by the Board. In my view, it is appropriate in the interest of certainty and in the interest of fairness for all parties (including the applicants and the developer) that I should give directions in relation to the timing of the Board’s decision. I am satisfied that it is open to me to do so and that I am not precluded by virtue of any provision in the 2016 Act or otherwise from giving such directions. In that regard, I accept the Board’s submission in relation to the provisions of ss. 9(9)(a) and 9(13) of the 2016 Act. Section 9(9)(a) does not provide, in the event that the Board fails to make a decision within the 16 week period referred to therein, that the application is to lapse. Nor does it specify any other consequence for the validity of the application in the event that the Board fails to make its decision within the 16 week period. The only consequence appears to be that contained in s. 9(13) which is that the Board must proceed to make its decision notwithstanding that the period has expired and will be subject to an obligation to make a payment to the developer in such circumstances. I am satisfied, therefore, that there is no statutory impediment to me giving a direction that the time set out in s. 9(9)(a) of the 2016 Act should expire at a particular point in time in respect of the application remitted to the Board.
51. Before finalising what that period of time should be, I should address the submission made on behalf of some of the applicants that in the event of a remittal, I should direct that the application be considered by a differently constituted Board to that which made the original decision. Having considered the submissions of the parties on this issue, I do not propose to give a direction to the Board that a differently constituted Board should consider the application following its remittal. The Board has conceded that it made a legal error in the manner in which it recorded the test for appropriate assessment in the decision. It may or may not have made other legal errors both in relation to the test for appropriate assessment which it applied or otherwise. I am not making any decision in relation to any other alleged error or errors by the Board. However, insofar as the conceded error is concerned, it would not, in my view, justify me giving a direction that the Board should ensure that the members who consider the application following its remittal should be different to those who were involved in the original decision. It is a matter for the Board to decide what members should be involved. That said, it may well be prudent for the Board, if it is practically and administratively possible, to try to ensure that members who were involved in the original decision are not involved in the decision following its remittal. However, that is a matter for the Board and I will not make any direction or recommendation in that regard.
52. Recognising that the Board may decide itself to constitute its membership differently when considering the application following its remittal, and bearing in mind that this point was made for the first time by counsel for some of the applicants in their oral submissions on 26th July, 2018 in circumstances where it was not possible for counsel or solicitors to obtain instructions from the Board and bearing in mind the August holiday period, it would be appropriate to slightly vary the time period referred to in the proposed direction in relation to timing from four weeks to six weeks.
53. I will, therefore, make an order in terms of para. 3 of the draft proposed order but will replace the period of four weeks referred to in the draft by a period of six weeks.
Costs
54. While the Board has conceded in correspondence that it will pay the costs of the applicants (to include reserved costs) up to 16th July, 2018, I will direct that the Board pay the costs of the applicants in the three sets of proceedings (to include reserved costs) up to the date of the delivery of this judgment. In my view, it was reasonable for the applicants to tease out the basis on which the order of certiorari was being conceded and to address the question of remittal and the terms of any such remittal. In those circumstances, I will make an order for the applicants’ costs in each of the three sets of proceedings as against the Board (to include reserved costs) up to the date of delivery of this judgment to be taxed in default of agreement.
Orders
55. I will make orders in the following terms for the reasons set out earlier:-
(1) An order of certiorari quashing the decision of the first named respondent dated 3rd April, 2018 (Case Ref:- PL29N.300559) to grant permission to Crekav Trading GP Limited for development on lands east of St. Paul’s College, Sybil Hill Road, Raheny, Dublin 5 on the ground that the said decision contained an error on the face of the record as regards the recording of the test applied by the Board in reaching its appropriate assessment conclusion.
(2) An order remitting the application for permission to the first named respondent to be determined in accordance with law, such remittal to take effect from the point in time immediately following the time at which its Senior Planning Inspector signed her report on 23rd March, 2018.
(3) An order deeming that the time period set out in s. 9(9)(a) of the Planning and Development (Housing) and Residential Tenancy Act 2016 (as amended) shall, in respect of the application remitted herein, expire six weeks from the date of the perfection of the orders made herein.
(4) An order for the applicants’ costs as against the first named respondent, to include reserved costs, up to the date of delivery of this judgment on 31st July, 2018, to be taxed in default of agreement.
(5) No further order.
56. The above orders are to be made in each of the three sets of proceedings.
Kinsella v. Dundalk Town Council
[2004] IEHC 373 (3 December 2004)
JUDGMENT of Mr. Justice Kelly delivered the 3rd day of December, 2004
INTRODUCTION
On 3rd August, 2004, Dundalk Town Council (the Town Council) granted planning permission to Coverfield Developments Limited (Coverfield) for a very substantial development at Dowdallshill, Dundalk, County Louth.
The development will consist of a factory outlet centre containing 81 retail units with associated mall, snack bars, playground, crèche, public toilets and management suite. Parking for 1,120 cars and 20 coaches forms part of the planned development. The planning permission was subject to no fewer than 109 conditions.
THIS APPLICATION
The applicant seeks leave pursuant to s. 50 of the Planning and Development Act, 2000 (as amended) to apply for judicial review of the decision of the Town Council to grant the planning permission in question. If granted leave he wishes to seek an order of certiorari quashing the decision of the Town Council of 3rd August, 2004, to grant the planning permission. Further or in the alternative he seeks an order of certiorari quashing a decision of the Town Council of 25th June, 2004, whereby it decided that further information submitted on behalf of Coverfield on 24th June, 2004, did not contain significant additional data and did not therefore require the publication of an additional notice pursuant to article 35 of the Planning and Development Regulations, 2001.
In order to make sense, in particular of this second relief, I will have to refer to what happened when Coverfield’s application for planning permission was pending before the Town Council.
COVERFIELD’S APPLICATION
Coverfield’s application for planning permission was made on 4th March, 2004. It was accompanied by an Environmental Impact Statement (EIS) comprising seven documents. One of these was called the Overarching EIS Document to which I will have to return in due course. Curiously enough the grounding affidavit in this case did not exhibit the EIS or any relevant extract from it despite its importance to the issues in suit.
On 26th March, 2004, the applicant submitted his own rival application for outlying planning permission for a factory outlet centre at Dunleer. Neither the fact nor the content of this application was disclosed in the grounding affidavit supporting the present application.
On 7th April, 2004, the applicant made two separate submissions and observations to the Town Council concerning Coverfield’s planning application. One was made personally and the other on his behalf by a firm of planning consultants.
On 27th April, 2004, the Town Council wrote to Coverfield requesting it, pursuant to the Planning and Development Regulations, 2001 to provide information/documents as set out in seven numbered paragraphs contained in a schedule to that letter of request. Coverfield was told that its application was deferred pending full compliance with that request. It was also informed that if the Town Council considered that the further information submitted contained significant additional data, Coverfield would be required to give notice in an approved newspaper in accordance with article 35 (1) (c) of the Planning and Development Regulations, 2001. In such circumstances the four week period for determining the application would run from the date that the notice was published.
THE INFORMATION REQUESTED
The schedule to the letter of 27th April, 2004, drew Coverfield’s attention to several letters of objection received in relation to the proposed development. Copies of those letters were enclosed. Within the context of the information already supplied in what was called the Environmental Impact Assessment, Coverfield was requested to submit a written statement which would address, assess and comment upon each of the issues and concerns raised within the letters of representation in question. The schedule went on to set out non-exclusive points for consideration by Coverfield.
Amongst other things Coverfield was asked to deal with commercial synergy with the town centre; impact upon the town centre vitality and viability – within the context of the issues raised in the letters of representation; sustainable development – in response to the issues raised by the letters of representation and embellishment of
s. 2.9.1 of the EIS Overarching Document.
The schedule went on to draw attention to s. 2.3.5 of the EIS Overarching Document which outlined the hours of opening of the centre. It pointed out that the proposal referred to one late night opening but did not specify the day or times. Attention was also drawn to s. 2.4.15 of the Overarching Document which mentioned that signage for all units would be “Blade” type and it went on to comment on that.
The fourth paragraph of the schedule pointed out that the Town Council and Louth County Council had commissioned independent advice from Brady Shipman & Martin Consultants who had examined the proposal and requested that the following further information be sought:-
“Please give details of the catchment of the proposed centre and the expected number of visitors, in relation to the National Roads Network.
Please justify the scale of the overall development and the number of units with particular regard to the nature of factory outlet centres and the type of tenants proposed.
Please indicate the measures to be taken to ensure that the goods sold in the proposed development will not be in competition with the town centre in Dundalk.
The applicant has not provided the range of detail and analysis to substantiate the conclusions of the assessment of retail impact provided in s. 2.9.25 to 2.9.31 of the EIS. Please provide a revised response to the impacts on the town centres of Dundalk, Drogheda and Ardee with respect to the criteria in para. 65 of the Retail Planning Guidelines”.
Coverfield was asked to substantiate the assertion made in s. 2.9.26 that the proposal would encourage international retail investment in the town centre of Dundalk. It was asked pursuant to s. 2.9.27 to consider and comment on the likely cumulative effects on town centres, of the application combined with other applications for factory outlets in the catchment, including the application at Dunleer (the applicant’s) and at Banbridge, Co. Down. Coverfield was also asked to explain in greater detail and provide evidence for the assertion made in s. 2.9.28 that the proposed development would lead to an increase in demand for services in the town centre.
Coverfield was also asked to provide a full quantitative estimate of the retail impact on Dundalk setting out the level of displacement of comparison retail spending due to the proposed development. It was requested to provide a quantitative estimate of the retail impact on Drogheda and Ardee. Such an analysis was said to be required to fully address the issue of town centre vitality and viability. The Town Council noted that as per para. 65 of the Retail Planning Guidelines such an assessment should take account of recent developments or other outstanding planning permissions.
I should mention the fact that the applicant makes the case that this request of the Town Council is demonstrative of insufficient data having been supplied with the original planning application. However, he does not now suggest and has expressly disavowed any argument that the original application was invalid by virtue of this alleged shortcoming or that the planning permission granted on foot of it is invalid for that reason.
THE RESPONSE
On 24th June, 2004, Coverfield responded to the request for further information.
On the following day, Ann McDonnell, an official of the Town Council sent a memorandum to Mr. Ewbanks, an executive planner with that Council concerning the further information which had been submitted by Coverfield on 24th June, 2004. Her memorandum reads as follows:-
“Please indicate if the further information submitted on 24th June, 2004 in relation to the above mentioned application contains significant additional data. If so, the planning authority must require the applicant to publish notice of the new information and invite submissions or observations on the new information. (Article 35 of the Planning and Development Regulations, 2001 refers). You might also confirm if the further information needs to be referred to the sanitary services road engineers?”
On the same day Mr. Ewbanks responded to that memorandum in a manuscript note written on the bottom of it. He wrote:-
“Not significant additional data. Please pass a copy to roads and to John Kehoe, c/o Brady Shipman Martin (address such (sic) be on file). Can you request that both reply to this information as an urgent matter and request John Kehoe to email his reply to tonyewbanks@dundalk.ie. Thanks, TE 25/06/04.”
This decision of Mr. Ewbanks is at the heart of these proceedings.
LATER EVENTS
The Town Council’s advisors, Brady Shipman Martin, in July, 2004 furnished an independent assessment of the retail impact of the proposed factory outlet at Dundalk, Co. Louth.
That firm’s main conclusion was that the estimated level of impact on retail centres in Co. Louth was acceptable. It furthermore concluded that the siting of the factory outlet centre at the proposed location was justifiable and was not in close proximity to the town centre and was not likely to directly compete with the comparison retail offering in the town centre. It also concluded that the size of the development was acceptable and was in keeping with the objectives of the County Retail Strategy.
On 14th July, 2004, planning and development consultants called Reid Associates attempted to make submissions in respect of the further information lodged by Coverfield on 24th July, 2004. Consistent with the view which it had already formed, the Town Council wrote to Reid Associates on 20th July, 2004, informing them that their submission could not be considered by the Town Council. The reason for that was that article 35 (1) of the Planning and Development Regulations, 2001 provides that a submission or observation may be made in relation to further information when the planning authority considers that the further information submitted contains significant additional data. The information submitted in this particular case did not, in the view of the Town Council, contain significant additional data and consequently Reid’s submission could not be considered by it.
On 3rd August, 2004, the Town Council decided to grant planning permission.
On 27th August, 2004, the applicant lodged a full appeal to An Bord Pleanála against the decision to grant planning permission.
One month later, on 24th September, 2004, the notice of motion in the present case was issued with a return date of 1st November, 2004. On the application of Coverfield the case was transferred into the Commercial List and was heard by me on 18th and 23rd November, 2004.
MR. EWBANKS’ DECISION (1)
The applicant contends that Mr. Ewbanks was wrong to conclude as he did in respect of the information supplied by Coverfield on 24th June, 2004. Contrary to his view, the applicant contends that there was significant additional data included in the response of Coverfield which should have triggered the necessity to take the steps specified in article 35 of the Regulations involving the publication of notice of the new information and the invitation of submissions or observations on it. Had that been done the applicant says he would have availed himself of the opportunity to do so. Because of Mr. Ewbanks allegedly wrongful decision the applicant was allegedly denied an opportunity of commenting upon this additional information.
THE STANDARD OF PROOF
This application is made pursuant to s. 50 of the Planning and Development Act, 2000. That section provides (insofar as it is relevant) that a person shall not question the validity of a decision of a planning authority on an application for permission otherwise than by way of an application for judicial review. The application must be made on notice and the High Court is enjoined not to grant leave unless it is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed and that the applicant has a substantial interest in the matter which is the subject of the application.
There are a significant number of decisions as to the meaning of the phrase “substantial grounds” in the context of an application such as this. The test formulated by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 at 130 has stood the test of time and has been followed on many occasions subsequently. She said:-
“What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the board’s decision was invalid. In order for a ground to be substantial, it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are” substantial”. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial”.
As I have already pointed out the applicant wishes to apply for leave to seek certiorari against the decision to grant planning permission of 3rd August, 2004, or alternatively the decision of the Town Council of 25th June, 2004, whereby, it decided that the further information submitted on behalf of Coverfield did not contain significant additional data. It is accepted by the applicant that the only basis upon which the decision to grant planning permission can be criticised is by reference to the decision of the 25th June, 2004. It is argued that if the decision of 25th June, 2004, is invalid then it must follow that the decision to grant permission is likewise invalid.
It was suggested on the part of the applicant that whilst the application for leave to apply for certiorari against the decision to grant permission undoubtedly fell within the ambit of s. 50, the application for leave to apply for certiorari in respect of the decision of 25th June, 2004, did not. It was said that it fell to be decided by reference to ordinary judicial review principles and that the threshold of arguable case identified by the Supreme Court in G. v. D.P.P. [1994] 1 I.R. 374 was all that had to be achieved.
I rejected that submission at an early stage in the hearing for reasons which I enunciated then. I took the view that it was quite clear that the whole thrust and ambition of these proceedings was to quash the decision of 3rd August, 2004. As the applicant was quite plainly questioning the validity of the decision to grant planning permission he could not avoid or evade meeting the necessary threshold of proof required under s. 50 of the Planning and Development Act, 2000. Indeed as I pointed out in giving my ruling on this topic, if the applicant were correct in his submission in this regard an absurd result could be achieved which would be entirely contrary to the letter and intent of s. 50.
Accordingly, as I ruled at the outset it is necessary for the applicant to demonstrate substantial grounds for contending that the decisions which he impugns in these proceedings are invalid or ought to be quashed.
As the only criticism which is made concerns the decision of Mr. Ewbanks of the 25th June, 2004, it is to that and the regulations under which it was made that I now turn.
THE REGULATIONS
Article 33 of the Planning and Development Regulations, 2001 insofar as it is relevant provides as follows:-
“33 (1) Where a planning authority acknowledges receipt of a planning application in accordance with Article 26, it may, by notice in writing, within eight weeks of receipt of the planning application require the applicant –
(a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land), which the authority considers necessary to enable it to deal with the application, or
(b) to produce any evidence which the authority may reasonably require to verify any particulars or information given in or in relation to the application.”
Article 35 provides as follows:-
“35 (1) Where a planning authority receives further information or evidence following a request under Article 33, or revised plans, drawings or particulars following a request under Article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to the application, and it considers that the information, evidence, revised plans, drawings or particulars received, as appropriate, contain significant additional data, including information in relation to effects on the environment, the authority shall –
(a) send notice and a copy of the further information, evidence, revised plans, drawings or particulars to any person or bodies specified in Article 28 as appropriate – …. and
(b) notify any person who made a submission or observation in relation to the planning application in accordance with Article 29 (1), as soon as may be following receipt of the further information or evidence or revised plans, drawings or particulars, as appropriate indicating…
(c) require the applicant to publish a notice in an approved newspaper, containing as a heading the name of the planning authority, marked ‘Further Information’ or ‘Revised Plans’, as appropriate and stating –
(i) the name of the applicant,
(ii) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(iii) the reference number of the application on the register,
(iv) that significant further information or revised plans, as appropriate, in relation to the application has or have been furnished to the planning authority, and is/or are available for inspection or purchase at a fee…
(v) a submission or observation in relation to the further information or revised plans may be made in writing to the planning authority on payment of the prescribed fee.”
MR. EWBANKS DECISION (2)
It is clear that Mr. Ewbanks decision that the further information supplied by Coverfield did not contain significant additional data was made pursuant to Article 35 (1). The applicant accepts that in making that decision Mr. Ewbanks was exercising a discretion vested in the Town Council under the regulations. However, he contends that there was significant additional data in Coverfield’s response to the request for further information and that the decision made by Mr. Ewbanks was made irrationally and unlawfully.
A consideration of articles 33 and 35 makes it clear that the mere fact that additional information is requested under article 33 does not mean that such information must be advertised and circulated to other parties under article 35. It is only when such information contains significant additional data that the procedure of advertisement etc. prescribed in article 35 applies.
The decision as to whether the information obtained on foot of an article 33 request contains significant additional data is one for the planning authority. “Significance” is primarily a matter of planning expertise to be decided upon by the planning authority.
This Court, in exercising its judicial review jurisdiction, is not a court of appeal on the merits from the exercise by a planning authority of its statutory function. I decline the invitation extended to me by counsel for the applicant to sit in the chair of Mr. Ewbanks and decide for myself whether or not the information supplied by Coverfield on foot of the article 33 request contained significant additional data. He contends that I would be in just as good a position as Mr. Ewbanks to make such a decision.
The acceptance of such an invitation would be a usurpation of the power of the Town Council. I remind myself of the observations of Lord Brightman in R. v. Chief Constable of North Wales Police ex parte Evans [1982] 1 WLR 1155 at pp. 1173 to 1174 where he said:-
“Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.…[j]udicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made”.
I quoted that statement in Flood v. Garda Síochána Complaints Board [1997] 3 IR 321 and I went on to say at p. 346:-
“Even if this Court would have reached a conclusion different from that of the respondent, it is not entitled on judicial review to substitute its view in that regard for the one formed by the entity charged by statute with forming the appropriate opinion. This limitation on the power of judicial review must be borne in mind so as to ensure that this Court does not trespass on matters in respect of which it has neither competence nor jurisdiction. I would not be justified in interfering with the decision of the respondent merely on the grounds that on the facts presented to it, I would have reached different conclusions. Once I am satisfied (as I am) that the appropriate procedures were followed and that the decision impugned is not irrational, the decision of the respondent must be upheld”.
Those observations apply with equal force to this case and are supported by a recent dictum of Quirke J. in McEvoy v. Meath County Council [2003] I.R. 208 at 225 where he said:-
“In dealing with applications of this kind for judicial review of decisions of administrative and other bodies, the court is not concerned with the merits of the decision. It is concerned with the manner in which the decision-maker has exercised the power, i.e. the legality of the decision.
It is no part of my function in these proceedings to make any kind of determination in relation to conflicting views expressed by expert or other witnesses of the meaning or effect of the guidelines or as to their appropriate application by means of a development plan or otherwise. I am required to discover whether the respondent, when the making and adopting the Meath plan, informed itself fully and gave reasonable consideration to the guidelines with a view to accommodating the objectives and policies contained in them”.
The task of assessing whether “significant additional data” is contained in a response involves the exercise of planning expertise and judgment which this Court does not have and is precisely the kind of question which falls within the competence of an expert decision-maker. This Court can only interfere with such a decision within the strict limitations of its judicial review jurisdiction which I have already outlined.
The net question which falls for consideration at this stage is therefore whether or not the applicant has demonstrated substantial grounds in support of its contention that the decision of the Town Council of 25th June, 2004, was irrational.
THE TEST OF IRRATIONALITY
In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Finlay C.J. at p. 70 said this on the topic of irrationality:-
“The question arising on this issue falls to be decided in accordance with the principles laid down by this Court in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 which are set out in the judgment of Henchy J. in that case, with which in respect of the legal principles applicable, all the other members of theCcourt specifically agreed.
In dealing with the circumstances under which the Court could intervene to quash the decision of an administrative officer or tribunal on grounds of unreasonableness or irrationality, Henchy J. in that judgment set out a number of such circumstances in different terms.
They are:-
‘1. It is fundamentally at variance with reason and common sense.
2. It is indefensible for being in the teeth of plain reason and common sense.
1. Because the court is satisfied that the decision-maker has breached his obligation whereby he ‘must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision’.
I am satisfied that these three different methods of expressing the circumstances under which a court can intervene are not in any way inconsistent one with the other, but rather complement each other and constitute not only a correct but a comprehensive description of the circumstances under which a court may, according to our law, intervene in such a decision on the basis of unreasonableness or irrationality.
In setting out these principles, Henchy J. in the course of that judgment quoted with approval the statement of Lord Greene M.R. in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223 where, at p. 230, he stated:-
‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can intervene…; but to prove a case of that kind would require something overwhelming’.”
The applicant places heavy reliance upon the more recent decision of the Supreme Court in the case of White v. Dublin City Council [2004] 2 ILRM 509. He contends that both factually and legally the present case is similar in many respects to Whites and that the reasoning of the Supreme Court in it has equal application to the facts of the instant case.
WHITE’S CASE
The applicants and the notice party in White’s case owned adjoining houses situated adjacent to the Phoenix Park. The notice party sought planning permission to build a new two storey house on his land. The applicant’s rear garden lay to the east of the site of the proposed new house. The initial planning application was made in June, 1999 and the required public notice was given. The applicants, having consulted the drawings for the proposed new house and received advice from an architect, were satisfied that they would not be overlooked and therefore did not object to the application. Permission was refused for this development by the planning authority. The principal reason for so doing was because of the height and size of the proposed development.
A new application was lodged with the planning authority about six weeks after the refusal. The notice party sought planning permission in terms that were substantially similar to the first application. A meeting took place on site which was attended by the notice party, his advisors and some planning officials. He was invited to submit revised plans or drawings modifying the proposed development pursuant to article 35 of the Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994). The substance of the meeting was that the procedure under article 35 would be employed so that the notice party would modify the application in such a way as to be acceptable to the planning authority and that permission would be granted without appearing to conflict with the earlier refusal. Article 35 of those regulations did not require the publication of a fresh notice. However, article 17 (3) empowered a local authority where it considered it necessary to do so to require an applicant to give further notice. The local authority decided not to require the publication of a further notice in respect of the modified plans because in the view of the relevant planning officer the degree of overlooking arising out of the modified plans was acceptable. The result of the modifications however had the effect of re-orientating the windows of the development by 90° so that the applicant’s property was now overlooked. Revised drawings were submitted on behalf of the notice party and the decision to grant planning permission was made. The notice party informed the applicant that he had obtained planning permission and a few days later the applicant inspected the file to learn for the first time that modifications had been made to the drawings. The planning permission was quashed in the High Court. On appeal to the Supreme Court on this aspect of the case the leading judgment was delivered by Fennelly J.
In analysing the decision which was made by a Mr. Rose (who was a senior executive planner with the planning authority) to deal with the matter under the Article 35 procedure (which did not require re-advertisement) rather than by exercising the power under Article 17(3) to require new public notices Fennelly J. at pp. 517 to 518 said this:-
“Mr. Rose, in his internal written communication of January 25, 2000 to Mr. McDonnell made no reference to whether a new public notice should be required. He simply did not mention the matter. In his evidence, in the High Court, he said that it was a matter ‘for the judgment of the planning authority’ whether a new public notice was necessary. He did not ‘consider it necessary to re-advertise the proposed development’. He explained his reason for this conclusion very fully. It is sufficient, for the purposes of this appeal, to say that, on the central issue of ‘overlooking’, he did not consider the change to be significant. He laid stress on the village location of the development. There would be no greater degree of overlooking than might be expected in a suburban site. He concluded that the particular level of overlooking was acceptable.”
The White’s case was that the development envisaged in the original application would have contained no windows overlooking their property. The planning authority required that the application be modified so as to orientate windows in an easterly direction which indeed would overlook their property. They were unaware of the modifications which had the effect of re-orientating the windows so as to overlook their property because that modification had never been advertised.
In dealing with the legal issues Fennelly J. reiterated the test of irrationality as having been ‘propounded authoritatively’ in the judgment of Henchy J. in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 which dictum was, he said applied by Finlay C.J. in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237 “with particular force to planning decisions”.
He went on to say at pp. 523 to 524:-
“I would certainly be prepared to accept that the court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr. Rose were a substantive decision of the planning authority or of An Bord Pleanála to grant planning permission in spite of the degree of overlooking of the Whites property, in circumstances where the Whites had been on notice and whether or not they had objected, it would have been extremely difficult if not impossible to quarrel with it, still less judicially review it.
I believe, however, that Mr. Rose’s reasoning was flawed. He was, in reality, acting as if he was deciding whether permission should be granted. In considering whether the modified plans should be re-notified, he should rather have asked himself, in the circumstances of the application before the planning authority, whether some members of the public might reasonably wish to object to the plans as modified”.
Later he said at p. 524:-
“I do not say that the planning authority’s decision was irrational in the broad sense. Mr. Rose’s planning expertise is undoubted. I consider rather that Mr. Rose, on behalf of the planning authority, excluded from his consideration the likelihood that the Whites would want to object and that, if they did, the planning authority would have had to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and irrational. The planning authority created a dilemma for itself by requiring modifications in order to differentiate the second application sufficiently to justify a departure from the decision to refuse, but which would be, nonetheless, not sufficiently different to warrant a new public notice. This is a very fine line to tread. This factor is special to this case. It would not arise in every case of Article 35 modifications. Article 35 accords a substantial discretion to a planning authority and clearly envisages a wide range of cases in which modifications to a planning application should not require new public notices but the radical nature of the changes to the application in this case make it exceptional.”
It is quite clear that Whites case does not depart from the earlier decisions of the Supreme Court in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237. It does not create a new species of legal entitlement for this Court to interfere with decisions of inferior bodies or tribunals. Rather it applies the well established principles to the facts of the case. The decision of Mr. Rose was not deemed to be irrational in the broad sense. Rather, on what was described as the very particular circumstances of the case, it was unreasonable and irrational because he did not ask himself the relevant question and so “excluded from his consideration the likelihood that the Whites would want to object.” His failure to ask himself and therefore to answer the correct question made his decision irrational under the O’Keeffe v. An Bord Pleanála rubric.
THE PRESENT CASE
In this case (unlike White’s case) there can be no doubt but that the question posed to Mr. Ewbanks was the correct one. Ms. McDonnell’s memorandum of 25th June, 2004, could not have been clearer. She asked him to decide if the further information submitted the previous day in relation to the application contained significant additional data. Not merely that, but she went on to point out that if that were so then the planning authority must require Coverfield to publish notice of the new information and invite submissions or observations on it. She referred specifically to article 35 of the regulations. Faced with the dilemma of the correct question having been asked of Mr. Ewbanks, counsel on behalf of the applicant submitted that there was evidence that Mr. Ewbanks misunderstood it and therefore although the right question was posed to him he asked the wrong question of himself.
Incorrect self-interrogation can be a species of unreasonableness or irrationality. That was so even before the decision of the Supreme Court in White’s case. But where is the evidence of it here?
It is said to be found in the replying affidavit of Mr. Ewbanks sworn on 1st November, 2004. I do not propose to reproduce the affidavit in full but the following are pertinent averments from it.
At para. 14 Mr. Ewbanks said:-
“14. The information sought by way of a notice for further information was for the purpose of supplementing and clarifying information received with the notice party’s application and information in the possession of the respondent herein. I say and believe that the requirement of the respondent of the notice party to submit further information or evidence was reasonably necessary to enable the respondent to consider the notice party’s application for planning permission.
15. I beg to refer, in particular, to the belief averred from paragraph 12 of the affidavit of Christopher McGarry wherein it is contended that the response of the notice party to the notice for further information constituted a body of significant additional data. I say and believe that the notice party’s response did not contain significant additional data. In the circumstances that the respondent had determined that the notice party’s response did not contain significant additional data there is no statutory requirement on the respondent to inform the applicant of the receipt of additional information or to provide the applicant with the opportunity of commenting on the same.
16. I say and believe that all points of further information which were requested referred back to the notice party’s application, its drawings, EIS and other particulars. I beg to refer to the letters of representation received from the applicant and RPS McHugh on behalf of the applicant contained (sic) no issue of concern or objection which was reflected in the further information request. I further say and believe that the notice party’s further information reply elaborated and expanded upon information already present within the application and information contained within the retail study of County Louth and as such did not constitute significant additional data. I also say and believe that as none of the further information requested, or the notice party’s reply related to any of the issues of concern and objection raised in the said letters of representation submitted by and on behalf of the applicant, the notice party’s reply was not of significance to the applicant.”
I am unable to glean from this replying affidavit of Mr. Ewbanks any support for the notion that he had misunderstood the question posed to him in Ms. McDonnell’s memorandum of 25th June, 2004, or that he asked himself the wrong question in respect thereof.
I am therefore not satisfied that the applicant has made out substantial grounds for contending that the decision of 25th June, 2004, is irrational by reference to Mr. Ewbanks failing to ask himself the correct question.
There remains the question of whether the applicant has demonstrated substantial grounds for interfering with Mr. Ewbanks decision on the basis that it is not supported by reference to the information which was before him. In other words did he, on the basis of the information placed before him, come to a conclusion in respect of which there are substantial grounds for believing was fundamentally at variance with reason and common sense or was indefensible for being in the teeth of plain reason and common sense or in respect of which he breached his obligation not to flagrantly reject or disregard fundamental reason or common sense in reaching the decision?
I am satisfied that the applicant has failed to show substantial grounds to lead to an affirmative answer to this question.
The context in which the additional information was sought by the Town Council must be considered. Retail planning guidelines existed at the time when Coverfield made its application. Those guidelines deal, at paras.85 to 88, with factory outlet centres. Paragraph 88 acknowledges that the market potential is such that only a limited number of factory outlet centres are sustainable within Ireland. They furthermore indicate that applications for permission should be considered in accordance with para.65 of the guidelines. That paragraph states that the onus is on the applicant to demonstrate compliance with the development plan, and requires the applicant to address six criteria. There is no requirement under the guidelines to submit a document called a “Retail Impact Assessment”.
The purpose of the guidelines is set out at para.1 thereof which states:-
“These retail planning guidelines provide a comprehensive framework to guide both local authorities in preparing development plans and assessing applications for planning permission and, retailers and developers in formulating development proposals.”
Paragraph 57 of the guidelines under the heading of “Assessing New Developments – General Principles” states:-
“The intention of these guidelines is that development plans should provide the background guidance and context against which the retail sector and developers can prepare proposals with a degree of certainty as to the way in which any particular scheme will be judged. Where an application for development complies with the policies and proposals of a development plan in all material respects, it should not be necessary for the applicant to provide additional supporting background studies. However, the onus is on an applicant to demonstrate convincingly that his/her proposal does comply closely with the development plan. Where there is doubt on any aspect of a planning application, local authorities should require a detailed justification related to the matter which is questionable. All applications for retail developments should be assessed against the principles set out in this section of the guideline”.
The question of the location of a factory outlet had been addressed in considerable detail both in the Louth County development plan and the Dundalk and Environs development plan, 2003/2009. It is clear that the location of a factory outlet centre in County Louth had been the subject of a number of planning applications over a period of five or six years and a detailed study had been done at the behest of the County Council in this regard. That study had identified the northern outskirts of Dundalk as the preferred location for such a centre. The county development plan demonstrates that a retail study for County Louth had been produced in accordance with the retail planning guidelines and had recommended a factory outlet centre should be located in County Louth. The Dundalk and Environs development plan of December, 2003 stated:-
“The retail study recommends that the most appropriate location is one which relates to the existing built up area of the town, preferably within the urban area of Dundalk. One which is also far enough away from the existing town centre so that it does not directly compete, but with good public transport links to the town centre.”
It went on to say that:-
“If there is no brownfield site suitable for development, it is recommended that the council should adopt an area of search for a factory outlet centre to the north of Dundalk urban area. The development will be subject to the strict conditions set out within the development plan, policy and retail strategy of County Louth.”
The location for the development in suit satisfies these criteria. The environmental impact statement demonstrated the absence of any suitable brownfield site and the compliance of the present site with the criteria set out in the retail study and the Dundalk and Environs development plan. Coverfield was not obliged or required to submit a retail impact study or assessment in the circumstances.
The Overarching EIS Document contained detailed information in respect of retail impact. It addressed the requirements of the retail planning guidelines. All of the further information which was sought was in respect of matters referred to in the EIS Overarching Document. The information submitted on foot of it is in direct response to the questions posed.
Considering the information furnished in the context of the request made and the overall planning background I am of opinion that the applicant has not demonstrated substantial grounds for contending that there was no reasonable or rational basis upon which Mr. Ewbanks could come to the conclusion which he did.
This is sufficient to dispose of the present application. It is however I think desirable that I should express my view on one of the two other grounds which were raised in opposition to this application.
ADEQUATE ALTERNATIVE REMEDY
The applicant has an entitlement to appeal the decision to grant planning permission on 3rd August, 2004, to An Bord Pleanála. He has exercised that right. No steps have been taken by him to seek to stay that appeal.
There can be little doubt but that the court is entitled on an application for leave to apply for judicial review to take into consideration the existence of an adequate alternative remedy. In G. v. D.P.P. [1994] 1 I.R. 374, Finlay C.J. at pp. 377 to 378 said:-
“It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-…. (e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.”
That decision was given in the context of ordinary or, as it sometimes called, non-statutory judicial review. The provisions of s. 50 of the Planning and Development Act, 2000 impose more stringent procedural requirements than those envisaged in G. v. D.P.P. The requirement therefore that an applicant demonstrate that judicial review is the only or a more appropriate remedy than another one available applies with at least equal if not more force to a s. 50 application. Support for that approach may also be found in s. 50 (3) of the Act where it provides:-
“The Board or any party to an appeal or referral, may, at any time after the bringing of an application for leave to apply for judicial review of a decision of the planning authority, apply to the High Court to stay the proceedings pending the making of a decision by the Board in relation to the appeal or referral concerned, and the Court may, where it considers that the matter is within the jurisdiction of the Board, make an order on such terms as it thinks fit.”
In response to Coverfield’s argument that in the present case not merely was there an adequate alternative remedy, but it had actually been invoked by the applicant, counsel sought to draw a distinction between issues of law appropriate for judicial review and issues of planning merit for appeal to An Bord Pleanála. I do not think that that distinction is one which is consistent with the jurisprudence which has been built up on this topic. Furthermore, I think it is fair to say that many of the grounds of appeal in objecting to the planning permission in the present case relate to the legal validity of it.
The test which appears to emerge from the decided cases is not one which involves the creation of the somewhat artificial distinction between issues of law appropriate for judicial law and issues of planning merit for appeal to An Bord Pleanála. Rather it is – what is the more appropriate remedy for the applicant’s complaints or to put it in the converse fashion will the applicant suffer any injustice if left to his remedy before An Bord Pleanála?
In The State (Abenglen) v. Dublin Corporation [1984] I.R. 381, O’Higgins C.J. at 393 said:-
“The question immediately arises as to the effect of the assistance of a right of appeal or an alternative remedy on the exercise of the courts discretion. It is well established that the existence of a right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all of the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant.”
In his judgment of the same case Henchy J. at pp. 403 to 404 said:-
“The second reason why I would refuse to quash the respondent’s decision, even if it were made in excess of jurisdiction, is that the correct procedure for the correction of the legal errors complained of lay in an appeal to An Bord Pleanála (the Board). The statutory scheme for making applications for development permission to the relevant planning authority provides for the giving of prior notice, as prescribed, to the public; compliance with the requirements of the regulations; allowing interested parties to make representations by way of objection or otherwise; requiring the planning authority to deal with the application within the given time and according to prescribed standards; requiring that the decision shall contain prescribed essentials; allowing an appeal from the planning authority’s decision to the Board, who may hold oral hearings, who are not bound to comply with the development plan… and who may refer a question of law to the High Court… and the removal of the Board’s decision from the reach of certiorari or other legal proceedings questioning its validity unless such proceedings were brought within two months of the giving of the Board’s decision… Those and other features of the Acts envisage the operation of a self-contained administrative code, with resort to the courts only in exceptional circumstances.
The present case does not seem to me to exhibit the exceptional circumstances for which the intervention of the Courts was intended. On the contrary, certiorari proceedings would appear to be singularly inapt for the resolution of the questions raised by Abenglen. Certiorari proceedings, based as they are on affidavit evidence, can result only in a stark and comparatively un-illuminating decision to quash or not to quash; whereas an appeal to the Board would have allowed all relevant matters to be explored (if necessary, in an oral hearing, with the aid of experts in the field of planning), thus allowing an authoritative exposition to have been given of the appropriate practice and procedure, aided, if necessary, by reference to the High Court on a question of law.”
That approach was followed by Barron J. in McGoldrick v. An Bord Pleanála
[1997] 1 I.R. 497 at p. 509 where he said:-
“The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedies. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the question raised on principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities referred to shows that this in effect, the real consideration.”
In my view the applicant has in his right of appeal to An Bord Pleanála not merely an adequate but a preferable remedy to that which is sought here. I do not perceive that these proceedings display any of the exceptional characteristics which would justify the court in intervening in the self-contained planning process. Thus were it necessary I would be inclined to refuse this application on the basis of the existence of an adequate alternative remedy. Given that the applicant has availed himself of that right my inclination to refuse would be all the stronger.
As I have already concluded that no substantial grounds have been shown for arguing in favour of the irrationality or unreasonableness of the decision of 25th June, 2004 it is not necessary for me to decide this case on the basis of the existence of an alternative and adequate remedy to judicial review.
The third basis of objection made by counsel for Coverfield related to the conduct of the applicant in respect of these proceedings and the information placed before the court by his affidavit evidence. In the circumstances it is not necessary for me to make any findings or express any views on this topic.
CONCLUSIONS
For the reasons already stated I am not satisfied that the applicant has demonstrated the substantial grounds required under s. 50 in order for the court to grant leave to bring these judicial review proceedings. Leave to bring the proceedings is refused and the application is dismissed.
O’Brien -v- An Bord Pleanala
O’Brien v An Bord Pleanála (No. 1) [2017] IEHC 510
JUDGMENT of Ms. Justice Costello delivered on the 24th day of July, 2017
1. On the 24th April, 2017 Mr. Justice Noonan granted the applicants leave to seek judicial review of a decision of An Bord Pleanala dated the 2nd March, 2017, granting the notice party substitute consent for a wind farm at Garranure, Kilvinane and Carrigeen, Ballynacarriga, Dunmanway, County Cork and that the decision be stayed until the determination of the application for judicial review or until further order. He granted liberty to apply on 48 hours notice to either vary or discharge the stay.
2. On the 2nd March, 2017 An Bord Pleanala (“the Board”) granted the notice party substitute consent pursuant to s. 177K of the Planning and Development Act 2000 as amended (“the Act”) in respect of the wind farm as constructed at the lands at Kilvinane as to the dimensions and location of the three existing wind turbines.
3. The notice party applied to lift the stay granted by Noonan J. so that it may operate the wind farm pursuant to the substitute consent pending the determination of these judicial review proceedings. The applicants opposed the application. The matter was heard by me on the 18th July, 2017, and this is my decision on the application.
Background
4. The background to the application is complex and goes back to an initial grant of planning permission for the wind farm at Kilvinane in 2002. On the 16th March, 2016 the Court of Appeal in proceedings entitled Bailey v. Kilvinane Wind Farm Ltd [2016] IECA 92 delivered a detailed judgment in respect of proceedings brought by Mr. Bailey pursuant to s. 160 of the Act against the wind farm operated by the respondent in those proceedings. I do not propose to repeat the facts therein set out though I reproduce a chronology of the event as follows:
26th September, 2001 Cork CC (“the Council”) decides to grant planning permission for wind farm
19th July, 2002 An Bord Pleanala (“the Board”) grants planning permission for wind farm.
23rd May, 2003 Council writes confirming it has no objection to proposed blade length increase.
29th August, 2005 Council writes to Notice Party indicating it has no objection to modification.
13th June, 2006 Wind farm connected to the National Grid.
3rd October, 2006 Council writes to Notice Party indicating that revised turbine locations and blade length extensions are acceptable.
8th November, 2006 Wind farm commences commercial operations.
10th November, 2010 Notice Party lodges new planning application to replace turbines and construct further turbine.
21st June, 2011 Council decides to grant planning permission for further development.
26th May, 2011 Council determines Applicants’ Section 5 reference – erection of turbines constitutes exempted development on the basis that modifications are not material.
7th November, 2011 Notice Party lodges planning application to replace two turbines (T3 and T4)
23rd December, 2011 Board decides on referral of Section 5 reference that the development did not constitute exempted development.
10th January, 2012 Council refuses application to replace turbines T3 and T4
20th February, 2012 Kilvinane Wind Farm Limited given leave to challenge Board’s Section 5 decision by judicial review (proceedings adjourned generally on 11th December 2012).
14th May, 2012 William Bailey institutes proceedings under Section 160.
6th November, 2012 Board refuses application to replace turbines T3 and T4.
17th December, 2012 Notice Party granted leave to challenge Board’s decision refusing application to replace turbines T3 and T4; proceedings adjourned generally.
13th November, 2013 Section 160 application refused by High Court.
2nd December, 2013 Mr. Bailey appeals to the Court of Appeal.
27th May, 2014 Notice Party applies for leave to apply for substitute consent.
February, 2015 Applicants move house.
21st April, 2015 Board grants Notice Party leave to apply for substitute consent.
14th October, 2015 Notice Party applies for substitute consent.
16th November, 2015 Applicants make submission to Board.
16th March, 2016 Court of Appeal delivers judgment and holds that turbines, as constructed, are unauthorised development. Order granted restraining operation of turbines. Order granted requiring dismantling of turbines stayed pending the outcome of the application for substitute consent.
17th June, 2016 Kilvinane Wind Farm Limited granted leave to appeal to the Supreme Court.
3rd June, 2016 Board requests submission of revised remedial EIS.
29th July, 2016 Revised remedial EIS submitted to the Board.
16th September, 2016 Applicants make further submission to the Board.
2nd March, 2017 Board grants substitute consent.
22nd March, 2017 Supreme Court vacates Court of Appeal Order; makes an order directing the dismantling of the turbines subject to an indefinite stay, an order restraining the use of the turbines for a period of three months; and adjourns the appeal generally with liberty to re-enter the proceedings to either vacate the orders made or proceed with the appeal.
24th April, 2017 Applicants institute these proceedings and obtain a stay on the substitute consent order, until the determination of the application for judicial review or until further order.
29th May, 2017 Proceedings entered into the Commercial List.
4th June, 2017 Supreme Court refuses application by Mr. Bailey to restrain the operation of the turbines for a further period.
5. As of the 2nd March, 2017, the substitute consent granted by An Bord Pleanala permitted the operation for the wind farm at Kilvinane. The grant of the substitute consent meant that the stay granted by the Court of Appeal on its order directing the dismantling of the turbines and the restoration of the site was to continue for a period of eight weeks from that date with liberty to the parties to apply to the Court of Appeal or the Supreme Court within the eight weeks period in relation to the stay or to vacate the order of the Court of Appeal. This shows that the Court of Appeal was of the view that its order in relation to the s. 160 proceedings would be spent if substitute consent was granted by An Bord Pleanala. The stay for the period of eight weeks after the grant of substitute consent was to allow for any judicial review proceedings that might be brought in respect of the decision to grant a substitute consent.
6. On the 22nd March, 2017, the respondent’s appeal in the s. 160 proceedings was listed for hearing before the Supreme Court. As the Board had granted substitute consent on the 2nd March, 2017, the Supreme Court vacated the order of the Court of Appeal and substituted an order of the Supreme Court which inter alia restrained the use of the turbines until the 21st June, 2017. Accordingly, under the terms of the order the Supreme Court as of the 21st June, 2017 the notice party was lawfully entitled to operate the wind farm pursuant to the substitute consent. It should be noted that the Supreme Court refused the application of Mr. Bailey to extend its order restraining the use of the turbines on the 14th June, 2017.
7. Thus it is the stay of Noonan J. granted on an ex parte basis when he granted leave to the applicants to seek judicial review of the decision of An Bord Pleanala of the 2nd March, 2017, alone which prevents the notice party from lawfully operating the wind farm in accordance with the substitute consent and the conditions therein set out.
8. Section 177O of the Act provides that a grant of substitute consent shall have effect as if it were a planning permission and where a development is being carried out in compliance with a substitute consent or any condition of such consent it is deemed to be authorised development.
Onus of Proof
9. The first issue to be considered is whether the notice party as the moving party carries the onus of establishing that the stay ought to be varied or discharged or, whether the applicants, as the parties who sought and obtained the stay on an ex parte basis, bear the burden of justifying the retention of the stay. In McDonnell v. Brady [2001] I.R. 588 the Supreme Court had to consider this issue. Chief Justice Keane stated at p. 598:-
“There seems no reason in logic why the applicant, where the grant of the stay is subsequently challenged, should not be under an onus to satisfy the court that it is an appropriate case in which to grant such a stay.
Since, however, the finding by the learned High Court Judge that the onus was upon the respondents to satisfy him that the stay should be discharged was not challenged in this court, I proceed to consider the case on that basis.”
10. McDonnell v. Brady was not decided on the basis that the onus lay on the applicant to satisfy the court that it is an appropriate case in which to grant a stay where the stay granted has been challenged but clearly Keane C.J. was of the opinion that this was the appropriate approach as a matter of principle.
11. In Powerteam Electrical Services Ltd v. ESB [2016] IEHC 87 I held that the onus of establishing that a stay should be maintained in circumstances where an application had been brought to lift the stay lay on the applicant. However, this was based upon the express requirements of the regulations under consideration in the context of a public procurement. It is not authority for the broad proposition that when a party seeks to discharge or vary a stay obtained on an ex parte basis by another party, the onus of proof rests upon the party who obtained the stay to satisfy the court that it is an appropriate case in which to grant such a stay.
12. Many of the authorities refer to the fact that the issue whether to grant a stay in judicial review proceedings is to be approached upon the same principles as the grant of an interlocutory injunction. To my mind, this means that the obtaining of a stay on an ex parte application is comparable to the obtaining of an interim injunction. A party who obtains an interim injunction nonetheless bears the onus of satisfying the court that it is entitled to an interlocutory injunction and the onus does not lie on the party subject to the interim injunction to establish reasons why it ought to be discharged or varied. I approach this decision on the basis that the onus rests upon the applicants to establish that the stay should be continued until the determination of the proceedings.
The Authorities
13. The parties were agreed that the test to be applied whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings is set out by Clarke J. in the Supreme Court decision of Okunade v. Minister for Justice [2012] 3 IR 152 at para. 104: –
“As to the overall test I am of the view, therefore, that in considering whether to grant a stay or an interlocutory injunction in the context of judicial review proceedings the court should apply the following considerations:-
(a) the court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;
(b) the court should consider where the greatest risk of injustice would lie. But in doing so the court should:-
(i) give all appropriate weight to the orderly implementation of measures which are prima facie valid;
(ii) give such weight as may be appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and,
(iii) give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;
but also,
(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.
(c) in addition the court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages; and,
(d) in addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant’s case”.
It is also important to bear in mind Clarke J.’s observations in paras. 92 to 95 of the judgement where he stated as follows: –
“However, there is a further feature of judicial review proceedings which is rarely present in ordinary injunctive proceedings. The entitlement of those who are given statutory or other power and authority so as to conduct specified types of legally binding decision making or action taking is an important part of the structure of a legal order based on the rule of law. Recognising the entitlement of such persons or bodies to carry out their remit without undue interference is an important feature of any balancing exercise. It seems to me to follow that significant weight needs to be placed into the balance on the side of permitting measures which are prima facie valid to be carried out in a regular and orderly way. Regulators are entitled to regulate. Lower courts are entitled to decide. Ministers are entitled to exercise powers lawfully conferred by the Oireachtas. The list can go on. All due weight needs to be accorded to allowing the systems and processes by which lawful power is to be exercised to operate in an orderly fashion. It seems to me that significant weight needs to be attached to that factor in all cases. Indeed, in that context it is, perhaps, appropriate to recall what was said by O’Higgins C.J. in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88. At p. 107 of the report he said the following:-
“The order which is challenged was made under the provisions of an Act of the Oireachtas. It is, therefore, on its face, valid and is to be regarded as a part of the law of the land, unless and until its invalidity is established. It is, and has been, implemented amongst traders in fuel, but the appellant plaintiffs have stood aside and have openly defied its implementation.”
It is clear, therefore, that the apparent prima facie validity of an order made by a competent authority was a factor to which significant weight was attributed. While the comments of O’Higgins C.J. were directed to a ministerial order made under an Act of the Oireachtas it seems to me that there is a more general principle involved. An order or measure which is at least prima facie valid (even if arguable grounds are put forward for suggesting invalidity) should command respect such that appropriate weight needs to be given to its immediate and regular implementation in assessing the balance of convenience.
[93] It is also, in my view, appropriate to take into account the importance to be attached to the operation of the particular scheme concerned or the facts of the individual case in question which may place added weight on the need for the relevant measure to be enforced unless and until it is found to be unlawful.
[94] That is not to say, however, that there may not also be weighty factors on the other side. It is necessary for the court to assess the extent to which, in a practical way, there is a real risk of injustice to an applicant for judicial review in being forced to comply with a challenged measure in circumstances where it may ultimately be found that the relevant measure is unlawful. The weight to be attached to such considerations will inevitably vary both from type of case to type of case and by reference to the individual facts of the case in question.”
14. These principals were applied in two judgments given in the case Callaghan v. An Bord Pleanala . This was in fact the second judicial review proceedings brought by Mr. Callaghan against An Bord Pleanala and related to proposals to develop a wind farm in County Meath. The first judgment was that of Binchy J. delivered on the 21st July, 2016 [2016] IEHC 488. He applied the test set out in Okunade to the facts of the application before him. In relation to the question “where does the greatest risk of injustice lie?” he held as follows: –
“(i) How will a stay affect the orderly implementation of a measure which is prima facie valid?
In the particular circumstances of this case, the continuation of the stay will delay the effect of the impugned decision of the Bord until such time as the Court of Appeal delivers its decision following the hearing on 4th October, 2016. It is not unreasonable to expect that the decision of that court in the matter will not issue forth until some time afterwards, perhaps in early 2017. The overall delay, therefore, (from the time of the granting of the initial stay on 23rd May, 2016) is likely to be between seven and eight months. In my view, therefore, if the stay is continued, it will impact significantly upon the orderly implementation of an administrative measure, which it may be observed was designed to speed up the planning process for development qualifying as SID.”
15. Having considered the factors identified in Okunade, he concluded that the greatest risk of injustice lay in the continuation of the stay. He also, separately felt it was desirable to address the balance of convenience as between the parties. In paras. 29 and 30 of his judgment, he balanced the losses which the notice party had identified were directly attributable to the stay with the position of the applicant. He then made an order varying the stay by permitting the notice party to submit a planning application to the Board with a stay upon the delivery of a decision by the Board upon any planning application received from the notice party up until the date of delivery of the decision of the Court of Appeal in the first Callaghan litigation which would have the effect of determining these proceedings in favour of the applicant if it were successful on the appeal.
16. The Court of Appeal rejected the appeal on the certified point of exceptional importance in the first Callaghan proceedings and the applicant applied to the Supreme Court for leave to appeal. The notice parties applied to the High Court in the second Callaghan proceedings to vary the order of Binchy J. staying the delivery of the decision of the Board on the planning application of the first named respondent. In fact, the stay had expired as the Court of Appeal had delivered its decision. I so held in my judgment on the 15th May, 2017 [2017] IEHC 312. I also considered the application on its merits applying the principles set out in Okunade. As in the first Callaghan stay judgment of Binchy J., the critical issue was where the greatest risk of injustice lay. The sole consequence for the applicant in the event that the stay was lifted and the Board was in a position to issue its decision was that he would have to issue fresh judicial review proceedings with a view to obtaining an order quashing any decision of the Board if it granted planning permission to the notice parties for the proposed development. I held that this did not amount to a very grave prejudice as, if he were successful in his appeal before the Supreme Court, the Board and the notice parties indicated that any such future judicial review proceedings would effectively not be contested.
17. As against this, the notice parties identified significant commercial risks if the Board was not in a position to deliver its decision on the planning application until the outcome of the Supreme Court appeal on the single certified point remaining in the original Callaghan proceedings. The notice parties identified many necessary steps which needed to be followed prior to the commencement of actual development and which could not commence until it was known whether or not the Board had decided to grant the notice parties planning permission and if so upon what terms. They would not be able to apply for authorisation to build a generation station. They would not be able to commence necessary pre-commencement negotiations with the planning authority. They would be delayed in finalising the designs. They would be delayed in obtaining approval from Eirgrid Plc in relation to the design for a grid connection. They would not be able to commence contract negotiations. They would be delayed in seeking finance until all other matters identified have been resolved. They might be disadvantaged by being unable to participate immediately in a proposed new support scheme for renewable energy generation.
18. I also placed emphasis upon the fact that the notice parties had carrying costs which involved incurring interest without earning income. It was certain that the stay alone would be holding up the progress of the development if the Board granted planning permission. I concluded therefore that this alone was sufficient to establish that a stay would result in additional costs and probably substantial costs to the notice parties. On this basis, I concluded that there was a greater risk of injustice in staying the Board further in the circumstances of the case and, had the stay not lapsed, I would have discharged the stay.
The Applicants’ Case for the Continuation of the Stay
19. The applicants plead at para. 38 of the Statement of Grounds that it would be just and equitable to grant a stay pursuant to O. 84, r. 20 (8) (b) of the Rules of the Superior Courts pending the final determination of the proceedings. In her affidavits sworn both to ground the application for leave to seek judicial review and in opposition to the application of the notice party to lift the stay on the operation of the wind turbines, Mrs. O’Brien detailed the damage she and her family suffered to their health and welfare. Their sleep was disturbed and they experienced a pulsing pressure in their heads and heard a grating/metallic drone/hum. Family life and relationships became very stressful. Mr. O’Brien was prescribed sleeping tablets which helped him get to sleep but which did not prevent him from waking during the night or early morning. Their three children complain of headaches and problems sleeping and noises in their heads. At para. 30 of her affidavit of the 21st April, 2017, she stated “over time the inevitable, pervasive and inescapable turbine noise undermined our quality of life and sense of well-being to the point we saw no alternative but to abandon our family home.” In February, 2015, they moved into an old damp unattractive farmhouse at Girlough which is about one kilometre further away from Kilvinane wind farm (i.e. about 1.5 km from the nearest turbine.) She acknowledged that the house at Girlough is quieter, but said her husband has no escape from the noise during his working day on the farm. At para. 35 she stated: –
“Even though the house at Girlough is further away from Kilvinane Windfarm, we still woke at night with a grating noise and pulsing pressure in our heads – though that has lessoned over time since we moved to Girlough. We believe that this is the effect of the low frequency noise that we have been exposed to for over ten years now. We cannot see ourselves moving back to our family home in Kilvinane due to the risk that the turbines will become operational.”
20. She says that since the turbines have been turned off in June 2016 there was a notable change for the better in their quality of life. Their sleep has improved and Mrs. O’Brien’s tinnitus has become much less of a problem.
21. In her affidavit of the 14th July, 2017, at para. 44, she stated that if the turbines are permitted to operate they know that the noise they experienced even in Girlough will return and with it health and sleep problems. At para. 46 she confirms that since the turbines were shut down she and her husband have given a farm worker accommodation in their family home. She states that if the turbines start up, they will once again be without habitable accommodation for their farm worker. It is clear that whatever the outcome of this application the applicants do not intend to return to live in their family home. They continue to occupy, albeit as a forced exile, a house that is 1.5 km distance from the wind farm.
22. In addition to this primary basis for retaining the stay, the applicants argue that if the court were to permit the notice party to operate the turbines this would have a detrimental effect on their faith in the regulatory and justice systems in this country. They submit that such an order in effect would reward the notice party for his illegal actions in the past for what they say was his flouting of the planning laws. It was submitted that it is deeply hypocritical for the notice party to assert the presumption of the validity of the substitute consent or the importance of the planning process in circumstances where, over ten years, the notice party and companies controlled by him and his wife operated a profitable wind farm which was an unauthorised development. They say this was particularly egregious once An Bord Pleanala held on the 23rd December, 2011, that the development was not exempted development and therefore was unauthorised. Nonetheless, the wind farm continued to be operated until the order of the Court of Appeal of June, 2016.
23. It was submitted that the court should discount the financial losses asserted by the notice party. He is the author of his own misfortune because he erected an unauthorised wind farm. He may not profit from his own wrongdoing. He has already profited while operating an unauthorised development. It was also asserted that he had not put adequate evidence before the court as to the losses which he asserts.
24. It was submitted that the court is engaged in an equitable balance in deciding where the greatest risk of injustice lies. In that regard it was urged that the prior illegal actions should be weighed in the balance against the relief sought by the notice party. Great emphasis was placed upon the judgment of the Court of Appeal in Bailey v Kilvinane Wind Farm Ltd [2016] IECA 92 where the court outlined the facts upon which it based its conclusions that the respondent had not acted reasonably or in good faith. It was also submitted that the court should preserve the status quo until the determination of the judicial review proceedings. The status quo is that the turbines were not operating and this should be maintained.
Submissions of the Notice Party
25. The notice party made submissions on the application of the Okunade principles to the present case. Solely for the purposes of this application, he accepted that the applicants met the first limb of the test in that they had raised a fair question to be tried or an arguable case. His submissions were principally directed towards the issue of where the greatest risk of injustice would lie.
26. First, he considered the asserted basis for the stay. The applicants’ complaints about the effects of the operation of the turbines relate to noise. He emphasised that the question of the noise impacts had been assessed by the expert and competent body, the Board, and it did not accept the case made on behalf of the applicants during the course of the substitute consent application to the effect that the turbines would have an unacceptable impact on residential amenity by virtue of noise.
27. Secondly, he noted that the Board has imposed a condition which requires that the noise at noise sensitive locations, including dwellings such as that formerly occupied by the applicant not exceed a level of40 dB(A) L A90. He notes that this is lower than that suggested by the currently applicable 2006 “Guidelines for Planning Authorities on Wind Energy Development” (“guidelines”) issued by the Department of the Environment, Heritage and Local Government.
28. Thirdly, he stated that the local authority has now confirmed its satisfaction with a robust noise compliance monitoring programme prepared and submitted by AWN Consulting on behalf of the Kilvinane wind farm and the results of that monitoring programme are also required, by the terms of condition no. 5 of the substitute consent, to be submitted to the local authority.
29. Condition no. 5 of the substitute consent, which governs noise impact, provides follows:
“Wind turbine noise at dwellings or other sensitive receptors shall not exceed 3E2W A90 externally. Within 3 months from the date of this order, the developer shall agree a noise compliance monitoring programme for the operational wind farm with the planning authority. All noise measurements shall be carried out in accordance with ISO Recommendation R 1996 ‘assessment of noise with respect to community response’ as amended by ISO Recommendation R 1996-1. The results of the noise compliance monitoring shall be submitted to, and agreed in writing with, the planning authority within six months from the date of this order, following agreement of the programme.
Reason: In the interest of residential amenity.”
Mr. Damien Kelly, acoustic engineer of AW Consulting stated in his affidavit sworn on the 15th June, 2017, that on the basis of his experience dealing with wind farms in Ireland, this condition is a more robust condition than that generally imposed in connection with planning permissions for wind farms in that the permitted noise level at dwellings and other sensitive receptors is lower than that typically stipulated. In response to my question during the hearing of the application, it was confirmed that this averment was not disputed.
30. The notice party emphasised that the implementation of the substituted consent pending the determination of the proceedings would not involve any new works as the substitute consent authorises the existing turbines both as to their size and location.
31. The notice party emphasised the significant financial effects of the stay. He averred that the total cost of the turnkey contract for the supply and erection of the three turbines was €4,843,802.80. The cost of connection to the electricity grid was €475,209. He says that the turbines operated from the 8th November, 2006, until the 8th June, 2016. During this period the debt associated with the capital cost of constructing the wind farm was serviced from the revenues generated by the sale of electricity to the national grid. From December, 2013 until the cessation of the operation of the turbines in June, 2016 the sale of electricity under a power purchase agreement with Airtricity yielded an average monthly revenue of circa €54,600.
32. These proceedings are listed for hearing on the 31st October, 2017. Between the 21st June, 2017 when the Supreme Court order restraining the operation of the turbines will lapse, and the hearing of the proceedings he says that in excess of €220,000 in revenue will be lost in the event that the stay is not discharged. At this point in time approximately €54,600 has already been lost as the application to lift the stay was only heard on 18th July, 2017. Therefore, on the notice party’s own case, what is at issue is a loss of approximately €164,000 up to the 31st October, 2017 and whatever further losses might accrue while judgment is awaited or pending further applications in the proceedings.
33. He says that notwithstanding the fact that the turbines will not be operating, fixed overheads will still be incurred. There are monthly payments associated with refinancing a loan of €7,300 and monthly wind farm insurance of payments of €1,302. An annual payment to ESB Networks for maintenance of the grid connection of approximately €10,000 is due in the final quarter of 2017. There are arrears of rates payable for 2016 and 2017 in the amount of €32,815. He says that the outstanding balance on the loan due to Kilvinane Wind Farms Ltd of €700,000 has been extended to 20th March, 2018. As things currently stand the sum will fall due for repayment in full on that date, though it has in the past been renegotiated. He and his wife have personally guaranteed the loan.
34. He also says that until March 2017 he was paid a salary of €11,133.21 per anum by Kilvinane Wind Farm Energy Ltd and his wife was paid a salary of €51,049.65 per anum by Kilvinane Wind Farm Ltd for the management and administration of the Kilvinane wind farm. They have ceased being paid these salaries in March, 2017 because of the lack of revenue coming into the company since June, 2016 and other continuing outgoings referred to above.
35. He notes that the stay was granted without the applicants being required to provide an undertaking as to damages and therefore any losses incurred from the 22nd June, 2017 onwards in the event that the stay is not discharged or set aside cannot be recovered from the applicants if their application for judicial review is ultimately unsuccessful.
36. The notice party emphasised that the court was concerned with the period of time between the date of its decision and the outcome of the proceedings. It was submitted that the focus should be on the existing dispute and not on the prior history of the wind farm and the various planning applications and cases and judgments. He submitted that there was a greater risk of injustice if the stay remained in place on seven grounds.
37. In carrying out the balancing exercise the court must give significant weight to the “immediate and regular implementation” of a decision of the Board which is presumed to be valid. The Board’s decision to grant substitute consent is a final decision such that “but for” the existence of the stay the operation of the wind turbines could resume. He said that weight must accorded to the general public interest in the ordinary operation of the planning code.
38. He placed significant reliance by analogy on the decisions of Binchy J. and of my own in the two Callaghan cases cited above based on the fact that significant quantifiable and ongoing losses in the region of €54,600 per month were directly attributable to the stay. While the matter was scheduled for hearing on the 31st October, 2017, judgment will almost certainly be reserved and there can be no certainty as to precisely when judgment will be given or as to what further applications might be made thereafter.
39. He emphasised that no permanent or irreversible consequences would occur if the stay is lifted as no works require to be carried out. He emphasised that there was no undertaking as to damages in this case and the net consequence is that the losses which the notice party will suffer as a direct result of the stay being in place are not capable of compensation.
40. He disputed the arguments advanced by the applicants. He pointed out that the applicants had raised their concerns in relation to the noise generated by the wind turbines in their submissions to the Board as part of the substitute consent procedure. The Board was the expert body empowered to exercise the balance in relation to the interests of the applicant and of parties seeking planning permission. The Board decided to grant substitute consent having considered the issue of residential amenity including noise impacts. The Board imposed condition 5 for the benefit inter alia of the applicants in relation to noise impacts. If the stay were to be discharged and set aside and the operation of the turbines was to recommence, the noise limits established in condition 5 would apply.
41. It was argued that the previous planning history of the wind farm should not be taken into account in view of the fact that following a process of very significant public consultation the Board had granted the notice party substitute consent. This meant that the development was authorised. He submits on the basis of these points that the risk of injustice is greater if the stay is not vacated.
Discussion
42. In this judgment I am not concerned with the merits of the case (save the possible limited extent discussed below) and I am also not concerned with the merits of the decision of An Bord Pleanala. I acknowledge that there are diametrically opposed positions. One landowner has developed his land with a wind farm and wishes to operate the wind farm. His neighbour wishes to live in peace on a family farm in a family home without the intrusions from the operation of the wind farm and in particular the noise generated by the operation of the turbines. Feelings and emotions run high but they have no place in the decision I am required to make.
43. The test in Okunade is designed to assist the court to reach a just decision where there is a risk that the action or inaction of the court in retaining or discharging a stay may result in an injustice to one party to the proceedings, depending on the ultimate outcome of the action. I apply the four matters identified by Clarke J to the facts in this case.
44. “(a) The court should first determine whether the applicant had established an arguable case; if not the application must be refused…”
For the purposes of the application to lift the stay the notice party accepts that the applicants have established an arguable case.
45. “(b) The court should consider where the greatest risk of injustice would lie. In doing so the court should: –
(i) give all appropriate weight to the orderly implementation of measures which were prima facie valid;”
The grant of substitute consent is prima facie valid and accordingly this factor is one to which the court should give weight.
46. (ii) and (iii) of (b) do not arise for consideration on the facts of this case.
47. “(iv) give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful;”
I would add that all due weight should also be given to the consequences for the notice party as the party prohibited from acting upon the measure under challenge in circumstances where that measure may not be found to be unlawful. This arises particularly in the context of judicial review of planning decisions, such as this case, where objectors to the grant of planning permission apply for judicial review and the notice party who is in receipt of a grant of planning permission finds that the decision is stayed on the basis of an order obtained ex parte when leave to seek judicial review is granted and he therefore cannot act upon the grant of planning permission.
48. The applicants established that they suffered significant distress when they lived in their family home and that in effect they have been exiled from their family home by reason of noise generated by the wind turbines. There is less of an impact when they live in Girlough, though the noise of the turbine still impacts upon them. It obviously still continues to impact upon Mr. O’Brien when he works on the family farm and upon Mrs. O’Brien and their children when they go to the family farm.
49. On the other hand, the applicants do not intend to resume living in the family farm pending the outcome of these proceedings. Therefore, I have to assess the situation on the basis that they live 1.5 km from the nearest turbine where they accept that the impact of the noise from the turbines is less intrusive.
50. The guidelines note that noise is unlikely to be a significant problem where the distance from the nearest turbine to any noise sensitive property is more than 500 m. The home they actually occupy pending the determination of the proceedings is three times further away.
51. Mr. Kelly’s evidence was that condition 5 imposes a lower noise threshold than is typically stipulated in respect of wind farms in Ireland. This evidence was not contradicted. It implies that other wind farms lawfully operate generating a greater level of noise. The level set is considerably less than light traffic or conversational speech. Greatest emphasis was placed by the applicants on sleep disturbance which does not arise in relation to working on the farm.
52. The subjective faith of the applicants in or satisfaction or dissatisfaction with the justice or regulatory systems is not a proper factor for me to have regard in reaching my decision. I do not take this into account in reaching my decision.
53. The applicants ask the court to place significant weight upon the fact that the wind farm operated as an unauthorised development for ten years. They said that the notice party should not in effect be rewarded for flouting the planning laws. I believe that it is not appropriate to give any substantial weight to the prior unauthorised development which occurred in this case. This is not because the court condones the actions of the notice party or his companies. Quite clearly the Court of Appeal did not condone those actions and I do not do so. It is because of the nature of substitute consent.
54. Substitute consent is granted inter alia to regularise existing unauthorised developments which required an environmental impact assessment but which did not undergo the required EIA. Such developments are thus unauthorised. It is intended in appropriate cases, as assessed by An Bord Pleanala, to authorise and therefore legalise, developments which have been carried out and which were in fact unauthorised. It is a precondition to the issue of a substitute consent that there was a prior unauthorised development. The purpose of the grant of a substitute consent is to allow the development to continue as authorised development. Once substitute consent issues, the development becomes authorised and thus lawful (on the assumption that all other licenses and authorisations that may be required to operate the development have been properly obtained).
55. The applicants’ submissions in effect require the court to give significant weight to the fact that the wind farm operated as an unauthorised development as a matter of law at all times prior to 2nd March, 2017, notwithstanding the grant of substitute consent on 2nd March, 2017. I cannot approach this judgment on the basis that the applicants must succeed in these proceedings and therefore assume that the decision is invalid. On the contrary, it enjoys the presumption of validity. Therefore, the only basis upon which I can have regard to the prior unauthorised development is that notwithstanding the grant of substitute consent, it still has a lingering relevance. Counsel urged that this was based upon equitable principles. In effect, he argued that the notice party had not “done equity” and therefore was not entitled to equitable relief.
56. I cannot agree with this submission. The unlawful actions in relation to the wind farm have ceased. The notice party wishes to act in a lawful manner implementing a lawful decision which is prima facia valid. Frequently where applicants seek to quash grants of planning permission the courts do not restrain the developer from implementing the planning permission. As a matter of commercial prudence developers normally refrain from implementing the planning permission for fear that it may ultimately be quashed. This does not alter the fact that as a matter of practice the courts frequently did not impose a stay on the decision to grant planning permission in the circumstances. The principle is the same here, it is simply that the commercial imperative is in favour of acting on the decision rather than in favour of refraining from acting on the decision.
57. In the balance on the other side of the argument, two matters are of significant weight in my opinion. Firstly, the substitute consent enjoys the presumption of validity. The notice party is entitled to act upon the decision of the Board. In so acting no irrevocable or irreversible action will result as the decision does not require the carrying out of any works. It simply requires the restarting of the turbines.
58. Secondly, the developer is suffering significant, ongoing, uncompensatable, loss of revenue as a direct result of the stay remaining in place. This is uncontroverted, though the applicants contest the adequacy of the evidence adduced by the notice party. I am satisfied with the evidence adduced. A loan agreement has been exhibited and the notice party has indicated the average monthly payment received from Airtricity under a contract dated December, 2013. There is no suggestion that this is wildly inflated. In addition the notice party has identified significant carrying costs that arise whether the turbines are operating or not. The notice party and his wife have personally guaranteed the liability of Kilvinane Wind Farm Ltd in the sum of €700,000 which may be called in if the company cannot repay the loan or refinance the facility. The income of the company used to repay the loan is from power generation and clearly in the absence of power generation no income will be earned.
59. For these reasons on the facts in this case I concluded that the greatest risk of injustice lies in continuing the stay rather than in discharging it pending the outcome of the proceedings.
60. “(c) the court should, in those limited cases where it was relevant, have regard to whether damages were available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages”
The notice party accepts that having regarded the decision of the CJEU in Commission v. The United Kingdom (C-530/11) that to require an undertaking as to damages from the applicants may be legally problematic. As a result, it was accepted by both the applicants and the notice party that whatever losses the developer may suffer he cannot recover damages from the applicants. Thus, while damages could in the ordinary way compensate the notice party, as a matter of fact and law damages will not be available to the notice party and this is a factor to be weighted in favour of lifting the stay.
61. “(d) subject to the issues arising in the judicial review not involving detailed investigation of fact or complex questions of law, the court could place all due weight on the strength or weakness of the applicant’s case.”
In my opinion the issues of fact and law are detailed and complex and this is not a case in which it would be appropriate to weigh the strength or weakness of the applicants’ case in determining whether to lift or vary the stay.
62. Conclusion
In conclusion, in my opinion the greatest risk of injustice in this case lies in leaving the stay in place. The applicants have not discharged the onus of proving that the greatest risk of injustice lies in lifting the stay and therefore they have not established to my satisfaction that the stay should remain.
63. If I am incorrect in holding that the onus of proof rests on the applicants, nonetheless I am satisfied that the notice party has established that the greatest risk of injustice lies in leaving the stay in place. The factors I have identified in my opinion are weightier than those identified by the applicant. In reaching this conclusion I do not wish to minimise in any way the personal suffering of the applicants in relation to the noise generated by the turbines Neither am I deciding that their health and wellbeing is of no significance in comparison to the monetary losses identified by the notice party, as was submitted at the hearing of this application. This judgment makes clear that the decision is more nuanced and for the reasons I have outlined above I exercise my discretion to lift the stay in these proceedings.
Nestor v An Bord Pleanala & ors
[2018] IEHC 547 (05 October 2018)
JUDGMENT of Mr. Justice Noonan delivered on the 30th day of July, 2018
1. The applicant is the owner of property situated at 134 College Road, Galway City. The property consists of a three storey dwelling house together with three apartments to the rear. In 2013, the applicant applied to Galway City Council for planning permission to redevelop the property and to retain existing development. In a very brief summary, he proposed to convert the dwelling house into three new apartments and carry out alterations to the existing apartments with associated ancillary works. The application was approved by Galway City Council and against that approval the notice parties herein appealed to the respondent.
2. In its decision of the 3rd March, 2014, the respondent refused permission for the development for the following reasons and considerations stated in its decision:
“1. Having regard to the nature of development in the area, it is considered that the proposed front (north) elevation would be discordant in relation to nearby and neighbouring structures by reason of excessive height and inappropriate scale, particularly of the staircase feature. Furthermore, it considered that the proposal to locate balconies on the side (eastern) elevation, together with the window features already located in this elevation, overlook the neighbouring property and compromise future development of that property. It is considered that the proposed development would, therefore, seriously injure the residential amenities of properties in the vicinity and would be contrary to the proper planning and sustainable development of the area.
2. Having regard to the provision of private open space balconies at the side boundary overlooking a neighbouring property together with the narrow access arrangement serving six apartments, it is considered that the proposed development would constitute over development of the site, would therefore seriously injure the residential amenities of properties in the vicinity and would, therefore, be contrary to the proper planning and sustainable development of the area.”
3. The applicant sought leave to apply for judicial review to this court (McDermott J.) on 24th November, 2014. On that date the matter was adjourned and ex parte application for leave came on for hearing before Humphreys J. on the 3rd December, 2014, when it was refused. The applicant appealed to the Court of Appeal against this refusal and by its order made on 11th April, 2016, the Court of Appeal substituted its order extending the time to apply for judicial review and granted leave to the applicant to do so.
4. The applicant, who is a litigant in person, in his statement of grounds dated 24th November, 2014, raises the following issues:
1. The respondent’s inspector in her report on the application referred to the vehicular access to the rear car park as having a width of 1.3 metres when in fact it is at its narrowest 2.5 metres wide.
2. The inspector referred to the development not meeting a minimum floor to ceiling height of 2.7 metres specified in the building guidelines which relate to new buildings and not existing buildings as is the case here. The inspector treated this requirement as being mandatory rather than a recommendation.
3. The respondent should have issued a split decision granting the retention element.
4. The respondent failed to have regard to Galway City Council’s road section report which had no objection to the proposal.
5. In its statement of opposition, the respondent pleads that it is clear from the decision itself that it was not arrived at on the basis of vehicular access being 1.3 metres wide. It accepts that this is indeed an error but pleads that it is an obvious typographical error in circumstances where the actual width is approximately 2.3 metres. This is self-evident from the plans and from the fact that since the average car is 1.7 to 1.9 metres wide, to have 1.3 metres would provide no vehicular access rather than the “narrow” access referred to.
6. Further, the respondent denies that the floor to ceiling height and the guidelines in relation thereto had any bearing on the decision as is manifest from its terms. It further pleads that it is a matter for the Board to determine within its discretion whether a split decision is appropriate and decision to refuse related to the design of the site and not the issue regarding public roads.
7. In support of its opposition, an affidavit was sworn by Chris Clarke, the secretary of the respondent. Mr. Clarke agrees that the reference to the vehicular access being 1.3 metres wide is indeed incorrect but he believes this to have been a typographical error. He avers that from the drawings it can be determined that the width of the access is actually 2.3 metres. The Galway City Council planning report refers to a minimum of 2.1 metres and the applicant suggests that it is 2.5 metres but in any event, it is clear that the inspector’s measurement is wrong.
8. Mr. Clarke points to the fact that the Board is an expert body and would not be misled by the erroneous measurement. In particular, he says that it is entirely obvious that the inspector was aware of the correct size because a 1.3 metre passage would not accommodate even a standard domestic car which is 1.7 to 1.9 metres wide. The concern of the inspector was that the passageway was narrow but not that it was incapable of allowing a car to pass.
9. He disagrees with the applicant’s assertion that the 2007 Building Guidelines with regard to floor to ceiling heights do not apply but in any event confirms that the respondent did not rely on any issue in this regard in reaching its decision. Finally, he notes that no evidence is advanced by the applicant in support of the roads issue nor is he aware of any rule of law which would require the Board to give a split decision.
10. None of these averments are contradicted by the applicant who swore a subsequent affidavit on the 29th January, 2018 exhibiting a report from Mr. Padraic Hession, consulting engineer, who was responsible for the original design of the development and the planning application. Mr. Hession’s report covers a wide range of issues, the vast majority of which are entirely unrelated to the applicant’s statement of grounds upon which the Court of Appeal granted leave to seek judicial review. To that extent, it is irrelevant to this application. Fundamentally therefore, the applicant’s contention is that the respondent’s decision was arrived at unlawfully by virtue of errors of fact, the first being that the width of the vehicular access was incorrect and the second that the Guidelines regarding floor to ceiling height applied.
11. The onus of proving that the decision was arrived at unlawfully rests at all times upon the applicant and it seems to me that the uncontroverted evidence in this case is that, first, the respondent was not in any way misled by the erroneous measurement and second that the decision was entirely unrelated to any issue regarding floor to ceiling height. As matters stand therefore, I cannot discern any evidential basis for the suggestion that factual errors were made by the respondent which vitiated its decision.
12. The hurdle to be crossed by any applicant seeking to judicially review the decision of a planning authority alleged to have based its decision on erroneous facts and thus acted irrationally, is a high one as explained in the seminal decision in O’Keeffe v. An Bord Pleanala [1993] 1 I.R. 39 where Finlay C.J. said (at p. 72):
“I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally in the sense which I have outlined above so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.”
13. In my view, the applicant has fallen well short of establishing this criterion. There is no evidence before the court that the respondent arrived at its decision on the basis of either failing to take a relevant consideration into account or taking an irrelevant consideration into account.
14. The threshold to be crossed by an applicant was reiterated in this court (Charleton J.) in Weston v. An Bord Pleanala [2010] IEHC 255 where the court observed at para. 11:
“11. The burden of proof of any error of law, or fundamental question of fact, leading to an excess of jurisdiction, or of demonstrating such unreasonableness as flies in the face of fundamental reason and common sense, rests on Weston the applicant in these proceedings. Once there is any reasonable basis upon which the planning authority or An Bord Pleanála can make a decision in favour of, or against, a planning application or appeal, or can attach a condition thereto, the court has no jurisdiction to interfere.”
15. In summary therefore, the applicant has not discharged the burden of proving in the context of the erroneous measurement that the respondent took account of an erroneous fact or irrelevant consideration in reaching its determination. Similarly, there is no evidence that the issue of floor to ceiling height played any part in the decision of the respondent here again, the onus of proof is not discharged.
16. Finally, no legal authority has been advanced by the applicant for the proposition that there was an obligation upon the respondent to issue a split decision with regard to the retention aspect of the application, nor do I believe that there is such authority or obligation on the respondent. The applicant modified his argument in this regard at the trial into a submission that the respondent had failed to have regard to the fact that parts of the development were unauthorised and others were not because the inspector had not differentiated between the two. However, this is not the ground upon which leave was granted. The applicant clearly made the case that the respondent was obliged under its own Rules to issue a split decision, a contention from which he resiled at the hearing.
17. Finally, there is no evidence to support the proposition that the respondent failed to have regard to a relevant consideration being the local authority’s road section report. Here again the applicant has fallen short of meeting the required standard. As counsel for the respondent pointed out, it is clearly referenced in the inspector’s report at page seven as is the fact that the Council Roads section had no objection to the development.
18. For these reasons therefore, I must dismiss this application.
K.S.K. Enterprises Ltd v An Bord Pleanála, Lowstrand Properties Ltd and the Attorney General
1994 No. 70
Supreme Court
24 March 1994
[1994] 2 I.L.R.M. 1
(Nem. Diss.) (Finlay CJ, O’Flaherty, Egan, Blayney and Denham JJ)
FINLAY CJ
(O’Flaherty, Egan, Blayney and Denham JJ concurring) delivered his judgment on 24 March 1994 saying: This is an appeal brought by the applicant against an order made by Flood J in the High Court on 16 February 1994 whereby he dismissed an application made by the applicant pursuant to s. 19(3B)(a) of the Local Government (Planning and Development) Act 1992 (the 1992 Act) for liberty to issue judicial review proceedings in a planning matter. The grounds on which the learned High Court judge dismissed the application was that on a preliminary point taken by the respondents that the application was time barred he ruled that it was so time barred and therefore could not be maintained.
In the course of the order made by him in the High Court, Flood J certified pursuant to the said subsection that his decision on this preliminary issue involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court from his decision in the High Court.
By virtue of s. 19(3) of the Act of 1992, s. 82 of the Local Government (Planning and Development) Act 1963 was amended by the substitution for s. (3A) (which had been inserted by the Local Government (Planning and Development) Act of 1976) of two new subsections concerning the bringing of applications for judicial review of planning decisions.
The relevant provisions of the new subsections of s. 82 thus inserted with regard to the facts of this case are as follows:
(3A) A person shall not question the validity of …
(b) a decision of the board on any appeal….
otherwise than by way of an application for judicial review under O. 84 of the Rules of the Superior Courts (hereafter in this section referred to as ‘the order’).
(3B)(a) An application for leave to apply for judicial review under the order in respect of a decision referred to in subs. (3A) of this section shall—
(i) be made within the period of two months commencing on the date on which the decision is given, and
(ii) be made by motion on notice (grounded in the manner specified in the order in respect of an ex parte motion for leave) to— …
(II) if the application relates to a decision referred to in subs. (3A)(b) of this section, the board and each party or each other party, as the case may be, to the appeal.
(III) any other person specified for that purpose by order of the High Court, …
*4
(b)(i) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case save with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.
In this case An Bord Pleanála dismissed an appeal by the applicant against a decision by the Dublin Corporation to grant to the second named respondent (the developer) planning permission, and decided to grant such permission subject to conditions. This decision was made on 1 December 1993.
A document entitled ‘notice of motion’ which is dated 29 January 1994 was apparently filed on 31 January 1994 in the High Court and was, by the Central Office thereof, made returnable for 14 February 1994. This ‘notice of motion’ was accompanied by a statement required to ground an application for judicial review and an affidavit in support of the same which constituted documents grounding the application in the manner specified in O. 84 in respect of an ex parte motion for leave to issue judicial review proceedings.
The learned trial judge after argument before him came to the conclusion as stated in his judgment as follows:
In my opinion the section requires that the application actually be moved to the court or at least that it be available in the court list to be heard if the court can deal with it and accordingly I am of the opinion that the matter is time barred so I am dismissing the application accordingly.
On the dates which I have set out above it is, of course, manifestly clear that there had been no application to the court nor any motion before the court available to be moved if the court could deal with it before the expiry of two months from the date on which the decision sought to be impugned was granted.
Before this Court on appeal in effect four alternative possible interpretations of the time limit contained in this section as inserted by the 1992 Act were contended for.
On behalf of the appellant it was firstly and primarily contended that once a notice of motion was filed in the High Court’s Central Office that an application for leave to apply for judicial review had been made within the meaning of that phrase contained in the inserted subsections and since that was done on 31 January 1994 it was in time.
The second contention made as an alternative only on behalf of the appellant was that if the true definition of application made was not ‘the filing of the notice of motion’ that it certainly would be constituted by the filing of a notice of motion and by the service of it on any one of the mandatory respondents who are provided for in the subsection. The court was informed without contest that the *5 notice of motion was served on An Bord Pleanála within the period namely on 30 January 1994.
On behalf of the respondents it was firstly and primarily contended that the learned trial judge was correct and that application for leave to apply for judicial review could not be made within the meaning of the subsection until such time as it was moved in court even if moving it was only for the purpose of asking that it be taken on another day. Secondly, and again in the alternative it was contended that an application for leave to apply for judicial review could not be interpreted as having been made until two things had occurred namely, a notice of motion had been filed in the High Court and it had been served on each of the mandatory respondents provided for in the subsection.
The issue before this Court is strictly confined by virtue of the provisions of the subsections as inserted by the Act of 1992 and by virtue of the form of certificate granted by the learned judge of the High Court to the question of the interpretation of the section and this Court was not involved in any issue though an issue may or may not exist as to whether parties other than An Bord Pleanála were served within the two month time limit.
The word ‘application’ in the subsection inserted is not defined by that subsection nor is it defined in any other provision of the Act of 1992 or any of the Planning Acts which are to be read with it. To the extent that it could be considered ambiguous the court would be obliged to look at the particular subsection in which it is contained and the apparent legislative objectives and provisions which are part of the context of that subsection when inserted into s. 82 of the Act of 1963. The general scheme of the subsection now inserted by the Act of 1992 is very firmly and strictly to confine the possibility of judicial review in challenging or impugning a planning decision either by a planning authority or by An Bord Pleanála. The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested to the court to extend the time. Secondly, there is a provision contained in the subsection as inserted that leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. Thirdly, in relation to all matters other than constitutional challenge to a statute the determination of the High Court is stated to be final in regard to any such application for leave to apply for judicial review or by way of application for judicial review except in the case which has occurred in this instant appeal where a High Court judge certifies that it is a point of law of exceptional public importance desirable to be heard by the Supreme Court.
From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should *6 at a very short interval after the date of such decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision.
Having regard to these general considerations and to my view of the importance of a notification to the developer in particular and to the planning authorities also of any challenge within the time limited, I must reject the contention that the application made within the two months could be constituted by the mere filing of a notice of motion in the court offices. Under O. 52 of the Superior Court Rules at r. 1 it is provided that ‘all interlocutory applications to the court and all applications authorised by these rules to be made to the court shall be made by motion save as otherwise provided by these rules.’
In r. 2 of the same order it is provided that ‘save as otherwise provided by these rules all such applications other than such as under the existing practice are made ex parte or are authorised by these rules to be so made shall be made by motion on notice to the parties concerned.’ I am satisfied that in ordinary terms these two rules indicate that there is known to the courts applications which are made by motion and that both those that are made ex parte and those that are made on notice to parties concerned come within that general classification of applications to the court made by motion. Under O. 84 providing for the judicial review procedure an application for leave to apply for judicial review was to be made by motion ex parte. The provision for a motion on notice is inserted by the Act of 1992 in regard to planning decisions. There can be no doubt in my mind that an application to the court made by motion ex parte cannot be said to be made until it is actually moved in court. In the case of a motion on notice which is what is provided for in this subsection, I am quite satisfied that it could not be said to have been made under any circumstances until notice of it had been given to the parties concerned. Such a construction of the phrase ‘application made by motion on notice’ seems to me entirely consistent with the plain objects of this subsection and with its other provisions. The vital and important thing is that within the very sharply limited time scale the parties concerned and it would seem to me very particularly the person who had received the decision for permitting him to develop must be made aware of the challenge which it is sought to bring by way of judicial review to the validity of that decision.
I have considered carefully as to whether even the filing of a motion on notice to all the parties concerned being the mandatory respondents under the section is sufficient and whether there are any good grounds for differentiating in the interpretation of this section between the making of an application for leave to apply for judicial review by motion ex parte and by motion on notice.
I am satisfied that as a matter of general construction where a restriction is being imposed upon the exercise of a right in a statute such as this subsection *7 involves that it is desirable to the extent of being almost imperative that it should be capable of being construed and should be construed in a clear and definite fashion.
It seems to me that to conclude that an application could only be made for leave to apply for judicial review under this subsection where an actual application of some description was made in court or where it could be established that an application would have been made in court if the court had been able to reach it in a list on the day concerned is to create too imprecise a cut-off point in time for the making of an important application.
It is for this reason and this reason only that I would differ to a limited extent from the decision of the learned trial judge in the court below and would conclude that if within the time limited of two months from the date of the decision a notice of motion is filed in the High Court and it is served on the mandatory parties provided in the subsection that that must be taken as being compliance with the two-month time limit.
I must reject however any contention to the effect that the service on one party only would be a sufficient compliance with the time provision. There is no logic nor reason in such an interpretation and it would be clearly in my view legislating rather than interpreting the section so to decide. The very facts of this case where it would appear possible that the party served within the time was An Bord Pleanála and where it is contended at least that the party not served within the time was the person who had obtained the decision would indicate not only the lack of logic but the lack of justice in such an interpretation.
I therefore conclude that the true interpretation of the section is that it may be complied with by an application which has been made within the time limited in the sense that a notice of motion grounded as is provided in O. 84 has been filed in the High Court and it has been served on all the mandatory parties provided for in the subsection. If however it is not served on all the parties provided for mandatorily within the subsection as distinct from the power of the court at a later stage to order the service of additional parties then it has not been completed within the time limited by the section.
As I have already indicated an issue may or may not arise as to whether the applicant in this case has served the notice of motion that has been filed within the time limited on all the parties concerned and if that is so then the matter would have to be returned for adjudication on that issue only in the High Court.
Subject to the variation which my interpretation of the section involves I would dismiss this appeal.
Conway v An Bord Pleanala & ors
Standing
[2019] IEHC 525 (16 July 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/H525.html
Cite as: [2019] IEHC 525
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Judgment
Title:
Conway v An Bord Pleanala & ors
Neutral Citation:
[2019] IEHC 525
High Court Record Number :
2018 1029 JR
Date of Delivery:
07/16/2019
Court:
High Court
Judgment by:
Barniville J.
Status:
Approved
[2019] IEHC 525
THE HIGH COURT
JUDICIAL REVIEW
[2018/1029 J.R.]
IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)
BETWEEN
JOHN CONWAY
APPLICANT
AND
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
DUBLIN CITY COUNCIL
NOTICE PARTY
JUDGMENT of Mr. Justice David Barniville delivered on the 16th day of July, 2019
Introduction
1. This is one of the most unusual planning cases to have come before the Irish courts. Unlike the vast majority of planning cases before the courts, the applicant, who describes himself as an ” environmental activist “, does not seek to challenge a decision of a planning authority or of An Bord Pleanala (the “Board”) granting permission for a development said to have potentially significant effects on the environment or on a protected or European site. Rather, the applicant seeks to challenge a decision of the Board refusing to grant approval for a proposed development. The development in question was that proposed by Dublin City Council (the “Council”) for the development of a civic plaza and ancillary traffic management measures and road works at College Green in the centre of Dublin. The Board refused to grant approval in respect of the proposed development in a decision signed on 15th October, 2018 and apparently published on 17th October, 2018. The Council, as the applicant for that approval, did not and does not seek to challenge the Board’s decision. The applicant, who did not participate in any way in the planning process before the Board, seeks to challenge the Board’s decision on various grounds. Almost uniquely, therefore, this case is concerned with an attempted challenge, by a person with a significant interest in the environment, to a decision by the Board refusing to grant approval for a development.
2. This judgment is concerned with the preliminary question as to whether the applicant has standing to bring the proceedings. The issue has arisen in the course of the applicant’s application for leave to challenge the Board’s decision by way of judicial review.
Procedural Background
3. The proceedings came before me in the following circumstances. As noted above, the Board’s decision was apparently published on 17th October, 2018. The applicant wished to challenge the decision. Conscious of the time limits for doing so in s. 50(6) of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as amended)”) and the requirement in s. 50A(2)(a) to make an ex parte application to the court, the applicant opened his application for leave before Noonan J. in the High Court on 10th December, 2018. The application for leave, having been opened, was then transferred to me, in my capacity as the judge dealing with the Strategic Infrastructure Developments list. It came before me on 20th December, 2018 and was put back to the following day, 21st December, 2018. Before the Court on that date were a statement of grounds (which was undated) (the “first statement of grounds”), an affidavit sworn by the applicant on 6th December, 2018, together with a series of exhibits including the Board Order recording the Board’s decision and the inspector’s report in respect of the application for approval for the proposed development, and a further version of a statement of grounds dated 20th December, 2018 (the “second statement of grounds”). The first statement of grounds named the Board as the sole respondent to the proceedings and the Council as a notice party. The second statement of grounds included Ireland and the Attorney General (the “State”) as additional respondents.
4. Having considered the papers, I felt that there was at least an issue as to whether the applicant had standing to bring the proceedings and I directed the applicant to put the Board, the State and the Council on notice of the applicant’s application for leave. I adjourned the application to 24th January, 2019 to enable that to be done. By agreement between the parties, the application for leave was further adjourned to 31st January, 2019. On that occasion, counsel for the Council informed the Court that it did not intend to participate in any way in the proceedings. On that date, the applicant produced a further statement of grounds (which was undated) (the “third statement of grounds”). Counsel for the Board objected to the provision of the third statement of grounds in circumstances where more than eight weeks had passed since the date of the Board’s decision. It will in due course be necessary to refer to the reliefs sought in the various statements of grounds provided by the applicant. The issue as to whether the applicant had standing to bring the proceedings was again raised by me on 31st January, 2019. With the agreement of the parties, I directed that that issue be heard as a discrete issue on 8th February, 2019. I should stress that this issue was being dealt with in the course of the applicant’s application for leave which had originally been opened before Noonan J. on 10th December, 2018.
5. The issue as to the applicant’s standing to bring the proceedings was heard by me on 8th February, 2019. On that occasion, I heard submissions from counsel for each of the applicant, the Board and the State. This is my judgment on that issue.
Summary of Decision
6. As I explain in the course of this judgment, I have concluded that the applicant does not have standing to bring the proceedings under Irish law, which I have also concluded meets the EU law requirement in Article 11 of the codified EIA Directive, Directive 2011/92/EU (“Directive 2011/92″) that there be ” wide access to justice ” for those seeking to judicially challenge decisions subject to the public participation provisions of that Directive. I have also concluded that, to the extent that Directive 2011/92 applies, the applicant similarly has no standing to bring the proceedings under the Directive. I have concluded that there is nothing in Directive 2011/92 or in the jurisprudence of the Court of Justice of the European Union (CJEU) which would lead me to conclude that the Irish national rules on standing should be disapplied or interpreted differently so as to require standing to be afforded to the applicant to bring the proceedings which he wishes to bring in order to challenge the Board’s decision to refuse to approve the proposed development by the Council. Since the applicant does not have standing to bring the proceedings, I have concluded that I must refuse the applicant leave to bring the proceedings.
Structure of Judgment
7. I will first consider the Board’s decision. I will then say something about the position of the applicant and outline his intended grounds of challenge to the Board’s decision. Next I will consider the Irish national rules on standing as well as those existing under EU law and will attempt to apply those rules to the applicant in order to consider whether the applicant has standing to bring the proceedings.
The Board’s Decision
8. On 18th May, 2017, the Council made an application to the Board pursuant to s. 175 of the 2000 Act (as amended) for approval for a proposed development of a civic plaza, ancillary traffic management measures and minor road works at College Green in the centre of Dublin City. The Council submitted an environmental impact statement with its application. Section 175 of the 2000 Act (as amended) provides for the procedures to be followed where a local authority, which is a planning authority, wishes to carry out a proposed development which may have significant effects on the environment. Such proposed development may not be carried out without the approval of the Board. Further information was sought by the Board and provided by the Council. With that further information, the Council submitted an environmental impact assessment report on 20th October, 2017.
9. The Board appointed an inspector to consider the Council’s application. The inspector provided her report to the Board on 17th September, 2018. As appears from the inspector’s report, there were more than 100 observers in respect of the Council’s application. They are listed in the inspector’s report. An oral hearing was held in relation to the Council’s application for approval for the proposed development over a period of twelve days between 12th March, 2018 and 29th March, 2018. The applicant did not make any submission to the Board in respect of the Council’s application and did not participate in the oral hearing. The applicant has given an explanation for his failure to do so which I consider later in the judgment.
10. In her report, the inspector recommended that the Board refuse to approve the proposed development. The inspector considered that the proposed development would give rise to significant adverse impacts on traffic generally, and on bus services in particular, in the city centre and would, therefore, be contrary to the proper planning and sustainable development of the area for various reasons.
11. The Board agreed with the inspector’s recommendation. In its decision signed on 15th October, 2018 (and apparently published on 17th October, 2018), the Board refused to approve the proposed development. The decision of the Board is recorded in the Board Order exhibited by the applicant. As recorded in the Board Order, the Board considered that the principle of the proposed development was acceptable and that it would “produce a quality public realm that would significantly enhance the amenity and attractiveness of this city centre location, would significantly improve the visual amenities of the area and would facilitate improved appreciation of the architectural and cultural heritage of this important site ” (p. 3). However, the Board considered that for four reasons the proposed development would give rise to ” significant adverse impacts on pedestrians and on bus transport within the city centre and would, therefore, be contrary to the proper planning and sustainable development of the area” (p.4). The four reasons given by the Board for this conclusion may be summarised as follows:-
(1) The Board was not satisfied that the traffic analysis carried out and the associated information provided was sufficient to ” accurately quantify the traffic impacts of the proposed development and the magnitude of those impacts “.
(2) There was uncertainty but ” likely significantly negative impacts ” for bus transport in light of the extent of the re-routing of buses proposed, the critical importance of bus transport to the city and its future role in facilitating a shift from car usage.
(3) There were identified and unresolved capacity issues on the Quays in relation to their capacity to accommodate the scale of the bus rerouting proposed.
(4) There was a failure to demonstrate that the existing footpaths on both sides of the Quays had the capacity to accommodate the increased numbers of pedestrians that would be redirected onto the quays as a result of the bus re-routing.
12. The applicant has sought leave to challenge that decision.
The Applicant
13. In his affidavit sworn on 6th December, 2018 for the purpose of grounding his application for leave to bring these proceedings, the applicant describes himself as an ” environmental activist “. The applicant does not reside in Dublin but rather in Dundalk, Co. Louth, more than 80 kilometres away.
14. At para. 4 of his affidavit, the applicant stated as follows:-
“I have a longstanding and passionate interest in the protection of the environment and am Director of Strategy for a representative environmental group or NGO known as the Louth Environmental Group whose objectives include to protect, preserve and enhance all coastal areas of Ireland, including its beaches and their environmental interests and amenities. I have previously taken legal proceedings in the interest of protection of the environment including enforcement and compliance by the Irish State with its obligations under the Aarhus Convention. Proceedings which I instituted were the subject of a relatively recent judgment of the Supreme Court concerning, inter alia, legal aid in respect of environmental matters. I strongly hold the view that public authorities should at all times comply fully with legislation concerning the carrying out [of] their duties, particularly where environmental matters are concerned”.
The decision of the Supreme Court to which the applicant referred in that paragraph of his affidavit is Conway v. Ireland & ors [2017] 1 IR 53 (” Conway “). Indeed, the applicant was a co-applicant with the environmental group, the Louth Environmental Group, in further proceedings against the Board concerning a proposed development adjacent to St. Anne’s Park in Raheny which was the subject of a judgment I delivered on 31st July, 2018 ( Clonres CLG and Others v An Bord Pleanala and Others [2018] IEHC 473 (the “Raheny proceedings”)). No issue was taken in relation to the applicant’s standing to bring any of those proceedings.
15. The applicant explained in his affidavit that he first learned of the Board’s decision to refuse to approve the proposed development at College Green from media reports circulating after the decision was issued (para. 5 of his affidavit). The applicant stated that, while the Council’s application for approval in respect of the proposed development had come to his attention ” earlier ” than that, as it had received widespread coverage, he did not take any part in the planning process in relation to that application. It is clear from para. 6 of his affidavit that the applicant took a decision not to participate in the planning process in relation to the proposed development. The applicant gave a reason for that decision which was that he ” never really doubted that permission would be granted ” in respect of the proposed development and he was, therefore, surprised when he learned of the Board’s refusal to grant the approval sought. He explained that he became aware from media reports that the Council was “possibly going to challenge the validity of the impugned decision by way of judicial review in the High Court ” and that it was only in the “very recent past” that he learnt that that was no longer the intention of the Council. He then resolved to take the proceedings himself (para. 6).
16. The applicant went on to outline in his affidavit (at para. 6) the reason why he decided to bring the proceedings. He was of the view that the Board’s decision was unlawful. He continued:-
“I find it upsetting that seemingly huge sums of money were spent by the [Council] and great effort put into the project by numerous parties, whether supportive of the project or not, all to be ‘thrown away’ as a result of what I perceive to be a flawed decision by the [Board]. I find it furthermore upsetting that there appears to be no public commentary on what I perceive to be a waste of public resources and no concerns aired concerning the apparent intention of the [Council] to make a renewed application along similar lines in the near future which, in my view, may well be doomed to fail if certain aspects of the legality of the impugned decision are not clarified for the benefit of all concerned, including the public at large. Had I accurately anticipated the course of events that have now occurred, I would have taken part in the planning process from an earlier stage”
17. It can be seen, therefore, that the applicant’s stated concern and determination to bring the proceedings is not as a result of any alleged adverse environmental effects, in the strict sense of that term, as a result of the refusal by the Board to approve the proposed development, but rather as a result of his strongly held view that it would be a waste of money if the Council had to make a new application for approval and also that there was no public commentary on what he perceived to be a waste of public resources.
The Applicant’s Intended Grounds of Challenge
18. As explained earlier, the applicant has put forward three different statements of grounds. The first statement of grounds sought an order of certiorari quashing the Board’s decision and an order remitting the Council’s application to the Board for its reconsideration. Six grounds were set out in support of those reliefs. There was no reference in the first statement of grounds to any alleged failure to comply with the provisions of the EIA Directive (Directive 2011/92) or with Council Directive 92/43/EEC (the Habitats Directive). The second statement of grounds included an additional relief and further grounds. As noted earlier, the applicant named the State as an additional respondent to the proceedings. An additional relief was sought, namely:-
“A declaration that the regime provided by law for assessing and/or adjudicating upon applications for planning permission made pursuant to section 175 of the Planning and Development Act, 2000, as amended, is unlawful.”
19. The original two reliefs sought by the applicant were described as Relief 1 and Relief 2. The additional declaration sought was described as Relief 3. As well as relying on the original six grounds in support of Reliefs 1 and 2, the applicant added a further ground which, for the first time, made reference to the EIA Directive (Directive 2011/92) and the Habitats Directive. That ground was as follows:-
“7. In view of the inadequate information that was before the [Board] when making the impugned decision the [Board] was prevented from complying with and failed to comply with the provisions of the Habitats Directive and the EIA Directive thus rendering the refusal of permission invalid.”
20. Three new grounds were then set out in respect of the new relief sought (Relief 3). Those additional grounds were to the effect that there was: a failure (in the s. 175 procedure) to provide an effective remedy to challenge the refusal of permission as allegedly required by the Constitution and/or Article 47 of the Charter of Fundamental Rights of the European Union (the “Charter”) and the general principles of European law and that such failure rendered the decision to refuse permission invalid (Ground 8); a failure to provide a mechanism by which an applicant for permission of the type sought by the Council could appeal the refusal of permission which the applicant asserted was in breach of the principle of equivalence (Ground 9); and an alleged inability of the High Court in judicial review proceedings to adjudicate on the substance of the application for permission on its merits or to decide matters of fact which he asserted amounted to a failure to provide an ” effective remedy ” as required under the Constitution and under the Charter (Ground 10).
21. The third statement of grounds included two new grounds in support of Reliefs 1 and 2 and then renumbered the grounds advanced in respect of Relief 3 (now renumbered Grounds 10 to 12). The two new grounds sought to be advanced in support of Reliefs 1 and 2 were: a contention that the Board’s decision was irrational or failed to provide any proper reason or rationale in the body of the decision for the conclusion reached by the Board (new Ground 8); and a contention that the Board’s decision was disproportionate in circumstances where the Board was supportive in principle of the proposed development and ought, therefore, to have granted permission subject to conditions rather than refusing the Council’s application outright (new Ground 9).
22. Both the Board and the State objected to the applicant’s entitlement to rely on the second but, more particularly, the third statement of grounds in light of the requirement on an applicant under s. 50(6) of the 2000 Act (as amended) to make an application for leave within eight weeks from the date of the relevant decision unless an extension of time was obtained in accordance with the provisions of s. 50(8).
23. The applicant contended that he was entitled to rely on the third statement of grounds, notwithstanding that it was produced on 31st January, 2019, long after the eight-week period under s. 50(6) had expired and long after the applicant had formally opened his application for leave before Noonan J. on 10th December, 2018. The applicant relied on the fact that the leave application had not yet been determined and that he was entitled to amend his statement of grounds at any time before the leave application was determined. The applicant relied on the judgment of the Court of Appeal in B.W. (Nigeria) v. Refugee Appeals Tribunal & ors [2017] IECA 296 and on the judgment of Humphreys J. in the High Court in P.C.N. (Zimbabwe and the Democratic Republic of Congo) v. Minister for Justice and Equality & ors; J.N.(Zimbabwe) v The Minister for Justice and Equality [2018] IEHC 295.
24. While I have some doubt as to whether an applicant is entitled to amend his or her statement of grounds without leave of the court well outside the time period provided for in s. 50(6) and several weeks after the leave application was first formally opened, I am satisfied that it is in the interests of justice, in this case, that I should consider the issue of the applicant’s standing to bring the proceedings by reference to the most recent statement of grounds on which the applicant seeks to rely, namely, the third statement of grounds. Neither the Board nor the State advanced the case that they would be prejudiced if I were to assess the applicant’s standing by reference to the third statement of grounds. In any event, I do not believe that they would be prejudiced if I were to proceed on that basis. I will, therefore, consider the question of the applicant’s standing by reference to the case sought to be advanced in the third statement of grounds.
25. As noted earlier, the applicant has sought three reliefs: an order of certiorari quashing the Board’s decision, an order remitting the Council’s application to the Board and a declaration that the procedure under s. 175 of the 2000 Act (as amended) is unlawful. Most of the grounds set out in the third statement of grounds are advanced in respect of Reliefs 1 and 2. The grounds advanced in support of those reliefs are:-
• The applicant complains that the inspector reached findings in relation to traffic and transport related matters which significantly differed from the findings made by a consultant appointed by the Board to assist in considering those matters.
• There was ” insufficient reliable traffic modelling and traffic assessment information” before the Board on which to base its decision to refuse to approve the proposed development.
• The Board failed to take proper account of significant changes proposed under the National Transport Authority’s (the “NTA”) “Bus Connects” proposal to re-route and reorganise the bus network in Dublin.
• The Board based its decision to refuse to approve the proposed development on an incorrect assumption that the Board or the Council exercises some control or influence over the routing of bus traffic in the environs of the proposed development or elsewhere, when that was the role of the NTA.
• The Board’s assessment failed to take account of the prevailing and changing conditions within the environs of the proposed development during the assessment period and, in particular, measures implemented by the NTA to alleviate delays to commuters and that, therefore, relevant information was disregarded by the Board in reaching its decision.
• The Board made a decision based on inadequate and unreliable information.
• As a result of the alleged inadequate information before the Board when making its decision, the Board was “prevented from complying with and failed to comply with the provisions of the Habitats Directive and the EIA Directive ” as a result of which the Board’s decision is invalid.
• The Board’s decision was irrational and/or the Board failed to provide any proper reason or rationale in the body of its decision to support its conclusion.
• The Board’s decision was disproportionate in that it ought to have granted permission with conditions rather than refusing the Council’s application outright.
26. The grounds sought to be advanced in respect of Relief 3 (the declaration sought in relation to the s. 175 regime) have been touched on earlier. In summary, they are:-
• The s. 175 procedure fails to provide an effective remedy to challenge a refusal of permission.
• The failure to make provision for an applicant for approval under s. 175 to appeal the refusal of such approval is a breach of the principle of equivalence.
• Judicial review is not an ” effective remedy ” as required under the Constitution and under the Charter.
27. It is apparent from a review of the third statement of grounds that the bulk of the grounds advanced concern traffic matters and the Board’s assessment of traffic and transportation related issues. There is only one reference in one of the grounds to the EIA Directive and the Habitats Directive. However, it is a somewhat curious reference in circumstances where the Board refused to grant approval in respect of the proposed development as a result of which the proposed development cannot have had any adverse impact or effect on the environment or on any protected or European site. The case sought to be made by the applicant in respect of the EIA Directive and the Habitats Directive is that as a result of allegedly inadequate information before the Board, the Board was ” prevented from complying with and failed to comply with ” the provisions of the EIA Directive and the Habitats Directive. That is all that is said about those Directives. It is not indicated how the Board allegedly failed to comply with either of those Directives and what it is the Board allegedly failed to do in that regard.
28. It is clear from a review of the third statement of grounds that Relief 3 and the grounds pleaded in respect of that relief are not freestanding but are ancillary to the other grounds sought to be advanced by the applicant in support of his challenge to the Board’s decision. The grounds advanced in respect of Relief 3 concern alleged deficiencies in the procedure under s. 175 of the 2000 Act (as amended) for dealing with applications by a local authority that is a planning authority for approval for a proposed development which may have significant effects on the environment and, in particular, the absence of a right of appeal (as opposed to judicial review) for an applicant where the application for approval is refused. The party which one might normally expect might wish to ventilate complaints in relation to the absence of such a right of appeal would be the disappointed applicant for the approval rather than some other person. Indeed, it is that party who is the focus of the ground set out at Ground 11 of the third statement of grounds. In the present case, that party is of course the Council who has not sought and does not seek to challenge the Board’s decision. Nor does it wish to participate in any way in these proceedings. Grounds 10 and 12, which are also advanced in support of Relief 3, could, if successful, avail of a person, such as the applicant in these proceedings, who was not the applicant for approval of the proposed development which was refused but rather someone else who was supportive of the proposed development. The object of those grounds appears to be to enable the applicant to make the case that in some way he has been unable fully and effectively to challenge the Board’s decision to refuse approval in respect of the proposed development.
29. It seems to me that a number of observations can be made in relation to facts which are undisputed or incapable of being disputed in these proceedings:-
(1) The applicant is a person who has a significant interest in environmental matters, generally, both in a personal capacity and in his capacity as Director of Strategy with the Louth Environmental Group.
(2) The applicant has previously brought environmental proceedings in his personal capacity and as a co-applicant with the Louth Environmental Group.
(3) The applicant and the Louth Environmental Group have a particular interest in the protection, preservation and enhancement of coastal areas of Ireland including its beaches and associated environmental interests and amenities.
(4) The applicant has a strongly held view that public authorities should comply fully with legislation, particularly where environmental matters are concerned.
(5) The applicant does not reside in Dublin but rather in Dundalk, Co. Louth, more than 80 kilometres away from College Green in the centre of Dublin city.
(6) The applicant was aware of the Council’s application for approval for the proposed development and was supportive of it.
(7) The applicant did not participate in the planning process before the Board. He did not make any submissions as part of that process and did not attend or participate in any way in the oral hearings.
(8) The applicant provided an explanation for his non-participation. He thought that the Council’s application would be granted by the Board. The applicant did not suggest that he was in any way precluded or prevented from participating in the process.
(9) The decision of the Board which the applicant has sought to challenge in the proceedings was one which refused to approve the proposed development. Since the Board refused to approve the proposed development, there will be no development unless and until a further application for approval is made by the Council and granted by the Board. Until then, the effect of the decision of the Board is to prevent the Council from carrying out the proposed development.
(10) There is no direct intervention into or onto the environment or any protected or European site permitted or provided for by the Board’s decision which might engage the provisions of the EIA Directive or the Habitats Directive. The only case sought to be made by the applicant in relation to those Directives is that the Board was prevented from complying with and failed to comply with them, in some unspecified manner, because of the alleged ” inadequate information ” before the Board.
(11) It is not suggested by the applicant that there is any particularly sensitive protected or European site which would be adversely affected by the Board’s refusal to grant the approval sought by the Council.
(12) The applicant has not suggested that he has any particular connection or interest in the College Green area of Dublin or that it is of any particular amenity value to him which is or might arguably be impaired by the Board’s refusal to approve the proposed development.
(13) The Council has not sought to challenge the Board’s decision and has not sought to participate in these proceedings. There is no evidence before the Court that the Council would proceed with its application for approval for the proposed development if the Board’s decision were quashed in these proceedings and the application for approval remitted to the Board for further consideration. It is not evident from the evidence before the court, therefore, that any party would be in a position to progress the application before the Board if the applicant were successful in the proceedings.
Approach to Standing Issue
30. The question which I have to determine as part of the applicant’s application for leave to bring these proceedings is whether the applicant has standing to bring and maintain the proceedings in light of these observations on the uncontested or uncontestable facts before the court. In considering that issue, it will be necessary for me to consider Irish national rules on standing and to assess whether those rules require to be re-interpreted or modified in any way by reason of any applicable requirement of EU law. This whole area of law was comprehensively examined by the Supreme Court in its decision in Grace and Sweetman v. An Board Pleanala [2017] IESC 10 (” Grace and Sweetman “) and was further considered by the High Court in McDonagh v. An Bord Pleanala [2017] IEHC 586 (McDermott J.) (” McDonagh “) and Sweetman v. An Bord Pleanala & ors [2017] IEHC 133 (Haughton J.) (” Sweetman “). In addition to considering those cases, it will also be necessary for me to consider the relevant case law of the CJEU, as the applicant contends that that case law is supportive of his standing to maintain these proceedings.
National Rules on Standing
31. The starting point for a consideration of whether an applicant has standing to bring judicial review proceedings is O. 84, r. 20(5) RSC which provides that the court shall not grant leave unless it considers that the applicant for such leave has a “sufficient interest in the matter to which the application relates “. As the Supreme Court stated in Grace and Sweetman , in a joint judgment delivered by Clarke J. and O’Malley J., with which the other members of the Court agreed, the requirement to establish such a ” sufficient interest” on the part of an applicant for leave to bring judicial review proceedings ” now defines the limits of standing to bring a judicial review challenge irrespective of the form of order sought” (para. 5.1, p. 13). The Supreme Court further observed that the Irish courts have traditionally applied the same rules on standing which were identified in respect of constitutional cases in Cahill v. Sutton [1980] IR 269, in judicial review proceedings not involving a constitutional dimension (para. 5.1, p. 13). As noted by the Supreme Court (at para. 5.2, p. 13), the overall approach to standing in judicial review proceedings can fairly be described as ” reasonably flexible “, as pointed out by Henchy J. in Cahill . The approach was summarised by the Supreme Court (at para. 5.4, p. 14) as follows:-
” Therefore, the starting point is that the decision or measure under challenge must be said to give rise to an actual or imminent ‘injury or prejudice’ to the challenger or that the challenger has been or is in danger of being ‘adversely affected’. That can be described as the broad general principle. In order for a person to have standing to bring a judicial review challenge, ordinarily the person concerned will need to be in a position to demonstrate that the decision or measure which they wish to challenge either has or is imminently in danger of having adversely affecting (sic) their interests so as to cause or potentially cause injury or prejudice.” (para. 5.4, p. 14)
32. The Supreme Court continued:-
“Be that as it may, and subject to the sort of general extension of standing in particular exceptional cases identified in Cahill, where the interests of justice may require it, the broad rule requires that a challenger must establish adverse effect causing or likely to cause injury or prejudice. As noted earlier the application of that broad rule in respect of many types of challenge may not give rise to any great difficulty. The range of persons affected by a decision or measure to a sufficient extent that they can be described as having been adversely affected by injury or prejudice may be clear, obvious and limited. However, as is often the case, there may be categories of challenge where the application of that general principle may give rise to much greater difficulty …” (para. 5.7, p. 15)
33. There has, of course, been specific legislative intervention in relation to standing to maintain judicial review proceedings in planning and environmental cases. Section 50(4) of the 2000 Act, when enacted, required an applicant for leave to apply for judicial review in respect of a relevant decision of a planning authority or of the Board to demonstrate a ” substantial interest in the matter which is the subject of the application “. That requirement was changed in subsequent legislation. Section 50A(3)(b) now requires an applicant for such leave to demonstrate a ” sufficient interest ” in the matter the subject of the application unless the applicant is an environmental body or organisation satisfying certain requirements. This provision was inserted by s. 20 of the Environment (Miscellaneous Provisions) Act, 2011.
34. It is necessary to mention at this stage the potential relevance to the applicant’s standing to bring the proceedings of Article 11 of the Directive 2011/92 and the Aarhus Convention (to which the EU is a party). This territory was very fully explored by the Supreme Court in Grace and Sweetman . As noted by the Supreme Court at para. 4.1 (pp. 8 – 9), Article 11 of Directive 2011/92 requires member states to ensure that ” in accordance with the relevant national legal system ” members of the ” public concerned ” who have either a ” sufficient interest ” or, alternatively, where the member state requires it, can demonstrate the ” impairment of a right “, have access to a review procedure before a court of law or other independent and impartial body to challenge the procedural or substantive legality of certain decisions made in the environmental field. The decisions referred to are those which were subject to the public participation provisions of the Directive. Ireland opted for the ” sufficient interest ” requirement as opposed to the requirement to establish an ” impairment of a right “. It is important, however, to note that Article 11(3) states that:-
“What constitutes a sufficient interest… shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice…”
35. Commenting upon these provisions, the Supreme Court in Grace and Sweetman stated:-
“It is clear, therefore, that standing, for the purposes of Article 11, does not involve an autonomous European law concept as such but rather involves the application of national standing rules subject to the important caveat that those rules must be consistent with the ‘wide access to justice’ requirement found in the text of the Article itself. It follows that each member state has a material margin of appreciation in determining the precise standing rules which are to apply in respect of challenges covered by Article 11 but that that margin of appreciation is circumscribed by the overriding obligation, to be found in the Article, that standing rules must nonetheless confer wide access to justice.” (para. 4.4, p.10)
The Supreme Court pointed out that this entitlement on persons to challenge the validity of certain decisions made in the environmental field arises as a matter of European law and in accordance with the provisions of the Aarhus Convention.
36. The Supreme Court made clear in Grace and Sweetman that the starting point in determining the question of standing must be a consideration of Irish standing rules although, the court noted, ” it may ultimately be necessary to consider whether those rules are consistent with the ‘wide access to justice’ requirement imposed by European law ” (para. 4.6, p. 10).
37. As in Grace and Sweetman , one aspect of the standing issue which arises in this case is the extent to which the failure by a person to participate in the planning process from which the decision sought to be impugned emerged can be taken into account in considering the standing of that person to challenge the decision. While the applicant’s failure to participate in the planning process which led to the Board’s decision to refuse to grant approval in respect of the proposed development is relied upon by the Board and by the State to dispute the applicant’s standing, it is not the only matter relied upon by them. They also rely on the applicant’s geographical distance from the proposed development, the nature of the decision involved (the refusal of approval in respect of the proposed development), the particular interests of the applicant and the various other features of the case which arise from the facts, which I have sought to identify earlier in the judgment. In other words, the failure by the applicant to participate in the planning process in the present case is but one of a number of matters which I have been asked to take into account in considering the applicant’s standing.
38. Following the approach to considering standing mapped out and applied by the Supreme Court in Grace and Sweetman , I will first consider the applicant’s standing by reference to Irish rules on standing. On the question of the relevance of the non-participation of an applicant for judicial review in the planning process, the Supreme Court pointed out that it was previously the case under s. 50(4) of the 2000 Act, as enacted, that an applicant for judicial review must have participated in the process before the planning authority and/or the Board unless that person could show that there were “good and sufficient reasons” for not so participating. That requirement was removed by s. 13 of the Planning and Development (Strategic Infrastructure) Act, 2006. The Supreme Court noted, therefore, that with effect from October, 2006, a failure to participate ” does not operate necessarily in all circumstances as a barrier to standing ” (para. 6.4, p. 17). The Court referred to a pre-2000 Act decision in which a failure to participate did not necessarily and in all circumstances prevent a person from having standing: Chambers v. An Bord Pleanala [1992] 1 IR 134. The Court noted (at para. 6.5, pp. 17 – 18) that “…in the absence of a specific statutory measure introduced in respect of environmental cases, the general principle permitted, at least in some circumstances, persons to be held to have standing even though they did not participate in the process”. The Court also referred to Mulcreevy v. Minister for the Environment [2004] 1 IR 72 (” Mulcreevy “), a decision relied upon by the applicant in this case. The Supreme Court noted that in Mulcreevy , the applicant was found to have standing to challenge the validity of a statutory instrument permitting works to be carried out on a national monument, and to restrain the carrying out of those works, notwithstanding the fact that the national monument was located in Co. Dublin and the applicant lived in Co. Kerry. The Supreme Court in Grace and Sweetman observed (at para. 6.7, p. 18):-
“…nonetheless Mulcreevy seems to suggest that the nature of the measure under challenge may be such as to confer a right to challenge on a very wide range of persons (and possibly, in some cases, on all persons not motivated by bad faith or the like).”
39. The Supreme Court summarised the effect of the case law to date on national rules on standing as follows:-
“6.9 The case law to date would seem to suggest, therefore, that a reasonably liberal approach is taken to the sort of interest which must be potentially affected in order to confer standing in environmental cases. Persons clearly can have an interest by virtue of proximity to the proposed development. The degree of proximity required may well depend on the scale and nature of the development in question. For example, a large scale development having the potential to impact on the amenity of persons within a wide catchment area might well be said to have the potential to have an adverse impact on the legitimate interests of persons living, or perhaps working or otherwise having regular contact with, a significant geographical area. A minor domestic development might well only have an impact on a much more restricted area.
6.10 In addition, regard can be had to the nature and general importance of the site or amenities sought to be protected. Developments which have the potential to have a material and significant effect on the environment generally or raise questions of particular national or international importance (such as the national monument involved in Mulcreevy) may confer standing on a much wider range of persons .”(p. 19)
40. Major points of distinction between Mulcreevy and the present case are, of course, that the applicant in that case was seeking to restrain works intended to be carried out on a national monument where there were no obvious particularly directly affected persons to bring the proceedings. In the present case no development will take place on foot of the impugned decision and there is a person or body directly affected by the decision, the Council.
41. The Supreme Court then summarised the current state of the law in Ireland, leaving aside the requirements of EU law, as follows:-
“6.11 On the current state of the jurisprudence in Ireland, and without, for the moment, having regard to the requirements of European law, it seems that standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question. Furthermore, that broad assessment should have regard, in an appropriate case, to the legitimate interest of persons in seeking to ensure appropriate protection of important aspects of the environment or amenity generally …” (pp. 19 – 20)
42. The Supreme Court proceeded to assess whether Ms. Grace and Mr. Sweetman had standing in accordance with the Irish rules on standing and commented that it was only if, on the proper application of domestic standing rules, those applicants would not have standing that the question of whether the national rules on standing needed to be modified or re-interpreted in the light of EU law would arise.
43. In considering whether Ms. Grace had standing under Irish standing rules, the Supreme Court made a number of important observations which have a particular relevance to the present case. The first matter to which the Supreme Court drew attention was the fact that the proposed development was intended to take place on a site which was protected as a matter of EU law. That, the Court stated, ” must carry significant weight in the assessment of standing” (para. 8.2, p. 22) as the protection of such sites ” involves the legitimate interests of, arguably, every citizen “. On the facts of that case, the proposed development was a wind farm on lands owned by Coillte which was intended to be developed and operated by ESB Wind. The Supreme Court was, therefore, considering the potential effect of that proposed development on a European site where the purpose for the designation of the site was to provide for habitat for the hen harrier. The Court noted that the amenity value associated with such a site was not necessarily confined to those who reside in its immediate proximity. Therefore, the Court considered that the nature of the protected site was relevant to the question of standing. In that context, the Court considered that, where it was unlikely that any person could demonstrate that the proposed development would have any ” direct effect on their own affairs including their enjoyment of an amenity” , the requirement of ” sufficient interest ” would need to be interpreted in a way which protected the site against adverse effects. It seems to me that that is not so in the present case where the person most directly affected by the decision to refuse to approve the proposed development is the Council, which has not sought to challenge the Board’s decision.
44. The second matter addressed by the Supreme Court in the context of Ms. Grace’s standing was her failure to participate in the planning process which led to the impugned decision. The Supreme Court had this to say:-
“8.5 For the reasons already addressed it is clear that, as a matter of national law, a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. That may be especially so where the person concerned does not have a reasonably close physical proximity to the development in question or an established connection with a particular amenity value which might arguably be impaired by the proposed development. In that context it is important to emphasise that participation in the process will undoubtedly confer standing. A failure to participate may, (or may be likely to) leave the question of standing open to doubt particularly in the case of persons who cannot show either a physical proximity or a more general established interest in an amenity value of the site of the proposed development which may potentially be impaired.” (pp. 23 – 24)
I will shortly return to consider the relevance of these factors to the position of the applicant in this case. It bears stressing, however, that the Court made clear that participation in the planning process would confer standing on an applicant.
45. The Supreme Court noted that neither Ms. Grace nor Mr. Sweetman had put forward any ” significant explanation ” as to why they did not participate in the process. While an explanation was proffered by the applicant for his failure to participate – he thought that the Council’s application would succeed before the Board – as I indicate later, I do not find that explanation cogent or remotely convincing. Such an explanation could potentially be relied upon by any person, as an excuse for not participating, who then subsequently seeks to challenge a decision by way of judicial review.
46. The Supreme Court made clear in Grace and Sweetman that a person who has ” sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation” (para. 8.7, p. 24). However, in the case of persons who do not have such proximity, the Court stated that they ” may reasonably be required to show that they have some interest which is potentially affected and one very clear way of doing that is by demonstrating that interest by participation in the permission process.” (para. 8.7, p. 24). The Court did observe, however, that that was not the only way in which such an interest could be demonstrated.
47. The Supreme Court drew attention to other potentially relevant factors in assessing standing. One was the nature of the amenity at issue. The Court stated that “[t]he more general and more important the amenity which may be at stake then the wider range of persons who may well be able to show that they have an interest in the amenity of the area which is the subject of the proposed development”. Another potentially relevant factor, according to the Supreme Court, was the ” nature of the legal challenge intended to be mounted” . The Court noted that a person who could not show ” proximity ” to a proposed wind farm and did not participate in the planning process would be ” unlikely to have standing to make an argument more properly raised by a person more directly affected” (para. 8.8, p. 24). In that regard, the Court stated:-
” In our view a challenger who has not previously participated and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directed solely to the purpose of the special protection of the site .” (para. 8.8, p.24)
It is very difficult to see how the applicant in the present case could satisfy that requirement.
48. The Supreme Court noted that in respect of Ms. Grace, many of the factors pointed towards her having standing. The Court noted that she lived less than one kilometre from the European site and relatively close to the site of the proposed wind farm. The Court observed that Ms. Grace had stated on affidavit that she chose to buy a house in the area because of its particular attributes and its ” unspoiled nature, rich biodiversity, wildlife and history “. The Court also attached significance to the fact that she was involved in local voluntary groups some of which were concerned with sustainable energy and tourism, which she felt would be jeopardised by the proposed development. Having regard to the nature of the protected site and the development proposed together with its potential effect on the site, the Supreme Court was satisfied that, notwithstanding her failure to participate in the planning process, Ms. Grace had standing. It can be seen, however, that there were many factors which Ms. Grace could rely on to demonstrate standing.
49. The Court noted that the position of Mr. Sweetman was ” less clear “. He did not have any ” physical proximity ” to the site of the proposed development. While he had an interest in environmental matters generally, the Court noted that he did not put any evidence before the court to show that he had ” any particular interest in the specific amenity value which [was] potentially impaired” by the proposed development (para. 8.10, p. 25) and had not given “any real explanation ” for his non-participation which would have been expected if he had a broad interest in a particular amenity value associated with the site or its environs. However, having regard to the Court’s finding that Ms. Grace had standing and that it would, therefore, proceed to consider the merits of the substantive case, the Court did not find it necessary to reach a final determination on the question of Mr. Sweetman’s standing. The Court concluded by stating that:-
” We would simply reiterate that had he participated in the permission granting process or given the Court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour .” (par. 8.11, pp. 25 – 26)
50. Before proceeding to apply the principles set out in Grace and Sweetman to the present case in order to determine the question of the applicant’s standing as a matter of Irish law, I should refer briefly to the two High Court judgments following Grace and Sweetman referred to earlier. In McDonagh , the High Court (McDermott J.) found that the applicant in that case who sought to challenge a decision of the Board to grant planning permission in respect of a data centre had not established a ” sufficient interest ” in the matter which was the subject of the application for the purposes of s. 50A(3)(b) of the 2000 Act (as amended). The applicant had not participated in the planning process before the planning authority or on appeal to the Board. Further, the applicant had no connection with the proposed development in that he was not a resident in the area where it was intended to be located. Nor would he have been personally affected by it. Having referred to Grace and Sweetman , McDermott J. was satisfied that the applicant did not have standing. He reached that conclusion for a number of reasons. First, he noted that the applicant was not living in ” physical proximity ” to the site in issue. The site of the proposed development was in Athenry, Co. Galway. The applicant was based in Dublin. Second, the applicant did not participate in the planning process before the planning authority or on appeal before the Board. Third, there was no explanation as to why the applicant did not participate in the process. Fourth, there was no evidence to indicate that the applicant had any ” local and conservation interest ” in the destruction of forests in Co. Galway. Fifth, there was no evidence of any ” wider interest in the area based on its designation as an SPA as in Ms. Grace’s case “. In that regard, the Court noted that the area in issue was not a special area of conservation or a special protection area and was not near any such site. For these reasons, the Court concluded that the applicant did not have a ” sufficient interest ” in the matter, the subject of the application and, therefore, did not have standing to bring the proceedings.
51. In Sweetman , the High Court (Haughton J.) considered the question of the applicant’s standing, in the context of an application by the applicant for a certificate to enable him to appeal from the substantive judgment of Haughton J. delivered on 2nd February, 2017. In that judgment, Haughton J. found that the applicant did not have ” sufficient interest ” to make a freestanding and general challenge to the validity of s. 5 of the 2000 Act (as amended) on the basis that it infringed EU law. On the question of whether the applicant had a ” sufficient interest ” for the purpose of ss.50A(3)(b) and (4) of the 2000 Act (as amended), in determining whether to grant a certificate to appeal to the applicant, Haughton J. considered Grace and Sweetman . He observed (at para. 21) that the Supreme Court had:-
“…left open the question as to whether a person with a general interest in environmental matters, but insufficient proximity or connection to/or specific interest in the amenity value of the site of the proposed development, may have locus standi under Irish law as an exceptional case. In so doing the court has also not sought to resolve the question as to whether Irish law should be disapplied or reinterpreted to ensure compliance with ‘wide access to justice’ under Article 11 if a person such as Mr. Sweetman does not have standing under domestic law under the principles now enunciated by the court. Thus while modernising the law, providing useful guidance, and bringing a measure of certainty to the issue of standing in environmental challenges, the decision has also left considerable uncertainty .” (para. 21, pp. 16 – 17).
52. Haughton J. considered that there were a number of background facts which an appellate court might consider relevant as to whether the applicant had a ” sufficient interest ” to bring a freestanding challenge to section 5. They included the fact that the proposed wind farm and grid connections at issue in that case fell within or were adjacent to European sites, and fell within the habitat of protected species and might threaten protected species; the fact that an area of the proposed development might be remote with few, if any, residents who could directly point to injury, adverse effect or proximity; the fact that the applicant had attempted to appeal the relevant s. 5 declarations in that case; the fact that the applicant had not become aware of the s. 5 declarations within the required period for seeking judicial review; and the fact that the applicant made certain observations to the Board in the context of a related application. I note in passing that none of these factors are present in this case. In those circumstances, Haughton J. was satisfied that it would be appropriate to certify a question concerning the applicant’s standing to challenge the validity of s. 5 of the 2000 Act (as amended) under EU law.
Conclusions on Applicant’s Standing under National Rules
53. I have concluded that as a matter of national law, it is very clear that the applicant does not have a ” sufficient interest ” in the matter which is the subject of the application for the purposes of s. 50A(3)(b) of the 2000 Act (as amended) and, therefore, does not have standing to bring these proceedings. I have reached that conclusion for several reasons, in light of the principles set out by the Supreme Court in Grace and Sweetman .
54. First, the applicant seeks to challenge a decision to refuse approval in respect of the proposed development. There will, therefore, be no development by the Council unless and until a fresh application for approval is made in respect of the proposed development. The impugned decision does not, therefore, give rise to any adverse intervention into the environment, and none is alleged by the applicant in the third statement of grounds.
55. Second, unlike in Grace and Sweetman and Sweetman , and in light of the fact that the decision of the Board was to refuse to grant approval in respect of the proposed development, there is no European site potentially threatened as a result of any development arising from the impugned decision. There is no threat to any protected species as a result of the decision to refuse approval in respect of the proposed development. There will be no development on foot of the decision.
56. Third, unlike in Grace and Sweetman , there was an obvious candidate to challenge the Board’s decision in this case, namely, the Council. The Council has chosen not to challenge the decision or indeed to participate in the proceedings. This is not a case, therefore, where no person could demonstrate that the decision to refuse to grant approval in respect of the proposed development would have a direct effect on his or her own affairs. The Council was the obvious person to challenge the decision. As noted earlier these are all very significant points of distinction between the present case and Mulcreevy on which the applicant relied. I do not see that case as being of any great assistance to the applicant.
57. Fourth, the applicant does not have a ” reasonably close physical proximity ” to the site of the proposed development (adapting the words used by the Supreme Court at para. 8.5, p 23). The site of the proposed development is in College Green in the centre of Dublin City. The applicant resides more than 80 kilometres away in Dundalk, Co. Louth.
58. Fifth, the applicant does not have any particular or special connection with the area of the proposed development and does not assert any particular amenity value which would or might arguably be impaired by the decision refusing approval in respect of the proposed development. None of the particular features on which Ms. Grace was able to rely in Grace and Sweetman to establish a ” sufficient interest ” and, therefore, standing to bring the proceedings, are present in this case. The applicant is not in a position to show any ” direct personal prejudice” as a result of the impugned decision still less a personal prejudice arising from any protected status of the area of the development, as required by the Supreme Court in Grace and Sweetman (para 8.8, p.24).
59. Sixth, the applicant did not participate in the planning process which led to the decision of the Board. Many people and bodies did, as appears from the inspector’s report. The applicant provided an explanation for his non-participation – he was aware of the Council’s application but felt that it was not necessary for him to participate as he believed that the Council would obtain approval in respect of the proposed development. However, I do not accept that the explanation advanced by the applicant for his non-participation is a ” real ” or ” cogent ” explanation, as those terms were used by the Supreme Court in Grace and Sweetman (paras. 8.10 and 8.11, p. 25). A decision not to participate in a process of which the person is aware on the basis that the person believes that the process will lead to a result which he or she supports, is not, in my view, a proper or adequate explanation for a failure to participate in the process when that person seeks to challenge the decision subsequently. To my mind, it is not a real or cogent explanation.
60. Finally, while the applicant undoubtedly possesses a particular interest in the environment and, specifically, in the protection, preservation and enhancement of the coastal areas of Ireland including its beaches (para. 4 of the applicant’s affidavit), he does not profess to have any particular interest in the centre of Dublin City or in the College Green area. The applicant’s primary concern, as appears from his affidavit, would seem to be his view that it would be a waste of money and resources to require the Council to make a fresh application for approval in respect of the proposed development rather than being based on any particular or special concern about the environment or the area of the proposed development.
61. The applicant’s non-participation in the planning process is only one of several factors which I have taken into account in coming to the conclusion that the applicant does not have a ” sufficient interest ” in challenging the Board’s decision refusing approval in respect of the proposed development. I am satisfied that as a matter of Irish law (and leaving aside any consideration of EU law for the moment) it is a factor which can, in an appropriate case, be taken into account ( Grace and Sweetman , para. 8.5, p. 23). It is a factor which I have taken into account in combination with the many other factors which I have identified and discussed earlier. The applicant can point to none of the factors to which Ms. Grace could point in Grace and Sweetman and to which the applicant in Sweetman could point. The applicant’s position is much closer to that of the applicant in McDonagh than Ms. Grace or Mr. Sweetman.
62. In my view, therefore, due to a combination of the several factors discussed above, the applicant does not have ” sufficient interest ” to challenge the decision of the Board refusing approval in respect of the proposed development and does not, as a matter of national law, have standing to bring or maintain the proceedings.
Standing under EU Environmental Law
63. The applicant contends that he has ” sufficient interest ” to bring the proceedings having regard to the provisions of Article 11(3) of Directive 2011/92 and, in particular, the requirement on the part of member states to provide for ” wide access to justice ” for the ” public concerned “. I am satisfied that notwithstanding the rather limited case which the applicant seeks to make in relation to Directive 2011/92 and the Habitats Directive and, notwithstanding that his primary ground of complaint appears to be based on a waste of money and resources argument, since the procedure provided for by s. 175 of the 2000 Act (as amended) under which the Council applied to the Board for approval in respect of the proposed development is one which attracted the public participation provisions of Directive 2011/92, it is appropriate for me to consider whether it is necessary for me to reinterpret or modify the Irish national rules on standing or to disapply those rules in such a way as to confer standing on the applicant to bring the proceedings. This might potentially be the case in order to ensure compliance with the requirement to “wide access to justice” for the ” public concerned ” in Article 11(3) of Directive 2011/92.
64. As the Supreme Court concluded in Grace and Sweetman that Irish domestic standing rules are ” expressed in broad terms capable of appropriate interpretation [to ensure that they meet the ” wide access to justice ” standard] it does not seem that any question of disapplication truly arises ” (para. 7.1, p. 20) and that the task of the Supreme Court in that case was to ensure that the interpretation of the ” sufficient interest ” requirement for standing contained in national law conforms with the requirements of Article 11 (para. 7.1, p. 20). That is my task in the present case (see the recent discussion of the interpretative obligation on a national court to ensure conformity with EU law in Heather Hill Management Co. CLG v An Bord Pleanala [2019] IEHC 186 (Simons J.) (paras 84-104)).
65. The Supreme Court made a number of other important observations in this regard. First, the Court confirmed that a ” reasonably liberal approach ” is taken under Irish law as regards the type of interest which might potentially be affected in order to establish standing in environmental cases. The Supreme Court discussed the sort of factors to be considered in determining that question (at para. 6.9, p. 19). Second, the fact that Article 11(3) refers to the member states determining what constitutes a ” sufficient interest ” (for the purposes of Article 11) and that under Article 11(1) such a determination is made ” in accordance with the relevant national legal system” , means that member states have a ” material margin of appreciation ” in determining the standing rules to be applied in respect of challenges covered by Article 11 subject to the requirement to ensure that they confer ” wide access to justice ” ( Grace and Sweetman , para. 4.4, p. 10). The Court also stated that the fact that Article 11 (and Article 9 of the Aarhus Convention) ” gives status to national standing rules necessarily implies that it is open to subscribing or member states to impose some limitations on those who may have standing ” (para. 8.4, p. 23).
66. Third, the Supreme Court indicated that it was potentially of some relevance to consider the provisions of Directive 2011/92 in relation to the standing of environmental nongovernmental organisations (“ENGOs”) and the measures adopted by the State to implement those provisions into Irish law. Those provisions are contained in Article 11(3) which expressly provides that ENGOs meeting certain requirements in the Directive are deemed to be sufficient to establish ( inter alia ) a ” sufficient interest ” to challenge the relevant decision. The implementing provisions are contained in s. 50A(3)(b)(ii) of the 2000 Act (as amended). As the Supreme Court noted, ” broad standing ” is given to ENGOs in Irish law (para. 7.2, pp. 20 – 21). It was suggested by the applicants in that case that it would be a ” strange ” and ” anomalous ” result if the proper interpretation of standing rules (under Irish law) led to the result that a small group of persons by forming themselves into an ENGO could bring a challenge which those persons, acting as individuals, would not be in a position to bring. The applicant relies on this alleged anomaly in the present case.
67. The applicant contended that the requirement in Article 11(3) to provide for ” wide access to justice ” requires that national rules on standing be interpreted in a manner as to confer standing upon him. On the particular question of the relevance of his non-participation in the planning process, the applicant relied on two judgments of the CJEU which he says preclude the Court, as a matter of EU law, from finding that he does not have standing by reason of his non-participation in the planning process in question. The cases on which the applicant relied are: Case C-263/08 DjurgÃ¥rden-Lilla Värtans Miljöskyddsförening v Stockholms kommun genom dess marknämnd . [2009] ECR I-09967 (” DjurgÃ¥rden “) and Case C-137/14 Commission v. Germany [ECLI:EU:C:2015:683] (” Commission v. Germany” ). The applicant noted that in its determination granting leave to the applicants in Grace and Sweetman to appeal directly from the High Court to the Supreme Court in that case, the Supreme Court observed, at s. 5 of its determination, that “it [was] arguable that the jurisprudence of this Court in respect of standing in environmental matters may need to be revised in light of recent jurisprudence of the Court of Justice not least Case C-137/14, Commission v. Germany (judgment of October 15th 2015).”
68. On the other hand, the Board and the State submitted that there is nothing in Article 11 or in any of those judgments of the CJEU which preclude the court, as a matter of EU law, from treating an applicant’s non-participation in the planning process prior to the attempted challenge to the planning decision which emerged from that process as a relevant factor in considering the applicant’s standing to bring the challenge. Both relied on the more recent judgment of the CJEU in Case C-664/15 Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation v Bezirkshauptmannschaft Gmünd [ECLI:EU:C:2017:987] (” Protect Natur “) as supporting the proposition that EU law does not preclude national standing rules from at least taking account of the non-participation of a party who wishes to challenge a decision in the administrative process which led to that decision.
Conclusions on Applicant’s Standing under EU Environmental Law
69. I consider that the submissions advanced by the Board and by the State are correct on this issue. I have concluded that EU law does not preclude a national court from applying national standing rules and from treating non-participation in the planning process as a factor to be taken into account in assessing whether an applicant has standing. I have also concluded that an interpretation of national standing rules which permits non-participation to be taken into account as a factor in determining standing, would not amount to a breach of the requirement to provide for ” wide access to justice ” to the ” public concerned ” under Article 11(3). I have reached these conclusions for a number of reasons.
70. First, as the Supreme Court noted in Grace and Sweetman , Irish rules on standing in environmental cases are ” reasonably liberal “. Second, again as the Supreme Court noted in Grace and Sweetman , Article 11 of Directive 2011/92 provides for a ” material margin of appreciation” on the part of member states in determining the standing rules which are to apply in respect of challenges covered by Article 11, subject always to the overriding requirement to ensure ” wide access to justice “. I do not believe that permitting a court to take into account, as one of the factors to be considered in determining standing, the non-participation by an applicant in the planning process and any explanation by that applicant for such non-participation, would be inconsistent with the ” reasonably liberal ” approach typically taken by the Irish courts in determining standing in environmental cases or with the requirement to ensure ” wide access to justice ” for the ” public concerned ” in Article 11(3). However, while non-participation, and any explanation for such non-participation, are relevant factors to be taken into account, they are by no means the only such factors or the decisive factors. They may well be among many factors which the court will take into account in considering the question of standing. Several of those factors were discussed by the Supreme Court in Grace and Sweetman . I have considered many of them (and some others) in my application of national standing rules in the previous section of this judgment.
71. Third, in my view, neither Djurgården nor Commission v. Germany is authority for the proposition that EU law precludes national standing rules which permit non-participation in the planning process and any explanation for such non-participation to be taken into account as relevant factors in assessing standing. It is necessary, therefore, to consider what was at issue in both of those cases and the potential relevance of the CJEU judgments in those cases to the question which I must determine in the present case.
72. In DjurgÃ¥rden , the CJEU was considering a reference from a Swedish court which raised a number of questions which are potentially relevant to the present case. Three questions were referred to the CJEU. The second and third questions are potentially relevant. Those questions concerned the interpretation of the predecessor to Article 11 of Directive 2011/92, namely, Article 10a of Directive 85/337. The applicant in the case was an environmental protection association in Sweden. It participated in the administrative procedure in Sweden under which development consent was given to carry out certain construction works which were likely to have significant effects on the environment, particularly with respect to ground water. The applicant sought to appeal the grant of consent to a Swedish court. However, the appeal was held to be inadmissible on the ground that the applicant had not fulfilled a condition laid down in the relevant Swedish legislation that it had to have at least 2,000 members to be entitled to appeal against judgments and decisions covered by the legislation. The applicant brought a further appeal from that decision to the Swedish Supreme Court which referred a number of questions to the CJEU. As noted earlier, the second and third of those are potentially relevant. The second question raised the issue as to whether, under Article 10a of Directive 85/337, members of the ” public concerned ” were entitled to access to a review procedure to challenge a decision granting development consent even where they had had the opportunity of participating in the earlier examination at the administrative stage on the question of whether development consent should be granted and of expressing their views at that stage (para. 32). It might be noted here that what was involved in that case was very different to the present case. In DjurgÃ¥rden , the applicant had participated in the prior administrative procedure (analogous to the planning process here) and had expressed its views at that stage. At paras. 38 and 39 of its judgment (on which the applicant in the present case relied), the CJEU stated:-
“38. First, the right of access to a review procedure within the meaning of Article 10a of Directive 85/337 does not depend on whether the authority which adopted the decision or act at issue is an administrative body or a court of law. Second, participation in an environmental decision-making procedure under the conditions laid down in Articles 2(2) and 6(4) of Directive 85/337 is separate and has a different purpose from a legal review, since the latter may, where appropriate, be directed at a decision adopted at the end of that procedure. Therefore, participation in the decision-making procedure has no effect on the conditions for access to the review procedure.
39. Accordingly, the answer to the second question is that the members of the public concerned, within the meaning of Article 1(2) and 10a of Directive 85/337, must be able to have access to a review procedure to challenge the decision by which a body attached to a court of law of a Member State has given a ruling on a request for development consent, regardless of the role they might have played in the examination of that request by taking part in the procedure before that body and by expressing their views.”
73. In that case, the CJEU answered the second question by making it clear that participation in the earlier procedure could not be relied on to preclude the applicant from participating in the review procedure. However, the judgment of the CJEU in that case did not address the position, which arises in this case, where an applicant wishes to challenge a decision but did not participate in the earlier procedure. The CJEU was not dealing with such a scenario, which is precisely the situation which arises in the present case. In my view, there is nothing in the CJEU’s answer to the second question in DjurgÃ¥rden which precludes a court from taking into account as one of the factors to be considered in determining an applicant’s standing to challenge a decision, the non-participation of the applicant in the planning process and any explanation for that non-participation as factors to be taken into account.
74. In answer to the third question referred by the Swedish Supreme Court, the CJEU reiterated its conclusion that Directive 85/337 ” in no way permits access to review procedures to be limited on the ground that the persons concerned have already been able to express their views in the participatory phase of the decision-making procedure established by Article 6(4) thereof” (para. 48). The CJEU further stated that the fact that national rules offered:-
“…extensive opportunities to participate at an early stage in the procedure in drawing up the decision relating to a project is no justification for the fact that judicial remedies against the decision adopted at the end of the procedure are available only under very restrictive conditions ” (para. 49).
75. The ” very restrictive conditions ” to which the CJEU was referring was a requirement that an environmental protection association, such as the applicant in the case, had to have at least 2,000 members as well as satisfying other requirements. The CJEU concluded that such restrictive conditions were precluded by Article 10a of Directive 85/337. Again, in my view, there is nothing in the CJEU’s answer to the third question which would preclude an Irish court from taking into account as part of its consideration of an applicant’s standing, the non-participation of the applicant in the planning process and any explanation for such non-participation. The issue simply did not arise in that case.
76. Commission v. Germany did involve a consideration of Article 11 of Directive 2011/92. The facts are somewhat complicated both in terms of the complaint made by the Commission against Germany and the provisions of German law at issue. One of the complaints made by the Commission was that German law restricted the standing to bring proceedings and the scope of the review by the courts to objections made during the administrative procedure. The German law in question restricted the pleas in law which could be made by an applicant in legal proceedings challenging an administrative decision falling within the scope of Article 11 of Directive 2011/92 and another Directive on industrial emissions to those which were previously made during the administrative procedure. The CJEU held that neither Directive allowed restrictions on the pleas in law which could be raised in support of legal proceedings under Article 11. The CJEU rejected the contention by Germany that without the restriction under the relevant law, objections which were known at the time of the administrative procedure could be held back, for strategic or tactical reasons, and reserved for the proceedings before the courts. The CJEU stated that the objective pursued by ( inter alia ) Article 11 of Directive 2011/92 was “not only to ensure that the litigant has the broadest possible access to review by the courts but also to ensure that that review covers both the substantive and procedural legality of the contested decision in its entirety ” (para. 80). However, the CJEU did note that it was open to the national legislature to lay down procedural rules to ensure the efficiency of legal proceeding such as by precluding the admissibility of an argument which was submitted abusively or in bad faith (para. 81).
77. The CJEU then looked at a further complaint brought by the Commission in which certain restrictions were placed on the entitlement of environmental protection organisations to challenge decisions of the type at issue in that case. The complaint was complicated by the fact that Germany had adapted and amended its legislation in order to remedy a deficiency found in an earlier judgment of the CJEU. The CJEU upheld that complaint. However, it seems to me that the most relevant issue dealt with by the CJEU in that case concerned the bar on an applicant in proceedings challenging a decision from raising in those proceedings points which it had not raised in the earlier administrative procedure. That was found to be a breach of ( inter alia ) Article 11 of Directive 2011/92. However, that type of restriction is not what is at issue in the present case. The CJEU in Commission v Germany did not deal in that case with the entitlement of a national court to consider as one of the factors to be taken into account in determining standing the non-participation of an applicant in the planning process which led to the decision the subject of the proposed challenge and any explanation given for such non-participation. That question simply did not arise in Commission v. Germany .
78. The judgment of the CJEU in Protect Natur seems to me to be more relevant to the present case than DjurgÃ¥rden or Commission v. Germany even though the judgment does not directly address Article 11 of Directive 2011/92 but rather Article 9(3) of the Aarhus Convention. That case concerned a reference from a preliminary ruling from the Supreme Administrative Court in Austria on the interpretation of a provision in Directive 2000/60/EC establishing a framework for Community action in the field of water policy and of Article 9(3) of the Aarhus Convention. The request was made in proceedings brought before the Austrian courts concerning the applicant’s application to secure status as a party to the procedure concerning a request by a company for the extension of a permit for a snow-making facility which was granted under Austrian legislation governing water-related matters. The applicant was an environmental organisation. During the administrative procedure, the applicant asked to be accorded the status of a party and submitted objections to the grant of the permit. The relevant authority granted the permit and rejected the applicant’s request and objections on the ground that it had not claimed that any rights protected under the legislation governing water-related matters had been affected. For that reason, it could not claim to be a party in the procedure. The applicant then brought proceedings arising from that decision and alleged ( inter alia ) infringement of Article 9(3) of the Aarhus Convention. Its action was dismissed by the Lower Austria Regional Administrative Court on the ground that the applicant had lost its status as a party to the procedure under the relevant provision of Austrian law because it had failed to invoke rights protected under the legislation governing water-related matters during the administrative procedure. The applicant then brought an application for a review on a point of law before the Supreme Administrative Court in Austria which referred certain questions to the CJEU. One of the questions raised was whether it was permissible for national procedural law to require an environmental organisation to submit its objections in good time at the administrative stage failing which it would lose its status as a party and no longer be able to bring an appeal to the administrative court. However, as the CJEU noted, an environmental organisation such as the applicant could not, in principle, under the applicable national rules, obtain the status of a party to the procedure to enable it to participate in the administrative procedure for the grant of the relevant permit and, therefore, it was not clear how it could have lost that status under the provision of Austrian law in question. However, the CJEU nonetheless considered and answered the question by reference to the requirements of Article 9(3) of the Aarhus Convention.
79. The CJEU held that, in principle, Article 9(3) did not preclude a rule imposing a time limit such as that contained in the Austrian law in question:-
“…obliging the effective exercise, from the administrative procedure stage, of the right of a party to the procedure to submit objections regarding compliance with the relevant rules of environmental law, since such a rule may allow areas for dispute to be identified as quickly as possible, and, where possible, resolved during the administrative procedure so that judicial proceedings are no longer necessary” (para. 88).
80. The CJEU continued (at para. 89):-
“Thus, such a rule imposing a time limit may contribute to the objective of Article 9(3) of the Aarhus Convention… of providing effective judicial mechanisms and appears also to be in line with Article 9(4) of that convention, which requires that the procedures referred to, inter alia, in Article 9(3) of the convention provide ‘adequate and effective’ remedies that are ‘equitable'”.
81. The CJEU stated that in such circumstances, a rule imposing a time limit may be justified in accordance with Article 52(1) of the Charter subject to certain conditions (para. 90). However, in order to comply with the requirement of proportionality, the Court stated that:-
“…the practical arrangements for the exercise of administrative remedies available under Austrian law must not disproportionately affect the right to an effective remedy before a court referred to in Article 47 of the Charter…”
(para. 91).
82. The CJEU then considered the question as to whether the imposition of the time limit concerned on an environmental organisation was such as to excessively restrict the right to bring judicial proceedings and held that, while that was ultimately for the referring court to answer in light of all of the relevant facts and national law, it appeared to the CJEU to be the case, subject to verification by the referring court, that there was such an excessive restriction. On the facts of the case, the applicant had requested the competent authorities to accord it the status of a party to the procedure but was refused principally on the basis that there was no legal basis under Austrian law for that to be done. Therefore, the applicant had to participate in the administrative procedure in a different capacity which did not grant it the right to submit objections. Consequently, the court held that the applicant was being required to fulfil an obligation which could not, a priori , be fulfilled by it. It appeared to the CJEU, therefore, that there was an excessive restriction on the applicant’s right to bring judicial proceedings for the purpose of Article 9(3) of the Aarhus Convention on the specific facts of that case.
83. However, the CJEU expressly accepted, albeit in the context of Article 9(3) of the Aarhus Convention and not Article 11 of Directive 2011/92, (which is closely related to and must be ” properly aligned with ” Article 9 of the Aarhus Convention: see Case C-260/11 R (Edwards and another) v Environment Agency and others (No. 2) [2013] 1 WLR 2914 and Conway , paras 26-27, p.66) that it could lawfully be possible to have a rule imposing a time limit obliging a party to submit its objections at the administrative procedural stage in the environmental field since such a rule might allow the areas in dispute to be identified at the earliest opportunity and resolved during the administrative procedure so that judicial proceedings might not be necessary. However, such a rule would have to satisfy the principle of proportionality and could not disproportionately affect the right to an effective remedy.
84. It is interesting that in his paper at the judicial review conference on Recent Developments in Public Law (Sutherland School of Law, UCD, 11th June, 2018), Garrett Simons SC (as he was) referred to Protect Natur and observed that the case ” suggests that it would be legitimate to confine access to judicial review to those who have previously participated in the administrative stage of the planning process “. That may well be so. However, it is not necessary to go that far in order to determine the question at issue in this case. It suffices to say that, in my view, there is nothing in Article 11 or in DjurgÃ¥rden or Commission v. Germany which would preclude a national court, as a matter of EU law, from considering as among the factors to be taken into account in determining standing, the non-participation by the applicant in the prior administrative or planning process which led to the impugned decision and any explanation for that non-participation (factors which, as the Supreme Court in Grace and Sweetman confirmed, can be considered under Irish national standing rules). Indeed, Protect Natur suggests that a prior participation requirement may not infringe the right of access to effective judicial mechanisms, at least under Article 9 of the Aarhus Convention and potentially also under Article 11 of Directive 2011/92. It is unnecessary for present purposes to go that far and I express no concluded view on that point.
85. Fourth, the applicant contended that it would be an anomaly if an ENGO had standing to bring proceedings under Irish and EU law whereas an individual, who may be a member of that ENGO, might not have such standing, if the court were to interpret the requirement for an individual to establish a ” sufficient interest ” under Irish law or under Article 11 of Directive 2011/92 in the manner for which the Board and the State have contended. Such a potential anomaly was raised in the course of argument before the Supreme Court in Grace and Sweetman and is referred to at paras. 7.2 and 7.3 (pp.20 – 21) of the judgment in that case. However, a couple of observations may be made in that regard. In the first place, ENGOs are afforded a special status in terms of standing under EU law and under Irish law. Article 11(3) makes clear that in order to give effect to the objective of giving ” wide access to justice ” to the ” public concerned “, the “in terest of any non-governmental organisation meeting the requirements referred to in Article 1(2) shall be deemed sufficient ” to establish the requirement of having a ” sufficient interest ” for the purposes of Article 11. Article 11(2)(e) provides, in the context of the definition of ” public concerned”, that “non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest ” in the environmental decision-making procedures referred to in Article 2 of the Directive. Special provision is also made for ENGOs under Article 9(2) of the Aarhus Convention. Similarly, s. 50A(3) makes special provision for ENGOs and their standing to bring proceedings. It was observed by the Supreme Court in Grace and Sweetman that Ireland has not imposed any ” significant conditions which would restrict the type of NGO which might have standing ” to bring proceedings challenging a planning decision (para 7.3, p.21). The EU legislature deemed it appropriate to make special provision for ENGOs and, in compliance with its obligations under EU law, Ireland has done likewise. In the second place, the applicant appears to have made a deliberate decision to seek to bring these proceedings in his personal capacity. The applicant is an officer in the Louth Environmental Group and did not offer any explanation as to why that association did not seek to bring the proceedings. As I observed earlier, the applicant and the association of which he is a member were co-applicants in earlier proceedings (the Raheny proceedings) in relation to permission granted for a large housing development adjacent to St. Anne’s Park in Raheny. In those circumstances, it is not, in my view, open to the applicant to pray in aid any alleged anomaly in the application of standing rules in the case of individuals when compared to those applicable to ENGOs. Finally, I do not wish to give the impression that were the proceedings sought to be brought by the Louth Environmental Group, the court would necessarily have afforded that association standing to bring the proceedings. The issue does not arise as that association has not sought to bring the proceedings.
86. Fifth, to the extent that a case is made by the applicant that the refusal to afford him standing to bring the proceedings amounts to an infringement of the obligation to afford adequate and effective protection for the applicant’s rights as a matter of EU law, I do not accept that any such breach arises. It is clear that as a matter of EU law (for example, DjurgÃ¥rden , paras. 38 and 48) and as a matter of Irish law ( Grace and Sweetman , para. 8.5), if the applicant had participated in the planning process before the Board, he would undoubtedly have had standing to bring the proceedings. His non-participation, and the explanation advanced by him for such non-participation, as well as the many other factors discussed earlier combined lead, in my view, inexorably to the conclusion that the applicant does not have standing to bring the proceedings under Irish national standing rules or under EU law.
87. In my view, therefore, there is nothing in EU law which requires the court, in compliance with its obligations to ensure ” wide access to justice ” to the ” public concerned “, to interpret Irish national standing rules in such a way as to afford standing to the applicant to bring and maintain these proceedings. It would be quite extraordinary if Article 11 of Directive 2011/92 or any other provision of EU law were to require the court to uphold the applicant’s standing to bring these proceedings having regard to the several factors which strongly militate against such standing. I am quite satisfied that neither Article 11 nor any other provision of EU law requires the court to interpret Irish national standing rules in such a way as to confer standing on the applicant.
Reference to CJEU
88. The applicant submitted that if the court was in any doubt as to the scope of EU law in this regard, a preliminary reference should be made to the CJEU under Article 267 TFEU to clarify the conformity of Irish standing rules with EU law, particularly, in view of the ” wide access to justice ” requirement. As I hope I have made clear earlier in this judgment, I am not in any doubt as to the scope of EU law in that regard. It is not necessary, therefore, to make any reference to the CJEU under Article 267 TFEU in respect of any of the issues arising on this application and I refuse to do so.
Conclusions
89. For the reasons set out in the course of this judgment, I have concluded that the applicant does not have standing to bring these proceedings by way of challenge to the decision of the Board refusing to grant approval to the Council in respect of the proposed development at College Green. I have concluded that the applicant’s non-participation in the planning process before the Board and his explanation for such non-participation (he thought that the Council would obtain the required approval) together with the many other factors identified by me in the course of the judgment have driven me to the conclusion that the applicant does not have a “sufficient interest ” in the matter the subject of the proceedings and does not, therefore, have standing to bring a challenge to the Board’s decision. I have further concluded that Irish national rules on standing are in conformity with the EU law requirement in Article 11 of Directive 2011/92 that there be ” wide access to justice ” and that there is nothing in Article 11 or otherwise in EU law which requires me to interpret Irish national standing rules in such a way as to confer standing on the applicant to bring the proceedings. I have concluded that EU law does not require the court to uphold the applicant’s standing to bring the proceedings.
90. I am not in any doubt as to the scope of EU law in this regard and I do not, therefore, believe that it is necessary to make a reference to the CJEU under Article 267 TFEU to clarify the conformity of Irish standing rules with EU law, as requested by the applicant. I refuse to make the requested reference.
91. Since the applicant does not have standing, I must refuse to grant leave to the applicant to bring the proceedings.
Seery v. An Bord Pleanála
Standing
[2000] IEHC 123 (2nd June, 2000)
THE HIGH COURT
No. 1
JUDGMENT of Finnegan J delivered the 25th day of January 2001
1. In this matter I have already granted to the Applicants leave to apply for Judicial Review being satisfied that they had established substantial grounds within the meaning of the Local Government (Planning and Development) Act 1963 as amended. The second and third named Notice Parties thereupon sought an undertaking as to damages from the Applicants and I adjourned the matter for argument on that issue.
2. The approach which the Court should adopt in exercising its discretion as to whether an undertaking as to damages should be required under the Rules of the Superior Courts Order 84 Rule 20 sub-rule (6) was considered by Laffoy J in Broadnet Ireland Limited -v- The Office of the Director of Telecommunications Regulation and Eircom plc unreported 13th April, 2000 in the following terms:-
“In considering whether or not to exercise the discretion under sub rule (6) to require an undertaking as to damages as a condition of the grant, or the continuance, of leave to apply for Judicial Review, the essential test is whether such requirement is necessary in the interests of justice or, put another way, whether it is necessary to mitigate injustice to parties directly affected by the existence of the pending (Judicial Review) application. If, in substance, the existence of the application has an affect similar to the affect of an interlocutory junction in private litigation – that activity which would otherwise be engaged in is put “on hold” pending final determination of the controversy, with resulting loss and damage – in my view, it is appropriate for the Court to adopt the approach traditionally adopted in private law litigation in determining whether an interlocutory injunction should be granted or not. The High Court should require an Applicant to give an undertaking to make good that loss and damage if it is ultimately found that the applicant’s case is unsustainable, provided there is no countervailing factor arising from the public nature of the jurisdiction it exercises under Order 84 which precludes it from adopting that approach.”
3. I am satisfied that the granting of leave in this case has the like effect upon the Notice Parties of an interlocutory injunction: it would be commercial folly to embark upon the development envisaged by the Planning Permission sought to be impugned while these proceedings are pending. Of necessity the development must be put “on hold” pending final determination of these proceedings. This may well result in loss and damage to the Notice Parties. It is then necessary to consider whether this application for Judicial Review has the necessary public nature which would justify the Court exercising its discretion in favour of the Applicants in not seeking an undertaking as to damages. The whole tenor of the Applicants’ objection to the proposed development before the planning authority and An Bord Plenala and on the application for leave before me related to a small portion of the proposed development which would overlook the applicants’ dwelling house. In these circumstances it seems to me that this application does not have the necessary public nature to constitute a countervailing factor such as to justify my exercising my discretion in favour of the Applicants and not seeking an undertaking as to damages.
4. Insofar as it has been submitted on behalf of the Applicants that a distinction must be drawn between applications for Judicial Review where the provisions of the Local Government (Planning and Development) Act 1992 Section 82 (3a) and (3b) apply and other applications for Judicial Review I can find no basis for drawing such a distinction either in the wording of the Act or in the Rules of the Superior Courts. Order 84 Rule 20 (6) of the Superior Courts Rules applies to all applications for Judicial Review. On an application for interlocutory relief by way of injunction the Court would not attempt to resolve conflicts of fact or questions of law or otherwise evaluate the strength or weakness of the respective positions of the parties: Westman Holdings Limited -v- McCormack (1992) 1 IR 151 . As the existence of an application for Judicial Review is of the like effect in the present case to an interlocutory injunction in considering an Application for an undertaking as to damages upon leave to apply for Judicial Review being granted the Court should apply the same principles and adopt the same approach as on an application for an interlocutory injunction and therefore should not have regard to the relevant strength of the cases of the respective parties. There is nothing in the Local Government (Planning and Development) Act 1992 Section 82 (3a) and (3b) or in the Rules of the Superior Courts which would require the Court to adopt a different approach where the application for leave is in relation to a planning matter. In these circumstances it is appropriate in the present case that I should require of the Applicant an undertaking as to damages as a condition of their continuing the application for Judicial Review.
Murray v. An Bord Pleanala
[2000] IEHC 10; [2000] 1 IR 58 (28th January, 2000)
Judgment of Mr. Justice Quirke delivered the 28th day of January, 2000 .
1. In these proceedings the Applicant wishes to seek relief by way of Judicial Review of a decision of An Bord Pleanala dated the 10th day of May, 1999 whereby the Board refused the Applicant permission for the retention and completion of a house at Pound Street, Ramelton in the County of Donegal and the parties have applied to this Court to determine a preliminary question as to whether the application is now time-barred, having regard to the provisions of Section 82(3A) of the Local Government (Planning and Development) Act, 1963 (hereafter referred to as the 1963 Act) as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992 (hereafter referred to as the 1992 Act).
2. In brief, the Applicant, on 26th March, 1993 received a gift of certain property at Pound Street in Ramelton in Co. Donegal comprising a derelict dwellinghouse and in or about 1994 he caused the dwellinghouse to be demolished so that he could build a new house on the site for himself and his family.
3. On 18th August, 1995 he received a grant of planning permission from Donegal County Council to build a dwellinghouse on the site and on 22nd October, 1998 he received a further grant of planning permission in respect of the same dwellinghouse which, inter alia, provided that the dwellinghouse would have four windows at ground level to its rear.
4. The Notice Parties appealed against the decision of Donegal County Council and on the 10th day of May, 1999 An Bord Pleanala determined that appeal in favour of the Notice Parties and refused the Applicant permission for his proposed development on the grounds that it would “… injure the amenities of the adjoining property by reason of overlooking and would therefore be contrary to the proper planning and development of the area”.
5. On the 9th day of July, 1999 the Notice of Motion and other documentation required by law to ground the proceedings herein were served upon the Respondent and the Notice Parties but no such Notice of Motion or other documentation was served upon Donegal County Council and the Respondent contends that the Applicant is not and cannot be entitled to the relief which he seeks herein because he is time-barred, having regard to the provisions of Section 19(3) of the 1992 Act.
Section 19(3) of the 1992 Act amends Section 82 of the 1963 Act by the insertion of two sub-sections in, inter alia, the following terms:-
“(3A) A person shall not question the validity of –
…
(b) a decision of the Board on any appeal…
otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No.15 of 1986) (hereafter in this section referred to as ‘the Order’).
(3B)(a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in sub-section (3A) of this section shall:
(i) be made within the period of two months commencing on the date on which the decision is given and
(ii) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to –
…
(II) if the application relates to a decision referred to in sub-section (3A)(b) of this section, the Board and each party or each other party as the case may be to the appeal or reference….”
6. The term “party to an appeal” is defined in Section 1 of the 1992 Act in the following terms:-
“‘party to an appeal’ means any of the following persons, namely –
(a) the appellant,
(b) the planning authority against whose decision an appeal is made,
(c) the applicant for any permission or approval in relation to which an appeal is made by another person (other than a person acting on behalf of the appellant),
and ‘party’ shall be construed accordingly;”
7. Counsel on behalf of the Applicant has (quite properly) conceded that Donegal County Council comes within the definition of a party to the appeal which is the subject of his application herein, that is to say, the decision of the Respondent dated the 10th day of May, 1999. Furthermore, he freely concedes that Donegal County Council did not receive the Notice of Motion grounding the proceedings herein or any of the other documentation required by the 1992 Act and the Rules of the Superior Courts within the period of two months required by Section 82(3B) of the 1963 Act as amended.
8. Evidence has been adduced on Affidavit to the effect that, by letter dated the 4th day of October, 1999, Messrs V.P. McMullin, Solicitors on behalf of Donegal County Council wrote to the Applicant’s solicitors in relation to the proceedings herein in the following terms:-
“Dear Sirs,
On behalf of our client, Donegal County Council, we acknowledge receipt of your letter of 27th July last and the enclosures therewith addressed to Mr. G. Convie. Our clients agree that the issue herein appears to be between the named parties and they see no reason to become involved in these Judicial Review proceedings. Please note the position.
Yours faithfully,
______________
V.P.McMullin.”
9. It is contended on behalf of the Applicant that, having regard to the contents of that letter, the objection taken by the Respondent to the application is wholly technical in nature and there is no rational purpose in having Donegal County Council joined as a party to these proceedings.
10. In support of his contention the Applicant relies upon the decision of Geoghegan J. in the case of Frank McCarthy -v- An Bord Pleanala & Ors. , (the High Court – unrep. 15th May, 1998).
11. In that case the applicant was one of three objectors whose appeal against a decision of South Dublin County Council was dismissed by An Bord Pleanala and who sought to judicially review the Board’s decision. He brought the required motion against South Dublin County Council and against other interested parties within the two month period prescribed by Section 82 of the 1963 Act as amended by Section 19(3) of the 1992 Act but the motion was not served on his two co-appellants on the appeal to An Bord Pleanala. Both of those appellants adduced evidence on Affidavit waiving any objection to the non-service, stating that the substantive point at issue in the proposed Judicial Review application did not concern them and did not relate to any submissions which they had made at the appeal before An Bord Pleanala and further stating that they were not interested in participating in the proceedings.
12. In the course of argument, Geoghegan J. was referred to the decision of the Supreme Court (Finlay C.J.) in the case of K.S.K. Enterprises Limited -v- An Bord Pleanala , [1994] 2 I.L.R.M. 1 and expressed the view that he should not regard that case as authority for the point which he was required to determine indicating, inter alia:-
“…. I do not believe that the problem which has arisen in this case was ever contemplated by the Supreme Court. What the Supreme Court was referring to was the relevant parties to the Judicial Review proceedings and, in my opinion, it was far from the Court’s thinking that irrelevant parties would have to be served. Having regard in particular to the fact that the relevant statutory provision specifically refers to Order 84 of the Rules of the Superior Courts, I am satisfied that the word ‘parties’ should be interpreted as meaning relevant parties.”
In the McCarthy case Geoghegan J., having considered sworn evidence adduced in support of the applicant’s contention, concluded that the applicant’s co-appellants could not be regarded as parties whose interests were in any way relevant to the matters which he was required to determine.
13. In the instant case, it can scarcely be argued with any conviction that the interests of Donegal County Council are in no way relevant to these proceedings since Donegal County Council is the planning authority which is responsible for the proper planning and development of the county in which the lands which are in question in these proceedings actually lie.
14. The fact that in these particular proceedings the solicitors for Donegal County Council have indicated that their clients were disposed to agree with a suggestion made by the Applicant’s solicitors that “…the issue herein appears to be between the named parties…” does not alter the foregoing and it is further to be noted that the suggestion made by the Applicant’s solicitors was contained in a letter written some seventeen days after the expiration of the prescribed time limit.
15. However, in any event, I am inclined to the view that the proper construction of Section 19(3) of the 1992 Act, when applied to the facts of the instant case, cannot accommodate or result in an investigation by this Court into whether or not the interests of Donegal County Council may or may not be relevant to the issues which fall to be determined in the proceedings which the Applicant wishes to commence.
In the K.S.K. case, Finlay C.J. stated (at p.7) that:-
“I therefore conclude that the true interpretation of the section is that it may be complied with by an application which has been made within the time limited in the sense that a notice of motion grounded as is provided in O.84 has been filed in the High Court and it has been served on all the mandatory parties provided for in the subsection. If however it is not served on all the parties provided for mandatorily within the subsection as distinct from the power of the court at a later stage to order the service of additional parties then it has not been completed within the time limited by the section.”
16. Since “the planning authority against whose decision an appeal is made” is expressly defined as a “party to an appeal” within Section 1 of the 1992 Act, it is inescapable that Donegal County Council comes within the category of a party which is provided for mandatorily within subsection (19)(3) of the 1992 Act because that subsection requires that an application for relief of the type which is sought herein shall be made within the prescribed two month period “…by motion on notice…to…the Board and each party…to the appeal…”.
17. Discretion has not been conferred upon this Court either by the Act of 1992 or otherwise to waive or relax in any respect the statutory mandatory requirement which has been imposed by the Legislature upon persons who wish to seek relief of the kind which the Applicant wishes to seek herein. The assumption by this Court of such a discretion might reasonably be regarded as a departure from statutory interpretation and an entry into the realms of legislation.
18. It follows from the foregoing that I find that on the facts of this case the Applicant is barred by the provisions of Section 82 of the 1963 Act, as amended by Section 19(3) of the 1992 Act, from seeking the relief against the Respondent which he seeks.
O’Connor v. Dublin Corporation
Standard of Review
[2000] IEHC 68 (3rd October, 2000)
Judgment of Mr Justice O’Neill delivered the 3rd day October 2000
1. By Order of the 7th of April 2000 Lavan J granted leave to the Applicant to apply by way of Judicial Review from the reliefs set forth at paragraph D I, II, III, IV, IX, X, XI and XII, on the grounds set for at paragraphs E (1) to (25) inclusive of the Applicants statement grounding the Application for a Judicial Review dated the 3rd of April 2000.
2. The reliefs in question were in essence as follows:
DI “Certiorari way of Application for Judicial Review of the decision and Order of the Planning Authority of the Respondents bearing reference P0024 and dated on or about 7th of January 2000.
II Certiorari by way of an Application for a Judicial Review of the decision and Order of the Planning Authority of the Respondent bearing reference P0619 and dated on or about the 11th day of February 2000.
III A declaration that the Planning Authority of the Respondents acted without power in excess of jurisdiction and/or ultra vires the decision of An Bord Plèanala bearing reference PL29/5/84226 in making Orders and decisions identified as P0024 and dated on about the 7th day of January 2000 and P0619 and dated on about the 11th day of February 2000.
IV A declaration by way of an Application for a Judicial Review that the new and redesigned facade and elevational treatment of blocks A, E and F incorporated into the proposed development permitted that the decision of An Bord Plèanala dated 20th of March 1991 bearing reference PL29/5/84226 by way of compliance submission made to the Respondents and by of consequent compliance Orders made by the Respondents constitute an unlawful material alteration to the proposed development limited and defined by the said decision of An Bord Plèanala”.
3. By his said Order of the 7th of April 2000 Lavan J joined Borg Developments Limited as a Notice Party to the proceedings.
BACKGROUND
4. The Applicant in these proceedings Vera O’Connor was at all material times the Chairperson of the TLMG Tenants Association which is an unincorporated association representing the residents of Townsend Street, Luke Street, Moss Street and Gloucester Street in the City of Dublin. The Notice Parties are in the process of carrying out a very large property development on a site which is bounded by George’s Quay on the North, Moss Street on the East, Townsend Street on the South and Luke Street on it’s Western side. The area of the site of this development extends to 1.92 hectares. The development in question is the construction of offices in a number of blocks, together with a small residential component comprising of 8 apartments. The development is by any standards a very large one and when complete will provide some 66,000 sq. meters of office accommodation which is approximately 700,000 sq. feet . This office accommodation is arranged into six blocks, five of these being perimeter blocks namely B,C,D,E and F and a large high rising cluster block namely block A which will stand in the centre or heart of the development. The Applicant herself lives on Townsend Street about 30 yards from the proposed development. She has lived in the Townsend Street area all of her life. She is now a retired machinist.
5. The site of this development is clearly a very important and prominent site having regard to its location and size and its development has been the subject matter of a number planning applications and a good deal of local controversy and objection over the past 20 years. The Applicant and the residents of the area where the development is to be sited have consistently objected to high rise office development on the site because of the shadowing effect of tower blocks on their community and also to mono use office blocks being built on this site, so close to an inner-city Dublin community, because of the anti social nature of mono office use.
6. On the 20th of March 1991 under its reference PL29/5/84226 An Bord Plèànala granted planning permission on foot of a planning application bearing the Dublin County Borough planning register reference number 1703/90 to Irish Life Assurance Plc for a development comprising the erection of 66,000 sq. metres of offices and ancillary accommodation in five perimeter blocks (B,C,D,E and F) each four stories high above podium level with a set back fifth floor plus plant rooms, an 11 storey central block plus four levels of plant rooms (block A), covered Atrium, conference/ gymnasium all over a single level basement car park including access and eight apartments and the demolition of eight apartments on this site. The centre block, block A is much higher than the perimeter blocks extending up to 11 stories. The permission was subject to a number of conditions set out in the second schedule and unusually the duration of the permission is for a period of ten years from the 20th of March 1991.
7. The development of this site pursuant to this permission preceded in a piece- meal fashion, blocks B, C and D only, being built. The fact that the high rise centre block, block A was not preceded with, seems to have encouraged the Applicant and probably other residents of the area to believe that the developers were not proceeding with the high rise portion of the development. However, in 1998, the Notice Parties who had by this stage acquired the undeveloped portion of the site, applied for planning permission to the Respondents for permission to revise the development to include a 24 storey high central block. Permission for this development was granted by the Respondents, but was appealed to An Bord Plèanala by the TLMG Tenants Association and other community groups. An Bord Plèanala by its decision made on the 21st of September 1999 refused permission for the revisions sought to the development in respect of which permission was granted on the 20th March 1991, but granted permission for the retention of blocks B, C and D which were already constructed.
8. Following upon this decision of An Bord Plèanala the Notice Party decided to complete the development in accordance with the permission granted by An Bord Plèanala on 20th of March 1991.
9. In order to do that it was necessary for the Notice Party to comply with the conditions which were set out in the second schedule to that permission. The conditions required the Notice Party to agree a variety of matter with the Respondents and in default of such agreement to have these matters determined by An Board Plèanala. Until that process was completed the final scope of the permission was not settled. This involved the Notice Party making two submissions to the Respondents, one on the 2nd of December 1999 in respect of blocks E and F and the other on the 22nd of December 1999 in respect of block A for the purpose of obtaining the agreement of the Respondents that the submissions of the Notice Party and the proposals contained therein were in compliance with the planning permission of the 20th of March 1991. The Respondents for its part signified its agreement that the Notice Parties proposals were in compliance, by a letter of the 7th of January 2000 in respect of blocks E and F and a similar communication of 10th of February 2000 in respect of block A.
10. The Applicant challenges in these proceedings the agreement thus signified by the Respondents in its communications to the Notice Party on the 7th of January 2000 and 10th of February 2000 as been ultra vires the planning permission granted by An Bord Plèanala on the 20th of March 1991, essentially on the basis that what was agreed to by the Respondents materially altered the development in respect of which An Bord Plèanala granted permission and was not a faithful implementation of the conditions attached to that planning permission.
11. The Applicant identifies a number of changes or alterations both in respects of blocks E and F and block A which she contends could not be sanctioned by any of the conditions attached to the 1991 planning permission.
12. In blocks E and F she points to three significant alterations. The first of these relates to the recessing of windows at ground floor level which the Applicant’s architect Mr. Kelly accepts is a modification permitted by condition 1 of the planning permission. In floors 1 to 3 of these blocks she identifies a change in material from selected brick to selected reconstituted natural stone and a significant alteration or amendment of the overall relationship of solids to voids in that the proportion and layout of windows, opes and general fenestration in relation to solid elements of walling has been considerably altered and reduced, meaning that there is significantly less fenestration visible on the East elevation of these two blocks. So far as levels 4 and 5 of blocks E and F are concerned she identifies significant changes in the shape of the roof, from a hipped roof with dormer structures overhanging a glazed and clear storey, stretching the entire length of the East elevation of blocks E and F, there is now to be substituted a gable ended overhanging roof structure, retaining the glazed clear storey of the 1991 scheme. In addition the roof modelling has been altered in that the three forward projecting hipped dormers have been omitted. This change is related to another change in blocks E and F. In the 1991 scheme there were to be two separate courtyards, one in each block. In the drawings submitted with the compliance application, these two courtyards are joined into a single covered atrium extending through both blocks. A consequence of this change is that the position of the plant room on the roof of the two blocks had to be changed so as to locate it horizontally behind the new atrium, so that as one views the eastern elevation of these two blocks, the plant room protrudes above the hipped roof along a distance of some 52 metres. The Applicant contends that the results of these changes is to radically alter the roof profile of these two blocks from the eastern elevation. It is her contention supported by the expert opinion of her architect Mr. Kelly that these are changes which far exceed anything contemplated in the conditions attached to the planning permission and in themselves require planning permission and should have not be permitted by the Respondents, under the guise of being a compliance with the conditions attached to the 1991 planning permission.
13. In block A the Applicant points to a change in the curtain walls for all elevations of this block. It is her contention supported by her architect Mr. Kelly, that in the 1991 permission, the elevations on the tower cluster comprising block A used curtain wall aluminium framed black or very dark glazing recessed within a surround of reconstituted natural stone, in an elevational layout of three bays per floor, with each bay subdivided into six panels. Thus the overall architectural characteristic of the cluster of towers referred to as block A in the 1991 permission is that of black towers subdivided into three bays with white stone or reconstituted stone surround.
14. In contrast to this, the Applicant contends that in the drawings submitted as part of the compliance submission there is a comprehensively different treatment of all elevations in this cluster block in that these drawings indicate the use of unframed butt jointed blue-gray structural glass set flush within a surround of polished Wicklow Ballybrew granite and incorporating vertical stainless steel fins projecting from the outside of the building and running from ground level to top storey all set within an elevational layout of 11 bays per floor. The Applicant contends, and in this respect is supported by the expert opinion of her architect Mr. Kelly that these changes were not permitted or contemplated by any of the conditions attached to the planning permission and ought not to have been agreed to by the Respondents, as being in compliance with the 1991 planning permission.
15. The Applicant points to the following conditions of the planning permission as having been breached. These relevant conditions read as follows
“1 ‘A proposed development shall be modified as follows;
(i) the ground floor level facades of blocks B to George’s Quay, blocks C and D to the entrance plaza, block E to Moss Street, block F to Townsend Street shall be redesigned to provide a reduced proportion of glazing and greater visual interest.
(ii) the corner relationship between the fully glazed and predominantly solid facades at George’s Quay and Moss Street shall be redesigned to provide greater visual emphasis.
(iii) the opened ‘moat’ area between the boundary walls and the buildings facades at George’s Quay and Moss Street shall be reduced to the minimum consistent with ventilation and fire safety requirements. The residual area shall be bridged over and otherwise filled in to provide landscape platforms which shall be top soiled to the parapet level of the proposed boundary wall. The said parapet level shall maintain a constant relationship with the floor level of the adjoining building. Drawings indicating the proposed method of compliance with these requirements shall be submitted to and agreed with the planning authority prior to the commencement of development, or in default of agreement shall be determined by An Bord Plèanala.
Reason:
In the interest of civic design and to render the development more compatible with the pedestrian environment or of surrounding streets”.
16. The Applicant contends that the modification envisaged in this condition affected only the ground floor levels and insofar as blocks E and F are concerned the facades to Moss Street and Townends Street, and this condition did not permit any changes to the facades of blocks E and F above ground floor level or to the roof of these two blocks or to its internal structures. All that was envisaged in this condition is that there would be a modification of the ground floor facades and no more.
17. The next condition which the Applicant claims was breached is condition three which is as follows
“ The external layout, form and appearance of the proposed development shall be clarified, and in this respect, drawings and other particulars shall be submitted to the planning authorities to include the following;
(i) Figured planned layout dimensions in respect of;
(A) the proposed buildings and the distance therefrom to the boundaries of the site,
(B) the widths of vehicular entrances and circulation routes within the site,
(C) the boundary walls which separate the propose residential property from the remainder of the site.
(ii) The overall heights and levels of ;
(A) building floors, roofs and parapet walls,
(B) headroom under block B at Luke Street,
(C) boundary walls, railings and gates,
(iii) Typical elevations and sections of the building facades and street front boundary features which shall be at a scale of not less than 1:50 and be accompanied by comprehensive details and specifications of materials, colours, and finishes , including doors, windows, and any security shutters, grilles, railings or gates which may be proposed.
(iv) Samples of the proposed curtain wall glazing system (S) and other cladding materials to be used externally on the roofs and facades of the buildings, including the soffites of blocks A and B which project over Luke Street.
(v) Details of pedestrian ramps, steps and associated paved areas, including entrance plaza between blocks C and D.
(vi) Landscape planting.
(vii) Location and design of street name plates.
(viii) The location and design of external lighting fixtures, including any proposals for the illumination of the building facades.
Prior to their incorporation into the proposed development the Applicant shall have obtained the agreement of the planning authority in respect of the above matters or in default of agreement the determination of An Bord Plèanala.
Reason:
“In the interest of civic design and in order to clarify the scope of the permitted development. It is considered appropriate that the planning authority should be enabled to assess the suitability of the proposed materials and other specified details at this important city centre location”.
18. It is the Applicant’s case that all this condition permitted was a clarification of material already submitted in the manner perscribed in the condition itself and that it could not and did not permit the Notice Party to alter or depart from the plans in respect of which planning permission has already be given by An Bord Plèanala in 1991. The Applicant points to the distinction between condition 1 which mandates a certain modification and condition 3 which merely requires clarification and hence does not permit of any change or modification. The Applicant contends that condition 3 merely provides for the submission of additional material and detail as set out in the various paragraphs of the condition so as to make clear detail already submitted and more clearly establish the exact scope of the development, and no more.
19. The Applicant next identifies condition number 5 as breached by the compliance Order of the Respondents. This read as follows:
20. “Adequate provisions shall be made to facilitate access to, and use of the proposed development by disabled persons and special provisions shall be made in the off street car park; for the parking of their vehicles. The minimum requirements to be satisfied shall be set out in “Access for the Disabled-Minimum Design Criteria” published by the National Rehabilitation Board. Proposals providing for compliance with this condition shall be submitted to and agreed with the planning authority prior to commencement of development.
Reason
21. To ensure that reasonably facilities are provided for the convenience of disabled persons”.
22. It is the Applicant’s case in respect of this condition that following upon the two compliance submissions of the Notice Party, the Respondent in its Orders or decisions signify agreement as to compliance, set out a whole range of requirements to be met before there could be compliance with this condition. The Applicant submits that given this list of outstanding matter which had not at that time been addressed by the Notice Party, that the Respondents could not have concluded that there was compliance by the Notice Party with condition 5.
23. The next condition of the planning permission which the Applicant says has been breached is condition number 8 and it reads as follows:
“Prior to commence of development the developers shall pay to Dublin Corporation a financial contribution towards expenditure proposed to be incurred by the Corporation in the improvement of public sewerage facilities; the provision of public water supply facilities and associated works; the provision of new traffic signals and of a pedestrian phase to existing traffic signals, which will facilitate the proposed development. The amount of the said contribution, and the time and method of payment shall be agreed with the planning authority or, in default of agreement, shall be determined by An Bord Plèanala.
The requirement to pay this contribution is subject to the stipulations contained in sub paragraphs I, II and III of Section 26 (2) (H) of the Local Government Planning and Development Act 1963 and for the purpose of the said sub paragraphs I and II the specified period shall be the period of 10 years from the date of payment of the contribution.
It is considered reasonable that the developer should contribute towards the costs of the provisions improvement of public services which will facilitate the proposed development”.
24. It is the Applicants case in regard to this condition, that at the time that the Respondents signified its agreement that the Notice Parties plans, drawing and proposals were in agreement with all of the conditions attached to the planning permission, that at that time agreement had not been reached in respect of payment of all contributions to paid under this condition nor had there been full payment of all these contributions and hence the absence of such agreement and payment invalidated the purported agreement of the Respondents that there had been compliance.
25. Finally the Applicant contends that conditions 11 and 13 when taken together, have been breached. These read as follows
“11 Prior to the commencement of development a phasing program for the development shall be submitted to and agreed with the planning authority or in default of agreement, shall be determined by An Bord Plèanala.
Reason
To provide for the orderly development of the site”.
“13 The duration of this grant of permission shall be for a period of 10 years from the date of this Order.
Reason:
In order to facilitate the co-ordinated phasing of this extensive development”. The Applicant’s complaint in regard to these two conditions is that the great bulk of the development has been left until to very end of the period of the planning permission and that there is now a head long rush to complete the development in the short period left, a fact which has come about in the absence of any agreement between the Notice Party and the Respondents as to an appropriate phasing of the development as it is required by both of these conditions.
In addition to the Applicant’s complaints that the Respondents unlawfully and unreasonably signified its consent to the purported compliance of the Notice Party with the foregoing conditions of the planning permission, the Applicant makes the case that by reason of the significance of the changes wrought through the compliance submission, that there ought to have been consultation by the Respondents with the Applicant and other interested community groups, and the failure to have such consultation invalidates the two compliance decisions made on the 7th of January 2000 and the 11th of February 2000.
The Applicant also contends that the Respondents should have sought from the Notice Party as part of the compliance submission an Environmental Impact Statement. The case that the Applicant makes in this regard is that the relevant ‘consent’ as is envisaged by Counsel Directive 85/337/EEC was the decisions of the Respondents made on the 7th of January 2000 and 11th of February 2000. The Applicant contends that the Respondents should have considered making a requirement for carrying out of an Environmental Impact Assessment and requiring an Environmental Impact Statement in relation to the changes encompassed in the compliance submission and that having failed to so do these two decisions are thereby invalidated.
The Respondents in their statement of opposition deny all of the allegations and claims made by the Applicant. It is unnecessary to repeat all of these denials here as the issues raised by them will be dealt with later in this judgment. At paragraphs 3 of the Respondents Statement of Opposition, the Respondents contend that the Applicant was debarred from obtaining the reliefs claimed by reason of the Applicant’s failure to apply for such relief promptly. Pursuant to this claim a motion was brought by the Respondents on the 2nd of May 2000 claiming an Order staying the Order of Lavan J made on the 7th of April 2000 and a further Order striking out these Judicial Review proceedings on the grounds, essentially, that the Applicant had failed to comply with the provisions of Section 82 of the Local Government (Planning and Development) Act 1963 as amended by Section 19 (3) of Local Government (Planning and Development) Act 1992, in that an Application for leave to apply for Judicial Review in respect of the two Orders impugned in these proceedings was not brought within a period of 2 months commencing on the dates upon which these Orders were made and furthermore that the Applicant had failed to comply with the provisions of the aforesaid Section 82 of the Act of 1963 as amended, by reason of the fact that the application for leave was not by Motion on Notice to the Respondents in the manner specified in Section 82. This application was heard by Kelly J. and in a reserved judgment delivered on the 26th of May 2000, he held that Section 82 of the Act of 1963 as amended did not apply, as this statutory provision only applied where the decision in question was on an application for permission or approval under part 4 of the Act of 1963 and did not effect the decisions impugned in this case, and he further held that a ‘determination’ made by An Bord Plèanala under Section 14(9) (C) or (E) of the 1976 Act was not caught by Section 19 (3) of the Act 1992.
The Notice Party by their Statement of Opposition similarly deny the various allegations and claims of the Applicant and do so in terms which are broadly similar to the Statement of Opposition of the Respondents.
This Application was heard on Affidavit and there was no cross-examination of any the deponents by any of the parties. For the Applicant Affidavits were sworn in the proceedings by the Applicant herself, four Affidavits were sworn by James Kelly, an architect and four Affidavits were sworn by David Soden the Solicitor for the Applicant. For the Respondents and Notice Party, Affidavits were sworn by Patrick F A McDonnell, James Barrett, Bridget Kelly, Michael Kinsella, Michael P Burke, Michael Cosgrave and Bernard McHugh.
EVIDENTIAL DISPUTES
Such disputes as were raised on the evidence all related to the original or duplicates of plans which were submitted as part of planning application number 1703/90 to the Respondents and which ultimately led to the decision of An Bord Pléanala to grant planning permission on the 20th of March 1991.
Mr. Callanan S.C. for the Applicant submitted that the evidence indicated that when the Respondents made the two decisions that the relevant officials did not appear to have available to them at that time the originals of or duplicates of the plans in respect of which planning permission had been granted by An Bord Pléanala. As a consequence of this Mr. Callanan submitted that the two decisions signifying compliance were unreasonable or irrational in the sense envisaged in the case of O‘Keefe -v- An Bord Pléanala (1993) 1IR39, no reasonable decision making body being in the position to make a decision that there was compliance, when the original material in respect of which there was to be compliance was absent.
It is common case that the original planning file that is to say the file in respect of application number 1703/90 was missing and had been for some years. The evidence put forward on Affidavit by deponents for the Respondent was to the effect that when the application for revision of the 1991 permission was made in 1998 duplicates of the plans which accompanied application number 1703/90 were submitted with the 1998 application. This evidence is not controverted. Mr Callanan submitted that there was no evidence or no evidence which expressly was to the effect that when the compliance decisions were made that these duplicate plans were seen and considered by the relevant officials.
I am unable to accept this submission in the light of the contents of the Affidavit of Patrick F A McDonnell the Chief Planning Officer of the Respondent, sworn on the 20th day of June 2000.
At paragraph 11 of the said Affidavit he says the following inter alia:-
“… I say that the Respondents planning file bearing reference number 1703/90 had been lost for some time and despite extensive searches the file cannot be found. I say that in considering the compliance submissions submitted by McHugh Consultants to the planning department the Respondents had regard to the information in the compliance drawings supplied by McHugh Consultants and to a set of drawings which were duplicates of the original drawings lodged with the planning department bearing the plan reference number 1703/90, which had been lodged on behalf of the Notice Party with the planning authority on the 8th day of May 1998 under planning permission reference number 1290/98 when planning permission was sought for the retention of blocks B, C and D and for the revisions and amendments to the planning permission granted under the planning register reference number 1703/90.
I further say that in the course of the meetings with the Notice Parties consultants duplicates of these drawings were also available for inspection.”
26. James Barrett the City Architect in an Affidavit sworn on the 22nd of June 2000 says the following at paragraph 4
“I say that I was consulted by Mr. Patrick McDonnell, the Dublin City Planning Officer and on following receipt of the compliance submissions received from McHugh consultants under the terms of the conditions attached to the planning permission granted by An Bord Pléanala I was furnished with copies of the drawings and a copy of the planning permission, and requested to give my opinion in my capacity as a city Architect as to whether proposals submitted were compliant with conditions number 1 and 3 of the planning permission”.
27. In the light of these averments which were not controverted and neither were the deponents cross examined on them, and in the light of the undisputed evidence concerning the history of planning file number 1703/90 and the submission of duplicates of the original plans on planning application number 1290/98, I have concluded that Mr. McDonnell and Mr. Barrett did in all probability have before them duplicate copies of the plans in respect of which An Bord Pléanala granted planning permission, at the time when their relevant professional assessments were made for the purposes of the compliance application.
28. Both Mr. Rodgers S.C. for the Respondents and Mr. O’Neill S.C. for the Notice Party drew attention to the fact that the Applicant as part of his proofs, had not exhibited with any of the Affidavits, either the originals or duplicates or any other form of copy of the plans lodged with planning application number 1703/90 which led to the planning permission in March 1991 and both submitted that as a consequence of this, it was not possible for the Court to determine one way or another whether or not there had been any material departure as was been claimed by the Applicant from the 1991 permission in the compliance orders and hence it was their submission that the Applicants case must fail for want of essential proofs.
29. It is to be noted that the Applicant identifies, as indicated earlier, a number of matters as been in her view impermissibly at variance with the 1991 permission. In summary these were in blocks E and F changes in the facade above ground level involving altering the relationship between solid to void and thereby reducing the amount of fenestration, the removal of two separate courtyards joining together into a single covered atrium running through both blocks with consequent changing of position of the plant room and consequent changes in the roof profile, and in respect of block A the change in the colour of the curtain wall glazing from either black or very dark to blue grey and a change in the layout of the bays of these windows and a change from in corporation in recessed reconstituted white stone to a flush finish with Wicklow Ballybrew granite.
30. In his Affidavit sworn on the 3rd of April 2000, James Kelly says the following at paragraph 10
“ Not withstanding the indication given by the secretariat at the planning authority that the original files relating to planning register reference 1703/90 were missing, I found a set of architectural drawings dated July 1990 with a Dublin Corporation receipt stamp on them, dated the 8th May of 1998 , numbered 8912/505 to 8912/525. On comparing these drawings to the image of the 1991 purposed development set out in the environmental impact statement, it seemed possible that the said drawings may have been copies of the drawings originally submitted with the planning application made to the Corporation in 1990. I should emphasise that this is an assumption. I found no document on the planning file I inspected confirming that the said drawings were copies of those referred to in the decision of An Bord Pléanala dated 20th March 1991.”
31. In paragraph 15 of this Affidavit Mr Kelly says the following “…on the assumption that the development in respect on which planning permission was granted by An Bord Pléanala on 20th March 1991, is that which is depicted in the extract on the environmental impact statement previously referred to that which is depicted and illustrated in the drawings referred to at paragraph 10 above, I am of the view that the compliance drawings submitted by the developers in respect of block A of this purposed development constitute a comprehensive variation of that for which planning permission was originally granted. Having examined drawing numbers 8912/525 and 8912/526, bearing a date in 1990 and having regard to the computer generated depiction of the cluster of towers known as block A and exhibited herewith, I note the following critical architectural details and designs for block A as permitted by the decision of An Bord Pléanala of 20th March 1991. The elevations on the towers use curtain wall aluminium framed black or very dark glazing recessed within a surround of reconstituted natural stone in an elevation layout of three bays per floor with each bay subdivided into six panels. I have a sketched elevations as depicted on drawings 8912/525 and 8912/526 which I examined in the offices of the planning authority and beg to refer to this sketch upon which marks the letters JK3 I sign my name prior to the swearing hereof. This elevation treatment is a match for the depiction of the elevation of the 1991 permission as submitted in the environmental impact statement to An Bord Pléanala in 1999. The further significant architectural feature of these elevations is the use of black or very darkly tinted reflective glass. I am satisfied that the overall architectural characteristic of the cluster of towers referred to as block A , as granted by An Bord Pléanala in 1991 is one of black towers subdivided into three bays with white stone or reconstituted stone surround. By contrast with the elevation treatment in respect to which planning permission was granted in 1991, the compliance drawings submitted for block A on 22nd of December 1999 to the planning authority indicate comprehensively different architectural treatment of the elevations of these clustered towers, such that what is now purposed was never within the contemplation of An Bord Pléanala when it granted permission on 20th March 1991.”
32. Examining exhibit JK1 in the Affidavit of James Kelly one sees a picture in colour of the central cluster block, namely block A, depicting curtain walls in black or very dark glazing, surrounded by white.
33. These averments of Mr. Kelly were not controverted on Affidavit by any of the deponents of the Respondents or Notice Party nor was Mr. Kelly subject to cross examination on them.
34. I have therefore come to the conclusion that on the balance of probabilities, the elevational treatment of block A in the 1991 planning permission is as has been described by Mr. Kelly in his Affidavit.
35. As far as the changes to blocks E and F are concerned, these changes are described in detail by Mr. Kelly in his Affidavit sworn on the 28th day of June 2000, where he says at paragraph 25 as follows.
“… In addition to comments I made in my earlier Affidavit and based now on the drawings made available by Mr. Kinsella I describe the disparities between blocks E and F in 1991 and now as follows;
1 Ground floor level modelling: I note a deeper recessing at the ground level glazing within the arcaded treatment at this level not apparent in the 1991
drawings. This whole treatment would appear to be consistent with the requirement on the Notice Party contained in condition number 1 of the
permission to modify the ground floor treatment of blocks E and F.
2 Floors 1 to 3 inclusive. Modelling: I note a change in material from
selected brick to selected reconstitute natural stone. I note a significant
alteration and amendment to the overall relationship of solids to voids, in that
the proportion and layout of windows, opes and general fenestration in relation to solid elements of walling has been considerably altered and reduced. This means that there is significantly less fenestration visible on the East elevation on blocks E and F than there was in the 1991 permission. In effect this gives rise to a new elevational treatment at these levels.
3 Levels 4 and 5: level 4 on the 1991 drawings constitutes a hipped roof
and dormer structures overhanging a glazed clear storey element being a full
height glazing element stretching the entire length of the East elevational
blocks E and F. The current planning compliance drawings now illustrate this level as incorporating a gable ended overhanging roof structure while retaining the glazed clear storey of the earlier scheme. Additionally the roof modelling has been altered in that the three forward projected “hip dormers” have now been omitted.
4 Level 5 is a substantially new level of plant accommodation on this eastern
elevation as shown on the 1991 planning permission drawings, this level
consists of a short run of 16 metres hipped roofed accommodating plant.
This has now been revised and remodelled to be replaced by a storey or floor
which is 52 metres which is to be used for air conditioning and chillers.”
36. Mr. Kelly goes on to say in paragraph 26 of this Affidavit
“On examining Mr. Kinsellas drawings I became aware of a further disparity between the 1991 permission and what is currently been constructed. In order to confirm my observations I visited Dublin Corporations’ offices on the morning of the 26th June 2000 with the Applicant’s instructing Solicitor, where I carried out further examination of compliance submissions to the Respondent by the Notice Party. The 1991 permission envisaged that blocks E and F would have as there centre, a pair of unroofed courtyards. The Respondent has now accepted that the Notice Party may combine these courtyards and cover them with a new hipped glazed roof element, thereby altering dramatically the roof profile of blocks E and F. The hipped glazed roof element for this covered courtyard is in front of the elongated plant room I have described above. This feature is not one I had noticed before I got Mr. Kinsellas drawings with his Affidavit of the 12th of June 2000 as it was not highlighted or keyed on the elevational drawings and it highlights another significant departure from that which was granted permission by An Bord Pléanala in 1991”
37. An examination of exhibit E in the Affidavit of Michael Kinsella sworn on the 12th of June 2000, clearly demonstrates the changes in the facades to blocks E and F and also the changes in the roof profile of blocks E and F as described by Mr. Kelly in his Affidavit.
38. Not only are these averments of Mr. Kelly not controverted on Affidavit by Respondents or the Notice Party, the Affidavits of Mr. McDonnell and Mr. Kinsella in broad terms accept that changes were made to the eastern elevation of blocks E and F and to the roof profile and that the plant room was reorientated. Exhibits JK1 in the Affidavit of James Kelly sworn the 3rd of April 2000 and in particular the depiction in colour of the development as permitted in the 1991 permission, clearly shows in blocks E and F, two separate uncovered courtyards and placed on the roof separating these two courtyards, a raised structure which is probably the plant room. The drawings being exhibit MKB referred to in the Affidavit of Michael Kinsella and in particular drawings number 99083EF/07A clearly show an entirely different configuration with a glazed over atrium running down the length of both blocks thus necessitating the reorientation of the plant room, with the consequent changes in roof profile.
39. All of this persuades me that the changes from the 1991 permission as described in the Affidavit of James Kelly in relations to blocks E and F, are accurately described and I accept his evidence in this regard and hold as a fact that these changes as described by Mr. Kelly in relation to blocks E and F are provided for in the drawings accompanying the compliance submission of the 2nd of December 1999.
CORRECT APPROACH TO CONSTRUCTION OF THE PLANNING PERMISSION
40. This was undoubtedly the most controversial aspect of the case. The difficulty which is manifest here is in determining whether the correct approach to the interpretation and of the conditions attached to the planning permission is to determine whether or not the Respondent correctly construed the meaning of the conditions, or whether the appropriate test is that set out by Finlay CJ in O’Keefe -v- An Bord Pleanala (1993) 1IR39, namely, whether there was irrationality or unreasonableness on the part of the Respondents which vitiated the two decisions in the sense that, there was no material which could support the conclusions reached. The question which has to be decided is aptly put by McGuinness J in the case of Wicklow Heritage Trust Limited -v- Wicklow County Council Judgment delivered 5th February 1998, where she said at page 9 of her Judgment the following:
“the question is not whether the Senior Executive Planner or the County Manager were unreasonable in thinking that the Ballymagran site was not a material contravention; the question is whether they were correct in law in
this opinion”.
41. In that case what was involved was the construction of a County Development Plan.
42. For the Applicant it was submitted that the test laid down in O’Keefe -v- An Bord Pleanala was inappropriate, save in one respect, namely, that were the 1990 plans or duplicates of them not before the decision makers when the decisions were being made, that on the basis of the test in this case there would have been no material before the decision makers, which could have supported the decisions made. Otherwise, they submit that as Mr. MacEochaidh put it in reply, what is a issue here, is an old fashioned jurisdictional point. The Applicant submitted that the decisions impugned in these proceedings are essentially administrative decisions, unlike the decision of a local authority or An Bord Pléanala under Section 26 of the Act of 1963 on an application for approval or permission. It was submitted further for the Applicant that what is involved in the exercise been conducted by the Respondents in this case was an implementation of the conditions attached to the planning permission, conditions which bound both Notice Party and the Respondents and therefore what had to be ascertained or what had to be decided, was the true or correct meaning of these conditions and hence the reasonable test as envisaged in the O’Keefe decision was inappropriate. The kind of task the Respondents had contrasted markedly with the jurisdiction they would have on an application for permission or approval under Section 26 of the Act of 1963.
43. In support of their submissions, in this regard, Mr. Callanan referred to the case of Gregory -v- Dun Laoghaire Rathdown County Council both to the unreported Judgments of Geoghegan J delivered on the 16th of July 1996 and the unreported Judgments of the Supreme Court delivered on the 28th of July 1997. In this case, the matter at issue was similar to the present case, in that, it related to the agreement by Dun Laoghaire Rathdown County Council to a certain proposal purporting to be in compliance with a condition attached to a planning permission by An Bord Pléanala. Geoghegan J said the following starting at page three of his Judgment:-
“But for the purposes of this application I must consider whether the Applicant is entitled to the declarations and order of certiorari sought if I consider that the Councils interpretation of the condition was wrong or whether, as a matter of law, the Applicants must go further and satisfy this Court that no reasonable council could have interpreted the condition in the way it did. In my view, I have only to consider whether the Council acted ultra vires. That is to say whether it adopted an incorrect interpretation of the condition.”
44. In the Supreme Court the following was said by Murphy J at page 10 of his Judgment:
“It was argued on behalf of the Council that the interpretation of condition 2 as requiring only internal changes was at least a reasonable construction of the condition and, even if erroneous, it was a construction which the council were entitled to put on the condition in the proper and bona fide exercise of their functions. In my view this argument is unsustainable. The proper function of the Council was the implementation of the condition imposed by the board. If they erred in that regard the error was as to the nature of their duties rather than the performance of it. The only power exercisable by the Council was to agree details in relation to the revised plan on the basis of the implementation of the condition imposed by the board. Any agreement reached without that condition having been fulfilled was necessarily ultra vires the Council.”
45. Barron J and in the course of his Judgment at page 5 of the same said the following:
“the real issue in this case is as to the proper construction of condition number 2 of the permission granted by An Bord Pléanala”.
46. Lynch J agreed with the Judgments of Murphy J and Barron J.
47. For the Respondents, Mr. Rodgers submitted that in determining whether or not the decisions impugned in these proceedings were ultra vires , the appropriate test is to be found inter alia and the Judgment of the Supreme Court in the case of the State (Abenglen Properties) -v- Dublin Corporation (1984) IR381 and also in the case of O’Keefe -v- An Bord Pléanala already mentioned. Mr. Rodgers cited the following passage from the Judgment of Henchey J in the Abenglen case as follows:-
“For the purpose of this appeal I am prepared to assume (without so holding) that the Respondents erred in relation to those matters to the extent found by the Judge of the High Court. If they did so err, their errors do not appear on the face of there decision. The alleged errors arose in the course of identifying and construing the relevant development plan. There is no doubt but that on a true reading of the relevant Acts and regulations the Respondent is the appropriate planning authority and has jurisdiction to identify and construe the relevant development plan in its relation to Abenglen’s application . If therefore, the Respondents erred in either respect, they erred within jurisdiction and any error that they have made does not appear on the face of the record. In such circumstances the remedy of certiorari does not lie : see Judgments of the House of Lords in re Racal Communications Limited and that of the privy council S. Asia Bricks -v- Non Metallic Products :-
“Where an inferior Court or a tribunal errs within jurisdiction, without recording that error on the face of the record, certiorari does not lie. In such cases it is only when there is the extra flaw that the Court or tribunal acted in disregard of the requirements of natural justice that certiorari will lie. In the present case, there is no suggestion that the Respondents in dealing with Abenglen’s application acted in disregard of any of the requirements of natural justice. They went wrong in law, if at all, in answering legal questions within their jurisdiction and they did not reproduce any such legal error on the face of the record of their decision. Consequently in my view, they did not leave themselves open to certiorari in respect of their decision”.
48. Mr. Rodgers submits that the Respondents clearly had jurisdiction to make the decisions that they made and hence even if there was any error made it was one which was within their jurisdiction and hence the remedies claimed in these proceedings are not available to the Applicants.
49. Mr. O’Neill S.C. for the Notice Party in his submission stressed the test laid down in O’Keefe -v- An Bord Pléanala and submitted that this was the appropriate test and as there was manifestly ample material to support the two compliance decisions and as there were manifestly within jurisdiction there were no grounds upon which certiorari could lie. In this respect he also refers to the case of Byrne -v- Wicklow County Council an unreported Judgment of Keane J as he then was, delivered on the 3rd of November 1994, in support of this submission.
50. In my view the case of Gregory -v- Dun Laoghaire Rathdown County Council is on point. What was in issue in that case was, as it is in this case the implementation by way of agreement between a developer and a local authority of a condition in a planning permission imposed by An Bord Pléanala. In that respect, the case is on all fours with the instant case. I am, therefore, in my view bound by the authority of the Judgments of the Supreme Court which appear to me to be unequivocally against the proposition advanced by Mr. Rodgers and Mr. O’Neill. I accept therefore, that the appropriate test to be applied is that the conclusion or decision of the Respondents must be looked at to see if it is correct in law and not reasonable in the sense of the test laid down in O’Keefe -v- An Bord Pléanala .
51. Apart from authority, the nature of the function being discharged by the Respondents in dealing with these compliance application leads in my view inexorably to this conclusion. As Mr. Rodgers said in the course of his submission, what we are dealing with here is the tail end of the planning process. The application for planning permission has in the first instance being heard and determined by the Respondents in accordance with the statutory procedures. Its decision was appealed to An Bord Pléanala and, it, in due course, heard and determined that appeal again having conducted its proceedings in accordance with the elaborate statutory procedures involved. All through these procedures the relevant parties i.e. the developer, the local authority and the public were involved and made their respective case. Ultimately, An Bord Pléanala finally determined the matter by its decision to grant planning permission on the 20th of March 1991. Thereafter all that remained to be done was to achieve compliance with the conditions in the planning permission by way of an agreement between the Notice Party and the Respondents or failing that by way of determination by An Bord Pléanala. This final leg of the procedure was confined between the Notice Party and the Respondents and did not include the Applicant or any other members of the public. It necessarily follows from this, that what is required of this compliance procedure is no more than faithful implementation of the decision of An Bord Pléanala. The jurisdiction so invoked on the part of the Respondents is a very limited one and of a ministerial nature. What they have to do is to implement that which has already been decided in essence. Thus, all that they must ascertain is the true or correct meaning of the conditions attached to the planning permission and to confine themselves and the Notice Party to such proposals as are in compliance with those conditions.
52. This exercise is wholly and radically different to the jurisdiction exercised by a planning authority after the statutory planning procedure has been gone through, in making its decision to grant or refuse an application for permission or approval. This latter exercise is clearly of a judicial nature and involves the local authority drawing on its resources of expertise in planning matters and having regard to the circumstances of each case and the relevant planning considerations making a decision which necessarily involves on its part an, extensive discretion. When ultimately that process is finally exhausted by a decision of An Bord Pléanala if there is an appeal, it would be wholly contrary to principle and impractical if the questions which were involved in the application and in the appeal were to be reopened or to be revisited on a compliance application particularly in circumstances where essential parties i.e. in this case the Applicant or otherwise the Public were excluded. A fortiori, new issues could not be opened at this stage of the process. Therefore in my view it necessarily and obviously follows that the Respondent must be confined in this exercise solely to the ascertainment of the true and correct meaning of the conditions and consequent, on that, confined in their agreement to proposals which faithfully adhere to and implement those conditions.
53. Necessarily, such an approach excludes, in my view, “the reasonableness test” as laid down in O’Keefe -v- An Bord Pléanala from the compliance procedure.
CORRECT CONSTRUCTION OF THE CONDITIONS IN THE PLANNING PERMISSION
54. All parties to the proceedings in their submissions relied upon the judgment of the Supreme Court in the case of Boland -v- An Bord Plénala (1996) 3IR435. This case dealt with the type of matter which may properly be inserted into a planning permission for later agreement between the planning authority and a developer. The judgments in this case establish the criteria to which the board was entitled to have regard in deciding whether to impose a condition leaving a matter to be agreed between the developer and the planning authority to be as follows:
(a) the desirability of leaving to a developer who was hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise:
(b) the desirability of leaving technical matters or matters of detail to be greed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require redesign in the light of practical circumstances:
(c) the impracticability of imposing detailed conditions having regard to the nature of the development:
(d) the functions and responsibilities of the planning authority:
(e) whether the matters essentially are concerned with offsite problems and do not affect the subject lands:
(f) whether any member of the public could have reasonable grounds for objecting to the work to be carried out pursuant to the condition, having regard to the precise nature of the instructions in regard to it laid down by the board and having regard to the fact that the details of the work had to be agreed by the planning authority.
55. I accept, that it is manifestly clear that I must have regard to these criteria when approaching the task of determining what was a correct construction of the conditions attached to the planning permission in this case. I have also been referred to the case of In Re. XJS Investments Limited (1996) IR750 in which McCarthy J delivering the judgment on the Supreme Court said at page 756 the following:
“Certain principles may be stated in respect of the true construction of planning documents:
(a) to state the obvious they are not Acts of the Oireachtas or Subordinate legislation emanating from skilled draftsmen and inviting the accepted cannons of construction applicable to such material:
(b) they are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning…..”
56. I am happy and indeed bound to follow this approach in determining the true construction of the conditions attached to this planning permission.
57. Before dealing with each individual condition a number of features of the planning permission are worthy of note and attention was drawn to these by both Mr. O’Neill and Mr. Rodgers. Firstly, the development was of an inordinately large size, some 66,000 square meters or approximately 700,000 square feet. The development was a very complex one involving five perimeter blocks and a large central cluster block. The site was very large and in terms of civic design a very important one because of it’s central location and it’s location vis-a-vis other important architectural sites. Reflecting the enormous size of this development and it’s complexity this planning permission, unusually, has a duration of ten years. It is also note worthy and attention was drawn to this by Mr. O’Neill that unlike most other planning permissions there is not in the conditions a condition requiring that the development be carried out in accordance with the plans and specifications lodged with the planning application.
58. I take the view that having regard to the nature of this development, it was one, in respect of which the criteria set out by the Supreme Court in the case of Boland -v- An Bord Pléanala are remarkably apposite.
CONDITION ONE
59. The only part of condition one which is relevant to this case is paragraph 1.
60. Mr. Callanan for the Applicant submitted that in this context, the word “modified” permitted changes to the ground floor facades of blocks E and F as they faced Moss Street and Townsend Street but no more than that and he submitted that this condition could not be construed so as to have permitted the changes in the facades of these two blocks above ground floor level which changes are envisaged in the compliance material. Mr. Rodgers for the Respondent submitted that conditions one and also three, which I will deal with later, permitted the modification of the proposed development in the course of the compliance process provided such modification was within the ambit of contemplation of conditions one and three.
61. In my view condition one merely permitted some alteration to the ground floor level facades of block E and F, and as far as this case is concerned I do not think that this condition can be availed of as a basis for the changes to the upper facades or the internal arrangements and the changes in the roof of blocks E and F
CONDITION THREE
62. This condition is crucial to the alterations envisaged in the compliance material. Mr. McDonald in his Affidavit clearly construed this condition as the one which permitted these alterations and Mr. Rodgers and Mr. O’Neill in their submissions relied on their view of the construction of this condition to justify such changes as were contained in the compliance material.
63. Mr. Callanan for the Applicant in his submissions placed great reliance on the word “clarified” as meaning simply that all that was sought was the making clear or the enhancement of detail or information already given so as to establish the full scope or the development and he submitted that use of the word “clarified” in this condition necessarily implied that no change or redesign or modification was envisaged by this condition, merely the provision of further detail and further drawings so as to make clear that which has already been provided. Hence in his submission it was not open under this condition to change the colour of the curtain wall glazing in block A from black or very dark to blue grey with a silver tint. Similarly it was not open under this condition to make changes in the facades of the floors above ground level in blocks E & F. He submitted that there was nothing in this condition or indeed in condition one which could have anticipated or contemplated or envisaged the change in the internal layout i.e. the joining of the two courtyards in blocks E and F into a single atrium under a glass roof with the consequent rearrangement of the plant room and the rearrangement of the roof resulting in a profile on the eastern elevation which gives the appearance of an extra storey.
64. Both, Mr. Rodgers and Mr. O’Neill draw attention to and stress the importance of the second paragraph of this condition starting with the words “Prior to their incorporation” and submit that if all that was envisaged in this condition was simply the provision of further detail for the purposes of making clear, then the agreement of the planning authority would not have been needed because there would be no change to be agreed to. Both Mr. O’Neill and Mr. Rodgers stressed the importance of the reason attached to this condition. They identified two factors which were featured in the reason. The first of these was the “interest of civic design”. The concept of civic design, it was submitted, imported a relationship between this development, the city generally, other buildings in it, and the people which would use this building or who would come in contact with it or it’s environs. It was submitted that this would entail over the ten year period of the planning permission the necessity to permit some degree of flexibility so that, as the project developed evolving standards of civic design could be accommodated, new technologies embraced and changes and developments occurring in the surrounding environs of this development adapted to and accommodated. The second factor which they identified in the “Reason” attached to this condition was the fact that An Board Pléanala considered it appropriate that the planning authority should be enabled to assess the suitability of the proposed materials and other specific details at this important city centre location. It was submitted that this necessarily envisaged that the question of the materials, which would include matters such as stone, glass and various metals attached to the exterior of this development were not finally decided, but would have to be agreed to by the planning authority. This combined of with subparagraphs III and IV of the condition itself necessarily imply, they submitted, that the final detail of the materials, colours, and finishes to be used on the doors, windows, security, shutters, grills, railings, or gates and the curtain wall glazing systems and other cladding material to be used on the roofs’ and the facades of the buildings were not finalised and had to be agreed with the Respondents. It was further submitted that the flexibility envisaged in this condition was precisely that kind of flexibility which the Supreme Court had envisaged would be left to a developer in carrying out a very large and complex project such as the instant one and that these were precisely the kind of technical matters or matters of detail which should be left to be agreed between the developer and the planning authority including in some instances where necessary some element of redesign. It was further submitted that having regard to the long duration of this planning permission, it was entirely foreseeable and indeed envisaged by An Bord Pléanala that over the lifetime of the planning permission there would be changes in technologies and changes in materials, which it was desirable to accommodate. It was further submitted by them that the such changes as were envisaged in the compliance material were not such as would motivate reasonable members of the public to object.
65. It was submitted that the reference in the reason to the “scope of permitted development”, in the context of clarification and the interest of civic design necessarily imports latitude and capacity for some “redesign”.
66. In my view, condition three cannot be given the narrow construction contended for by the Applicant. Taking the condition as a whole including the second paragraph and also the reason and in particular paragraphs III and IV it would seem to me that the non-expert person envisaged by McCarthy J in the XJS case reading the entirety of this condition would undoubtedly be left with a clear impression that as Mr. Rodgers put it in his submission, such detail as was included in the plans and drawings submitted with the application were not “set in stone” and that some degree of change was envisaged as permissible. Needless to say in order to keep faith with the planning permission generally and the scheme in respect of which it was given, such degree of change would have to be of a very limited and technical nature and not such as to excite significant public interest and/or objection.
67. In my opinion, the changes to the facades of the upper floors of blocks E and F manifestly come within that limited degree of flexibility for change envisaged in condition three.
68. So far as block A is concerned the changes in the curtain wall systems excluding for the moment from consideration, the change in the colour of the glazing, would in my view be manifestly regarded as technical detail and within the limited degree of change permissible still in compliance with the planning permission.
69. The question of the colour change in the curtain wall glazing of block A has understandably given rise to considerable concern on the part of the Applicant. However it would appear that what she perceived prior to the initiation of these proceedings as being a colour change from black to white was an misapprehension on her part as a result perhaps of being misled by the appearance of a model she saw at a meeting on the 21st of January 2000 and a subsequent newspaper report. The model in question showed block A as having a very white or translucent appearance. As a result of Mr. Kelly’s examination of the compliance drawings it is now clear that the colour which is proposed for the curtain wall glazing on block A is a blue grey with a silver reflective tint set. The difference between that and black or very dark glass is much less than perhaps the Applicant originally perceived and in my view such a degree of change in colour is not such as would ordinarily excite the interest or indeed objection from reasonable members of the public and hence I am driven to the conclusion that the change in colour as proposed in the compliance material, having regard to the duration of this planning permission and the need to accommodate civic design, is one which would undoubtedly have been envisaged by An Bord Pléanala because colour is specifically mentioned in the condition and this change is in my view of such a limited degree as to be easily and comfortably accommodated within the scheme for which planning permission was granted by An Bord Pléanala in March 1991.
70. The rearrangement or redesign of the two courtyards into a single atrium in blocks E and F and the consequent changes to the plant room and the rearrangement of the roof profile are a different matter.
71. There is nothing in Condition I that could possibly justify these changes. Condition three relates solely to the external layout of the development and in my opinion cannot be construed so as to envisage this change, or to permit it, no matter how desirable this change might be. It noteworthy that the text of the compliance submission dated 1st of December 1999 contains no express reference to these changes, which are to be found solely in the drawings submitted. Nor indeed is these any express reference to these changes in the text of the agreement to compliance dated the 7th of January 2000. Mr. McDonald’s view expressed, in his Affidavit was that these changes were encompassed by condition three. I cannot accept this and I believe he erred, in his view as to the correct construction of condition three.
72. It was submitted by Mr. O’Neill for the Notice Party, that in any event, such changes, in this regard, as were sought in the compliance material would be exempt development under the Section 4 (1) (g) of the Local Government (Planning and Development) Act 1963 which reads as follows:
“(g) Development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure being works which effect only the interior of the structure or which do not materially effect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures”.
73. It was submitted that because these changes were changes to the internal structure of blocks E and F that they came within the exemption permitted under this subsection of the Act and that being so that it was open to the Notice Party to proceed with these changes in any event.
74. In support of this submission reference was made to the case of Smyth -v- Colgan (1999) 1IR548. This case related to an extension to a dwelling house which was claimed, was an exempt development. Although it is not expressly stated in any of the judgments it seems to me to be implicit from them that the dwelling house to which the extension, which was claimed to be exempt, was attached, and in respect of which undoubtedly planning permission had been obtained, was in fact, constructed at all material times. The issue in that case was whether or not it could be considered a dwelling house for the purposes of the exemption although nobody had lived in it up to the point of the carrying out of the alleged exempt development. In my view this case is not an authority which supports the proposition that because the rearrangement of the internal structure of blocks E and F could be said to be an exempt development, that is its permissible at this stage in advance of the construction of blocks E and F in compliance with the planning permission to disregard the internal structures in respect of which planning permission was obtained and to carry out the development in the first instance in this rearranged fashion.
75. In my opinion were it open to a developer to do that, it would make nonsense of planning permission in respect of internal structures, as it would be open to a developer to make such alterations as he pleased not withstanding the plans and specifications in respect of which planning permission had been obtained. Thus the planning code would be confined solely to exterior structures. This of course cannot be, and I have no doubt that Mr. O’Neill is incorrect in this submission.
CONDITION FIVE
76. The Applicant’s case in regard to this condition is that in their communication of agreement in respect of both compliance submissions the Respondents in respect of both compliance submission set out a number of requirements not hitherto addressed in the compliance material and in respect of the compliance application in respect of block A stated there was not sufficient detail or scale for a thorough Part M assessment. The Respondent then set out eight requirements in respect of block A and also made a number of requirements in respect of block’s E and F .
77. The Applicants submit that in view of the apparent incompleteness of the Notice Party’s submissions in respect of condition five for both blocks E and F and block A that it was not open to the Respondents to signify their agreement that the proposals were in compliance with the planning permission. I cannot accept this submission as it ignores the fundamental nature of the exercise. What was required by the condition in the planning permission was to reach agreement or failing that there would be a determination by An Bord Pléanala. There was nothing in the condition to prohibit proposals or requirements being put forward by the Respondents. It would then of course be a matter for the Notice Party whether or not these were acceptable. Generally what happened in this case was that proposals were advanced in the compliance submission by the Notice Party but in the case of condition five the reverse took place in that the Respondents having considered the submission clearly decided that a number of matters were not sufficiently addressed and they themselves put forward their own requirements. It was a matter then for the Notice Party to either accept these requirements or appeal them to An Bord Pléanala. The Notice Party did not so appeal and it must be inferred, that these requirements were acceptable to the Notice Party. Paragraph 16 of the Statement of Opposition of the Respondents indicates so much. It reads as follows:
“It is denied that the Respondent acted unlawfully in concluding that the developers had complied with condition number 5 in the manner alleged or at all. The incorporation by the Respondents of several requirements was by agreement with the Notice Party to insure compliance with the said condition”.
CONDITION EIGHT
78. The Applicant’s complaint in regard to this condition is that at the time the two compliance Orders were made, that there was not agreement on contributions nor were they paid, and hence it was not open at that time to the Applicants to signify their agreement that there was compliance with the planning permission.
79. The Affidavit of Bridgit Kelly sworn on behalf of the Respondents indicates a different picture which would not have been known to the Applicants at the time of the initiation of these proceedings. That fact is acknowledged by Mr. Sodon in his final Affidavit.
80. In Paragraph three if her Affidavit Bridgit Kelly deposes to the fact that by letter dated the 6th of October 1992 the Respondents agreed to a proposal put forward by the then developer Irish Life Assurances Plc for the payment of £123,500 index linked to the date of grant of permission on a phased a basis as follows: Phase 1 Block C and D 40,000; Phase 2 Block B 20,000; Phase 3 Block A 65,000 and Phase 4 Block E and F 38,500,
81. In respect of blocks A, E and F the Notice Party under cover of a letter of the 31st of January 2000 paid the sum of £103,500 and requested details of the amount due in respect of indexation. Under cover of a letter of the 6th April 2000 the Notice Party enclosed a payment for the sum of £31,492.74 in respect of indexation, thus discharging in full all sums due on foot of condition eight.
82. For the purpose of the compliance exercise what was required of the Notice Party was as is said in the last sentence of the first paragraph of condition eight:
“The amount of the contribution and the time and method of the payment shall be agreed with the planning authority, or in default of agreement shall be determined by An Bord Pléanala”.
83. The letter of the 6th October 1992 achieves the requirement of agreement for the purpose of satisfying the condition. The Applicant however complains that payment of the amount due in respect of the contribution was made on the 31st of January 2000 some three weeks after the compliance order in respect of blocks E and F and the final payment in respect of the amount due for indexation was not received until the 6th of April 2000 after both compliance orders and indeed after the initiation of these proceedings.
84. In my view what the condition required was agreement on the amount to be paid. Failure to have paid prior to the commencement of the development would as submitted by Mr. Callanan have had the effect of bringing Section 26 (10) (a) of 1963 Act into operation thereby rendering the entire permission a nullity until such time as it had been paid. Thus, such development as was carried out during the period of default would have been development carried out without any permission whatsoever and would have rendered the Notice Party liable to a variety of enforcement procedures contained in the planning code.
85. The purpose of the compliance procedure is to finalise the scope of the scheme in respect of which permission is granted. That is a separate matter entirely from carrying out of the development and it’s commencement. Such default as there was in the payment of the contribution merely rendered the Notice Party liable to enforcement procedure during the period of default and did not in my view impinge upon the valid completion of the compliance procedure.
CONDITIONS ELEVEN AND THIRTEEN
86. The Applicants complaint in regard to these two conditions is that there was a failure to agree a proper phasing of the development with the Respondents and now there is a headlong rush to have the development completed in the relatively short period left before the expiry of the planning permission. The Notice Party counters this objection on the basis that the essence of the complaints been made by the Applicant have to do with nuisance created by the development and that problems in this regard have been addressed and agreement reached between the parties and hence it is not open to the Applicant to pursue this complaint.
87. The Notice Party in their two compliance submissions said the following in regard to condition Eleven:
“Dublin Corporation will be aware that those elements of the overall development as have been completed to date have been agreed in respect of phasing with Dublin Corporation. For the purposes of the remainder of the site, the Applicant propose to construct blocks E and F and also the remaining balance of the permitted underground car park. At the same time site development works, will be put in place to facilitate construction of block A. It is proposed that block A together with the remaining development works on the site would be commenced as part of the final phasing programme for the development”.
88. In the letters of the 6th of January 2000 and the 11th of February 2000 indicating compliance the Respondents in respect of condition 11 say the following.
“In compliance subject to details of block A being submitted before commencement of work in relation to that block”, and
“ In compliance subject to details being agreed with the roads and engineering department”.
89. In my view phasing in regard to condition 11 would have to be construed in broad terms. It could not in my view be regarded as imposing upon the Notice Party a detailed timetable of works. The Respondent in their reply to the compliance submissions in this regard indicated their satisfaction with the order with which it was proposed by the Notice Party to proceed with the remainder of the development. They were in my view entitled to be satisfied with what the Notice Party was proposing and I am of the opinion that there was compliance by the Notice Party with condition 11 and the Respondents were entitled to indicate their agreement, as they did.
ENVIRONMENTAL IMPACT STATEMENT
90. The Applicant makes the case that the Respondents should have required an Environmental Impact Assessment and Environmental Impact Statement from the Notice Party as part of their compliance submission. The basis of the Applicant’s case in this regard is to submit that having regard to the significance of the changes sought to be implemented through the compliance procedure, that for the purpose of the E.U. Directive, the appropriate point of “consent” was the compliance agreement of the Respondents.
91. I have no hesitation in rejecting that submission. What was happening in the compliance procedure was as indicated earlier in this judgment merely the implementation of the conditions attached to the planning permission. Hence there could be no question of the moment of “consent” shifting from the grant of the planning permission by An Bord Pléanala to the agreement by the Respondents that the Notice Parties compliance submission was in compliance with the planning permission.
CONSULTATION
92. The Applicant makes the case that because of the significance of the changes proposed in the compliance material there was a duty on the part on the Respondents to engage in a process of consultation with her and other interested community groups. In my opinion this submission is unsustainable. As indicated earlier in this judgment the compliance exercise was merely the implementation of the conditions attached to the planning permission for the purposes of finalising the planning permission itself. Earlier in this judgment I concluded that such changes as were agreed by the Respondents in the compliance Orders were within the limited degree of flexibility permitted by condition 3 and hence were not such as would excite objection from reasonable members of the public.
93. The Statutory planning code makes no provisions for consultation with the public in the compliance procedure, and in the absence of a statutory obligation to consult, having regard to the limited nature of the exercise, there could not be any other duty imposed on a Planning Authority to consult the public at this late stage in the planning process
SEVERABILITY
94. I have determined that the changes in blocks E and F consisting of the removal of the two unroofed courtyards and their replacement by a single atrium stretching through both blocks with the consequent reorientation of the plant room were not permissible changes under the compliance procedure necessitated by conditions one or three of the planning permission of the 20th March 1991.
95. I am satisfied however that these changes are not intrinsically connected to the remainder of the matters in respect of which the Respondents signified their agreement to compliance on the part of the Notice Parties in respect of either blocks A, E or F. I am of opinion that I should treat the portion of the compliance material thus impugned as severable from the rest, for the purposes of the reliefs claimed in these proceedings.
LOCUS STANDI
96. The Notice Party in their submissions contended that the Applicant lacked the locus standi to pursue the reliefs sought in these proceedings, and relied upon the case of Lancefort Limited -v- An Bord Pleanala (no 2) (1999) 2IR270. The question of locus standi was not raised by either the Respondents or the Notice Party in there Statements of Opposition and hence it is not a ground of opposition which should be entertained. However I may observe that having regard to the fact that the Applicant lives very close to the development, that she participated in the planning process as a objector at every stage she would in my view have a “ sufficient interest ” in the completion of the compliance procedure, and having regard to the fact that she and other members of the public are excluded from that part of the planning process would in my view have a locus standi to mount these present proceedings.
THE DISCRETIONARY NATURE OF THE REMEDIES
97. The Notice Party submitted that as the remedies claimed in the proceedings are discretionary, the Court ought not to exercise its discretion in favour of the Applicant on the grounds that the Applicant did not have a locus standi and also that as the objection which the Applicant had set out in Affidavit was to the high rise nature of the development and its use solely as office accommodation, that the remedies sought would not alleviate any of her concerns given that the height of the development was not affected by the compliance orders nor was the use of the buildings in question and hence the remedies sought in these proceedings would not be of any real benefit to the Applicant.
98. My Judgment that the Respondents erred in the construction of condition three of the conditions attached to the planning permission cannot in my view be left without substantive affect. To do so would be to fail to uphold the law. The Applicants having litigated the questions in issue in these proceedings and having obtained a favourable judgment on that aspect of the case and they having in my view a locus standi in the proceeding, are entitled to an appropriate remedy.
THE REMEDY
99. In my view the appropriate form of remedy is Declaratory relief. The difficulty in granting an order of certiorari is that the compliance submission and in particular the compliance orders of the 7th of January and the 11th of February 2000 do not expressly deal with the rearrangement of the two internal courtyards into a single atrium with the necessary consequences which flowed from that. Thus one cannot identify any particular part of the compliance order in relations to blocks E and F which expressly sanctions this change. Undoubtedly this change was agreed to by the Respondents as being in compliance with the planning permission and that agreement is contained in the general statement in the compliance order which as follows
“McHugh Consultants having submitted details on the 2nd of December 1999 in compliance with the above conditions. In report dated the 22nd of December 1999, Mr. Pat McDonnell Dublin City Planning Officer states that the details submitted are satisfactory and comply with the requirements of conditions one, three, four, five, six, seven, nine, ten, eleven, twelve and thirteen of the planning permission granted by An Bord Pleanala on the 20th of March 1991 in respect of plan 1703/90 and he recommends that the Applicant be so informed. I endorse this recommendation”
and further thereunder under this heading “Order” there is the following
“I direct that the Applicants… be informed that the details submitted on the… are satisfactory and in compliance with condition number… of the planning permission granted on the… in respect of plan number… and are acceptable to the planning authority”.
100. I am satisfied that the Respondents signified their agreement in these general statements to the changes which have been found ultra vires.
101. I am also of the view that the changes condemned in these proceedings are severable from all the other material in respect of which the Respondents lawfully gave their assent. However it is not possible to sever the text of these general statements so as to excise that which relates solely to the changes which are ultra vires.
102. If then the remedy of the certiorari were to be granted it could only be granted in respect of the entirety of the compliance order in respect of blocks E and F. Having regard to the fact that I have concluded that much of the material in respect of which this order signified agreement to compliance is intra vires and that there is no intrinsic connection between the aspects of the development which are intra vires and that change which is ultra vires , in my view it would be inappropriate to grant the remedy of certiorari in respect of the entirety of this compliance order.
103. In my view therefore the appropriate remedy is a declaration which should be in the following terms:
“A declaration by way of application for Judicial Review that the amalgamation of the two internal courtyards in blocks E and F into a single covered atrium with the consequent reorientation of the plant room and with the further consequential alterations in the design of the roof of blocks E and F, incorporated into the proposed development by way of a compliance order of the Respondents made on the 7th day of January 2000, are material alterations to the planning permission granted by An Bord Pleanala on 20th of March 1991 under reference PL29/5/84226 and the agreement of the Respondents in the said compliance orders to the said material alterations being in compliance with the said planning permission, was ultra vires the powers of the Respondents.”
Kenny v. An Bord Pleanála (No. 1) [2000] IEHC 146; [2001] 1 IR 565 (15th December, 2000)
THE HIGH COURT
JUDICIAL REVIEW
2000 No. 532 JR
BETWEEN
JAMES KENNY
APPLICANT
AND
AN BORD PLEANALA
RESPONDENT
AND
DARTRY AND DISTRICT PRESERVATION ASSOCIATION, MATT CROTTY, THE PROVOST FELLOWS AND SCHOLARS OF THE UNIVERSITY OF DUBLIN, TRINITY COLLEGE AND THE RIGHT HONOURABLE THE LORD MAYOR ALDERMEN AND BURGESS OF DUBLIN
NOTICE PARTIES
JUDGMENT of McKechnie J. delivered the 15th day of December, 2000
This is an application made pursuant to Section 82(3A) of the Local Government (Planning and Development) Act 1963, seeking leave to apply by way of an application for Judicial Review, for certain reliefs, which, if successful, would result in a specified decision of An Bord Pleanala to grant a planning permission being declared invalid and ultra vires . That permission, granted to the third named Notice Party (Trinity College) authorised a development, of approximately 25,000 square metres in area, comprising inter alia three new buildings ranging in height from three to seven storeys to accommodate 832 bedrooms arranged in 180 apartments, a 400 seater dining facility, laundrette, students shop, the refurbishment of Trinity hall which is a List 2 building, the removal of a single storey gate lodge to facilitate a relocated entrance, a new atrium between Trinity hall and the sports hall and further and other associated buildings, works and facilities. As the Applicant, who lives nearby and as the first and second Notice Parties all have a vested interest in the immediate location of this proposed development and as they allege adverse consequences to their persons, property and environment, they bring or support the bringing of, these said proceedings.
The following dates and events are relevant to a consideration of the matters at issue in this application:-
31/3/99: required notices appear in the public newspapers,
31/3/99: seven technical reports including service engineers reports are finalised,
/3/99 : the Environmental Impact Statement (EIS) is completed,
12/4/99: the planning application is submitted together with the appropriate documentation,,
9/7/99: additional information, unsolicited, is furnished to the planning authority,
14/9/99: an Article 35 request for additional information is issued,
7/10/99: this request is responded to inter alia by submitting revised plans, a revised EIS, technical reports including the service engineers reports, elevation drawings, other particulars and documents all in the context of revised notices having been published in the relevant newspapers and a revised site notice placed on the site,
11/11/99: notification of decision by the planning authority to grant the permission sought, subject to fourteen conditions,
/11/99: Appeals all within time to An Bord Pleanala by the Applicant and others opposed to the planning permission and also by Trinity College in respect of certain matters not further relevant to this case,
24,25,26/5/00: An Oral hearing is conducted by a senior planning inspector at which all of the relevant parties are present or represented,
26/6/00: the Planning Inspector’s report is submitted, and
4/8/00:: An Bord Pleanala issues a decision to grant permission for the aforesaid development subject to a total of nineteen conditions,
The three conditions most relevant to this Judgment are those numbered 1, 8 and 16. Together with the reasons given for their imposition, these conditions, as appearing in the Second Schedule to the said Grant, read as follows:-
No. 1. “the proposed development shall be carried out in accordance with the revised plans submitted to the planning authority and received on the 7th day of October 1999, in response to a request for revised plans under Article 35 of the Local Government (Planning and Development) Regulations 1994, except as may otherwise be required in order to comply with the following conditions.
Reason: In the interest of clarity.
No. 8. Revised drawings of the proposed development, with floor plans and elevations corresponding in detail, shall be submitted to and agreed in writing by the planning authority prior to the commencement of development.
Reason: In the interest of orderly development.
No. 16 . Noise levels emanating from plant serving the proposed buildings shall not exceed a maximum level of 45 d B (A) leq when measured over any 15 minute period at any location at the site boundaries.
Reason: To protect the amenities of residential properties in the vicinity.
4. The challenge in these proceedings to the validity of the decision so given has been made, essentially on four grounds, which in brief terms can adequately be described as follows:-
(A) Ground No. 1 – Condition No. 8
1. This alleges that condition No. 8 is and amounts to an unlawful delegation by the Bord, of its decision making power, to a planning authority and is thus ultra vires . It is claimed that as a result of such a condition the developer and the planning authority is at large, as to the appearance, nature and scale of the ultimate development, all of which matters can be agreed in private without any input from, or access by, members of the public.
2. Graphically, it is stated that a planning permission has been granted for what is, in effect, an unknown development.
(B) Ground No. 2. – The Boiler House:-
3. The Applicant’s first submission under this heading of challenge, is that the plans and drawings as submitted do not give any indication of the boiler house facilities which a development of this nature undoubtedly requires. Secondly, it is claimed that, during the course of the oral hearing, an attempt was made by the Applicant for planning permission, namely Trinity College, to have the boiler house facilities sited in the basement, which suggestion had not previously been made or considered, much less evaluated or analysed. Thirdly it is pointed out that in the EIS a centralised boiler system is mentioned whereas at the oral hearing a decentralised system was advanced as being the preferred option of the developers. All of this, the argument goes, amounts to a breach of the planning regulations, results in there having been insufficient information before An Bord Pleanala which would have enabled it to exercise its jurisdiction, and finally in this regard, there is also a claim mentioned, but not pursued, that there was no material before the board which could have justified, what is now claimed to be, an irrational and unreasonable decision so made by it.
(C) Ground No. 3 – E.I.S.
4. In the Affidavit evidence sworn to support this application, an assault is made on the adequacy of the EIS. In particular it is claimed that Chapter 2.2, Chapter 4.3 and Figure 4.3, Chapter 7.2 and Chapter 13 all have within them, such profound defects as amount to a non compliance with Council Directive 85/337/EEC, in particular with Annex III thereof, and also with the Irish implementing legislation. Though so framed, the factual basis of this submission is almost identical to that forming the basis of the Ground last mentioned, namely the inadequate details available or submitted in respect of the proposed boiler house facilities.
(D) Ground No. 4- The Gate Lodge
5. As appears from the description of the aforesaid development given at paragraph 1 above, a requirement thereof is the removal of a single story gate lodge, this in the context of a redesigned and newly located entrance to the particular site. On Mr. Kenny’s behalf it is alleged that this lodge is a protected structure within the Local Government (Planning and Development) Act 1999 and since no exceptional circumstances exist, or have been shown to exist, planning permission, involving its demolition, should not have been granted, as so to do is contrary to this Act and in particular to Section 8(10) (b) thereof.
5. Section 82 (3A) of the 1963 Act, which was inserted by Section 19 (3) of the 1992 Act, prohibits the questioning of a decision of the board, given on appeal under Part IV of the 1963 Act, other than by way of an application for Judicial Review. Such an application, which must be on notice, “shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed”. This threshold of “substantial grounds”, has formed the subject matter of many decisions of both this Court and the Supreme Court in the past decade. In Scott -v- An Bord Pleanala (1995) 1 IRLM p. 424 the Supreme Court suggested that these words “require that the grounds must be reasonable”, In Byrne -v- Wicklow County Council , H. C., U/R 3/11/1994 Mr. Justice Keane, as he then was, approached the matter on the basis that one must show not merely an arguable case but must demonstrate substantial grounds for contending the invalidity as alleged. Some short period after that decision Carroll J. gave judgment in McNamara -v- An Bord Pleanala 1995 2 ILRM p. 125. At p. 130 of the judgement, inter alia the Learned Judge said:
“in order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous….”
6. This said passage, since its delivery in 1995, has been endorsed and approved when and wherever the occasion arose. This included the decision of Mr. Justice Geoghegan in Jackson Way Properties Limited -v- the Minister for the Environment and Others, H. C. U/R, 2/7/1999. In that judgment however, which dealt with a similar phrase under Section 55(A) of the Roads Acts 1993 (as inserted by Sec. 6 of the amending 1998 Act), the Learned Judge also expressed the view that there had to be “real substance in the argument and not merely that it is just about open to argument ”.
6. Against the change in the law, brought in by and resulting from the enactment of Section 19(3) of the 1992 Act, and in the context of what Finlay C. J., said in KSK Enterprises Limited -v- An Bord Pleanala (1994) 2 I.R. 128 at p.135, there can be no doubt but that the threshold of “substantial grounds”, was intended, in my humble view, to result in a different and higher threshold, than that normally applicable to an application for Judicial Review under the Rules of the Superior Courts. That a ground had to be reasonable, before it could be substantial, could never be disputed. That such a ground also had to be arguable, equally in my view, could not be challenged. Such tests on their own however, may not be adequate as both of these descriptions equally apply when one seeks leave in an ordinary Judicial Review case under Order 84 Rule 20. See the judgment of Denham J. in G -v- the Director of Public Prosecutions (1994) 1 I.R. 374. Indeed, in a consideration of these words, one can think of grounds which could be both reasonable and arguable and yet fall significantly short of meeting the threshold of being “substantial”. The words “trivial or tenous” are undoubtedly helpful but probably more so as words of elimination rather then qualification. The description of being “weighty” and of “real substance” are in my view of considerable importance in the interpretation of this threshold phrase. However, it must also be remembered that, from a base say, opposite substantial, namely insubstantial, an applicant must navigate the considerable distance in between, and in addition, must arrive at and meet the threshold whilst still afloat and on course. In truth I feel, whilst many attempts have been made to explain or convey “the equivalent of its meaning” I am not certain that one can better the original phrase itself . In any event these observations of mine are purely an aside as the Supreme Court has, once again, in the Matter of the Article 26 reference of the Illegal Immigrants (Trafficking Bill 1999) endorsed the McNamara test.
7. In approaching this application, in accordance with the above principles, it seems to me that there is one further distinction between a hearing of this nature and/or an ex-parte application for relief under Order 84 Rule 20. It is, that with this procedure, both or all parties are heard, usually a considerable body of evidence, though in Affidavit form, is submitted and usually full argument takes place. Some difference of approach may therefore be justified, though one should see R -v- Inland Revenue Commissioners, ex-parte National Federation of Self Employed and Small Business Limited (1982) AC 617 at 643 and 644 which passages were quoted with approval by Denham J. in the G case. Whether or not and whichever, it seems to me that whilst obviously I should not attempt to resolve conflicts of fact or express any concluded view on complex questions of law or indeed anticipate the long term result, nonetheless within existing limitations, I should, I feel make some evaluation of the factual matrix and should, where with certainty I can, form some view of the appropriate statutory provisions and the relevant and material case law. On a separate though related point could I say that simply because matters of fact and law may be traversed again, if leave is granted, should not in any way take from, reduce or lessen the appropriate threshold. In this way therefore I now propose to examine, seriatim, the grounds of challenge as submitted.
8. Ground No. 1 : Condition No. 8 constituting an unlawful delegation of power .
7. Prior to outlining the test in Boland’s case it is also necessary, in any consideration of this ground, to refer to two other aspects of law which in my view have a bearing on this matter;-
(a) Firstly, in Re XJS Investments Limited 1987 ILRM. 659 the Supreme Court at p. 663 of the Report, when dealing with the proper method of interpreting planning documents said
“certain principles may be stated in respect of the true construction of planning documents: (a) to state the obvious they are not acts of the Oireachtas or subordinate legislation emanating from skilled draughtsman and inviting the accepted canons of construction applicable to such material:
(b) they are to be construed in their ordinary meaning as it would be understood by members of the public without legal training as well as by developers and their agents, unless such documents, read as a whole necessarily indicate some other meaning …..”
(b) Secondly, there is a clear distinction between conditions in a planning permission which, for their implementation require the “approval” of the planning authority and conditions which require the “agreement” of the planning authority – whether such conditions have or have not a default mechanism attached. With the first category of conditions the provisions of Section 82 (3A) of the 1963 Act apply whereas the latter are not so included. One of the consequences of this exclusion is that the strict time limits so imposed in Section 82 (3A) do not apply. See Boyne Grove Food Farms Limited -v- J Murphy Developments Limited , H. C. U/R, and Vera O’Connor -v- the Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin and Another , H. C. U/R, 26/5/2000. In passing it should be observed, presumably with regard to both types of conditions, that the enforcing provisions of the Planning Code are available including the injunctive process under Section 27 of the 1976 Act as inserted by Section 19 4 (g) of the 1992 Act.
(c) Thirdly, when an issue arises as to what might legitimately be embraced within a condition requiring the agreement of the planning authority, it should be noted that the answer to such an inquiry is not to be determined on the basis of irrationality or unreasonableness as per O’Keeffe -v- An Bord Pleanala (1993) 1 I.R. 39, but rather, the approach and solution must be determined by the appropriate vires principles. In Wicklow Trust Limited -v Wicklow County Council H. C. U/R 5/2/1998 McGuinness J. in a similar context, said that the question of reasonableness/unreasonableness was not material.
“The question is whether they (Planning Authority) were correct in law in this opinion”.
In Gregory -v- Dun Laoghaire Rathdown County Council H. C. U/R, 16/7/1996 Geoghegan J. in the High Court said:
“I have only to consider whether the Council acted ultra vires”.
8. On appeal in the Supreme Court U/R 28/7/1997 Murphy J. emphatically rejected, as being unsustainable, an approach based on O’Keeffe, rather he said “the proper function of the Court was the implementation of the condition imposed by the Board”.
9. Finally Barron J., in the same case said “the real issue in this case is as to the proper construction of conditions…..”.
9. There is no dispute as to the direct principles of law applicable to the power of An Bord Pleanala to impose conditions of this nature. Having expressly endorsed the views of Murphy J. in Houlihan -v- An Bord Pleanala, H. C. U/R, 4/10/93 and the ratio of the decision of Keane J. in his High Court judgment in the case presently mentioned, the Supreme Court, through the Chief Justice, in Boland -v- An Bord Pleanala , (1996) 3 I.R. 435 summarised at p. 466 what these applicable principles are.
10. Therefrom the following can be stated:-
An Bord Pleanala is entitled to grant a planning permission subject to conditions which may include a requirement that matters should be agreed between the Planning Authority and the recipient of the permission.
Whether such a requirement is intra vires is a matter of degree and depends on the nature of the matter left for resolution, the resolving of which must have regard to the nature and circumstances of each particular application and development.
In deciding whether or not to regulate an aspect of a proposed development in this way the board is entitled
(a) to afford a developer, subject to the consent of the Planning Authority, a degree of flexibility, particularly if the intended scheme involves complex enterprise;
(b) to leave technical matters, or matters of detail including a redesign in the light of practical experience, to such a device; and
(c) To have faith and confidence in the Planning Authorities role given its statutory function and responsibility.
10. Before considering Condition No.8 in the aforesaid context could I make three further observations. Firstly in my opinion Section 26 (1) of the 1963 Act is the statutory basis upon which such a condition may be imposed with the conditions specified in subsection 2 thereof, expressly being without prejudice to the generality of the power conferred by subsection 1. Secondly, whilst the primary purpose of Section 14(4) of the 1976 Act was the transfer of power from the Minister to the Board, nonetheless such a transfer could not take place if, in the first instance, such a power was non-existent. Hence, at least by implication, the recognition of the Board’s power in this regard. Thirdly, as Keane J., as he then was, said in the Boland Case :-
“ the Court is not concerned with the advantages or disadvantages of the proposed development, either from a planning or environmental point of view. This is a matter exclusively within the remit of the specialist body set up by statute for this purpose”.
11. Is condition No.8 therefore too wide and as a result ultra vires ?
11. The planning permission sought in this case and granted on appeal by the Board, was in respect of the development as proposed, which development had to be carried out in accordance with the revised plans submitted to the Planning Authority and received by it on the 7th of October 1999. Whilst Condition No.1 of the Grant goes on to read:- “except as may otherwise be required in order to comply with the following conditions ”
– it should be clearly understood that the scheme as authorised is that as outlined in these revised plans. There can be no question whatsoever of the developer being at large, even to a limited extent, with regard to what may be constructed. The reason given for Condition No.1 makes this clear – it is stated :- “In the interest of clarity”, namely that the developer and indeed the public would know what is authorised. Condition No.8 does not in any material, significant or meaningful way, modify this condition. To so construe the condition first mentioned would in fact be to misconstrue it. Accordingly I can see no basis for the submission that the development for which planning permission has been obtained is unknown or cannot in all material respects be identified.
12. Could I for a moment look at the background to the imposition of Condition No.8.
12. In the permission issued by the Planning Authority, Condition No.4 sought what could only be described as a significant redesign. At pages 139/140 of the Planning Inspector’s report, Mr Thornton deals with this. He said:-
“The buildings proposed would be institutional in use. The design as proposed by the Architects reflect the use and the nature and scale of the proposed development .
I consider that the design as proposed in the modified plans is of good quality and is acceptable even having regard to the residential conservation zoning of adjoining lands. I consider that the site is significantly large to establish its own architectural quality. I do not consider that there are significant gains to be achieved by interfering with the design proposed to the extent required by condition No.4 of the Planning Authority’s decision. I do not consider that it is necessary to require stronger roof profiles with emphatic eaves detailing. Although the Planning Authority may not be attempting to replicate architecture from any bygone era I consider that the condition attempts to introduce elements from the domestic scale buildings in the vicinity into a design which is appropriate for the institutional use proposed. I consider …. The scheme has been designed by a firm of competent architects. I consider that it is generally acceptable as proposed from a design point of view. ( I note however that there are some discrepancies in the drawings for example the floor layout in the elevational drawings of lot no.2 do not correspondence in detail at the northern end of the west facing elevation. There also appears to be discrepancies in window sizes and small openings indicated on elevations are not shown on the layout plans. I consider that the discrepancies are not significant in a fundamental sense. Details however should be agreed with the Planning Authority)”.
13. In response to this discussion and to implement his views the Inspector suggested the imposition of a Condition, No. 6, which Condition, together with a reason therefore reads as follows:-
“Accurate drawings of the development, with floor plans and elevations corresponding in detail shall be agreed in writing by the Planning Authority prior to works commencing on the proposed development.
Reason: to resolve ambiguities arising from discrepancies on the plans received by the Planning Authority on the 7th of October 1999”.
13. Condition No.8, I am satisfied, has almost identically the same wording. The only difference is in the reason. In the Grant it is said to be “in the interest of orderly development” whereas the suggestion of the Planning Inspector was more specific. Notwithstanding this change I am convinced that Condition No.8 was essentially designed to meet the discrepancies and ambiguities outlined by the Inspector. I cannot therefore conceive of any argument, objectively sustainable, which supports the Applicant’s submission under this heading.
14. In addition I do not believe that it would be correct of me to assume that the Planning Authority, which as a matter of law ought to be aware of its functions and responsibilities including its limitations, when dealing with conditions of this nature, would exceed its role which is to further the faithful, true and core implementation of the permission. It would be wrong in my view to ascribe to it any ultra vires intention when none has or could be so identified. In addition whilst the availability of a remedy, would not by itself deprive an applicant of his entitlement to leave, if otherwise it should be granted, nonetheless the fact that Section 82(3A) does not apply is a factor which in my view I am entitled to take into account when assessing the material both in the context of the specified threshold and of the discretion vested in me.
15. Grounds Nos’ 2 and 3 – both of which can conveniently be taken together
14. During the course of this hearing it was suggested, that in relation to the boiler house facilities there was a breach of the 1994 Planning Regulations and/or a breach of Council Directive 85/337/EEC and/or the domestic provisions incorporating this Directive into Irish Law. On being invited to identity precisely what regulations or articles or sections were breached and how, it was not possible for Counsel on behalf of the Applicant to so indicate. Accordingly this submission cannot constitute a substantial ground for the purposes of this application.
16. There can be little doubt but that some confusion has arisen with regard to the proposed boiler house facilities. In both the original EIS and the revised one, at Chapter 9 of each, it is stated that the development would be serviced by a centralised boiler plant. At the oral hearing two suggested modifications to this were advanced. Firstly, it was urged upon the Inspector that these facilities could properly be placed in the basement, this being the first time that such a location was mentioned with no real consideration having been given to the quantity of excavation involved or the effect on the tree roots or on the water table. Rightly so in my view, at p. 151 of the Report, the Inspector emphatically ruled out any further debate on this possibility. Having so rejected this suggestion I cannot see how the Applicant can in this case, further rely upon this point.
17. In the Service Engineers Reports, originally given and as revised, plant rooms are listed for all three buildings. In the revised plans and in particular Drgs. 213A, 214 and 215, all dated September 1999, plant rooms are again shown, though it should be said that one could not readily identify all such rooms, without an explanation that the floor plan was but a typical or representative one.
15. At the oral hearing there was very considerable debate on this question. Every interested person made a contribution. Some such persons were for and some against the development including those witnesses specifically called on behalf of the Applicant.
18. Notwithstanding this confusion and despite the entry in the EIS and the floating of the basement solution, what is abundantly clear however, is that at the Oral Hearing, as per the Design Architect Ms. Boyle, a decentralised system was in fact being sought on behalf of the developer. See pages 12, 34,35,48,51,99 and 102 of the Planning Inspector’s Report. Furthermore everyone present knew of this proposal and indeed made comment on it. And yet it is alleged that, there was such a lack of detail before it so as to deprive the Board of its power to decide on this application. Examples of matters in dispute were, – the precise location of the plant rooms – (this being essential it was claimed to determine the emanating noise); the fact that one such room was shown next to a living area, whether the dimensions of such areas were sufficient, what should be the height of the flue, its location etc. Whilst I am satisfied that all of these matters were adequately dealt with at the oral hearing and that many are also suitable to be dealt with by agreement with the local authority, in addition could I say that I would set my face totally against such a microscopic examination by this Court of such matters of details.
19. Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the EIS or the debate on it had before the Inspector. These are not matters of concern to this Court. The Planning Authority and An Bord Pleanala, as these bodies must under the Regulations, were satisfied as to the EIS, with the Inspector and the Board also being satisfied with the evidence, both documentary and oral, produced at the oral hearing. That in my view concludes the matter. However lest there should be any doubt about it, my own opinion is that the EIS did address adequately, as did the oral hearing, any and all significant impacts which a decentralised boiler system could have on this development. Furthermore, on the specific issue of noise, Condition No.16 is, in my view a complete answer.
16. As a result I do not believe that the Applicant has established a substantial ground in this regard.
20. Ground No.4 – The Gate Lodge
17. Prior to dealing specifically with this ground I should make reference to a submission also made with regard to the development plan. It was urged upon this Court that the gate lodge in question was “protected” under the Development Plan. A contrary view was expressed by the Planning Authority, in the person of Mr McDonald, at the old hearing and also by the Planning Inspector. In addition a consideration of the List, both at Nos’ 1 and 2 clearly demonstrate, directly and indirectly, that this is not so and that no protection exists under the Plan with regard to this gate lodge.
21. The 1999 Act was enacted on the 30th of June 1999 but did not, by the express provisions of section 42(3) thereof, come into operation until the 1st of January 2000. A very definite view was therefore expressed that six months should expire before it had the force of operating law within the State.
18. Notwithstanding, it is alleged that it applies to this application and so the argument goes, given the definition of “structure”, and “protected structure”, as contained in Sec. 1 thereof, it is claimed that the gate lodge comes within, and accordingly, unless exceptional circumstances exist, no permission should issue which encompasses its demolition. As no such exceptional circumstances are even suggested the permission in question is therefore invalid.
22. There is no doubt, in my mind, that for this submission to be accepted one would have to construe the 1999 Act as having to have retrospective effect. With regard to the development in question the planning process commenced in April 1999 with the lodging of the appropriate documentation seeking permission. Article 35 was invoked by the Planning Authority on the 14th of September and responded to by the Applicant on the 7th of October. Furthermore a Notice of Intention to grant Planning Permission issued on the 11th of November some seven weeks prior to the 1st January. If there had been no appeal to an Bord Pleanala, no argument could be advanced, save for retrospection, that the Act could possibly apply. An appeal however was lodged, an oral hearing did take place and the decision of the Board issued in August 2000. In my view, in the present context, the lodging of the Appeals and thus the continuation of the process, has no bearing as to the applicable law.
23. When under a statutory regime a process has been commenced, those involved in or affected thereby, have a right to see that process through, to a conclusion, under the law as it was at the date of its commencement. It is true that Statutory retrospection may apply in which event a Constitutional issue may or may not arise. Apart from such intervention, if in this case, instead of the 1999 Act potentially effecting the property of Trinity College it had sought, for example, to prevent or restrict the Applicant from appealing, I have no doubt but that a sustainable challenge could not only be instituted but indeed sued to a successful conclusion.
24. Two cases were cited in support of this submission, on Ground No. 4. The first was McKeown Estate Ltd. -v- Dublin County Council 1995 2 ILRM 283. In that case an application for permission was made on the 15th of December 1999. The Planning Authority issued notification of its decision to grant on the 25th of April 1990. Appeals were lodged. In the interval the 1990 Planning Act came into force on the 10th of June of that year. That, repealed Part VI of the 1963 Act which dealt with compensation, and in its place, new provisions contained in Part III of the 1990 Act become operative. On the 21st of January 1991 An Bord Pleanala refused planning permission. On the 30th of July of that year the Applicant claimed compensation under, the said Part III of the 1990 Act. On the 26th of June 1992 it successfully sought from the Circuit Court an enlargement of time so as to lodge a claim under the repealed Part VI of the 1963 Act. An appeal therefrom was taken to the High Court which in turn agreed to state a case for the opinion of the Supreme Court. Though ostensibly fought on the point of an enlargement of time, the real issue between the parties was whether or not, given the aforesaid dates, the Applicant could in respect of the Board’s decision still seek compensation under the 1963 Act. The Court, when giving judgment, indicated clearly that jurisdiction to even mount a claim for compensation arose only when the Board issued its decision which was more than seven months after the repeal of the relevant Part of the 1963 Act. Accordingly there was no question of the Applicant, either in January or July 1991, being in the position to avail of the repealed provisions.
25. The second case was J. Wood & Co. Ltd. -v- Wicklow County Council 1995 1IRLM p. 51. In that case, as of the 10th June 1990 an application for planning permission had been made but no decision had issued. In July of that year the Planning Authority issued it’s decision and on the 1st of July 1991 the Board determined the Appeal. For the purposes of this Judgment it is not necessary to consider, in any depth the relevant features of this case. It is sufficient to state firstly that the decison of the Board was a precondition to making or asserting a claim for compensation, secondly that since no decision issued until post the 10th of June 1990, how could it be said that the statutory regime, which by then had been repealed, could be the one under and by which an entitlement to compensation should be determined and thirdly as of the date of the relevant decision, one could only conclude that the newly created right to claim, surely had to be considered under the provisions then in force. Consequently I do not believe that either decision supports the propositions advanced on behalf of the Applicant.
26. In the light of the above, it is now necessary to consider whether in fact the 1999 Act, in its relevant provisions, has retrospective effect. Retrospection, in this context existing when the Act in question
“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already passed”
19. See Craies on Statute Law, 7th ed. p. 387.
27. The principles of construction to be applied in determining whether an Act is or is not retrospective were considered by the Supreme Court in Hamilton -v- Hamilton 1982, IR 466. O’ Higgins CJ in his Judgment at p. 474 cited with approval the following cases and the following extracts therefrom:-
(a) In Gardner -v- Lucas 1878 3 App. Cas 582 Lord O’Hagan said at p. 601 of the report
“… Unless there is some declared intention of the legislature – clear and unequivocal – or unless there is some circumstances rendering it inevitable that we should take the other view, we are to presume that an Act is prespective and not retrospective”.
(b) In Reid -v- Reid 1886 31 Ch. D. 402 at 408 of the report Bowen L. J. said:
“Now the particular rule of construction which has been referred to but which is valuable only when the words of an Act of Parliament are not plain, is embodied in the well known trite maxim omnis nova constitutio futuris forman imponere debit non praeteritis, that is that except in special cases the new law ought to be construed so as to interfere as little as possible with vested nights”.
(c) In Athlumney’s case 1898 2 Q. B. 547 Wright J. said at pp. 551/552 of the report:-
“Perhaps no rule of construction is more firmly established then this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise then as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prespective only”.
28. Henchy J., in his Judgment in the Hamilton case at p. 484 said:-
“The judicial authorities (which are mentioned in the Judgment which the Chief Justice has just delivered ) make clear that, because there is a presumption that a statute does not intend to operate unfairly, unjustly or oppressively by trenching on rights or obligations lawfully acquired or created before the statute came into force, it should be construed as prespective in its application and not retrospective, unless there is clear and unambiguous intention to the contrary expressed, or necessarily implied, in the statute or unless the change affected by the statute is purely procedural”.
20. These views were adopted by Blayney J. and Dublin County Council -v- Grealy 1990, 1IR p. 77 where at p. 82 he added:-
“One starts accordingly with the presumption that S. 25 is to be construed as being prespective in its application. And for this presumption to be rebutted, the Act must express a clear and unambiguous intention to the contrary, or there must be some circumstances rendering it inevitable that the Court should conclude that the Act is retrospective or the change effected by the statute must purely procedural”.
29. There are several further and other cases on this topic all containing statements of principle similar to those expressed above. I wish to refer to one further case only namely Doyle -v- An Taoiseach 1986 ILRM 693 where the Supreme Court held that if the provisions of section 79 of the Finance Act, 1980 (which purported to confirm the validity of certain levies on the sale of live cattle which had been introduced in 1979) were held to have retrospective effect, it would be to that extent unconstitutional since as Henchy J. said it would have the effect:-
“of making, ex post facto, non-payment of the levy in 1979 an infringement of the law. Such a result would make section 79 invalid having regard to Article 15.5 of the Constitution”.
21. Since however there was nothing to indicate in the 1980 Act that the Oireachtas had intended it to apply it retrospectively, the Court held that
“section 79 should be treated as having only perspective effect and therefore had no application to the present case”.
22. The reference to Article 15.5 is of course a reference to an express Constitution provision prohibiting the Oireachtas from declaring acts to be infringements of the law which were not so up to date of their commission.
30. In my consideration of the 1999 Act and in particular the relevant portions thereof I cannot identify any intention, much less a clear and unambiguous one, that this Act is to have retrospective effect. On the contrary I am satisfied that at all times it was clearly intended that the Act should apply only as and from the date it became operative within this jurisdiction. Furthermore and in any event, even if this be incorrect, the relevant sections must surely also permit of a perspective interpretation which in the legal and constitutional context above mentioned should and must be the one preferred by this Court.
31. In conclusion therefore I am not satisfied that the Applicant has reached the specified threshold on any of the grounds advanced on his behalf. Therefore I refuse leave.
Costigan v. Laois County Council [2000] IESC 7 (7th April, 2000)
THE SUPREME COURT
JUDICIAL REVIEW
248/99
Denham, J.
Murphy, J.
Hardiman, J.
BETWEEN
MICHAEL COSTIGAN
APPELLANT
AND
LAOIS COUNTY COUNCIL
RESPONDENT
JUDGMENT of Hardiman J. delivered the 7th day of April 2000 (nem. diss.)
1. This is the Appellant’s appeal against the Order of the High Court (Kinlen J.) of the 12th October 1999 dismissing his applications for certain reliefs by way of Judicial Review. In particular he had claimed:
“(i) An Order of Certiorari quashing the decision of the Respondent dated the 29th June 1998 not to proceed to amend the Co. Laois Draft Development Plan in accordance with an earlier decision dated the 3rd June 1998 to zone 15 acres of land owned by the Applicant at Clonadadoran, Portlaoise, Co. Laois, for commercial purposes. [*2]
(ii) A declaration that the said decision was ultra vires the Respondent and
therefore null and void.
(iii) An Order of Prohibition and/or an Injunction preventing the Respondent from adopting a new statutory development plan until such time as the validity of the said decision dated the 29th June 1998 has been determined by this Honourable Court.
(iv) An Order of Mandamus directing the Respondent to reconsider a Motion to
amend the Draft Development Plan by zoning the said lands owned by the
Applicant for commercial purposes.”
THE FACTS
2. The relevant facts can be shortly summarised. The Plaintiff and his wife own two farms one of which consists of 15 acres located some three and a half miles from Portlaoise on the Abbeyleix Road. Mr Costigan wished to develop these lands as a service area for heavy goods vehicles. Accordingly, he sought to have the land zoned for commercial purposes. Zoning is a reserved function of the Respondent Council. Mr Costigan was successful in mustering the support of a significant number of Councillors for his proposal. On the 22nd September 1977 a motion that the lands “be rezoned from agricultural to commercial, thereby enabling the owner to proceed with a planning application for the development of the said lands” came before the Council, having been proposed by all five members of the Council for the Portlaoise electoral area.
3. The County Manager, however, advised the members that the resolution should not be passed for legal reasons. He further advised that the matter could only be dealt with in [*3] accordance with the legislation for reviewing and/or amending a County Development Plan. He advised that the matter be deferred until the County Development Plan was reviewed, after a public consultation process had been undertaken.
4. The background to the County Manager’s advice was the fact that a new County Development Plan was in the process of formulation and the Draft Development Plan had gone on public display in the week preceding the meeting of the 22nd September 1997. The County Manager further advised that he had sought a legal opinion on the matter and that the members could not agree to rezone the land at that meeting.
5. The Manager did indeed take legal advice in the form of a number of opinions and a lengthy letter from Mr John Peart S.C. It appears that the Council had frequently sought the advice of Mr Peart and relied on it. Furthermore, the Applicant had an oral hearing of his proposal before two Inspectors in the employment of an Bord Pleanala who had been requested to advise the Council. Their advice, and the advice of the Council’s own professional staff, was uniformly against the proposal.
6. Notwithstanding this, on the 3rd June 1998 when the matter again came before the Council a motion was passed in the following form:
“That the Council agreed to zone 15 acres of land in the ownership of Michaal Costigan at Clonadadoran, Portlaoise, for commercial purposes thereby enabling the owner to proceed with a planning application for the development of the lands.”
7. However, the minutes also record that:
“Prior to the taking of the vote the members agreed that the resolution would be passed subject to the availability of a legal opinion on the matter.”
[*4] This led to Mr Peart’s final opinion of the 19th June 1998. Mr Peart advised strongly against the proposed zoning stating that it would be illegal; that it would have the most serious effect on the new County Development Plan by tainting it with illegality whereby “it could make the whole plan illegal”; and advising that the Council might be liable “to serious claims in damages in respect of future planning decisions” if it were proceeded with.
8. The Applicant obtained another Barrister’s opinion, that of Mr Eamonn Galligan B.L. to the contrary effect. He appears to have made the members of the Council aware of this opinion as well.
9. The Council met again on the 29th June 1998. On that day the matter was discussed both in private session and publicly over a period of several hours. The minutes record that:
“Having regard to the contents of the legal opinion received from Mr John Peart, dated the 19th June 1998 and having considered same, consequent to our decision taken at the meeting of the Council held on the 3rd June 1998, the Council agrees not to proceed with the above mentioned decision and further agrees to continue the process of the review of the County Development Plan in accordance with Section 21 of the Local Government (Planning and Development) Act 1963 as amended.
The Motion of the 3rd June had been passed unanimously by the 14 members then in attendance. The Motion on the 29th June was passed on a roll call vote by 14 votes to 7.
GROUNDS OF APPEAL
There was major variation between the grounds set out in the Notice of Appeal dated the 16th November 1999 and filed on the Appellant’s behalf (by his former Solicitors), and [*5] the grounds actually urged by the Appellant at the hearing, at which he appeared in person. The Notice of Appeal indicated the following grounds:
“The learned trial Judge erred in law and in fact in failing to hold that the Respondent Planning Authority was incorrect in refusing to receive representations from the Appellant by way of considering the contents of an opinion of Junior Counsel obtained by the Appellant, which was furnished to the Respondent on the 29th day of June 1998 prior to the said decision being made by the Respondent on the same day and
The learned trial judge erred in law and in fact in failing to hold that the Respondent Planning Authority had effectively delegated their reserved in the making of a development plan by deciding to follow the legal advice of their nominated Senior Counsel rather than considering the merits of that advice as against any legal submissions or representations put forward by the Plaintiffs legal representatives.”
10. It appears that the Appellant parted company with his Solicitors because of a disagreement about the presentation of the Appeal. Be that as it may, Mr Costigan in presenting his Appeal relied in substance on the following points:
1. The decision to zone the lands for commercial purposes, taken on the 3 rd June
1998, was a final and unconditional one unqualified by the manager’s
decision to seek legal advice.
2. The decision not to proceed with the commercial zoning was vitiated by certain alleged misdeeds of the County Manager in particular his failure to advise the Council on the 3rd June 1998 that he already had an opinion from [*6] Mr Peart to the effect that the Council could lawfully proceed with the zoning in question.
3. The learned Trial Judge was misled by evidence on affidavit on behalf of the
Respondent relating to the planning history of the lands. Specifically, it was
wrongly stated that Mr Costigan had made a previous application for
planning permission to develop the lands as a golf course. This error or
falsehood, Mr Costigan said, entitled him to a retrial.
11. Quite properly in the circumstances of Mr Costigan appearing for himself, no point was taken on behalf of the Respondent about the variation between the grounds in the Notice of Appeal and the grounds actually urged on the hearing.
DECISION ON THE ABOVE ISSUES
1 . I do not consider that the decision of the 3rd June 1998 was final and conclusive in
itself. Certainly the records of the meeting of that day show that the Appellant had
unanimous support amongst the Councillors for the zoning which he sought. It is
equally clear that the Councillors, having heard the views of the County Manager,
were concerned to have specific legal advice in relation to their power to adopt the
zoning in question and the legal consequences of so doing. Accordingly, the Minute
recorded that:
“………the resolution passed subject to the availability of a legal opinion on
the matter.”
[*7] It might have been a neater and more logical way of dealing with the situation which arose on the 3rd June if the Council had simply adjourned its deliberation until Mr Peart’s opinion was to hand. But I do not think that the record of the meeting admits of any other interpretation than that the coming into effect of the Motion was conditional on legal opinion being taken about it. By implication, but I believe it is a necessary implication, this condition requires that some legal opinion acceptable to the Councillors be favourable to the course proposed, at least in the sense of not regarding it as unlawful or grossly imprudent.
12. There was an incidental suggestion in argument that it was objectionable that the Barrister who was to give the legal opinion was selected by the County Manager and not by the Councillors. There was also some suggestion that the Appellant should have been consulted on the selection of a Barrister. I do not see any substance in these points. The Councillors were quite entitled to leave the selection of a Barrister or other professional adviser, to the County Manager who I presume has experience of dealing with such matters. The selection of Mr Peart S.C. cannot be faulted since the Council had been happy to rely on his advices over a period of years. Moreover, the Council were taking legal advice for their own benefit, and the Council and possibly the Councillors would have to bear the consequences of any unlawful decision. In those circumstances it was clearly for them or their agent to select the Barrister whose advice they wished to take. Mr Peart was asked to advise the Council, and not to act as some form of arbitrator between the Council and the Appellant. In those circumstances the Appellant had no right to be consulted in the selection of the Barrister. [*8]
In the course of the proceedings the Appellant obtained extensive discovery of the Council’s documents and this included no less than three opinions and a letter of advices from Mr Peart. It appears that he advised in relation to the proposed zoning of the lands, first in an opinion received in September 1997, prior to the first meeting at which the matter was discussed, then in a letter and accompanying opinion of the 13th February 1998 and finally in the opinion already referred to of the 19th June 1998. Mr Costigan complains that the Councillors at the meeting on the 3rd June 1998 were not informed of the contents of Mr Peart’s letter of the 13th February wherein he advised:
“In the circumstances, I advise that Laois County Council does have legal authority to zone land outside the development boundary of a town.”
13. It is said that, had they been aware of Mr Peart’s opinion to this effect, they would have passed the motion of the 3rd June without the necessity to wait for further legal opinion. The sentence relied on by Mr Costigan is a single sentence in a long letter accompanying a detailed opinion.
14. Mr Costigan appears to me to be correct in his submission that Mr Peart’s opinion was the entire basis for the change in the Council’s attitude between the 3rd June and the 29th June. The minutes for the meeting on the latter date are open to no other construction. But I do not think he is correct regarding a single sentence quoted from Mr Peart’s letter as conclusive of the matter on which Counsel was asked to advise or as inconsistent with his subsequent advices of the 19th June 1998.
[*9] Mr Peart was asked to advise on three occasions. On each occasion the questions on which his advice was sought were different and more specific than those on which his advice had previously been sought. This seems to me to be natural enough in that the full complexities and possible consequences of the decision became clearer in the Councillors mind and that of the Manger as their researches deepened.
15. In my view, Mr Peart’s statement that there was legal authority for the County Council to zone land outside the boundary of a town was correct. But it was by no means conclusive of the question whether the particular zoning proposed was a lawful one. Moreover, a good deal changed between November 1997 and June 1998 and in particular the hearing before the Bord Pleanala Inspectors had taken place and it had emerged very clearly that there was no support whatever for the proposed rezoning from the planning or other professionals. While the Local Authority were certainly entitled to disregard professional advice they would have to be extremely careful in doing so and would have to be able to demonstrate the rationality and reasonableness, in the Wednesbury and Keegan v Stardust sense, of the decision. These factors are reflected in Mr Peart’s last opinion insofar as he advisers that:
“in theory then the County Council acting as Planning authority are entitled to make a material alteration of the draft plan should they wish to do so on following the procedure set down in Section 21 (a) …”,
while also stating that in the circumstances of this case the proposed zoning would in his view be unlawful (presumably on the ground of unreasonableness).
[*10] In my view, the Council were entitled to take Mr Peart’s advices on the proposal generally, and he was entitled to give the advices which he did. I have carefully considered the possibility that the decision of the 3rd June 1998 in relation to legal advice was a very narrow one, limited to taking advice on the sole question of whether the proposed zoning was within the Council’s legal powers, as opposed to whether it would be a wise or prudent decision from a legal point of view. I do not think it can be so narrowly interpreted. Planning and perhaps especially zoning matters are notoriously complicated and a legal opinion which limited itself to the bald statement that there was scope in the statutory scheme for the proposed zoning would not have met the Council’s need for legal advice.
In P & F Sharpe Limited v Dublin City and County Manager (1989) IR 701 , it was established, following The State (Keegan) v The Stardust Compensation Tribunal (1986) IR 642 , that an unreasonable decision by a Local Authority would be invalid and illegal. It was further held that such a decision required not only to be reasonable but to be demonstrably so, involving an obligation on the members making the decision to produce “an adequate note …… not necessarily verbatim but of sufficient detail to permit a Court upon review to be able to ascertain the material on which the decision had been reached. ” (pp 720-721) . In light of this and other authorities it is clear that the position of the Local Authority proposing to exercise a reserved function in a manner contrary to the unanimous advice of its professional advisers, and apparently in reliance of what was submitted by Mr Costigan and his architect, would be a delicate one requiring detailed legal advice. I am therefore quite satisfied that the [*11] County Manager was entitled to ask for advice in some detail, as he did by his letter of the 8th June 1998. In particular he raised the question of whether the decision could be justified “having regard to the statutory duty of members of the council in relation to the review of the County Development Plan relative to proper planning and development considerations…..”
16. Of course, Mr Peart’s opinion was in no sense binding on the Council. As O’Hanlon J. held in Sharpe’s case at page 709:
“… where a planning authority is advised by its legal advisers that the
granting of a particular permission would involve them in illegality, this
advice does not decide the issue beyond yea or nay. The planning authority
may not be convinced that such would be the case and if they proceed to grant permission on the teeth of such advise, they do at their own risk as to the
consequences which may follow. They may be vindicated by a later decision
of the Courts confirming the validity of what was done, or they may face a
finding that their action was unlawful and have to pay the penalty for such
unlawfulness.”
17. In my view, the planning authority are entitled to reject legal advice which seems to them unconvincing. It follows that they are entitled to accept legal advice which commends itself to them as Mr Peart’s obviously did.
18. It should in fairness be remarked that the conflict between Mr Peart’s opinion that of Mr Galligan is perhaps more apparent than real. Mr Galligan, approaching the matter [*12] from the point of view of Mr Costigan, the beneficiary of the decision of the 3rd June 1998, merely observed that on the papers furnished to him “there is nothing to indicate that the resolution passed by the elected members was invalid. ” Mr Peart, with the benefit of the County Council’s much more extensive documentation was naturally alert to the risk that the decision might not be easy to stand over on judicial review and was both entitled and obliged to draw his clients attention to this.
19. Although the point was not expressly argued at the hearing of this Appeal, the Notice of Appeal contends that the Council had unlawfully delegated their own decision making power in the matter to Mr Peart. For the reasons set out in the passage quoted from O’Hanlon J. above, I would reject this contention. That the County Council were entitled to seek legal advice. They were entitled to act on it if they wished and there is nothing to show that they did so in a blind or unconsidered fashion.
3. It is conceded on behalf of the Local Authority that the reference in their affidavits to a planning application for a golf course development having been made in respect of Mr Costigan’s lands is incorrect. I have no doubt that this was the result of simple error, having regard to the fact that an application for a golf course development was received from another person in respect of nearby lands. It is true that the learned High Court Judge would have been under the impression that Mr Costigan had made this planning application, and that it had been refused. He was also aware of other applications which had indeed been made about the lands in question. However, these facts were quite irrelevant to the legal issues which the learned High Court Judge had to decide and I do not believe that his judgment and Order are in any way [*13] vitiated by the Council’s error. Moreover, the Applicant had ample opportunity to correct this error in the replying affidavit which he filed. It transpired at the hearing of the Appeal not only that he had not done this, but that his omission to do so was the result of a deliberate decision. In the circumstances he cannot be heard to complain of this error on appeal. Even if it were open to him to do so, the point would not affect the result, for the reason I have given.
CONCLUSION
20. I would dismiss the Appeal.
Stack v Bord Pleanala [2000] IEHC 155 (11th July, 2000)
THE HIGH COURT
JUDICIAL REVIEW
No. 2000/ 17JR
BETWEEN
THOMAS STACK AND ANN STACK
APPLICANTS
AN BORD PLEANALA
RESPONDENT
AND
KERRY COUNTY COUNCIL AND MICHAEL MCKIERNAN
NOTICE PARTY
JUDGMENT of O’Neill J. delivered the 11th day of July 2000
1. The Applicants in this application seek leave to apply for a judicial review pursuant to the provisions of the Local Government (Planning and Development) Act 1963 as amended by Section 19 (3) of the Local Government (Planning and Development ) Act 1992. In order for the Applicants to obtain leave they must satisfy this Court that there are substantial grounds for contending the decision which is impugned in these proceeding is invalid or ought to be quashed. The Applicants in their statement grounding their application for judicial review seek an Order of Certiorari quashing the decision of the Respondents dated the 23rd of November 1999 ( An Board Pleanala Reference No PL08.111411) refusing permission for a development comprising of the construction of a one and a half storey high house with sceptic tank and percolation area at Barrow, Artfort, Co Kerry.
2. The background to this matter is as follows. On the 15th of March 1994, Kerry County Council granted outline planning permission (reg. ref 59/94) for the erection of two dwelling houses on a site including the site the subject matter in these proceedings and an adjoining site immediately to the west of it. This decision was not appealed. The lands in respect of which this outline planning permission was granted were located within an area which was designated in the Kerry County Development Plan of 1989 as an Area of Secondary Special Amenity, where it was policy to restrict development to protect the amenities and natural beauty of the area. The Kerry County Development Plan of 1996 repeated the same designation for the same area.
3. Kerry County Council under planning reg. ref no 46/496, granted planning permission for a development comprising the upgrading of the existing accommodation road leading to the site which is the subject matter of these proceedings and for the provision of adequate site distance of the junction where it meets Barrow road. On the 7th of May 1999, Kerry County Council granted planning permission to the Applicants herein for a development comprising the erection of a one and a half dwelling house with sceptic tank and percolation area on the subject site at Barrow, Artfort, Co Kerry in accordance with the plans particularly submitted.
4. By letter dated the 21st of May 1999, Michael McKiernan, the second named Notice Party, submitted an appeal to An Bord Pleanala against the decision of Kerry County Council made on the 7th of May 1999 to grant permission for the said development.
5. The appeal of the said Notice Party was in the following terms:-
“I Michael McKiernan, of the above address, apply to An Bord Pleanala to appeal against the decision made on the 7th of May 1999, by Kerry County Council, to grant Tom and Ann Stack for the erection of a dwelling house at Barrow, Artfort, Tralee, Co Kerry, on the grounds that the proposed dwelling would be located on land very close to the sea which is in an area which has being designated as an area of Secondary Special Amenity and would injure the scenic and natural beauty and possible wildlife of this beautiful bay and would be contrary to reasonable planning.
Kind regards.
Michael McKiernan”
6. By a letter dated the 22nd day of June 1999, addressed to An Board Pleanala, O’Sullivan Cadogan Solicitors on behalf of the Applicants, made a replying submission to An Board Pleanala in relation to the letter of appeal submitted by Michael McKiernan.
7. In a report dated the 18th of November 1999, the Senior Planning Inspector for the Respondent, Michael Walsh, recommended that planning permission be granted. His reason for the said recommendation was in the following terms:-
“The site of the proposed development, is located at a relatively low level on the Southern side of the Barrow Peninsula. While this peninsula is included in a area designated in the current Kerry County Development Plan as an area of Secondary Special Amenity, it is considered that the proposed development subject to compliance with the conditions set out in the second schedule hereto, would not be an obtrusive development in the landscape in this area, would not seriously injure the amenities of the area and would not therefore be inconsistent with the policies associated with that designation.”
8. On the 23rd of November 1999, Mr Louis Clohessy, Board Member of the Respondent, gave a board direction that permission be refused. His direction contains the following note:
“The Board do not consider that the circumstances in this case were significantly different from those relating to the site to the west (08.108 753) recently the subject of a refusal of permission by the Board”
9. Finally on the 23rd of November 1999, the Respondent made a decision to refuse planning permission in respect of the aforesaid development for the reason contained in the schedule thereto which reads as follows:-
“The proposed development would be located on a prominent site between the public road and the sea within an area which has been designated in the current Kerry County Development Plan as an area of Secondary Special Amenity, where it is policy to restrict development to protect the amenities and natural beauty of the area. This policy is considered reasonable. It is considered that the proposed development when taken in conjunction with the existing and permitted development in the area, would seriously injure the scenic amenities and natural beauty of this area and would, therefore, be contrary to the proper planning and development of the area.”
10. In approaching the task of assessing whether or not the grounds which are set out in the Applicant’s statement of grounds are for the purpose of the Local Government (Planning and Development) Act 1963 as amended by Section 19(3) of the Local Government (Planning and Development) Act 1992, “Substantial grounds” for contending that the aforesaid decision of the Respondents is invalid and ought to be quashed, I would respectfully adopt and follow the judgment of Carroll J in the case of McNamara -v – An Board Pleanala (1995) 2 ILRM and in particular where she says the following at page 130 of the report-
“What I have to consider is whether any of the grounds advanced by the Applicant are substantial grounds for contending that the Boards decision was invalid. In order for a ground to be substantial , it must reasonable, it must arguable, it must weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result will be. I believe I should go no further than to satisfy myself that the grounds are “substantial”. A ground that does not stand any chance of being sustained (for e.g., where the point has already being decided in other cases) could not be said to be substantial. I draw a distinction between grounds and the various arguments put forward in support of these grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial , I do not also have to say that the Applicant is confined in his arguments at the next stage to those which I believe may have some merit.”
11. The grounds on which the Applicant seeks relief are set out in a statement of grounds and are as follows:-
“E(i) the Respondents in determining the appeal on foot of which the said decision dated the 23rd of November 1999 (PL.08.111411) was made took into account, matters other than those raised by the parties or by any person who had made submissions or observations to the board in relation to the said appeal without giving notice in writing to the Applicants that they proposed to take into account the said matters. In particular, the Respondent took into account certain unspecified circumstances in relation to a site to the west of the subject site which was the subject of a refusal of permission (PL.08.108753) by the Respondent, without notifying the Applicants of the said circumstances which were taken into account. Accordingly the said decision was made in breach of the statutory obligation imposed on the Respondent by Section 13(2) of the Local Government (Planning and Development) Act , 1992, as a consequence whereof, the said, decision was made ultra vires and is invalid and of no legal effect.
(ii) “Further or in the alternative the failure of the Respondents to notify the Applicants in respect of the matters referred to in the preceding sub paragraph and to afford them an opportunity to make submissions relating thereto amounted to a breach of the Principles of Natural Justice and Constitutional Justice such as to render the said decision invalid.
(iii) Further or in the alternative the said decision of the Respondent flew in the face of fundamental reason and common sense and was so totally unreasonable as to be invalid by reason of the fact that it was based on the conclusion of the Respondent as reflected in the Board Direction dated the 23rd of November 1999, signed by Louis Clohessy, Board member, that the circumstances in relation to the application /appeal on foot of which the subject decision was made was not was not significantly different from the circumstances relating to a decision of the Respondent bearing the An Bord Pleanala reference number PL.08.108753. The said conclusion of the Respondent was unreasonable in so far as
(a) the Respondent did not identity or specify the said circumstance which were taken into account:
(b) the said Board member was not in a position to assess the degree of difference between the two cases the subject matter of the said decisions having regard, inter alia, to the fact that the said Board member did not carry out a visual inspection of the site of the subject matter of the earlier decision (PL.08.108753);
(c) the Respondent failed to have regard to any relevant difference between the two cases aforesaid.
(iv) Further and in the alternative the said decision was so totally unreasonable as to be invalid by reason of the fact that there was no evidence on the basis of which the said conclusion contained in the said decision of the Respondent dated the 23rd of November 1999 could have been reached.
(v) The said decision was made ultra vires by reason of the fact that the said Respondent failed to furnish any or adequate reasons for its said decision.
(vi) Further or in the alternative, the said decision was made ultra vires by reason of the failure of the Respondent to furnish any or adequate reasons for its said decision as to why the recommendation of its Senior Inspector was rejected.
(vii) Further and in the alternative, the said decision flew in the face of fundamental reason and common sense by reason of the fact that there had being no material change in the background planning circumstances effecting the subject site since the grant of outline planning permission by order of Kerry County Council dated the 15th of March 1994 (Planning reg. ref 59/94)
(viii) Further and the alternative the said decision was made ultra vires in so far as if any material change of circumstance had occurred between the date of the grant of the said outline planning permission and the date of the said decision, challenged herein (which is denied) the Respondent failed to furnish any reason based on or make any reference to such change of circumstances.
(ix) Further and in the alternative, the said decision was invalid by reason of the failure of the Respondent to furnish an adequate note or record of its decision to permit the said decision to be reviewed in the light of the grounds of relief relied upon above.”
12. In regard to grounds E(i) it is the Applicants case that the Board, as disclosed from the Board direction dated the 23rd of November 1999, relied upon its refusal of planning permission in respect of the West site, a conclusion that there was no significant difference between the two applications and that this combination of material was relied upon by the Board as the basis of its refusal of the application the subject matter of these proceeding, and that in so relying on this material the board had an obligation under section 13 (2) of the Local Government (Planning and Development) Act 1992, to inform the Applicant of these matters, they being matters which had not been raised by Mr McKiernan, or any other party and the Board should, pursuant to Section 13 (2) (B) have invited submissions or observations in relation to these matters from the Applicant to be made in writing within a period specified in a notice to that effect.
13. Against this contention it was submitted by Miss Butler for the Respondents that what the Board did in this instance was merely to have regard to a prior decision of its own which it was entitled to do, and that this was not a matter of the kind to which Section 13(2) of the Local Government (Planning and Development) Act of 1992 applied. Miss Butler further submitted that the decision of the Board was confined squarely within the confines of the appeal made by Mr McKiernan and the mere fact that there was a coincidence in the reasons for the refusals in both cases did not mean or imply a reliance by the Respondent on extraneous material, save that the Board did have regard to and was entitled and was indeed obliged to have regard to its own prior decisions, and in this case, it had regard to its refusal to grant permission on the 12th of May, 1999 in respect of the west site.
14. Miss Butler stressed the common features of the two sites and the applications relating to them. The two sites were the subject of a single application for outline planning permission and a grant of outline planning permission in 1994, which expired in March of 1999. The sites were adjoining each other and were in the same area of Secondary Special Amenity and in all respects identical in so far as their location was concerned and the type of house in respect of which permission was sought was similar in both cases, a fact she contended was evidenced to the Board in the plans which were submitted to the Board with the appeal.
15. It is not necessary for me to resolve these clearly conflicting submissions for the purposes of deciding whether or not this ground as put forward by the Applicant is a “substantial” one. It would seem to me however that the Board, as evidenced by the Board Direction of the 23rd of November 1999 had regard not only to its prior decision in relation to the west site but also and perhaps more importantly its direction indicates it reached a conclusion that there was no difference of significance between the Applicants application for planning permission and the proposal in respect of which they had refused permission for the west site. Clearly this was a matter which had not been raised by Mr McKiernan in his appeal as a ground of appeal and was not therefore addressed by the Applicant in his submission to the Respondent on that appeal. In this regard the Applicant drew attention to Section 4 of the Local Government( Planning and Development) Act 1992 which sets out the manner in which an appeal to the Respondent had to be made and in particular Sub Section 1 of that Section. Had the Applicant being informed pursuant to Section 13 Subsection 2 of the fact that the Board purposed to regard his application as no different to that of the West site, that would have given him an opportunity to make such case as he was able to in regard to any differences that might exist between the two. He was however, not given that opportunity. In the light of this I would hold that this ground is a substantial one.
16. The ground set out at E(ii) is similar in content to that at (i) save that in regard to the same complaint, the Applicant makes the case that the failure to inform him of the foregoing matters was a breach of natural justice and constitutional justice. I would similarly hold that this is a substantial ground.
17. Ground E(iii) – attacks the validity of the decision of the Respondents as being contrary to fundamental reason and common sense. I am not satisfied that this is a substantial ground. Apart from any other material, there was, in my view, before the Board material in the form of the assessment portion of the report of the Inspector together with the designation of the area as per the Kerry County Council Development Plan, and also the plans for the house itself, a combination of material which was, in my view, sufficient material to support the decision of the Board. In that regard, I am mindful of that passage in the Judgment of Finlay C.J. in the case of O’Keffe -v – An Bord Pleanala (1993) 1 I.R. 39 were he says at page 72 of the report
“I am satisfied that in order for an Applicant for Judicial Review to satisfy the Court that the decision making Authority has acted irrationally in the sense which I have outlined above so that the Court can intervene and quash its decision, it is necessary that the Applicant should establish to the satisfaction of the Court that the decision making authority had before it no relevant material which could support its decision.”
18. I am satisfied that there was before the Board, before it made its decision relevant material which could support its decision and hence in my view this ground as advanced is not a substantial ground for contending that the decision is invalid or should be quashed.
19. For the same reasons ground number E(iv) also fails.
20. In ground number E(v) the Applicant contends that the decision was ultra vires by reason of the fact that no reasons or no adequate reasons were given. The Applicants case in this regard is that the reasons for the decision should be such as to give the Applicant some clue as to what was wrong with his proposed development, so that he could assess what kind of new proposal he could make for a development on this site. The Applicant complains that the decision makes no reference to the planning criteria set out in paragraph 8.2.2 of the Kerry County Development Plan, nor does the decision set out any deficiency in the proposed development, having regard to those criteria.
21. Thus, the decision as stated suffers from an ambiguity, in that it could be interpreted as meaning that the instant development proposal was defective, or that alternatively the decision meant that no development would be permitted on this site.
22. If the Board intended the latter meaning, the decision should have stated this expressly, and if the Board did not intend to rule out all development on this site, it should in its decision, state the reasons, why this particular proposed development was being refused, by reference to the content of the proposal, in the light of the criteria set out at par. 8.2.2 of the Development Plan and any other relevant planning considerations. In this regard the Applicant relied upon the case of Save Britain’s Heritage -v- The Secretary of State for the Environment and Others (1991) 2 All ER at p. 10. This is a decision of the House of Lords and in particular the Applicants refers to the following passage from the speech of Lord Bridge of Harwich where he says the following at page 24 of the report-
“The single and indivisible question in my opinion which the Court must ask itself when ever a planning decision is challenged on the ground of the failure to give reasons is whether the interests of the applicant have being substantially prejudiced by the deficiency of the reasons given. Here again, I disclaim any intention to put a gloss on the statutory provisions by attempting to define or delimit the circumstances in which deficiency of reasons will be capable of causing substantial prejudice, but I could except that normally such prejudice should arise from one of three causes. First, there will be substantial prejudice to a developer whose application for permission has been refused or to an opponent of development when permission has been granted when the reasons for the decision are so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the act. Secondly, a developer whose application for permission is refused maybe substantially prejudiced where the planning considerations on which the decision is based are not explained sufficiently clearly to enable him reasonably to assess the prospects of succeeding in an application for some alternative form of development. Thirdly, an opponent of development, whether the Local Planning Authority or some unofficial body like the Respondents may be substantially prejudiced by a decision to grant permission in which the planning considerations on which the decisions is based, particularly if they relate to planning policy, are not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications.”
23. Against this Miss Butler has submitted that it was neither necessary or indeed desirable that the Respondents should by its decision to refuse set down markers for further future applications because it might be then held estopped from refusing a future application. She further submitted, relying upon the Judgement of Laffoy J in the case of Village Residents Associations Ltd and An Bord Pleanala and McDonald Restaurants and Kilkenny County Council in which judgment was delivered on the 5th of May 2000, that all that was necessary for the Board to do in order to fulfil its statutory duty to give reasons for its decision was to so state its reasons over the entirety of the document containing its refusal so that an intelligent person with knowledge of the issues raised in the Appeal would understand why the Board came to the decision to refuse. She submitted that the reason expressly stated in the decision for its refusal, reflects in exact terms the grounds which were advanced by Mr McKiernan in his appeal so that any person could readily see what was decided by the Board and why.
24. I am mindful of the state of the Authorities on the question of the content of reasons which must be given by the Respondents or a Local Authority in their decisions. Laffoy J. in the above mentioned McDonalds case said the following at page 18 of the judgment
“On the authorities and determining whether the Board properly fulfilled its statutory duty to give reasons for its decision, the Court must have regard to the entirety of the document dated the 30th of April 1999 and it must consider whether an intelligent person with knowledge of the broad issues raised in McDonalds appeal would understand why the Board came to the decision to grant permission subject to conditions”
25. In this statement clearly Laffoy J was reflecting almost exactly what had been said by Finlay C.J. in O’Keefe -v- An Bord Pleanala at page 76 where he said
“Firstly I am satisfied that there is no substance in the contention made on behalf of the Plaintiff that the Board should be prohibited from relying on a combination of the reason for the decision and the reasons given for the conditions together with the terms of the conditions. There is nothing in the statute which could justify such a rigid approach and it would be contrary to common sense and to fairness. What must be looked at is what an intelligent person who had taken part in the appeal or had being appraised of the broad issues which had arisen in it would understand from this document, these conditions and these reasons ”.
26. On the basis of the authorities in this jurisdiction, there could be said to be much merit in Miss Butler submission, nevertheless, there is undoubtedly authority for the proposition advanced in this ground in the neighbouring jurisdiction as in the Save Britain’s Heritage case, an authority which could be very persuasive.
27. It could be argued that the authorities in this jurisdiction deal more with the form of decisions, prescribing merely that decisions, taken in their entirety, must be capable of demonstration to an intelligent person who was aware of the issues raised what the reasons for the decision were. Neither the O’Keefe case nor the McDonald case was concerned with the essential content of the reasons for a decision. This topic was addressed in the Save Britain’s Heritage case, and the rationale of the decision in this case, does not conflict with the judgments of the Supreme Court in the O’Keefe case, or with the judgment of Laffoy J in the McDonald case. It could be said that what has happened in the Save Britain’s Heritage case is a development of the law in this area, that has not yet happened in this jurisdiction.
28. I am of the view therefore, having regard to this, that there is substance in this ground and I would hold that it is a substantial ground.
29. Ground no E(vi) is not a substantial one in my opinion, as it is well settled that the Board, need not accept a recommendation of an inspector and has no obligation to explain a rejection of an inspector’s recommendation. All that is required of the board is that there be some material to support its decision and that it gives reasons for its decision.
30. In regard to grounds numbers E(vii) and (viii) the Applicant had not advanced any case in this application which would persuade me that these are substantial grounds, in particular having regard to the admitted fact that the outline planning permission expired in March of 1999 and that there after it ceased to have any legal force and effect.
31. In regard to ground number E(ix) the applicant has not in his Affidavits or in his course of submissions advanced any case which would convince me that this a substantial ground and hence I hold that it is not.
32. In summary, the applicant is entitled to leave to apply on Grounds no E(i), E(ii) and E(v).