Alen-Buckley v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Costello
• Judgment Date: 12 May 2017
• Neutral Citation: [2017] IEHC 311
• Date: 12 May 2017
• Docket Number: [2017 No. 145 J.R.] [2017 No. 42 COM]

IN THE MATTER OF AN APPLICATION PURSUANT

TO SECTION 50 AND SECTION 50B OF THE

PLANNING AND DEVELOPMENT ACT

AND

IN THE MATTER OF AN APPLICATION

BETWEEN

MICHAEL ALEN-BUCKLEY

AND

GIANCARLA ALEN-BUCKLEY

APPLICANTS

AND

AN BORD PLEANÁLA

FIRST NAMED RESPONDENT

AND

IRELAND

AND

THE ATTORNEY GENERAL

SECOND NAMED RESPONDENT

AND

WATERFORD COUNTY COUNCIL

AND

ECO POWER DEVELOPMENT LIMITED

NOTICE PARTIES

[2017] IEHC 311

Costello J.

[2017 No. 145 J.R.]

[2017 No. 42 COM]

THE HIGH COURT

JUDICIAL REVIEW

COMMERCIAL

Environment, Transport & Planning – S. 50 of the Planning and Development Act 2000 – Council Directive 92/43/EU – Practice & Procedures – O.19, r. 27 of the Rules of the Superior Courts – Dismissal of proceedings

Facts: The second named respondents (‘State Defendants’) sought an order for the dismissal of the applicants' proceedings against them. The State defendants asserted that the applicants had primarily sought relief against the first respondent for granting planning permission to the second notice party and the matter was listed in the commercial list. The State defendants further submitted that the applicants expressly did not seek any relief against them.

Ms. Justice Costello granted an order for the dismissal of the applicants' proceedings against the State defendants. The Court held that the statement of grounds presented by the applicants showed that no relief had been claimed against the State defendants. The Court found that the jurisdiction to dismiss a case should be exercised sparingly. The Court found that the applicants did not seek any declaratory relief against the transposition of relevant directive into domestic law and did not formulate their statement of grounds appropriately. The Court held that the continuance of the present proceedings against the State defendants would amount to an abuse of process of law.

JUDGMENT 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...