Arklow Holidays Limited v An Bord Pleanala & ors,  IESC 29 (2011)
THE SUPREME COURT
RECORD No. 2008/161
IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963-95
ARKLOW HOLIDAYS LIMITED
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL
WICKLOW COUNTY COUNCIL, ARKLOW URBAN DISTRICT COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION, ARKLOW ACTION GROUP, WICKLOW PLANNING ALLIANCE, AN TAISCE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION, COASTWATCH EUROPE, P.J. HYNES AND BRENDAN HYNES
Judgment of Mr Justice Finnegan delivered on the 21st day of July 2011
By order made on the 18th January 2008 the appellant’s application for orders by way of judicial review was refused. By the said order the High Court certified that its decision to refuse the relief sought by the appellant involves points 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 on the following points:-
Whether and to what extent the rule in Henderson v Henderson can be relied upon to defeat a first and timely challenge by way of judicial review to a decision of An Bord Pleanála in circumstances where the substantive point at issue could have been, but was not raised in different proceedings brought by the applicant against the planning authority.
If the rule in Henderson v Henderson is prima facie applicable in the circumstances outlined in paragraph 1 above to what extent is the court in the exercise of its discretion obliged and/or entitled to have regard to:
(a) the fact that the substantive issues raised in the proceedings are of considerable public importance and potentially of wide ranging application;
(b) the conduct of other parties to the proceedings and in particular whether they caused or contributed to the substantive issues not being raised and/or determined in the earlier proceedings.
On the 21st January 2005 An Bord Pleanála (“the Board”) granted planning permission to Arklow Urban District Council (“the UDC”) for the development of a waste water treatment works together with associated sewers, roads and an outfall pipe at Seabank, Arklow, Co. Wicklow. The first named notice party Wicklow County Council (“the County Council”) is the planning authority to whom the original application for planning permission was made, the development in question relating to lands largely situate outside the functional area of the UDC and within the functional area of the County Council. Arklow Holidays Limited (“Arklow”) is the occupier of lands adjoining the site of the proposed development upon which it operates a mobile home park which attracts some one thousand three hundred visitors per annum. The visitors to the mobile home park are accustomed to use the lands the subject matter of the planning permission and the beach and dunes through which it is proposed to lay the outfall pipe.
The County Council decided to grant planning permission Reference No. 23/99 on the 13th July 1999.
Arklow challenged that grant of planning permission in proceedings entitled the High Court 1999 359JR Between Arklow Holidays Limited Applicant and Wicklow County Council and Arklow Urban District Council Respondents (“the 1999 application”). The County Council and the UDC did not oppose the grant of leave and by order of the 10th November 2000 leave was granted to apply for judicial review on an amended statement of grounds. The hearing of the application was much delayed due to protracted disputes regarding discovery. The matter ultimately came on for hearing over twenty one days between the 29th April and the 9th July 2003. In a judgment delivered on the 15th May 2003 Arklow were refused leave to amend further the statement of grounds to include an allegation of bias against the County Council. Thereafter the hearing continued. For the reasons set out in a further judgment delivered on the 15th October 2003 the application was refused. Thereafter Arklow applied for an appeal certificate and for the reasons set out in a third judgment delivered on the 4th February 2004 the certificate was refused bringing the 1999 application to a conclusion.
Thereafter an appeal to An Bord Pleanála was pursued and by decision of the Board of 21st January 2005 planning permission was granted to the UDC for the development. By notice of motion dated the 16th March 2005 Arklow commenced the present application (“the 2005 application”) seeking leave to apply for judicial review of the decision of the Board to grant planning permission for the proposed development. Pursuant to section 50 of the Planning and Development Act 2000 (“the 2000 Act”) Arklow was required to establish that it has substantial grounds for contending that the decision of the Board is invalid in order that it may be granted leave to challenge the decision. The High Court (Clarke J.) delivered five judgments in all on the leave application and the substantive application.
Judgment delivered 18th January 2006
The statement of grounds raises some thirty four issues. These were summarised under six headings in the judgment:-
That there was an improper abdication by the Board of its role under the Planning Acts in accordance with domestic law, or alternatively no proper assessment by the Board under EU law, in relation to the manner in which the Board determined that the outfall pipe from the plant to the sea was to be situated.
That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have regard, as is said it did, to environmental questions, those matters being properly ones for the Environmental Protection Agency (“EPA”).
That the Board failed to carry out a proper environmental impact assessment (“EIA”) in relation to the whole of the project.
As an alternative to Point 2 it is said that if the Waste Management Act 1996 does not apply to the circumstances of the case then Ireland has failed to properly transpose Council Directive 75/442/EC (as amended by Council Directive 91/156/EC).
That the UDC did not have a sufficient interest in the property, which is the subject of the planning application, to entitle it to make the application.
That the grant of planning permission is invalid by virtue of the fact that part of the works encompassed within the project are to be carried out on the foreshore in respect of which, it is said, the Board has no jurisdiction. It is contended that works on the foreshore are within the exclusive jurisdiction of the relevant Minister, that is the Minister for the Marine.
In its Notice of Opposition the UDC placed reliance on a contention that Arklow are precluded from raising most of the foregoing grounds by virtue of the fact that those grounds could have been, but were not, raised in the 1999 application.
The judgment dealt in turn with the grounds advanced under the foregoing headings and determined in respect of each whether Arklow had established substantial grounds for contending that the decision of the Board is invalid in order that leave to challenge the decision might be granted. The learned trial judge was not satisfied that substantial grounds were disclosed in respect of the grounds at 1, 4 and 6 above, while in respect of the remaining grounds at 2, 3 and 5 he was so satisfied. In relation to the UDC’s opposition to the grant of leave on the basis that the grounds sought to be relied upon could have been relied upon on the 1999 application and that in consequence Arklow is precluded from raising the same on the 2005 application, having regard to the established jurisprudence of the courts (see for example AA v Medical Council  4 I.R. 302) the learned High Court judge held as follows:-
“10.2 However the precise application of such principles in the field of public law challenges to the validity of decisions (and in particular decisions made in what can be and often is a two part process) remains, in my view, open to argument. There can be little doubt but that, to a significant extent, the three issues upon which I am satisfied substantial grounds have been made out would have been available to Arklow at the stage of their original challenge to the grant of permission by the County Council.
10.3 The fact that the EIS did not extend to the entirety of the project applied equally at that stage. It is possible that there may be some distinction between the additional consideration given by the County Council to the assessment of the environmental impact of those aspects of the project not encompassed within the EIS compared with the consideration given by the Board to the same matter. However there would appear to be a significant overlap. The issues concerning the sufficiency of the interest of the Urban District Council in the lands and the proper interpretation of the Waste Management Act 1996 would appear to apply equally to the earlier application. In those circumstances it seems to me that it will be necessary for Arklow to establish that a distinction can and should be made between the types of cases in which the principles to which I have referred were established and public law challenges of the type with which the court is concerned in this case. However in the absence of any clear authority as to the proper approach which the court should take in a challenge of this type, where a contention is made that the applicant is precluded from raising the issue because he could have raised the same issue in a previous challenge to another aspect of the same process, I am not prepared, at this stage, to hold that Arklow has not established substantial grounds.”
Judgment delivered 29th March 2006
Following the judgment of the 18th January 2006 Arklow sought a certificate to enable it to appeal to the Supreme Court in respect of the refusal of leave on the grounds at 1, 4 and 6 for the reasons set out in the judgment. The certificate sought was...
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