Arklow Holidays Ltd v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 21 July 2011
• Neutral Citation: [2011] IESC 29
• Court: Supreme Court
• Docket Number: [S.C. No. 161
• Date: 21 July 2011

Arklow Holidays Ltd v Bord Pleanala & Ors

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963 -95

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT/APPELLANT

and

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

and

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

NOTICE PARTIES

[2011] IESC 29

Murray C.J.

Fennelly J.

Finnegan J.

RECORD No. 161/2008

THE SUPREME COURT

PRACTICE AND PROCEDURE

Abuse of process

Planning law - Judicial review - Judicial review of decision of An Bord Pleanála - Grounds not raised in prior judicial review - Whether applicant precluded from relying on grounds not previously raised - Whether special circumstances relieving applicant of requirement to have raised grounds in first judicial review proceedings - Whether prohibition on raising grounds contrary to European Union law - Whether prohibition on raising grounds contrary to European Convention on Human Rights 1950 - Whether reference to European Court of Justice appropriate - Henderson v Henderson (1843) 3 Hare 100 and AA v Medical Council [2003] 4 IR 302 applied - Treaty on the Functioning of the European Union, Article 267 - European Convention on Human Rights 1950, article 6 - Applicant's appeal dismissed (161/2008 - SC - 21/7/2011) [2011] IESC 29

Arklow Holidays Ltd v An Bord Pleanála

Facts: The respondent had granted planning permission in 1999 and 2005. It was argued that the applicant could not raise grounds in judicial review proceedings concerning the permission which were not raised in the earlier application, on account of the rule in Henderson v. Henderson. The Supreme Court considered whether and to what extent the rule in Henderson v. Henderson could be relied upon to defeat a first and timely challenge by way of judicial review to a decision of An Bord Pleanala where the substantive point could have been but was not raised. The Court had to consider if the rule was applicable the extent to which inter alia the Court could or had to consider the public importance of the issues raised and the conduct of other parties to the proceedings. The question arose as to the appropriateness of a preliminary reference to the Court of Justice.

Held by the Supreme Court per Finnegan J. (Murray CJ. Fennelly JJ. concurring) that the appeal would be dismissed and the order of the High Court affirmed. The rule in Henderson v. Henderson applied to a first and timely challenge by way of judicial review to a decision of An Bord Pleanal where the substantive point at issue could have been but was not raised in different proceedings brought against the Authority. In its exercise of its discretion not to apply the rule in Henderson v. Henderson the Court would have regard to all the circumstances including the issues raised and the conduct of the parties. The proposed preliminary reference related to matters not considered by the Court and could not accordingly be referred.

Reporter: E.F.

HENDERSON v HENDERSON 1843-60 AER REP 378 67 ER 313 1843 3 HARE 100

PLANNING & DEVELOPMENT ACT 2000 S50

EEC DIR 91/156

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372 2003/1/49

PLANNING & DEVELOPMENT ACT 2000 S50(4)(F)(i)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 19

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 23(1)

MITCHELL v IRELAND & ORS UNREP HANNA 18.3.2005 2005/39/8088 2005 IEHC 102

AKRAM v MIN FOR JUSTICE & ORS 2004 1 IR 452 2004/1/211

GREEN DALE BUILDING CO LTD, IN RE 1977 IR 256

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446 2003/3/564

DUBLIN CO COUNCIL v TALLAGHT BLOCK CO LTD 1982 ILRM 534 1982/4/766

ILLIUM PROPERTIES LTD v BORD PLEANALA UNREP SMYTH 16.12.2004 2004/22/5171 2004 IEHC 403

SOUTH BUCKS DISTRICT COUNCIL v FLANAGAN & ANOR 2002 1 WLR 2601 2002 EWCA CIV 690

FINGAL CO COUNCIL v WILLIAM P KEELING & SONS LTD 2005 2 IR 108 2005/25/5196 2005 IESC 55

MITCHELL v IRELAND & ORS 2007 3 IR 283 2007/41/8478 2007 IESC 11

R v SECRETARY OF STATE FOR THE ENVIRONMENT, EX PARTE HACKNEY LONDON BOROUGH COUNCIL & ANOR 1984 1 WLR 592 1984 1 AER 956

R (MUNJAZ) v MERSEY CARE NHS TRUST & ORS 2004 QB 395 2003 3 WLR 1505 2003 EWCA CIV 1036

AANNEMERSBEDRIJF PK KRAAIJVELD BV & ORS v GEDEPUTEERDE STATEN VAN ZUID-HOLLAND 1997 AER (EC) 134 1996 ECR I-5403 1997 3 CMLR 1 1997 ENV LR 265

FRIENDS OF THE CURRAGH ENVIRONMENT LTD v BORD PLEANALA UNREP FINLAY-GEOGHEGAN 8.12.2006 2006/24/5090 2006 IEHC 390

HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005/29/5917 2005 IEHC 344

LANCEFORT LTD v BORD PLEANALA & ORS (NO 2) 1999 2 IR 270 1998 2 ILRM 401 1998/23/8916

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

JOHNSON v GORE WOOD & CO (A FIRM) 2002 2 AC 1 2001 2 WLR 72 2001 1 AER 481

MCQUAID v MALONE UNREP GEOGHEGAN 29.1.1998 (EX TEMPORE)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

DOWNDERRY CONSTRUCTION LTD v SECRETARY OF STATE FOR TRANSPORT 2002 ACD 62 2002 EWHC 2 (ADMIN)

TOWER HAMLETS LONDON BOROUGH COUNCIL & ANOR v SHERWOOD & ANOR 2002 AER (D) 218 (FEB)

PETERBROECK VAN CAMPENHOUT & CIE SCS v BELGIUM 1996 AER (EC) 242 1995 ECR I-4599 1996 1 CMLR 793

VAN SCHIJNDEL & VAN VEEN v STICHTING PENSIOENFONDS VOOR FYSIOTHERAPEUTEN 1996 AER (EC) 259 1995 ECR I-4705 1996 1 CMLR 801

COLLINS & O'REILLY CIVIL PROCEEDINGS & THE STATE 2ED 2004

MCNAMARA v BORD PLEANALA 1998 3 IR 453

GREEN DALE BUILDING CO LTD, IN RE 1977 IR 256

D v C 1984 ILRM 173 1983/8/2366

LOCKYER v FERRYMAN 1876-77 2 APP CAS 519

BELTON v CARLOW CO COUNCIL 1997 1 IR 172 1997 2 ILRM 405 1998/2/397

TALBOT v BERKSHIRE CO COUNCIL 1994 QB 290 1993 3 WLR 708 1993 4 AER 9

BARROW v BANKSIDE MEMBERS AGENCY LTD 1996 1 WLR 257 1996 1 AER 981

PORT OF MELBOURNE AUTHORITY v ANSHUN PTY LTD 1980-81 147 CLR 589 1981 HCA 45

STUART v SANDERSON & ANOR 175 ALR 681 2000 FCA 0870

YAT TUNG INVESTMENT CO LTD v DAO HENG BANK LTD & ANOR 1975 AC 581 1975 2 WLR 690

AMMINISTRAZIONE DELLE FINANZE DELLO STATO v ARIETE SPA ROME 1981] 1 C.M.L.R. 316 1980 ECR 2545

FRANCOVICH v ITALY 1991 ECR I-5357 1993 2 CMLR 66 1995 ICR 722

EEC DIR 85/337

R v SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD & ORS 1990 ECR I-2433 1990 3 CMLR 1

EEC DIR 2003/35 ART 2

EEC DIR 75/442 ART 7(1)

ASHINGDANE v UNITED KINGDOM 1985 7 EHRR 528

TREATY OF ROME ART 324

1 Judgment of Mr Justice Finnegan delivered on the 21st day of July 2011

2 JUDGMENT DELIVERED BY FINNEGAN, J. [NEM DISS]

3 By order made on the 18 ^th 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:-

4 1. 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.

5 2. 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:

6 (a) the fact that the substantive issues raised in the proceedings are of considerable public importance and potentially of wide ranging application;

7 (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.

BACKGROUND

8 On the 21 ^st 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.

9 The County Council decided to grant planning permission Reference No. 23/99 on the 13 ^th July 1999.

10 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 10 ^th 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 29 ^th April and the 9 ^th July 2003. In a judgment delivered on...