Arklow Holidays Ltd v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 January 2008
• Neutral Citation: [2008] IEHC 2
• Court: High Court
• Date: 11 January 2008

Arklow Holidays Ltd v Bord Pleanala & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENTS) ACT,

1963 - 1995

BETWEEN

ARKLOW HOLIDAYS LTD

APPLICANTS

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WICKLOW COUNTY COUNCIL, ARKOW URBAN DISTRICT COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION, ARKLOW ACTION GROUP, WICKLOW PLANNING ALLICANCE, AN TAISCE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION, COAST WATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

[2008] IEHC 2

[No. 291 J.R/2005]

[No. 52 COM/2005]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Leave to appeal - Principles applicable - Whether uncertainty as to law in respect of point of exceptional importance - Whether importance of point public in nature - Whether appeal desirable in public interest - Irrelevance of strength or weakness of argument in favour of point - Relevance of 'technical' nature of point - Importance of subjecting to scrutiny projects with potential for significant environmental impact - Arklow Holidays Ltd v An Bord Pleanála [2006] IEHC 102, (Unrep, Clarke J, 29/3/2006), KSK Enterprises v An Bord Pleanála [1994] 2 IR 128, Irish Asphalt v An Bord Pleanála [1996] 2 IR 179, Irish Hardware Association v South Dublin County Council [2001] 2 ILRM 291, Lancefort v An Bord Pleanála [1998] 2 IR 511, Kenny v An Bord Pleanála (No 2) [2001] 1 IR 704, Fallon v An Bord Pleanála [1992] 2 IR 308, Arklow Holidays Ltd v Wicklow County Council (Unrep, Murphy J, 4/2/2004), Ashbourne Holdings Ltd v An Bord Pleanála (Unrep, Kearns J, 19/6/2001), Begley v An Bord Pleanála (Unrep, Ó Caoimh J, 14/1/2003) - Glancre Teo v An Bord Pleanála [2006] IEHC 250, (Unrep, MacMenamin J, 13/7/2006) and Harding v Cork County Council [2006] IEHC 450, (Unrep, Clarke J, 30/11/2006) considered - Planning and Development Act 2000 (No 3), s 50 - Certificate granted (2005/291JR - Clarke J - 11/1/2008) [2008] IEHC 2

Arklow Holidays Ltd v An Bord Pleanála

This case concerned disputes between the applicant and various other parties concerning the grant of planning permission for a waste treatment plan. The High Court held that the applicant was precluded by virtue of the rule in Henderson v Henderson from pursuing any of the issues in respect of which leave to challenge the planning permission had been granted. The applicant sought a certificate to enable it to appeal to the Supreme Court.

Held Clarke J. in granting the certificate sought that the law on the applicability of the rule in Henderson v Henderson was not clear and the question raised was one of exceptional public importance. It was in the public interest that the question of law be certified. The requirement that projects which had the potential to had a significant environmental impact be subjected to close scrutiny was of some significance.

Reporter: R.W

HENDERSON v HENDERSON 1843 3 HARE 100

PLANNING & DEVELOPMENT ACT 2000 S50(4)(f)

PLANNING & DEVELOPMENT ACT 2000 S50

ARKLOW HOLIDAYS LTD v BORD PLEANALA & AG 2007 1 ILRM 129 2006 IEHC 102

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 205

HARDING v CORK CO COUNCIL & BORD PLEANALA UNREP CLARKE 30.11.2006 2006 IEHC 450

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 641

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS UNREP CLARKE 8.9.2006 2006/3/451 2006 IEHC 280

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PARA 11.376

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007 PARA 11.377

1 JUDGMENT of Mr. Justice Clarke delivered the 11th day of January, 2008

1. Introduction

2 2 1.1 Disputes between the applicants ("Arklow Holidays") and various other parties concerning the grant of a planning permission for a waste water treatment plant to service the Arklow area have been ongoing for a very considerable period of time. The procedural history of those disputes is set out in a judgment which I delivered in this matter on the 5th of October, 2007 ("the substantive judgment"). That judgment was the latest in a series of judgments in this and connected matters, details of which can be found in the review of the procedural history of the relevant disputes as set out in the substantive judgment. For the reasons set out in that judgment I came to the view that Arklow Holidays were precluded, by virtue of the rule in Henderson v. Henderson [1843] 3 Hare 100, from pursuing any of the issues in respect of which leave to challenge the planning permission at the heart of these proceedings had been granted. On that basis the orders sought were refused.

3 3 1.2 Arklow Holidays now seeks a certificate to enable it to appeal the substantive judgment to the Supreme Court. Without such a certificate Arklow Holidays is, of course, precluded by the provisions of s. 50(4)(f) of the Planning and Development Act, 2000 ("The 2000 Act"), from bringing such an appeal. This judgment is directed towards the question of whether such a certificate should be given in this case. As at the hearing which led to the substantive judgment, Arklow Holidays was opposed in its application by the first named respondent ("the Board") and the second named notice party ("Arklow Council"). None of the other parties participated at this stage. It should also be noted that the application of the rule in Henderson v. Henderson to this case was raised principally by Arklow Council. The Board, while agreeing with the principles advanced by Arklow Council and their application to this case, did not feel that it was an appropriate party to raise the matter, as the Board had not itself been a party to a previous challenge to the original notification of grant of planning permission by Wicklow County Council. On that basis the Board was not a party to the previous proceedings in which it was said that the points now sought to be relied on could have and should have been raised. Having taken that position the Board played a limited role in the certificate application confining itself, in the main, to observations about the issues which could, in principle, form the proper basis of a certficate. It is appropriate to turn first to the issues which Arklow Holidays suggests ought to be certified.

2. The Proposed Issues

4 2 2.1 In its written legal submissions on this application, Arklow Holidays suggest that a certificate of leave to appeal to the Supreme Court should be given on two points, that is to say:-

5 2 "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 the Board in circumstances where the substantive point at issue could have been, but were not raised, in different proceedings, brought by the applicant against the Planning Authority.

6 2. If the rule in Henderson v. Henderson is prima facie applicable in the circumstances outlined in para. 1 above to what extent is the court, in the exercise of its discretion, obliged and/or entitled to have regard to

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

8 (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".

9 3 2.2 The key issue is, therefore, as to whether the question as to the application of the rule in Henderson v. Henderson in planning matters is a point of law which meets the criteria set out in s. 50 of the 2000 Act, that is that it is 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 on that point.

10 4 2.3 Against that background it is appropriate to turn to the legal principles by reference to which such a certificate should be granted or refused.

3. The Law

11 2 3.1 As it happens a previous application for a certificate has been made in these proceedings. At the leave stage Arklow Holidays succeeded in part, in that leave to seek judicial review was obtained on some but not all of the grounds advanced. In relation to certain of the grounds in respect of which leave was refused an appeal certificate was sought. For the reasons set out in Arklow Holidays Ltd v. An Bord Pleanala [2006] IEHC 102, I was not persuaded that it was appropriate to give the certificate sought. I summarised the legal basis on which a consideration of certification is based, between paras 2.2 and 2.5 of that judgment in the following terms:-

12 2 "2.2 It is clear from the decisions of the Supreme Court in KSK v. An Bord Pleanála [1994] 2 I.R. 128, Irish Asphalt v. An Bord Pleanála [1996] 2 I.R. 179, and Irish Hardware Association v. South Dublin County Council and Others [2001] 2 I.L.R.M. 291, together with numerous decisions of this Court, that the policy behind the section is that there should be a greater degree of certainty and expedition in the determination of planning judicial reviews.

13 3 2.3 In a number of decisions of this court the requirements of the section have been analysed in some detail and it is clear that a number of tests must be met:-

14 (i) There must be an uncertainty as to the law in respect of a point which has to be of exceptional importance; see for example Lancefort v. An Bord Pleanála [1998] 2 I.R. 511.

15 (ii) The importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case. Kenny v. An Bord Pleanála (No. 2) [2001] 2 I.R. 704. It is the case that every point of law arising in every case is a point of law of importance. Fallon v. An Bord Pleanála [1992] 2 I.R. 308. That, of itself, is insufficient for the point of law...