Arklow Holidays Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 05 October 2007
• Neutral Citation: [2007] IEHC 327
• Court: High Court
• Date: 05 October 2007

[2007] IEHC 327

THE HIGH COURT

[No. 291 J.R./2005]

[No. 52 COM/2005]

ARKLOW HOLIDAYS LTD v AN BORD PLEANALA & ORS

JUDICIAL REVIEW

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACTS 1963 -95

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

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, COAST WATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

PLANNING & DEVELOPMENT ACT 2000 S50

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS 2007 1 ILRM 125 2006 IEHC 15

HENDERSON v HENDERSON 1843 3 HARE 100 1843 67 ER 313

WASTE MANAGEMENT ACT 1996

A (A) v MEDICAL COUNCIL & AG 2003 4 IR 302 2004 1 ILRM 372

MITCHELL v IRELAND & ORS 2005 39 8088 2005 IEHC 102

AKRAM v MIN JUSTICE 2004 1 IR 452

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Certiorari - Issue estoppel - Grant of planning permission upheld by An Bord Pleanála - Judicial review of decision upholding grant of permission sought - Judicial review of local authority grant of permission already sought - Grounds not raised in first judicial review - Whether grounds could have been raised - Whether failure to raise grounds in first challenge precluded raising them in second - Whether prohibition on raising grounds contrary to European Union law - Henderson v Henderson (1843) 3 Hare 100 and AA v Medical Council [2003] 4 IR 302 applied - Planning and Development Act 2000 (No 30), s 50 - Relief refused (2005/291JR & 52COM - Clarke J - 5/10/2007) [2007] IEHC 327

Arklow Holidays Ltd v An Bord Pleanála

This was an application for judicial review challenging a decision of An Bord Pleanala upholding the grant of permission to build a waste water management treatment plant. The Respondents contended that the Applicant was precluded from raising issues on the basis of the rule in Henderson v Henderson.

Held by Clarke J. that the Applicant was estopped from raising all of the issues in respect of which leave had been granted and the application for judicial review had to be refused.

Reporter: RW

1. Introduction

2 2 1.1 These proceedings form part of a very long running dispute concerning a proposal on the part of Arklow Urban District Council ("Arklow") to build a waste water management treatment plant for the purposes of servicing increasing needs of the Arklow area. These, and other connected, proceedings have a long history. The applicant ("Arklow Holidays") challenged, in this Court, an initial planning permission granted by the first named notice party ("Wicklow Council"). That challenge failed. Thereafter an appeal as to the merits of the planning permission was pursued to the first named respondent ("the Board") which upheld the grant of permission subject to conditions. These proceedings were commenced with a view to challenging that decision of the Board on appeal. I will set out the relevant procedural history of the respective proceedings in due course.

3 3 1.2 In accordance with the requirements of s. 50 of the Planning and Development Act, 2000 ("the 2000 Act"), leave to seek judicial review was sought on notice to the respondents and the various notice parties. Some, but not all, of the notice parties participated. For the reasons which I set out in an earlier judgment in these proceedings on the 18 ^th January, 2006 [2006 (IEHC) 15], I was persuaded to give leave to apply for judicial review pursuant to s. 50 of the 2000 Act relating to some but not all of the grounds advanced.

4 4 1.3 At para. 4.1 of that judgment, I identified six groups of grounds in respect of which leave had been sought. As set out later in that judgment, I was persuaded that leave should be granted only in respect of the groups of grounds identified at 2, 3 and 5 in that paragraph, which were in the following terms:-

2 "2. That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have regard, as it is said it did, to environmental questions, those matters being properly ones for the Environmental Protection Agency (" EPA").

3 That the Board failed to carry out a proper environmental impact assessment ("EIA") in relation to the whole of the project.

3 ...

5 That the Urban District Council did not have a sufficient interest in the property which was the subject of the planning application to entitle them to make the application."

5 5 1.4 The matter then proceeded to a full hearing at which those grounds were argued in detail.

2. Issues

2 2 2.1 The issues which I have to decide include, therefore, questions as to whether any of the grounds which I have identified are made out. At the substantive hearing only the Board and Arklow Council, of those opposing the application, were represented notwithstanding the fact that both Wicklow County Council and the State respondents had been represented at the leave hearing. Wicklow County Council indicated that it did not feel that it had anything to add to the proceedings and was prepared to abide by the result. By reason of the refusal of leave in relation to some of the grounds which had been advanced at the leave application, the State respondents were no longer necessary or proper parties to the full hearing.

3 3 2.2 The hearing, therefore, proceeded on the basis of the application for judicial review being opposed by the Board and Arklow Council. In addition to the three groups of grounds in relation to which leave had been granted, a further issue or point of defence was argued at the hearing before me as a preliminary objection. It should be noted that this issue had been raised by those opposing the judicial review at the leave stage, but I was not, at that time, and for the reasons which I set out in my judgment, satisfied that it could be determined that the resolution of the issue concerned was sufficiently clear so as to necessarily provide an answer to these proceedings, at that leave stage. In other words while considering the point to be of substance, it did not, it seemed to me, prevent Arklow Holidays from having established substantial grounds. The issue concerns a contention, on the part of those opposing the judicial review, that Arklow Holidays are now estopped from raising any of the points which are now asserted, on the basis that those points would have been equally applicable, if they be good points, to the original grant of planning permission. It is said that none of those points were raised in the challenge to the planning permission. It is, therefore, argued that having regard to the so called rule in Henderson v. Henderson (to which I will return), Arklow Holidays are now precluded from raising those issues at this stage.

4 4 2.3 There are, therefore, four matters which arise in this substantive application.

The first is as to whether those opposing the application are correct in their contention that Arklow Holidays are now precluded from raising any of the issues concerned.

2 2 2.4 If, and to the extent that, Arklow Holidays are not so precluded in relation to any or all of the grounds in respect of which leave was given, then such of the three matters in respect of which leave has been granted as are not thus excluded, also fall for determination.

3 3 2.3 In the circumstances, it seems to me to be appropriate to turn, firstly, to the question of whether Arklow Holidays are, in fact, precluded from raising any of the issues.

3. The preliminary objection- the facts

2 2 3.1 The original judicial review proceedings in respect of the grant of planning permission in this case were commenced on the 10 ^th September, 1999 by Arklow Holidays naming Arklow and Wicklow County Council as respondents. Those proceedings bore Record No. 1999 No. 358 J.R. It is fair to say that in those proceedings Arklow Holidays raised a significant number of legal issues which, it was alleged, rendered the grant of the planning permission concerned invalid. As part of the process Arklow Holidays were given leave to amend their grounding statement to enable the relief claimed to be more fully set out. This was done on the 13 ^th November, 2000.

3 3 3.2 On the 15 ^th October, 2003 Murphy J. refused Arklow Holidays all of the relief sought. Further on the 3 ^rd February, 2004 Murphy J. refused an application for the necessary certificate to enable an appeal to be brought to the Supreme Court.

4 4 3.3 It would seem that none of the grounds which are now before this court were, in fact, raised by Arklow Holidays in the challenge to the original planning permission which was ultimately dismissed by Murphy J. In that context it is necessary to examine the grounds now raised for the purposes of determining whether they could (or indeed should) have been raised at that time. It is appropriate to address each of the groups of grounds in turn.

5 5 3.4 As noted at par. 1.3 above the first group of grounds concern the question of the applicably of the Waste Management Act, 1996 ("the 1996 Act") to the plant. The issues concerned raise mixed question of law and fact but centre on the question of whether the proposal which was under consideration by the Board for the waste management treatment plant concerned was one which required a licence under the 1996 Act. If it does, then, it is argued that it was wrong of the Board to consider environmental pollution questions in determining whether or not to grant a planning permission or the conditions to be imposed on such a grant, for those matters, it is in turn argued, are properly within the jurisdiction of the EPA.

6 6 3.5 If there is any merit to that point it is manifestly clear that it applied with equal strength to the considerations of...