ARKLOW HOLIDAYS Ltd v Bord Pleanála and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Clarke
• Judgment Date: 18 January 2006
• Neutral Citation: [2006] IEHC 15
• Date: 18 January 2006

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS

COMMERCIAL

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT)

ACTS 1963–1995

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

AND

AN BORD PLEANALA, 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

[2006] IEHC 15

[No. 291 J.R./2005]

[No. 52 COM/2005]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW: waste licence

The applicant sought leave to challenge a decision of the first named respondent granting planning permission to the second named notice party for the development of a waste water treatment works on a site adjoining lands owned by the applicant. The applicant claimed that the Board erred in having regard to environmental issues which, were properly matters for the Environmental Protection Agency, failed to carry out a proper environmental impact assessment in relation to the whole of the project and the Urban District Council did not have a sufficient interest in the property the subject matter of the planning application to entitled them to make the application.

Held by Clarke J. in granting leave on three grounds: That there were substantial grounds for arguing that the process engaged in by the Board in assessing the environmental impact of the project taken as a whole was flawed. It was also arguable that the Urban District Council did not have a sufficient interest in the property. Furthermore, there were substantial grounds for contending that the Board erred in determining that the provisions of the Waste Management Act requiring a waste licence did not apply to the project.

Reporter: L.O’S.

PLANNING & DEVELOPMENT ACT 2000 S50

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S19

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA & ORS 1995 2 ILRM 125

DROGHEDA PORT CO v LOUTH CO COUNCIL UNREP HIGH COURT MORRIS 11.4.1997 1997/8/2757

HYNES v BORD PLEANALA & GALWAY CORPORATION & ORS UNREP HIGH COURT LAFFOY J 10.12.1997 1998/7/2169

BLESSINGTON & DISTRICT COMMUNITY COUNCIL LTD v WICKLOW CO COUNCIL 1997 1 IR 273

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

KENNY v BORD PLEANALA & ORS 2001 1 IR 565

MULHOLLAND & KINSELLA v BORD PLEANALA UNREP HIGH COURT KELLY 4.10.2005

EEC DIR 75/442

EEC DIR 91/156

BOLAND v BORD PLEANALA 1996 3 IR 435

HOULIHAN v BORD PLEANALA UNREP HIGH COURT MURPHY J 4.10.1993 1993/12/3737

LOCAL GOVT ACT 2001 S145

EEC DIR 85/337

WELLS v SECRETARY OF STATE FOR TRANSPORT 2004 ECR I-00723

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/198

FRESCATI ESTATES v WALKER 1975 IR 177

KEANE & NAUGHTON v BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS 1998 2 ILRM 241

FORESHORE ACT 1933 S2

FORESHORE ACT 1933 S3

PLANNING & DEVELOPMENT ACT 2000 S225

WASTE MANAGEMENT ACT 1996 S54(1)

WASTE MANAGEMENT ACT 1996 S3(1)(b)

WASTE MANAGEMENT ACT 1996 S39

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

1. Introduction

2 2 1.1 In these proceedings the applicant Arklow Holidays Limited ("Arklow") seeks leave to challenge a decision of the first named respondent, An Bord Pleanála ("The Board") granting planning permission to the second named notice party, Arklow Urban District Council ("the Urban District Council") for the development of a waste water treatment works together with associated sewers, roads and an outfall pipe at Seabank, Arklow, Co. Wicklow. The second and third named respondents, Ireland and the Attorney General ("the State") are joined by virtue of the fact that certain questions relating to whether Ireland has properly transposed relevant EU directives into domestic law arise in the course of these proceedings. The first named notice party, Wicklow County Council, ("the County Council") is made a notice party by virtue of the fact that the development sought to be carried out by the Urban District Council is, in large measure, outside the functional area of the Urban District Council and is within the functional area of the County Council. The County Council is, therefore, the planning authority to whom the original application for planning permission was made. The remaining notice parties were put on notice by virtue of the fact that they had an involvement in the planning process now sought to be challenged. However none of those parties have taken an active part in the application before me.

2. Background

2 2 2.1 Arklow is the occupier of lands adjoining the site of the proposed development and owns and operates a large mobile home park which attracts approximately 1,300 visitors annually. It would appear that those visitors used the lands, including those comprised in the proposed development and the beach and dunes through which it is proposed to construct the outfall pipe in relation to the proposed development, for recreational activities.

3 3 2.2 On the 13th July, 1999 planning permission was granted by the County Council as the relevant planning authority in application reference no: 23/99. Arklow challenged that original grant of planning permission ("the first challenge"). Neither the Urban District Council (as developer) nor the County Council (as the planning authority) resisted the leave application in the first challenge. However by virtue of the existence of that challenge the appeal which had been lodged by Arklow to the grant of the planning permission to the Board was delayed. It would appear that there were protracted disputes between the parties regarding discovery in respect of the first challenge. As a result the matter did not come on for hearing until 2003 and was the subject of separate judgments of Murphy J. on respectively 15th May, 2003 (in respect of the substantive leave application) and 15th October, 2003 (in respect of an Appeal Certificate).

4 4 2.3 It will be necessary to return to the first proceedings to some extent later in the course of this judgment. However at this stage it is sufficient to note that the proceedings were unsuccessful and, for the reasons set out in the second judgment referred to above, Murphy J. declined to certify any issues as being suitable, in accordance with the provisions of the Planning Acts, as a basis for an appeal to the Supreme Court. The first challenge therefore terminated with that final determination by Murphy J. on 15th October, 2003.

5 5 2.4 The appeal on the merits to the Board followed. That appeal was unsuccessful in substance in that the Board confirmed the decision of the County Council to grant planning permission although certain additional or different conditions were imposed by the Board. Certain of those conditions arise in the context of these proceedings and it will be necessary to refer in more detail to them later in the course of this judgment.

3. Substantial Grounds

2 2 3.1 Arklow's current leave application is made pursuant to s. 50 of the Planning and Development Act 2000 ("the 2000 Act"). Under this section Arklow must 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 that decision.

3 3 3.2 The criterion of "substantial grounds" was originally imposed by s. 82(3B) of the Local Government (Planning and Development) Act 1963 as amended by s. 19 of the Local Government (Planning and Development) Act 1992. The test has been the subject of significant judicial interpretation and may now be said to be well settled.

4 4 3.3 In McNamara v. An Bord Pleanála [1995] 2 ILRM 125 Carroll J. held that "substantial grounds" in the context of s. 82(3B) has the following meaning:-

"In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are "substantial". A ground that does not stand any change of being sustained (for example where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in this argument at the next stage to those which I believe may have some merit".

5 5 3.4 That interpretation has been followed in this court on a number of occasions, for example in Drogheda Port Company v. Louth County Council (Unreported, High Court, Morris P. 11th April, 1997); Hynes v. An Bord Pleanála (Unreported, High Court, Laffoy J. 10th December, 1997); and Blessington and District Community Council v. Wicklow County Council (High Court, Unreported, Kelly J. 19th July, 1996).

6 6 3.5 Of perhaps even greater importance is the fact that the Supreme Court, in the Illegal Immigrants (Trafficking) Bill 1999 (2000) 2 I.R. 360, endorsed the McNamara test as the appropriate test applicable to the regime then under consideration that is to say the largely identical statutory regime in respect of challenges in the immigration sphere.

7 7 3.6 The test set out in McNamara is, therefore, well established as the appropriate basis for a consideration of whether there are substantial grounds in any statutory regime where the Oireachtas has determined that such grounds require to be established before...