Ballyboden Tidy Towns Group v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 22 February 2024
• Neutral Citation: [2024] IESC 4
• Docket Number: Supreme Court Record No: S:AP:IE:2023:000049
• Court: Supreme Court

Between

Ballyboden Tidy Towns Group

Appellant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Ardstone Homes Limited

Respondent/Notice Party

[2024] IESC 4

O'Donnell C.J.

Woulfe J.

Hogan J.

Collins J.

Donnelly J.

Supreme Court Record No: S:AP:IE:2023:000049

High Court Record No. 2021 No. 810 JR

THE SUPREME COURT

JUDGMENT of Ms. Justice Donnelly delivered this 22 ^nd day of February 2024

Introduction

1 . When can a party who has been the beneficiary of an administrative decision which has been challenged by judicial review by a third party, continue to defend the decision when the decision-maker has conceded (as distinct from adopting a neutral stance) that the decision ought to be quashed on the basis of a ground or grounds relied upon by that third party? If so, what, if any, threshold must be met by the party seeking to defend the decision? These are the issues that arise in this appeal.

2 . Ballyboden Tidy Towns Group (“the appellant”) describes itself as an unincorporated association dedicated to the protection of the built and natural environment of Ballyboden and the greater Rathfarnham area. The appellant issued judicial review proceedings seeking, inter alia, certiorari of the decision of An Bord Pleanála (“the Board”) to grant planning permission to the notice party, a developer, for the construction of 241 apartments and associated works on lands north of Stocking Avenue, Woodstown, Dublin 16. The proposed development provides for apartment blocks of between four and six stories in height. This development was a Strategic Housing Development (“SHD”) within the meaning of the Planning and Development (Housing) and Residential Tenancies Act 2016 (“the 2016 Act”).

3 . The appellant maintains, inter alia, that the height proposed amounts to a material contravention of both Policy H9 Objective 4 of the South Dublin County Development Plan 2016–2022 (“the development plan”) and Objective LUD8 of the relevant Ballycullen Oldcourt Local Area Plan (the “LAP”). The development plan (Policy H9 Objective 4) directs tall buildings that exceed five storeys in height to strategic and landmark locations in Town Centres, Mixed Use Zones and Strategic Development Zones and subject to an approved LAP or Planning Scheme. The site is not in such a location. The relevant objective of the LAP (LUD8) made further stipulations as to permitted storeys of prospective developments.

4 . The Board indicated it would not oppose the appellant's claim for certiorari “… on the basis that in the particular circumstances of this case the Board failed to assess whether there was adequate public transport capacity for the proposed development as pleaded at Core Ground 10 of the Statement of Grounds”. Core Ground 10 states: “The impugned decision is invalid in that it contravenes the requirements of SPPR [specific planning policy requirement] 3 of the Urban Development and Building Height Guidelines [the 2018 Guidelines] as the Board failed to assess whether there was adequate public transport capacity prior to granting planning permission in material contravention of the CDP…”.

5 . Despite the concession by the Board, the notice party issued a notice of motion seeking liberty to defend the proceedings. The High Court gave liberty to defend on the basis that the appropriate threshold, namely, establishing substantial grounds for leave to defend the Board's decision, had been reached by the notice party. This Court granted leave to appeal directly from the High Court on the basis of the issue set out at paragraph 1 above (see [2023] IESDET 90). This Court also indicated that a further matter could arise, namely, whether the only issue that requires to be considered by the court is the ground or grounds on which the decision-maker has conceded that its decision ought to be quashed.

6 . In accordance with s. 8(1)(a)(iv) of the 2016 Act, where the proposed SHD materially contravenes a development plan or a local area plan, the application must include a statement indicating why permission should, nonetheless, be granted, having regard to a consideration specified in s. 37(2)(b) of the Planning and Development Act, 2000 (“the 2000 Act”). The appellant submits that the Board was correct in finding that there was a material contravention of the development plan by the proposed development of the aforementioned apartment blocks. The notice party does not accept that there is a material contravention and contests the view that such a material contravention was accepted either in its Statement of Material Contravention or in the Inspector's Report. The notice party also submits that it is a matter for the Court to determine whether or not such a material contravention exists.

Order 84

7 . Order 84, rules 18 to 27 provide for applications for judicial review. An application for judicial review must be made by motion ex parte grounded upon a notice in the form set out in O. 84, r. 20(2) of the Rules of the Superior Courts. The heading of the required form makes no reference to a notice party; it refers only to the applicant and the respondent. There is no direct reference in O. 84 as originally drafted to “notice party”. Order 84, in both its original and current form, requires those directly affected by the impugned decision to be served with the motion for the application for judicial review or the plenary summons (if directed) (see O. 84., r. 22(2)). The terms of O. 84 support the principle that those notice parties may oppose if they so wish and, as discussed further below, the case law puts that interpretation beyond doubt.

8 . In 2015, the Rules were amended to say that a judge whose order or jurisdiction is being challenged shall not be named in the title of the proceedings as a respondent or as a notice party. The import of this new rule was clarified by the Court of Appeal in M v M [2019] IECA 124, [2019] 2 IR 402. It is clear from the judgment of Irvine J. in M. that at least in these particular types of cases the burden of defending the validity of the decision under challenge will normally fall on a party other than the actual decision-maker. It would thus be curious if in other types of O. 84 cases, the fact that the decision-maker was served and participated in the proceedings could give that entity the status of dominus litis such that it could effectively deprive that other interested party of the right to defend the proceedings by its election not to contest the proceedings.

Order 84, r.22

22. (1) An application for judicial review shall be made by originating notice of motion save in a case to which rule 24(2) applies or where the Court directs that the application shall be made by plenary summons.

(2) The notice of motion or summons must be served on all persons directly affected.

(2A) Where the application for judicial review relates to any proceedings in or before a court and the object of the application is either to compel that court or an officer of that court to do any act in relation to the proceedings or to quash them or any order made therein—

(a) the judge of the court concerned shall not be named in the title of the proceedings by way of judicial review, either as a respondent or as a notice party, or served, unless the relief sought in those proceedings is grounded on an allegation of mala fides or other form of personal misconduct by that judge in the conduct of the proceedings the subject of the application for judicial review such as would deprive that judge of immunity from suit,

(b) the other party or parties to the proceedings in the court concerned shall be named as the respondent or respondents, and

(c) a copy of the notice of motion or summons must also be sent to the Clerk or Registrar of the court concerned.

(3) A notice of motion or summons, as the case may be, must be served within seven days after perfection of the order granting leave, or within such other period as the Court may direct. In default of service within the said time any stay of proceedings granted in accordance with rule 20(8) shall lapse. In the case of a motion on notice it shall be returnable for the first available motion day after the expiry of seven weeks from the grant of leave, unless the Court otherwise directs.

(4) Any respondent who intends to oppose the application for judicial review by way of motion on notice shall within three weeks of service of the notice on the respondent concerned or such other period as the Court may direct file in the Central Office a statement setting out the grounds for such opposition and, if any facts are relied on therein, an affidavit, in Form No 14 in Appendix T, verifying such facts, and serve a copy of that statement and affidavit (if any) on all parties. The statement shall include the name and registered place of business of the respondent's solicitor (if any).

(5) It shall not be sufficient for a respondent in his statement of opposition to deny generally the grounds alleged by the statement grounding the application, but the respondent should state precisely each ground of opposition, giving particulars where appropriate, identify in respect of each such ground the facts or matters relied upon as supporting that ground, and deal specifically with each fact or matter relied upon in the statement grounding the application of which he does not admit the truth (except damages, where claimed).

(6) An affidavit giving the names and addresses of, and the places and dates of service on, all persons who have been served with the notice of motion or summons must be filed before the motion or summons is heard and, if any person who ought to be served under this rule has not been served, the affidavit must state that fact and the reason for it; and the affidavit shall be before the Court on the hearing of the motion or summons.

(7) Save in a case to which rule 24(2) applies or where the...