Ballyboden Tidy Towns Group v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 10 March 2023
• Neutral Citation: [2023] IEHC 114
• Docket Number: [2021 No. 810 JR]

Between

Ballyboden Tidy Towns Group

Applicant

and

An Bord Pleanála, Ireland, The Attorney General and South Dublin County Council

Respondents

[2023] IEHC 114

[2021 No. 810 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Liberty to defend – Planning and development – Notice party seeking liberty to defend proceedings – Whether the notice party had demonstrated substantial grounds on which it should be allowed to defend the case

Facts: The notice party developer, from 2004 onwards, sought and obtained a number of development permissions on a site at Stocking Avenue, Woodstown, Dublin 16. On 20th March, 2015, the third respondent, South Dublin County Council, granted permission for a first phase, known as White Pines North. On 14th and 28th February, 2018, permission for the White Pines South phase was granted by the council. On 27th February, 2020, permission for a commercial development on the site, White Pines Retail, was granted by the council. On 19th July, 2021, the first respondent, An Bord Pleanála (the board) granted permission for the impugned development, White Pines East SHD. The applicant, Ballyboden Tidy Towns Group, issued proceedings on 9th September, 2021, seeking certiorari of that decision. On 13th May, 2022, the board wrote to the parties stating that it would not oppose the claim for certiorari on the basis of core ground 10, which related to an alleged failure to assess whether there was adequate public transport capacity. This was notified to the High Court when the matter was listed on 16th May, 2022. On 20th June, 2022, the notice party informed the court that it wished to seek liberty to defend, and a motion to that effect was issued on 6th July, 2022, returnable for 11th July, 2022. The board then indicated that it was agreeable to an order for costs against it, up to and including 20th June, 2022, and was excused thereafter from the proceedings with liberty to apply. The notice party said that its “primary” position was that it did not have to meet any threshold as to the merits of its proposed defence in order to force a hearing on a point that the decision-maker was conceding.

Held by Humphreys J that he did not accept that, simply because he thought that that issue had already in effect been decided in Protect East Meath Ltd v An Bord Pleanála & Ors (I) [2020] IEHC 294, and that logically the approach there should not be limited to the habitats context. Humphreys J held that that would be totally ad hoc. Humphreys J held that a reinforcing factor was that defending proceedings where the decision-maker is willing to concede the point does impose a cost on the system and absorbs resources generally that are in demand from other litigants. Humphreys J held that that was not a reason to shut out a notice party altogether, but it was a reason to require a notice party to show that it has a point, as demonstrated to an appropriate standard. Humphreys J held that, on balance, the concept of substantial grounds legitimately represented the correct test at least in the planning context. Turning to the affidavit of Mr Cassidy on behalf of the notice party, Humphreys J noted that paras. 15 to 23 set out what were basically legal submissions, paras. 24 to 32 exhibited the material contravention statement and the statement of consistency and discussed those, paras. 32 to 42 set out further submissions, para. 43 provided evidential material regarding bus transport, paras. 44 to 47 exhibited the relevant chapter of the EIA report and planning report and discussed those and the traffic and transport assessment, paras. 48 to 50 discussed the conceded issue and provided evidential support for the notice party’s position, and paras. 51 to 53 provided further submissions. Humphreys J held that, notwithstanding that the applicant sought to answer those various points, the notice party had demonstrated substantial grounds on which it should be allowed to defend the case.

Humphreys J ordered that that the notice party have liberty to defend and that the matter be listed for directions as to the procedure to be adopted.

Application granted.

JUDGMENT of Humphreys J. delivered on the 10 ^th day of March, 2023

1 . This application by a notice party developer for liberty to defend proceedings that the board is willing to concede illustrates a general point about judicial review, and indeed about the reciprocal nature of rights and equality generally. Judicial review is not a problem to be solved, but an indispensable pillar of the rule of law in a free and democratic society, baked into our system as a necessary consequence of rights protected by administrative law, the Constitution, the ECHR and EU law.

2 . Judicial review in some current discourse is frequently associated with environmental applicants, but that would be a misunderstanding. In the planning context it is equally available to landowners and developers as it is to other participants in the process. Indeed, landowners and developers frequently avail of this right, a fact which oddly seems to attract little comment in the public discussion of judicial review.

3 . Ideally there should be an equal acceptance of the right of access to the court of all participants, subject to them having adequate grounds to do so and to meeting any lawful procedural requirements. The application also highlights the point that equal rights, such as those of access to the court, are not exclusively for any particular group, still less groups that may be socially favoured at any given time. In principle, rights and equality are for everybody, subject of course to the possibility of valid legal provision otherwise in specific situations. Thus, in general, and absent lawful provision to the contrary, there should be a reasonable equivalence of rights for interested parties to participate in the process, including the judicial process, even bearing in mind that an identical symmetry of arrangements between applicants and opposing parties is not possible. As the notice party put it in oral submissions, “there is fundamentally here an issue of access to justice”. That applies to developers as much as to environmental applicants.

4 . That said, the detail of the law in relation to judicial review is not beyond amendment, evolution and clarification, but it is only stating the obvious to say that, under our system, any such hypothetical changes must ensure that legal, constitutional, ECHR and EU law rights are fully vindicated.

Facts

5 . From 2004 onwards, a number of development permissions were sought and obtained by the notice party developer on a site at Stocking Avenue, Woodstown, Dublin 16.

6 . On 20 ^th March, 2015, South Dublin County Council granted permission for a first phase, known as White Pines North, including 172 dwellings.

7 . On 14 ^th and 28 ^th February, 2018, permission for the White Pines South phase was granted by the council, including 106 dwellings.

8 . On 27 ^th February, 2020, permission for a commercial development on the site, White Pines Retail, was granted by the council.

9 . On 19th July, 2021, the board granted permission for the impugned development, White Pines East SHD, which included 241 dwellings. The present proceedings were issued on 9 ^th September, 2021, seeking certiorari of that decision.

10 . On 16 ^th September, 2021, the board granted permission for a further tranche of development, White Pines Central SHD, including 114 dwellings. That has been challenged in separate judicial review proceedings [2021 No. 933 JR].

11 . The present proceedings were served in October, 2021 and were before the court for directions on 11 ^th October, 2021. Reliefs 5 to 7 against the State were modularised and adjourned generally. On 24 ^th January, 2022, the board was allowed time for opposition papers and the notice party was given three weeks to issue a motion regarding the applicant's standing.

12 . On 14 ^th February, 2022, the council was added as a respondent, without prejudice to any objection that could be made in due course, the applicant was allowed to file an amended statement of grounds adding the council as such, and the matter was adjourned generally as against both the State and the council. The notice party informed the court that it was not bringing a standing motion and accordingly, the three-week period for the board's opposition papers was reactivated with one further week for the notice party thereafter.

13 . On 14 ^th March, 2022, the board was given further time for opposition. A final adjournment was granted on a peremptory basis to permit the board's opposition papers on 4 ^th April, 2022. The reason for the hesitation became clear when on 13 ^th May, 2022, the board wrote to the parties stating that it would not oppose the claim for certiorari on the basis of core ground 10, which related to an alleged failure to assess whether there was adequate public transport capacity. This was notified to the court when the matter was next listed on 16 ^th May, 2022.

14 . On 20 ^th June, 2022, the notice party informed the court that it wished to seek liberty to defend, and a motion to that effect was issued on 6 ^th July, 2022, returnable for 11 ^th July, 2022. The board then indicated that...