Clancy and Another v an Bord Pleanala and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 08 May 2023
• Neutral Citation: [2023] IEHC 233
• Docket Number: [2022 No. 983 JR]
• Court: High Court

In the Matter of an Application Pursuant to Sections 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of Section 78 of the Housing Act 1966, as Amended

Between:

John Clancy and Sheena Clancy

Applicants

and

An Bord Pleanála, Clare County Council, Ireland and The Attorney General

Respondents

[2023] IEHC 233

[2022 No. 983 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on the 8 ^th day of May, 2023

1 . In or about August, 2016, the council in this case proposed to carry out a road development under Part XI of the Planning and Development Act 2000 and Part 8 of the Planning and Development Regulations 2001 for a road in Ennistymon, Co. Clare. The road is to be an inner relief road for Ennistymon, including a new vehicular bridge crossing the Inagh/Cullenagh River. The route is located centrally in Ennistymon from approximately 180 metres west of Blake's Corner on the N85 national road to a point approximately 180 metres east of Blake's Corner on the N67 national road.

2 . The board decided that a Natura Impact Statement (NIS) was not required and further decided on 5th October, 2016 that an environmental impact assessment (EIA) report was not required.

3 . The development was advertised in early 2018 and the applicants made submissions on 23rd February, 2018.

4 . The elected members decided to approve the development in or about April, 2018, or perhaps more formally they decided not to veto the development pursuant to s. 179(4) of the 2000 Act. The Chief Executive's decision on foot of that constitutes the development consent; and it is clearly far too late to challenge that now.

5 . A compulsory purchase order (CPO) was made in light of that consent on 12 ^th June, 2020, entitled “Clare County Council Compulsory Purchase Order 2020 N67/N85 Inner Relief Road Ennistymon (Blake's Corner) N5”, providing for the acquisition of land on both sides of the Lahinch Road, Bogbere Street, New Road, covering specified properties on Bridge Street including the applicants' dwelling house and business premises. The CPO was submitted to the board for approval.

6 . In June, 2021, an oral hearing took place. The applicants argued that the members' decision wasn't a development consent and that the decision didn't comply with the EIA or habitats directives.

7 . On 20th September, 2022, the board approved the CPO, and that decision is now challenged.

Relief sought

8 . In the Amended Statement of Grounds, the applicants seek the following reliefs:

• 1. An Order of Certiorari quashing the decision of the First Named Respondent to confirm a Compulsory Purchase Order authorising the compulsory acquisition of the Applicants' lands entitled “N67/N85 Inner Relief Road Ennistymon (Blake's Corner) Compulsory Purchase Order 2020” which confirmation of the CPO was purported to be made by decision dated 20 ^th September 2022 and signed by Patricia Calleary, Board Member under An Bord Pleanála reference ABP-307413-20 (the impugned decision).

• 2. Such Declaration(s) of the legal rights and/or legal position of the Applicant and/or Respondents and/or persons similarly situated as the Court considers appropriate.

• 3. A Declaration, as against the Third and Fourth Named Respondents that insofar as the procedures and test that was applied by the First Named Respondent complies with the statutory provisions required to be complied with in a Compulsory Acquisition of land and the confirmation of the impugned decision the said provisions are, in circumstances where the Applicants' property, family home and its business are the subject matter of a Compulsory Acquisition, the said provisions and procedures are inconsistent with and contrary to Articles 40.3, 41, 43 and 40.5 of the Constitution of Ireland.

• 4. A Declaration that the provisions of Section 76 of the Third Schedule of the Housing Act 1966 as extended by Section 10 of The Local Government (No.2) Act 1960 as substituted by Section 86 of the Housing Act 1966 and as amended and extended by Section 6 and the Second Schedule of the Roads Act 1993–2005 and Section 213 of the Planning and Development Act 2000–2019 and all other Acts thereby enabling which statutory scheme formed the basis of, making of and confirmation of a Compulsory Purchase Order underlying Compulsory Purchase Order 2020 N67/N85 Inner Relief Road Ennistymon (Blake's Corner) N5, and the tests therein have not been satisfied, and that such decision is contrary to and inconsistent with Articles 43, 40.3, 40.5 and 41 including all unspecified rights and including the to earn a livelihood, right to bodily integrity and endangerment to health, both physical and psychological and to a clean environment in the particular circumstances of this case.

• 5. A Declaration that the Applicants are entitled to costs protection in respect of the reliefs set out at Paragraph D on the grounds set out at Paragraph E pursuant to Section 50B of the Planning and Development Act 2000, the Environmental (Miscellaneous Provisions) Act 2011 and the Aarhus Convention.

• 6. A Declaration that the policy in relation to a claim for costs as relied on by the First Named Respondent in the consideration and determination of the Applicants' claim for costs is inconsistent with and contrary to with Articles 40.3, 43 and 40.5 of the 1937 Constitution and Council Directive 2011/92 EU (as amended).

• 7. An Order of Certiorari quashing the decision of the First Named Respondent not to award the Applicants' costs pursuant to a policy described as “An Bord Pleanala Policy in relation to Costs 2016” and requiring that the matter be remitted to the First Named Respondent so as to determine whether the Applicants are entitled to and the quantum of costs in respect of their participation in the Application of the Compulsory Acquisition the subject matter of application ABP307413/20.

• 8. A stay on the implementation of the said decision subject to application 307413/20, or the taking of any steps in respect of the compulsory purchase of the Applicants' lands pending the determination of the proceedings.

• 9. Interim and/or interlocutory reliefs.

• 10. Further and other relief.

• 11. The costs of the application.

Procedural history

9 . On 14 ^th November, 2022 the matter was first mentioned in the List and adjourned for an amended statement of grounds.

10 . As papers were not in order it was adjourned again until 19 ^th December, 2022.

11 . There were further issues with the amendments as no MS Word version had been uploaded to ShareFile.

12 . In January, 2023, the List Registrar wrote to the applicants' solicitor in this regard but there was no immediate reply. The net result was that there were two unperfected orders on the system (of 14 ^th and 21 ^st November, 2022, the principle being that an order allowing an amendment is not perfected until the MS Word version of the amendment is submitted).

13 . It emerged that an amended statement had been filed on 18 ^th January, 2023 but was not on ShareFile. It was eventually emailed to the court on the evening of 30 ^th January, 2023. On foot of that and of answers to the court's checklist indicating that the matter was appropriate for automatic admission to the list, leave was granted.

14 . On 20 ^th February, 2023 it emerged that the matter was not in fact one that could qualify for automatic admission and so a motion to admit would have been required.

15 . On that basis, on 27 ^th February, 2023 I set aside the leave order by consent, allowed the orders for amendment of pleadings to stand, without objection from the opposing parties, and adjourned the matter for a motion to admit the case to the list.

16 . On 13 ^th March, 2023 on foot of such a motion I admitted the case to the List without objection.

17 . The council then applied for an order that leave be on notice. It submitted that the road was important to the community and to the local authority, and that it would be submitting that there were no substantial grounds for the proceedings. The action related to a function transferred by Part XIV of the 2000 Act and so comes within s. 50(2)(b) of that Act. The respondents did not apply for such an order.

18 . I decided that the notice party council was entitled to make the application even though the respondents were not seeking leave on notice. I stated that while one could be sceptical about leave on notice as a generality, on balance it was appropriate here given all of the circumstances including the history of the matter. However I stated that the position regarding costs protection would have to be clarified first. The mater was adjourned for that purpose for a week, and then again by consent on 20 ^th March, 2023.

19 . Normally, there would simply be a hearing on costs protection but that didn't happen here, because an issue broke out regarding the costs of the costs protection issue. On 27th March, 2023, the board and the State accepted that there would be no order as to the costs of the costs protection application. The council maintained its hard line on the application and would not so agree.

20 . On 17 ^th April 2023, the various options were discussed, specifically that there be a summary hearing on costs protection for the costs protection motion; that the issue about costs of the costs would be rolled into a single hearing, possibly together with the leave hearing, or that the applicants would withdraw the proceedings without incurring further costs. The applicants stated a preference for dealing with costs protection for the costs protection on a summary basis.

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