Clonres CLG v an Bord Pleanála ; Sweetman v an Bord Pleanála ; Conway v an Bord Pleanála

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice David Barniville
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 473
• Date: 31 July 2018
• Docket Number: [2018 No. 422 J.R.] [2018 No. 423 J.R.]

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000 AND THE RESIDENTIAL TENANCIES ACT, 2016

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

CLONRES CLG

APPLICANT

AND

AN BORD PLEANÁLA AND MINISTER FOR CULTURE, HERITAGE AND THE GAELTACHT

RESPONDENTS

AND

CREKAV TRADING GP LIMITED

AND

DUBLIN CITY COUNCIL

NOTICE PARTIES

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

DUBLIN CITY COUNCIL

AND

CREKAV TRADING GP LIMITED

NOTICE PARTIES

BETWEEN

JOHN CONWAY

AND

LOUTH ENVIRONMENTAL GROUP

APPLICANTS

AND

AN BORD PLEANÁLA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

CREKAV TRADING GP LIMITED

AND

THE LEGAL AID BOARD

NOTICE PARTIES

[2018] IEHC 473

Barniville J.

[2018 No. 422 J.R.]

[2018 No. 426 J.R.]

[2018 No. 423 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Certiorari – Remittal – Costs – Applicants seeking various reliefs in connection with a decision of the respondent – Whether the application should be remitted to the respondent

Facts: An Bord Pleanála, a respondent to each of the proceedings, made a decision on 3rd April, 2018 to grant permission for the development of 536 residential units at lands which previously formed part of St. Anne’s Park and subsequently part of St. Paul’s College in Raheny, Dublin 5. On 14th June, 2018, the High Court (Barniville J) granted leave to each of the applicants, Clonres CLG, Mr Sweetman, Mr Conway and Louth Environmental Group, to bring proceedings by way of judicial review seeking various reliefs in connection with that decision. On 28th June, 2018, the return date for the motions, Barniville J was informed by the Board that it was accepting that there was an error on the face of the record in terms of the recording of the test applied by the Board in carrying out an Appropriate Assessment for the purposes of the Habitats Directive in the Board’s formal decision granting permission in respect of the development. It was indicated that the Board was prepared to consent to an order of certiorari in respect of the decision. The proceedings were adjourned to enable the parties to consider how best to proceed in light of the position adopted by the Board. Correspondence was then exchanged between the parties’ respective solicitors. The Board’s solicitors circulated a draft form of order which it was proposing should be made in light of the concession made by the Board. Among the orders which the Board was proposing should be made was an order remitting the application for permission to the Board on a particular basis. The applicants did not agree with the terms of the proposed order and, in particular, did not agree that the application should be remitted to the Board on the basis proposed or at all. The terms of the order to be made and the question as to whether the application should be remitted to the Board and, if so, the basis on which that should be done, were addressed by all of the parties in oral submissions before Barniville J on the 26th July, 2018.

Held by Barniville J that the appropriate order to make was an order of certiorari and an order remitting the application to the Board.

Barniville J held that orders in the following terms would be made in each of the three sets of proceedings: (1) an order of certiorari quashing the decision of the Board dated 3rd April, 2018 on the ground that the decision contained an error on the face of the record as regards the recording of the test applied by the Board in reaching its appropriate assessment conclusion; (2) an order remitting the application for permission to the Board to be determined in accordance with law, such remittal to take effect from the point in time immediately following the time at which its Senior Planning Inspector signed her report on 23rd March, 2018; (3) an order deeming that the time period set out in s. 9(9)(a) of the Planning and Development (Housing) and Residential Tenancy Act 2016 should, in respect of the application remitted, expire six weeks from the date of the perfection of the orders made; (4) an order for the applicants’ costs as against the Board, to include reserved costs, up to the date of delivery of this judgment on 31st July, 2018, to be taxed in default of agreement.

Judgment approved.

JUDGMENT of Mr. Justice David Barniville delivered on the 31st day of July, 2018

Introduction

1 The above three sets of judicial review proceedings have been dealt with by me in the Strategic Infrastructure Development (‘ SID’) list as the proceedings concern the decision of An Bord Pleanála, (the ‘Board’) which is a respondent to each of the proceedings, made on 3rd April, 2018 to grant permission for the development of 536 residential units at lands which previously formed part of St. Anne's Park and subsequently part of St. Paul's College in Raheny, Dublin 5. On 14th June, 2018 I granted leave to each of the applicants to bring proceedings by way of judicial review seeking various reliefs in connection with that decision. The return date for the motions in each of those proceedings was 28th June, 2018.

2 On that return date, I was informed by counsel on behalf of the Board that the Board was accepting that there was an error on the face of the record in terms of the recording of the test applied by the Board in carrying out an Appropriate Assessment (‘AA’) for the purposes of the Habitats Directive in the Board's formal decision granting permission in respect of the development. It was indicated that the Board was prepared to consent to an order of certiorari in respect of the decision. The proceedings were adjourned to enable the parties to consider how best to proceed in light of the position adopted by the Board.

3 Correspondence was then exchanged between the parties' respective solicitors. The Board's solicitors circulated a draft form of order which it was proposing should be made in light of the concession made by the Board. Among the orders which the Board was proposing should be made was an order remitting the application for permission to the Board on a particular basis. The applicants did not agree with the terms of the proposed order and, in particular, did not agree that the application should be remitted to the Board on the basis proposed or at all.

4 The terms of the order to be made and the question as to whether the application should be remitted to the Board and, if so, the basis on which that should be done, were addressed by all of the parties in oral submissions before me on the 26th July, 2018. I reserved my judgment in respect of those issues to today.

5 I have concluded that the appropriate order to make is an order of certiorari and an order remitting the application to the Board on the particular basis set out in this judgment. I have reached that conclusion for the reasons set out below.

Procedural History

6 By a decision dated 3rd April, 2018, the Board decided to grant permission for a development of 536 residential units on lands which were formerly part of St. Anne's Park and subsequently part of St. Paul's College in Raheny. The applicant for the permission was Crekav Trading GP Ltd (‘Crekav’ or the ‘developer’). Crekav is a notice party to each of the three sets of proceedings. The application was for a strategic housing development and was made pursuant to s. 8 of the Planning and Development (Housing) and Residential Tenancies Act 2016 (the ‘2016 Act’). Applications for leave to seek judicial review in respect of the decision were made by the applicants in each of the above three sets of proceedings. On the basis that the development in question was a strategic infrastructure development under the Planning and Development Act 2000 (as amended) (the ‘2000 Act (as amended)’), the applications for leave were heard and determined by me in the SID list in accordance with Practice Direction HC74 – Judicial Review Applications in respect of Strategic Infrastructure Developments, made by the President of the High Court on 2nd February 2018.

7 On 14th June, 2018 I gave leave to the applicants in each of the proceedings to seek various reliefs by way of judicial review in respect of the Board's decision of 3rd April, 2018 on the grounds set out in the statement of grounds in each of the proceedings. Each of the applicants raised a large number of grounds in their respective proceedings. While there was a considerable degree of overlap between the grounds raised by each of the applicants, the grounds were not identical in each case. For example, in his case, Mr. Sweetman advanced an alternative case that the State had failed properly to transpose the provisions of Council Directive 92/43/EEC (as amended) (the ‘Habitats Directive’) into Irish law. In their proceedings, Mr. Conway and the Louth Environmental Group raised grounds which affected the State and the Legal Aid Board (which was named as a notice party to those proceedings) asserting a failure by the State to comply with obligations relating to legal aid under EU law and/or under the Aarhus Convention and/or under Article 47 of the Charter of Fundamental Rights and Freedoms and on other grounds. These grounds did not form part of the case sought to be made by Clonres in its proceedings.

8 In any event, having considered the papers and having heard submissions on behalf of each of the applicants, I concluded that the grounds sought to be advanced by each of the applicants were ‘ substantial grounds’ and I granted leave to the applicants to seek relief by way of judicial review on those grounds pursuant to s. 50A of the 2000 Act (as amended). I directed that a notice of motion in each case be issued and made returnable for 28th June, 2018 so that further directions could be made on that occasion with a view to ensuring a fair, just and expeditious hearing of the proceedings.

9 On the return date of the motions, counsel on behalf of the Board informed the court...