Conway v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 16 July 2019
• Neutral Citation: [2019] IEHC 525
• Docket Number: [2018/1029 J.R.]
• Court: High Court
• Date: 16 July 2019

[2019] IEHC 525

THE HIGH COURT

JUDICIAL REVIEW

Barniville J.

[2018/1029 J.R.]

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

BETWEEN

JOHN CONWAY

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

Standing – Judicial review – Development – Applicant seeking leave to challenge the respondent’s decision by way of judicial review – Whether the applicant had standing to bring the proceedings

Facts: The applicant, Mr Conway, sought to challenge a decision of the first respondent, An Bord Pleanála, refusing to grant approval for a proposed development. The development in question was that proposed by the notice party, Dublin City Council, for the development of a civic plaza and ancillary traffic management measures and road works at College Green in the centre of Dublin. The Board refused to grant approval in respect of the proposed development in a decision signed on 15th October, 2018 and apparently published on 17th October, 2018. The Council, as the applicant for that approval, did not seek to challenge the Board’s decision. This High Court judgment was concerned with the preliminary question as to whether the applicant had standing to bring the proceedings. The issue has arisen in the course of the applicant’s application for leave to challenge the Board’s decision by way of judicial review.

Held by Barniville J that the applicant did not have standing to bring these proceedings. Barniville J found that the applicant’s non-participation in the planning process before the Board and his explanation for such non-participation (he thought that the Council would obtain the required approval) together with the many other factors identified by him in the course of the judgment had driven him to the conclusion that the applicant did not have a “sufficient interest” (O. 84, r. 20(5) RSC) in the matter the subject of the proceedings and did not, therefore, have standing to bring a challenge to the Board’s decision. Barniville J further concluded that Irish national rules on standing were in conformity with the EU law requirement in Article 11 of the codified EIA Directive, Directive 2011/92/EU that there be “wide access to justice” and that there was nothing in Article 11 or otherwise in EU law which required him to interpret Irish national standing rules in such a way as to confer standing on the applicant to bring the proceedings. Barniville J concluded that EU law did not require the court to uphold the applicant’s standing to bring the proceedings. Barniville J was not in any doubt as to the scope of EU law in this regard and he did not, therefore, believe that it was necessary to make a reference to the CJEU under Article 267 TFEU to clarify the conformity of Irish standing rules with EU law, as requested by the applicant. Barniville J refused to make the requested reference.

Barniville J held that since the applicant did not have standing, he must refuse to grant leave to the applicant to bring the proceedings.

Leave refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 16th day of July, 2019

Introduction

1 This is one of the most unusual planning cases to have come before the Irish courts. Unlike the vast majority of planning cases before the courts, the applicant, who describes himself as an ‘ environmental activist’, does not seek to challenge a decision of a planning authority or of An Bord Pleanála (the ‘Board’) granting permission for a development said to have potentially significant effects on the environment or on a protected or European site. Rather, the applicant seeks to challenge a decision of the Board refusing to grant approval for a proposed development. The development in question was that proposed by Dublin City Council (the ‘Council’) for the development of a civic plaza and ancillary traffic management measures and road works at College Green in the centre of Dublin. The Board refused to grant approval in respect of the proposed development in a decision signed on 15th October, 2018 and apparently published on 17th October, 2018. The Council, as the applicant for that approval, did not and does not seek to challenge the Board's decision. The applicant, who did not participate in any way in the planning process before the Board, seeks to challenge the Board's decision on various grounds. Almost uniquely, therefore, this case is concerned with an attempted challenge, by a person with a significant interest in the environment, to a decision by the Board refusing to grant approval for a development.

2 This judgment is concerned with the preliminary question as to whether the applicant has standing to bring the proceedings. The issue has arisen in the course of the applicant's application for leave to challenge the Board's decision by way of judicial review.

Procedural Background

3 The proceedings came before me in the following circumstances. As noted above, the Board's decision was apparently published on 17th October, 2018. The applicant wished to challenge the decision. Conscious of the time limits for doing so in s. 50(6) of the Planning and Development Act, 2000 (as amended) (the ‘2000 Act (as amended)’) and the requirement in s. 50A(2)(a) to make an ex parte application to the court, the applicant opened his application for leave before Noonan J. in the High Court on 10th December, 2018. The application for leave, having been opened, was then transferred to me, in my capacity as the judge dealing with the Strategic Infrastructure Developments list. It came before me on 20th December, 2018 and was put back to the following day, 21st December, 2018. Before the Court on that date were a statement of grounds (which was undated) (the ‘first statement of grounds’), an affidavit sworn by the applicant on 6th December, 2018, together with a series of exhibits including the Board Order recording the Board's decision and the inspector's report in respect of the application for approval for the proposed development, and a further version of a statement of grounds dated 20th December, 2018 (the ‘second statement of grounds’). The first statement of grounds named the Board as the sole respondent to the proceedings and the Council as a notice party. The second statement of grounds included Ireland and the Attorney General (the ‘State’) as additional respondents.

4 Having considered the papers, I felt that there was at least an issue as to whether the applicant had standing to bring the proceedings and I directed the applicant to put the Board, the State and the Council on notice of the applicant's application for leave. I adjourned the application to 24th January, 2019 to enable that to be done. By agreement between the parties, the application for leave was further adjourned to 31st January, 2019. On that occasion, counsel for the Council informed the Court that it did not intend to participate in any way in the proceedings. On that date, the applicant produced a further statement of grounds (which was undated) (the ‘third statement of grounds’). Counsel for the Board objected to the provision of the third statement of grounds in circumstances where more than eight weeks had passed since the date of the Board's decision. It will in due course be necessary to refer to the reliefs sought in the various statements of grounds provided by the applicant. The issue as to whether the applicant had standing to bring the proceedings was again raised by me on 31st January, 2019. With the agreement of the parties, I directed that that issue be heard as a discrete issue on 8th February, 2019. I should stress that this issue was being dealt with in the course of the applicant's application for leave which had originally been opened before Noonan J. on 10th December, 2018.

5 The issue as to the applicant's standing to bring the proceedings was heard by me on 8th February, 2019. On that occasion, I heard submissions from counsel for each of the applicant, the Board and the State. This is my judgment on that issue.

Summary of Decision

6 As I explain in the course of this judgment, I have concluded that the applicant does not have standing to bring the proceedings under Irish law, which I have also concluded meets the EU law requirement in Article 11 of the codified EIA Directive, Directive 2011/92/EU (‘ Directive 2011/92’) that there be ‘ wide access to justice’ for those seeking to judicially challenge decisions subject to the public participation provisions of that Directive. I have also concluded that, to the extent that Directive 2011/92 applies, the applicant similarly has no standing to bring the proceedings under the Directive. I have concluded that there is nothing in Directive 2011/92 or in the jurisprudence of the Court of Justice of the European Union (CJEU) which would lead me to conclude that the Irish national rules on standing should be disapplied or interpreted differently so as to require standing to be afforded to the applicant to bring the proceedings which he wishes to bring in order to challenge the Board's decision to refuse to approve the proposed development by the Council. Since the applicant does not have standing to bring the proceedings, I have concluded that I must refuse the applicant leave to bring the proceedings.

Structure of Judgment

7 I will first consider the Board's decision. I will then say something about the position of the applicant and outline his intended grounds of challenge to the Board's decision. Next I will consider the Irish national rules on standing as well as those existing under EU law and will attempt to apply those rules to the applicant in order to consider whether the applicant has standing to bring the proceedings.

The Board's Decision

8 On 18th May, 2017, the Council made an application to the Board pursuant to s. 175 of the 2000 Act (as amended) for approval for a proposed development of a...