Conway v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 14 January 2020
• Neutral Citation: [2020] IEHC 4
• Docket Number: [2018 No. 1029 J.R.]
• Court: High Court
• Date: 14 January 2020

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

BETWEEN

JOHN CONWAY

APPLICANT

AND

AN BORD PLEANALA, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

[2020] IEHC 4

David Barniville J.

[2018 No. 1029 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning and development – Standing – Applicant seeking leave to appeal from the High Court to the Court of Appeal – Whether it was desirable in the public interest that an appeal should be taken from the High Court to the Court of Appeal

Facts: The High Court (Barniville J), on 16th July 2019, gave judgment on the application of the applicant, Mr Conway, for leave to seek judicial review of a decision of the first respondent, An Bord Pleanala, to refuse to grant approval for a development proposed by the notice party, Dublin City Council, consisting of a civic plaza and other ancillary works at College Green in Dublin City Centre (the principal judgment): [2019] IEHC 525. In the principal judgment, Barniville J decided that the applicant did not have a “sufficient interest” in the matter the subject of the application under the applicable national law (s. 50 A(3)(b) of the Planning and Development Act 2000 (as amended)), or a “sufficient interest” to bring the proceedings under the relevant provisions of EU law (Article 11(3) of Directive 2011/92). Barniville concluded, therefore, that the applicant did not have the required standing to bring the proceedings. As a consequence, Barniville J decided that he had to refuse to grant leave to the applicant to bring the proceedings. The applicant sought the leave of the court to appeal from that decision to the Court of Appeal under s. 50A(7) of the 2000 Act (as amended). The applicant also sought to have the principal judgment amended so as expressly to provide that the court was not refusing to grant leave to the applicant to bring the proceedings, but rather that the court “would not deal with the issue of leave on account of the applicant’s lack of standing as so found”.

Held by Barniville J that there was no basis for the applicant’s application to amend the principal judgment in the terms requested by the applicant and he refused that application.

Barniville J held that the applicant had not established that his decision involved a point or points of law of exceptional public importance or that it was desirable in the public interest that an appeal should be taken from his decision to the Court of Appeal and, therefore, he refused the application for leave to appeal.

Applications refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 14th day of January, 2020

Introduction

1 On 16th July 2019, I gave judgment on the applicant's application for leave to seek judicial review of a decision of the first respondent, An Bord Pleanala (the “Board”), to refuse to grant approval for a development proposed by the notice party, Dublin City Council (the “Council”) consisting of a civic plaza and other ancillary works at College Green in Dublin City Centre (the “principal judgment”). The principal judgment bears the neutral citation [2019] IEHC 525.

2 In the principal judgment, I decided that the applicant did not have a “sufficient interest” in the matter the subject of the application under the applicable national law (s. 50 A(3)(b) of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as amended)”), or a “sufficient interest” to bring the proceedings under the relevant provisions of EU law (Article 11(3) of Directive 2011/92). I concluded, therefore, that the applicant did not have the required standing to bring the proceedings. As a consequence, I decided that I had to refuse to grant leave to the applicant to bring the proceedings.

3 The applicant has now sought the leave of the court to appeal from that decision to the Court of Appeal under s. 50A(7) of the 2000 Act (as amended). The applicant has also sought to have the principal judgment amended so as expressly to provide that the court was not refusing to grant leave to the applicant to bring the proceedings, but rather that the court “would not deal with the issue of leave on account of the applicant's lack of standing as so found”. This is my judgment on those applications.

4 For the reasons set out in this judgment, I have concluded that: -

(i) There is no basis for the applicant's application to amend the principal judgment in the terms requested by the applicant and I refuse that application;

and,

(ii) The applicant has not established that my decision involves a point or points of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken from my decision to the Court of Appeal and, therefore, I refuse the application for leave to appeal.

5 I will deal first with the applicant's application to amend the principal judgment. I will then deal with the applicant's application for leave to appeal.

Application to amend principal judgment

The positions adopted by the parties

6 The applicant takes issue with the conclusion stated at para. 91 of the principal judgment that, since the applicant does not have the requisite standing to bring the proceedings (under national law or under EU law), I must refuse to grant leave to the applicant to bring the proceedings. The applicant submits that para. 91 should be amended so as to replace the reference to the court refusing to grant leave to the applicant to bring the proceedings and instead to state that the court “would not deal with the issue of leave on account of the applicant's lack of standing as so found” (para. 2 of the applicant's written submissions).

7 The basis for the applicant's application to amend seems to be that the court's refusal to grant leave to the applicant implies that the court considered all of the grounds upon which the applicant sought leave to challenge the impugned decision of the Board whereas, in its principal judgment, the court only dealt with and determined the issue of standing and concluded that the applicant did not have standing to bring the proceedings. The applicant submits that in the event that the court were to grant leave to the applicant to appeal from the decision of the court to the Court of Appeal, it would be “artificial that the applicant should have to appeal anything beyond the High Court's findings of standing” and that it would be “wrong to require the applicant to appeal a refusal of leave where no argument at first instance was had in relation to that issue” (para 2. of the applicant's written submissions).

8 The applicant's concern appears to be that in the event that the court were to grant leave to appeal to the applicant, the applicant would be faced with the task of having to deal not only with the court's determination on the standing issue, but also all of the grounds of challenge to the Board's decision sought to be raised by the applicant, which would not have been the subject of a decision of the court at first instance. The applicant's argument is predicated on there being a distinction between the court deciding not to grant leave and the court refusing to grant leave.

9 Both the Board and the State respondents oppose the applicant's application to amend the principal judgment. They support the court's conclusion, that as the applicant does not have standing, it was appropriate to refuse to grant leave to the applicant to bring the proceedings. In support of that position, the Board and the State respondents refer to the provisions of s. 50 A(3)(b) and s. 50 A(7). Both the Board and the State respondents made clear, at the hearing of the application to amend, that if the applicant were to obtain leave to appeal to the Court of Appeal, and if the applicant were to succeed on the standing issue, the applicant's application would be remitted to the High Court so that the court could consider the substantive issues raised in the case and that there was no question of the Board and the State respondents making the case that the court had decided and, considered any of the substantive issues against the applicant in its principal judgment.

Decision on application to amend

10 I can deal with the application to amend the principal judgment in very short order. In my view, there is no basis whatsoever for the applicant's application. While I do not disagree that, in an appropriate case, the court may have jurisdiction to amend a judgment prior to the perfection of the order giving effect to that judgment, the basis on which the applicant seeks to have the principal judgment amended is simply wrong and he appears to have proceeded on the basis of a misreading or misunderstanding of the principal judgment.

11 It is the case, as the applicant contends, that, as a matter of effective case management, I decided that it was appropriate to deal with the issue of the applicant's standing in advance of dealing with any of the substantive issues sought to be raised by the applicant in his application for leave to seek judicial review in respect of the Board's decision. I did deal with the question of standing in isolation and without embarking upon any consideration whatsoever of the merits of the grounds of challenge sought to be raised by the applicant in respect of the Board's decision in his application for leave to challenge that decision. That course of action was taken with the agreement of the applicant and of the Board and the State respondents.

12 Having received written submissions and having heard oral submissions, I gave my decision in the form of the principal judgment, dealing only with the standing issue. I concluded that the applicant did not have standing to bring the proceedings either under national law or under EU law. In light of my conclusion that the applicant did not have the requisite standing, I decided that I was required to...