Cork Harbour Alliance for a Safe Environment v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 15 February 2019
• Neutral Citation: [2019] IEHC 85
• Docket Number: [2018 No. 593 J.R.]
• Court: High Court
• Date: 15 February 2019

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN

CORK HARBOUR ALLIANCE FOR A SAFE ENVIRONMENT

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

INDAVER IRELAND LIMITED,

FIRST NAMED NOTICE PARTY

INDAVER NV IRELAND T/A INDAVER IRELAND

SECOND NAMED NOTICE PARTY

[2019] IEHC 85

Barniville J.

[2018 No. 593 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Discovery – Judicial review – Duty of candour – Applicant seeking orders for discovery – Whether there was a duty of candour owed by the respondent

Facts: The applicant, Cork Harbour Alliance for a Safe Environment, applied to the High Court for: (i) orders for discovery in judicial review proceedings against the respondent, An Bord Pleanála, and against the notice parties, Indaver Ireland Ltd and Indaver NV trading as Indaver Ireland; and (ii) an order against the Board that it identify on oath all documents relied upon by it and considered by each of its members in making the Board’s decision dated 29th May, 2018, to grant planning permission for the development of a waste incinerator and groundworks at Ringaskiddy, Co. Cork, which was challenged in the proceedings and in making various other decisions in the course of the process. The applicant’s application for discovery against the Board and the notice parties referred to at (i) above was made pursuant to the provisions of O. 84, r. 26 RSC and O. 31, r.12 RSC. Its application for the relief summarised at (ii) above invoked the inherent jurisdiction of the court in order to enforce the duty of candour owed by the Board, as a public body which was a respondent to judicial review proceedings.

Held by Barniville J that, in relation to the discovery sought by the applicant against the Board, he had reached the following conclusions. With regard to the discovery sought at category 1, he refused the applicant’s application for discovery. However, he directed that the Board swear an affidavit confirming that it did not have in its possession at the time of the decision challenged in the proceedings, any documents falling within that category which were not on the public planning file required to be made available under s. 146(5) of the Planning and Development Act 2000. In the event that there were documents falling within that category which were not on the public planning file, he directed that the Board identify those documents and where they were to be found, in the affidavit he had directed to be sworn. He would hear counsel as to the time period within which that affidavit must be provided. As regards the discovery sought in category 2, he noted that the Board was agreeable to make discovery of the documents sought in that category on the basis of the methodology set out in the Board’s solicitors’ letter to the applicant’s solicitors dated 24th January, 2019. He noted that Mr Boland was no longer a member of the Board but that the Board had made enquiries as to whether he would be prepared to swear the affidavit in respect of the documents to be discovered under that category. The outcome of those enquiries was awaited. In the circumstances, Barniville J would not direct that Mr Boland swear the affidavit unless it was confirmed that he was agreeable to do so. If Mr Boland was not agreeable to swear the affidavit, Barniville J directed that the affidavit be sworn by another member of the Board. He would give liberty to apply in relation to this. As regards the documents sought in category 3 he refused to direct the Board to make discovery of the documents sought in that category. As regards the discovery sought by the applicant against the notice parties, he refused to make an order for discovery against the notice parties of the documents sought in category 1. He noted that in relation to category 2, the notice parties had provided an affidavit in terms which were acceptable to the applicant. Therefore, no order arose in respect of category 2.

Barniville J held that, as regards the reliefs sought in respect of the duty of candour, he would refuse to grant the relief sought by the applicant.

Relief refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 15th day of February, 2019

Introduction

1 This is my judgment on an application by the applicant, Cork Harbour Alliance for a Safe Environment, for:-

(i) Orders for discovery in these judicial review proceedings against the respondent, An Bord Pleanála (‘the ‘Board’), and against the notice parties, Indaver Ireland Limited and Indaver NV trading as Indaver Ireland (the ‘notice parties’)(paras 1 and 2 of the notice of motion); and

(ii) An order against the Board that it identify on oath all documents relied upon by it and considered by each of its members in making the Board's decision dated 29th May, 2018, to grant planning permission for the development of a waste incinerator and groundworks at Ringaskiddy, Co. Cork, which is challenged in the proceedings and in making various other decisions in the course of the process (para. 3 of the notice of motion).

2 The applicant's application for discovery against the Board and the notice parties referred to at (i) above is made pursuant to the provisions of O. 84, r. 26 RSC and O. 31, r.12 RSC. Its application for the relief summarised at (ii) above invokes the inherent jurisdiction of the court in order to enforce the duty of candour owed by the Board, as a public body which is a respondent to judicial review proceedings.

Background to the Application

3 The applicant's application for these reliefs is made in proceedings in which the applicant obtained leave to challenge the Board's decision of 29th May, 2018, by way of judicial review on several grounds by order made by me on 24th July, 2018. The proceedings are listed for hearing before me for eight days commencing on 19th March, 2019.

4 In accordance with directions made by the court on 23rd November, 2018, opposition papers were delivered by the Board and by the notice parties. Voluntary discovery was sought by the applicant from the Board and from the notice parties by letter dated 7th January, 2019. The applicant sought discovery of three categories of documents from the Board and of two categories from the notice parties. There followed an exchange of correspondence between the applicants and the Board and the notice parties in relation to the discovery sought. The upshot of that correspondence is that a substantial measure of agreement was reached in relation to one of the categories of documents sought by way of discovery from the Board and from the notice parties. That category concerns documents relating to the ground of challenge made by the applicant on the basis of alleged objective bias by reason of the involvement of one of the members of the Board in the decision. There were, however, some issues remaining to be resolved in relation to those categories. There was no agreement between the parties in relation to two of the categories of discovery sought from the Board and in relation to one of the categories sought from the notice parties.

5 It is necessary, therefore, for me to resolve the dispute between the parties in relation to the two outstanding categories of discovery sought by the applicant as against the Board and in relation to the one outstanding category of documents sought from the notice parties. It is also necessary for me briefly to address the outstanding issues in relation to the category directed to the alleged objective bias issue. Finally, I must determine the applicant's application for the additional relief sought against the Board at para. 3 of the notice of motion pursuant to the duty of candour.

6 Extensive correspondence was exchanged between the parties on the question of discovery. In the absence of agreement in full to the discovery sought by the applicant, the applicant issued a motion for discovery and for the additional relief sought pursuant to the duty of candour. That motion was returnable before me on 24th January, 2019. It was grounded on a very detailed affidavit sworn by Joe Noonan, the applicant's solicitor, on 18th January, 2019. That affidavit exhibited the relevant correspondence between the parties up to that date. There was additional correspondence between the parties following that affidavit. I was provided with a updated book containing all the correspondence. The parties exchanged written submissions on the applications for discovery and for the further relief sought by the applicant. I heard the application over the course of two partial days on 1st February and 8th February, 2019. I reserved my judgment. In light of the impending hearing date for the proceedings, it has been necessary for me to rule urgently on the applications and I do so in as brief and succinct a manner as possible in light of the time constraints involved.

Structure of Judgment

7 I will first identify the grounds of challenge advanced by the applicant to the Board's decision which are relevant to the discovery application and to the other relief sought by the applicant. I will then briefly refer to the legal principles applicable to discovery in judicial review proceedings. I will then address each of the disputed categories of discovery sought as against the Board and the notice parties. I will refer to the extent of the agreement between the parties in relation to one of the categories of discovery sought and address any outstanding issues of disagreement in relation to that category. Finally, I will consider the applicant's application for the relief sought arising from the duty of candour.

The Proceedings: Grounds of Challenge Relevant to Discovery

8 The applicant seeks to challenge the Board's decision in these proceedings on several grounds. The proceedings are being fully defended by the Board and by the notice parties. There are three grounds of challenge relevant to the discovery and the other relief sought...