Cork Harbour Alliance for a Safe Environment v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 26 April 2022
• Neutral Citation: [2022] IEHC 231
• Court: High Court
• Docket Number: [2018 No. 593 J.R.]

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

and

Indaver NV T/A Indaver Ireland

Second Named Notice Party

[2022] IEHC 231

[2018 No. 593 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Remittal – Planning – Applicant seeking leave to appeal from a decision made in a remittal judgment – Whether it was desirable in the public interest that an appeal should be brought from the remittal judgment

Facts: The applicant, Cork Harbour Alliance for a Safe Environment, applied to the High Court for leave to appeal to the Court of Appeal pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) from a decision made by Barniville J in a remittal judgment delivered on 1 October 2021. The applicant proposed the following questions which it contended contain points of law of exceptional public importance which it is desirable in the public interest should be the subject of an appeal to the Court of Appeal pursuant to s. 50A(7): (1) In a remittal application raised for the first time following the delivery of the main judgment quashing a planning decision on grounds of objective bias by virtue of the involvement of a member of the decision-making panel (the relevant person) - (i) Is an applicant precluded in law from relying on pleas as to the involvement of the relevant person throughout the process by reason of the fact that those pleas did not “challenge” the interim steps or decisions in which the relevant person was involved? (ii) Is an applicant precluded in law from relying on pleas or information as to the involvement of the relevant person throughout the process (including pleas or information accepted by the Court in its reasoning leading to the finding of objective bias) by reason of the fact that the particulars of the ground of objective bias did not enumerate the interim steps or decisions in which the relevant person was involved? (iii) Does the Court have discretion within O. 84, r. 27(4) to hear further information and/or evidence as to the full involvement of the relevant person, following the delivery of the main judgment quashing the decision? (2) Is an applicant who establishes objective bias sufficient to warrant the quashing of an An Bord Pleanála decision on a planning application, precluded in law from opposing remitting and/or opposing remittal to a particular point in the application process, because the applicant did not seek to challenge the parts of that process in which the relevant party had been involved but only challenged the final decision to grant planning permission? (3) Is it correct in law for the Court to determine what is fair and just (the overriding criteria in a remittal application) with reference to a perceived benefit an applicant might derive from a quashed but remitted decision which perceived benefit is based upon a mere assumption that the Board would exercise its discretion to seek further information from the developer? (4) Where a Court has found objective bias based on the participation of the relevant person (and/or his participation throughout the statutory process) and given that that Court when considering remittal is required by law to undo the consequences of the objective bias and no more - (i) Is it sufficient for the Court to ascertain whether the circumstances which give rise to the objective bias no longer exist and will not exist when the remitted application comes to be considered again by the Board? (ii) Is it lawful for the Court to remit to any point in the process?

Held by Barniville J that the questions proposed by the applicant which were said to arise from the remittal judgment did not involve any point of law of exceptional public importance. Nor was he satisfied that it was desirable in the public interest that an appeal should be brought to the Court of Appeal from the remittal judgment. He held that the cumulative requirements contained in s. 50A(7) had not been satisfied by the applicant.

Barniville J refused to grant leave to appeal to the applicant.

Leave to appeal refused.

JUDGMENT of Mr. Justice David Barniville delivered on the 26 ^th day of April, 2022

Index

A. Introduction	2
B. The Remittal Judgment	5
C. Applicant's Proposed Questions for Certification	9
D. Relevant Statutory Provision: s. 50A(7) of the 2000 Act	11
E. Relevant Legal Principles: Application for Certificate under s. 50A(7)	11
F. Consideration of Questions Proposed by Applicant for Certification: Points of Law of Exceptional Public Importance?	15
i. Question 1	15
ii. Question 2	23
iii. Question 3	25
iv. Question 4	30
G. Whether an Appeal is Desirable in the Public Interest	32
H. Conclusion	34

A. Introduction

1 . This is my judgment on an application by the applicant, CHASE, for leave to appeal to the Court of Appeal pursuant to s.50A(7) of the Planning and Development Act, 2000 (as amended) (the “2000 Act”), from a decision made by me in a judgment delivered on 1 October 2021. The application is somewhat different to other applications for leave to appeal under s.50A(7), as the applicant is the party seeking leave to appeal in circumstances where it obtained an order of certiorari quashing the relevant decision of An Bord Pleanála (the “Board”) and an order was then made, notwithstanding the applicant's opposition, remitting the relevant planning application to the Board for further consideration and determination. None of the parties were able to point to any other case in which a party in the position of the applicant obtained leave to appeal. While obviously not determinative of the outcome of the application, it is noteworthy that, despite the enormous experience of counsel and solicitors for all of the parties involved, no one could point to another application for leave to appeal in circumstances like this.

2 . The application the subject of this judgment has a complex and detailed factual and procedural background which it is appropriate now briefly to outline. The full background is set out in two of the previous judgments I have delivered in the proceedings. It is unnecessary to repeat much of that detail here.

3 . In judicial review proceedings commenced in July 2018, the applicant challenged a decision of the Board dated 29 May 2018 (the “impugned decision”) to grant planning permission for the development of an incinerator at Ringaskiddy, County Cork to Indaver Ireland Limited, the first named Notice Party. The applicant succeeded on two of the eleven grounds of challenge for which it had obtained leave in a judgment which I delivered on 19 March 2021 ( [2021] IEHC 203) (the “principal judgment”). The two grounds on which the applicant succeeded were: (a) Ground 4 (the impugned decision was vitiated by objective bias by reason of the involvement in the decision of one of the then members and the then Deputy Chairperson of the Board, Mr. Boland) and (b) Ground 1 (the correct interpretation of the relevant statutory provisions governing Strategic Infrastructure Development (“SID”) was that the person who applies for permission for a SID must be the same entity as the person who is referred to in those provisions as the “prospective applicant”, being the person who has engaged in the required pre-application consultation procedure with the Board. Neither the applicant nor any of the other parties sought leave to appeal from any aspect of the principal judgment.

4 . The parties were unable to agree on the reliefs which the Court should grant in respect of the two grounds of challenge to the impugned decision on which the applicant succeeded. With respect to Ground 4 (the objective bias issue), it was agreed by all of the parties that the Court should grant an order of certiorari quashing the impugned decision. The applicant maintained that the Court should make the order of certiorari without remitting the decision. The Notice Parties (referred to together as “Indaver”) contended that the Court should, having made the order of certiorari quashing the impugned decision, remit Indaver's planning application to the Board to be considered and determined in accordance with the principal judgment. The Board's position was that it would be in a position to exercise its statutory powers and to discharge its statutory obligations in the event that Indaver's planning application was remitted to it. There was some divergence between the Board and Indaver as to the point in time in the process to which the application should be remitted. The applicant strenuously opposed the remittal of the planning application to any point in the process.

5 . There was also a dispute between the parties concerning the relief which should be granted to reflect the applicant's success on Ground 1 (the prospective applicant/applicant issue). That issue is not relevant to the issues addressed in this judgment as no leave to appeal has been sought by the applicant in respect of the Court's decision on the relief to be granted on that issue.

6 . I gave judgment on the remittal application on 1 October 2021 ( [2021] IEHC 629) (the “remittal judgment”). While it will be necessary to refer in greater detail later to some aspects of the remittal judgment, at this stage, it should suffice to record that I concluded that, in respect of Ground 4 (the objective bias issue), the Court should grant an order of certiorari quashing the impugned decision and should exercise its discretion under O.84, r.27(4) to remit Indaver's planning application to the Board to be further considered and determined by it. I was not satisfied that the applicant's objections to the remittal of the application to the Board were...