Desmond Mulholland and Donal Kinsella v an Bord Pleanála (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 04 October 2005
• Neutral Citation: [2005] IEHC 306
• Court: High Court
• Docket Number: [2004 No. 404 JR]
• Date: 04 October 2005

MULHOLLAND & KINSELLA v BORD PLEANALA

COMMERCIAL

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT, 2000 (AS AMENDED) AND IN THE

MATTER OF AN APPLICATION BY WAY OF JUDICIAL REVIEW

BETWEEN

DESMOND MULHOLLAND AND DONAL KINSELLA

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

COVERFIELD DEVELOPMENTS LIMITED, THE CARROLL VILLAGE (RETAIL) MANAGEMENT SERVICES LIMITED (OTHERWISE KNOWN AS CARROLL VILLAGE (RETAIL) MANAGEMENT SERVICE), DUNDALK RETAILERS ASSOCIATION, DUNDALK TOWN COUNCIL

NOTICE PARTIES

[2005] IEHC 306

No. 404 JR/2005

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

permission

Judicial review - Leave - Requirement of substantial grounds for challenge - Duty to give reasons - Planning permission granted by An Bord Pleanála contrary to recommendations of its inspector - Adequacy of reasons and considerations for departing from inspector's recommendation - Adequacy of environmental impact statement - Whether substantial grounds made out by applicants - O'Donoghue v An Bord Pleanála [1991] ILRM 750 and State (Sweeney) v Minister for the Environment [1979] ILRM 35 considered - Planning and Development Act 2000 (No 30), ss 34(10) and 50 - Leave granted (2005/404JR - Kelly - 4/10/2005)

MULHOLLAND & KINSELLA v BORD PLEANALA

Facts: The applicants sought leave to apply for an order of certiorari by way of judicial review, pursuant to s. 50 of the Planning and Development Act 2000, to quash a decision made by the respondent granting planning permission for a retail development. They alleged, inter alia, that the respondent had not proffered sufficient reasons for departing from its inspector's recommendation that the environmental impact statement prepared by the notice party was inadequate and that the respondent was therefore precluded from considering granting permission and that the said environmental impact statement itself was inadequate.

Held by Mr Justice Kelly in granting leave to apply for judicial review that the reasons given by a decision maker had to be clear and cogent. That the statement of considerations taken for a particular reason had to be sufficient to give an applicant such information as was necessary for him to consider whether he had a reasonable chance of succeeding in appealing or judicially reviewing the decision, arm himself for such hearing or review, know if the decision maker had directed its mind adequately to the issues which it had considered or was obliged to consider and enable the courts to review the decision.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S50

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S19

MCNAMARA v AN BORD PLEANALA 1995 2 ILRM 125

DROGHEDA PORT COMPANY v LOUTH COUNTY COUNCIL UNREP MORRIS 11.9.1997 1997/8/2757

HYNES v AN BOARD PLEANALA UNREP LAFFOY 10.12.1997 1998/7/2169

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT UNREP GEOGHEGAN 2.7.1999 1999/14/3977

KENNY v AN BORD PLEANALA (No 1) 2001 1 IR 565

ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999

PLANNING & DEVELOPMENT ACT 2000 S34(10)(a)

PLANNING & DEVELOPMENT ACT 2000 S34(10)(b)

SWEENEY, STATE v MIN FOR ENVIRONMENT 1979 ILRM 35

FAIRYHOUSE CLUB LTD v AN BOARD PLEANALA UNREP FINNEGAN 18.7.2001 2001/9/2432

R (HEREFORD WASTE WATCHERS LTD) v HEREFORD COUNCIL 2005 EWHC 191 (ADMIN) UNREP ELIAS J 18.2.2005

R (ERMAKOV) v WESTMINSTER CITY COUNCIL1996 2 ALL ER 302

LONDON RESIDUARY BODY v THE SECRETARY BODY v THE SECRETARY OF STATE FOR THE ENVIRONMENT 58 JPL 637

O'DONOGHUE v AN BOARD PLEANALA 1991 ILRM 750

SWEENEY, STATE v MIN FOR ENVIRONMENT 1979 ILRM 35

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

PLANNING & DEVELOPMENT REGS SI 600/2001 ART 94

PLANNING & DEVELOPMENT REGS SI 600/2001 SCHED 6

PLANNING & DEVELOPMENT REGS SI 600/2001 ART 124

BOLAND v BORD PLEANAL 1996 3 IR 435

PLANNING & DEVELOPMENT ACT 2000 S34(1)

PLANNING & DEVELOPMENT ACT 2000 S34(5)

O'CONNOR v DUBLIN CORPORATION & BORG DEVELOPMENTS 2000 3 IR 420 2001 1 ILRM 58

1 JUDGMENT of Mr. Justice Kelly delivered the 4th day of October, 2005

Introduction

2 On 25th February, 2005, the respondent, An Bord Pleanála (the board) decided to grant planning permission for a development at Dowdall's Hill, Dundalk, Co. Louth.

3 The development is a substantial one. It involves the construction of what is described as a factory outlet centre for 81 retail units on a 13.06 hectare site. The development will include a mall, snack bars, covered playground, crèche, parking for 1,120 cars and 20 coaches.

4 The applicants seek leave to judicially review the decision of the board with a view to obtaining certiorari to quash its decision.

5 Although no fewer than 28 grounds (some of which have as many as a dozen particulars appended to them) are set forth in the statement grounding the application for judicial review, in fact they reduce themselves to three.

6 They can be stated as follows:-

7 (a) alleged insufficient reasons given by the board for departing from its inspectors recommendation that the Environmental Impact Statement (EIS) prepared by the developer (Coverfield) was inadequate and that the board was therefore precluded from considering granting permission,

8 (b) inadequacy of the EIS, and

9 (c) the attachment of conditions by the board to its decision which involves an unlawful delegation of its responsibilities.

10 Each of these contentions will have to be considered in turn but before doing so I ought to deal briefly with the criteria which must be met by the applicants if they are to succeed on this application.

Substantial Grounds

11 This application is made pursuant to s. 50 of the Planning and Development Act, 2000, (the 2000 Act).

12 Under this provision the applicants must establish that they have substantial grounds for contending that the decision of the board is invalid.

13 This concept of having to establish "substantial grounds" is not new.

14 The necessity to establish substantial grounds was imposed originally by s. 82 (3B) of the Local Government (Planning and Development) Act, 1963, as amended by s. 19 of the Local Government (Planning and Development) Act, 1992.

15 In that statutory context the term fell to be considered by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M 125. There she held that "substantial grounds" within the meaning of s. 82 (3B) meant as follows:-

"In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are "substantial". A ground that does not stand any chance of being sustained (for example, where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in this argument at the next stage to those which I believe may have some merit".

16 That approach of Carroll J. was considered and approved in numerous subsequent judgments. See for example the decision of Morris P. in Drogheda Port Company v. Louth County Council [unreported 11th September, 1997] and Laffoy J. in Hynes v. An Bord Pleanála [unreported 10th December, 1997].

17 In Jackson Way Properties Limited v. Minister for the Environment [unreported, Geoghegan J. 2nd July, 1999] that judge expressed the view that there had to be "real substance in the argument and not merely that it is just about open to argument".

18 The matter was considered again by McKechnie J. in Kenny v. An Bord Pleanála (No. 1) [2001] 1 I.R. 565. After considering the decisions of Carroll J. and Geoghegan J. from which I have just quoted that judge went on to say:-

"...There can be no doubt but that the threshold of "substantial grounds" was intended, in my humble view, to result in a different and higher threshold, than that normally applicable to an application for judicial review under the Rules of the Superior Courts, 1986. That a ground had to be reasonable, before it could be substantial, could never be disputed. That such a ground also had to be arguable, equally in my view, could not be challenged. Such tests on their own however, may not be adequate as both of these descriptions equally apply when one seeks leave in an ordinary judicial review case under O. 84, r. 20: see the judgment of Denham J. in G. v. Director of Public Prosecutions [1994] 1 I.R. 374. Indeed, in a consideration of these words, one can think of grounds which could be both reasonable and arguable and yet fall significantly short of meeting the threshold of being "substantial". The words "trivial" or "tenuous", are undoubtedly helpful, but probably more so as words of elimination rather than qualification. The description of being "weighty" and of "real substance" are in my view of considerable importance in the interpretation of this threshold phrase. However, it must also be remembered that, from a base say, opposite substantial, namely insubstantial, an applicant must navigate the considerable distance in between, and in addition, must arrive at and meet the threshold whilst still afloat and on course. In truth I feel, whilst many attempts have been made to explain or convey "the equivalent of its meaning" I am not certain that one can better the original phrase itself. In any event these observations of mine are purely an aside as the Supreme Court has, once again, in the Illegal Immigrants...