Diamrem Ltd v Cliffs of Moher Centre Ltd and Clare County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 09 March 2021
• Neutral Citation: [2021] IECA 63
• Date: 09 March 2021
• Docket Number: Court of Appeal Record Number 2019/53
• Court: Court of Appeal (Ireland)

Between

Diamrem Limited

Applicant/Appellant

and

Cliffs of Moher Centre Limited and Clare County Council

Respondents

[2021] IECA 63

Costello J.

Haughton J.

Binchy J.

Court of Appeal Record Number 2019/53

THE COURT OF APPEAL

Unauthorised development – Admission of new evidence – Planning and Development Act 2000 s. 160 – Appellant seeking to admit new evidence – Whether the evidence sought to be adduced by the appellant could not have been obtained with reasonable diligence for use at the trial by the appellant

Facts: The appellant, Diamrem Ltd, sought an order pursuant to s. 160 of the Planning and Development Act 2000 in respect of a 481-space car park operated by the respondents, Cliffs of Moher Centre Ltd and Clare County Council, at the Cliffs of Moher Visitor Centre in County Clare. The first respondent was granted planning permission (the Permission) by An Bord Pleanála in 2002 for the development of the Cliffs of Moher Visitor Centre. The Permission allowed for the development of a permanent car park for 249 car parking spaces at the western side of the R478 and a temporary car park “during the period of construction” on the eastern side of the road. It was common case that the permitted permanent car park on the western side of the R478 was never constructed. Instead, the respondents asserted that, by reference to two decisions taken under the Planning and Development Regulations 2001, known as Part VIII decisions, a decision had been made “to relocate the car park for which planning permission was granted in December 2002 to the site of the temporary car park”. The appellant’s case was that the car park on the eastern side of the R478 (the temporary car park), was an unauthorised development within the meaning of s. 160 of the 2000 Act. It sought various declaratory and enforcement reliefs on that basis. By originating notice of motion issued on 20 July 2016, the appellant sought orders compelling the respondents, inter alia, to remove the temporary car park on the grounds that this was required in order to comply with Condition No. 3 and Condition No. 7 of the Permission. The appellant applied to the Court of Appeal to admit new evidence pursuant to O. 86A, r. 4(c) of the Rules of the Superior Court. The parties accepted that the test to be applied by the court was that established by the Supreme Court in the case of Murphy v Minister for Defence [1991] 2 I.R. 161, 164, where Finlay CJ set out the applicable principles. The only issue in dispute in this case was whether the evidence sought to be adduced by the appellant satisfied the first of those principles and, in particular, whether the evidence could not have been obtained with reasonable diligence for use at the trial by the appellant.

Costello J held that the new evidence which the appellant sought leave to admit for the hearing of the appeal in this case was in existence prior to the trial; it was on the planning file in the offices of the second respondent which was open to the public for inspection. Costello J noted that a director of the appellant inspected the relevant file in February 2017, ten months prior to the trial, and the relevance of the Part VIII LA 04/08 decision was clear, at the latest, from the date of the delivery of the affidavit of Mr Dollard, the Director of Services of the second respondent, and a director of the first respondent, of 5 May 2017. Costello J found that there was every opportunity available to the appellant to adduce the evidence sought to be admitted. The explanations why this was not done did not, to Costello J’s mind, assist the appellant. Costello J was not satisfied that the appellant could not, without reasonable diligence, have adduced this evidence at trial. For those reasons, Costello J refused the application.

Costello J was provisionally of the view that the respondents were entitled to their costs of the motion, to be adjudicated in default of agreement, on the basis that it was a discrete application on which they had been entirely successful. Costello J held that there should be a stay on execution pending the determination of the appeal.

Application refused.

UNAPPROVED

JUDGMENT of Ms. Justice Costello delivered on the 09 day of March 2021

Introduction

1 . This judgment relates to an application by the appellant to admit new evidence pursuant to O. 86A, r. 4(c) of the Rules of the Superior Court. The parties accept that the test to be applied by this court is that established by the Supreme Court in the case of Murphy v. Minister for Defence [1991] 2 I.R. 161, 164 where Finlay C.J. said that the applicable principles were:-

• “1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

• 2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

• 3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”

2 . The only issue in dispute in this case is whether the evidence sought to be adduced by the appellant satisfies the first of these principles and, in particular, whether the evidence could not have been obtained with reasonable diligence for use at the trial by the appellant.

The proceedings

3 . The appellant is a company which operates a park and ride business for visitors to the Cliffs of Moher Visitor Centre. The first named respondent is a company incorporated by the second named respondent to develop and operate a new Visitor Centre to be built at the Cliffs of Moher. The second named respondent is the local authority and the planning authority for the area.

4 . The appellant sought an order pursuant to s. 160 of the Planning and Development Act 2000 (“the Act of 2000”) in respect of a 481-space car park operated by the respondents at the Cliffs of Moher Visitor Centre in County Clare. The first named respondent was granted planning permission (the “Permission”) by An Bord Pleanála in 2002 for the development of the Cliffs of Moher Visitor Centre (Planning Register Reference 01/333, ABP Ref. 03/128695). The Permission allowed for the development of a permanent car park for 249 car parking spaces at the western side of the R478 and a temporary car park “during the period of construction” on the eastern side of the road.

5 . It is common case that the permitted permanent car park on the western side of the R478 was never constructed. Instead, the respondents asserted that, by reference to two decisions taken under the Planning and Development Regulations 2001, known as Part 8 decisions, a decision had been made “to relocate the car park for which planning permission was granted in December 2002 to the site of the temporary car park.” The appellant's case is that the car park on the eastern side of the R478, referred to in the proceedings as the temporary car park, is an unauthorised development within the meaning of s. 160 of the Act of 2000. It seeks various declaratory and enforcement reliefs on this basis.

6 . By originating notice of motion issued on 20 July 2016, the appellant sought orders compelling the respondents, inter alia, to remove the temporary car park on the grounds that this was required in order to comply with Condition No. 3 and Condition No. 7 of the Permission.

The respondents' defence of the proceedings

7 . A number of grounds were advanced by the appellant to support its claim and a number of grounds of defence were set out by the respondents in the exchange of affidavits between the parties. Mr. Gerard Dollard, the Director of Services of the second named respondent, and a director of the first named respondent, swore four affidavits on behalf of the respondents. The defence of the respondents was based, inter alia, on the fact that there had been two Part 8 processes undertaken by the County Council, the effect of which, Mr. Dollard says, was to permit the continued functioning of the temporary car park as a car park. In his affidavit of 5 May 2017 he averred as follows:-

“8. I say and believe that certain modifications to the design proposals for which permission had been granted by An Bord Pleanála were the subject of public consultation and permission under Part VIII of the Planning and Development Regulations 2001. …

9. In the course of its proposal application dated 30 September 2004 on behalf of the developer to the Council in respect of Part VIII Application LA 04–08, Reddy O'Riordan Staehli Architects (“RORSA”) stated:

“in complying (sic) with the An Bord Pleanála decision it was a deemed appointment (sic) that the proposed car parking area be re-located outside of the Visitor Centre site. The proposed remote temporary Car Parking facility is situate on the East side of the existing roadway away from the Visitor Centre and the Cliffs walks. … Status of the coach parking to the temporary car park will be revisited upon implementation of the park and ride arrangement.”

I beg to refer to a true copy of the said submission regarding Part VIII application LA 04–08 upon which marked “GD1” I have signed my name prior to the swearing hereof.

10. A separate submission dated 31 March 2005 was made by RORSA to the Council in relation to compliance with the 19 conditions attached by An Bord Pleanála to the Planning Permission. The Grounding Affidavit sworn by Mr. Flanagan on behalf of the Applicant at paragraphs 5, 6 and 7 thereof references and quotes excerpts from the said compliance submission by RORSA to the Council in relation to condition no. 3 scheduled to the Planning Permission. I beg to refer to a true copy of the said compliance submission dated 31 March 2005 upon which marked “GD2” I have signed my name prior to the swearing...