Duffy v Clare County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 24 July 2023
• Neutral Citation: [2023] IEHC 430
• Court: High Court
• Docket Number: [2021 No. 85 JR]

In the Matter of An Ex-Parte Application for Leave to Apply for Judicial Review, As Prescribed Under Section 50 of the Planning and Development Act 2000 as Amended

Between

Michael Duffy

Applicant

and

Clare County Council

Respondent

and

Pat McDonagh

Notice Party

In the Matter of an Ex-Parte Application for Leave to Apply for Judicial Review, As Prescribed Under Section 50 of the Planning and Development Act 2000 as Amended

Between

Michael Duffy

Applicant

and

An Bord Pleanála and Clare County Council (By Order)

Respondents

and

Pat McDonagh

Notice Party

[2023] IEHC 430

[2021 No. 85 JR]

[2022 No. 1101 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Judicial review – Leave – Applicant seeking leave to apply for judicial review – Whether the case against the respondent was misconceived

Facts: The notice party, Mr McDonagh, on 23rd October, 2020, made a planning application to Clare County Council (the council). On 24th November, 2020, the applicant, Mr Duffy, asserted that there would be an adverse impact on European sites. On 16th December, 2020, a notification of decision to grant permission was issued. On 9th February, 2021, the applicant made an ex parte application in the first proceedings (2021 No. 85 JR) for leave to apply for judicial review of the council’s decision. On 21st October, 2022, An Bord Pleanála (the board) granted permission for the proposed development. On 15th December, 2022, the applicant brought the second application (2022 No. 1101 JR) by way of an ex parte application for leave to apply for judicial review of the board’s decision. On 22nd May, 2023, the council was joined as a respondent in the 2022 proceedings without prejudice to whether the applicant was disentitled to relief against the council by reason of failing to join them originally. The two applications for leave on notice in both the 2021 and 2022 proceedings, and the council’s motion to dismiss the proceedings against it, were heard on 6th July, 2023 when judgment was reserved. The board did not get involved in that hearing and did not contest leave against it.

Held by Humphreys J that the applicant’s claim to be entitled to sue the council rested on the misconception that the first-instance decision was a nullity because it mishandled the appropriate assessment issue. Humphreys J held that this is not the sort of legal irregularity that justifies by-passing administrative appeal, citing Sweetman v Clare County Council (Sweetman XII) [2018] IEHC 517. His conclusion was reinforced by the fact that the board had decided the appeal anyway and by s. 37(1)(b) of the Planning and Development Act 2000, citing Yennusick v Wexford County Council [2023] IEHC 70. He held that the quashing of an appellate decision does not revive the underlying first-instance decision unless the court specifically orders otherwise – otherwise the administrative process would become endless, circular, unworkable and unfair. He held that the legal and statutory requirement to exhaust remedies does not create some lawless zone whereby first instance decision-makers can do what they like. He held that the procedure of administrative appeal is the check and balance, with judicial review of the first instance decision available in truly exceptional circumstances. He held that this did not affect the case against the board, which was not contested, but the form of that case needed to be reprogrammed in the light of the failure of the leave application as against the council as well as having regard to the applicable procedural requirements.

Humphreys J ordered that: (i) leave be refused in the 2021 proceedings; (ii) the council be struck out as a respondent from the 2022 proceedings and made a notice party; (iii) leave be granted in part and refused in part in the 2022 proceedings, without prejudice to any point the opposing parties could have made at the leave stage, on the basis of an amended statement of grounds to be filed in accordance with the judgment within 2 weeks; (iv) the amendments directed to be made arising from partial refusal of leave are without prejudice to any rights of the applicant to contend in any other forum that such refusal or amendment ought not to have been ordered; (v) no order be made on foot of the council’s notice of motion; (vi) the originating notice of motion be issued within a further 2 weeks returnable for 9th October, 2022; and (vii) unless any party applies otherwise by written legal submission within 7 days, the foregoing order be perfected forthwith on the expiry of that period on the basis of no order as to costs.

Leave refused in 2021 proceedings. Leave granted in part in 2022 proceedings.

JUDGMENT of Humphreys J. delivered on the 24th day of July, 2023

Facts

1 . On 23rd October, 2020, the notice party made a planning application to Clare County Council for a motorway service station and rest area adjacent to junction 12 of the M18 motorway, on lands situated at Kilbreckan, Doora, Ennis, Co. Clare. The application documents included an appropriate assessment (“AA”) screening report and a Natura Impact Statement (“NIS”).

2 . On 24th November, 2020, the applicant made a submission to the council on the planning application which asserted that there would be an adverse impact on European sites.

3 . On 10th December, 2020, internal reports were prepared by the council, including from the environmental assessment officer, which addressed AA screening and AA.

4 . On 15th December, 2020, the council's planner's report was prepared. That contained, inter alia, conclusions on AA screening and AA, and noted the “comprehensive report” from the environmental assessment officer in relation to AA.

5 . On 16th December, 2020, the council's planner's report and an AA determination were then signed by, inter alia, the council's senior planner on 16th December, 2020. The AA determination reflected the council's planner's report and the environmental assessment officer's report. The AA determination highlighted that conditions had been included in the grant of permission as a result of the AA.

6 . On 16th December, 2020, the Chief Executive's report was signed granting permission and a notification of decision to grant permission was issued.

7 . On 20th January, 2021, the council's decision was the subject of a number of third party appeals. The applicant did not himself appeal the council decision to the board but did act as an agent for one of the third party appellants.

Procedural history

8 . On 9th February, 2021, the applicant made an ex parte application in the Judicial Review List in the first proceedings [2021 No. 85 JR] for leave to apply for judicial review of the council's decision. Leave was directed to be heard on notice and was adjourned from time to time thereafter, including for the purposes of awaiting the board's decision on the appeal. At no point did the applicant seek a stay in respect of the board determining the appeal.

9 . On 4th August, 2022, the board's inspector reported recommending a grant of permission.

10 . On 21st October, 2022, the board granted permission for the proposed development.

11 . On 15th December, 2022, the applicant brought the second judicial review application in the Judicial Review List [2022 No. 1101 JR] by way of an ex parte application for leave to apply for judicial review of the board's decision.

12 . On 6th March, 2023, that application was adjourned generally.

13 . On 27th April, 2023, the council filed a motion to strike out the 2021 proceedings as moot.

14 . On 15th May, 2023, on the notice party's application, both sets of proceedings were entered in the Commercial Planning and Environmental List.

15 . On 22nd May, 2023, the council was joined as a respondent in the 2022 proceedings without prejudice to whether the applicant was disentitled to relief against the council by reason of failing to join them originally.

16 . The two applications for leave on notice in both the 2021 and 2022 proceedings, and the council's motion to dismiss the proceedings against it, were heard on 6th July, 2023 when judgment was reserved. The board did not get involved in that hearing and did not contest leave against it. The council and the developer opposed the grant of leave in the 2021 proceedings and, insofar as concerned the council, in the 2022 proceedings.

Relief sought

17 . The relief sought in the 2021 proceedings is:

“1. Leave to apply for Judicial Review based on the facts listed in this grounding statement, my verifying affidavit and exhibits herein.

2. A Declaration that the Planning Authority was precluded from making a decision because of lacunae in the mandatory Appropriate Assessment.

3. A Declaration that, due to the technical details prescribed by Irish Water, and conditioned in the decision, this application is a case of project splitting and in that regard, because of the connectivity and likely impacts on Natura2000 sites, any s.4 exemptions otherwise applying to Irish Water works do not apply in this instance.

4. An order of certiorari overturning the decision of the Respondent on the 16th day of December 2020 to grant planning permission in application 20/781.

5. A Declaration that the costs of these proceedings are covered by s.50B of the 2000 Act or should be measured on a not prohibitively expensive (‘NPE’) basis.

6. Such further Orders as the Court deems appropriate.

7. Liberty to apply.

8. The costs of the within proceedings.”

18 . The relief sought in the 2022 proceedings is:

“1. By virtue of Order 84 Rule 20 to grant me the relief of leave to apply for Judicial Review based on the facts listed in this grounding statement, my verifying affidavit and exhibits herein.

2. A Declaration that the Planning Authority was precluded from making a decision in the first instance in planning application 20/781 because of lacunae in the Planning Authority Appropriate Assessment.

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