ECO Advocacy CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 27 May 2021
• Neutral Citation: [2021] IEHC 265
• Docket Number: [2020 No. 1030 JR]
• Court: High Court

Between

ECO Advocacy CLG

Applicant

and

An Bord Pleanála

Respondent

and

Keegan Land Holdings Limited

Notice Party

[2021] IEHC 265

[2020 No. 1030 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on Thursday the 27th day of May, 2021

1 This judicial review concerns a development in Trim, designated as a heritage town, at a site close to a zone of archaeological potential and an architectural conservation area. The proposal is for the construction of 320 dwellings at Charterschool Land, Manorlands, in the vicinity of the River Boyne and River Blackwater Special Area of Conservation (SAC) and Special Protection Area (SPA).

2 There is a recorded monument on the site, an enclosure reference number RMP ME036:026. A protected structure, Mornington House, lies to the north, a detached three-bay two-storey house, built c. 1880, reference NIAH 14328001, RPS TT036–084. There is an adjacent protected view (number 11) along the east of the site towards Wellington Monument, protected by objective HER OBJ 13 in the County Development Plan, as well as wider views of Trim Castle and adjoining features.

Facts

3 There were a number of previous refusals of development on the site. In 2008 a development was refused due to the lack of a sustainable drainage (SUDS) system.

4 In 2009 a development was rejected due to poor quality design having regard to the site's location, which as noted above is in or close to areas of heritage, historical, archaeological and architectural interest.

5 A further proposed development was rejected in 2011 due to design issues and the conclusion that it would represent a low standard of residential development.

6 The lands were originally zoned for commercial or industrial use in the Trim Town Development Area Plan 2014 to 2020, but that was since changed to residential use.

7 A pre-planning meeting took place between the notice party and Meath County Council on 3rd September, 2019.

8 A first appropriate assessment (AA) screening report was prepared in November 2019.

9 On 20th December, 2019, the notice party lodged an application for a pre-planning opinion as to whether the development would constitute strategic housing development.

10 On 13th February, 2020, the developer held a pre-planning meeting with the board and on 2nd March, 2020 the board decided that the application needed further consideration or amendment.

11 On 7th April, 2020, conservation objectives for the River Boyne and River Blackwater SAC were adopted by the National Parks and Wildlife Service.

12 A second AA screening report was prepared in June 2020 and the formal planning application was submitted on 8th July, 2020.

13 An EIA screening report was prepared dated July 2020 as well as an ecological impact assessment which included a number of proposed mitigation measures. A habitats directive screening report was also submitted which concluded that there would be no impact on Natura 2000 sites.

14 The applicant and other bodies made submissions on the application.

15 On 11th August, 2020, a submission was made on behalf of An Taisce noting the potential for impact on the European sites.

16 On 31st August, 2020, the CEO of Meath County Council reported on the application and I will refer further to that below.

17 On 6th October, 2020, the board's inspector reported recommending that permission be granted and concluding, following the EIA and AA screening, that a full assessment was not required.

18 On 22nd October, 2020, the board gave a direction to grant permission generally in accordance with the inspector's recommendation and on 27th October, 2020 permission was formally granted by decision of the board under the strategic housing development procedure.

19 On 14th January, 2021, I granted leave in the present proceedings, the primary relief sought being an order of certiorari of the decision of 27th October, 2020.

20 The matter was heard on 23rd to 25th February, 2021, and at the conclusion of the hearing I permitted the applicant to put in a further formal affidavit exhibiting an additional document subject to further follow-up written submissions and replies. That became a slightly lengthier process than I had envisaged – what counsel for the notice party presciently referred to as a process of “ping-pong”. That is unfortunately always a risk if one allows anything further to be put in, a risk exacerbated here because I later sought further submissions on the extent, if any, of the court's own motion obligations, but the process of sur-reply and sur-rejoinder did eventually peter out and judgment was formally reserved at that point.

Preliminary issues

21 There were two issues that are perhaps best categorised as of a preliminary nature: a complaint, primarily by the notice party, as to the alleged lack of bona fides of the applicant; and a complaint, again primarily advanced by the notice party, as to lack of detail in the pleadings.

Alleged lack of bona fides

22 The notice party alleged that the applicant lacked bona fides, misled the court at the ex parte stage and was animated by hostility and animus towards the developer and its principal, Mr. John Keegan. Those objections, however, are over-cooked. In virtually any case, one can find something that any party could or should have done better, and, I might add, one could probably find something that the judge could have done better as well. Normally that is just down to human error. Any possible infelicities in how matters were presented here, even if hypothetically I accepted that such were established, are a long way off any situation where it would be just and reasonable to refuse relief on a discretionary basis or discharge the leave order. As to animus, in fairness, counsel for the notice party did accept that merely having animus (which I amn't to be taken as having been demonstrated) did not mean that one might not have a good point. It would not advance the rule of law if an investigation into the motive of the person making the complaint (hard to determine anyway, at the best of times, even by the person themselves) precluded an alleged illegality from being examined and, if established, from being corrected.

Alleged lack of detail in the pleadings

23 In fairness to the notice party, the applicant's pleadings here are in places a little sub-optimal in terms of detail. The pleading objection might have been obviated to some extent had the applicant complied with the procedure set out in Practice Direction HC96 at the time (now HC103), requiring a clear statement of core grounds, a clear distinction between factual and legal grounds and a framing of the legal points in ratio format setting out in respect of each point why precisely the decision is infirm by reference to what specific legal provision, and in what precise respect.

24 If applicants don't embrace that approach with the required fervour, they certainly run the risk of at least a few shots across the bows from the other side. Counsel for the applicant hinted that maybe one could blame the court that granted leave (myself in this instance) for not ensuring that compliance with the Practice Direction was addressed at that point; and in fairness I suppose there may be some validity to that, and we might have to file it under the heading of judicial fallibility. But blaming the court, rewarding and worthwhile as that normally is, does not completely solve the applicant's difficulty here.

25 At the same time there is some modest onus on respondents to give notice of the objection as to inadequate particulars of pleading by way of the statement of opposition so as to allow consideration of whether an applicant should seek an amendment to further particularise the complaint being made. There must be some equality of arms. If respondents want to live by the sword in respect of these sorts of points, they may have to accept a liability to have pleading points taken against their own papers.

26 The pleading objection is only made to a limited extent in the notice party's statement of opposition. It is certainly made in relation to pre-planning procedures at para. 8 of the statement of opposition. At para. 27 it is said that the plea of scant consideration of heritage and ecology issues alleged in the statement of grounds has not been particularised. At para. 69 of the submissions of the notice party, complaint is made that there are no particulars as to inadequacies in the screening procedure. At para. 75 it is alleged that the plea of unreasonableness is not particularised and should also be dismissed.

27 Looking at the board's objections, it is notable that the only complaint made under O. 84, r. 20(3) in the board's statement of opposition is in reference to the pre-planning procedures rather than generally.

28 For reasons that will become apparent, it is not particularly necessary to get into the question of whether the complaint about pre-planning procedures is pleaded in detail or not, because the applicant's pleading problem under that heading goes way beyond points of detail.

29 As regards particularising how the decision is unreasonable, again that issue is not going to be pivotal, but nonetheless I do not think it needs much particularisation in principle because a complaint of unreasonableness is a complaint that the decision was not open to the decision-maker on the material. It is not immediately obvious how that can be further particularised beyond saying what the conclusion is that isn't open on the evidence. An applicant can't really be expected demonstrate a negative on the pleadings, by for example going through every piece of evidence seriatim and saying in each case that this doesn't support the conclusion.

30 As regards the complaint that there are no particulars as to inadequacy in the screening procedure and in relation to failure to consider certain matters,...