Ecological Data Centres Ltd v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fennelly |
| Judgment Date | 10 December 2013 |
| Neutral Citation | [2013] IESC 61 |
| Court | Supreme Court |
| Date | 10 December 2013 |
BETWEEN:
And
And
[2013] IESC 61
THE SUPREME COURT
PLANNING AND ENVIRONMENTAL LAW
Judicial review
Appeal - Point of law of exceptional public importance - Whether desirable in public interest - Planning permission - Withdrawal of appeal - Statutory interpretation - "Determination" - "Decision" - Functus officio - Whether appeal determined at meeting of Board or on publication - Friends of the Curragh Environment Ltd v An Bord Pleanála & Others [2006] IEHC 243, [2009] 4 IR 451; Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02), [2004] ECR I-7405 and Marleasing (Case C-106/89), [1990] ECR I 4135 considered - Planning and Development Act 2000 (No 30), ss 34, 37, 50, 50A, 111, 132, 133, 137, 138 and 140 - Council Directive 92/43/EEC - Appeal dismissed in each case (45/13 and 102/12 - SC - 10/12/2013) [2013] IESC 61
Ecologic Data Centres Limited v An Bord Pleanála
Facts: In the proceedings, the planning authority had made a decision to grant planning permission which had been appealed. The Board had met and determined that it would allow the appeal and refuse the application for planning permission. In each case, the third party appellant withdrew the appeal. The proceedings turned on the language used in the Planning and Development Act 2000, with respect to the word “determine” in relation to the actions of the Board, in particular in s. 140(1)(a). The appeals had been claimed to have been withdrawn before the Board “decided” it. The Court considered whether a deliberate and meaningful distinction existed between determination and decisions.
Held by the Supreme Court per Fennelly J. (O”Donnell, Clarke JJ. concurring) in allowing the appeal, that he terms determine and determination were used interchangeably in s. 140(1)(a). The Court was not persuaded as to the arguments based upon European law. No issue of rights had been raised. An appeal could be validly withdrawn under this provision at any time prior to the formulation of the written decision of the Board.
PLANNING & DEVELOPMENT ACT 2000 S50
PLANNING & DEVELOPMENT ACT 2000 S50(A)
FRIENDS OF CURRAGH ENVIRONMENT LTD v BORD PLEANÁLA & ORS 2009 4 IR 451 2006 IEHC 243
PLANNING & DEVELOPMENT ACT 2000 S50(A)(7)
PLANNING & DEVELOPMENT ACT 2000 S37(1)(B)
PLANNING & DEVELOPMENT ACT 2000 S140(1)(A)
PLANNING & DEVELOPMENT ACT 2000 S111(4)
PLANNING & DEVELOPMENT ACT 2000 S111(6)
PLANNING & DEVELOPMENT ACT 2000 S37(1)
PLANNING & DEVELOPMENT ACT 2000 S37(1)(C)
PLANNING & DEVELOPMENT ACT 2000 S133
PLANNING & DEVELOPMENT ACT 2000 S138
PLANNING & DEVELOPMENT ACT 2000 S139
PLANNING & DEVELOPMENT ACT 2000 S132
PLANNING & DEVELOPMENT ACT 2000 S131
LANDELIJKE VERENIGING TOT BEHOUD VAN DE WADDENZEE v STAATSSECRETARIS VAN LANDBOUW (COÖPERATIEVE PRODUCENTENORGANISATIE VAN DE NEDERLANDSE KOKKELVISSERIJ UA, INTERVENING) 2004 ECR I-7405 2005 ALL ER (EC) 353 2005 2 CMLR 31 2005 ENV LR 14 2004 NPC 136 (CASE C-127/02)
MARLEASING SA v LA COMERCIAL INTERNACIONAL DE ALIMENTACION SA 1990 ECR I-4135 1993 BCC 421 1992 1 CMLR 305 (CASE C-106/89)
OXFORD ENGLISH DICTIONARY 2ED 1989 VOL 4
PLANNING & DEVELOPMENT ACT 2000 S34
PLANNING & DEVELOPMENT ACT 2000 S34(1)
PLANNING & DEVELOPMENT ACT 2000 S34(2)(A)
PLANNING & DEVELOPMENT ACT 2000 S34(10)
1. This single judgment deals with the two appeals listed above. They concern the same point of law and arise from practically identical circumstances. In each case, the planning authority had made a decision to grant planning permission, which was appealed to the respondent/appellant, An Bórd Pleanala (hereinafter "the Board"). In each case, the Board met and determined that it would allow the appeal and refuse the application for planning permission. Finally, in each case, the third-party appellant withdrew the appeal before the Board had reduced its determination to the written form of a decision.
2. The point of law is as follows: the Board says that, once it had met and, as it says, "determined" the appeal, there was no appeal remaining which could be withdrawn. The notices of withdrawal of the appeal were ineffective. Its determination of the appeal had the effect of annulling the decision of the planning authority to grant permission. In short, each of the respondents lost the benefit of the planning decision in its favour.
3. The whole matter turns on the language of a small number of provisions of the Planning and Development Act, 2000 (No. 30 of 2000) (from here on referred to as "the Act"). For the Board, it is crucial that the Act uses the word "determine" or its cognates when referring to the act of the Board members, when they meet and conclude whether a permission should or should not be granted. The decision, it says, merely formalises that act: an appeal cannot be withdrawn after the date of the Board's "determination."
4. The respective applicants, in each case, applied for judicial review of the decisions of the Board to refuse them permission, claiming that, in each case, the appeal had been withdrawn before the Board had "decided" it and that the Board's decision had no legal effect. In the second above-name appeal, the appeal of Urrinbridge Limited, MacMenamin J held, in a judgment of 28 th October 2011, that the decision of the Board to refuse permission had been "null and void." He made an order of certiorari, quashing the decision. In the first above-name appeal, that of Ecological Data Centres Limited, Hedigan J, in a judgment delivered on 22 nd January 2013, held that case to be indistinguishable from the earlier case. He also found the decision of MacMenamin J to be correct and granted an order of certiorari.
5. The Board has appealed both cases.
6. On 28 th July 2010, the planning authority, Wicklow County Council, the first-named notice party, made a decision to grant to the respondent in the first-named appeal (hereinafter "Ecologie Data") planning permission for the development of a very substantial technology park on a site between Newtownmountkennedy and Kilpedder near the N11 in County Wicklow. The second to seventh named notice parties appealed that decision to the Board within the statutory period. The second, sixth and seventh named notice parties withdrew their appeal on dates from September 2010.
7. On 15 th March 2011, the Board met and decided to refuse the application for planning permission. On 16 th March 2011, the third, fourth and fifth named notice parties, i.e. all the remaining appellants gave notice in writing withdrawing their appeals.
8. On 18 th March, an officer of the Board wrote to the agent for those appellants stating that the letter withdrawing the appeals had not been received in time and that a decision had already been taken in the case.
9. On 21 st March 2011 the authorised member of the Board gave the Board Direction recording that the matter had been considered by all available Board members on 15 th March 2011, stating that it had decided by a 5:2 majority to refuse permission "generally in accordance with the Inspector's recommendations, in accordance with the following draft reasons and considerations." The document then set out the reasons and considerations. On the same date the Board issued its formal order under its seal in accordance with the Direction.
10. On 7 th October 2010, Wexford County, the first-named notice party, as planning authority decided to grant to the applicant/respondent, in the second appeal (hereinafter "Urrinbridge") planning permission for a substantial residential and commercial development at Bloody Bridge, Lyre, County Wexford.
11. The second-named notice party served notice of appeal to the Board on 7 th October 2010.
12. The Board considered the appeal (including a report from its Inspector) at a meeting of the Board on 25 th January 2011. It determined that it would refuse the application for planning permission.
13. It appears from the affidavit sworn on behalf of Urrinbridge that the second-named notice party had written a letter of withdrawal of her appeal on 21 st January, but this was not delivered to the Board until 28 th January 2011.
14. On 3 l st January 201 l the Board, following a like direction as in the Ecologic Data case, made its order under its seal refusing the permission. By letter dated the l st February, 2011, the Board notified Urrinbridge that an order had been made by the Board determining the appeal and enclosed a copy of the Board's order dated 31 st January, 2011.
15. The essential facts, therefore, are identical. The only extant appeal was withdrawn in each case after the Board, as it says, had "determined" the appeal but before it had embodied that determination in the form of its written decision.
16. Leave to apply for judicial review was granted in each case. As already stated. MacMenamin J and Hedigan J respectively decided in favour of the applicants and made an order quashing each decision of the Board. Since Hedigan J adopted the reasoning of MacMenamin J, it is the latter judgment which needs to be considered.
17. Having referred to the relevant statutory provisions, at paragraph 22, he noted the effect of the Board's...
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