Friends of the Curragh Environment Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 08 December 2006
• Neutral Citation: [2006] IEHC 390
• Docket Number: No. 240 J.R./2006
• Court: High Court
• Date: 08 December 2006

FRIENDS OF THE CURRAGH ENVIRONMENT LTD v BORD PLEANALA

JUDICIAL REVIEW

BETWEEN/

FRIENDS OF THE CURRAGH ENVIRONMENT LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

THE TRUSTEES OF THE TURF CLUB, KILDARE COUNTY COUNCIL, PERCY PODGER AND ASSOCIATES, GERALDINE MAC CANN

NOTICE PARTIES

[2006] IEHC 390

No. 240 J.R./2006

No. 38 COM/2006

THE HIGH COURT

PLANNING & DEVELOPMENT ACT 2000 S50

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

PLANNING & DEVELOPMENT REGULATIONS 2001 SI 600/2001 ART 103

EEC DIR 85/337

BOLAND v BORD PLEANALA 1996 3 IR 435

PLANNING & DEVELOPMENT ACT 2000 S50 (4)(b)

PLANNING & DEVELOPMENT ACT 2000 S50 (4)(c)

RSC O.84 r20(4)

RYANAIR LTD v AN BORD PLEANALA 2004 2 IR 334

HARRINGTON v BORD PLEANALA & ORS 2006 1 IR 388 2005/29/5917 2005 IEHC 344

O'BRIEN v DUN LAOGHAIRE/RATHDOWN CO COUNCIL UNREP O'NEILL 1.6.2006 2006/44/9478 2006 IEHC 177

HARDING v CORK CO COUNCIL & BORD PLEANALA UNREP CLARKE 12.10.2006 2006/28/5912 2006 IEHC 295

LANCEFORT LTD v AN BORD PLEANALA (NO 2) 1999 2 IR 270

PLANNING & DEVELOPMENT ACT 2000 S37(1)(a)

PLANNING & DEVELOPMENT ACT 2000 S173(1)

PLANNING & DEVELOPMENT ACT 2000 S3

PLANNING & DEVELOPMENT ACT 2000 S32(1)

PLANNING & DEVELOPMENT ACT 2000 S33

PLANNING & DEVELOPMENT ACT 2000 S34

EEC DIR 85/337 ART 2

R (ON THE APPLICATION OF CANDLISH) v HASTINGS BOROUGH COUNCIL 2005 EWHC 1539 (ADMIN)

PLANNING & DEVELOPMENT ACT 2000 S34(5)

EEC DIR 85/337 ART 10(a)

EEC DIR 2003/35

Ms. Justice Finlay Geoghegan

1 The applicant seeks, leave to apply for judicial review seeking,inter alia orders of certiorari quashing two decisions of An Bord Pleanála (PL 09.213787 and PL 09.213791) whereby it granted permission on 18th January, 2006, for (a) the re-alignment of approximately one kilometre of roadway on the Curragh of Kildare and (b) the demolition of the western half of the west stand at the Curragh Racecourse and construction of a 72-bedroom hotel and ancillary facilities.

2 The first named notice party (the Turf Club) was the applicant for such permissions from the second named notice party as planning authority. Permission had been granted by the second named notice party. Appeals were lodged against those permissions to the respondent by,inter alia, Percy Podger & Associates on behalf of the applicant.

3 This application is subject to s. 50 of the Planning and Development Act,2000. The motion seeking leave was issued on 2nd March, 2006. Subsequently an application was made on behalf of the Turf Club seeking admission to the Commercial List which was granted. In the initial hearing for directions the unsatisfactory nature of the original statement of grounds was raised and the applicant was given leave to file and serve an amended statement of grounds. That was done on 6th April, 2006. The amended statement of grounds is alleged to include additional grounds to those identified in the original application and grounding affidavit of Percy Podger. In addition, a further affidavit of Gerard Griffin sworn on 7th April, 2006, was filed on behalf of the applicant.

4 In response to these documents a notice of motion was issued on behalf of the respondent on 26th April, 2006, effectively seeking to preclude the applicant from relying on the additional grounds in the amended statement of grounds filed on 7th April, 2006.

5 At the leave hearing, it was accepted on behalf of the applicant that it would confine its application for leave to the grounds, which are set out below. In those circumstances counsel for the respondent indicated that it was not proceeding with its motion of 26th April, 2006.

6 The applicant had also included in its original motion an application for a protective costs order. That application was heard as a preliminary issue and on 14th July, 2006, Kelly J. refused such application for the reasons set out in his judgment of that date. He also decided certain issues relevant to this application.

7 The Turf Club is engaged in the redevelopment of the Curragh Racecourse complex. This redevelopment is being undertaken under the auspices of a "Master Plan". It is stated that the Master Plan aims to create a modern racing complex with improved stands, visitor facilities and stables. The first phases of the redevelopment are the realignment of the existing Curragh Road, R.413, to the north to loop around the existing hotel and other facilities, the demolition of part of the existing stand and construction of a 72 bedroom hotel and ancillary facilities.

8 Two separate applications were lodged with the second named notice party in respect of the proposed road realignment on 23rd December, 2004 and in respect of the demolition of half of the existing west stand and construction of a 72-bedroom hotel and ancillary facilities on 21st December, 2004. As already stated, permission was granted for each of the above subject to conditions. Appeals were lodged by several parties including on behalf of the applicant.

9 It is common case that there are further intended phases in the redevelopment. As part of the redevelopment, it is also proposed to construct a new main stand. A planning application for such development has been lodged.

10 The Turf Club submitted one environmental impact statement (EIS) in relation to the applications for permissions for the road realignment and hotel development. It is also common case that an EIS was not mandatory having regard to the thresholds set by the Planning and Development Act,2000and the Planning and Development Regulations, 2001 for the road realignment and hotel developments, viewed either individually or collectively. Article 103 of the Planning and Development Regulations, 2001 permits an EIS for a sub-threshold development. In the EIS it is stated:

"On the basis of the cumulative impact of all elements, the proposed second phase of development as part of the overall Master Plan and the sensitive location of the proposed developments on the edge of the Curragh plains, it was deemed appropriate to prepare an EIS in this instance."

11 The EIS submitted is stated primarily to assess the two applications to the planning authority in December, 2004. The environmental impact assessment carried out was only of the two proposed developments for which permissions were sought and obtained. The failure of the respondent to assess the impact on the environment of the overall Master Plan for the Curragh Racecourse prior to making decisions on the two appeals relating to the road realignment and hotel development is central to the first ground on which the applicant seeks to challenge the validity of the decisions of the respondent.

12 The grounds pursued by the applicant at the hearing of the application for leave may be summarised as follows:

13 1. The respondent acted in breach of Council Directive 85/337/EEC as amended in failing to carry out an environmental impact assessment of the overall Master Plan for the redevelopment of the Curragh Racecourse prior to reaching its decisions on the two appeals sought to be challenged herein. This ground was referred to as the "project splitting" ground.

14 2. Certain of the conditions attached to the respondent's decisions are alleged to constitute an unlawful delegation by the respondent to the planning authority. These conditions require agreement to be reached between the Turf Club and the planning authority in respect of certain matters. It is contended that the matters so delegated are not matters of detail and contrary to the principles set out by the Supreme Court inBoland v. An Bord Pleanála [1996] 3 I.R. 435. It is also contended that such delegation and conditions are contrary to the EIA and public participation requirements of Directive 85/337 EEC as amended. These were referred to as “the condition grounds”.

15 The application for leave is subject to s. 50 of the Planning and Development Act,2000(as amended). Section 50(4)(b) prohibits the High Court from granting leave unless it is satisfied that:

16 i i. there are substantial grounds for contending that the decision is invalid or ought to be quashed; and

17 ii ii. the applicant has a substantial interest in the matter, which is the subject of the application.

18 Section 50(4)(c) so far as relevant further provides:

"Without prejudice to the generality ofparagraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that —"

…

(i) the applicant —

…

19 (III) in the case of a decision of the Board on any appeal or referral, was a party to the appeal or referral or is a prescribed body or other person who made submissions or observations in relation to that appeal or referral.

…

or

20 (ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies, there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be."

21 Paragraph (d) of sub-s. 50(4) provides:

"A substantial interest for the purposes ofparagraph (b) is not limited to an interest in land or other financial interest."

22 The respondent and notice party submit that the applicant herein has not established that it has a substantial interest in the matters which are the subject of this application and have invited the Court to refuse leave on this ground alone, irrespective of its conclusion on the existence of substantial grounds for contending that the decisions are invalid or ought to be quashed.

23 The applicant submits that it has a substantial interest in the matters the subject matter of this application because of the following facts:

24 1. It is a company limited by guarantee, which is an environmental non-governmental organisation whose interest lies in the protection of the environment especially of the Curragh of...