Hynes v Wicklow County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 15 May 2003
• Neutral Citation: 2003 WJSC-HC 6345
• Court: High Court
• Docket Number: [1999 No. 359
• Date: 15 May 2003

2003 WJSC-HC 6345

THE HIGH COURT

NO. 359 JR/1999

HYNES v. WICKLOW CO COUNCIL & ARKLOW URBAN DISTRICT COUNCIL (UDC)

JUDICIAL REVIEW

BETWEEN

JEREMY HYNES AND BRENDAN HYNES

APPLICANTS

AND

WICKLOW COUNTY COUNCIL

FIRST NAMED RESPONDENT

AND

ARKLOW URBAN DISTRICT COUNCIL

SECOND NAMED RESPONDENT

Citations:

RSC O.84 r22

RSC O.84 r23

RSC O.84 r22(4)

LOCAL GOVT (PLANNNING & DEVELOPMENT) ACT 1976 S39

LOCAL GOVT ACT 1963 S22

LOCAL GOVT (PLANNNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 23

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

LOCAL GOVT (PLANNNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 23(1)

LOCAL GOVT (PLANNNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 15

LOCAL GOVT (PLANNNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 16

EEC DIR 85/337

COUNTY MANAGEMENT ACT 1940 S3(1)

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

R V SUSSEX JUSTICES EX PARTE MCCARTHY 1924 1 KB 256

ORANGE COMMUNICATIONS LTD V DIRECTOR OF TELECOMMUNICATIONS REGULATION & METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159 2000/15/5538

R V BOW STREET METROPOLITAN STIPENDARY MAGISTRATE EX PARTE PINOCHET UGARTE (NO 2) 1999 2 WLR 272, 1999 1 AER 577

SPIN COMMUNICATIONS LTD V IRTC 2001 IR 411

BULA LTD V TARA MINES LTD (NO 6) 2000 4 IR 412

RADIO LIMERICK 1 LTD V IRTC 1997 2 IR 217

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

LOCAL GOVT (PLANNNING & DEVELOPMENT) ACT 1976 S32

LOCAL GOVT (PLANNNING & DEVELOPMENT) ACT 1976 S33

RSC O.84

COUNTY MANAGEMENT ACT 1940 S7

CORRIGAN V IRISH LAND COMMISSION 1977 IR 317

O'BYRNE V MIN FINANCE 1950 IR 1

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART 7

PLANNING ACT 2000 PART 5

CONSTITUTION ART 26

DUBLIN & COUNTY BROADCASTING LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) UNREP MURPHY 12.5.1989 (NOT AVAILABLE)

O'BRIEN V BORD NA MONA 1983 IR 255

MCNAMARA V AN BORD PLEANALA 1996 2 ILRM 339

NI EILI V ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458

KSK ENTERPRISES V AN BORD PLEANALA 1994 2 ILRM 1

HOGAN V WATERFORD COUNTY MANAGER UNREP HERBERT 30.4.2003

PLANNING ACT 2000 S26

PLANNING ACT 2000 S26(1)

P & F SHARPE V DUBLIN CITY MANAGER 1989 IR 701 1989 ILRM 565

CHILD V WICKLOW CO COUNCIL 1995 2 IR 447

CARTY & CARTY CONSTRUCTION V FINGAL CO COUNCIL 1999 3 IR 577

BALLYBAY MEAT EXPORTS LTD V MONAGHAN CO COUNCIL 1990 ILRM 864

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

HUNTSGROVE DEVELOPMENTS LTD V MEATH CO COUNCIL 1994 2 ILRM 36

O'BRIEN V SOUTH TIPPERARY CO COUNCIL UNREP O'CAOIMH 22.10.2002 2002/21/5376

O'DONOGHUE V VETERINARY COUNCIL 1975 IR 398

DELANEY JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2001 170

RSC O.84 r18

RSC O.19

RSC O.84 r18(1)

RSC O.84 r18(2)

RSC O.20 r3

RSC O.21 r1

EEC DIR 80/66

WASTE MANAGEMENT ACT 1996 S39

LOCAL GOVT (PLANNING & DEVELOPMENT) (NO 3) REGS 1997 SI 261/1997

RSC O.84 r23(2)

AHERN V MIN INDUSTRY 1990 1 IR 55

RSC O.125

RSC O.28

MOLLOY V GOVERNOR OF LIMERICK PRISON UNREP SUPREME 12.7.1991 1991/13/3186

BRADLEY JUDICIAL REVIEW 2000 PAR 11.63

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1998 705

G V DPP 1994 1 IR 734

MCCORMACK V GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 503

O'LEARY V MIN TRANSPORT 2000 1 ILRM 391

DOONER V GARDA SIOCHANA COMPLAINTS BOARD UNREP FINNEGA 2.6.2000 2000/6/2040

TONER V IRELAND UNREP KINLEN 11.2.2000 2000/17/6528

RAJAH V RCSI 1994 IR 384 1994 1 ILRM 233

AQUATECHNOLOGIE V NATIONAL STANDARDS AUTHORITY OF IRELAND UNREP SUPREME 10.7.2000 2000/1/209

WHITE V IRELAND UNREP KINLEN 21.12.93 1995/5/1708

Synopsis:

PRACTICE AND PROCEDURE

Judicial review

Pleadings - Amendment of pleadings - Application to amend pleadings to include claim of bias - Whether pleadings sufficiently precise to allow claim for bias - Delay - Whether delay in applying to amend pleadings - Whether additional facts known to applicant at time leave granted - Whether such delay adequately explained - Whether amendment of pleadings should be allowed - Rules of the Superior Courts, 1986 Order 84, rule 23 (1999/359JR - Murphy J - 15/5/2003)

Hynes v Wicklow County Council - [2003] 3 IR 66

the applicants had been granted leave to quash the decision of the first respondent to grant planning permission to the second respondent for water treatment works by way of judicial review on the basis of eleven grounds set out in the statement of grounds, none of which included a specific claim that the decision had been motivated by bias. At the substantive hearing, the applicants applied for a procedural determination by the court as to whether the pleadings, as constituted, allowed them to argue the issue of legal bias in relation to the dual role of the assistant county manager in promoting the works on behalf of the second respondent and in granting permission on behalf of the first respondent. In the event of the court finding that the existing pleadings did not include bias, the applicants sought leave to apply for an amendment to the pleadings to include such a claim.

1 Judgment of Mr. Justice Roderick Murphy dated the 15th day of May, 2003.

1. OUTLINE

2 In the course of judicial review proceedings an issue arose in relation to the pleading of bias which the court is asked to determine. The proceedings seek an order of certiorari in relation to a decision dated 13 ^th July, 1999 of the first named respondent ("Wicklow") to grant permission to the second named respondent for waste water treatment works to be undertaken by Arklow ("Arklow") for its benefit and the benefit of Wicklow within the Wicklow area. In the event of the court finding that the existing pleadings did not include bias, the applicants ask for leave to apply for amendment.

3 There are before the Court two motions issued in relation to this matter: 1999 No. 358 and 1999 No. 359. It was agreed between the parties that both matters would be dealt with together under the above heading.

4 Arguments had been made at the opening of the hearing in relation to the issue of bias which, though objected to by Counsel on behalf of the first and second named respondent, and without prejudice to that objection, were responded to by them.

5 The Court is accordingly, asked to deal with the following points:

6 (a) Whether the pleadings, as constituted, allow the applicants to argue the issue of legal bias in relation to the dual role of the Assistant County Manager in promoting the project on behalf of Arklow and in granting permission on behalf of Wicklow on 13 ^th July, 1999.

7 (b) If the pleadings do not allow arguments in relation to bias whether the application to amend the pleadings by the inclusion of bias will be allowed.

8 Submissions of the parties to both points were made. The Court was requested to deal with the substantial claim of bias as well as the procedural motion in the event of the applicant succeeding.

2. PROCEEDINGS

9 Application for judicial review by notice of motion dated 10 ^th September, 1999 was returnable for 8 ^thNovember, 1999. The statement of grounds sought four specific reliefs: certiorari and three declarations on the basis of eleven grounds.

10 Voluntary discovery was agreed in December, 1999. A motion, dealt with by consent order, was made in January 2000.

11 There were delays in making discovery. A motion for further and better discovery was dealt with on the 5 ^th and 12 ^thOctober, 2000.

12 A year after application was made on the 10 ^th November, 2000 Finnegan J. (as he then was) ordered that before Tuesday the 14 ^th November, 2000 the applicants file an amended grounding statement setting out in full the relief claimed therein and granted leave to apply by way of application for judicial review for the relief claimed on the eleven grounds set forth in paragraphs (i) – (xi) of the statement of grounds.

13 The note to the Order of 10 ^th November, 2002 stated that "the applicant is required to comply with Order 84 Rules 22 and 23 of the Rules ... and to notify the respondent/notice party of the provisions of Order 84 Rule 22 (4)."

14 On the 13 ^th November, 2000 an amended statement of the same four reliefs was filed.

3. GROUNDS

15 The applicant herein is seeking judicial review of the decision of Wicklow County Council on the 13 ^th day of July, 1999 granting planning permission to the second named respondent for development at Seabank, Arklow in the County of Wicklow on the grounds for which leave was granted by Finnegan J. on 10 ^th November, 2000.

16 No further leave was sought nor granted to amend the grounds upon which relief was sought. The grounds of the amended statement of 13 ^th November, 2000 were substantially the same as those included in the application of 10 ^th November, 1999.

17 The grounds for which leave was granted are as follows:

18 (i) That the first named respondent failed to comply with the requirements of section 39 of the Local Government (Planning and Development) Act, 1976as amended by Section 22 of the Local Government Act, 1963as amended (sic)

19 (ii) Article 23 of the Local Government (Planning and Development) Regulations, 1994 (sic).

20 (iii) That the first named respondent failed to comply with the provisions of the Environmental Impact Assessment Regulations, 1989.

21 (iv) That the first named respondent failed to comply with the requirements of Article 23(1) of the Local Government (Planning and Development) Regulations, 1994 and thereby deprive the applicant herein of his rights under the Planning Acts to consider the effects of the development and under the Constitution to protect the property rights.

22 (v) That the first named respondent failed to comply with the provisions of Article 15 and Article 16 of the Local Government (Planning and Development) Regulations, 1994 in that the content of the public notice published in the newspaper and erected on the site of the proposed development was misleading in that...