Kildare County Council v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 10 March 2006
• Neutral Citation: [2006] IEHC 173
• Court: High Court
• Date: 10 March 2006

[2006] IEHC 173

THE HIGH COURT

[No. 832 J.R./2005]

KILDARE CO COUNCIL v BORD PLEANALA

IN THE MATTER OF THE ROADS ACT 1993 AND 1998 AND IN THE MATTER OF AN

APPLICATION UNDER SECTION 51 OF THE ROADS ACT 1993 AND IN THE MATTER

OF AN APPLICATION UNDER THE PLANNING AND DEVELOPMENTS ACT 2000–

2004, THE LOCAL GOVERNMENT ACT, 1960 AND THE HOUSING ACT 1966 FOR

CONFIRMATION OF A COMPULSORY PURCHASE ORDER AND IN THE MATTER OF

AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND

DEVELOPMENT ACT 2000

BETWEEN

KILDARE COUNTY COUNCIL

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

ROADS ACT 1993 S51

LOCAL GOVT ACT 1960

HOUSING ACT 1966 S86

PLANNING & DEVELOPMENT ACT 2000 S50

ROADS ACT 1993 S57

ATHY DEVELOPMENT PLAN 2000

ATHY DEVELOPMENT PLAN 1967

ROADS ACT 1993 S51(7)(a)(iii)

PLANNING & DEVELOPMENT ACT 2000 S215

PLANNING & DEVELOPMENT ACT 2000 S213

PLANNING & DEVELOPMENT ACT 2000 S214

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

KENNY v BORD PLEANALA 2001 1 IR 565

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

ARKLOW HOLIDAYS LTD v BORD PLEANÁLA & ORS UNREP HIGH COURT CLARKE 18.1.2006 2006/3/413 2006 IEHC 15

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 ART 14

ROADS ACT 1993 S52

LANNING & DEVELOPMENT ACT 2000 S212

LOCAL GOVT (NO 2) ACT 1960 S10

DALY, STATE v MIN FOR AGRICULTURE 1987 IR 165

SIMONOVICH v AN BORD PLEANALA UNREP LARDNER 24.7.1988 (EX-TEMPORE)

SEERY v BORD PLEANALA UNREPORTED FINNEGAN 2.6.2000 2000/16/6240

RYAN v BORD PLEANALA UNREP HIGH COURT PEART J 6.2.2003 2003/46/11305

O'KEEFFE v BORD PLEANALA 1993 1 IR 631992 ILRM 237

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2002 1 ILRM 321ROADS ACT 1993 S51(5)

PLANNING & DEVELOPMENT ACT 2000 S218(4)

PLANNING & DEVELOPMENT ACT 2000 S135

PLANNING & DEVELOPMENT ACT 2000 S143

PLANNING & DEVELOPMENT ACT 2000 S146

ROADS ACT 1993 S51(5)(a)

ROADS ACT 1993 S51(5)(c)

ROADS ACT 1993 S51(2)

ROADS ACT 1993 S51(3)

ROADS ACT 1993 S50(3)(b)

ROADS ACT 1993 S50(3)(c)

ROADS ACT 1993 S51(4)(a)

ROADS ACT 1993 S51(4)(c)

PLANNING & DEVELOPMENT ACT 2000 PART XI

PLANNING & DEVELOPMENT ACT 2000 S179(3)(b)(ii)

PLANNING & DEVELOPMENT ACT 2000 PART X

TESCO STORES LTD v SECRETARY OF STATE FOR THE ENVIRONMENT 1995 2 AER 636 1995 1 WLR 759

EDINBURGH CITY COUNCIL v SECRETARY OF STATE FOR SCOTLAND 1998 1 AER 174

R v DIRECTOR GENERAL OF TELECOMMUNICATIONS EX PARTE CELLCOM LTD 1999 COD 105

ROADS ACT 1993 S51(4)

ROADS ACT 1993 S50(2)(d)

ROADS ACT 1993 S50(2)(f)

DALY, STATE v MIN FOR AGRICULTURE 1987 IR 165

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

MULHALL v BORD PLEANALA UNREP MCCRACKEN 21.3.1996

AER RIANTA CPT v COMMISSIONER FOR AVIATION REGULATION UNREP O'SULLIVAN 16.1.2003 2003/1/141

EAST DONEGAL CO-OP v AG 1970 IR 317

FRENCHURCH PROPERTIES LTD v WEXFORD CO COUNCIL 1992 2 IR 268

NAVAN TANKER SERVICES LTD v MEATH CO COUNCIL 1998 1 IR 166

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

STACK v BORD PLEANALA & ORS UNREP O'NEILL 11.7.2000 2000/17/6370

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP O'NEILL 7.7.2004

ROADS ACT 1993 S50(1)(b)

BLEWITT v DERBYSHIRE CO COUNCIL 2004 JPL 751

MAHER v BORD PLEANALA 1999 2 ILRM 198

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(b)(i)

KENNY v AN BORD PLEANALA (NO 2) 2001 1 IR 704

R v ROCHDALE METROPOLITAN BOROUGH COUNCIL EX PARTE MILNE 2001 81 P & CR 27

SHARPE LTD v DUBLIN CITY & COUNTY MANAGER 1989 IR 701

NI EILI v ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458NI EILI v ENVIRONMENT PROTECTION AGENCY UNREP SUPREME 30.7.1999 2000/13/4925

TALBOT v BORD PLEANALA & ORS UNREP PEART 21.6.2005 2005/56/11763

CAHILL v SUTTON 1980 IR 269

BRADY v DONEGAL CO COUNCIL 1989 ILRM 282

ABENGLEN PROPERTIES v CORPORATION OF DUBLIN 1984 IR 3811982 ILRM 590

HEAVEY v PILOTAGE COMMITTEE UNREP HIGH COURT BLAYNEY 7.5.1992 1992/7/2088

PLANNING AND ENVIRONMENTAL LAW

Roads

Environmental impact statement - Whether EIS required - Whether EIS adequate -Substantial grounds - Whether substantial grounds established- McNamara v An Bord Pleanála [1995] 2 ILRM 125; Kenny v An Bord Pleanála (No 1) [2001] 1 IR 565; Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; Arklow Holidays Ltd v An Bord Pleanála [2006] IEHC 15, [2007] 1ILRM 125 and O'Keeffe v An Bord Pleanála [1993] 1 IR 39 followed - Roads Act 1993 (No 14), ss, 50, 51 and 52 -Relief refused (2005/832JR - MacMenamin J - 10/3/2006) [2006] IEHC 173 Kildare County Council v An Bord Pleanála

The applicant sought leave to apply for judicial review of a determination by the respondent refusing to approve an application for an Athy Inner Relief Road, made pursuant to section 57 of the 1993 Act and an ancillary decision, to annul a compulsory purchase order made by the applicant for the purpose of the said road. The applicant submitted that the respondent’s determination was unreasonable and irrational and that the respondent erred in law in determining that the project would have an adverse effect on the environment. The applicant also contended that the respondent breached fair procedures by failing to request additional information in connection with the Environmental Impact Assessment and consequently the applicant was deprived of the opportunity to submit additional information in order to remedy the purported deficiency in the Environmental Impact Statement (EIS). Furthermore, it was submitted that the respondent’s decision that the EIS was deficient was irrational.

Held by MacMenamin in refusing the application for leave: That the applicant failed to establish a legal or evidential basis for its contention that the respondent’s determination was unreasonable or that it erred in law. The respondent’s decision that the EIS was deficient was not irrational, there was material before the respondent to enable it to come to the conclusion it arrived at. The respondent did not breach fair procedures. The applicant was aware that the adequacy or inadequacy of the EIS was in question and therefore it was not necessary for the respondent to raise that issue.

Reporter: L.O’S.

1 JUDGMENT of Mr. Justice John MacMenamin dated the 10th day of March, 2006 .

2 1. In these proceedings the applicant seeks leave to apply for judicial review (i) of a determination by the respondent refusing to approve an application for an Athy Inner Relief Road, made pursuant to s. 57 of the Roads Act 1993, and (ii) an ancillary decision, to annul a compulsory purchase order made by the applicant for the purpose of the said Road.

3 In order to place the application for its procedural context its necessary to recite some background detail as it emerged in evidence and insofar as relevant to the issues which arise in these judicial review proceedings. Situated on the River Barrow, the Anglo-Norman town of Athy was laid out at a time when its importance as a market town and regional centre was unchallenged by other centres in the county. Its central square, of eighteenth century origins, provided what is thought to be important civic townscape around which future growth and development evolved. Around the centre point, significant urban building development during took place during the nineteenth century. Substantial parts of that development, still remain in the fabric of buildings both restored and unrestored from that era.

4 2. For almost forty years the applicant has had an objective, to construct an inner relief road or street, to be augmented, ultimately, by an outer relief road or by-pass of the town. While an outer relief road skirting the town was considered, it was not a priority: the project of the inner relief road however remained part of the applicants more immediate plans, included as an objective in the Athy Development Plan published in the year 2000.

5 3. In that plan it was an objective of the applicant to preserve certain sites of archaeological interest; the town centre containing a number of eighteenth century buildings of a public character, and the St. Michael's and St. John's Lane Cemeteries, both of medieval origin. The medieval street lines at Meeting Lane and St. John's Lane were to be retained and reinforced, where necessary with control on building lines. Visual amenities were to be maintained, particularly the special amenity value of the views of the River Barrow upstream and downstream from the ancient Cromaboo Bridge, and from Horse Bridge. So too were views of the River Barrow across open land to the South and North of the town.

6 4. The Development Plan of 2000 contains a list of some sixty 18th and 19th century buildings and shop fronts to be maintained.

7 5. The Plan contains what was termed then an "inner relief street" as a specific objective. The stated need for this was identified in a number of studies from as far back as 1967, including a Development Plan of that year; a 1975 Traffic Study; similar studies in 1996 and 1999, and in consultant reports furnished in 2000 and 2004. The issue also was canvassed in a published plan named the Athy Framework Plan for land use and transportation (enjoying the infelicitous acronym of Athy IFPLUTS).

8 6. The town is situated at the confluence of the N78 National Secondary Road, and the R413, 417 and 428 Regional Roads. It is now said that the road network through the town is substandard, subject to frequent delays and poses an impediment to the future economic development of the town itself and its hinterlands. The present road network weaknesses are said to be compounded by the traffic "vulnerability" of the town in terms of its available crossings of the River Barrow,...