Malone v Mayo County Council

JurisdictionIreland
JudgeMr Justice Cregan
Judgment Date05 May 2017
Neutral Citation[2017] IEHC 300
CourtHigh Court
Docket Number[2016 No. 982 JR]
Date05 May 2017
BETWEEN
DAVID MALONE
APPLICANT
AND
MAYO COUNTY COUNCIL
RESPONDENT
AND
PWWP DEVELOPMENTS LIMITED

AND

AN BORD PLEANÁLA
NOTICE PARTIES

[2017] IEHC 300

[2016 No. 982 JR]

THE HIGH COURT

Practice & Procedures – Jurisdiction to set aside leave orders – O.84, r. 20 (3) of the Superior Courts – Requirement to pled judicial review with precision

Facts: The applicant was granted leave to seek the judicial review of the decision of the respondent for granting planning permission to the first notice party in relation to the proposed development. The first notice party and the respondent ('parties'), by way of two separate applications, sought an order for setting aside the said leave orders. The parties argued that the statement of ground filed by the applicant did not disclose any reasonable ground for judicial review.

Mr. Justice Cregan set aside the grant of leave orders. The Court held that the applicant had not explained the statement grounds with precision and had not provided any particulars where appropriate. The Court found that the statement of grounds were vague, confusing and lacked clarity. The Court held that the applicant had failed to meet the test laid down under o.84, r. 20 (3) of the Superior Courts for pleading judicial review with precision.

JUDGMENT of Mr Justice Cregan delivered on 5 th day of May, 2017.
Introduction
1

There are two applications before this Court: the first is an application by PWWP Developments Ltd., the first-named notice party in these proceedings and the second is an application by Mayo County Council, the respondent in these proceedings. In essence, both of these applications are applications to set aside the grant of leave to apply for judicial review against decisions of the respondent, granted by order of the High Court (Noonan J.) on 30 th January 2017, and also for orders striking out the statement required to ground the application for judicial review for failing to disclose any proper grounds for judicial review. In broad terms the applicant seeks to quash six planning permissions granted to the notice party in respect of works connecting wind farms to the national grid.

The course of the hearing
2

These applications were heard on three separate occasions before me. On the first occasion I heard submissions from counsel on behalf of Mayo County Council and PWWP Developments and also from counsel on behalf of the applicant. Towards the close of the first hearing I indicated to the parties that some consideration should be given to permitting the applicant to amend his statement of grounds. This was because the applicant had submitted that in fact his grounds of judicial review were to be found both in the statement of grounds and in the affidavit grounding the application for leave to issue judicial review proceedings. The parties then agreed that the applicant should have an opportunity to reconsider his statement of grounds and to amend his statement of grounds by importing from the relevant grounding affidavit those factual and/or legal matters which he said were relevant to the statement of grounds, (on the express direction that no new legal grounds would be added to the statement of grounds). The matter was then adjourned for a week to permit the applicant to do this.

3

On the second occasion when the matter was before the Court, I again heard submissions from all parties in respect of the issue. There were still problems with the statement of grounds. The respondent and the notice party submitted that the second draft of the statement of grounds still had not identified with any particularity the legal grounds of the applicant's case. When questioned about this, counsel for the applicant submitted that these grounds were to be found in his legal submissions and that he did not realise that the Court direction required him not only to set out the appropriate factual matters from the affidavit, but also the appropriate legal grounds in his statement of grounds. I found this submission surprising as I thought that my direction had been clear, but in order to avoid doing an injustice to the applicant and in order to give him the benefit of the doubt, I adjourned the matter to a third occasion to permit the applicant to file a third draft of the statement of grounds - to include all relevant factual issues drawn from the relevant affidavit and also all relevant legal grounds to be drawn from the legal submissions. Again, I indicated that no new grounds were to be added and the applicant was restricted to those grounds for which he had sought and obtained leave to issue judicial review proceedings from Noonan J. on 30 th January 2017. I also indicated that all relevant amendments were to be underlined.

4

This matter then came before the Court on the third occasion and the matter was argued before me for a further period of two and a half hours.

Jurisdiction to set aside leave orders
5

It is common case that the Court has a jurisdiction to set aside leave orders although this is a jurisdiction which ought to be exercised sparingly.

6

In Adam v. Minister for Justice [2001] 3 I.R. 53 Hardiman J. stated that an application to set aside an order granting leave was not in any sense an appeal from the judge of the High Court who granted the original leave. As he stated at p. 77:

'In my view, any order made ex parte must be regarded as an order of a provisional nature only. In certain types of proceedings, either the apparent requirements of justice or the requirements of its administration mean that a person will be affected in one way or another by an order made without notice to him and therefore without his having been heard. This state of affairs may, depending on the facts, constitute a grave injustice to the defendant or respondent. In the context of an injunction, only a very short time will normally elapse before the defendant has some opportunity of putting his side of the case. In judicial review proceedings the time before this can occur will normally be much longer. This clearly has the scope to work an injustice at least in some cases.'

Requirement to plead a judicial review with precision
7

Order 84 rule 20 (3) as amended provides:

'It shall not be sufficient for an applicant to give as any of his grounds for the purposes of paragraphs (ii) or (iii) of sub-rule (2) (a) an assertion in general terms of the ground concerned, but the applicant should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground.'

8

This is the relevant test which I have to consider in this case.

9

Likewise in A.P. v. DPP [2011] IESC 2 Murray C.J. stated:

'5. In the interests of the good administration of justice it is essential that a party applying for relief by way of judicial review set out clearly and precisely each and every ground upon which such relief is sought. The same applies to the various reliefs sought.

6. It is not uncommon in many such applications that some grounds, and in particular the ultimate ground, upon which leave is sought are expressed in the most general terms as to the alleged frailties of the decision or other act being impugned, rather in the nature of a rolled up plea, and alluding generally to want of legality, fairness or constitutionality. This can prove to be quite an unsatisfactory basis on which to seek leave or for leave to be granted particularly when such a ground is invariably accompanied by a list of more specific grounds.'

10

I have also considered the judgment of Barr J. in McNamara v. An Bord Pleanála [1996] 2 ILRM 339 where Barr J. referring to the Supreme Court decision in K.S.K Enterprises Ltd. v. An Bord Pleanála [1994] 2 I.R. 128 stated as follows at page 351:

'Ground (e) is a broad, general "catch all' plea which tells the developer little or nothing as to the actual nature and basis for the challenge and what it should do to meet the case which will be presented against it on judicial review. Ground (a) is also too wide and ought to have specified in what respect the EIS was alleged to be defective and/or failed to comply with statutory requirements. The applicant is not entitled to rely on a general complaint about the EIS as an umbrella to justify subsequent specific allegations not notified as grounds within time. As to ground (f); this raises a fundamental argument that the board's decision in granting permission was irrational and therefore void. However, the allegation of irrationality as formulated in ground (f) which is confined to traffic only, is in general terms and lacks specifics. In my view it does not comply with the statutory requirements as to notification of grounds of objections in time.'

The reliefs sought
11

The reliefs sought by the applicant, as set out in the statement of grounds are:

1

An order of certiorari by way of application for judicial review quashing the determinations of the Respondent to grant planning permissions for (PL16/467, PL16/468, PL16/469, PL16/470 PL16/471 and PL16/472) in respect to the connection to the National Grid via the Cloontooa Wind Farm substation under PL16/467 and PLI 6/468 all made on 1st November 2016.

2

A declaration that the decisions of the Respondent were in breach of and contravene the EIA Directive 2011/92 EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment ('the codified Environmental Impact Assessment (EIA) Directive'), and the jurisprudence of the European Court of Justice (ECJ) and the Court of Justice of the European Union (CJEU).

3. An Order of Mandamus compelling the Respondent to comply with its statutory duties under the following European and National Law:

a) Articles 3 and 9 (I) of the European codified EIA Directive 2011/92/EU;

b) The European Union...

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