Martin v an Bord Pleanála

• Jurisdiction: Ireland
• Judgment Date: 24 July 2002
• Date: 24 July 2002
• Docket Number: [2002 No. 83 J.R.]
• Court: High Court

High Court

[2002 No. 83 J.R.]

Martin v. An Bord Pleanála

Eric Martin

Applicant

and

An Bord Pleanála, Ireland, The Attorney General, Respondents and Indaver Ireland Limited, Notice Party

Cases mentioned in this report:-

American Cyanimid v. Ethicon [1975] A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504.

Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88; [1984] I.L.R.M. 85.

Gordon v. Director of Public Prosecutions [2002] 2 I.R. 369.

O'Neill v. Ryan [1990] 2 I.R. 200; [1990] I.L.R.M. 140 (High Court); [1993] I.L.R.M. 557 (Supreme Court).

Pesca Valentia v. Minister for Fisheries [1985] I.R. 193; [1986] I.L.R.M. 68.

R. v. Association of Future Brokers and Dealers Ltd. [1991] C.O.D. 40; [1991] 3 Admin L.R. 254.

R. v. Bow Street Metropolitan Stipendiary Magistrate Exp. Nencyp Ltd. [1990] 1 Q.B. 123; [1988] 3 W.L. R. 827.

Rewe-Handelsgesellschaft Nord GmbH v. Hauptzollamt Kiel (Case 158/80) [1981] E.C.R. 1805; [1982] 1 C.M.L.R. 449.

Rewe-Zentralfinanz v. Landwirtschaftskammer (Case 33/76) [1976] E.C.R. 1989; [1977] 1 C.M.L.R. 533.

Ryanair Ltd. v. Aer Rianta C.P.T. (Unreported, High Court, Kelly J., 25th January, 2001).

Von Colson and Kamann v. Land Nordrhein-Westfalen (Case 14/83) [1984] E.C.R. 1891; [1986] 2 C.M.L.R. 430.

Practice - Stay pending trial - Judicial review - Planning inquiry - Appeal - Whether stay on oral hearing should be granted - Whether finding of arguable case in judicial review proceedings entitles case to be dealt with as automatically comprising serious issue - Whether special principles applicable to claims relating to European law - Whether serious question to be tried - Whether applicant's undertaking as to damages adequate - Whether balance of convenience favours grant of stay - Environmental Protection Agency Act, 1992 (No. 7), s. 98 - Planning and Development Act, 2000 (No. 30), s. 37 - Council Directive 85/337/E.E.C. - Council Directive 97/11/E.C.

Motion on notice.

The facts are summarised in the headnote and are more fully set out in the judgment of O'Sullivan J., infra.

On the 18th February, 2002, the High Court (McKechnie J.) granted the applicant leave to institute judicial review proceedings against the respondents. However, in relation to the application for a stay of the planning appeal pending before the first respondent, the court ordered that a motion on notice together with a copy of the statement grounding the application for judicial review be served on the respondents and the notice party to the action, returnable for the 5th March, 2002.

The application for a stay came before the High Court (O'Sullivan J.) on the 26th June, 2002.

A local authority had granted planning permission to the notice party to construct an incinerator. This development also required an integrated pollution control licence under the terms of the Environmental Protection Agency Act, 1992. The applicant was a member of an unincorporated body which had commenced an appeal of the grant of planning permission to the first respondent. In furtherance of this appeal, the first respondent published a notice seeking submissions from members of the public, on matters other than the risk of environmental pollution from the development, as stipulated by s. 98 of the Act of 1992. This section, in part, incorporated into Irish law the provisions of Council Directive 85/337/E.E.C., as amended by Council Directive 97/11/E.C.

The applicant was granted leave to apply by way of judicial review for a number of reliefs, including an order of certiorari quashing the published notice on the grounds that the said directives had not been correctly transposed into Irish domestic law. The applicant then sought a stay on any further consideration by the first respondent of the appeal pending determination of the judicial review.

The applicant argued that as the case concerned alleged defects in the domestic transposition of European law and, given the strength of the applicant's case in relation to same and the fact that no application had been brought to set aside the leave granted to bring judicial review proceedings, the traditional principles relating to the grant of interlocutory injunctions should not apply.

Held by the High Court (O'Sullivan J.), in refusing the application for a stay, 1, that the applicant was not estopped from seeking a stay on the hearing of the appeal by reason of his membership of the appellant association. The applicant was entitled both to be associated with an appeal and to an assurance that the appeal process was being conducted in accordance with European law.

2. That, where an applicant had been granted leave to seek judicial review and there had been no application to have that order set aside, it would be improper for a court to draw any inference that the applicant's case was entitled to be treated as automatically comprising a serious issue to be tried. The usual rules relating to the grant of interlocutory injunctions remained applicable.

Gordon v. Director of Public Prosecutions [2002] 2 I.R. 369considered; Ryanair Ltd. v. Aer Rianta C.P.T. (Unreported, High Court, Kelly J., 25th January, 2001) approved.

3. That where interlocutory relief was sought, the law did not recognise any principles other than those set down by the Supreme Court in Campus Oil v. Minister for Industry (No. 2). No special consideration attached to claims that an applicant's rights under European law were being frustrated. Further, it was not appropriate for the court to assess the relative strengths of the applicant's case in this regard.

Von Colson and Kamann v. Land Nordrhein-Westfalen (Case 14/83) [1984] E.C.R. 1891; O'Neill v. Ryan[1990] 2 I.R. 200 (H.C.); [1993] I.L.R.M. 557 (S.C.); Pesca Valentia Ltd. v. Minister for Fisheries[1985] I.R. 193;Rewe-Handelsgesellschaft Nord GmbH v. Hauptzollamt Kiel (Case 158/80) [1981] E.C.R. 1805; Ryanair Ltd. v. Aer Rianta C.P.T. (Unreported, High Court, Kelly J., 25th January, 2001) andCampus Oil v. Minister for Industry (No. 2)[1983] I.R. 88 approved.

4. That the applicant's undertaking as to damages was merely a pro forma compliance with that requirement for the grant of an interlocutory injunction. The applicant had not presented the court with sufficient detail to assess it as a realistic undertaking when balanced against the prospective losses of the notice party.

5. That the inconvenience which could arise by interfering with the procedure of a statutory authority and the respect which the court should afford to the existing legislative regime of the State were particularly appropriate factors in determining where the balance of convenience lay. It would take something almost overwhelming for a court to suspend the continued application of domestic law pending a trial.

Pesca Valentia v. Minister for Fisheries [1985] I.R. 193 distinguished; R. v. Association of Future Brokers and Dealers Ltd. [1991] C.O.D. 40 approved; R. v. Bow Street Metropolitan Stipendiary Magistrate [1990] 1 Q.B. 123 considered.

Cur. adv. vult.

O'Sullivan J. 24th July, 2002

Introduction

The applicant is a resident of Duleek, County Meath who challenges the validity of the statutory procedures, in particular, the intended holding of an oral hearing by the first respondent, which is the statutory planning appeals authority, whereby it is processing appeals to it by several parties against a decision of Meath County Council as local planning authority to grant, subject to conditions, planning permission for the construction by the notice party of an incinerator near Duleek. In addition to planning permission, the notice party will also require an integrated pollution licence from the Environmental Protection Agency before commencing waste processing at the plant. The applicant is a member of an unincorporated body known as the No Incineration Alliance, which body has appealed the planning decision of Meath County Council to the first respondent. The applicant is not an appellant in his own right, as an individual, apart from being a member of the No Incineration Alliance.

On the 28th December, 2001, the first respondent published a notice inviting submissions from the public in relation to the said appeal as part of its environmental impact assessment of the proposed development. This assessment is intended to be carried out under domestic statutes and regulations incorporating the relevant European directives, to which I will refer in more detail at a later point. At this point it is sufficient to note that the public notice requested submissions or observations from the public on mattersother than the risk of environmental pollution from the activity.

The first respondent has intimated, in addition, an intention to hold an oral hearing into the appeals before it.

By application made to the High Court (McKechnie J.) on the 18th February, 2002, the applicant applied ex parte, for leave to apply by way of judicial review for a number of reliefs including an order of certiorari quashing the published notice of the first respondent, a declaration that the procedures proposed by the first respondent are in conflict with the relevant environmental impact assessment directives, a declaration that the latter have not been correctly transposed into Irish domestic law and for a stay on any further consideration by the first respondent of the appeals pending determination of these proceedings.

Liberty was granted on the said date by the High Court (McKechnie J.) to seek the aforesaid reliefs but, in relation to the application for a stay, the court ruled that the same should be made by way of motion on notice to the parties to the action. Accordingly, a motion was issued on the 26th April, 2002 and the matter came on for hearing before this court.

The challenge

The key challenge to the first respondent's procedures is that by splitting consideration of the effect of a development such as an incinerator between the first...