Maxol Ltd v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Clarke |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] IEHC 537 |
| Court | High Court |
| Date | 21 December 2011 |
BETWEEN
AND
AND
[2011] IEHC 537
THE HIGH COURT
PLANNING & DEVELOPMENT LAW
Planning permission
Locus standi - Substantial interest - Interpretation of "substantial interest" - Challenge to validity of planning decision - Waste water treatment - Whether locus standi - Whether substantial interest - Whether planning decision invalid by virtue of mistake - Whether entitled to leave - Whether relevant issue raised during planning process - Lancefort Ltd v An Bord Pleanála (No 2) [1999] 2 IR 270; Dreher v Irish Land Commission [1984] ILRM 94 and Harding v Cork County Council [2006] IEHC 295; [2008] IESC 27, [2008] 4 IR 318 considered - Planning and Development Act 2000 (No 30), s 50A - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s 13 - Planning and Development (Amendment) Act 2010 (No 30), s 32 - Environment (Miscellaneous Provisions) Act 2011 (No 20), s 20 - Environment (Miscellaneous Provisions) Commencement of Certain Provisions) Order 2011 (SI 433/2011) - Leave refused (2011/242JR - Clarke J - 21/12/2011) [2011] IEHC 537
Maxol Ltd v An Bord Pleanála
Facts: The applicant Maxol had sought to appeal a grant of planning permission seeking to build a second petrol station on a site adjacent to a Maxol garage. Maxol sought to challenge the decision of the respondent to grant the permission. A telescoped hearing was held and the Court had to consider whether Maxol was entitled to leave and whether it could succeed. Question had arisen inter alia in the proceedings in relation to the adequacy of the waste and water treatment infrastructure and ambiguity in the grant of permission. The Court considered whether Maxol had locus standi to institute the proceedings.
Held by Clarke J. that Maxol lacked standing to maintain the proceedings and leave for judicial review would accordingly be refused. It could not make out a case for substantial grounds having regard to the fact that those grounds applied equally to other residents or business locally also.
PLANNING & DEVELOPMENT ACT 2000 S50(A)
PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13
PLANNING & DEVELOPMENT ACT 2000 S50(A)(3)(A)
PLANNING & DEVELOPMENT ACT 2000 S50(A)(3)(B)(i)
PLANNING & DEVELOPMENT ACT 2010 S32
PLANNING & DEVELOPMENT ACT 2000 S50(A)(2)
ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S20
ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 (COMMENCEMENT OF CERTAIN PROVISIONS) ORDER SI 433/2011
LANCEFORT LTD v BORD PLEANALA (NO 2) 1999 2 IR 270
DREHER v IRISH LAND CMSN 1984 ILRM 94
HARDING v CORK CO COUNCIL 2008 4 IR 318
HARDING v CORK CO COUNCIL & BORD PLEANALA UNREP CLARKE 12.10.2006 2006/28/5912 2006 IEHC 295
2 1.1 The applicant ("Maxol") and the second named notice party ("Mr. Crowley") had, sometime ago, a property dispute which was resolved on the basis that an area of land in Clonakilty, Co. Cork came to be owned as to one part by Maxol and as to the other part by Mr. Crowley. Mr. Crowley had operated a petrol station on the lands in question and continues to operate a separate station, on a temporary basis, from a neighbouring site. Maxol secured planning permission to build a modern petrol station on their portion of the lands which station has since been built and is fully operational.
3 1.2 Mr. Crowley applied to the first named notice party ("Clonakilty Council") for planning permission to build a second station on his portion of the site. The permission in question was granted, subject to conditions by Clonakilty Council. Thereafter, Maxol appealed the grant of that permission to the respondent ("Bord Pleanála").
4 1.3 In these judicial review proceedings, Maxol seeks to challenge the decision by Bord Pleanála to grant the permission in question. It is also of some relevance to note the precise time at which the application in question was brought in the light of a number of recent changes to the statutory regime which applies to proceedings involving a challenge to the validity of planning decisions.
5 1.4 It will be recalled that under the provisions of the Planning and Development Act 2000 (as amended from time to time) as it applied until recent times, s. 50A of same (as inserted by s. 13 of the Planning and Development (Strategic Infrastructure) Act 2006) required an application for leave to be brought by motion on notice and further required the applicant to establish substantial grounds (s. 50A(3)(a)) and a substantial interest (s. 50A(3)(b)(i)) in "the matter which is the subject of the application". Those matters have, of course, been the subject of a significant amount of judicial interpretation since originally enacted.
6 1.5 Two changes have, however, in recent times, been separately brought to that regime. First, the Planning and Development (Amendment) Act 2010, ("the 2010 Act") in s. 32 substituted a new section s. 50A(2) which brought the situation, procedurally, back to one where the application for leave was brought ex parte (although the relevant new provision does allow the court, in an appropriate case, to direct that the application be on notice). That legislative intervention did not bring about any change to the substantial grounds or substantial interest requirements set out in section 50A(3)(b)(i).
7 1.6 Subsequently s. 20 of the Environment (Miscellaneous Provisions) Act 2011 (the "2011 Act") amended that subsection by removing the requirement of substantial interest and, in substance, provided for the test reverting to the previous threshold of sufficient interest. However, the 2011 Act came into force on the 23 rd August, 2011, on foot of the Environment (Miscellaneous Provisions) Act 2011 (Commencement of Certain Provisions) Order 2011 [S.I. No. 433/2011].
8 1.7 These proceedings were commenced in March of this year. The position is, therefore, that the amendment brought about by the 2010 Act (which allowed for an ex parte application for leave) was in force at that time but the amendment to the substantial interest test to which I have referred was not in force. It was accepted by all the parties that the questions raised fell to be considered under the law, as amended by the 2010 Act, but not as amended by the 2011 Act.
9 1.8 In that context, it should be noted that the application for leave to apply for judicial review was first moved ex parte on the 7 th March, 2011, before Peart J. who ordered, under s. 50A(2)(b), that the application for leave should proceed on notice. The parties, thereafter, consented to a combined hearing of the leave and substantive applications - a so called telescoped hearing. Clonakilty Council did not participate. I am, therefore, concerned with both the question of whether Maxol should be entitled to leave and, if so entitled, whether Maxol can succeed in obtaining judicial review. It is also accepted that, unlike the position that would obtain in relation to a judicial review commenced after the 2011 Act came into force, I am concerned with whether Maxol has a substantial interest in the matter at issue.
10 1.9 In order to understand the issues, it is first appropriate to turn to a brief outline of the relevant facts.
2 2.1 After the property dispute to which I have referred was settled and Maxol had obtained permission for, completed the development of, and opened a Maxol service station in March 2010, Mr. Crowley applied to Clonakilty Council on the 19 th March, 2010, for planning permission for a petrol filling station with a retail shop and, of particular relevance to this case, carwash facilities being one automatic and two manual stations. The application was accompanied by the usual plans and specifications that might be expected. In addition, on the 29 th March, 2010, Mr. Crowley's engineers wrote to Clonakilty Council suggesting, amongst other things, that water from all three carwashes would be recycled by use of a device called a Klargester Wash Down and Silt Separator, as envisaged by the original application, or by a Freylit Water Recycling System. It will be necessary to turn to the difference between those two systems in due course. A Mr. Bernard Fitzpatrick lodged an objection on behalf of Maxol on the 20 th April, 2010. A wide range of matters were put forward as constituting legitimate reasons why the planning permission sought should not be granted including, in particular, an assertion that there was no need for any more service stations in the region. No issue was raised as to the suggestion that there was any material difference between the Klargester system and the Freylit system to which reference has already been made. There is some observation in relation to the proposals for the disposal of surface water.
3 2.2 Thereafter, Mr. Crowley's advisers sent a letter of the 13 th July, 2010, which contained certain calculations based, it was said, on the assumption that a "closed recycling system" would be used. Clonakilty Council granted permission on the 6 th August, 2010.
4 2.3 Maxol lodged an appeal on the 2 nd September, 2010, which appeal covers a large range of grounds. It should again be noted that no contention was made in the appeal documentation as to any inconsistency between the application of the 19 th March, 2010 and the additional information supplied, on a non-solicited basis, by Mr. Crowley's advisers on the 29 th March. In addition, no point was made concerning any apparent differences between the Klargester and Freylit systems. However, Maxol's advisers did, in the course of the appeal, raise the...
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