McDonagh -v- An Bord Pleanála & ors, [2017] IEHC 586 (2017)

Docket Number:2016 748 JR
Party Name:McDonagh, An Bord Pleanála & ors
 
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THE HIGH COURT[2016 No. 748 J.R.]

BETWEEN

BRIAN MCDONAGH APPLICANTAND

AN BORD PLEANÁLARESPONDENTAND

GALWAY COUNTY COUNCIL AND

APPLE DISTRIBUTION INTERNATIONAL NOTICE PARTIES

JUDGMENT of Mr. Justice McDermott delivered on the 12th day of October, 2017

  1. The applicant was granted leave to apply for judicial review (Humphreys J.) on 17th October, 2016 in respect of the respondent’s decision to grant planning permission to Apple Distribution Ltd. (File Ref. No.: PL07.245518) for the construction of Phase 1 of a Data Centre dated 11th August, 2016. Leave was granted to apply for an order of certiorari quashing the direction and decision of the respondent to grant planning permission dated 10th and 11th August 2016 respectively. The applicant represented himself in these proceedings which were transferred to the Commercial Court. By order of the High Court (McGovern J.) perfected on the 2nd December, 2016 it was directed that the case would travel in tandem with related proceedings entitled Sinead Fitzpatrick and Allan Daly v. An Bord Pleanála & others [2016/754 J.R.]. Both sets of proceedings were heard by this Court at the same time. Leave was granted on grounds set out at paras. (e)(i)(a) to(g) and (j) to (l) in an amended statement of grounds dated 14th October, 2016. The relevant background to the granting of permissions in respect of this development and the reasons and considerations for same are set out in this Court’s judgment also delivered today in the Fitzpatrick and Daly cases.

    Locus Standi

  2. In his initial application the applicant represented that he had locus standi to seek the leave granted “on the grounds of local and conservation interests in the destruction of Forest in the County of Galway”.

  3. It is submitted that the applicant does not have a sufficient interest for the making of this application as required by s. 50A(3)(b) of the Planning and Development Act 2000, as amended. He did not participate in the planning application process either with Galway County Council or on appeal to An Bord Pleanála. The applicant has no connection with the proposed development in that he is not resident in the area where it is located nor will he personally be affected by it.

  4. It is submitted that the interest described as one deriving from “local and conservation interest in the destruction of forest in the County of Galway” does not provide a sufficient interest for the purpose of the section nor has he been granted leave to advance any grounds in respect of the destruction of forest in County Galway. Leave to apply for judicial review based on issues concerning that matter was effectively refused in that the applicant was not allowed to proceed on ground (e)(i)(i) which stated:-

    “The Statutory Instruction No. 588 of the European Communities (Forest Consent and Assessment) in the afforestation of two alternative sites in Counties Roscommon and Wicklow appeared to have been breached. This was brought to the attention of the respondent in appeal.”

  5. There is no other reference to afforestation in Co. Galway or elsewhere in any other ground upon which leave was granted. Thus, it is clear that he has not hitherto raised any concern or adduced any relevant evidence in respect of the proposed effect of the development on forestry or any other aspect of the environment in Co. Galway.

  6. The applicant’s address as furnished in these proceedings is Unit 1, Ballymount Cross Business Park, Dublin 24.

  7. Furthermore, the applicant did not participate in the planning application before Galway County Council or in the appeal before the Board or at the oral hearings conducted by the Inspector. He did not participate in any respect in the application in respect of the substation and grid connection for which permission was also granted (VA 07.0020) as a strategic infrastructure development under s. 182A of the Planning and Development Act 2000 as amended. In these proceedings it is not sought to quash that decision.

  8. In Grace and Sweetman v. An Bord Pleanála [2017] IESC 10, the Supreme Court considered whether the applicants had a “sufficient interest” within the meaning of s. 50A(3)(b) to challenge a decision of the Board to grant planning permission for a windfarm in County Tipperary. In that case neither applicant had participated in the planning process before the planning authority or An Bord Pleanála.

  9. Clarke and O’Malley JJ. delivered a joint judgment on behalf of the court. The court stated that a reasonably liberal approach must be taken to the nature of the interest which must be potentially affected in order to confer standing in environmental cases. A person could have an interest by virtue of proximity to a proposed development. The degree of proximity required may depend on the scale and nature of the development in question:-

    “6.9 For example, a large scale development having the potential to impact on the amenity of persons within a wide catchment area might well be said to have the potential to have an adverse impact on the legitimate interests of persons living, or perhaps working or otherwise having regular contact with, a significant geographical area. A minor domestic development might well only have an impact on a much more restricted area.”

  10. The court summarised the principles applicable under Irish domestic law in respect of locus standi:-

    6.11 … it seems that standing in environmental cases involves a broad assessment of whether the legitimate and established amenity or other interests of the challenger can be said to be subject to potential interference or prejudice having regard to the scale and nature of the proposed development and the proximity or contact of the challenger to or with the area potentially impacted by the development in question. Furthermore, that broad assessment should have regard, in an appropriate case, to the legitimate interest of persons in seeking to ensure appropriate...

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