McDonagh v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 12 October 2017
• Neutral Citation: [2017] IEHC 586
• Docket Number: [2016 No. 748 J.R.]
• Court: High Court
• Date: 12 October 2017

[2017] IEHC 586

THE HIGH COURT

McDermott J.

[2016 No. 748 J.R.]

BETWEEN

BRIAN MCDONAGH

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

GALWAY COUNTY COUNCIL

AND

APPLE DISTRIBUTION INTERNATIONAL

NOTICE PARTIES

Environment, Transport & Planning – S. 50A(3)(b) of the Planning and Development Act 2000 – Sufficient interest – Locus standi – Non disclosure – Non participation

Facts: The applicant was granted leave to seek judicial review in relation to the respondent's decision to grant planning permission to the second notice party for the construction of phase 1 of a data centre. The main issue, however, revolved around as to whether the applicant had the locus standi to bring the present application. The applicant contended that he had the locus standi to seek judicial review on the grounds of local and conservation interests in the destruction of forest in the local county council. In response to the said application, it was argued that the applicant did not have sufficient interest to establish the locus standi for the application. It was also acknowledged that the failure to participate in the permission granting process without any reasonable explanation had raised doubt in regard to the non participation.

Mr. Justice McDermott refused the applicant's application. The Court stated that the applicant had no locus standi in the proceedings. The Court held that the applicant did not live in physical proximity to the subject site and did not participate in the planning process before the local county council. The Court noted that there was no evidence that the applicant had any local and conservation interest in the destruction of forest in the said county council. The Court also found that there was non-disclosure of material facts by the applicant and lack of candour in the initial leave application.

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 protection of important aspects of the environment or amenity generally. …’

11 The court acknowledged that a failure to participate in the permission granting process did not of itself exclude a person from having standing but it could be a factor to be taken into account in an appropriate case. If a person does not have a reasonably close proximity to the development in question or an established connection with a particular amenity value which may arguably be impaired by the proposed development and fails to participate in the planning or appeal process, a doubt may be cast upon the standing of such persons to bring a challenge of this kind. Further doubt may arise from an absence of any significant explanation as to why they did not participate.

12 In the case of Ms. Grace, the court determined that she had standing because she lived less than 1km from the Special Protection Area (SPA) in issue and had made a number of important life choices based on its status and the amenities of the area (see para. 8.9). On the other hand, Mr. Sweetman could not demonstrate any physical proximity to the site though he had an interest in environmental matters generally. No evidence was adduced that he had any particular interest in the specific amenity value potentially impaired by the development and he offered no real explanation as to why he did not participate in the planning or appeal process. The court did not determine that Mr. Sweetman did not have standing ‘given that we are satisfied that Ms. Grace has standing’ and concluded, therefore, that it was appropriate to consider the merits of the substantive issue. It reiterated that ‘had he [Mr. Sweetman] participated in the permission granting process or given the court some cogent explanation for non-participation, then it would have been much easier to resolve the standing question in his favour.’

13 The court is satisfied that the applicant in this case does not have standing to bring these proceedings. He is not living in physical proximity to the site in issue in Athenry. He is based in Dublin. He did not participate in the planning process before Galway County Council or the Board of Appeal. Indeed, it is not clear as to when the applicant became aware of the observations and submissions to which he...