McDonnell v an Bord Pleanála and Another

JurisdictionIreland
JudgeMr. Justice Robert Haughton
Judgment Date31 May 2017
Neutral Citation[2017] IEHC 366
Docket NumberRecord No. 2016/613JR
CourtHigh Court
Date31 May 2017

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN
DERMOT MCDONNELL
APPLICANT
-AND-
AN BORD PLEANÁLA
RESPONDENT
-AND-
OWENINNY POWER DAC
NOTICE PARTY

[2017] IEHC 366

Haughton Robert J.

Record No. 2016/613JR

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Environment, Planning & Construction – S. 50 of the Planning & Development Act 2000 – Leave to appeal to the Court of Appeal – Point of law of exceptional public importance

Facts: Following the judgment of the Court dismissing the applicant's proceedings filed against the respondent for giving planning permission to the notice party to carry out certain development, the applicant now sought certification for leave to appeal.

Mr. Justice Robert Haughton refused to grant leave to the applicant. The Court held that there was no point of law of exceptional public importance in the substantive case that warranted the grant of leave. The Court observed that it had the benefit of full pleadings, replying affidavits and submission of parties in the substantive judgment, and the applicant failed to make an arguable ground for the grant of leave. The Court found that the core claim of the applicant's compliant was related to the ‘capacity factor,’ which had been adequately addressed by the Court and did not point out any uncertainty of law.

Judgment of Mr. Justice Robert Haughton delivered the 31 st day of May, 2017.
1

This judgment deals –

(a) with the form of the order that the court should make consequent on its rulings made on 16 May, 2017 and 17 May, 2017, and

(b) with the applicant's application for a certificate of leave to appeal under section 50A(7) of the Planning and Development Act, 2000 (as amended) (‘the 2000 Act’).

The second question involves preliminary consideration of whether certification is required at all. It should be noted that the applicant has at all stages appeared in person.

2

It is necessary first to summarise the history of the proceedings thus far:

(i) The impugned decision of the respondent to grant approval for a windfarm at Oweninny, Bellacorick, Co. Mayo, is dated 2 June, 2016.

(ii) On 27 July, 2016, just within the 8 week period allowed by s.50(6) for seeking leave for judicial review of the Board's decision, the applicant lodged papers in the Central Office.

(iii) For reasons considered in my earlier rulings the applicant did not make his application for leave until he moved his application ex parte before Humphreys J. on 21 November, 2016. The matter was adjourned to enable the applicant to swear a further affidavit to exhibit a copy of the impugned decision, and to deal with delay, both of which were addressed in a second affidavit sworn by the applicant on 12 December, 2016.

(iv) By order dated 12 December, 2016, Humphreys J. granted leave to apply for the reliefs set forth in paragraph D1 of the Statement of Grounds (certiorari) on the grounds set forth in E1 and E2, but refused leave in respect of any other relief or on any other grounds viz. grounds E3 and E4.

The said order did not extend time for seeking leave, although the reasons for delay were addressed in the applicant's second affidavit.

(v) By order of McGovern J. dated 19 December, 2016, on the motion of the notice party the proceedings were admitted to the Commercial List for hearing.

(vi) In its Statement of Opposition the respondent raised a preliminary objection that the ex parte application for leave was out of time because it was not “made” within 8 weeks, and pleaded that the applicant had not sought or been granted an extension of time, and that the reasons proffered were not “good or sufficient” or outside his control within the meaning of s.50(8) of the Act of 2000. Similar objection was taken by the Notice Party in its Statement of Opposition. In the interests of expedition, the notice party chose to pursue these objections at full hearing rather than bring separate motions seeking to set aside the leave order.

(vii) The matter came on for full hearing before me on Tuesday, 16 May 2017. As the respondent and notice party were pursuing their preliminary objections, I considered that the hearing would be best managed by first determining whether the leave application was made on time (see Transcript day 1 pgs.4-6).

(viii) Having heard argument on that issue I delivered my ex tempore ruling on 16 May, 2017 (the ‘first ruling’). This is recorded in the Transcript day 1, pgs. 24-37. In my first ruling I respectfully differ from the approach taken by Humphreys J. that is evident from his decisions in Burke v. Minister for Justice Equality and Law Reform [2015] I.E.H.C. 614 and McCreesh v. An Bord Pleanála [2016] I.E.H.C. 394 viz. that when the papers in an ex parte application are lodged in the Central Office that stops time running. I determined that the ex parte application was not ‘made’ for the purposes of section 50A(2) of the 2000 Act until the matter was moved in court. Accordingly, I found that the filing of the ex parte leave papers on 27 July, 2016, did not commence the proceedings, and the application was not ‘made’ until the matter was moved before Humphreys J. on 21 November, 2016 (see Transcript day 1 p.37). Having so found I then stated: –

‘that brings the court on to the second issue, which is whether it should extend time.’

(ix) The court then proceeded to consider the question of extension of time. In addition to the affidavit evidence before the court the applicant was permitted to give oral evidence, on which he was cross examined, and I then heard further oral argument. I also had the benefit of full pleadings and the parties written submissions. In his oral submissions, counsel for the notice party made it clear to the court that a relevant factor that the court should consider in deciding this issue was the merits of the case, and the notice party wished to urge upon the court that no arguable case had been made out. This submission was based on commonly cited dicta of Clarke J. in Kelly v Leitrim County Council [2005] 2 IR 404 at pgs. 413, 415 and 423. Accordingly, counsel for the notice party contended that the grounds raised by the applicant were not arguable, and the applicant had an opportunity to and did reply to that contention. (x) Having reserved my decision overnight, I delivered an ex tempore judgment on 17 May, 2017 - see Transcript day 2 pgs. 4-37 (the ‘second ruling’). I considered the application in the context of the non-exhaustive factors (a) – (f) identified by Clarke J. in Kelly v Leitrim County Council at pgs. 412 – 413 of his judgment, factor (f) being ‘the merits of the case’. In effect, I found that while I would have been disposed to extend time for seeking leave to seek judicial review on consideration of factors (a) – (e), on consideration of the merits of the case under factor (f) I was led to the conclusion that I should not extend time. At page 26 of the Transcript I state –

‘… I find that the Applicants case on grounds (e)(i) and (ii) is not arguable and is bound to fail for a number of reasons which it is appropriate to set out.’

Thereafter I give some six reasons related to the merits of the case that support this conclusion and I end on page 37 by stating –

‘I must, therefore, refuse the application to extend time for pursuing grounds (e) (i) and (ii) and the proceedings must therefore be dismissed.’

(xi) As no party sought their costs I determined that there should be “no order as to costs”.

FORM OF ORDER
3

It is evident from the foregoing that I decided firstly that the ex parte application for leave to seek judicial review was not ‘made’ in time. Logically it follows that the order granting leave should be set aside, because it is not apparent on the face of that order that Humphreys J. considered or adjudicated on the question of whether to extend time for making the application. Secondly in the context of deciding whether to extend time I addressed, inter alia, the merits of the case and concluded that there was no arguable case. Accordingly, the operative part of the order should read as follows: –

THE COURT FINDS AND DETERMINES that the application for leave to apply for judicial review was not made within the period prescribed in section 50(6) of the Planning and Development Act 2000 and accordingly was made out of time;

IT IS ORDERED that, the court having determined that the within Application does not disclose arguable grounds for the grant of the relief claimed, the court refuses to extend the time having regard to section 50(8) of the Planning and Development Act 2000

AND IT IS FURTHER ORDERED that the order of Mr Justice Humphreys made herein on the 12 th day of December 2016, to the extent only that it granted leave to the applicant to seek judicial review, be set aside

AND IT IS FURTHER ORDERED that the relief sought by the Applicant as set out in paragraph D(1) of the Statement of Grounds is refused and the Applicant's proceedings be dismissed.

And on hearing the said Applicant and Counsel for the Respondent and Counsel for the Notice Party in respect of costs

No order as to costs.

CERTIFICATION – IS IT REQUIRED?
4

This question is not straightforward. Counsel for the respondent presented legal authority bearing on the issue, but remained neutral as to whether it is or is not required. Counsel for the notice party argued that certification was required. The applicant did not address this issue, but did address the court and seek certification.

5

Section 50A(7) provides –

‘(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies...

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