McNamara v an Bord Pleanála (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr,Miss Justice Carroll
• Judgment Date: 10 May 1996
• Neutral Citation: [1996] IEHC 60
• Docket Number: No. 355 J.R. 1994,No 355 J.R./1994
• Court: High Court
• Date: 10 May 1996

MCNAMARA v. BORD PLEANALA

JUDICIAL REVIEW

BETWEEN

PATRICK McNAMARA

APPLICANT

AND

AN BORD PLEANALA

RESPONDENT

AND

THE COUNTY COUNCIL OF THE COUNTY OF KILDARE, THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN, THE COUNTY COUNCIL OF SOUTH DUBLIN, THE COUNTY COUNCIL OF FINGAL, DUN LAOGHAIRE/RATHDOWN CORPORATION, THE LORD MAYOR, ALDERMEN AND BURGESSES OF THE BOROUGH OF DUBLIN AND OTHERS

NOTICE PARTIES

[1996] IEHC 60

No. 355 J.R. 1994

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Planning

Decision - Review - Leave - Application - Grounds - Addition - Prohibition - Application for leave to apply to be made within prescribed period - Application to be made with statement of grounds - New grounds may not be raised by applicant after pre scribed period - (1994/355 JR - Barr J. - 10/5/96)1996 2 ILRM 339

|McNamara v. An Bord Pleanala|

PLANNING

Permission

Terms - Precision - Absence - Appeal - Planning board - Powers - Delegation - Conditions attached by board to planning permission - Unresolved matters to be agreed by developer with planning authority - Valid exercise of powers of planning board - Technical and peripheral matters relating to development of landfill site - Judicial review of board's decision - Time limit governing application for leave to apply for review - Grounds of application to be stated in notice of motion - New grounds not permissible after expiration of time limit - Local Government (Planning and Development) Act, 1963 (No. 28), s. 82, sub-s. 3B - Local Government (Planning and Development) Act, 1992 (No. 14), s. 19 - (1994/355 JR - Barr J. - 10/5/96) - [1996] 2 ILRM 339

|McNamara v. An Bord Pleanala|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S90(3)

RSC O.84

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3B)(a)(i)

RSC O.84 r20(2)

KSK ENTERPRISES LTD V BORD PLEANALA 1994 2 ILRM 1

KEANE V BORD PLEANALA & COMMISSIONERS OF IRISH LIGHTS UNREP MURPHY EX-TEMP 23.5.95

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82(3A)

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1992 ILRM 237

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) ACT 1976 S14(4)

HOULIHAN V BORD PLEANALA UNREP MURPHY 4.10.93 1993/12/3737

BOLAND V BORD PLEANALA UNREP KEANE 29.12.94 1994/8/2149

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) ACT 1976 S14(4)

LOCAL GOVT (PLANNING & DEVELOPMENT) (AMDT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1977 SI 65/1977 ART 15(c)

1 JUDGMENT of Mr. Justice Barr delivered on the 10th day of May, 1996 .

2 Dublin County Council (now sub-divided into several independent local authorities) applied in 1992 to Kildare County Council for planning permission relating to the creation of a huge municipal dump for baled waste of sixty-four hectares at Arthurstown, County Kildare which is 1.6 km from the village of Kill. If it comes into being, it will be by far the largest municipal dump in Ireland and will receive approximately five million tonnes of municipal refuse from the city and county of Dublin over a ten year period. Some idea of the size of the proposed project is derived from the fact that heavy vehicle movements to and from the site are likely to be in the order of one every three minutes for six days each week for not less than ten years from commencement. The lands comprise a former Roadstone sand and gravel quarry and an adjacent smaller quarry or dump formerly owned by Mr. T. Gavin. The site originally comprised a large hill which was excavated over many years together with other adjoining lands. Roadstone which worked fifty-two hectares estimate that six to seven million tonnes of sand and gravel were extracted from 1947 until they ceased operations in 1980 when their quarry was worked out. Sand and gravel in the Arthurstown area are classified as a Zone 3 acquifer and ground water is extracted for use in farms and residential properties in the area. Lands in the vicinity of the site comprise agricultural holdings and there are two stud farms on its border. Gavin's land was used for some time as an unauthorised dump for toxic waste which remains a source of contamination of some ground water. The Roadstone lands were the subject of a previous planning permission for a thirty-two acre baled waste landfill, granted by An Bord Pleanala in 1986 to Rent-a-Bin (Tullamore) Limited. However, no development has taken place and the permission expired in 1991.

3 The application by Dublin County Council and an Environmental Impact Statement (E.I.S.) relating to the proposed dump were lodged with Kildare County Council in July, 1992. Ultimately, the latter authority refused planning permission on 29th July, 1993 for twenty-nine stated reasons. The proposed developer brought an appeal to An Bord Pleanala (the Board) dated 27th August, 1993. An oral hearing was directed by the latter and was conducted by Mr. Padraig Thornton, a senior planning inspector, on behalf of the Board. There was a lengthy hearing of twenty days from 18th January to 16th February, 1994. Sixty-eight witnesses gave evidence. Mr. Thornton's report is dated 1st July, 1994. He recommended the Board to refuse permission for the proposed dump. However, it decided not to accept his advice and granted planning permission on 29th July, 1994, subject to twenty-six conditions. The applicant, on his own account and on behalf of Kill Residents Group, issued and served on all concerned a motion for judicial review dated 27th September, 1994 together with a statement grounding the application and his verifying affidavit, all of that date. It is not in dispute that these documents were duly served within the statutory limitation period of two months from the date when planning permission was granted by the Board. However, further affidavits were filed and served in support of the applicant's motion, i.e., two were sworn by Ms. Suzanne O'Sullivan, a consultant hydrogeologist, dated 7th December, 1994 and 24th June, 1995 respectively, together with a supplementary affidavit sworn by the applicant dated 8th December, 1994. It is submitted on behalf of the Board, inter alia, that the latter affidavits have introduced new grounds in support of the applicant's motion which were not referred to in the documentation served on his behalf within the statutory time limit and which could not reasonably be inferred or implied from any of the documentation originally filed in support of the motion.

4 The application for liberty to proceed for judicial review was made to Carroll J.. She reserved her decision and delivered a formal judgment on 24th January, 1995. The learned judge has referred in her judgment to the relevant statutory provisions relating to an application for judicial review of a decision of the Board and I do not propose to set out all of them again herein.

5 Carroll J. summarised the judicial function in adjudicating on such an application as follows:-

"What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are "substantial"..... I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit."

6 The grounds on which the applicant sought relief were stated by Carroll J. to be:-

7 a "(a) The E.I.S. accompanying the application for planning permission is defective and fails to comply with the statutory requirements.

8 (b) The newspaper advertisement as published and on foot of which Dublin County Council advertised its intention to make application for planning permission, is defective and fails to comply with the statutory requirements.

9 (c) [This ground was not pursued.]

10 (d) The purported decision of the respondent under reference PL09.091910 Planning Register No. 92/942 insofar as it purports to impose conditions inter alia conditions No. 3, 13, 17, 18, 20 and 22 (9 and 19 having been dropped) and which are directed to be matters for agreement as between Dublin County Council, the applicant for planning permission, and Kildare County Council as the planning authority are such as constitute an abdication of responsibility of the respondent, [in] consequence of which no valid or proper determination has been made by the respondent on foot of the Appeal and such decision as purports to have issued is null and void and of no effect.

11 (e) The respondent failed to determine all matters essential to the proper planning and development of the area and has abdicated such further responsibility as a consequence of which there has been no true or proper determination on foot of the application.

12 (f) The respondent acted ultra vires in reaching a conclusion that no reasonable planning authority applying appropriate standards of reason and common sense and having due regard for proper planning and development considerations [would reach] and insofar as the respondent has reached the decision to grant permission under reference No. PL09.091910, the respondent has acted contrary to the weight of the evidence as adduced and such...