Mount Juliet Estates Residents Group v Kilkenny County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 10 March 2020
• Neutral Citation: [2020] IEHC 128
• Docket Number: 2019 No. 395 J.R.
• Court: High Court
• Date: 10 March 2020

IN THE MATTER OF SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

MOUNT JULIET ESTATES RESIDENTS GROUP

APPLICANT

AND

KILKENNY COUNTY COUNCIL

RESPONDENT

MJBE INVESTMENTS 3 LIMITED

AN BORD PLEANÁLA

NOTICE PARTIES

[2020] IEHC 128

Garrett Simons J.

2019 No. 395 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Stay – Planning permission – Respondent seeking to have judicial review proceedings stayed – Whether the statutory criteria for a stay were met

Facts: Judicial review proceedings were taken pursuant to the statutory procedure provided for under the Planning and Development Act 2000 (PDA 2000). The principal complaint made in the proceedings was that the respondent, Kilkenny County Council (the planning authority), acted without jurisdiction in purporting to grant retention planning permission for a particular development. It was said that the development sought to be retained had been carried out in breach of the requirements of the Environmental Impact Assessment Directive and the Habitats Directive, and, consequently, cannot benefit from a retention planning permission. The planning status of the development, it was said, can only be regulated by way of an application for “substitute consent” pursuant to Part XA of the PDA 2000. Two interlocutory applications were brought by the planning authority and the beneficiary of the planning permission, respectively. Those parties sought to have the judicial review proceedings stayed pending the determination of an appeal which had been brought to An Bord Pleanála. More specifically, the planning authority’s decision to grant retention planning permission was the subject of a third-party appeal to An Bord Pleanála. The suggestion was that the appeal to An Bord Pleanála should be determined first, in priority to the judicial review proceedings. The appeal had been brought by the applicant for judicial review, Mount Juliet Estates Residents Group. The residents group were thus pursuing an application for judicial review and a statutory appeal in parallel. The two interlocutory applications presented an important issue of principle as to which is the more appropriate forum in which the complaint, i.e. that the planning authority has acted ultra vires in granting retention planning permission, should be determined; is it a matter for An Bord Pleanála or for the High Court?

Held by the High Court (Simons J) that the application to stay the judicial review proceedings pursuant to s. 50(4) and (5) of the PDA 2000 would be refused. He held that priority is to be given to appeal proceedings only in circumstances where the “matter ... is within the jurisdiction of” An Bord Pleanála. He held that the grounds of challenge advanced in the judicial review proceedings were ones which, if well-founded, tainted the appeal and affected An Bord Pleanála’s jurisdiction to embark upon the appeal. He held that the statutory criteria for a stay were not, therefore, met. He held that it must be doubtful whether a planning authority can apply for a stay on judicial review proceedings in favour of an appeal which is pending before a different decision-maker, i.e. An Bord Pleanála. It seemed to him from the wording of s. 50(4) that what is contemplated is that it is only the decision-maker, before whom the matter is pending, who can apply for a stay. He held that the mirror-image application to vacate the stay, which restrains An Bord Pleanála from determining the appeal before it, would also be refused. He noted that the Oireachtas had put in place an express statutory provision which seeks to regulate the conduct of parallel appeal proceedings and judicial review proceedings. He held that similar principles must guide the determination of the application on behalf of the developer to have the stay on An Bord Pleanála determining the appeal vacated.

Simons J held that the justice of the case was best served, not by denying the residents group an opportunity to challenge the legal validity of the planning authority’s decision, but rather by ensuring that the judicial review proceedings receive an expeditious hearing. Accordingly, he proposed to put in place arrangements to ensure that the substantive application for judicial review was heard in the next number of weeks.

Application refused.

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 March 2020

INTRODUCTION

1 The within proceedings are judicial review proceedings taken pursuant to the statutory procedure provided for under the Planning and Development Act 2000 (“PDA 2000”). The principal complaint made in the proceedings is that Kilkenny County Council ( “the planning authority”) acted without jurisdiction in purporting to grant retention planning permission for a particular development. It is said that the development sought to be retained had been carried out in breach of the requirements of the Environmental Impact Assessment Directive and the Habitats Directive, and, consequently, cannot benefit from a retention planning permission. The planning status of the development, it is said, can only be regulated by way of an application for “substitute consent” pursuant to Part XA of the PDA 2000.

2 The resolution of these legal issues must await the hearing of the substantive application for judicial review. This judgment is concerned solely with two interlocutory applications which have been brought by the planning authority and the beneficiary of the planning permission, respectively. The precise basis upon which these interlocutory applications come to be made is itself an issue of some complexity, but, for introductory purposes, the gist of the applications might be summarised as follows. Those parties seek to have these judicial review proceedings stayed pending the determination of an appeal which has been brought to An Bord Pleanála. More specifically, the planning authority's decision to grant retention planning permission is currently the subject of a third-party appeal to An Bord Pleanála. The suggestion is that this appeal to An Bord Pleanála should be determined first, in priority to the judicial review proceedings. (It should be explained that the appeal has been brought by the applicant for judicial review, i.e. Mount Juliet Estates Residents Group. The residents group are thus pursuing an application for judicial review and a statutory appeal in parallel).

3 The two interlocutory applications present an important issue of principle as to which is the more appropriate forum in which the complaint, i.e. that the planning authority has acted ultra vires in granting retention planning permission, should be determined. Put shortly, is it a matter for An Bord Pleanála or for the High Court. To answer this question, it will be necessary to consider the statutory regime, and, more generally, the public interest in the rule of law.

STATUTORY STAY ON JUDICIAL REVIEW PROCEEDINGS

4 There are, in principle at least, two avenues by which a person, who is aggrieved with a decision of a planning authority to grant planning permission, might seek to challenge that decision. First, by way of appeal to An Bord Pleanála; and, secondly, by way of an application for judicial review to the High Court.

5 The planning legislation addresses the priority as between parallel appeal proceedings and judicial review proceedings as follows. See sections 50(4) and (5) of the PDA 2000.

(4) A planning authority, a local authority or the Board may, at any time after the bringing of an application for leave to apply for judicial review of any decision or other act to which subsection (2) applies and which relates to a matter for the time being before the authority or the Board, as the case may be, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Board in relation to the matter concerned.

(5) On the making of such an application, the High Court may, where it considers that the matter before the authority or the Board is within the jurisdiction of the authority or the Board, make an order staying the proceedings concerned on such terms as it thinks fit.

6 As appears, the legal test to be applied is whether or not the “matter” before the planning authority or An Bord Pleanála is “within the jurisdiction of” the relevant decision-maker. Where these criteria are met, the legislative preference is that challenges be dealt with by way of appeal rather than by judicial review.

7 This preference for an appeal reflects a general principle of administrative law, namely, that an applicant should first exhaust his or her right of appeal before having recourse to the courts. Indeed, as discussed presently, certain of the case law in respect of this general principle has been called in aid in judgments addressing the interpretation of section 50(4) and (5) of the PDA 2000.

8 It should be noted, however, that the operation of the statutory regime differs from the general principle in two respects. First, an application to stay judicial review proceedings may be made at any time after the bringing of an application for leave to apply for judicial review. By contrast, in conventional judicial review proceedings, the existence of adequate alternative remedies will normally only be considered at the commencement of the proceedings (application for leave), or at the conclusion (relief may be refused as a matter of discretion).

9 Secondly, a stay application may only be brought by a planning authority, a local authority or An Bord Pleanála. The party most immediately affected by a challenge to the validity of a decision to grant planning permission, i.e. the beneficiary of the planning permission, is not entitled to apply for a stay. The developer in the present case has had to resort to a different form of application, namely an application to vacate the stay which has been imposed on An Bord Pleanála...