Mount Salus Residents' Owners Management Company Ltd by Guarantee v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 15 December 2023
• Neutral Citation: [2023] IEHC 691
• Court: High Court
• Docket Number: 2022/939 JR

In the matter of Section 50 of the Planning and Development Act 2000 (as amended)

Between

Mount Salus Residents' Owners Management Company Limited by Guarantee

Applicant

and

An Bord Pleanála

and

The Minister for Housing Local Government and Heritage, Ireland and The Attorney General

and

The Planning Regulator

Respondents

and

Alannah Smyth

and

Dun Laoghaire Rathdown County Council

Notice Parties

[2023] IEHC 691

2022/939 JR

THE HIGH COURT

PLANNING & ENVIRONMENT

Particulars – Judicial review – Planning permission – Applicant seeking particulars of the grounds which the first respondent alleged were inadequately particularised – Whether the first respondent had an obligation to give particulars

Facts: The applicant, Mount Salus Residents’ Owners Management Company Limited by Guarantee (Mount Salus), sought to have quashed a decision of the first respondent, An Bord Pleanála (the Board), made on 7 September 2022, granting permission to the first notice party, Ms Smyth, for the construction of a house on a site at Torca Road, Dalkey, County Dublin (the Site). By its judicial review, Mount Salus challenged the impugned decision as invalidly based on recommendations of the fifth respondent, the Planning Regulator (the OPR), and a draft direction and direction of the second respondent, the Minister for Housing, Local Government and Heritage (the Minister). Both the OPR and the Minister, Mount Salus alleged, exceeded their respective statutory powers. Mount Salus objected to content of the opposition papers as being in impermissibly broad and unspecific terms. On 17 July 2023, it issued purported notices for particulars to all other parties to the proceedings and sought consent to amend its statement of grounds. Ms Smyth agreed to the amendment of the statement of grounds and replied to the notice for particulars issued to her. The other parties served declined to reply to the notices and refused consent to the proposed amendments. On 1 August 2023, Mount Salus issued two motions seeking the following orders: (i) pursuant to O. 19, r. 7 of the Rules of the Superior Courts (RSC) and/or the inherent jurisdiction of the High Court, compelling the respondents to reply to particulars raised by Mount Salus; (ii) pursuant to O. 84, r. 23 RSC granting Mount Salus leave to amend its amended statement of grounds in terms of an attached draft further amended statement of grounds. A considerable measure of resolution occurred at the trial of the motions. The parties, after trial, submitted a memorandum of their respective positions. The Board pleaded that “The legal pleas contained in the Statement of Grounds have not been adequately particularised” and pleaded failure to comply with O. 84 r. 20(3). Mount Salus sought particulars of the grounds which, the Board alleged, were inadequately particularised.

Held by Holland J that Mount Salus had got by its motion for particulars, in oral argument and by the memorandum, much of the information it sought. As to the outstanding item, particulars of why or how Mount Salus’ particulars were inadequate, Holland J noted that at trial the Board indicated that its allegation of want of particulars applied to each and all of the four grounds of challenge laid against it; that was repeated in the memorandum. While “oral pleading” at a motion hearing is inappropriate, on a pragmatic basis Holland J could see that there may be little point in forcing the Board to say again in replies to particulars what the court and the memorandum had recorded it as saying. That done, Holland J held that the Board had no obligation to give particulars of why or how Mount Salus’ particulars were inadequate. In that respect, Holland J refused Mount Salus’ motion.

Holland J held that, in light of the foregoing, he would hear the parties as to the proper form of order to be made. Holland J invited the parties to seek to agree a form of order prior to that date. Holland J provisionally considered that Mount Salus was entitled to its costs of the motion for particulars only, and that against the Board and the OPR only, and that there should be no order as to the remaining costs.

Relief refused.

JUDGMENT OF Mr Justice Holland DELIVERED on 15 DECEMBER 2023.

CONTENTS

INTRODUCTION	3
AMENDMENT MOTION	6
PARTICULARS MOTION — MATTERS DETERMINED AT TRIAL OF MOTION & BY THE MEMO	6
Particulars sought of the State	6
Particulars sought of the OPR	8
Particulars sought of the Board	8
Further & Outstanding Matters	9
Particulars Sought	10
The Remaining Issue	12
Matters determined — Coda	12
RULES OF COURT	13
DISCUSSION	14
The Point is Undecided	15
The Floodgates Argument	15
That Pleadings Issues can be Resolved at Trial	17
The “Pleading” point	19
Order 84 — a Code?	23
Conclusion as to the applicability of Order 19, rule 7 in Judicial Review	24
Pleadings — Denials, Non-Admissions, General Traverses, etc.	24
Particulars of a Mere Denial? Particulars identifying the fact denied?	28
A Final Comment	31
PARTICULARS OF FACTS DENIED AND CHARACTERISATIONS DENIED	32
PARTICULARS OF INADEQUACY OF PARTICULARS — DECISION	32
CONCLUSION	33
Appendix — Position Of The Parties Following The Hearing	34
The Board	34
The State Respondents	34
The Office of the Planning Regulator	34
The Applicant	35

INTRODUCTION

1 In this judicial review the Applicant (“Mount Salus”), a residents' management company for residences on Mount Salus Road, Dalkey, County Dublin, seeks primarily to have quashed a decision (the “Impugned Decision”) of An Bord Pleanála (“the Board”), made on the 7 ^th of September 2022, granting permission to the First Notice Party, Ms Smyth, for the construction of a four-bedroom house on a site at Torca Road, Dalkey (“the Site”). Inter alia, Mount Salus says the Site is accessed by a public pedestrian right of way between Knocknacree Rd and Torca Rd, on Killiney Hill and overlooks the Vico Road, the Vico Road Architectural Conservation Area and Killiney Bay.

2 Simplifying the facts somewhat, in the 2016 Dun Laoghaire Rathdown Development Plan, the Site was governed by Objective 0/0, which states: “ No increase in the number of buildings permissible.” For that and other reasons, Dun Laoghaire/Rathdown County Council refused permission in 2020. Ms Smyth, appealed to the Board (“the Appeal”). That appeal resulted in the Impugned Decision. Objective 0/0 was repeated in the Dun Laoghaire Rathdown Development Plan 2022, which came into force on 21 April 2022. The Planning Regulator (“OPR”) had recommended deletion of Objective 0/0, but the elected members, in adopting that Plan, decided to keep it. However, that Objective was, on the recommendation of the OPR, removed by direction of the Minister made under s.31(16) PDA 2000 1, with effect from 28 September 2022. By its judicial review, Ground 6, Mount Salus challenges the Impugned Decision as invalidly based on recommendations of the OPR and a draft direction and direction of the Minister (the “Impugned Ministerial Direction”). Both the OPR and the Minister, Mount Salus alleges, exceeded their respective statutory powers.

3 The pleadings (using that word loosely) have closed. The application for judicial review is grounded in the affidavit of Susan McDonnell affirmed on 1 November 2022, to which 20 documents are exhibited. Also deserving of mention is an affidavit of Fred Logue, Mount Salus' solicitor, affirmed on 13 December 2022, to which are exhibited documents relating to the Board's deferral of its decision in the Appeal and to the Impugned Ministerial Direction. 2 Further documents were exhibited to affidavits of

• • Pearse Dillon sworn on 23 March 2023 for the Board.

• • Claragh Mulhern sworn on 5 May 2023 for the second, third and fourth respondents (“the State”).

• • John Desmond sworn on 11 May 2023 for the OPR.

4 I have read some, though not all, of the documents exhibited in those affidavits. As to those I have not read, I have found the indices to the exhibits informative as to their nature and content. It appears to me that I have adverted to information ample to allow me to observe that the vast majority, if not all, are in the nature of official or public or, one might say, quasi-official or quasi-public, 3 documents and correspondence. It seems to me highly unlikely that there could be any real dispute as to their accuracy as copies of originals, their provenance, their authorship, their content (as a matter of fact observable in the document as opposed to as to the truth of such content) and, in cases where it arises, receipt by addressees. Such documents are routinely admitted in evidence and their exhibition (other than in an affidavit of discovery) renders them admissible against the party exhibiting them, though not against other partes. But pleaders are entitled to raise such disputes and put opposing parties to formal proofs. So they should take care not to unnecessarily or unintentionally raise doubts in such regards. Of course, even as to documents of which formal proof is not required, issues may remain in dispute as to the interpretation or meaning of such documents, as to the factual truth of their content and/or as to their legal significance. So, again, pleaders are entitled to dispute such matters but should take care not to unnecessarily raise doubts in such regards. A pleader's opponent should not be put to reading between the lines of a plea in an attempt to discern what is “really” in dispute. In short, and as to documentary evidence, pleaders must be clear as to what exactly about a document they dispute.

5 Mount Salus objects to content of the respective opposition papers as, inter alia, being in impermissibly broad and unspecific terms. Accordingly, on the 17 ^th of July 2023, it issued purported 4 notices for particulars...