Mulholland v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 14 June 2005
• Neutral Citation: [2005] IEHC 188
• Docket Number: [2004 No. 404 JR]
• Court: High Court
• Date: 14 June 2005

MULHOLLAND & KINSELLA v BORD PLEANALA

COMMERCIAL

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION BY WAY OF JUDICIAL REVIEW

BETWEEN/

DESMOND MULHOLLAND AND DONAL KINSELLA

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

COVERFIELD DEVELOPMENTS LIMITED, THE CARROLL VILLAGE (RETAIL) MANAGEMENT SERVICES LIMITED (OTHERWISE KNOWN AS CARROLL VILLAGE (RETAIL) MANAG EMENT SERVICES), DUNDALK RETAILERS ASSOCIATION AND DUNDALK TOWN COUNCIL

NOTICE PARTIES

[2005] IEHC 188

No. 404 J.R./2005

THE HIGH COURT

Waste management

Waste disposal without licence -Environmental pollution - Risk of pollution -Site investigation and report - Conditions necessary to making of order under s 57(1) -Whether conditions established - Whether evidence of on-going environmental damage at time of making of order necessary -Whether plea of guilty in prior criminal proceedings admissible - Prejudice -Whether respondent bound by plea -Discretion - Principles applicable to exercise of discretion - Whether order under s 57available only as last resort - Whether appropriate to order respondents to commission site investigation and report -Whether s 57 applicable to first respondent personally - Wicklow County Council v Health [2005] IESC 26, [2005] 1 IR 294 distinguished - Rules of the Superior Courts1986 (SI 15/1986), O 63A, r 1(g) -Proceedings admitted to commercial list (2005/404JR - Kelly - 14/6/2005) [2005] IEHC 188

MULHOLLAND & KINSELLA v BORD PLEANALA

Facts: The applicants sought leave to apply for judicial review of a decision to grant planning permission for a substantial development. The first notice party applied to have the proceedings transferred into the Commercial List pursuant to the provisions of O.63A, r.1(g). The applicants opposed the application and the respondent took a neutral stance.

Held by Kelly J. in admitting the proceedings to the Commercial List that there were very substantial commercial aspects to the development the subject of the planning permission which was sought to be impugned. The proceedings fell squarely within the parameters of O.63A, r.1(g)

Reporter: R.W.

PLANNING & DEVELOPMENT ACT 2000 S50RSC O.63A r1(g)

RULES OF THE SUPERIOR COURTS (COMMERCIAL PROCEEDINGS) 2004 SI 2/2004

RSC O.63A r1(a)

RSC O.63A r1(b)

RSC O.63A r1(c)

RSC O.63A r1(d)

RSC O.63A r1(e)

RSC O.63A r1(f)

KINSELLA v DUNDALK TOWN COUNCIL UNREP HIGH COURT KELLY 3.12.2004

PJ CARROLL & ORS v MIN FOR HEALTH & CHILDREN & ORS UNREP SUPREME 3.5.2005

CONSTITUTION ART 26

1 Judgment of Mr. Justice Kelly delivered the 14th day of June, 2005 .

Introduction

2 On 27th May, 2005 I heard and determined an application made by the first notice party (Coverfield) to transfer this case into the Commercial List. I granted the application notwithstanding the opposition of the applicants in the proceedings. A neutral stance on that application was taken by the respondent in the proceedings. The other notice parties did not participate in that hearing.

3 I made the order to admit the case to the list pursuant to the provisions of O.63A, r. 1(g) of the Rules of the Superior Courts.

4 In deference to the submissions which were made on that occasion and the possible relevance of the decision for others cases seeking admission to the list, I indicated that I would give my reasons in writing for holding in favour of Coverfield. This I now do.

The Proceedings

5 These are judicial review proceedings. The applicants (if granted leave to apply) will seek certiorari to quash a decision of the respondent given on 25th February, 2005, to grant planning permission for a very substantial development at Dowdallshill, Dundalk, County Louth.

6 The permission is for a factory outlet centre containing 81 retail units with associated mall, snack bars, playground, crèche and parking for 1,120 cars and 20 coaches.

7 No fewer than 28 grounds are relied upon by the applicants in support of their entitlement to certiorari. Indeed, some of those grounds are particularised with up to as many as twelve detailed particulars being furnished in respect of some of them.

8 The judicial review application is made pursuant to the provisions of s. 50 of the Planning and Development Act, 2000, as amended. The application for leave must be on notice to the prescribed parties. The notice of motion in that regard was dated 19th April, 2005 and was returnable in the ordinary way before the court on 30th May, 2005.

9 By motion dated 9th May, 2005 Coverfield sought the transfer of the case to the Commercial List. That motion was first listed on 12th May but on the application of the applicants in the proceedings was adjourned for hearing to 27th May, 2005.

Commercial Proceedings

10 Order 63A of the Rules of the Superior Courts ( S.I. No. 2 of 2004) created the Commercial List of the High Court. It was created on foot of recommendations which had been made by numerous committees, the most relevant being the Committee on Court Practice and Procedure. In its 27th interim report that committee recommended the establishment of a court which would enable the speedy resolution of commercial disputes and facilitate the conduct of court business through the use of up to date technology.

11 Order 63A seeks to create such a regime and appears to have done so successfully. The Commercial List came into operation on 12th January, 2004. By direction of the President of the High Court only cases which commenced after that date were admitted into the Commercial List. By 27th April, 2005, 77 such cases had been admitted to the list. As of that date 50 of them had been completed. The average time period from entry to the list until the date of the final order was nine weeks.

12 The term "commercial proceedings" is defined in O.63A, r. 1. The type of case which is described under sub-heading (a) of that definition is precisely the type of business which one would expect in any commercial court. It certainly reflects the type of business one finds transacted in the Commercial Court in London, Edinburgh and Belfast. Such cases involve private law disputes of a commercial nature.

13 Sub-paragraph (b) of the definition confers a wide discretion upon the judge in charge to enter into the list cases which do not fall within what is described in any other part of the definition but which may nonetheless have commercial or other aspects which in the discretion of that judge make them suitable for entry into the list.

14 The arbitration matters described in sub-heading (c) of the definition again involve private law disputes of a type which one typically finds in the commercial courts of the other three jurisdictions which I have mentioned.

15 Paragraphs (d), (e) and (f) deal with intellectual property matters. They are somewhat atypical of the type of business which falls to be dealt with in commercial courts in other jurisdictions. Nonetheless they are capable of being admitted to the commercial list.

16 Paragraph (g) of the definition of commercial business deals with a species of business which is primarily one of public law. It involves appeals from or judicial review of decisions given by a person or body authorised by statute to make such decisions where the judge in charge of the commercial list considers it appropriate for entry in the list having regard to the commercial or any other aspect thereof. This type of proceeding is not typically found in a commercial court. Nonetheless the Rules Committee invested a discretion in the judge in charge of the list to admit such a case in circumstances where he was satisfied that having regard to the commercial or any other aspect thereof it was appropriate for entry into such a list.

17 The Superior Court Rules Committee conferred a discretion upon the judge in charge of the list. That is evident from the fact that no case is entitled to entry into the list as of right. All cases must be the subject of an application to the judge for entry. It is also clear that by conferring the jurisdiction which is specifically provided for at rule 1(b) very wide scope is given to the judge in charge of the list to admit cases once satisfied that because of the commercial or any other aspect thereof they are appropriate for the list.

18 Public law issues of the type dealt with at rule 1(g) are also admissible as a matter of discretion.

19 By defining "commercial proceedings" as it did the Superior Court Rules Committee appeared to wish to give a wide measure of discretion to the judge in charge so as to enable the speedy resolution of commercial disputes using that term in a broad way. The committee did not attempt to tie the judge down to a technical or narrow view of what might be appropriate to be admitted to the list.

The Present Case

20 Coverfield is the owner of the lands to which the permission in suit attaches. It has an agreement for the sale of those lands conditional upon planning permission being obtained. The sale price will be in the region of €7 million. The construction costs in respect of the development will be in the region of at least €35 million. But for the existence of these judicial review proceedings Coverfield would be in a position to complete the sale of the lands and the purchaser could commence the development.

21 The first named applicant is a shop keeper who carries on business in Dundalk and swore his grounding affidavit on his own behalf and on behalf of the second applicant and with the support of the Dundalk Retailers Association who were observers to the appeal which was dealt with by the respondent. The second named applicant is himself a business man and swore his affidavit on his own behalf and on behalf of the first named applicant and with the...