North Westmeath Turbine Action Group v an Bord Pleanala

JudgeMr Justice Maurice Collins
Judgment Date11 December 2020
Neutral Citation[2020] IECA 355
Docket NumberRECORD NOS 2020/55 & 2020/56
CourtCourt of Appeal (Ireland)
Date11 December 2020




Notice Parties

[2020] IECA 355

Maurice Collins

RECORD NOS 2020/55 & 2020/56



JUDGMENT of Mr Justice Maurice Collins delivered on 11 December 2020

Before the Court for determination are two applications brought by Ireland and the Attorney General (collectively, “ the State”) seeking to strike out appeals brought by the Appellants on the basis that (so it is asserted) the Appellants are not entitled to bring those appeals without first obtaining leave to appeal from the High Court pursuant to section 50A(7) of the Planning and Development Act 2000 (as amended).


It is common case that no leave to appeal was sought from the High Court and the essential issue on these applications is whether the appeals come within the scope of section 50A(7) or not.


Before that issue can usefully be addressed, it is necessary to explain what the appeals are about and the background to them. I will endeavour to do so as briefly as I can.


These proceedings involve a challenge by the Appellants to a decision of An Bórd Pleanála (“ the Board”) to grant planning permission for a 13 turbine windfarm in the townland of Coole and adjacent townlands in Co Westmeath. The decision of the Board was given on 26 March 2019.


Leave to apply for judicial review was granted by the High Court on 27 May 2019 and the proceedings were subsequently admitted to the Commercial List.


In August 2019, the State brought an application to dismiss/strike-out the proceedings against it pursuant to Order 19, Rules 27 and/or 28 RSC and/or the inherent jurisdiction of the Court, asserting that the proceedings disclosed no reasonable cause of action as against the State and/or were frivolous and vexatious and/or were doomed to fail.


The basis for the application was set out in an affidavit sworn by Barry Ryan, a solicitor from the Chief State Solicitor's Office, sworn on 13 August 2019. Mr Ryan observed that of the 45 paragraphs in the Statement of Grounds, only five (E26 and E41-E44) could be construed as touching on the State insofar as they raised issues concerning the transposition of the EIA and Habitats Directive. However, Mr Ryan said, those pleas were “vague and so unclearly expressed as not to be in accordance with Order 84 Rule 20(2)” RSC. Mr Ryan observed that no reliefs were sought against the State and referred to previous correspondence in which these points had been raised with the solicitors for the Appellants and the Appellants had been invited to release the State from the proceedings. Mr Ryan also observed that the grounds raised in relation to the State depended on the meaning of particular conditions of the planning permission and suggested that the State had been named in reserve as a backup to other grounds relevant to the Board. That, Mr Ryan suggested, was not a proper way to proceed, in particular in circumstances where no declaratory relief or otherwise can be granted against the State.


The particular paragraphs in the Statement of Grounds referred to by Mr Ryan are lengthy. They make a number of complaints about the transposition of Council Directive 2014/52/EU (the EIA Directive) and Council Directive 19/43/EU (the Habitats Directive) into Irish law, both as regards issues of public participation (paragraphs E41 and E43) and mechanisms for the imposition of mitigation measures (paragraphs E42 and E44). For the purposes of this judgment, it is does not appear necessary to refer in any more detail to these paragraphs.


The State's application appears to have prompted the Appellants to bring an application seeking to amend the Statement of Grounds by the addition of two further declarations, in the following terms:

“A Declaration that Council Directive 92/43/EU has not been properly transposed by the Second Named Respondent in circumstances where there is no provision in the Planning and Development Act 2000 (as amended) whereby mitigation measures can be lawfully imposed on lands other than those provided for under section 34(4) of the Planning and Development Act.”


“A Declaration that the provisions of Council Directive 2014/52/EU have not been properly transposed in circumstances where there is no provision whereby mitigation measures can be lawfully imposed on lands other than those provided for under section 34(4) of the Planning and Development Act.”


The application to amend was grounded on an affidavit sworn by Gabriel Toolan, the solicitor acting for the Appellants, on 9 October 2019. He explained in brief terms the basis for the Appellants' complaints regarding the transposition of the EIA Directive and the Habitats Directive and observed that these issues had been raised in the Statement of Grounds in the paragraphs I have summarised above.


The two motions came on for hearing before the High Court (Twomey J) (“” the Judge”) over 2 days in November 2019. By then, the State had filed a Statement of Opposition in which, after making a preliminary objection to the effect that the proceedings against the State ought to be dismissed because of the failure to seek relief against them, proceeded to address the transposition grounds.


The Judge gave judgment on the two motions on 19 December 2019. He addressed what he referred to as “ the strike-out application” first, on the basis that it was first in time. As regards that application, the Judge referred extensively to the decision of the High Court (Costello J) in Alen-Buckley v An Bord Pleanala [2017] IEHC 311. In Alen-Buckley v An Bord Pleanala the court had acceded to an application to strike out judicial review proceedings against the State in circumstances similar to the circumstances of the State's application in these proceedings and the Judge concluded that the same approach was appropriate here.


The Judge rejected the argument that Alen-Buckley v An Bord Pleanala should be distinguished on the basis that no application to amend had been made in Alan-Buckley whereas such an application had been brought by the Appellants here. The reasoning of the Judge on this point is a little difficult to follow. He considered that it was “self-evident that if the pleadings are now amended to include relief against the State parties, there would then be a cause against the State parties.” (Judgment at para 38). However, the filing of the motion to amend does not, and cannot, impact on the strength of the standalone argument contained in the motion for strike out, that where pleadings disclose no relief as against the State parties, they are bound to fail (Judgment, at para 44). In coming to that conclusion, the Judge expressed concern that to permit the amendment would circumvent strict time sensitive rules and would allow the Appellants to bring a judicial review challenge against the State some 142 days after the time for doing so had expired. He also criticised the absence of any explanation as to why no reliefs had not been sought against the State. The Judge suggested that the failure to do so may not have been an oversight though he did not identify what might have the reason for any intentional omission of such reliefs.


The Judge then went on to address the amendment motion, though noting that his earlier analysis had effectively disposed of it. Again, he emphasised the time-limits involved and the public policy underpinning them and also stressed (as he had done earlier in his Judgment) the failure of the Appellants to explain their failure to seek relief against the State. He rejected the argument that permitting the amendment was not akin to permitting an entirely new case to be advanced against the State, given that the grounds for seeking those reliefs were already in the Statement of Grounds. The Judge concluded that even if the application to amend “ was to be considered in isolation”, no sufficient justification to permit the amendment had been offered.


The Judge expressed his conclusions as follows:

“52. In summary, this Court will grant the motion of the State parties .. for an Order striking out the proceedings against them as bound to fail. It follows therefore that this Court refuses the application of the Action Group … to amend the Statement of Grounds.”

The correctness of these conclusions is not in issue before this Court at this time. That is a matter to be addressed if and when the Court comes to hear the appeals the subject of the applications now before the Court.


In any event, by two Notices of Appeal dated 19 February 2020 the Appellants appealed the order striking out the proceedings against the State as being bound to fail and also appealed against the order refusing their amendment application (separate orders having been drawn up by the High Court). In due course, Respondents' Notices were filed by the State. Those Notices do not appear, on their face, to take any issue with the Appellants' entitlement to bring the appeals.


The applications now before this Court then issued, affidavits were exchanged and the applications were heard by the Court yesterday.


In order to complete the narrative, I should mention that the judicial review proceedings – in which the Board is now the sole respondent - have since been heard by the High Court (Quinn J). Judgment was reserved and has not yet been delivered. The State did not participate in that hearing.


Sections 50 and 50A of the Planning and Development Act 2000 are significant provisions concerning the bringing and determination of judicial review proceedings in planning...

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6 cases
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