People Over Wind, Environmental Action Alliance Ireland v an Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Haughton |
| Judgment Date | 11 June 2015 |
| Neutral Citation | [2015] IEHC 356 |
| Court | High Court |
| Date | 11 June 2015 |
[2015] IEHC 356
THE HIGH COURT
BETWEEN
AND
AND
Practice & Procedures – the Planning Development Act 2000, Reconsideration of judgment – Amendment of application – Grounds for review of judgment
Facts: Following the judgment of the Court dismissing the claim of the applicants, the first named applicant now sought reconsideration of the judgment on the ground that the third named notice party was not served with the appeal of the respondent. The first named applicant also applied for an order to amend its grounds of review to include the first named notice party and/or the respondent to notify the third named notice party of the appeal lodged with the respondent.
Ms. Justice Haughton refused to grant an order to reconsider the judgment delivered by the Court. The Court held that a final order made and perfected could only be interfered with under unusual circumstances or where there had been an omission in drawing up the judgment or where in the opinion of the Court the said judgment as drawn did not correctly state the desired opinions. The Court held that the applicants in the case for review had the heavy onus to meet the aforesaid criteria, failing which the relief sought could not be granted. The Court held that the first named applicant being on notice of the proceedings initially could have ascertained the fact of non-notification of the third named notice party of the appeal lodged with the respondent and to raise such an objection now would be nothing but an abuse of the process of law. The Court held that under the guise to seek amendment to rectify an error that could have been taken care of had the matter been perused diligently, the applicant now could not seek reconsideration of judgment.
JUDGMENT of Mr. Justice Haughton delivered the 11th day of June, 2015
1. I delivered my final judgment in these judicial review proceedings on 1 st May, 2015, dismissing the applicants' claims. The first named applicant by notice of motion dated 3 rd June, 2015 now seeks inter alia the following two reliefs: firstly "reconsideration by this Honourable Court of the Court's judgment...to take into account that the third named notice party was not served with the appeal lodged to the respondent and that it, and in particular, its servants or agents, The National Parks and Wildlife Service (NPWS) were not on notice of the appeal contrary to National and European law and in particular Article 69 of the Planning and Development Regulations 2000-2015"; secondly, if necessary an order allowing the first named applicant to amend its grounds of review to include the failure of Laois County Council and/or the respondent to notify the third named notice party of the appeal lodged with the respondent.
2. The circumstances in which the Court may review its own judgments were addressed by the Supreme Court in Re Greendale Developments Ltd [2000] 2 I.R. 514. After reviewing the jurisprudence and approving the opinions expressed in Ainsworth v. Wilding [1896] 1 Ch. 673, Hamilton C.J. at p.527 stated:-
"The court in this case was dealing with an order made by the High Court and consequently was not concerned with the provisions of Article 34.4.6 of the Constitution 1."
However, it set out in detail the common law principle concerning the question, holding that where a final order has been made and perfected it can only be interfered with
(1) in special or unusual circumstances, or
(2) where there has been an accidental slip in the judgment as drawn up, or
(3) where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.
The restriction on the power of a court to amend or vary an order which has been made and perfected, therein set forth, must apply to an application to set aside an order.
At the conclusion of the passage from the said judgment set forth herein, it is emphasised that the finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law, and should not lightly be breached."
At p.529 the Chief Justice stated:-
"These passages emphasise the fundamental importance of the finality of proceedings to the certainty of the administration of law. Public policy requires a definite and decisive end to litigation."
Denham J. at p.542 stated:-
"The Supreme Court has jurisdiction and a duty to protect constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final order. However, it will only arise in exceptional circumstances. The burden on the applicants to establish that exceptional circumstances exist is heavy."
3. The Supreme Court returned to this subject in the context of a planning dispute in Abbeydrive Developments Limited v. Kildare County Council [2010] IESC 8, a decision relied upon by the first named applicant herein. The applicant there sought planning permission for a housing development, and the application was accompanied by an environmental impact statement. An Taisce made an initial submission to the respondent in respect of the proposed development, but received no further correspondence from the respondent until four years later when it received a letter stating that the s.175 application had been withdrawn. This representation to An Taisce, which was repeated in a subsequent letter, was incorrect as the application had in fact never been withdrawn. The respondent then failed to make a decision on the application within the eight week period allowed by s.34(8)(a) of the Planning and Development Act, 2000 as amended ("PDA 2000"), and the applicant sought a declaration that the respondent was deemed to have granted a permission under s.34(8)(f). On appeal, the Supreme Court held that the applicant was entitled to the declaration sought and adjourned the matter to allow for submissions on the form of the order. An Taisce was alerted to the decision, and the fact that the application for planning permission had not been withdrawn from reports in a national newspaper, and applied to the Supreme Court to be represented. It wanted to make the argument that the grant of a default permission was contrary to European law as the European Court of Justice had ruled in Commission v. Belgium ( Case C-230/00) [2001] ECR I-4591 that developments that are subject to the requirements of the E.I.A. Directive cannot be authorised by way of tacit permission or refusal.
4. In allowing the application by An Taisce Kearns P. delivered the unanimous decision of the Court stating at p.403:-
"...In re Greendale Developments Ltd (No.3) provides a useful guide as to the principles which should apply when trying to resolve the kind of difficulty which has arisen here. It undoubtedly involves the invocation of a special jurisdiction. In considering whether or not the threshold has been reached for the invocation of this special jurisdiction, it is necessary to consider the overall importance of the point sought to be raised. Clearly it must be a point which, if valid, would as a matter of probability have affected the outcome of the case. It is also important for the court to consider whether or not the particular point could have been raised in the High Court by a party who had opportunity to argue the point in that court. This might be described as an application or example of the doctrine in Henderson v. Henderson (1843) Hare 100, which requires the parties to litigation to bring forward their entire case at the time of trial. While this latter consideration does not apply to An Taisce, which was unaware of the proceedings, it would, in my view, greatly weaken the strength of its application in the present instance if the point in question could have been raised by the respondent."
5. At p.407 Kearns P. stated:-
2 "26. I am satisfied that these authorities suggest clearly that the point raised by An Taisce, namely, that the failure to carry out an assessment of the environmental impact statement is a point going to the very heart of a decision to grant permission, be it on a "deemed" basis or otherwise, and, further, is one of substance which would, if upheld, have affected the outcome of the proceedings herein....
28. While obviously one is always reluctant to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case really leave the court with no alternative if it is to do justice."
6. The circumstances in which the first named applicant learnt that the Department of Arts, Heritage and the Gaeltacht ("the Department")/NPWS was unaware of the appeal by Coillte to An Bord Pleanála are averred to in affidavits sworn by Dr. Evelyn Moorkens on 2 nd June, 2015 and by Ms. Lucy Haggan, a solicitor acting for the first named applicant, on 3 rd June, 2015 and 8 th June, 2015. After delivery of my judgment Dr. Mookens made enquiries and avers that she discovered that the NPWS "were completely unaware of the making of the appeal" and that "the NPWS were never notified of the appeal by either Laois County Council or An Bord Pleanala". A review of Laois County Council files referred to in correspondence exhibited by Ms. Hagan tended to confirm this.
7. The first named applicant's solicitors promptly notified the respondents and...
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