Peter Sweetman v an Bord Pleanála

JurisdictionIreland
JudgeMs. Justice Miriam O'Regan
Judgment Date14 April 2021
Neutral Citation[2021] IEHC 259
Date14 April 2021
Docket Number[Record No. 2018/1076 JR]
CourtHigh Court
Between
Peter Sweetman
Applicant
and
An Bord Pleanála
Respondent

and

Kilsarran Concrete T/A Kilsarran Build
Notice Party

[2021] IEHC 259

[Record No. 2018/1076 JR]

THE HIGH COURT

Judicial review – Substitute consent – Planning permission – Applicant seeking to quash decisions of the respondent – Whether the High Court should make a reference to the Court of Justice of the European Union

Facts: The applicant, Mr Sweetman, secured leave on 14 January 2019 to maintain judicial review proceedings wherein he sought to quash two separate decisions of the respondent, An Bord Pleanála (ABP), both dated 24 October 2018. In addition, the applicant sought various declaratory reliefs. The two decisions related to the quarry of the notice party, Kilsarran Concrete, at Hilltown Little, Bellewstown, Co. Meath. In one of the decisions substitute consent (SC) was afforded to the notice party pursuant to the provisions of s. 177K of the Planning and Development Act 2000 (as amended) (the PDA) and the second decision was a grant of planning permission for future use and development pursuant to the provisions of s. 37N of the PDA. It was argued that the High Court should of its own motion make a reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU). Although Moore v An Bord Pleanála [2020] IEHC 652 did deal with the adequacy of reasons, it was asserted that the Court did not engage with the Supreme Court judgment in Connolly v An Bord Pleanála [2018] IESC 31, as to the necessity not only to set out what matters ABP had regard to but to also identify in its decision as to “why” it came to the conclusion it did which was contrary to the conclusion of the ABP Inspector in his report of 6 November 2014. The applicant argued the “time travel” argument in relation to mitigation measures, and in particular queried how future mitigation measures could possibly be sufficient to address past issues on the site which had occurred without the benefit of planning permission. It was argued that ABP afforded planning permission for future development of a depth which was nine metres in excess of the application made to it, and this was irrational with such grant afforded without a proper Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) in respect of such additional depth. It was asserted that in granting the two decisions there was an apprehension of objective bias, and pre-determination of the grant of future planning permission under s. 37N of the PDA. The applicant claimed that ABP neglected to publish in a readily accessible public forum and in a timely manner, or at all, the decisions on its website and the applicant sought a declaration that same was in breach of fair procedure, natural justice, the Aarhus Convention and its implementing directives.

Held by O’Regan J that the suggestion that the Court should of its own motion either make a reference to the CJEU or interpret the provisions of s. 177 as enabling the issue of exceptional circumstances to be reconsidered at stage two, ignored completely her findings and decision in Moore and was in essence to the effect that by making a reference it might be possible to secure the overturning of Moore; furthermore, the argument ignored the judgment of McKechnie J of 1 July 2020 in Sweetman v An Bord Pleanála & Ors. [2020] IESC 39. She held that the “why” allegedly outstanding from ABP’s decision was identifiable from a reading of the Inspector’s report, and reading the decision of ABP. Insofar as the applicant complained that it was impossible to retrospectively determine whether or not planning permission might have been afforded in the past, this seemed to her to be an argument against the entire process of applying for SC and could not be determined in the proceedings with no State respondent. She noted that it was common case that since the institution of the proceedings the depth had been remedied by ABP, following a letter from the notice party of 4 February 2019 to ABP requesting such an amendment. In her view a reasonable independent observer conversant with all relevant facts would not apprehend bias or prejudgment in the circumstances. Given the explanation tendered to the Court it was clear to her that the failure to upload the decisions on the website was not the consequence of any deliberate or mischievous act, and therefore in the context of the fact that no prejudice had been identified, the affording of a declaration only in these proceedings would not be warranted.

O’Regan J held that the relief sought by the applicant would be refused.

Relief refused.

JUDGEMENT of Ms. Justice Miriam O'Regan delivered on the 14th day of April, 2021.

Introduction
1

The above applicant secured leave on 14 January 2019 to maintain the within judicial review proceedings wherein he seeks to quash two separate decisions of An Bord Pleanála (ABP), both dated 24 October 2018. In addition, the applicant seeks various declaratory reliefs.

2

The two decisions of 24 October 2018 relate to the notice party's quarry at Hilltown Little, Bellewstown, Co. Meath. In one of the decisions substitute consent (SC) was afforded to the notice party pursuant to the provisions of s.177K of the Planning and Development Act 2000 (as amended) (the PDA) and the second decision was a grant of planning permission for future use and development pursuant to the provisions of s.37N of the PDA.

3

Similar although not completely identical proceedings were instituted by one John Moore (in respect of the instant quarry), where leave was also granted on 14 January 2019. The Moore v. An Bord Pleanála [2020] IEHC 652 ( Moore) proceedings were heard in October 2020 following which I delivered judgment on 4 December 2020. It had been intended to hear the within proceedings immediately following the Moore proceedings, however that did not prove possible.

4

The applicant had prepared written submissions for the hearing of the within proceedings, prior to the issuing of the judgment in the Moore proceedings. The notice party prepared submissions in respect of the within matter dated 24 February 2021 and at para. 5 thereof it was submitted that the applicant should be required to provide updated legal submissions in order to focus the submissions on how the applicant intends to distinguish its case from Moore. In purported response to this submission by the notice party, the applicant delivered further submissions on 4 March 2021. At para. 1 of the further submissions it was indicated that same were delivered in the light of the request of the notice party for the applicant to deliver supplementary submissions. There was no attempt in the supplementary submissions to distinguish the within matter from the Moore judgment, however, at the conclusion of the hearing the parties did agree a list of issues argued in Moore.

5

I indicated to the applicant from the outset that any argument he wished to make which was already dealt with in Moore, would be assumed to have been made in this matter, with a like response from the Court as was given in the judgment in Moore.

Issues
6

Arising from the foregoing I am of the view that the following issues remain to be addressed by the Court in this judgment:

  • (1) Reference under Article 267: (a) It is argued in submissions that the Court should of its own motion make a reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU).

    (b) Contrary to the finding in Moore the domestic jurisprudence on collateral attack does not avail ABP in circumstances where it is asserted that exceptional circumstances had not been demonstrated to exist contrary to the clear finding of the CJEU in the case of Commission v. Ireland Case C-215/06. It is in this regard that the applicant suggests that a reference to the CJEU is warranted.

  • (2) Reasons: Although Moore did deal with the adequacy of reasons, it is asserted that the Court did not engage with the Supreme Court judgment in Connolly v. An Bord Pleanála [2018] IESC 31, as to the necessity not only to set out what matters ABP had regard to but to also identify in its decision as to “why” it came to the conclusion it did which was contrary to the conclusion of the ABP Inspector in his report of 6 November 2014.

  • (3) Time travel argument: In Moore the applicant argued the “time travel” argument in relation to mitigation measures, and same was dealt with at para. 16 of the judgment, but only to the extent that I found that ABP did not act outside of its jurisdiction, and had a basis for the conclusions that it came to in relation to the destruction of the monument and concerns of the local community. The applicant has repeated this argument in these proceedings, and in particular queries how future mitigation measures could possibly be sufficient to address past issues on the site which have occurred without the benefit of planning permission. It should be borne in mind that the statutory process of reviewing the status on the ground for the purposes of securing SC is not at issue in these proceedings and there are no State respondents to the proceedings.

  • (4) Depth of excavation: It is argued that ABP afforded planning permission for future development of a depth which was nine metres in excess of the application made to it, and this is irrational with such grant afforded without a proper Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) in respect of such additional depth.

  • (5) Bias: It is asserted that in granting the two decisions on 24 October 2018 there is an apprehension of objective bias, and pre-determination of the grant of future planning permission under s.37N of the PDA.

  • (6) Website: The applicant claims that ABP neglected to publish in a readily accessible public forum and...

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