Peter Sweetman v an Bord Pleanála, Ireland and The Attorney General

JurisdictionIreland
CourtHigh Court
JudgeHumphreys J.
Judgment Date26 October 2021
Neutral Citation[2021] IEHC 662
Docket Number[2020 No. 557 JR]

In the Matter of an Application Pursuant to Section 50, 50A and 50B of the Planning and Development Act 2000

Between
Peter Sweetman
Applicant
and
An Bord Pleanála, Ireland and The Attorney General
Respondents

and

Bord Na Móna Powergen Limited
Notice Party

[2021] IEHC 662

[2020 No. 557 JR]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Development – Judicial review – Respondent seeking leave to appeal – Whether the test for leave to appeal including public interest and the point being exceptional was satisfied

Facts: The High Court (Humphreys J), on 16th June, 2021 in Sweetman v An Bord Pleanála (No. 1) [2020] IEHC 390, granted certiorari of a decision of the first respondent, An Bord Pleanála, permitting the notice party, Bord na Móna Powergen Ltd, to construct a windfarm development. The issue before the court was whether leave to appeal should be granted.

Held by Humphreys J that the questions arising that were appropriate to be certified were as follows: (i) Whether it is permissible to allow a variable design application that goes beyond a reasonable limited degree of flexibility and/or could give rise to a genuine planning issue after the grant of development consent in the Strategic Infrastructure Development context, having regard in particular to: (a) the requirement in art. 214(1)(a) of the Planning and Development Regulations 2001 for plans and particulars; (b) the Supreme Court decision in Boland v An Bord Pleanála [1996] 3 I.R. 435; (c) the judgment in Bailey v Kilvinane Wind Farm Ltd [2016] IECA 92; (d) the fact that an open-ended scale inherently creates a large zone of permitted design where construction on such a basis would be neither intended nor appropriate; (e) the requirement in the application form for Strategic Infrastructure Development that there be general accord with the Planning and Development Regulations 2001 to 2018 insofar as that includes arts. 22 and 23 of the 2001 regulations; (f) the extent to which art. 210 of the 2001 regulations reinforces the effect of the application form; and/or (g) the inappropriateness of the court adding significant flexibilities to the Planning and Development Act 2000 and 2001 regulations beyond those provided, particularly given the highly complex and comprehensive nature of the statutory code and the potential impacts on and trade-offs for multiple stakeholders above and beyond the board and developers; (ii) Is it open to the board in this case to contend on appeal that approval of a “typical” design cannot be substantially deviated from: (a) not having clearly and/or effectively and/or at all made that point at the hearing; and/or (b) given that such a point contradicts the evidence before the court and the board; (iii) If the board can make that argument, is that argument correct having regard in particular to: (a) a lack of provision to that effect in the board decision; (b) a lack of provision to that effect in any relevant measure of general application such as the 2001 regulations; and/or (c) the fact that such an interpretation renders the phrase “typical” redundant (because if only a non-material deviation is allowed from a typical design, then it serves the same purpose as a “design” simpliciter, from which a non-material deviation is also allowed); and (iv) Insofar as a permission can lawfully allow a degree of flexibility, is the board required to consider and assess the range of options within that flexibility as opposed to merely assessing the worst-case scenario, having regard in particular to: (a) the inherent incompleteness of assessing only one option for the outcome where potentially a number of alternatives could be constructed; (b) the subjectivity of the concept of what is worst-case; and/or (c) the impact on public participation of such a limited form of assessment.

Humphreys J granted the respondent leave to appeal and certified the questions as being (collectively) ones of exceptional public importance on the basis of which it was in the public interest that there be an appeal to the Court of Appeal.

Leave to appeal granted.

SWEETMAN XVII (No. 2)

JUDGMENT of Humphreys J. delivered on Tuesday the 26th day of October, 2021

1

In Sweetman v. An Bord Pleanála (No. 1) [2020] IEHC 390, ( [2021] 6 JIC 1601 Unreported, High Court, 16th June, 2021), I granted certiorari of a decision of the board permitting the notice party to construct a windfarm development. The issue now before the court is whether leave to appeal should be granted.

Sweetman cases – nomenclature
2

I begin with a question of nomenclature. Looking only at cases where Mr. Sweetman is the first-named applicant, whether or not the board is the first-named respondent, there appear to be 17 separate Sweetman cases. These are now frequently difficult to readily distinguish from each other. Following discussion with the counsel in the present case, I suggest that they could be identified going forward as Sweetman Nos. I to XVII inclusive according to the table below. The present case would on this nomenclature system be Sweetman XVII (No. 2). I should emphasise that this is meant to be a guide to citation, not a complete record of Mr Sweetman's litigation, because there are many other cases (including two CJEU references) in cases where he is or was the second-named rather than first-named applicant. I should also say that I amn't expecting this naming system to be taken up universally, but it might help provide some clarification in at least some contexts as to which Sweetman case is being talked about at any given time.

Proposed Case Citation

Case name

Record No.

No. 1 Judgment

No. 2 Judgment

No. 3/ subsequent Judgment/ appellate/ CJEU decisions

Sweetman I

Sweetman v. Shell E. & P. Ireland Ltd.

[ 2005 MCA 17]

[2006] IEHC 85

[2016] IESC 2; [2017] 3 I.R. 13

[2016] IESC 58; [2016] 1 I.R. 742

Sweetman II

Sweetman v. An Bord Pleanála

[2006 No. 477 JR]

[2007] IEHC 153; [2008] 1 I.R. 277

[2007] IEHC 361

Sweetman III

Sweetman v. An Bord Pleanála

[2009 No. 99 JR]

[2009] IEHC 174

[2009] IEHC 599

Case C-258/11

Sweetman IV

Sweetman v. An Bord Pleanála

[2009 No. 202 JR]

[2010] IEHC 53

Sweetman V

Sweetman v. An Bord Pleanála

[2013 No. 356 JR]

[2016] IEHC 277

[2016] IEHC 374

[2016] IESCDET 133

Sweetman VI

Sweetman v. An Bord Pleanála

[2015 No. 2 JR]

[2015] IEHC 285

[2016] IECA 123

[2016] IESCDET 92

[2018] IESC 1; [2018] 2 I.R. 250

Sweetman VII

Sweetman v. An Bord Pleanála

[2015 No. 545 JR]

[2016] IEHC 310

[2017] IESCDET 19

Sweetman VIII

Sweetman v. An Bord Pleanála

[2016 No. 542 JR]

[2019] IEHC 40

[2019] IESCDET 217

[2020] IESC 39

Sweetman IX

Sweetman v. An Bord Pleanála

[2016 No. 715 JR]

[2017] IEHC 46

[2017] IEHC 133

Sweetman X

Sweetman v. EPA

[2016 No. 824 JR]

[2018] IEHC 156

Sweetman XI

Sweetman v. EPA

[2017 No. 664 JR]

[2019] IEHC 81

Sweetman XII

Sweetman v. Clare County Council

[2018 No. 178 JR]

[2018] IEHC 517

Sweetman XIII

Sweetman v. An Bord Pleanála

[2018 No. 1076 JR]

[2021] IEHC 259

Sweetman XIV

Sweetman v. An Bord Pleanála

[2018 No. 740 JR]

[2021] IEHC 16

Sweetman XV

Sweetman v. An Bord Pleanála

[2019 No. 33 JR]

[2020] IEHC 39

Sweetman XVI

Sweetman v. Cork County Council

[2019 No. 253 JR]

[2021] IEHC 350

Sweetman XVII

Sweetman v. An Bord Pleanála

[2020 No. 557 JR]

[2021] IEHC 390

[2021] IEHC 662

Leave to appeal generally
3

The present application is brought under s. 50A(7) of the Planning and Development Act 2000. I have considered the criteria for leave to appeal and the caselaw in that regard, in particular Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112, Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, [2006] 7 JIC 1302 (Unreported, High Court, MacMenamin J., 13th July, 2006), S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016), Dublin City Council v. An Bord Pleanála (No. 2) [2021] IEHC 34, ( [2021] 1 JIC 2801 Unreported, High Court, 28th January, 2021), ( [2021] IEHC 422 An Taisce v. An Bord Pleanála Unreported, High Court, 2nd July, 2021).

Application of the law to the present case
4

The animating spirit and totem of the board in this application is that of Joe, a surnameless character in The Pickwick Papers (Charles Dickens (London, Chapman & Hall, 1836–37)), whose mission in life was expressed in his declamation “I wants to make your flesh creep”. His catchphrase was referenced by Lord Reed (Lord Neuberger, Lady Hale, Lord Dyson and Lord Toulson concurring) in Cox v. Ministry of Justice [2016] UKSC 10 when rejecting scare tactics on behalf of the officialdom as to the implications of finding for the plaintiff, including the spectre of knock-on floodgates of copycat litigation.

5

History repeats itself, and here the board has sought to suggest that the No. 1 judgment has extremely wide-ranging implications. That concern, without entirely dismissing it, is, however, overblown. I will try to summarise the situation under the main headings of the design envelope, the related issue of the application form, the use of “typical” designs, and finally the need to assess the options rather than the worst-case only.

The design envelope
6

The board interprets the No. 1 judgment as a rejection of the concept of the design envelope. I'm afraid I can't agree with that characterisation. An envelope joins two sides of paper in a front and a back with the design contained in between. The permission here involves just one such constraint. The design is free to float as far...

To continue reading

Request your trial
1 cases
  • Enniskerry Alliance v an Bord Pleanala and Protect East Meath Ltd v an Bord Pleanala
    • Ireland
    • High Court
    • 10 June 2022
    ...2021_IEHC_612.pdf/pdf#view=fitH (xxxii). Sweetman v. An Bord Pleanála [2021] IEHC 662, ( [2021] 10 JIC 2601 Unreported, High Court, 26th October, 2021). https://www.courts.ie/acc/alfresco/3c25b060-c48d-4fac-8bff-1b2629d34264/ 2021_IEHC_662.pdf/pdf#view=fitH (xxxiii). Tearfund Ireland Limite......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT