Peter Sweetman v Cork County Council and an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Miriam O'Regan
• Judgment Date: 18 May 2021
• Neutral Citation: [2021] IEHC 350
• Docket Number: [Record No. 2019/253 JR]
• Court: High Court
• Date: 18 May 2021

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

Cork County Council and An Bord Pleanála

Respondents

and

Cliona O'Hanlon

Notice Party

[2021] IEHC 350

[Record No. 2019/253 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Stay – First respondent seeking to discharge stay – Whether the greatest risk of injustice would lie in granting a continuation of the stay

Facts: The High Court (Noonan J), by order of 29 April 2019, granted the applicant, Mr Sweetman, leave (on the basis of substantial grounds) to apply by way of application for judicial review for the relief of certiorari of a decision of the first respondent, Cork County Council, of 7 March 2019, granting the notice party, Ms O’Hanlon, planning permission. Leave was also granted in respect of various other declaratory reliefs sought. The Court also afforded the applicant a stay on the consideration of the applicant’s appeal of the Council’s decision to the second respondent, An Bord Pleanála, brought by way of letter dated 5 April 2019. The matter came before the Court on foot of the first respondent’s notice of motion of 22 July 2019 seeking to discharge the aforesaid stay. The applicant argued that lifting the stay would be fatal to the applicant in that it would render the judicial review proceedings moot, whereas it was suggested that there was no prejudice to the respondents in permitting the stay to continue. Mr O’Sullivan, Town Planner and Executive Planner of the County Council, raised the fact that there was a public interest in the orderly operation of the planning system and this was a factor to be taken into account in the balancing exercise in identifying where the greatest risk of injustice would lie (Okunade v Minister for Justice [2012] IESC 49).

Held by O'Regan J that: (a) the appeal to An Bord Pleanála was capable of addressing all issues raised; (b) the onus of proof lay with the applicant to establish that continuation of the stay was justified; (c) the potential mootness of the judicial review proceedings did not occasion appreciable prejudice to the applicant; (d) the submissions made by the applicant to the first respondent were general and nonspecific, and indeed only the first submission was within time; (e) the granting of leave supported the proposition that the applicant’s case was reasonable, arguable and weighty; (f) there was a public interest in the orderly implementation of the planning process; (g) there was a heightened public interest in the provision of social housing; and (h) appropriate weight must be given to the orderly implementation of measures which are prima facie valid. In all of the circumstances, O’Regan J was not satisfied that the applicant had discharged the onus on him to establish the necessity of a stay on the appeal before An Bord Pleanála. O’Regan J held that the greatest risk of injustice would lie in granting a continuation of the stay.

O'Regan J held that she would grant an order discharging the stay afforded on 29 April 2019 in respect of progressing the appeal to An Bord Pleanála.

Stay discharged.

JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 18th day of May, 2021.

1. Issues

1.1 By order of 29 April 2019 Noonan J. granted the applicant leave (on the basis of substantial grounds) to apply by way of application for judicial review for the relief of certiorari of a decision of the first named respondent of 7 March 2019, granting the notice party planning permission. Leave was also granted in respect of various other declaratory reliefs sought. The Court also afforded the applicant a stay on the consideration of the applicant's appeal of the Council's decision to An Bord Pleanála (ABP) brought by way of letter dated 5 April 2019. The matter comes before this Court on foot of the first named respondent's (the County Council) notice of motion of 22 July 2019 seeking to discharge the aforesaid stay.

1.2 At paragraph number four of the order of 29 April 2019 it was provided:

“4. Liberty to the Respondent to apply on 48 hours notice to the Applicant to vary or discharge the said Order for a Stay.”

2. Background

2.1 The notice party applied for planning permission on 19 September 2018 (dated 8 September 2018, received on 19 September 2018) in respect of a proposed development at Milleencoola, Bantry, Co. Cork.

2.2 On 12 November 2018 the first named respondent sought further information from the notice party, together with revised plans, to be provided within a period of six months. The letter stated that the developer was advised to contact the area planner prior to a formal response.

2.3 Initially an informal response was tendered to the first named respondent by the developer on 12 December 2018, and later on the 29 January 2019 a formal response from the notice party was tendered. A subsequent report on outdoor lighting bearing date 12 February 2019 (such report appears to contain a typographical error of the year 2018) was submitted on behalf of the notice party.

2.4 Following receipt of the formal response, and in advance of the lighting report, the revised application was published on 7 February 2019, and thereafter the within applicant had two weeks to tender submissions.

2.5 The applicant tendered submissions on 21 February 2019, and tendered further submissions on 28 February 2019 following the uploading of the outdoor lighting report on the County Council website (the submissions of 28 February 2019 were returned on the basis they were outside the time limit under cover letter of 4 March 2019).

2.6 Ultimately the County Council granted planning permission, subject to conditions, bearing date 7 March 2019. The applicant appealed the said decision to ABP by way of notice of appeal of 5 April 2019, and subsequently secured leave for the within judicial review application on 29 April 2019.

2.7 In the applicant's first submission of 21 February 2019 it is stated:

“There is no information as to when the newspaper notice was delivered to the Planning Authority.

I would question the legality of the manner with which this application has proceeded.

Any decision to grant must be in full compliance with the Planning Acts and Regulations.”

2.8 The second submission of the applicant is dated 28 February 2019 and notes that further information was received by the County Council on 13 February 2019. The letter goes on:

“I am very confused by this entry as my submission of the 21st was in respect of the Further Information that was received by the Council on 31st January which was re-advertised as significant further information on the 7th February.

It is simply not permissible that 2 lots of further information could have been submitted and received in respect of the request for Further Information and the most recent further information, which was received 6 days after the date of the re-advertisement, was not the subject of public consultation as provided for under the Planning Acts.

I have already questioned the legality of the manner in which this application has proceeded, and I must re-iterate that any decision that is not made in full compliance with the Planning Acts is not valid.”

2.9 The purpose of setting out the submissions as aforesaid is to demonstrate the minimal and generalised nature of same, save for the specific problem expressed in the rejected submission of 28 February 2019, to the effect that it was not permissible to receive two responses to a singular request for particulars. The submissions are in stark contrast to the statement of grounds.

3. Matters to be Considered

3.1 In Okunade v. Minister for Justice [2012] IESC 49 the Supreme Court set out the matters to be considered in determining whether to grant a stay or interlocutory injunction in the context of judicial review proceedings as follows:

• “(a) The court should first determine whether the applicant has established an arguable case; if not the application must be refused, but if so then;

• (b) The court should consider where the greatest risk of injustice would lie. But in doing so the court should:-

  • (i) Give all appropriate weight to the orderly implementation of measures which were prima facie valid;

  • (ii) Give such weight as was appropriate (if any) to any public interest in the orderly operation of the particular scheme in which the measure under challenge was made; and

  • (iii) Give appropriate weight (if any) to any additional factors arising on the facts of the individual case which would heighten the risk to the public interest of the specific measure under challenge not being implemented pending resolution of the proceedings;

    but also,

  • (iv) Give all due weight to the consequences for the applicant of being required to comply with the measure under challenge in circumstances where that measure may be found to be unlawful.

• (c) The court should, in those limited cases where it may be relevant, have regard to whether damages are available and would be an adequate remedy and also whether damages could be an adequate remedy arising from an undertaking as to damages;

• (d) in addition, and subject to the issues arising on the judicial review not involving detailed investigation of fact or complex questions of law, the court can place all due weight on the strength or weakness of the applicant's case.”

3.2 In McDonnell v. Brady [2001] IESC 88 Keane C.J. stated at para. 45 in relation to where the onus of proof lay in an application to have a stay granted at leave stage discharged:

“There is nothing in the wording of Order 87, Rule 20(7)(a), to suggest that, where an applicant for leave seeks an order of prohibition or certiorari, he is further entitled ex debito justitiae, to a direction that the proceedings should be stayed. There seems no reason in logic why the applicant, where the...