Pierse & anor -v- An Bord PleanÃ¡la,  IEHC 669 (2018)
|Docket Number:||2017 No. 440 JR|
|Party Name:||Pierse & anor, An Bord PleanÃ¡la|
THE HIGH COURT
JUDICIAL REVIEW2017 No. 440 J.RIN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
MAIRE OLIVE PIERSE
AN BORD PLEANÁLARESPONDENTKERRY COUNTY COUNCIL
DERMOT GODSELL NOTICE PARTIESJUDGMENT of Mr Justice Garrett Simons delivered on 30 November 2018
The within proceedings seek to challenge a declaration made by An Bord Pleanála pursuant to the provisions of Section 5 of the Planning and Development Act 2000 (as amended) (“PDA 2000”). In brief, An Bord Pleanála determined that work consisting of the forming of two entrances at lands near Listowel, County Kerry constituted “development”, and did not qualify as “exempted development”. The impugned determination is dated 5 April 2017.
Leave to apply for judicial review was granted ex parte by the High Court (Noonan J.) on 29 May 2017. The proceedings are grounded on an amended statement of grounds which was filed on 2 June 2017. The statement of grounds—as is all too often the position—pleads the case at great length. No less than 59 grounds are set out at part (E) of the statement of grounds.
An Bord Pleanála has filed a detailed statement of opposition in response, which clearly sets out the basis upon which the Board proposes to defend the proceedings. The Board’s statement of opposition is verified by an affidavit sworn on its behalf by Pierce Dillon dated 27 September 2017.
The application, the subject-matter of this judgment, is an application for leave to cross-examine An Bord Pleanála’s deponent, Mr Dillon, on his affidavit. The application is brought pursuant to the provisions of Order 40, rule 1 of the Rules of the Superior Courts.
The parties are in broad agreement as to the legal test governing an application for leave to cross-examine. There is, however, a significant dispute between the parties as to whether this legal test has been met in the particular circumstances of this case. As discussed presently, this dispute arises largely because of the nature of the averments included in Mr Dillon’s affidavit. Much of the latter part of the affidavit consists of comment and submission on the legal issues raised in the proceedings. Such material has no place in an affidavit. It is also inconsistent with the pro forma affidavit introduced as part of the amendments introduced in 2011 to the judicial review procedure under Order 84 of the Rules of Superior Courts. Whereas I have no doubt that the filing of such a lengthy and detailed affidavit was done with the best of intentions, and was intended to expedite the hearing of the substantive application for judicial review, it has had the unintended consequence of exposing the deponent to the possibility of cross-examination.
The application for leave to cross-examine Mr Dillon came on for hearing before me on the morning of Wednesday 28 November 2018.
In order to put the dispute between the parties in context, it is necessary to rehearse briefly the procedural background against which the application for leave to cross-examine is made.
As noted earlier, the proceedings seek to challenge a determination by An Bord Pleanála made pursuant to the provisions of Section 5 of the PDA 2000. This section allows An Bord Pleanála to make a declaration as to whether certain acts are “exempted development”, i.e. a form of minor development which is exempt from the usual requirement to obtain planning permission. The legal consequences of such a declaration are explained in detail in the judgment of the Court of Appeal in Killross Properties Ltd. v. Electricity Supply Board  1 I.R. 541.
Various classes of exempted development are set out inter alia in Schedule 2 of the Planning and Development Regulations 2001 (as amended). Even if a proposed development prima facie falls within one of the classes, the benefit of exempted development may nevertheless be unavailable. This is because the benefit of exempted development is subject to certain limitations and conditions. Relevantly for the present proceedings, the benefit of exempted development is not available if the proposed development “endangers public safety by reason of traffic hazard or obstruction of road users”. See Article 9(1)(a)(iii) of the Planning and Development Regulations 2001 (as amended). This Article was cited by An Bord Pleanála in its determination.
One of the grounds relied upon by the Applicants in their amended statement of grounds is to the effect that An Bord Pleanála erred in law in concluding that the proposed development would endanger public safety by reason of traffic hazard and would obstruct road users. This argument is pleaded, in particular, at paragraphs E. 14 to 21 of the amended statement of grounds.
An Bord Pleanála has responded to this issue in detail at paragraphs 17 to 21 of its statement of opposition, as follows.
“17. Without prejudice to the generality of the foregoing, the Board considered the nature and purpose of the entrances formed and the uses of the land on either side of the entrances, namely the agricultural use of the Applicants’ lands and the residential nature of the housing estate over which access to and egress from the said agricultural lands would occur. The Board was not required to treat each entrance separately either in the Inspector’s report or in the terms of its decision in circumstances where the nature and purpose of each entrance, and the use of the lands on either side thereof, were identical.
Further, in this context, the Board relies, in particular, on the contents of paragraph 7.7.6 of the Board’s Inspector’s report. In explaining her conclusion that Article 9(1)(a)(iii) applied, the Board’s Inspector emphasised the residential nature of the housing estate and the fact that the housing estate currently comprises two cul-de-sacs wherein the gardens of the houses are open plan to the front with no walls or gates. In this context, she concluded, by...
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