Pierse v an Bord Pleanála
 IEHC 669
THE HIGH COURT
2017 No. 440 J.R
IN THE MATTER OF SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)
Planning and environment – Development – Exempted development – Challenge to decision of respondent – Ss 5, 50, 50A Planning and Development Act 2000
Facts: The applicants’ forming of two entrances to land in County Kerry had been challenged by the respondent, who had held that the work was development and as such was not exempted development under the 2000 Act. The applicants had applied for leave to seek judicial review, and as part of those proceedings now applied for leave to cross-examine the respondent’s deponent in regards to his affidavit.
Held by Simon J, that the motion would be granted. Having considered the application in the light of Ord 40, rule 1, the Court was satisfied it was appropriate for the applicants to have the opportunity to cross-examine a deponent where strident views had been set out by him.
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 .
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.
18. 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 reference to the nature of the extra traffic generated, that the development would cause a traffic hazard. This analysis was based on the Inspector's own inspection of the site, which took place on or about 1st March 2017.
19. The Board's conclusion that the proposed development would endanger public safety by reason of traffic hazard or obstruction of road users was clearly reasonable, rational and therefore lawful in the context of the residential nature and current layout of the housing estate.
20. Furthermore, there was clearly material before the Board to support its decision, including (but not limited to) the Inspector's description of the current nature and use of the lands on the basis of her site inspection and the submissions of Mr Dermot Godsell.’
An Bord Pleanála's statement of opposition is verified by an affidavit sworn by Mr Pierce Dillon on 27 September 2017. Mr Dillon describes himself as a senior executive officer with An Bord Pleanála. It is common case that Mr Dillon is not a member of An Bord Pleanála, and was not the inspector who dealt with this particular planning case.
Mr Dillon's affidavit runs to some 28 paragraphs, and is not in the form prescribed for a verifying affidavit in Form No. 14 in Appendix T of the Rules of Superior Courts (as amended in 2011). (Rules of the Superior Courts (Judicial Review) 2011, S.I. No. 691 of 2011).
The first 10 paragraphs of the affidavit set out the chronology of events in terms of the processing of the Section 5 reference, and exhibit certain documentation.
The balance of the affidavit, then, consists largely of commentary and submission as to the legal issues in the case. For example, at paragraph 11, it is asserted that the question of whether a particular development would endanger public safety by reason of traffic hazard or obstruction of road users is a matter of planning judgment, within the particular competence and expertise of An Bord Pleanála, a specialist body established by statute, and is subject only to limited review by the High Court on grounds of unreasonableness or irrationality. At paragraph 13 of the affidavit, the nature of the jurisdiction and legal effect of a determination under Section 5 is set out.
These are not matters which should be included in an affidavit. Rather, these are matters which should either be set out in a statement of opposition or, more properly, included as part of the written legal submissions to be filed by An Bord Pleanála in advance of the substantive hearing.
As noted above, one of the issues raised in the proceedings is as to whether or not An Bord Pleanála had material before it which would justify its finding that the proposed...
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