Reid v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 24 January 2024
• Neutral Citation: [2024] IEHC 27
• Court: High Court
• Docket Number: [H.JR.2021.0000061]

Thomas Reid

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Intel Ireland Limited

Notice Party

[2024] IEHC 27

[H.JR.2021.0000061]

THE HIGH COURT

PLANNING & ENVIRONMENT

(No. 7)

JUDGMENT ofHumphreys J.delivered on Wednesday the 24th day of January, 2024

Judgment history

1 . In Reid v. Industrial Development Agency[2013] IEHC 433, ( [2013] 6 JIC 1907 Unreported, High Court, 19th June, 2013), Hedigan J. dismissed a challenge by the applicant to the compulsory acquisition by the Industrial Development Agency (IDA) of his house and lands.

2 . In Reid v. Industrial Development Agency[2015] IESC 82, [2015] 4 I.R. 494, [2016] 1 I.L.R.M. 1, [2015] 11 JIC 0502, McKechnie J. for the Supreme Court, set aside Hedigan J.'s decision and held that the IDA's proposed acquisition was invalid.

3 . In Reid v. An Bord Pleanála (No. 1)[2021] IEHC 230, ( [2021] 4 JIC 1204 Unreported, High Court, 12th April, 2021), I excluded certain evidence prior to the hearing of proceedings challenging a permission granted to the notice party in 2019 (the 2020 proceedings).

4 . In Reid v. An Bord Pleanála (No. 2)[2021] IEHC 362, ( [2021] 5 JIC 2705 Unreported, High Court, 27th May, 2021) (see Kieran Lynch (2021) 3 I.P.E.L.J, 138), I dismissed the 2020 proceedings.

5 . In Reid v. An Bord Pleanála (No. 3)[2021] IEHC 593, ( [2021] 10 JIC 0606 Unreported, High Court, 6th October, 2021), I refused leave to appeal and made no order as to costs.

6 . In Reid v. An Bord Pleanála (No. 4)[2021] IEHC 678, ( [2021] 11 JIC 0202 Unreported, High Court, 2nd November, 2021), I confirmed the costs order after the applicant sought to reopen it for the purpose of making additional arguments.

7 . In Reid v. An Bord Pleanála [2022] IESCDET 39, the Supreme Court refused leapfrog leave to appeal.

8 . In Reid v. An Bord Pleanála (No. 5)[2022] IEHC 687, ( [2022] 12 JIC 0902 Unreported, High Court, 9th December, 2022), I granted leave in the present proceedings challenging a permission granted in 2020 by way of modification of the 2019 permission.

9 . In Reid v. An Bord Pleanála (No. 6)[2023] IEHC 154, ( [2023] 3 JIC 2801 Unreported, High Court, 28th March, 2023), I allowed an amendment in the present proceedings but refused leave to appeal the leave to apply refusal in the No. 5 judgment. I also declined to allow the applicant to agitate the validity of the 2019 permission itself at this late stage, either by reopening the No. 2 judgment, or by bringing fresh proceedings.

Facts

10 . As appears from the statement of case, the applicant is a full-time farmer of c. 74 acres of lands at Hedsor House, Blakestown, Co. Kildare, comprising folio KE1104.

11 . On 5th October, 2017, the board granted development consent to Intel (the 2017 permission) for works including a revised design and configuration of the manufacturing building at the Intel campus, over four levels (parapet height of 31m), with a total floor area of 88,740m ², including support areas and roof mounded stacks and equipment, ranging in height from 6 metres to 24 metres above parapet (board file Ref. PL09.248582; Kildare Co. Co. Ref. 16/1229).

12 . On 21st November, 2019, the board granted development consent to Intel (the already-referred to 2019 permission) for an extended and revised manufacturing facility (granted previously under PL09.248582) including reconfigured and extended buildings, water tanks, manufacturing utility support buildings, building links and yard equipment, road works and new mobility centre building, new air separation units and other ancillary works. (Board file Ref. 304672-19; Kildare Co. Co. Ref. 19/91).

13 . On 26th November, 2019, Intel made an application to the Environmental Protection Agency for a review of its Industrial Emissions Licence.

14 . In January, 2020, the applicant brought an application for judicial review of the 2019 Permission, which was later dismissed as noted above.

15 . On or about 31st March, 2020, the notice party submitted its planning application to Kildare County Council for modifications to the development previously permitted under the 2017 and 2019 Permissions, which would result in alterations and reconfigurations to the roof mounted service ducting increasing the overall height of the buildings by between 3 and 6 metres, the addition of steel framed service platforms measuring c. 6.6 metres wide x 11.5 x 8.6 metres in height above the finished roof level; and alterations to the storage arrangements for the chemical ‘silane’.

16 . By letter dated 26th April, 2020, the applicant submitted observations to Kildare County Council.

17 . On 9th July, 2020, the council granted planning permission for the proposed modifications.

18 . On 31st July, 2020, the applicant lodged an appeal against that decision with the board. This is an idiosyncratic document consisting of six handwritten pages in block capitals together with some attachments. Much of this material deals with matters not obviously relevant to procedures under the Planning and Development Act 2000, such as “killer robots”.

19 . Overall the appeal has little or no actual detail or tangible substance. Insofar as the applicant's input is at all relevant to the 2000 Act, it is generic and unparticularised. Intel's description of this notice of appeal as “perfunctory” could conceivably be viewed as charitable in the circumstances.

20 . More specifically, the applicant submitted a print out of an article entitled “Amazon, Microsoft and Intel may be putting world at risk through killer robot developments, study says” [a version of which, I can note, is available at https://www.thejournal.ie/amazon-microsoft-intel-robots-study-4777434-Aug2019/], and an article in The Guardian, “‘Tsunami of data’ could consume one fifth of global electricity by 2025” [ https://www.theguardian.com/environment/2017/dec/11/tsunami-of-data-could-consume-fifth-global-electricity-by-2025].

21 . The body of the appeal makes a number of points which can reasonably be summarised as follows:

• (i) a previous application involved project splitting with a separate application by EirGrid;

• (ii) in three cases the applicant requested an oral hearing “BUT SURPRISE SURPRISE THOSE ORAL HEARINGS HAVE BEEN BLOCKED BY THE U.S. MILITARYS (sic) INTELLIGENCE AGENCY THIS APPLICANT”; it is also alleged that the “POLITICAL ESTABLISHMENT PLAYED THEIR PART”;

• (iii) “RIGGING” of environmental assessment took place in a number of cases;

• (iv) there were impacts (unspecified) on the Rye Water Valley / Carton SAC;

• (v) there had been “MAJOR CONCEALMENT” of relevant information;

• (vi) there were major impacts on protected structures (unspecified) and landscape and risks to health and safety, and major air emissions and impacts on roads;

• (vii) “MAJOR POLITICAL CONSULTATIONS WITH THE APPLICANT BEHIND CLOSED DOORS”;

• (viii) major impacts on architectural and cultural heritage (unspecified);

• (ix) the construction of a development which was under judicial review — in that regard “THE CONSTRUCTOR AND SUPPLIERS TO THOSE DEVELOPMENTS SHOULD ALSO BE MADE LIABLE AND THEIR ASSETS SEIZED”;

• (x) reference was made to an article entitled “Intelligence report Russia paid Taliban to attack troops ‘not credible’ – Trump” [a version available at https://www.independent.ie/world-news/north-america/intelligence-report-russia-paid-taliban-to-attack-troops-not-credible-trump/39327273.html];

• (xi) the project “BREACHES ALL E.U. DIRECTIVES … MAY ALSO BREACH MANY OTHER E.U. DIRECTIVES”; and

• (xii) the application should be “ANNULLED CULLED AND QUASHED”.

22 . On 30th October, 2020, the board's inspector submitted a report to the board which recommended that planning permission be granted subject to conditions.

23 . Following a meeting to decide the application held on 12th November, 2020, the board's decision to grant permission is recorded in its Direction dated 13th November, 2020. By Order of 30th November, 2020, planning permission for the proposed development was granted by the board.

24 . The applicant avers that he was not notified by the board of the making of the decision and was not supplied with a copy of the decision by the board.

25 . The board's records indicate that a letter notifying the applicant was issued on 1st December, 2020. The board avers that a Case Formally Decided Form was signed on 1st December, 2020. It confirms that the Board Order was signed, sealed and issued to all parties.

26 . The inspector's report and the board direction were published on the website of the board at the time. However the Board Order was not published on the board's website until 28th July, 2022.

Procedural history

27 . The application for leave to apply for Judicial Review was opened on 1st February, 2021 in the Judicial Review List, where leave was directed to be on notice, and was adjourned on a number of occasions until it was adjourned generally by Meenan J. on 14th July, 2021.

28 . Intel did not at that time apply to enter the proceedings into the Commercial List to travel with the related proceedings Reid v. An Bord Pleanála [2020 JR No. 54] (commenced on 24th January, 2020) in circumstances where the 2020 Proceedings were at an advanced stage and heard in May 2021 and where the roof modifications permission is a modification of the 2019 permission meaning that, if the 2019 permission had been quashed in the 2020 proceedings, it followed that the roof modifications permission would also fall away.

29 . Following the outcome of the 2020 Proceedings, which upheld the 2019 permission, Intel applied for such an order, and on 20th June, 2022, the proceedings were entered into the Commercial list and were transferred to the Strategic Infrastructure and Commercial Planning List (as it was then known) on 27th June, 2022. On 25th July, 2022, I fixed a hearing date for the leave application and...