Reid v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 09 December 2022
• Neutral Citation: [2022] IEHC 687
• Year: 2022
• Court: High Court
• Docket Number: [2021 No. 61 JR]

In a Matter Pursuant to Section 50 of the Planning and Development Act 2000, As Amended

Between:

Thomas Reid

Applicant

and

An Bord Pleanála Ireland and The Attorney General

Respondents

and

Intel Ireland Limited

Notice Party

[2022] IEHC 687

[2021 No. 61 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Leave – Permission – Applicant seeking leave to seek judicial review – Whether there was an unlawful failure to notify the applicant

Facts: The applicant, Mr Reid, applied to the High Court for leave to seek judicial review. Some quite similar points in certain respects were previously made by the applicant in a previous failed judicial review relating to the underlying permission for which the impugned permission in this case was merely a modification. This application followed a number of previous decisions in the applicant’s first judicial review. In Reid v An Bord Pleanála (No. 1) [2021] IEHC 230, Humphreys J excluded certain evidence prior to the hearing. In Reid v An Bord Pleanála (No. 2) [2021] IEHC 362, Humphreys J dismissed the applicant’s judicial review on the merits. In Reid v An Bord Pleanála (No. 3) [2021] IEHC 593, Humphreys J refused leave to appeal and made no order as to costs. In Reid v An Bord Pleanála (No. 4) [2021] IEHC 678, Humphreys J confirmed the costs order after the applicant sought to reopen it for the purpose of making additional arguments. In Reid v An Bord Pleanála [2022] IESCDET 39, the Supreme Court refused leapfrog leave to appeal. The applicant’s core grounds in this application were as follows: (1) facts; (2) lack of sufficient information; (3) lack of statement of complete findings; (4) lack of exclusion of doubt; (5) remedial obligation; (6) lack of thresholds for screening in Irish law; (7) Seveso Directive (directive 2012/18/EU); (8) unlawful failure to notify the applicant; (9) failure to notify the public; and (10) regulatory invalidity.

Held by Humphreys J that: (1) insofar as this ground added anything, it should be deleted from the core grounds section and relocated to the factual grounds section; (2) leave to pursue this ground and the associated sub-grounds would be refused; (3) leave to pursue this ground and the associated sub-grounds (other than sub-ground 20) would be refused, leave to pursue sub-ground 20 would be granted, and this could be inserted as a new core ground in the amended statement of grounds to be filed on foot of this judgment; (4) leave to pursue this ground and the associated sub-grounds would be refused; (5) leave to pursue this ground and the associated sub-grounds would be granted; (6) leave to pursue this ground and the associated sub-grounds (save in relation to class 10(b)) would be granted, leave to pursue those grounds insofar as they refer to class 10(b) would be refused, and as regards to the proposed amendment, the interests of justice militated in favour of the applicant being allowed to make any amendment application in a proper manner, based on a properly prepared draft amended statement of grounds and grounded on affidavit explaining the failure to make the point originally; (7) this ground was not being pursued; (8) it was appropriate to allow the applicant to amend the statement of grounds to claim a specific declaration as a relief in terms broadly of this ground, and to require that this ground be amended so as to relate only to this relief, thus, leave to pursue this ground and associated sub-grounds would be granted, but only for declaratory relief and on the basis of the amendments specified; (9) leave would be granted but confined to seeking declaratory relief, a specific declaration to that effect would be added requiring that this ground be amended so as to relate only to this relief, thus, leave to pursue this ground and associated sub-grounds would be granted, but only for declaratory relief and on the basis of the amendments specified; and (10) leave to pursue this ground and associated sub-grounds would be granted.

Humphreys J granted leave to the applicant to seek judicial review on the basis of a further amended statement of grounds to be filed in accordance with this judgment.

Leave granted.

Order

120. Accordingly, the order will be as follows:

• (i). I will grant leave to the applicant to seek judicial review on the basis of a further amended statement of grounds to be filed in accordance with this judgment.

• (ii). The amended statement should make the amendments set out in the judgment and should delete the matters withdrawn or on which leave has been refused including all relevant sub-grounds. Such amendments and deletions are without prejudice to any procedural rights that the applicant might exercise in due course if dissatisfied with the present judgment.

• (iii). I will allow the applicant one week (within term) from the date of delivery of this judgment to file the amended statement of grounds and a further week (within term) to serve the substantive notice of motion with a return date to be notified by the List Registrar.

• (iv). The applicant will also have liberty to bring a motion seeking the proposed further amendment to the statement of grounds, returnable for the same date.

• (v). The relief against the State will be adjourned to a later module and the State is excused from further participation in the current module with liberty to apply.

• (vi). The question of the costs of the leave hearing can be addressed on the return date of the notices of motion.

(No. 5)

JUDGMENT of Humphreys J. delivered on the 9 ^th day of December 2022.

1 . While the leave procedure in judicial review is occasionally criticised, it has some advantages that outweigh any minor downsides. The main advantage by some distance is that it allows the court to review the papers from the beginning and, if necessary, to impose a degree of order, regularity and technical correctness on the pleadings at the outset that will reduce the potential for contentious correspondence, argument, dispute, misunderstanding, confusion and difficulty and that will save considerable time and costs further downstream. That is, for example, reflected in the detailed leave checklist currently applicable in the Commercial Planning and Strategic Infrastructure List. Without the leave procedure, it would be quite a messy operation to ensure reasonable consistency and clarity of pleadings, and would require a court to intervene at a later stage to uproot knotweeds in the papers that can much more easily be nipped in the bud under present arrangements. (Indeed the pointless sacrifice of that reviewing facility is probably the primary argument against the dubious procedure of the telescoped or rolled-up hearing.)

2 . Leave on notice, on the other hand, may have a role in specific situations, but is problematic as a blanket approach. That isn't just my view: it is the view of the Oireachtas as articulated through the experiment of attempting such a general mandatory procedure for both planning (s. 50(4)(b) of the Planning and Development Act 2000 as enacted) and asylum (s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act 2000 as enacted) and then having to abolish that procedure in both lists (s. 32, Planning and Development (Amendment) Act 2010; s. 34, Employment Permits (Amendment) Act 2014), presumably due to the delays and backlogs thereby caused. Indeed, at one point before the leave on notice requirement was abolished, there was a two-year waiting list to get one's leave application heard in asylum cases.

3 . With that context, it is perhaps puzzling that such a procedure should have been mooted again in the planning context (it is a matter of record that a consultation to this effect was contained in head 4(1) of General Scheme of Housing and Planning and Development Bill 2019), although this hopefully may not represent the final position.

4 . That said, in the individual case, a court has the discretion to make such an order or not, as s. 50A(2)(b) of the Planning and Development Act 2000 and O. 84 r. 24(1) RSC clearly recognise. But even in doing so at the level of the individual case, there are some cons as well as pros.

5 . In certain reasonably well-defined situations, such as where the applicant is a litigant in person, and where the court may be particularly assisted by professional representation on the other side, such an order may add something specific. ( [2020] IEHC 209 O'Doherty v. Minister for Health Unreported, High Court, Meenan J., 13th May, 2020) might be a good example.

6 . Leaving aside such limited contexts, an order putting opposing parties on notice of a leave application can in some situations incentivise those parties into seeking a full hearing of that application (or even be taken by the parties or their lawyers as an invitation to do so), thus creating the possibility of two hearings in many cases where only one would otherwise arise. This has the potential to cause significant delay and to increase costs.

7 . The uneasy compromise between the competing considerations involved in the commercial planning context that was arrived at in Practice Directions HC107 and HC114 applicable to the Commercial Planning and Strategic Infrastructure Development List is a provision that requires applicants to put other parties informally on notice by delivering all papers. That procedure allows for exceptional interventions if, for example, some critical piece of information has not been brought to the court's attention. But those parties are not formally on notice so as to invite or incentivise a contested leave hearing. In addition, it is a standard term of the grant of leave in the list that it is without prejudice to any point the opposing parties could have made at leave stage, which fully entitles all such parties to keep their powder dry for the main battle.

8 . In general, respondents and notice parties would normally be better off...