Reid v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 28 March 2023 |
| Neutral Citation | [2023] IEHC 154 |
| Court | High Court |
| Docket Number | [2020 No. 54 JR] [2021 No. 61 JR] |
In the Matter of Section 50 of the Planning and Development Act 2000, As Amended
and
In a Matter Pursuant to Section 50 of the Planning and Development Act 2000, As Amended
and
In the Matter of Section 50 of the Planning and Development Act 2000, As Amended
and
[2023] IEHC 154
[2020 No. 54 JR]
[2022 No. 1134 JR]
[2021 No. 61 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Humphreys J. delivered on the 28 th day of March, 2023.
. The applicant's farm is located adjacent to the Intel campus in County Kildare. He notes on affidavit that his residence, Hedsor House, was constructed around 1760. His family have been in occupation of the lands since 1904. This is the ninth written decision in relation to proceedings brought by the applicant either involving Intel or, prior to that, a proposal to acquire the applicant's lands. The present judgment deals with applications in three judicial reviews brought by the applicant, which I shall refer to as the 2020, 2021, and 2022 proceedings.
. In Reid v. Industrial Development Agency [2013] IEHC 433, ( 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. In Reid v. Industrial Development Agency [2015] IESC 82, [2015] 4 I.R. 494, [2016] 1 I.L.R.M. 1, McKechnie J. for the Supreme Court, set aside Hedigan J.'s decision and held that the IDA's proposed acquisition was invalid.
. On 5 th October, 2017, the board granted the first permission relevant to the proceedings for a development by Intel. The application in that case involved environmental impact assessment (EIA).
. A second relevant application for development was made on 1 st February, 2019 through normal planning procedures. Permission was granted by Kildare County Council and the applicant appealed on 13 th June, 2019, and made a request for an oral hearing.
. On 5 th September, 2019, the board decided to refuse an oral hearing, and the applicant was so notified on 6 th September, 2019.
. On 21 st November, 2019, the board granted permission for the development. This was challenged in the 2020 proceedings [2020 No. 54 JR].
. In those proceedings, Chris Clarke, on behalf of the board, swore an affidavit on 5 th August, 2020, exhibiting the file, and swore a further affidavit on 4 th December, 2020 (an unsworn version having previously been served on 29 th October, 2020) exhibiting the minutes of the meeting that took the decision not to hold an oral hearing. The minutes are an important document for an understanding of the matter because they establish that the decision was taken by a board composed of two rather than three members. As explained below, the quorum is normally three but there were exceptions at the relevant time.
. The board granted a third relevant permission on 30 th November, 2020, which was for a modification to the 2017 and 2019 permissions. This third permission is challenged in the 2021 proceedings [2021 No. 61 JR].
. 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 the 2020 proceedings.
. 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.
. 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.
. 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.
. In Reid v. An Bord Pleanála [2022] IESCDET 39, the Supreme Court refused Leapfrog leave to appeal.
. 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 2021 proceedings challenging the third relevant permission, on certain grounds.
. The applicant says that in December, 2022 he became aware of the difficulty regarding the absence of a quorum. On 21 st December, 2022, he brought a fresh set of proceedings seeking to challenge the 2019 permission, the 2022 proceedings [2022 No. 1134 JR]. He subsequently brought a motion to reopen the judgment in the 2020 proceedings, which is essentially seeking the same relief from a different and more appropriate vantage point.
. Prior to a statutory amendment made in 2022, the board was required to sit with a quorum of three members save where determined by resolution to the contrary. Section 108 of the Planning and Development Act 2000 provided as follows at the relevant time:
“108.—(1) Subject to subsection (1A) (inserted by section 41) a quorum for a meeting of the Board shall be 3.
(1A) The Board may determine by resolution, if so requested by the chairperson (or the deputy chairperson if the chairperson is not available or where the office of chairperson is vacant) where he or she is of the opinion that it is necessary to ensure the efficient discharge of the business of the Board, that the quorum for a meeting of the Board, or, notwithstanding section 112(2), a division of the Board referred to in section 112, should be 2.
(1B) The resolution referred to in subsection (1A) shall specify the functions of the Board or division of the Board which may be performed in a meeting with a quorum of 2 and the period of time during which the specified functions may be performed.
(1C) The chairperson or deputy chairperson shall not request a resolution of the Board referred to in subsection (1A) for the purposes of any matter falling to be determined by the Board or division of the Board under this Act in relation to—
( a) development that would materially contravene the relevant development plan,
( b) strategic infrastructure development, or
( c) a development or class of development referred to in regulations made under section 176.
(1D) If, in determining by vote a question at a meeting of the Board or a division of the Board with a quorum of 2, the voting is equally divided, the matter that is the subject of the vote shall be referred to a meeting of the Board with a quorum of 3 and section 111(4) shall apply in relation to the determination of the question.”
. A resolution of 26 th July, 2019 was made pursuant to sub-s. (1A). This was not published, although the board says it would have been available on request. This provided that the necessary quorum in respect of certain functions of the board should be two, including a case where the board was dealing with “(p) Decision as to whether or not an oral hearing shall be held (in the case of normal planning appeals but not in the case of any matter relating to Strategic Infrastructure Development, Local Authority projects or Compulsory Acquisition or where an Environmental Impact Statement or a Natura Impact Statement has been submitted with the case.)”
. The applicant did not actually get sight of the resolution until quite recently, but the board rightly calls this a “canard”, because (even leaving aside the fact that he didn't go looking for it) the applicant was on notice from the terms of sub-s. (1C)(c) that a planning application subject to EIA (and therefore to which s. 176 of the 2000 Act applied) could not be made the subject of the lower quorum. The applicant was also aware at all material times that the impugned second permission was one where an EIA report had been submitted. Even though the board disputed that this was strictly required, the fact that an EIA report was (to the applicant's knowledge from the outset, as illustrated by it being referred to in the 2020 proceedings when initiated) part of the application, was sufficient to put the applicant on notice of, and on inquiry regarding, a potential issue in relation to a quorum from the date when he had reason to believe that the number of members attending the actual meeting in question was less than three. I would not fault the applicant for not investigating the quorum issue at a time when there was no reason to suspect that there was any problem – a party to litigation can't be expected to have almost perfect knowledge of every unlikely thing that might have occurred or to have clairvoyance of what may emerge. So the fact that the applicant could have gone looking for the minutes earlier doesn't matter because he had no reason to suspect they would show illegality and hence had no particular need to seek them. But one has to act when one gets solid reason to suspect something is amiss. Such reason was supplied on 29 th October, 2020 when the applicant was given the minutes of the meeting in question. He did not need a copy of the resolution on that date to be on sufficient notice of the point from that date onwards because he, personally or through his advisers, had actual or constructive knowledge of the terms of the legislation. Had the applicant sought to amend his pleadings at that point, or within 8 weeks of that date, that application would have been granted virtually as of right. Even after the 8 weeks, the applicant would still have had at least a puncher's chance of bringing the point in by way of amendment as long as the proceedings were still live (basing himself, presumably, on lawyers'...
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