Sandymount & Merrion Residents Association Application v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 25 March 2013
• Neutral Citation: [2013] IEHC 291
• Court: High Court
• Docket Number: [No.29 J.R./2013]
• Date: 25 March 2013

[2013] IEHC 291

THE HIGH COURT

[No.29 J.R./2013]

Sandymount & Merrion Residents Association v Bord Pleanala & Ors

COMMERCIAL

JUDICIAL REVIEW

BETWEEN

SANDYMOUNT AND MERRION RESIDENTS ASSOCIATION

APPLICANT

AND

AN BORD PLEANÁLA FIRST NAMED RESPONDENT THE MINISTER FOR ARTS HERITAGE AND THE GAELTACHT SECOND NAMED RESPONDENT IRELAND AND THE ATTORNEY GENERAL THIRD AND FOURTH NAMED RESPONDENTS

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

COMPANIES ACT 1963 S390

OLTECH (SYSTEMS) LTD v OLIVETTI UK LTD UNREP CHARLETON 30.11.2012 2012/37/10865 2012 IEHC 512

COMPANIES ACT 1990 S150

GOODE CONCRETE v CRH PLC & ORS UNREP COOKE 21.3.2012 2012/16/4718 2012 IEHC 116

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 2

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9

EEC 96/61

EEC DIR 2003/35 ART 3(7)

EEC DIR 2003/35 ART 2(1)

CMSN v IRELAND 2009 ECR I-6277 2011 3 CMLR 46 2010 ENV LR 8

EEC DIR 85/337 ART 10A

PLANNING & DEVELOPMENT ACT 2000 S50

G v DPP & DISTRICT JUDGE KIRBY 1994 1 IR 374 1994/3/724

PLANNING & DEVELOPMENT ACT 2000 S50A

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING & DEVELOPMENT ACT 2000 S50B(2)

SUPREME COURT ACT 1981 S51(3) (UK)

R v DARLINGTON BOROUGH COUNCIL, EX PARTE ASSOCIATION OF DARLINGTON TAXI OWNERS 1994 COD 424

R v MINISTRY OF AGRICULTURE, EX PARTE BRITISH PIG INDUSTRY SUPPORT GROUP 2000 EU LR 724 2001 ACD 3

EEC DIR 2003/35 ART 4(1)

EEC DIR 2003/35 ART 3(1)

PLANNING & DEVELOPMENT ACT 2000 S37(4)

PLANNING & DEVELOPMENT ACT 2000 S37(4)(E)

SIMONS PLANNING & DEVELOPMENT LAW 2ED 2007

PLANNING & DEVELOPMENT ACT 2000 S37

DJURGARDEN-LILLA VARTANS MILJOSKYDDSFORENING v STOCKHOLMS KOMMUN GENOM DESS MARKNAMND 2009 ECR I-9967 2010 1 CMLR 36 2010 ENV LR 29

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Locus standi - Capacity - Unincorporated association - Natural or legal person - Access to justice - Public law - Sufficient interest - Whether body aiming to promote environmental protection having capacity to bring judicial review proceedings - Leave - Duty of disclosure - Whether applicant knew or ought to have known works had commenced prior to leave application - Whether legislation permitting applicant to bring proceedings - G v DPP [1994] 1 IR 374; Commission v Ireland [2009] ECR I-6277; Goode Concrete v CRH plc [2012] IEHC 116, (Unrep, Cooke J, 21/3/2012); Oltech (Systems) Ltd v Olivetti UK Ltd [2012] IEHC 512, (Unrep, Charleton J, 30/11/2012); R v Darlington Borough Council, ex p Association of Darlington Taxi Owners [1994] COD 424; R v Minister for Agriculture, ex p British Pig Industry Support Group [2000] EU LR 724 and Djurgarden-Lilla Vartens Miljoskyddsoforening v. Stockholms Kommun Genom Dess Marknamnd (Case C-263/08) [2009] ECR I-9967 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 99 - Companies Act 1963 (No 33), s 390 - Companies Act 1990 (No 33), s 150 - Planning and Development Act 2000 (No 30), s 37, 50, 50A and 50B - Environment (Miscellaneous Provisions) Act (No 20) - Supreme Court Act 1981 (UK), s 51 - Directive 91/1961/EC - Directive 337/1985/EC, art 10A - Directive 35/2003/EC, arts 2, 3 and 4 - UNECE Convention on Access to Information Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) 1998, arts 2 and 9 - Applications to dismiss proceedings refused (2013/29JR - Charleton J - 25/3/2013) [2013] IEHC 291

Sandymount and Merrion Residents Association v An Bord Pleanála

The applicant was an unincorporated club with its members generally being from the Sandymount area of Dublin. On the 18 ^th January 2013, the applicant applied for leave to commence judicial review proceedings against the decision of the first respondent to grant planning permission to enlarge a sewage works located in the Sandymount area. It was argued by the applicants that the plan to include a 9 km pipeline that would discharge treated effluent into Dublin Bay would greatly affect a special area of conservation. This motion was brought by the notice party, Dublin City Council, and the second named respondent, and which sought to dismiss the proceedings on the basis that there was material non-disclosure in the applicant”s grounding affidavit of the fact that work had already commenced at the sewage works. It was also argued that the applicants had no standing in law to bring the judicial review proceedings.

The applicants argument was that were not aware work had began when their application was made. In response, the notice party and the second named respondent argued that if the applicant had made reasonable enquiries, they would have been informed that such work had began. It was also said that it would have been obvious by the amount of machinery at the sewage works that such work had began. It was also argued that the applicant, as an unincorporated club, did not have the legal standing to bring the judicial review proceedings, with it being noted that it was effectively immune to cost related consequences. In response, the applicant argued that the application was being made under public law in order to seek a remedy for the benefit of the entire community, therefore, the legal standing to bring the proceedings was in place regardless of whether it could pay costs or not.

Held by Charleton J that he could not agree with the notice party and the second named respondent that the applicant should have known work had commenced at the sewage works on the basis of the machinery being there. It was said that plant was a major operation and therefore the presence of machinery could not be deemed unusual. On that basis, the argument of material non-disclosure by the applicant was rejected.

It was further held that pursuant to section 50A(3) of the Planning and Development Act 2000, there was no doubt that the applicant as an unincorporated club had locus standi to bring the judicial review proceedings given their nature. As to the applicant”s capacity to do so, it was stated that the general position was that in the absence of legislation, an unincorporated association had no capacity to take either a public law challenge or a private action. This was not an issue here though due to the effect of the amendments of the Planning and Development Act. It was also said that under Directive 2003/35/EC, an applicant had to be a ‘natural or legal person’ to bring such proceedings. However, it was also noted from the same Directive stated that an applicant could be made up of natural or legal persons as part of ‘associations, organisations or groups’. On that basis, the second argument of the notice party and the second named respondent was rejected.

Motion dismissed.

1 Mr Justice Charleton delivered on the 25th day of March 2013

2 The applicant is an unincorporated club and its members generally come from the Sandymount area of Dublin. This part of Dublin has a distinctive character. It is partly below sea level and its seashore has a huge sandy beach that extends over a low gradient far out into the Irish Sea. The beach runs up to the Pigeon House power station which has two towering red and white chimneys that are one of the city's landmarks. Adjacent to the power station is a giant sewage works which was designed when the city had many fewer residents. In consequence of action by the European Commission, the works need to be brought up to date to accommodate the waste products of about 1.8 million people. In 2012, there was an enquiry before An Bord Pleanála and on 16 ^th November, 2012, planning permission for an enlargement of the sewage works was granted subject to conditions. Among these is the provision of a pedestrian area which will enable people to walk all the way on to the South Wall, which together with the North Wall extend Dublin eastwards. Part of what is necessary for the new works is a 9 km pipeline that will discharge treated effluent into Dublin Bay and affect, the applicants claim, a special area of conservation. On 3 ^rd December, 2012, the respondent Minister designated an area that includes the outfall pipe as a candidate special area of conservation. On 18 ^th January, 2013, the applicant applied for leave to commence judicial review proceedings and obtained an ex parte injunction to stop Dublin City Council proceeding with these works. I have no comment to make on the grounds of challenge that may be advanced in the substantive proceedings. This motion, brought by Dublin City Council and the respondent Minister, seeks that the proceedings be struck out on two grounds:

3 2 1)that there was a failure by the applicant to make frank disclosure in its grounding affidavit that work had already commenced at the plant; and

4 3 2)that the applicant has no capacity in law to bring this or any application before a court.

Disclosure

5 The grounds for seeking the discontinuance of this action for failing to disclose are exceptionally weak. Photographs taken on behalf of the City Council near the works in the month or so before an application was brought to court, show a crane-type structure that is apparently used for drilling. At full height, this extends upwards to 12 m. It is not always so extended. In addition, it is claimed that anyone from the applicant making reasonable enquiry during December 2012 would have been told that preliminary works were already underway. In consequence of the interim injunction, the City Council have sworn on affidavit that they have already lost €50,000 in consequence of payments to disappointed contractors. While the interim injunction does not now continue, there is a threat of...