Sandymount & Merrion Residents Association v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 November 2013
• Neutral Citation: [2013] IESC 51
• Court: Supreme Court
• Docket Number: [S.C. Nos. 143 and 171 of 2013]
• Date: 27 November 2013

Sandymount & Merrion Residents Association v Bord Pleanala & Ors

Between/

Sandymount & Merrion Residents Association

Plaintiff/Appellant

- v -

An Bord Pleanála

Respondent

Minister for Arts, Heritage & The Gaeltacht, Ireland, and The Attorney General

Respondents/Appellants

Dublin City Council

Notice Party/Appellant

[2013] IESC 51

Denham C.J.

Hardiman J.

Fennelly J.

O'Donnell J.

Clarke J.

[Appeal Nos. 143/2013 & 171/2013]

THE SUPREME COURT

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Unincorporated association - Absence of legal personality - Legal capacity of applicant to maintain judicial review proceedings - Statute - Interpretation - Application to dismiss proceedings for lack of capacity - Sufficient interest - Whether applicant having capacity to bring and maintain proceedings - Whether exception to rule of unincorporated body not having legal capacity to bring court proceedings - Whether statutory provision in absence of expressly conferring capacity carrying necessary implication that capacity being conferred - R v Darlington Borough Council ex parte Association of Darlington Taxi Owners (Unrep, High Court of England and Wales, Auld J, 12/1/1994); R v Commissioner for Northwest Traffic Area ex parte Brake (Unreported, High Court of England and Wales, Turner J, 3/11/1995) and R v Ministry of Agriculture Fisheries and Food ex p British Pig Industry Support Group (Unrep, High Court of England and Wales, Richards J, 7/7/2000) considered - Rules of the Superior Courts 1986 (SI 15/1986) O 63, r 1(g) - Planning and Development Act 2000 (No 30), ss 37 and 50A - Planning and Development (Strategic Infrastructure) Act 2006 (No 27), s.10 - Council Directive 85/337/EEC - Council Directive 2003/35/EC, recital 4, articles 1, 2, 3, 9 - Council Directive 96/61/EC - United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) - Appeal against dismissal of application dismissed (143 & 171/2013 - SC - 27/11/2013) [2013] IESC 51

Sandymount & Merrion Residents Association v An Bord Pleanála

Facts: Dublin City Council had sought to expand Water Treatment Works. The Court considered the capacity of the applicants to bring judicial review proceedings against this development. Dublin City Council had sought to dismiss the proceedings on the alleged incapacity of the applicant, not being a natural or legal person. The High Court had held that the applicant had had sufficient interest within the meaning of s. 50(3) of the Planning and Development Act 2000, as amended. The Court considered the parameters of standing of non-governmental agencies to bring judicial review pursuant to s. 50(3) of the Act.

Held by the Supreme Court per Clarke J. (Denham CJ, Hardiman, Fennelly, O" Donnell JJ. concurring), that the High Court was correct to dismiss the application to set aside the leave to seek judicial review. The legislation provided a clear statutory exception to the general rule concerning non-incorporated associations.

EUROPEAN UNION (BIRDS & NATURAL HABITATS) REGS 2011 SI 477/2011

SANDYMOUNT & MERRION RESIDENTS ASSOCIATION v BORD PLEANALA & ORS UNREP CHARLETON 25.3.2013 2013 IEHC 291

EEC DIR 92/43

RSC O.63A r1(G)

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING & DEVELOPMENT ACT 2000 S50A

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S13

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S32

ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011 S20

PLANNING & DEVELOPMENT ACT 2000 S37

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S10

INTERPRETATION ACT 2005 S18

PLANNING & DEVELOPMENT ACT 2000 S50A(3)(B)(i)

PLANNING & DEVELOPMENT ACT 2000 S50A(3)(B)(ii)

HALSBURYS LAWS OF ENGLAND 5ED VOL 96 PARA 29

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

R v NORTH WESTERN TRAFFIC CMRS, EX PARTE BRAKE 1996 COD 248 1995 NPC 167

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

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

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

EEC DIR 96/61

EEC DIR 2003/35 RECITAL 4

EEC DIR 2003/35 ART 1

EEC DIR 2003/35 ART 3(7)

EEC DIR 85/337 ART 10A

EEC DIR 2003/35 ART 2(1)

EEC DIR 2003/35 ART 2(3)

PLANNING & DEVELOPMENT ACT 2000 S50A(3)(B)(ii)(III)

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

PLANNING & DEVELOPMENT ACT 2000 S50

1. Introduction

2 1.1. Associations of one form or another have played a significant role in the planning and environmental process in Ireland for many years. Some such organisations are local and are concerned with general issues arising in their area. Others, whether local or national, are specifically established to pursue environmental aims and objectives. The applicant/respondent ("SAMRA") is one of the latter. It is an organisation established of persons ordinarily resident in the Sandymount or Merrion districts of Dublin or those who subscribe to the aims of the association, which are concerned with the preservation and enhancement of Sandymount and Merrion strands.

3 1.2. The background to these proceedings involves an application by the notice party/appellant ("Dublin City Council") to the first named respondent ("An Bord Pleanàla") relating to an expansion of the existing waste water treatment works at Pigeon House Road, Ringsend in Dublin. Ultimately, an oral hearing was directed at which SAMRA was represented by solicitor and counsel. Permission was granted by An Bord Pleanàla. Shortly thereafter, the second named respondent/appellant ("The Minister") announced a number of new special areas of conservation under the provisions of the European Communities (Birds & Natural Habitats) Regulations 2011 (S.I. No. 473 of 2011). These included one area encompassing, among other areas, Sandymount Strand. It is said that a so-called long sea outfall pipe tunnel ("LSOT") connected with the project impinges on what has become a special area of conservation. Against that general background SAMRA has sought to initiate judicial review proceedings in the High Court.

4 1.3. However, this Court is not now concerned with the merits or otherwise of the underlying challenge which SAMRA seeks to make to the permission granted to Dublin City Council in respect of the waste water treatment plant. Rather, in circumstances which will be necessary to address in early course, both Dublin City Council and the second to fourth named respondents/appellants ("the State") sought to have a preliminary issue determined before the High Court challenging the capacity of SAMRA to bring these proceedings.

5 1.4. For reasons which it will be necessary to address, that challenge failed before Charleton J., ( Sandymount & Merrion Residents Association v An Bord Pleanàla & Ors [2013] IEHC 291). Dublin City Council and the State appealed against that decision to this Court. For completeness, it should be noted that An Bord Pleanàla did not raise the capacity point before the High Court and did not, therefore, participate in the hearing before the High Court. Likewise An Bord Pleanàla, for good reason, did not participate in the appeal before this Court.

6 1.5. This judgment is, therefore, directed towards the question of whether SAMRA has capacity to bring these judicial review proceedings. Given that practical arrangements for the hearing of the substantive judicial review application continued in the High Court, notwithstanding this appeal, and given the overall urgency of the case, this Court indicated, on the 10 ^th October, 2013, that it proposed to dismiss the respective appeals of Dublin City Council and the State and that reasons for coming to that view would be delivered at a later stage.

7 1.6. The purpose of this judgment is to set out the reasons why I supported the decision of this Court in that regard.

8 1.7. The starting point has, therefore, to be to set out the basis of the application made to the High Court. I turn to that question.

2. The High Court Application

2 2.1. On 18th January, 2013, SAMRA applied for and was granted leave to commence judicial review proceedings by Peart J. SAMRA sought to have the decision of An Bord Pleanàla declared invalid and quashed, as well as declarations to the effect that the State had failed to comply with its obligations under the Habitats Directive (Council Directive 92/43/EEC) At that time SAMRA also obtained an ex parte injunction to stop Dublin City Council proceeding with the relevant works. After subsequent discussions, SAMRA accepted Dublin City Council's undertaking not to commence construction of that part of the development comprising the LSOT until such time as the proceedings were determined.

3 2.2 On the 4th February, 2013, the proceedings were entered into the Commercial List in accordance with Order 63A Rule 1(g) of the Rules of the Superior Courts. Dublin City Council's motion seeking to dismiss the proceedings was heard on the 21 ^st February, 2013. The motion sought to dismiss on two grounds: first, the alleged incapacity of SAMRA û it not being a natural or legal person - and, second, an alleged non-disclosure by SAMRA in its leave application of the fact that the works had already commenced. The State supported the motion to dismiss on the capacity ground alone. Charleton J. delivered his judgment, rejecting both grounds for dismissal, on the 25th March, 2013.

4 2.3. Against that backdrop it is next necessary to turn to the decision...