Scott v an Bord Pleanála

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: EGAN J.
• Judgment Date: 01 January 1995
• Neutral Citation: 1994 WJSC-SC 4021
• Date: 01 January 1995

SCOTT v. BORD PLEANALA

BETWEEN/

ELIZABETH SCOTT, PATRICK DALY, PATRICK SHERMAN,THOMAS PHELAN, CATHERINE GANNON, JOHN PHELAN, JOHN JOSEPH CULLINAN,THOMAS MAHER, JAMES PHELAN, JOHN MAHER, PATRICK DUGGAN, JAMES DUGGAN,SEAN PHELAN AND MICHAEL DOYLE

Applicants

Appellants

and

AN BORD PLEANALA

Respondent

and

ARCON MINES LIMITED, KILKENNY COUNTY COUNCIL,CATHERINE GANNON, MARY PHELAN, PHILIP PHELAN, GERARD PHELAN, JOSEPHPHELAN, GALMOY AWARENESS GROUP, AND BY ORDER DATED THE 4TH DAY OF JULY1994, THE MINISTER FOR TRANSPORT, ENERGY ANDCOMMUNICATIONS

Notice Parties

1994 WJSC-SC 4021

Hamilton C.J.

Egan J.

Blayney J.

288/94

THE SUPREME COURT

Synopsis:

PLANNING

Permission

Decision - Appeal - Restriction - Procedure - Judicial review - Substantial grounds required to justify review - Finality of review - Exception - Appeal to Supreme Court on point of law pursuant to certificate of High Court - Unnecessary to specify point of law in certificate - Adverse effect of lawful development of land upon neighbouring land does not constitute development of neighbouring land - Local Government (Planning and Development) Act, 1963, ss. 26, 82 - Minerals Development Act, 1979, s. 12 - Local Government (Planning and Development) Act, 1992, s. 19 - (288/94 - Supreme Court - 29/11/94) - [1995] 1 ILRM 424

|Scott v. An Bord Pleanala|

WORDS AND PHRASES

"Development"

Planning - Permission - Application - Decision - Permission granted for particular site - Developer's activities - Resultant adverse effect on neighbouring lands - Adverse result does not constitute development of neighbouring lands - (288/94 - Supreme Court - 29/11/94) - [1995] 1 ILRM 424

|Scott v. An Bord Pleanala|

WORDS AND PHRASES

"Substantial grounds"

Development - Permission - Application - Decision - Appeal - Method - Judicial review - Condition - Substantial grounds required to justify review - Substantial grounds being equivalent to reasonable grounds - (288/94 - Supreme Court - 29/11/94)

|Scott v. An Bord Pleanala|

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 PART IV

RSC O.84

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

DPP, AG V GILES 1974 IR 422

COURTS OF JUSTICE ACT 1924 S29

O'DOWD V NORTH WESTERN HEALTH BOARD 1983 ILRM 186

MURPHY V GREENE 1990 1 IR 566

FRESCATI ESTATES V WALKER 1975 IR 177

MINERALS DEVELOPMENT ACT 1979 S12

1 JUDGMENT delivered on the 29th day of November 1994 by EGAN J. [NEM DISS]

2 By a decision dated the 29th day of April 1994 An Bord Pleanala decided to grant permission to the first-named notice party, Arcon Mines Limited, for development comprising the operation of a zinc/lead mine comprising underground workings and otherwise in accordance with plans and particulars lodged with Kilkenny County Council subject to the conditions specified in the schedule to the said permission. The said zinc/lead mine is situate near Galmoy in the County of Kilkenny.

3 The appellant Elizabeth Scott is the owner of the lands adjoining the lands under which the ore body the subject matter of the said permission is situate. A small portion of the total ore body is, in fact, under Mrs. Scott's land.

4 By notice of motion dated the 24th day of June 1994 the said appellant Mrs. Scott together with the other appellants who claim that the sources of their water supplies will be adversely affected in the event of theimplementation of the said permission claimed:-

5 1. An order of certiorari by way of application for judicial review of the decision of An Bord Pleanala dated the 29th day of April 1994 to grant permission to the first-named notice party for development comprising the operation of the said zinc/lead mine.

6 2. A declaration by way of application for judicial review that the said respondent is not legally entitled to grant the said permission without the consent or approval of the applicants.

7 3. If necessary, an injunction restraining the commencement of the said proposed development or any part thereof pending the final determination of the proceedings.

8 4. Further and other relief.

9 5. Costs.

10 Sec. 82 of the Local Government (Planning and Development) Act, 1963, which deals with references andappeals where a question of law arose was amended by sec. 19(3) of the Local Government (Planning and Development) Act, 1992 which provides that a person shall not question the validity of -

11 (a) a decision of a planning authority on an application for a permission or approval under Part IV of the Act, or

12 (b) a decision of the Board on any appeal or on any reference, other than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986).

13 The section further provides that such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed.

14 It is clear beyond dispute, therefore, that before an applicant can obtain the required leave he must satisfy the Court that there are substantial grounds for contendingthat the decision is invalid or ought to be quashed. He does not have to satisfy the Court that the decision is, in fact, invalid. On a prima facie view of the section, therefore, it would appear that the sole function of the trial judge is to decide whether or not he is satisfied that there are substantial grounds for contending that the decision is invalid and, if he decides that such substantial grounds exist, he should grant leave to apply for judicial review. In such an event it would follow that two hearings would be involved, one deciding that substantial grounds exist and the other deciding finally whether...