Sloan v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 07 March 2003
• Neutral Citation: 2003 WJSC-HC 11520
• Court: High Court
• Docket Number: No 565 JR/2002
• Date: 07 March 2003

2003 WJSC-HC 11520

THE HIGH COURT

No 565 JR/2002

SLOAN & ORS v. BORD PLEANALA & LOUTH CO COUNCIL & NATIONAL ROADS AUTHORITY

JUDICIAL REVIEW

BETWEEN

BRIAN SLOAN CIARAN McARDLE PATRICK McATEER JOHN CONWAY

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENT

AND

LOUTH COUNTY COUNCIL AND NATIONAL ROADS AUTHORITY

NOTICE PARTIES

Citations:

PLANNING & DEVELOPMENT ACT 2000 S50

ROADS ACT 1993 S49(1)

ROADS ACT 1993 S51(2)

PLANNING & DEVELOPMENT ACT 2000 S215

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19

MCNAMARA V BORD PLEANALA 1995 2 ILRM 125

ARTICLE 26 & THE ILLEGAL TRAFFICKING IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 351

ROADS ACT 1993 S47

ROADS ACT 1993 S51

ROADS ACT 1993 S50(2)

EUROPEAN COMMUNITIES ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 REG 14

PLANNING & DEVELOPMENT ACT 2000 S267(2)

PLANNING & DEVELOPMENT ACT 2000 S218

O'CONNELL V O'CONNELL & MIN ENVIRONMENT UNREP FINNEGAN 29.3.2001

ROADS ACT 1993 S49

EUROPEAN COMMUNITIES ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 REG 14(B)

CO DIR 97/11/EC

O'CONNELL V ENVIRONMENT PROTECTION AGENCY 2002 1 ILRM 1

MAX DEVELOPMENT LTD V BORD PLEANALA 1994 2 IR 121

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Public Inquiry

Planning and Environmental Law - Approval of road construction scheme - Administrative law - Nature of evidence allowed at public inquiry - Delay - Whether grounds adduced by applicants substantial - Whether failure by respondents to consider alternative routes - Local Government (Planning and Development) Act, 1992 - Planning and Development Act, 2000 - Roads Act 1993 (2002/565JR - Kearns J - 7/3/2003) - [2003] 2 ILRM 61

Sloan v Bord Pleanala

The applicants brought an application seeking leave to seek judicial review proceedings in respect of a decision issued by An Bord Pleanála to approve a road construction scheme. The applicants contended that the respondents had wrongfully decided at a public inquiry to exclude evidence concerning alternative routes. It was argued that accordingly the respondents had insufficient information in order to properly approve the scheme and that the applicants had been denied a fair hearing. In order to obtain leave the applicants were obliged to show that the grounds adduced were substantial in accordance with section 82(3B) of the Local Government (Planning and Development) Act, 1963 as amended.

Held by Kearns J in refusing leave to seek judicial review. The inspector, if he had considered the alternatives routes which extended into Northern Ireland would have been acting ultra vires. In addition the case in point had been decided in the judgment of Finnegan J in O’Connell v O’Connell. The applicants’ challenge arose from the date of the planning inspector’s refusal to broaden the inquiry and therefore the application for leave to seek judicial review also failed by reason of delay.

Mr. Justice Kearns

1 This is an application for leave to apply for judicial review brought pursuant to Section 50 of the Planning and Development Act2000. More specifically, the applicants seek to challenge a decision of An Bord Pleanala dated 5^th July 2002 to approve a road construction scheme from Balriggan in Kilcurry, Co. Louth to Ballymascanlon, Co. Louth, a 3km section of roadway also known as the Dundalk Western By Pass Northern Link Road. It effectively takes on further the existing Rosslare-Larne Motorway Scheme (Euro route EO1) from Balriggan to link with the existing national road from Dundalk to Newry just north of the Ballymascanlon Roundabout. The scheme as approved, however, does not purport to select the final route of the motorway to Northern Ireland. Over the years and prior to the decision of the respondent, three different options or routes for this latter purpose had been the subject matter of advanced and detailed study by the Road Authority. One option (the "Blue" Route) favoured the route also chosen in the approved scheme. Two others (the "Red" Route and the "Brown" Route) favoured different motorway routes from Balriggan to Northern Ireland.

2 On the 5^th July 2002, the respondent made decisions under Sections 49(1) and 51(2) of the Roads Act1993approving the Dundalk Western By Pass Northern Link and approving the same as a motorway scheme. At the time Louth County Council made its application for approval, the functions under Sections 49(1) and 51(2) of the Roads Act 1993were vested in the Minister for the Environment and Local Government. However, by the time the applications for approval came to be determined those functions had been transferred to the respondent pursuant to Section 215 of the Planning and Development Act2000. Consequently, the applicants application for leave to apply for judicial review is made under Section 50 of the Act of2000.

3 The present application therefore is only concerned with the issue whether or not the applicants have established“substantial grounds” as required by Section 50 of the Planning and Development Act2000which provides:-

"… 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, and that the applicant has a substantial interest in the matter which is the subject of the application."

4 Section 50 of the Act of 2000 effectively re-enacts Section 82 of the Local Government (Planning and Development) Act1963as amended by Section 19 of the Local Government (Planning and Development) Act 1992subject to certain modifications. These modifications include the introduction of an eight week time limit (which can be extended in exceptional circumstances) rather than an absolute two month time limit and the introduction of requirements that the applicant show a “substantial interest” in the subject matter of the application as well as showing participation in the process leading to the impugned decision. In this case the proceedings were issued and served on the respondent just within the eight week period from the publication of the notice of the decision on the 17^th July 2002.

5 The applicants are local residents and/or property owners, and it is not in dispute that they do havelocus standi to maintain the proceedings. The first named applicant is the chairman of the Ravensdale Environmental Group which was represented at the public inquiry and the fourth named applicant is an officer of a different environmental group which was similarly represented. The second and third named applicants, who do not appear to have been represented at the inquiry are nonetheless local residents and no issue arises as to their entitlement to maintain the proceedings.

6 InMcNamara v. An BordPleanala (1995) 2I.L.R.M. 125 Carroll J. held that “substantial grounds” in the context of section 82 of the Local Government (Planning and Development) Act,1963was to be understood as follows:

"In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must be not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are “substantial”. A ground that does not stand any chance of being sustained (for example, where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the arguments put forward in support of those grounds. I do not think that I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the Applicant is confined in this argument at the next stage to those which I believe may have some merit."

7 This passage has been considered and approved in many cases since and was most recently cited and approved by the Supreme Court in its consideration of similar statutory provisions inIn Re Article 26 and the Illegal Immigrants (Trafficking) Bill, 1999 (2000) 2 I.R. 351.

8 As already mentioned, a public local inquiry was held into the proposal for the construction of the 3km stretch of roadway. This inquiry was held in Dundalk and commenced on 6^th September, 2000 and concluded following a High Court stay and two further adjournments on 2^nd February, 2001. At that inquiry in September, 2000, an application was made by counsel on behalf of a number of the applicants to the inspector conducting the hearing to broaden the inquiry so as to consider and permit debate about the three possible alternative routes whereby the motorway could proceed from Kilcurry into Northern Ireland. This application was refused by the planning inspector and that refusal is at the core of the applicants complaint. The applicants further contend that the alternatives offered by the other routes were also excluded from the environmental impact statement prepared by or on behalf of Louth County Council.

9 These alleged defects in procedure and alleged non compliance with statutory requirements form the basis of the applicants contentions that the respondent had no sufficient information upon which to approve the scheme in that it allegedly failed to assemble any information sufficient to evaluate the suitability of the approved route vis-á-vis the alternative routes which the applicants sought to have considered. The section of roadway for which approval was granted was along the route of one of these alternatives, namely, the “blue” route, and thus, it is submitted, the approval by the Respondent amounted to a“predetermination” of the ultimate motorway route from Kilcurry into Northern Ireland. It is submitted, therefore, that the decision making process was not carried out with fairness in that the respondent acted and relied upon a “flawed inquiry” and report emanating therefrom, that the applicants...