Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Haughton
• Judgment Date: 02 February 2017
• Neutral Citation: [2017] IEHC 46
• Court: High Court
• Docket Number: [2016 No. 715 JR]
• Date: 02 February 2017

[2017] IEHC 46

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Haughton Robert J.

[2016 No. 715 JR]

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA

AND

CORK COUNTY COUNCIL, KERRY COUNTY COUNCIL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

ESB WIND DEVELOPMENT LIMITED

NOTICE PARTY

Planning & Development – The Planning and Development Act 2000 – Grant of leave for judicial review of planning permission – Challenge to ex-parte grant of leave – Exceptional delay

Facts: The applicant was granted ex parte leave to challenge a planning permission granted by the first respondent for the construction of a wind farm at a specified location and also to challenge certain determinations made by the second to fourth respondents to the effect that the proposed development was an exempted development. The High Court Judge who granted leave had also extended the time for brining the delayed leave application. The second to fourth respondents had now challenged the order of the High Court granting leave to the applicant. The said respondents claimed that the learned High Court judge had erred in granting leave as it was barred by the statute. The key issue was whether the delay in bringing the leave application could be a basis for seeking an order for setting aside the leave order.

Mr. Justice Robert Haughton granted orders for setting aside the order of the High Court that had granted leave to the applicant to seek judicial review against the second to fourth respondents. The Court, however, held that the substantial judicial review application against the first respondent could proceed in the prescribed manner. The Court noted that it had discretion to set aside an ex-parte leave order as sometimes, the Court granting leave was not aware of the full or new facts of the case. The Court found that since the s. 5 referrals under the Planning and Development Act, 2000 were not notified by the respondents, the applicant could not be attributed for the delay in making the judicial review application as the factors were beyond his control as envisaged under s. 50(8) (b) of the Act of 2000. The Court, however, observed that the applicant had failed to demonstrate 'good and sufficient cause' under s. 50 (8) (a) of the 2000 Act for warranting the grant of leave. The Court held that the requirements set out under s. 50 (8) (a) and s. 50 (8) (b) were cumulative and mandatory and the Court would not extend the time limit unless both the tests had been met by the applicant. The Court found that after becoming aware of the s. 5 referrals, the applicant should have acted promptly in taking the suitable legal recourse, which he failed to do. The Court noted that since the work on the proposed development had already been commenced, the grant of leave would be prejudicial to the third party. The Court held that remedial obligations under EIA Directives would be of no assistance as the judicial review application was filed too late to entitle the applicant for the desired relief. The Court held that the applicant had failed to demonstrate sufficiency of interest to bring a constitutional challenge.

Judgment of Mr. Justice Robert Haughton delivered on the 2nd day of February, 2017.

1 Introduction

1.1 By application filed in the Central Office on 14th September, 2016, which was moved ex parte before Humphreys J. on 10th October, 2016, the applicant was granted leave to bring judicial review proceedings seeking, inter alia, the following reliefs:-

'(1) An order of certiorari by way of application for judicial review quashing the determination of the first named respondent to grant planning permission (appeal ref: PL08.PA0044) in respect of the construction of a windfarm at Grousemount, Co. Cork and Co. Kerry which said decision was made on the 21st July, 2016.

(2) An order of certiorari by way of application for judicial review quashing the determinations of the second and third named respondents pursuant to section 5 of the Planning and Development Act 2000 as amended dated the 1st day of April 2015, and the day of 6th of May 2015 determining that the construction of the grid connection servicing the proposed development was exempted development.

(3) A declaration that the decisions of the first, second and third named Respondent was in breach of and contravenes Directive 92/43/EEC on the contravention of wild habitats and flora and fauna (the Habitats Directive) and Direction 2011/92/EU of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment ('the consolidated Environmental Impact Assessment (EIA) Directive'), the Birds Directive 2009/147/EU and the jurisprudence of the European Court of Justice (ECJ) and the Court of Justice of the European Union (CJEU).

(4) A declaration that section 5 of the Planning and Development Act 2000 is contrary to European law and the Aarhus Convention and in particular, the said provisions violate the public participation provisions of the EIA Directive, Birds Directive, Habitats Directive and the Public Participation Directive 2003/35/EC.

(5) A declaration that the fourth and fifth named respondents have failed to proper[ly] implement the Habitats Directive and Birds Directive. In particular, the fourth and fifth named respondents have failed to ensure the creation of a coherent list of sites of community interest for the protection of wild habitats, fauna, and birds.

(6) If necessary, an order extending time for seeking the above relief.'

1.2 As the applicant was out of time for seeking judicial review in respect of the s. 5 decisions of the second and third named respondents made in 2015, an application was made to Humphreys J. for an extension of time for making the leave application, and the first operative part of his Order of 10th October, 2016, reads:-

'that the Applicant's time for making the said application for leave to apply for judicial review be and the same is hereby extended up to and including the 14th day of September 2016.'

It appears therefore that the leave judge extended time for bringing the leave application up to the date upon which papers were first lodged in the Central Office (14th September, 2016), but in giving leave to apply for the relief at no.(6) did so upon the basis that the judge trying the substantive issue could be asked to grant 'if necessary, an order extending the time for seeking the above relief'.

1.3 In the motions before the court the second, third and fourth named respondents seek to set aside leave so granted against them in respect of reliefs (c) at sub-paragraphs(2),(3), and (4) in the statement of grounds on grounds of delay.

2 The Motions

2.1 Following the granting of leave, the notice party promptly applied to have the proceedings admitted to the Commercial Court, and on foot of an affidavit sworn by John Kelly on 10th October, 2016, McGovern J. so ordered.

2.2 By notice of motion filed on 16th November, 2016, the third named respondent Kerry County Council applied for the following reliefs:-

'(1) An order setting aside the Order of this Honourable Court (Humphreys J.) made on 10 October, 2016, granting the Applicant leave to apply for judicial review as against the Third Named Respondent on grounds of delay and/or being out of time having regard to the time provisions contained in Section 50 of the Planning and Development Act 2000 (as amended).

(2) Further and/or in the alternative, an Order dismissing the proceedings against the Third Named Respondent on grounds that the proceedings are out of time and that the Applicant is not entitled to an extension of time to bring these proceedings as against the Third Named Respondent pursuant to Section 50(8) of the Planning and Development Act 2000 (as amended).'

2.3 A similarly worded application was brought on behalf of the second named respondent Cork County Council by notice of motion also filed on 16th November, 2016.

2.4 By further notice of motion filed on 24th November, 2016, on behalf of the fourth and fifth named respondents ('the State') orders were sought:–

'(1) ... setting aside ... the reliefs set out at paragraph 4 of the said [leave] Order and Notice of Motion, and on the grounds, set out at paragraphs. e(13) and e(14) of the Statement Required to Ground an Application for judicial review, on the grounds of delay and/or that the application for leave was not made within the time limited by section 50 of the Planning and Development Act 2000 (as amended) and/or Order 84, Rule 21 of the Rules of the Superior Courts;

(2) Further and/or in the alternative, an Order dismissing the Applicant's claim against the State Respondents for the reliefs sought at paragraph 4 on the grounds that the claim is out of time and that the applicant is not entitled to an extension of time to seek the relief sought and that his claim for the relief sought is therefore bound to fail;

(3) In the alternative only, an order directing that the matters identified at (2) above be determined in advance of any hearing of the substantive judicial review proceedings by way of a modular trial or alternatively as preliminary issues.'

2.5 On 21st November, 2016, McGovern J. directed that the set aside/delay issues raised in these notices of motion should be determined by this Court as a preliminary matter. While no formal order of McGovern J. was put before this Court, it did not appear that he had gone so far as to direct a modular trial on a preliminary point of law related to the delay issue. Having heard submissions on this point I determined that it was appropriate for this Court to determine the respondents' motions in the first instance as applications to set aside the leave orders, insofar as the reliefs sought at paras. 2, 3 and 4 were concerned.

2.6 The substantive hearing of these proceedings has been fixed for 7th March, 2017. The...