Sweetman v Clare County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Binchy
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IEHC 517
• Docket Number: [Record No. 2018/178 J.R.]
• Court: High Court
• Date: 31 July 2018

[2018] IEHC 517

THE HIGH COURT

JUDICIAL REVIEW

Binchy J.

[Record No. 2018/178 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

PETER SWEETMAN

APPLICANT

AND

CLARE COUNTY COUNCIL

RESPONDENT

AND

TIGL IRELAND ENTERPRISES LIMITED, AN BORD PLEANÁLA

AND

THE DEPARTMENT OF CULTURE, HERITAGE

AND

THE GAELTACHT

NOTICE PARTIES

Judicial review – Stay – Planning and Development Acts 2000-2017 – Respondent seeking an order pursuant to ss. 50(4) and (5) of the Planning and Development Acts 2000-2017 staying judicial review proceedings – Whether the applicant identified prejudice which he would suffer if his appeal proceeded to a determination by An Bord Pleanála

Facts: The first notice party, TIGL Ireland Enterprises Ltd, on 22nd December, 2006, applied to the respondent, Clare County Council, for planning permission for a development comprising coastal erosion management works at Carrowmore Dunes, White Strand, Doughmore Bay, Doonbeg, Co. Clare. On 21st December, 2017, the Council issued a notification of decision to grant planning permission to TIGL. The decision was subject to five valid third party appeals to the second notice party, An Bord Pleanála. One of those appeals was brought by the applicant, Mr Sweetman. On 27th February, 2018, the applicant was granted leave to challenge the decision. In granting leave, Noonan J stayed, pending determination of the proceedings, consideration of any appeal by the Board. At the same time, Noonan J gave liberty to the Council and the notice parties to apply to discharge the stay. On 19th April, 2018, the Council issued a motion seeking an order pursuant to ss. 50(4) and (5) of the Planning and Development Acts 2000-2017 staying the judicial review proceedings pending the making of a decision by the Board in respect of the appeal of the decision. TIGL made submissions in support of the same.

Held by the High Court (Binchy J) that the applicant failed to identify even the slightest prejudice which he would suffer if his appeal proceeded to a determination by the Board. Binchy J noted that TIGL could identify very definitive potential prejudices; from the point of view of TIGL, the sooner the works it wants to do are carried out, the less likely the occurrence of damage to its property, with all attendant consequences. Binchy J held that the question of justice must be answered emphatically in favour of TIGL, by allowing the applicant's appeal to proceed to the Board for determination without further delay.

Binchy J held that it was appropriate to grant the Council the reliefs which it sought in paras. 1 and 2 of the notice of motion to the intent that the judicial review proceedings should be stayed pending the making of a decision by the Board on the appeals, and the stay granted by Noonan J when granting leave preventing the Board from considering or determining the appeals should be vacated.

Judgment approved.

JUDGMENT of Mr. Justice Binchy delivered on the 31st day of July, 2018

1 On 22nd December, 2006, the first named notice party, TIGL Ireland Enterprises Limited ('TIGL') applied to the respondent, Clare County Council (the 'Council') for planning permission for a development comprising coastal erosion management works at Carrowmore Dunes, White Strand, Doughmore Bay, Doonbeg, Co. Clare. The proposed development includes the provisions of two protective structures between a golf links at Doonbeg and White Strand, at the northern and southern ends of the beach, adjacent to golf holes requiring protection. On 21st December, 2017, the Council issued a notification of decision to grant planning permission (the 'Decision') to TIGL. The Decision was subject to five valid third party appeals to the second named notice party (the 'Board'). One of those appeals was brought by the applicant.

2 On 27th February, 2018, the applicant was granted leave to challenge the Decision. In granting leave, Noonan J. stayed, pending determination of these proceedings, consideration of any appeal by the Board. At the same time, Noonan J. gave liberty to the Council and the notice parties to apply to discharge the stay. On 19th April, 2018, the Council issued the motion with which this judgment is concerned, seeking an order pursuant to ss. 50(4) and (5) of the Planning and Development Acts 2000-2017 staying the within judicial review proceedings pending the making of a decision by the Board in respect of the appeal of the Decision. At the hearing of the application, TIGL made submissions in support of the same. The Board and the third named notice party elected not to participate indicating simply that they would be bound by whatever decision the Court might make in the matter.

3 On 26th June, 2018, the Council delivered a statement of opposition and an affidavit of the same date sworn by Mr. Brian McCarthy, senior planner, in opposition to the reliefs sought by the applicant in these proceedings. Before addressing this application, it is helpful, by way of background, to consider the affidavits exchanged by the parties in the substantive proceedings.

4 In his grounding affidavit of 19th February, 2018, the applicant avers as to his credentials as an environmental campaigner who has brought a large number of environmental cases before the courts, including two cases before the European Court of Justice. He has enjoyed a significant measure of success in those cases. He is driven by a concern about the impact which certain types of development have on the countryside, and is in particular concerned that in his opinion, there is a widespread and persistent failure by planning authorities to apply EU law in environmental decision making.

5 He says that he became aware of the development of a golf course at Carrowmore Dunes, Dunbeg, Co. Clare, when it was initially proposed in the 1990s. In 2016, he became aware of the proposals for works to be carried out by TIGL being the works to which the Decision relates. When TIGL made a planning application to the Council, the applicant made a submission in connection with that application. He refers to other submissions also, including those made by An Taisce and the third named notice party, the Department of Culture, Heritage and the Gaeltacht. He refers also to two reports prepared by a Ms. Sheila Downes, environmental assessment officer of the Council. He refers specifically to the conclusion in the second report of Ms. Downes dated 18th December, 2017, just three days before the issue of the Decision by the Council in which she states:-

'Following receipt of the response to that further information request by Clare County Council it remains difficult for the competent authority to conclude a finding of no adverse effects on the integrity of the European sites concerned with the limited monitoring data available, the complexity of the dynamic beach systems and the uncertainty related to climate change predictions and effects.

The purpose of the proposal is to fix the dunes system and prevent further erosion and therefore road action dynamics. This, is contrary to the detailed attributes that define the site specific conservation objectives for the site (for which the target allows for the area to be stable or increasing subject to natural processes including erosion and succession). A scientifically robust demonstration of this scheme's ability to conserve the natural dynamic processes was not presented and with the essential benchmark needed to ensure compliance with the Habitats Directive before the scheme could be permitted.'

6 At para. 15 of his affidavit, the applicant states that he considered the Decision and also the full file as it is available on the website of the Council, and he avers that having read all of the documents publicly available he could find no Appropriate Assessment ('AA') undertaken by the Council, as required by Directive 92/43/EEC (the 'Habitats Directive'), nor any reference to an AA as having being carried out. He avers that an AA should have been carried out by the Council before making a decision to grant permission. He says that it is entirely unclear from the Decision the basis upon which the Decision was made. He says that the assessments are not apparent and it is impossible to know how the Council resolved the issues raised by the public, the Department and its own officials. He says that he is unable to see any engagement, analysis or consideration of the habitat issues raised in the consideration by the Council, such as will constitute an AA and allow the development to be approved. In particular, he says that he would have expected to see an engagement with the issues set out in the second report of Ms. Downes. He notes that the Decision issued just four days after the second report of Ms. Downes.

7 He says that he considers the Decision to be unlawful and lodged an appeal with the Board to this effect because he was reluctant to let the deadline for submission of appeal pass without an appeal being lodged. From the submissions made by counsel on his behalf, he appears to mean by this that he submitted his appeal to the Board in a rush in order to ensure that it was submitted on time. The suggestion is that his appeal is focussed on legal shortcomings in the Decision, more so than on environmental issues, because of time constraints.

8 In conclusion, in his affidavit he says that since the Board cannot determine the lawfulness of the Decision, these proceedings are the only way in which that issue can be determined. He also says that it should not be necessary for the public to appeal every decision of planning authorities, and the public is entitled to expect a lawful determination by planning authorities in the first instance. He avers that this has not happened in this case and that the application of EU law in such cases is increasingly problematic with planning authorities not complying with...