Thomas Reid v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 12 April 2021
• Neutral Citation: [2021] IEHC 230
• Docket Number: [2020 No. 54 JR]
• Court: High Court

Between

Thomas Reid

Applicant

and

An Bord Pleanála

Respondent

and

Intel Ireland Limited

Notice Party

[2021] IEHC 230

[2020 No. 54 JR]

[2020 No. 82 COM]

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Judicial review – Evidence – Notice party seeking to exclude some of the applicant’s evidence – Whether the evidence went beyond the pleadings

Facts: The respondent, An Bord Pleanála (the board), on 5th October, 2017, granted permission for a manufacturing facility at Leixlip, County Kildare. On 1st February, 2019, a further planning application was lodged. On 17th May, 2019, Kildare County Council decided to grant that permission subject to 34 conditions. There was a limited appeal by the developer, and a third-party appeal by the applicant, Mr Reid. On 8th October, 2019, the inspector recommended a grant of permission on 17 conditions and on 21st November, 2019 the board granted permission. The applicant’s statement of grounds was dated 23rd January, 2020 and sought certiorari of the board’s decision, and various declarations. On 10th February, 2020, Meenan J directed that leave should be applied for on notice. On 29th June, 2020, Barniville J admitted the case to the Commercial List for telescoped hearing. The notice party, Intel Ireland Ltd, brought a motion filed on 21st December, 2020 seeking: (i) to exclude the affidavits of Ms Cullen, a research scientist and an expert in the science of lichens and bryophytes, on behalf of the applicant, as inadmissible in their entirety; (ii) to have the court refuse permission for her to file a third supplemental affidavit; and (iii) to exclude various identified matters from the applicant’s affidavits. The complaint regarding the applicant’s evidence had three dimensions: (i) that the evidence went beyond the pleadings; (ii) that the points, legal or otherwise, should have been made to the decision-maker; and (iii) that new evidence was introduced which should have been put to the decision-maker.

Held by Humphreys J that paragraph 19 of the applicant’s grounding affidavit outlined the applicant’s contentions in the first three sentences, which was essentially informative rather than evidential, but the remainder of the paragraph was impermissible new evidence going to the merits and needed to be struck out. Humphreys J held that paragraph 22 referred to another planning development which was of no real relevance to the proceedings and should also be struck out. Humphreys J held that paragraphs 33, 35 and 36, constituted new scientific evidence on the merits and needed to be struck out. Humphreys J held that paragraphs 59 to 61 and 63 of the applicant’s supplemental affidavit essentially repeated points made in Ms Cullen’s affidavits and did not seem to add much to them and needed to be struck out. Humphreys J held that paragraph 62 amounted to new evidence on the merits and needed to be struck out. Humphreys J held that paragraphs 91 to 95 referred to a separate planning application on adjoining lands owned by the developer and the applicant’s replying affidavit to the motion did not make any convincing case as to why those specific points were relevant or could not have been anticipated during the planning process so on balance those paragraphs should be struck out. A similar logic applied regarding para. 96 which Humphreys J would also strike out. Humphreys J held that paragraph 131 referred to a modelling exercise in another planning application and seemed to be of limited relevance and to amount to new evidence, so would be struck out. Humphreys J held that paragraph 7 of the applicant’s second supplemental affidavit exhibited documents already exhibited, so it was repetitive and should be struck out. Humphreys J held that paragraphs 14 to 19 referred to subsequent parking developments and traffic management plans that did not go to the issue the court had to decide and arose subsequently so those paragraphs should be struck out. Humphreys J held that paragraph 5 of the supplemental affidavit of Ms Cullen referred to new site visits and was impermissible new evidence, so should be struck out. Humphreys J held that paragraph 6 referred in the first sentence to new surveys and that sentence should be struck out. Humphreys J held that paragraphs 12 to 36 seemed fairly saturated with new evidence and would be struck out save to the extent that they merely pointed out omissions in the material before the board. Humphreys J held that paragraphs 6 to 34 of the second supplemental affidavit of Ms Cullen were full of new evidence as to the merits so would be struck out except insofar as they pointed out omissions in the material before the board.

Humphreys J refused permission to file Ms Cullen’s proposed third supplemental affidavit on the grounds that it largely consisted of new scientific information going to the merits.

Application granted in part.

Judgment of Humphreys J. delivered on Monday the 12th day of April, 2021

1 At one level, what is before the court is a simple enough motion to exclude some of the applicant's evidence. But this modest procedural application raises questions that go to the heart of what judicial review actually is. The complaint essentially regarding the applicant's evidence has three dimensions:

• (i). that the evidence goes beyond the pleadings;

• (ii). that the points, legal or otherwise, should have been made to the decision-maker; and

• (iii). that new evidence is introduced which should have been put to the decision-maker.

Facts

2 On 5th October, 2017, the board granted permission for a manufacturing facility at Leixlip, County Kildare.

3 On 1st February, 2019, a further planning application was lodged.

4 On 17th May, 2019, Kildare County Council decided to grant that permission subject to 34 conditions. There was a limited appeal by the developer, and a third-party appeal by the applicant.

5 On 8th October, 2019, the inspector recommended a grant of permission on 17 conditions and on 21st November, 2019 the board granted permission.

Procedural history

6 The applicant's statement of grounds was dated 23rd January, 2020 and seeks certiorari of the board's decision, and various declarations. On 10th February, 2020, Meenan J. directed that leave should be applied for on notice.

7 On 29th June, 2020, Barniville J. admitted the case to the Commercial List for telescoped hearing.

8 The notice party has brought a motion filed on 21st December, 2020 seeking:

• (i). to exclude the affidavits of Maria Cullen, a research scientist and an expert in the science of lichens and bryophytes, on behalf of the applicant, as inadmissible in their entirety;

• (ii). to have the court refuse permission for her to file a third supplemental affidavit; and

• (iii). to exclude various identified matters from the applicant's affidavits.

The nature of judicial review

9 In the sixth edition of his masterwork, Judicial Review Handbook (Oxford, Hart, 2012), Michael Fordham Q.C., identifies the traditional three-fold classification of the grounds of judicial review: illegality, irrationality and procedural impropriety (para. 45.1). These headings can be broken down further as follows:

• (i). As to illegality, this includes lack of jurisdiction, which may depend on a particular objective precedent fact situation (see Fordham, section 16.2). It also includes breach of a substantive legal provision, including error of law or of legal interpretation, breach of legitimate expectations, breach of a rule of law or statutory provision, or a provision of EU law or of the ECHR (as incorporated into domestic law) or of the Constitution. It also includes defective decision-making procedures in administrative law terms, such as consideration of an irrelevant matter.

• (ii). The heading of irrationality covers quasi-merits-based challenges such as unreasonableness or disproportionality.

• (iii). Procedural impropriety deals with fairness of the procedure before the decision-maker and is generally regarded as including questions of audi alteram partem, nemo iudex and lack of reasons.

Requirement that complaints be pleaded

10 The nature of the leave procedure in judicial review means that an applicant is confined to what the court allows, either at the leave stage or later by way of amendment. Although it does not arise here, it is worth noting that where the court allows a post-leave amendment, it does not have to go through the meaningless ritual of also granting “leave” for the amendment. Leave is permission for the initiation of the proceedings, and an amendment later on doesn't require “leave to seek judicial review”, but “leave to amend the statement of grounds” which implies an entitlement to pursue the point in the proceedings.

11 The basic rule as regards pleadings can be summarised as follows:

• (i). a party can only pursue grounds set out in his or her pleadings;

• (ii). a party cannot introduce new grounds of claim or opposition by affidavit; and

• (iii). any new grounds or reliefs have to be sought by amendment of the statement of grounds; and

• (iv). likewise for any new points of opposition.

Requirement to generally raise points first with the decision-maker

12 In Lancefort Ltd. v. An Bord Pleanála (No. 2) [1998] IESC 14, [1999] 2 I.R. 270 the Supreme Court held, as a general proposition, that it would be an injustice to a party to ask it to defend proceedings on the grounds of an alleged irregularity which could have been brought to the attention of relevant parties prior to the granting of a permission, but which was not relied on until after the judicial review was brought.

13 Such a general proposition now needs a little qualification, particularly with regard to subsequent developments in European law, although in fairness the qualifications are not entirely confined to that. Whether an applicant can plead new grounds in a judicial review that were not raised before...