Thomas Reid v an Bord Pleanála

JurisdictionIreland
JudgeHumphreys J.
Judgment Date27 May 2021
Neutral Citation[2021] IEHC 362
Docket Number[2020 No. 54 JR]
Year2021
CourtHigh Court

In the Matter of Section 50 of the Planning and Development Act 2000 as Amended

Between
Thomas Reid
Applicant
and
An Bord Pleanála
Respondent

and

Intel Ireland Limited
Notice Party

[2021] IEHC 362

[2020 No. 54 JR]

[2020 No. 82 COM]

THE HIGH COURT

JUDICIAL REVIEW

(NO. 2)

JUDGMENT of Humphreys J. delivered on Thursday the 27th day of May, 2021

1

In ( [2021] IEHC 230 Reid v. An Bord Pleanála (No. 1) Unreported, High Court, 12th April, 2021), I struck out certain evidence offered on behalf of the applicant. I am now dealing with the substance of the applicant's challenge, which is to a decision of An Bord Pleanála dated 23rd November, 2019 to grant planning permission for a development consisting of the extension and revision of a previously permitted manufacturing facility owned and operated by the developer at its campus in Leixlip, County Kildare, subject to a schedule of eighteen conditions.

2

The applicant's statement of grounds is dated 23rd January, 2020, the primary relief sought being certiorari of the board's decision.

3

On 10th February, 2020, Meenan J. directed that leave should be applied for on notice.

4

On 29th June, 2020, Barniville J. admitted the case to the Commercial List. It was then transferred to the Commercial Planning and Strategic Infrastructure Development List, and initially I listed it for telescoped hearing although this later fell to be reconsidered, for reasons to which I now turn.

The disadvantages of telescoped hearings
5

While there may no doubt be circumstances in which a telescoped hearing (that is, treating the leave application as the substantive hearing) may have advantages, such a procedure does have some disadvantages because it can create a technical problem for the court. If ultimately all points advanced by an applicant are accepted, then the distinction between leave and substantive relief does not arise. However, if at the substantive hearing the court rejects any points, it then has to ask itself a separate question in the telescoped context as to whether the point reaches the threshold for a substantial ground, even though it does not reach the threshold for success. That intellectual exercise can turn out to be largely pointless at that stage. It's also a quite different and more difficult exercise than assessing substance at the leave stage because few points look that great once they have been rejected on their merits.

6

Admittedly, if leave to appeal is later sought, it would be relevant for that process if a point had not reached the substantial grounds threshold, but the court can address that issue at that point in the process, if it arises. More generally, refusing leave is not the only mechanism courts have to express a view on the weightiness or otherwise of a point being made, whether on one side or the other.

7

I raised these considerations with the parties here on 10th May, 2021, and very helpfully the respondent and notice party did not object to leave being granted at that point prior to the substantive hearing, albeit that they did not consent either. In view of that, I decided to de-telescope the proceedings, generally considered that the applicant had shown substantial grounds and granted leave without prejudice to any point that could have been made by the respondent and notice party. I then dispensed with the need for a substantive notice of motion.

Costs of the interlocutory motion
8

At the outset of the substantive hearing I heard argument on costs of the Reid v. An Bord Pleanála (No. 1) application and decided to make no order as to costs. The applicant's proposal to reserve the costs or make them costs in the cause is not in keeping with the approach set out in O. 99, r. 2(3) RSC.

9

I do agree that the motion to exclude evidence did raise important points, more so than usual. However, one important contextual point here is that this was not a novel point of law that the applicant sought to raise. It came into the proceedings because the notice party challenged the applicant's evidence and brought a motion to that effect. That does slightly dilute the case for the applicant to obtain any costs.

10

In addition, the applicant already has the statutory protection in respect of costs by virtue of s. 50B(2) of the Planning and Development Act 2000. And, importantly, the applicant created the problem by introducing new evidence, such as regarding new site surveys, that was not before the decision-maker. The notice party was predominantly successful on the motion to exclude evidence. I think the appropriate approach, but for the special cost rules, would have been to award costs to the notice party, but given those rules, the appropriate approach here has to be no order as to costs.

Whether the Reid v. An Bord Pleanála (No. 1) judgment should be revisited
11

The applicant suggested that the No. 1 judgment should be reopened to revisit the exclusion of certain evidence on his behalf. The basis for that was not altogether clear. Certainly the applicant's intention to appeal the No. 1 judgment is not a basis. The applicant does rely on there having been a time limit for submissions at the hearing and the fact that the parties were in dispute as to what principles were to be applied. I do not think that there being a time limit for the hearing can be a basis to revisit the decision. Limited judicial resources mean time limits are going to have to apply more generally and parties are generally going to have to major on their best points. Anyway, the parties got quite a lot of time for the interlocutory motion in that a day was afforded, which is as much time as many substantive cases get.

12

The argument that the applicant did not know the principles which would have to be applied to the documents is understandable, but isn't a basis to revisit the process. Parties when making submissions may have to anticipate a range of options. Courts generally decide both the legal principles and their application to the case in a single judgment. The approach advocated by the applicant of a second bite of the cherry once the principles were established would involve a significant expansion of judicial work. I accept that occasionally it might be appropriate, but I did not particularly see the case for revisiting the matter here.

13

In terms of the specifics of what the applicant wanted revisited, the scientific evidence put forward by the applicant was generally rejected insofar as it was new evidence on the merits and it is hard to see how that should be revisited. Also, given that the applicant himself is not an expert scientist, it is equally difficult to see how he could bring forward scientific evidence in his own affidavits anyway. As regards my having allowed the applicant's expert, Ms Maria Cullen, to give evidence insofar as she points out omissions in material before the board, some of the matters that the applicant was seeking to revisit might be regarded as coming within that permissible reading anyway, and I did not see a pressing need to revisit that aspect.

14

Finally, insofar as the applicant sought to rely on a 2016 Natura Impact Statement by way of a third supplemental affidavit, the problem with that is that the applicant never asked for that exhibit to be part of the case except by way of a replying affidavit on foot of the motion to exclude evidence. The applicant's third supplemental affidavit and Maria Cullen's fourth supplemental affidavit were filed in the context of that interlocutory motion to exclude evidence. A party cannot respond to a motion to exclude evidence by filing affidavits which include additional evidence for the purposes of the case proper without leave to do so. That would logically lead to a death spiral for the case, whereby every such motion would be greeted with new evidence necessitating a further such motion and so on.

15

That does not mean that no affidavit on an interlocutory motion could be relied on in the trial. That could happen either by express agreement between the parties or by tacitly being accepted (for example, by being referred to in some subsequent document, or even in a proposed book of pleadings, without that being objected to) or by leave of the court, but such new evidence cannot come into the present case in this way. For good measure, it would be unfair to the notice party to allow that to be done at the last minute. Consequently, I held that I did not see the need to revisit the No. 1 judgment and also made clear that the applicant was not entitled to rely, for the purposes of the case proper, on the affidavits filed in the context of the motion to exclude evidence.

16

A point then arose at the hearing as to whether the logic of the exclusion motion was that the notice party was not entitled to adduce new evidence either. However, given that the applicant brought no application to strike out the developer's affidavits, and didn't clearly raise the issue until the point was argued in the reply on the final day of the hearing, and given that the notice party, therefore, did not have an opportunity to advance a basis on which those affidavits might be relevant, I do not think it would be fair to consider the notice party's affidavits as inadmissible.

Pleading objection regarding European law
17

An objection was raised to the applicant relying on European law without also pleading national implementing legislation, based on Case C-62/00 Marks and Spencer Plc v. Commissioners of Customs & Excise (Court of Justice of the European Union, 11th July, 2002, ECLI:EU:C:2002:435). Paragraph 27 of the CJEU judgment says that “[i]ndividuals are therefore entitled to rely before national courts, against the State, on the provisions of a directive which appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise whenever the full application of the directive is not in fact secured,...

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