Judgment Title: Collins -v- Galway County Council & Ors
Composition of Court:
Judgment by: Edwards J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 3
THE HIGH COURT
Record No: 2011 1 JR
IN THE MATTER OF S. 50 OF THE PLANNING AND DEVELOPMENT ACTS 2000 – 2010
AND IN THE MATTER OF ORDER 84 OF THE RULES OF THE SUPERIOR COURTS;
AND IN THE MATTER OF AN INTENDED APPLICATION FOR JUDICIAL REVIEW
AND IN THE MATTER OF AN APPLICATION FOR LEGAL AID UNDER ART. 47 OF THE FUNDAMENTAL CHARTER OF EUROPEAN RIGHTS
AND IN THE MATTER OF AN APPLICATION PURSUANT TO S.50(8) OF THE PLANNING AND DEVELOPMENT ACTS 2000 – 2010
- and -
GALWAY CO COUNCIL, IRELAND &
THE ATTORNEY GENERAL
- and –
AN BORD GAIS & KEELDERRY WIND FARM LIMITED
JUDGMENT of Mr Justice John Edwards delivered on the 4th day of January, 2011.
The Proceedings before the Court today
The draft Notice of Motion, which the Court is disposed to treat as an ex parte docket, seeks several ancillary, and in reality preliminary, reliefs, which the applicant regards as essential to enable him to proceed with the matter, in addition to the substantive relief of leave to apply for judicial review.
Among the ancillary / preliminary reliefs sought are (i) an Order pursuant to Art. 47 of the Fundamental Charter of European Rights directing that legal aid should be provided (by the State effectively) for his legal representation; (ii) an Order protecting him from all adverse costs Orders in the course of his intended proceedings, should such protection be necessary, or should the need for such arise, from such proceedings; and (iii) such extension, or extensions, of time as may be required (presumably pursuant to s. 50(8) of the Planning and Development Acts 2000 – 2010).
Whether the applications should be on Notice
While the applicant was disposed to accept my ruling with respect to the legal aid issue he strongly pressed me to allow him to proceed ex parte both with his claim for an extension of time and also with his claim for substantive relief, namely leave to apply for judicial review. In doing so, he sought to rely upon the recent amendment to s. 50A of the Planning and Development Act 2000, as inserted by the Planning and Development (Specific Infrastructure) Act 2006, which is contained in s. 32 of the Planning and Development (Amendment) Act 2010, and which allows an application for leave (and arguably by extension relevant ancillary applications) to be made by motion ex parte. In order to deal with this issue it is necessary to consider the relevant statute law.
I have carefully considered s. 50A of the Planning and Development Acts 2000 – 2010 in its present form, and in particular ss 2, 3, 4 & 10 thereof.
Relevant statutory provisions
S 50A (2) provides:
(b) The Court hearing the ex parte application for leave may decide, having regard to the issues arising, the likely impact of the proceedings on the respondent or another party, or for other good and sufficient reason, that the application for leave should be conducted on an inter partes basis and may adjourn the application on such terms as it may direct in order that a notice may be served on that person.
(c) If the Court directs that the leave hearing is to be conducted on an inter partes basis it shall be by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave)-
(i) if the application relates to a decision made or other act done by a planning authority or local authority in the performance or purported performance of a function under this Act, to the authority concerned and, in the case of a decision made or other act done by a planning authority on an application for permission, to the applicant for the permission where he or she is not the applicant for leave,
(ii) if the application relates to a decision made or other act done by the Board on an appeal or referral, to the Board and each party or each other party, as the case may be, to the appeal or referral,
(iii) if the application relates to a decision made or other act done by the Board on an application for permission or approval, to the Board and to the applicant for the permission or approval where he or she is not the applicant for leave,
(iv) if the application relates to a decision made or other act done by the Board or a local authority in the performance or purported performance of a function referred to in section 50(2)(b)or (c), to the Board or the local authority concerned, and
(v) to any other person specified for that purpose by order of the High Court.
(d) The Court may-
(i) on the consent of all of the parties, or
(ii) where there is good and sufficient reason for so doing and it is just and equitable in all the circumstances, treat the application for leave as if it were the hearing of the application for judicial review and may for that purpose adjourn the hearing on such terms as it may direct.”
S. 50A (3) provides:
(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b) (i) the applicant has a substantial interest in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant-
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and
(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would have to satisfy by virtue of section 37( 4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, falls).”
S. 50A (10) provides:
I have also considered the provisions of s. 50 of the Planning and Development Act 2000, as substituted by s. 13 of the Planning and Development (Specific Infrastructure) Act 2006, and in particular s. 50(8) thereof which provides:
(a) there is good and sufficient reason for doing so, and
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.”
Finally, in terms of my review of the relevant statutory provisions, I have considered and have had regard to the provisions of s. 42 of the Planning and Development Act 2000 as originally enacted and also as amended by the Planning and Development (Amendment) Act 2010. The Court notes in particular that there is no provision for public participation in the context of the decision to extend the life of a planning permission. Nor is there any provision for an appeal. Obviously this may be of relevance in the context of s.50(8)(b) considerations, and indeed it is one of the matters on which the applicant relies in his affidavit.
Returning then to the issue as to whether the Court should allow the applicant to proceed ex parte both with his claim for an extension of time and also with his claim for substantive relief, I have decided in the exercise of my discretion that it is not appropriate to permit him to do so. My reasons for doing so are that having regard to the issues arising which are complex, as well as the likely impact of the proceedings on the respondents and the proposed notice parties, the interests of justice require that both the application for an extension of time, and the application for leave should be conducted on an inter partes basis. I am particularly influenced with regard to the former by the fact that I must, inter alia, be satisfied that “there is good and sufficient reason” for extending the time. It is not enough for the applicant merely to provide good and sufficient reason for the delay. In considering whether there is good and sufficient reason for extending the time the Court will have to have regard to many considerations such as the length of the delay, prejudice and so forth, but one important consideration to which it will be entitled to have regard is the question of the merits of the substantive application for judicial review, and bearing in mind that the applicant is required to demonstrate not just an arguable case but “substantial grounds”. The nature of this case is such that the Court feels that it could not justly form any view with respect to the merits of the case without hearing from the respondents and other interested parties. Moreover, in this regard the Court notes the decision of Peart J in Coll v Donegal Co Council  IEHC 231 which is, ostensibly, against the applicant in terms of the merits of his application, although in fairness to the applicant he contends that that decision may be distinguishable on several bases, and not least on the basis that, unlike in the present case, the lands in question in the Coll case were neither an SPA nor an SAC under the Habitats Directive. Moreover, the Coll decision has received some critical commentary (see in particular Garrett Simons in Planning and Development Law , 2nd ed, Thompson Round Hall, 2007) and the Court understands the applicant to be contending that certain comments of the learned judge were obiter dictum and possibly per incuriam. Certainly, the matter is by no means clear cut and it requires to be argued fully by the applicant, but by the same token the respondents and notice parties must also in the interests of natural justice be entitled to have their say in response In all the circumstances the Court considers that it would be totally invidious to all concerned for it to allow the matter to proceed ex parte.
I therefore direct that the respondents and the notice parties are to be on notice of the application. As the applicant is a lay litigant I will allow him to do so by means of a letter, to be delivered by ordinary pre-paid post with a certificate of posting, enclosing copies of (i) his draft Notice of Motion (deemed for the purposes of todays proceedings to be his ex parte docket), (ii) his affidavit of 4th of January 2011 and the documents therein exhibited; (iii) the supplemental affidavit hereinafter directed and the document therein exhibited; (iv) this judgment and (v) the Order of the Court resulting from today’s proceedings.
I further direct the applicant to file on or before the 13th of January a short supplemental affidavit exhibiting a draft Statement of Grounds in accordance with Order 84 of the Rules of the Superior Courts.
Finally, I will adjourn this matter to the judicial review list on the 13th of January, 2011 before whatever judge is assigned thereto.