High Court of Ireland Decisions

Goonery v. Meath County Council [1999] IEHC 15 (15th July, 1999)

BETWEEN

NOTE OF JUDGMENT of Mr. Justice Kelly delivered ex tempore on Thursday, the 15th July 1999.

1. This case is in a procedural tangle of monumental proportions. As a result of the steps taken by the Applicant at an earlier stage, not merely have all of the Respondents been confused as to what is actually before the Court but even the Applicant's own recently recruited leading Counsel was under a misapprehension as to the true position. In making that observation, I do not in any way criticise him for his understandable lack of appreciation of the at sometimes incomprehensible procedures followed to date.

2. The Applicant lives in Kinnegad, Co. Meath. Lagan Cement Limited applied to Meath County Council for planning permission for a cement and quarry works described in one Affidavit as the largest installation of its type in the country. The proposed works will be situate adjacent to the Applicant's home. The planning application was successful. Meath County Council granted the permission to Lagan Cement by Order dated the 14th April, 1999.

3. The Applicant has appealed that decision to An Bord Pleanála and the appeal is pending.

4. Having made that appeal there then followed the steps which I shall now describe.

(a) The Applicant, on the 11th May, 1999, issued in this Court an originating motion dated the 10th May, 1999 naming An Bord Pleanála as sole Respondent. It bore Record No. 1999 No. 176 JR. It sought the following relief:-

"1. An Order prohibiting the Respondents from further processing and/or dealing with those appeals submitted arising from a decision of Meath County Council Planning Application Register Reference No. 98/2026 unless and until the determination of these proceedings.

2. Interim and/or interlocutory relief.

3. Further or other relief.

4. Costs."

5. It was grounded on an Affidavit of Dympna Murphy. It was made returnable before the Court on the 17th May, 1999 and has been adjourned from time to time since then.

6. The relief sought in this motion is manifestly interlocutory in nature, could not be the subject of proceedings in its own right, and Mr. Collins S.C. rightly concedes that these proceedings are entirely misconceived. They are struck out.

(b) On the same day, the 11th May 1999, application was made to Budd J. for an Order, the terms of which I will consider in a moment. This application was made by the Applicant in respect of relief sought against a variety of Respondents, namely, Meath County Council, An Bord Pleanála, the Environmental Protection Agency, Ireland, the Attorney General with Lagan Cement Limited as a Notice Party. The Application to Budd J. was made ex parte.

7. I am told by Mr. Collins (who was not then in the case) and I accept, that the application was first moved before Geoghegan J. on the 10th May, 1999. That judge was, because of the pressure of his list, unable to entertain the application that day or the next. He did, however, express concern that the Applicant should be seeking to move it on an ex parte basis. He gave permission for the application to be moved before any other judge who was free on the 11th May, 1999.Budd J. proved to be such a judge. Counsel raised the question of whether the application should be on notice or not before that judge but decided to proceed ex parte and was granted the Order sought. The Order in its curial part reads:-

"IT IS ORDERED

(1) That the Applicant do have leave to apply by way of application for judicial review for the reliefs set forth at paragraph (D) in the aforesaid Statement on the grounds set forth at paragraph (E) therein.

(2) That the second named Respondent, their servants or agents be prohibited until after Monday the 17th day of May 1999 (or until further Order in the meantime) from further processing and/or dealing with those Appeals submitted arising from a decision of Meath County Council Planning Application Register Reference No: 98/2026 unless and until the determination of these proceedings.

(3) That the said Applicant do serve an originating Notice of Motion together with copies of the aforesaid Statement and verifying Affidavit and of this Order on the Respondents by fax/phone initially to be followed by personal service.

(4) That the Applicant be at liberty to serve Notice of Motion for an Interlocutory Injunction returnable on Monday the 17th day of May 1999.

(5) That the costs of this application and Order be reserved."

8. Whether it was permissible to grant such an Order ex parte is a crucial issue which has to be decided at this stage. I should, however, complete the narrative.

9. Having secured this Order, the Applicant did not comply with it in that she never issued the motion provided for at paragraph (3) which I have set forth above. Instead, she issued a motion seeking leave to apply for Judicial Review. In other words, she sought on motion the same relief as she had been granted byBudd J. ex parte. To make matters even more odd, the actual motion issued is dated the 7th May, 1999 which antedated the hearing before Budd J. by four days although this motion bears the stamp of the Central Office of this Court dated the 11th May, 1999.

10. This motion has been adjourned from time to time and was listed for hearing the day before yesterday. The motion is clearly a nonsense in the light of the Order already made by Budd J.

11. These activities of the Applicant have in turn provoked a tidal wave of paper from various of the Respondents. No fewer than five motions have been issued seeking various reliefs against the Applicant. They are as follows:-

(1) A motion brought by Ireland and the Attorney General seeking the following reliefs:-

"1. An Order setting aside the Order of this Honourable Court of 11 May 1999 granting the Applicant Leave to apply for Judicial Review on the grounds that the Leave Application was an abuse of the process of the Court;

2. An Order setting aside the Order of this Honourable Court of 11 May 1999 granting the Applicant Leave to apply for Judicial Review on the grounds that the Leave Application was frivolous and/or vexatious;

3. Such further or other relief as may be necessary or appropriate;

4. An Order providing for the costs of this Application."

(2) A motion brought by Lagan Cement Limited seeking to dismiss the proceedings for failure to make full and frank disclosure.

(3) A motion brought by An Bord Pleanála seeking to set aside the injunctive part of the Order of Budd J.

(4) A motion brought by Meath County Council seeking to set aside the Order of Budd J. on the grounds of abuse of process and vexatiousness.

(5) A motion brought in other proceedings by Lagan Cement Limited seeking to compel the disclosure of certain information.

12. In the course of opening the matter to the Court, Mr. Collins believed that he was in fact dealing with a substantive hearing of the proceedings on their merits. Some of the Respondents believed that all that was before the Court were proceedings of an interlocutory type. When, overnight, I had the opportunity to read the papers in some detail, the position as outlined above became clear and when I called it to Counsel's attention he rightly accepted that the actual motion before the Court makes no sense in the light of the Order ofBudd J. He also acknowledged the Applicant's failure to comply with the Order granted by that judge.

13. It is appropriate that I should at this stage set out the reliefs in respect of which Budd J. made his Order and the grounds upon which he permitted those reliefs to be sought.

14. The reliefs sought were:-

"1. A Declaration that Section 98 of the Environmental Protection Agency Act, 1992 is contrary to and in conflict with Council Directive No. 85/337/EEC, namely, The Assessment of the Effects of Certain Public and Private Projects on the Environment, which Directive is dated the 27th day of June, 1985.

2. A Declaration that Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 as substituted by Article 6 of the European Communities (Environmental Impact Assessment) Regulations, 1994 is in conflict with and is contrary to the provisions of Council Directive No. 85/337/EEC and in particular to Article 3 of that Directive.

3. A Declaration that the amendments to Section 26 of the Local Government (Planning and Development) Act, 1963 by Article 6 of the European Communities (Environmental Impact Assessment) Regulations, 1994 are ultra vires, invalid and void by virtue of a purported amendment of a statutory provision by statutory instrument which amendment is not required, necessitated or authorised by any requirement of European Law to be complied with.

4. A Declaration that the first named Respondent did not properly determine the application for planning permission for the cement manufacturing installation, Planning Register Reference No. 98/2026 because it failed to have adequate regard to the Environmental Impact Statement accompanying the aforesaid application and in particular failed to have regard to the interaction of environmental effects whichis a fundamental requirement of the assessment of any such application having regard to the requirements of Council Directive 85/337/EEC and to the requirements of the European Communities (Environmental Impact Assessment) Regulations, 1989.

5. A Declaration that the second named Respondent cannot properly determine an Appeal lodged against the decision of the first named Respondent and cannot consider the application properly in terms of Council Directive 85/337/EEC having regard to Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 as amended.

6. A Declaration that the third named Respondent cannot properly determine a licence application submitted pursuant to Part IV of the Environmental Protection Agency Act, 1992 having regard to the provisions of Section 98 of the Environmental Agency Act, 1992 and cannot have proper regard to the requirements of the 1989 European Communities (Environmental Impact Assessment) Regulations, 1989 and/or Council Directive 85/337/EEC in the determination of such an application.

7. A Declaration that Section 98 of the Environmental Protection Agency Act, 1992 is contrary to and in conflict with Council Directive 85/337/EEC and/or with the European Communities (Environmental Impact Assessment) Regulations, 1989.

8. A Declaration that Section 26(1)(A) [of the] Local Government (Planning and Development) Act, 1963 as amended by Article 6 of the European Communities (Environmental Impact Assessment) Regulations, 1994 and/or European Communities (Environmental Impact Assessment) Regulations, 1989 is in conflict with and contrary to the European Communities (Environmental Impact Assessment) Regulations, 1989 and/or Council Directive 85/337/EEC.

9. An Order prohibiting the second named Respondent from considering any Appeal or making any determination on any Appeal lodged on Planning Application Register Reference No. 98/2026 unless and until the provisions of Council Directive 85/337/EEC and/or European Communities (Environmental Impact Assessment) Regulations, 1989 have been fully complied with.

10. An Order prohibiting the third named Respondent from considering any licence application pursuant to Part IV of the Environmental Protection Agency Act, 1992 or from making any determination on any such application unless and until the provisions of Council Directive 85/337/EEC and/or European Communities (Environmental Impact Assessment) Regulations, 1989 have been complied with.

11. A Declaration that by virtue of Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 as amended the first named Respondent could not have made a valid decision and Application Planning Register Reference No. 98/2026 as it could not implement the requirements of Council Directive 85/337/EEC which requirements are mandatory.

12. A Declaration that the fourth named Respondent has failed to implement properly or at all the requirements of Council Directive 85/337/EEC and has failed to set up a proper scheme so as to implement and give effect to the requirements of that Directive.

13. A Declaration that the requirements of 85/337/EEC [sic] are binding on the first, second, third and fourth named Respondents and that the requirements of the Directive with regard to those developments specified as coming within that Directive must be implemented.

14. A Declaration that the appropriate period for the making of an Appeal against the decision to grant planning permission by the first named Respondent is the date of receipt by the Applicant of Notice of the making of the decision.

15. Interim and/or interlocutory relief.

16. The costs of this application."

15. The grounds upon which Budd J. permitted these reliefs to be sought were as follows:-

"1. Application Register Reference No. 98/2026 is a specified development for the purposes of Council Directive 85/337/EEC and for the purposes of the European Communities (Environmental Impact Assessment) Regulations, 1989.

2. The application for planning permission for the aforesaid cement manufacturing installation Reference No. 98/2026 must be accompanied by an Environmental Impact Statement and the first and second named Respondents are required to carry out an Environmental Impact Assessment for the proposed development prior to making a determination of the application.

3. Article 3 of Council Direction 85/337/EEC requires that the direct and indirect effects of a project on human beings, fauna, flora, soil, water, air, climate and landscape must be assessed prior to the determination of the application. Article 3 further provides that the interaction between these factors must be considered before the application is determined.

4. The aforesaid Directive 85/337/EEC directly binds the Respondents as the State or emanations of the State and the Directive specifically refers to the development the subject matter of the proceedings at Annex 2, paragraph 2, subparagraph (m).

5. The Application Planning Register Reference No. 98/2026 was a specified development for the purposes of 85/337/EEC [sic] and for the purposes of the European Communities (Environmental Impact Assessment) Regulations, 1989 and 1994 and requires as a matter of law such an assessment as a condition precedent for the determination of the application.

6. The first and second named Respondents were required to carry out an Environmental Impact Assessment of the impact of the proposed development prior to determining the application and this the first named Respondent failed to do by failing to have regard to the requirements of Article 3 of the Directive and to paragraph 2 of the Second Schedule to the European Communities (Environmental Impact Assessment) Regulations, 1989 and which the second named Respondent cannot do by virtue of Section 26(1)(A) of the 1963 Local Government (Planning and Development) Act.

7. Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 as amended is in conflict with and contrary to the provisions of Council Directive 85/337/EEC as it expressly prohibits the first and second named Respondents from carrying outtheir responsibilities and to properly implement Article 3 of Directive 85/337/EEC.

8. Section 98 of the Environmental Agency Act, 1992 is inconsistent with and contrary to the provisions of Council Directive 85/337/EEC and to the provisions of the European Communities (Environmental Impact Assessment) Regulations, 1989 as it prohibits the Respondents from properly implementing the terms of Council Directive 85/337/EEC and the terms of the European Communities (Environmental Impact Assessment) Regulations, 1989.

9. The fourth named Respondent has failed to properly implement the terms of Council Directive 85/337/EEC into Irish law and failed to properly transpose its requirements so that the terms of the Directive can be implemented.

10. Council Directive 85/337/EEC is directly binding on the State and on emanations of the State. The provisions of Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 and Section 98 of the Environmental Agency Act, 1992 are absurd, are vague and ill-defined, and are contrary to plain reason and common sense.

11. The provisions of Section 98 of the Environmental Protection Agency Act, 1992 and Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 are such as to render impossible any proper assessment of the impacts and effects of specified developments for the purposes of the European Communities (Environmental Impact Assessment) Regulations, 1989 and Council Directive 85/337/EEC.

12. The amendments to Section 26 of the Local Government (Planning and Development) Act, 1963 which were effected by Article 6 of the European Communities (Environmental Impact Assessment) Regulations, 1994 are ultra vires, invalid and void by virtue of the purported amendment of the statutory provision by a Statutory Instrument, which amendment is not authorised or required by any requirement of European law but is in fact in direct conflict with European law by virtue of its conflict of [sic] Council Directive 85/337/EEC and in particular Article 3 thereof.

13. The Respondents cannot properly determine an application for planning permission pursuant to Section 26 of the Local Government (Planning and Development) Act, 1963 nor an application for an Integrated Pollution Control Licence submitted pursuant to Part IV of the Environmental Protection Agency Act, 1992 having regard to the provisions of Section 98 of the Environmental Protection Agency Act, 1992 and the provisions of Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963 and having regard to the requirement of both Respondents to consider the interaction of effects having regard to the requirements of European Communities (Environmental Impact Assessment) Regulations, 1989 and Council Directive 85/337/EEC.

14. The first named Respondent erred in failing to have proper regard to the provisions of the Meath County Development Plan which Development Plan contains matters relating to the risk of environmental pollution as defined in the 1992 Environmental Protection Agency Act, which provision provides that there be a direct conflict between the provisions of Section 26(1) and Section 26(1)(A) of the Local Government (Planning and Development) Act, 1963.

15. The consideration of the application by the Respondents leads to absurd distinctions between the overlap of functions between the respective Respondents and are such as not to lead to proper or adequate assessment of an application specified as requiring particular treatment pursuant to Council Directive 85/337/EEC and the 1989 European Communities (Environment Impact Assessment) Regulations, 1989 [sic].

16. The appropriate period for the making of an appeal against the decision to grant planning permission by the first named Respondent is the date of receipt by the Applicant of notice of the making of the decision.".

16. In the course of his opening, Counsel for the Applicant made it clear that he did not wish to proceed with reliefs No. (4) and (11) set forth above thereby releasing Meath County Council from further involvement. That concession, however, arose when Counsel believed that he was moving the application for substantive relief.

17. As it appeared that the motion brought by Ireland and the Attorney General might, if successful, be fatal to the entirety of these proceedings, I decided to hear it first and to that course being followed there was no dissent.

18. Mr. Connolly S.C., on behalf of those two parties, says that the Order of Budd J. should be set aside because it was made in the teeth of the provisions of Section 19 of the Local Government (Planning and Development) Act, 1992.

19. The relevant parts of that section, which are prayed in aid, are as follows:-

"(3) Section 82 of the Principal Act is hereby amended by the substitution for subsection (3A) (inserted by the Act of 1976) of the following subsections:

'(3A) A person shall not question the validity of -

(a) a decision of a planning authority on an application for a permission or approval under Part IV of this Act, or

(b) a decision of the Board on any appeal or on any

reference,

otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) (hereinafter in this section referred to as "the Order").

(3B)(a) An application for leave to apply for judicial review under the Order in respect of a decision referred to in subsection (3A) of this section shall -

(i) be made within the period of two months commencing on the date on which the decision is given, and

(ii) be made by a motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to -

(I) if the application relates to a decision referred to in subsection (3A)(a) of this section, the planning authority concerned and, where the applicant for leave is not the applicant for the permission or approval under Part IV of this Act, the applicant for such permission or approval,

(II) if the application relates to a decision referred to in subsection (3A)(b) of this section, the Board and each party or each other party, as the case may be, to the appeal or reference,

(III) any other person specified for that purpose by order of the High Court,

and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed ...' ".

20. It is as well to remember what the Supreme Court had to say concerning this statutory provision. In K.S.K. Enterprises Limited v. An Bord Pleanála [1994] 2 IR 128, Finlay C.J., speaking for a unanimous Supreme Court, said at p. 135:-

"The general scheme of the subsection now inserted by the Act of 1992 is very firmly and strictly to confine the possibility of judicial review in challenging or impugning a planning decision either by a planning authority or by An Bord Pleanála. The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested to the Court to extend the time. Secondly, there is a provision contained in the subsection as inserted that leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. Thirdly, in relation to all matters other than constitutional challenge to a statute, the determination of the High Court is stated to be final in regard to any such application for leave to apply for judicial review or by way of application for judicial review except in the case, which has occurred in this instant appeal, where a High Court Judge certifies that there is a pointof law of exceptional public importance desirable to be heard by the Supreme Court.

From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should, at a very short interval after the date of such decision, in the absence of a judicial review, be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision".

21. Mr. Connolly says that the section was clearly applicable here having regard in particular to the relief sought at Nos. (4) and (11), it was not complied with and that accordingly the Order of Budd J. must fall.

22. Mr. Collins, on behalf of the Applicant, counters with a number of arguments each of which I will consider in turn.

23. First, he says that nowhere in the reliefs sought by his client did he question the validity of the planning permission granted by Meath County Council. I do not agree. Relief No. (4) seeks a Declaration that Meath County Council did not properly determine the application for planning permission for the installation because it failed to have any adequate regard to the Environmental Impact Statement accompanying the planning application.

24. Relief No. (11) seeks a Determination that by virtue of the provisions of Section 26(1)(A) of the 1963 Act as amended, Meath County Council could not have made a valid decision on the planning application.

25. Whatever about the way in which these are worded, they plainly seek to impugn the validity of the decision to grant permission. If these reliefs were granted, they would undoubtedly mean in practical terms that the decision of the Meath County Council was invalid. This is particularly so in the case of relief No. (11). The mere fact that an Order was not sought quashing the permission in question does not mean that the validity of the permission was not being questioned. It was, and so the provisions of the section applied and were not complied with since the application was moved beforeBudd J. ex parte and not on notice as the section requires.

26. Mr. Collins' next point is that it is not open to the parties represented by Mr. Connolly to make this application since they are not required to be served with the necessary notice of motion as prescribed under Section (3B)(a)(ii)(1) not being either the planning authority or the applicant for the planning permission. In my view this point is not well taken. It seems to me that if a party to proceedings can show that a mandatory statutory requirement has not been met, he may raise that point in order to advance an argument of the type in suit. It is not, however, necessary for me to decide this point sinceLagan Cement Limited is a Notice Party to the State's motion and has adopted the arguments made on its behalf as its own. The issue is, therefore, before the Court and is mooted by one of the mandatory Notice Parties mentioned in the relevant section of the Act.

27. Mr. Collins' final point is to the effect that the reliefs sought before Budd J. are severable so that all those except Nos. (4) and (11) are not ones to which the section applies and could have been applied for on an ex parte basis. Therefore, it is said, the Order of Budd J. is bad only insofar as it purported to grant relief in respect of the reliefs sought at paragraphs (4) and (11).

28. Again, I cannot agree with this contention. The Applicant chose the form and nature of the proceedings which she wished to institute. She chose to bring proceedings against the various named parties and to question the validity of the planning permission granted in those proceedings. Now that the procedure followed is under attack, I do not think that she can seek to sever not merely the relief sought but also the Order granted on foot of her application. The Order granting leave is a composite and cannot in my view be subjected to an ex post factoanalysis and severance as is sought to be achieved. Whatever may be her view now, the fact is that all the reliefs were sought ex parte including those which could only be obtained on an inter partes application and on the demonstration of a higher degree of proof. To permit what is now sought would be to allow an element of approbation and reprobation on the Applicant's part. It would permit her to treat what she moved as a single application of an integrated case as something different to that. Such an approach could give rise to much undesirable uncertainty. In these circumstances, I am satisfied that the Order ofBudd J. cannot stand and must be set aside in its entirety.

29. It follows, therefore, that the Respondents represented by Mr. Connolly and Mr. Brady are entitled to their Order. The effect is that there are no valid proceedings before the Court.

30. There are two further observations which I ought to make. The first is that I fail to understand why such a procedural muddle was created in this case. Had the motion seeking leave to commence judicial review proceedings simply been brought in the form in which it was drafted and no ex parte application been made toBudd J. for leave, none of this would have occurred.

31. Secondly, whilst I am ruling on the matter before me and finding in favour of the Respondents, the practical advantage secured by them in the long term may be more apparent than real. This is because of Mr. Collins' indication that the case which he truly wants to make may not involve questioning the validity of the planning permission at all. If that is so, he may be able to ventilate his complaints in a proceeding which does not attract the provisions of Section 19 of the 1992 Act and the time limit and procedures prescribed thereby. Whether he decides to mount that claim by means of fresh judicial review proceedings or otherwise is a matter entirely for the Applicant to choose. Should she decide to do so, nothing in this ruling should be taken as an indication that she can or cannot. Neither should this ruling be regarded as indicating a view for or against any defences which may be open to the various Respondents in the event of such proceedings being commenced.

32. The Order of Budd J. is set aside.

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