High Court of Ireland Decisions

1. This judgment relates to a problem which has arisen during the hearing of an application on notice for leave to bring judicial review proceedings seeking "an Order of Certiorari quashing the First named Respondent's Order of the 19th day of October, 1998, approving with modifications Dun Laoghaire Rathdown County Council - South Eastern Motorway Scheme, 1997 (hereinafter referred to as "the Scheme") notice of which order was published on the 16th day of November, 1998" and a number of declaratory reliefs couched in different terms but essentially to the same effect that the First named Respondent had acted ultra vires his powers under Section 51 of the Roads Act, 1993 apart from two of the declarations sought which are to the effect that Section 51 of the Roads Act, 1993 is invalid having regard to the Constitution. There is also some other declaratory relief which is not to the same effect and an Order of Mandamus requiring the First named Respondent to modify the Scheme.

2. Senior Counsel for the Applicant proceeded to open the application to this Court and it was clear from his opening that he was seeking to attack the Dun Laoghaire Rathdown County Council - South Eastern Motorway Scheme, 1997 primarily on the ground that between the oral hearing and the confirmation by the Minister, there had been a change of zoning in relation to part of the Applicant's lands affected from agricultural to industrial and that the alternative access being provided under the Scheme for the Applicant did not properly take this into account. There are other points also but for the purposes of this judgment it is not necessary to elaborate on them. It appears that at some stage during the opening Senior Counsel for the Notice Party alerted Senior Counsel for the Applicant that the only relevant section of the 1993 Act referred to in the Grounding Statement was Section 51 but that the Minister's approval of the Scheme with modifications was given under Section 49 and not under Section 51. The Minister was obliged and did give another approval under Section 51 to the development under the Scheme in the light of an environmental impact statement which he was obliged by Statute to consider.

3. Counsel for the Applicant has admitted quite frankly that he settled the Grounding Statement and that at the stage of drafting he, for some reason or other, completely overlooked the fact that there were two approvals involved under the Act. Under Section 49(3) the Minister had to approve the Scheme itself. Under Section 51(6) the Minister had to approve the carrying out of the development in the context of an environmental impact statement. Counsel, in drafting the Statement, assumed that there was one composite approval under Section 51. Counsel for the Applicant, however, argues that it would have been obvious to the Respondents and the Notice Party that there was an error involved in that, in the context of the relief sought and the grounds for the relief, it was clear that the Applicant was attacking the Scheme itself. This Court has now been asked to permit an amendment which effectively would allow both approvals to be queried. It is sought to insert the words "under Section 49 and/or" between the word "under" and the words "Section 51" wherever they appear in the Grounding Statement. If, and in so far as this involves a new ground, an extension of time would be required. The Court does have power to extend the time in an application for leave under the Roads Acts unlike applications for leave under the Planning Acts. Furthermore, of course, the Applicant is seeking an amendment of paragraph 6 of the Grounding Statement so as to seek a declaration that Section 49 of the Roads Act, 1993 is invalid having regard to the Constitution. He wants this additionally or alternatively to the constitutional attack on Section 51.

4. The applications to amend and/or extend the time are vigorously opposed by Counsel for the Notice Party and the opposition is supported by Counsel for the Respondents. The opposition was primarily argued, however, by Senior Counsel for the Notice Party. He does not accept in any way that it would be obvious or even would seem likely that there had been an error in the Grounding Statement and that the Applicant was intending to attack the Scheme as a whole and not merely the Order made by the Minister in respect of the environmental impact aspect of it. Indeed Counsel for the Notice Party goes further in that not only does he argue that neither he nor his junior nor his solicitor or clients could possibly have realised that the declaratory reliefs intended could have been intended to relate to anything other than the exercise by the Minister of his powers under Section 51 of the Roads Act, 1993 but he argues that by reason of the references to Section 51 in the case of the declaratory reliefs it would not have occurred to him or his colleagues or solicitor or clients that the Order of Certiorari sought could have related to the Order of the Minister made under Section 49. He says that it was assumed by everybody on the Respondents or Notice Party side that the Order sought to be quashed was the Order under Section 51.

5. When this problem arose at the hearing, my first impression on looking at the Grounding Statement was that there was clearly an error and that as a matter of common sense it ought to have been realised by the Respondents and Notice Party that there was probability or at the very least possibility of error. However, I was shaken by the stridency of the submissions made on behalf of the Notice Party and I decided that I ought to reserve judgment on the question even though it meant interrupting the hearing of the application for leave to bring judicial review.

6. Having considered the matter most carefully and read and reread the Grounding Statement, I find my considered view to be the same as my preliminary view. What happened is surprising because both Senior Counsel and Junior Counsel for the Applicant are very experienced in local government law. Nevertheless, the terms of the Grounding Statement seem to me to be entirely consistent with what I was told by Senior Counsel for the Applicant who took responsibility for the drafting of it.

7. Quite apart from what I was told by Senior Counsel for the Applicant, my reasons for arriving at the view which I have taken are as follows:-

8. By acceding to the application for amendment, I do not think that any prejudice in the legal sense can be caused to the Respondents or the Notice Party.

9. I take the view that if I were merely to amend the Grounding Statement so as to insert Section 49 instead of Section 51 on the basis that there had simply been an erroneous citation, this would not be contrary to the principles set out by Kelly J. in Ní Eilí -v- EPA , 1997 2 ILRM 458 or Keane -v- An Bord Pleanala , unreported judgment of Murphy J. delivered the 23rd May, 1995. Of course, under the Roads (Amendment) Act, 1998, this Court can extend the time but the mere alteration of the citation of the Section would not require, in my view, an Order extending the time. However, an application has been made to me as I have indicated, to include both Sections in the declaratory reliefs. That does require an extension of time but I think that in all the circumstances there is good and sufficient reason for extending the period. Having regard to the fact that the two Orders and approvals are really part and parcel of the overall Scheme for creating a motorway, there would be no prejudice caused. I will, therefore, grant the necessary amendments and the necessary extension. An amended Grounding Statement, however, must now be lodged. The Applicant should also file and serve a Supplemental Affidavit referring to and producing the Orders sought to be quashed.