High Court of Ireland Decisions

1. This is an application for leave to bring Judicial Review proceedings seeking Orders of Certiorari and declaratory relief with a view to quashing and annulling an Order of the First named Respondent approving a motorway scheme with modifications and an Order of the same Respondent approving the carrying out of the motorway development having regard to an environmental impact report. As a consequence of the enactment of Section 6 of the Roads (Amendment) Act, 1998 which inserted a new Section SSA into the Roads Act, 1993, the application for leave has to be made on notice and to quote the wording in the section leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the Order is invalid or ought to be quashed". This procedure applies to both types of Order made by the Minister and sought to be quashed in the proposed proceedings. The application for leave has had quite a procedural history but I do not intend to go into any of that in this judgment as I have dealt with it fully in an earlier reserved judgment. What I have to consider in this judgment is whether there are substantial grounds for contending that either of these Orders is invalid or ought to be quashed. There has been discussion at the oral hearing and in the written submissions as to what is meant by "substantial grounds". Reference has been made to a judgment of Carroll J in McNamara v An Bord Pleanala, 1995 2 ILRM 125 where similar words contained in Section 19 of the Local Government (Planning and Development) Act, 1992 had to be considered. Carroll J held that for a ground to be substantial it had to be reasonable, arguable, weighty and could not be trivial or tenuous. It has been suggested in the written submissions lodged on behalf of the Notice Party that what may constitute "substantial grounds" under the Planning Acts may not constitute "substantial grounds" under the Roads Act, the argument being that the planning code is separate and distinct from the roads code and that the underlying scheme of both is quite different. I cannot accept that submission. At the time that the Oireachtas passed the Roads Act, 1998 the decision of Carroll J in McNamara's case was already reported and well known. As far as I am aware there was no appeal from it. That being so, the draftsman of the Roads Act, 1998, and indeed the Oireachtas itself, must be deemed to be aware of that High Court decision and if it was intended that some stricter criteria were to be applied in relation to the Roads Act than the Planning Acts, it is inconceivable that the identical words would have been used in the Act. Even if the same words were used some kind of special definition would be given or modification or proviso. However, I do accept that the definition of "substantial grounds" given by Carroll J may in practice be applied rather differently where a vast public scheme for a motorway is involved as distinct from an individual private planning permission. In the last analysis, Certiorari is always a discretionary remedy and in considering whether a ground is reasonable or not proportionality issues may come into play in the case of a motorway that might not be relevant in relation to a Judicial Review of a planning decision. As has been pointed out in the written submissions there are some difficulties arising out of Carroll L's own definition but I am certain that she would never have intended that her words would be interpreted as though they were in a statute. I am satisfied that it was clearly intended by the Oireachtas that stricter criteria be applied to the granting of leave than would be applied on an ex-parte application in an ordinary Judicial Review. Once a Court has decided that the points at issue in the proposed Judicial Review are not trivial or tenuous, the Court must assess whether there is real substance in the argument and not merely that it is just about open to argument.

Applying those principles I have to consider here whether a substantial argument can be put forward to the effect that the First named Respondent, ie, the Minister for the Environment and Local Government, acted ultra vires. There is no evidence to suggest that the inspector's report and all other documentation relied on by the inspector was not before the Minister when he made his decisions to make the two impugned Orders.

The complaint of the Applicant arises in the following circumstances. The proposed motorway will divide the Applicant's lands in two. At the time of the enquiry by the inspector the entire lands were zoned agricultural but there was a draft proposal to rezone the severed lands north of the motorway to industrial. A similar proposal in respect of the southern lands had been rejected. By the time the matter came before the Minister the rezoning of the northern section of the lands had actually taken place. The Applicant complains that the Minister took no account of the change of zoning.

The Applicant's attack on the Minister's approval of the scheme however goes much further. The Applicant claims that the alternative access envisaged to be provided by the County Council in respect of both the southern lands and the northern lands is inadequate and also complains there is inadequate provision for services in relation to potential future development. It is conceded that the alternative access proposed to be granted in respect of both the southern and the northern lands is adequate for the existing farming uses. But the Applicant says that this is not enough. It appears that all kinds of potential uses other than just ordinary farming are included under the heading "agricultural zoning". The Applicant therefore claims that even in relation to the southern lands it has not been given adequate access for potential alternative uses. Furthermore, the Applicant claims that there should be an over-bridge wide enough for all uses connecting the northern and the southern portions of the land. In relation to the northern lands the Applicant claims that the access being provided is inadequate for industrial uses as is the provision for services. I am satisfied that none of these complaints constitute substantial grounds for Judicial Review. Indeed I do not accept that they are even arguable grounds. If the southern lands can no longer be conveniently or profitably used for ordinary farming, the Applicant can obtain appropriate compensation under the 1919 Act. This was pointed out to Mr Miley, Solicitor for the Applicant, by the inspector in the course of the enquiry. Nor can I accept that a Minister would have to modify a scheme of this kind to accommodate the Applicant in respect of far-fetched possible uses to which the southern lands might be put under the heading of agricultural zoning. I do of course accept that not everything can be left to compensation. There must be proportionality in relation to compulsory acquisition or interference with property rights. But provided adequate access is provided for in relation to existing use or possibly even a clearly proved immediately intended altered use, the obligations of the acquiring authority and the Minister are complied with and any other loss of value element can be left to compensation.

With regard to the northern lands, if and when the Applicant ever decides to develop in accordance with the industrial zoning there are, as I understand it, alternative potential means of access which would cater for such use. This would all be a matter of appropriate planning permissions of course but the planning authority would be obliged to have regard to the development plan. The same is true of services.

Even if the Minister did not have the new development plan before him or have knowledge that a new development plan had been approved, it is clear from the transcript of evidence before the inspector that all questions arising from the intended rezoning under the draft plan were fully gone into and considered. In these circumstances the Applicant would not be entitled to leave for Judicial Review of the Minister's decision to approve the scheme, having regard to the provisions of Section 55A of the Roads Act, 1993 as inserted by Section 6 of the Roads (Amendment) Act, 1998. Still less would the Applicant have any right to Judicial Review of the decision of the Minister to approve the carrying out of the motorway development, having regard to the environmental impact report. This would seem to me to have nothing whatsoever to do with the Applicant's complaints and I cannot see that there are any stable grounds for Judicial Review arising from it.

Finally, I can see no basis for a challenge as to the constitutionality of Section 49 or Section 51 of the Roads Act, 1993. The Minister in exercising his powers is bound to act constitutionally. Therefore if contrary to the view I have taken the Applicant has any legitimate complaint against the Minister based on the Constitution, it must ipso facto mean that the Minister has failed correctly to interpret his powers under the respective section and in that event there is no question of the section itself being unconstitutional. A section giving powers to a Minister which are capable of being exercised constitutionally cannot itself be unconstitutional. Accordingly, there can be no basis for Judicial Review in the form of declarations as to alleged unconstitutionality of the relevant section

On all grounds therefore I must refuse leave for Judicial Review.