High Court of Ireland Decisions

1. There are two motions before me brought in the context of judicial review proceedings initiated by order of O’Caoimh J. made on the 31st of July 2000 giving leave to the applicant to seek orders as follows:-

2. The two motions seek:-

3. In the course of submissions in relation to the first of these two motions it became apparent that the applicant now seeks to advance further arguments challenging the process adopted by the respondent towards amending their development plan as follows:-

4. It was the applicant’s submission, accordingly, that I should treat the first of their motions as including an application for leave to extend the reliefs and grounds which were authorised by O’Caoimh J. on the 31st of July 2000.

5. Furthermore, it was submitted that the standard of proof required on this application was as laid down by the Supreme Court in G. -v- D.P.P. ( 1994, 1, I.R. 381).

6. In this judgment I am dealing only with the first motion and ancillary issues and not with the application for discovery.

7. Before dealing with the legal issues which arise I will first briefly set out the background to these applications.

8. The applicant has owned some twenty acres of land at Rathdrum Co. Wicklow since 1990. From the beginning it was clear that Wicklow Co. Council was interested in acquiring part of these lands (some eight acres) for a waste water treatment plant and they had discussions with him in the early 1990’s. These discussions broke down because the parties could not agree on price and also there was some question about the availability of funding from the Department of the Environment. Nevertheless the applicant kept in touch with Wicklow Co. Council throughout the 1990’s and it was clear that they were still interested in acquiring part of his land.

9. In 1997, Wicklow Co. Council published a draft development plan which showed an intention to construct a waste water treatment plant on the applicant’s lands.

10. This draft was adopted, including the proposal affecting the applicant’s lands, on the 8th of March 1999.

11. On the 24th of September 1999, however, Wicklow Co. Council published a notice seeking tenders for the construction of a waste water treatment plant on lands other than those of the applicant.

12. The designation on the applicant’s lands and the active interest of Wicklow Co. Council therein had, inevitably, curtailed development of those lands. Indeed development in the area including of the applicant’s lands was being delayed due to the absence of such a waste water treatment plant and the applicant himself was refused permission to develop his lands by An Bord Pleanala on the 8th of December 1999 because of the lack of such a facility.

13. The applicant brought judicial review proceedings challenging the right of Wicklow Co. Council to construct a waste water treatment plant on lands other than his own and on the 12th of January 2000 Geoghegan J. granted him a declaration that Wicklow Co. Council could not build such a plant on lands other than those of the applicant without altering their development plan.

14. It was accepted that the judge indicated that Wicklow Co. Council should proceed promptly to resolve the anomalous situation into which their proposals had placed the applicant.

15. On the 15th of June 2000, Wicklow Co. Council published notice of their intention to vary the development plan so as to include a waste water treatment plant designation on (1) the applicant’s lands, (2) lands owned by the Church of Ireland and (3) on any other lands considered suitable.

16. This made the applicant’s position even less certain than it had been before and on the 31st of July 2000 an ex parte application was made to O’Caoimh J. which resulted in the order already described.

17. Wicklow Co. Council in a letter dated the 7th of September 2000 offered a substantial response by indicating an intention to advise the councillors to:-

18. However, they could give no undertaking with regard to rezoning the applicant’s lands. These proposals, if carried, would have the effect of identifying one and only one site for the waste water treatment plant, namely the Church of Ireland site and also of creating the certainty that the applicant’s lands would not be proposed for such works.

19. By notice dated the 18th of January 2001, Wicklow Co. Council indicated that an amended review of their development plan had been prepared and could be inspected at County Buildings between the 22nd of January and the 23rd of February 2001.

20. The applicant responded to this notice and made submissions to Wicklow Co. Council in relation to it.

21. In this application, as already indicated, it is sought to prohibit Wicklow Co. Council from taking any further step towards adopting the amended variation of their development plan until the conclusion of these proceedings, and also, to expand the challenge to the process adopted by Wicklow Co. Council beyond that authorised by O’Caoimh J. on the 31st of July 2000. I will now deal with the legal issues that arise.

22. The applicant advances two propositions as follows:-

23. The evidence is that O’Caoimh J. indicated that a stay would follow automatically on his order. But the order does not record that a stay was granted and I am satisfied that the orders made on the 31st of July 2000 act as a stay if and only if the court so directs and the order so recites.

24. The applicant has not gone back to O’Caoimh J. to have the order amended so as to reflect this direction.

25. Ms. Butler BL counsel for the respondents submits that it would be unfair to simply hold that a stay has been in existence since July given that the applicant has spent two days before me on an inter partes basis arguing , inter alia , the merits of a stay. She also submits that there was some delay before the applicant’s brought up (in correspondence) the proposition that a stay had been granted on the 31st of July 2000.

26. For these reasons, and also because the circumstances now obtaining are different from those in existence on the 31st of July last I consider that I should not now declare that a stay was granted on that date and continues until the present but that, rather, I should now consider the question of a stay on its merits in the fresh circumstances that apply today.

27. Before doing so, however, I think it appropriate that I first consider the various legal submissions advanced by the parties so that the full scope of the pleadings will be established when I come to consider whether or not to grant a stay at this juncture.

28. Notwithstanding that the application has been made on notice to the respondents and that full participation has been availed of by their counsel it is submitted by Mr O’Donnell BL counsel for the applicant that the standard of proof required of the applicant at this stage in seeking to extend the reliefs and grounds authorised by order of O’Caoimh J. on the 31st of July 2000 is that laid down by the Supreme Court in G. -v- D.P.P.. In particular it is submitted that I am bound by the following passage from the judgment of Denham J. (pages 381/2) namely:-

29. It is submitted that I am bound by this authority and that I am not free to apply a higher standard, notwithstanding the participation on notice of Wicklow Co. Council and notwithstanding the observations of Kelly J. in Gorman and Anor. -v- Minister for the Environment (Unreported, High Court, Kelly J. 7th of December 2000).

30. Ms. Butler BL counsel for Wicklow Co. Council says that there is a question over the applicability of the standard laid down in G. -v- D.P.P. in these circumstances but she does not go as far as advancing any alternative proposed standard of proof. She submits, however, that I should take account of the evidence and submissions advanced on behalf of the respondents on the hearing of this motion. I consider that on this particular application the standard laid down by the Supreme Court in G. -v- D.P.P . should apply but in applying that standard I also agree that I cannot shut my mind to the case now made by the respondents who are a notice party in this application.

31. The applicant responded to the notice. Nonetheless, it is submitted by Mr O’Donnell BL counsel for the applicant that he has locus standi to challenge the validity of the notice because of his entitlement to expect that a full and proper notice (which this one is not, he submits) would attract a full response ( either for or against his interest) and thus ensure that the planning process would be fully implemented. Since the notice is an integral part of the review process he submits that his client must have locus standi to challenge the notice in the context of a case which impugns any part of that process.

32. Ms. Butler BL submits that the applicant is not acting on behalf of the public or any part of the public, but rather, on behalf of his own commercial interest and that his case is distinguishable from such cases as Wicklow Heritage Trust -v- Wicklow Co. Council (Unreported, High Court, McGuinness J., 5th of February 1998), Chambers -v- An Bord Pleanala (1992, ILRM, 296) and Lancefort -v- An Bord Pleanala (1998, 2, ILRM, 401).

33. In these cases, she submits, the applicants were acting in a representative capacity on behalf of the public or a significant part of the public or, unlike the present case, were asserting a personal interest or right which was infringed by the very defect impugned in the proceedings.

34. In my view the applicant does not have locus standi to challenge the notice in circumstances where it was sufficient, in fact, to draw his attention to the proposed varied amendments where he actually responded to it and made such representations to Wicklow Co. Council as he wished and where he is not acting on behalf of anyone other than himself.

35. None of the authorities referred to by counsel for the applicant and no part of the recent Irish jurisprudence on the topic of locus standi seems to me to go as far as establishing that a party in the applicant’s position in this case would have locus standi to make the point now sought to be made and I hold that he does not have such standing.

36. I should add that on this issue I have followed the approach adopted by the Supreme Court in Lancefort -v- An Bord Pleanala albeit that no specific statutory provision applies in the present case as it did in Lancefort. See in particular the judgment of Keane J. (as he then was) at p. 442.

37. Mr O’Donnell B.L. submits that Wicklow County Council should have considered what zoning should replace the waste water treatment plant designation when removing it from the applicant’s lands and that their failure so to do renders invalid their proposed review of the plan.

38. In my view the order made by O’Caoimh J. on the 31st of July 2000 is wide enough to enable the applicant to make the argument indicated above and there is, accordingly, no need to amend the terms of that order.

39. I would add that particularly in light of the Judgment of Murphy J. in O’Connor -v- Clare County Council (Unreported, High Court Murphy J. 11th of February 1994), I would have been prepared to grant leave to the applicant to advance the argument indicated before me on the basis, as contended for by the applicant, that it was stateable rather than on the basis that it is likely to succeed.

40. This submission, made by Mr O’Donnell BL, is grounded on an affidavit sworn by Ron Bergin, civil engineer, which refers to a proposal in a document prepared by Messrs M.C. O’Sullivan Engineers and advisors to Wicklow Co. Council. This proposal is for the installation of pumping stations in connection with the “S 1” designations on the Church of Ireland site and on the applicant’s site. Mr Bergin says that both sites can be served by gravity (this would, it seems, entail laying a pipe across the applicant’s lands) and he cannot understand, in the absence of seeing their instructions, why an experienced firm like Messrs M.C. O’Sullivan could propose pumping stations in the circumstances given that these have significant practical drawbacks which he outlines in his affidavit.

41. The pumping station proposal makes no sense to him and accordingly it is sought to make the case that the inclusion of pumping is irrational in the sense defined by the Supreme Court in O’Keefe -v- An Bord Pleanala (1994 1 I.R. 399).

42. In response Ms. Butler BL submits:-

43. Mr O’Donnell BL replies that Mr Bergin’s affidavit shows a Messrs M.C. O’Sullivan map which ties the Church of Ireland site (that is the newly proposed site) to a pumping station proposal and therefore pumping is implicated in the “S 1” designation which is the subject of the current variation proposal.

44. The applicant has not satisfied me that the pumping proposal (which is the only aspect condemned as irrational by Mr Bergin) is part of or proposed to be part of the varied development plan.

45. Pumping may well be an option under contemplation by Wicklow County Council or their advisors but that does not mean that Wicklow Co. Council is committed to pumping or to proposing pumping. Given Mr Bergin’s evidence that, inter alia , the Church of Ireland site can be serviced by gravity it is possible that Wicklow Co. Council could still opt for a design which excludes pumping.

46. If Wicklow Co. Council does in the future decide to introduce pumping in Rathdrum, this proposal will have to be made the subject of the public procedure provided for by Part X of the Local Government (Planning and Development) General Regulations 1994, which includes that particulars of their proposal must be available for public inspection, provides for an opportunity for the making of public observations thereon, and for the publication of a report by Wicklow Co. Council in which such observations are summarised together with the response of Wicklow Co. Council. If, at that point, the proposal to pump (assuming it is adopted by Wicklow Co. Council) appears irrational to the applicant it would be open to him to challenge it in court. In this context I refer to the Judgment of Finlay C.J. in G -v- D.P.P. (at pp 377-8) as follows:-

47. In my view it is not open to the applicant to expand his case to include the present challenge because the pumping proposal is not part of the proposed draft. Indeed it is inaccurate to refer to it as a “proposal” at all because there is no evidence that Messrs M.C. O’Sullivan’s pumping design is a proposal that has been adopted by Wicklow Co. Council.

48. Accordingly I refused the applicant leave to apply for judicial review on the ground that the pumping proposals are irrational.

49. The reliefs sought in the initial application have largely been achieved through the voluntary response of Wicklow Co. Council. The exception is the case made to the effect that Wicklow Co. Council should have considered what rezoning should apply to the applicant’s lands when proposing to remove therefrom the designation for a waste water treatment works.

50. Ms. Butler BL submits that if a stay is granted it would, for some time at least, hold up a process intended to provide for badly needed waste water treatment works the continued lack of which could become a health hazard.

51. She further submits that the granting of a stay would give the applicant a “gun to the head” of the planning authority by enabling the applicant to put pressure on them to accede to his own proposals for the development of his land. If a stay is refused on the other hand, the question of suitable rezoning of his lands can be fully considered if the applicant wins his case even if in the meantime the present proposals of Wicklow Co. Council are proceeded with and a waste water treatment plant is installed in the Church of Ireland site.

52. Mr O’Donnell BL responds that the refusal of a stay, where leave to challenge the review process has been granted, is untenable as being wholly at variance with the nature of judicial review itself. Furthermore this would entail permitting the very mischief which the order of Geoghegan J. was designed to prevent. The case could be heard before the end of July 2001 thus entailing only a short delay from the community’s point of view. If a stay is refused and his client succeeds then a wholescale review of the entire development plan will have to be undertaken, and such a review should be stayed until these proceedings are determined.

53. In my opinion the principal relief now sought - rezoning of portion of the applicant’s lands - can be fully achieved if the applicant succeeds in his case even if the present proposals of Wicklow Co. Council proceed to conclusion in the interim. Mr O’Donnell submits that if his client succeeds then a wholescale review of the development plan will be necessary to accommodate a review of the rezoning of part of his client’s lands. Whilst this may be so, I note the provision for “fast-tracking” such a review in Section 13 of the Planning and Development Act, 2000 - (I acknowledge that when delivering this judgment I erroneously relied on Section 19 (5) (b) of the Local Government (Planning and Development) Act 1963). Moreover, while it may indeed be true that a stay is inherent in the nature of the judicial review process, where to refuse it would entail removing all possibility of granting a successful applicant appropriate relief this does not apply in my view where as in the present case such relief would be available even if a stay is refused.

54. In all the circumstances of this case I do not think I should grant a stay and I refuse the application for a stay and for an order prohibiting Wicklow Co. Council from carrying out any further step towards adopting an amended variation of its development plan for the Rathdrum area until the determination of these proceedings.