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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Arklow Holidays Ltd. v. An Bord Pleanala & Anor [2005] IEHC 303 (3 August 2005)
URL: http://www.bailii.org/ie/cases/IEHC/2005/H303.html
Cite as: [2005] IEHC 303
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Neutral Citation No: [2005] IEHC 303
THE HIGH COURT
DUBLIN
HIGH COURT No. 2005 291 JR
ARKLOW HOLIDAYS LIMITED
Applicant
-v-
AN BORD PLEANALA
Respondents
ATTORNEY GENERAL
APPROVED JUDGEMENT GIVEN BY MR. JUSTICE CLARKE ON WEDNESDAY, 3RD AUGUST 2005
In this application for discovery the moving party is Arklow Holidays Limited ("Arklow"). Arklow are the applicant in judicial review proceedings in which an application for leave is currently before the Court. As the relief which it is intended to seek involves a challenge to a decision of An Bord Pleanála ("the Board") in respect of planning permission the application for leave must be on notice and in order to grant leave the Court will have to be satisfied that substantial grounds for the challenge exist.
As part of the basis upon which it is sought to challenge the decision concerns questions as to the proper transposition of certain EU Directives into Irish Law, Ireland and the Attorney General ("the State") are named as respondents.
The planning permission which Arklow seeks to challenge relates to the intended building by the second named notice party Arklow Town Council ("the Town Council") of a waste water treatment works. An original permission in respect of such works was granted by the first named notice party Wicklow County Council ("the County Council"). Discovery is sought against each of the above parties. It should be noted that while other parties have been made notice parties to the substantive application because of their interest in the matter, such parties are not the subject of this discovery application.
Before dealing with the specific discovery sought as against each party, it is necessary to consider the test by which an application for discovery in judicial review proceedings and in particular at the leave stage should be judged.
The Law.
In Carlow Kilkenny Radio Limited –v- Broadcasting Commission (2003) 3 IR, 528 Geoghegan J delivering the unanimous judgment of the Supreme Court said, at page 537:
"I turn finally to the argument made on behalf of the applicants that Irish jurisprudence in relation to discovery in judicial review applications is quite different from the English and Northern Irish jurisprudence to which I have referred, in that as they suggest O'Keeffe –v- An Bord Pleanála (1993) 1 IR 39 above endorsed a most liberal regime of discovery where judicial review of an administrative body's decision was concerned.
The first point to be made is that the judgment of the Court must be taken to be the judgment of Finlay CJ with which Griffin, Hederman and Lynch JJ agreed. McCarthy J wrote his own concurring judgment but insofar as he expresses any views that are not contained in the judgment of Finlay CJ they must be regarded as obiter dicta.
The next important point to be made about that case is that there was no issue debated in it as to the circumstances in which discovery will be ordered in a judicial review application. The established English and Northern Irish jurisprudence, which would seem to be in conformity with our own principles of discovery, is to the effect that discovery will not normally be regarded as necessary if the judicial review application is based on procedural impropriety as ordinarily that can be established without the benefit of discovery.
Likewise, if the application for judicial review is on the basis that the decision being impugned was a wholly unreasonable one in the Wednesbury sense discovery will again not normally be necessary because if the decision is clearly wrong it is not necessary to ascertain how it was arrived at.
Where discovery will be necessary is where there is a clear factual dispute on the affidavits that would have to be resolved in order properly to adjudicate on the application or where there is prima facie evidence to the effect either that a document which ought to have been before the deciding body was not before it or that a document which ought not have to been before the deciding body was before it.
What happened in O'Keeffe –v- An Bord Pleanála (1993) 1 IR 39 was that a general order for discovery had been obtained and various documents from that discovery were produced in court without making them evidence in the appropriate way or without any clarification that they were agreed evidence or without any clarification as to whether they were documents which were properly before the Board when it made its decision or not.
The judgements of the Court are all in that context. What Finlay CJ and indeed McCarthy J were saying was that a decision of An Bord Pleanála could not be impugned on the basis of irrationality, without the Court knowing what exactly was before the Board and being able to assess whether in the documentation before the Board there was evidence or information to support the decision of the Board.
In my view, O'Keeffe –v- An Bord Pleanála is certainly not authority for the proposition that once leave is granted to bring an application for judicial review against an administrative body discovery must automatically be granted.
In this particular case, the respondent has been entirely up front in disclosing both its procedures and the documentation which was before it, apart from confidential information which each applicant was entitled to give. There is nothing to indicate either the giving of false information or the improper withholding of information that might justify discovery nor is there any relevant conflict of fact on the affidavits that would justify it."
These comments apply with even greater force to a leave application. Where there is a clear factual dispute on the affidavits that dispute must, on a leave application, be resolved in favour of the applicant who is entitled to have the question of whether he has established substantial grounds considered on the basis that any factual dispute reasonably appearing might be found on his side.
Similarly where there is prima facie evidence that a document which ought to have been before the deciding body was not before it or that a document which ought not to have been before the deciding body was before it, that prima facie case can, without discovery, be advanced as part of the substantial grounds relied on.
As an additional argument, counsel for the Board suggests that, on a proper construction of Order 84 of the rules of the Superior Courts, discovery in aid of a leave application does not arise. However, as counsel for Arklow points out Order 84 appears to deal with what I may call the traditional ex parte leave application, see for example Rule 20(2).
In KA –V- the Minister for Justice, Equality and Law Reform 2003, 2 IR, 73 Finlay Geoghegan J took the view that discovery in aid of a leave application was possible. The argument now advanced on behalf of the Board does not appear to have raised in that case.
I am not, however, prepared to hold that the Court has no jurisdiction to make an order for discovery at the leave stage or that there could never be circumstances where it would be appropriate to make an order at that stage.
However, it is clear from Carlow Kilkenny Radio and KA that the availability of discovery in judicial review proceedings is significantly more limited than in ordinary plenary proceedings. For the reasons indicated above, I am satisfied that the circumstances in which an applicant will be entitled to discovery in aid of a leave application must necessarily be more restricted still.
In particular it is necessary to demonstrate that the documents concerned are required for the proper resolution of the issues that will arise at the leave stage.
It is now necessary to turn to the specific documents sought against each of the parties. I will deal with each in turn.
The Board.
In substance virtually all documents relating to the planning appeal in the possession of the Board are sought. However, the position of the Board is easily stated. Attention is drawn to the provisions of Section 146(3) of the Planning and Development Act 2000 which require that all documents relating to an appeal should be available for public examination.
In a letter of 14 July from the Board's solicitors it has been made clear that all such documents are already available to Arklow. At the hearing it was suggested that any documents, such as notes or the like which were not put before the Board, are irrelevant and that the Board is, by virtue of statute, in the same position as was voluntarily adopted by the Broadcasting Commission in Carlow Kilkenny Radio, as noted in the passage from the judgment of Geoghegan J cited above.
Insofar as a suggestion is made that paragraph 4 of the letter of 14 July may imply that legal advice was taken and that such legal advice may not form part of the papers publicly available, it does not seem to me that any such legal advice could be relevant to a judicial review application such as this. Either the Board came to a correct view on the law as applied to the facts which appear from the materials before it, or it did not. If it did not come to a correct view of the law the fact that it had received advice is irrelevant. Equally, if it did come to a correct view of the law such advice is similarly irrelevant.
In those circumstances, I am not satisfied that it has been established that there is likely to be any documents in the possession of the Board which are relevant to the leave application and which have not already been disclosed.
The State.
In the substance the documents sought from the State concern materials concerning the transposition of Council Directive 75/442/EEC, as amended by Council Directive 91/689/EEC, the implementation of Council Directive 85/337/EEC, as amended by Council Directive 97/11/EEC and documents relating to the possibility that a licence pursuant to the Waste Management Act 1996 might be required.
Issues under each of the above headings arise in the proceedings. However, each of those issues seems to me to be matters of law or where not matters of pure law concern, in relation to the waste management licence, a question of law coupled with the sustainability of the view taken by the Board as to the application of that law to the facts of this case on the materials before it. Either there are substantial grounds for arguing in favour of the legal propositions advanced or there are not.
It does not seem to me that the views of either the Commission, the Environmental Protection Agency or indeed any other public authority are in themselves relevant. Obviously at appropriate stages of these or other similar proceedings certain public bodies may be entitled to make submissions to the courts, either in this jurisdiction or within the European Union as to what the law is. Such courts may be influenced by such submissions, not because of the fact that the submissions emanate from an authority which has a function in the relevant area but because of the strength of the argument advanced.
Furthermore, it is clear from Commission –v- Ireland, 1999, ECR 05901 that questions as to the adequacy of transposition are answered by comparing the relevant legal measures rather than considering the facts. Such questions are therefore pure questions of law. I am not therefore persuaded that any of the materials sought from the State are potentially relevant to the leave application.
The Local Authorities.
As was pointed out by both the Town Council and the County Council full discovery has already been made of voluminous documentation in a previous judicial review application taken by Arklow which sought, unsuccessfully, to challenge the original grant of permission.
What is now sought is an update of such discovery. However it is clear that any such update will necessarily relate to documents which postdate the grant of permission. If such documents remained internal to the Local Authority concerned and were not put before the Board then it is difficult to see how they could be relevant. If they were put before the Board there is no reason to believe that they have not been disclosed.
Insofar as certain of the documents sought relate to material similar to those sought against the State, my view as to the relevance of such documentation to these proceedings applies equally here.
In all the circumstances, I am not persuaded that there are any undisclosed documents in the possession of the local authorities which could be of any relevance to the leave application.
In all the circumstances, it therefore seems to me that I should refuse each of the applications for discovery.
MR. BUTLER:
May it please your Lordship. I would ask for my costs.
MR. DOHERTY:
I would ask for my costs, my Lord.
SOLICITOR:
I would ask for my costs as well, my Lord.
SOLICITOR:
As I do, my Lord.
MR. QUIRKE:
I would make an application in relation to costs.
MR. JUSTICE CLARKE:
I think the practice of the Commercial Court, and this is a Commercial Court matter, is that where possible the costs should be dealt with in respect of each interlocutory application and therefore I propose dealing with them and it seems to me that they should follow the event. I therefore should award the costs to each of the respondents to the motion, the costs of the motion obviously.
MR. BUTLER:
May it please your Lordship.
MR. DOHERTY:
May it please your Lordship.
MR. BUTLER:
I wonder, my Lord, should I mention at this stage the motion for leave which was adjourned for mention at this stage. Does your Lordship wish to fix a date or put the matter back?
MR. QUIRKE:
One thing in relation to that, my Lord, obviously the applicant had hoped to get some discovery and in circumstances where it hasn't I would look for some time to put in some further affidavits, a short period of time, my Lord, two weeks.
MR. JUSTICE CLARKE:
It is clear that there won't be a hearing before --
MR. BUTLER:
The beginning of the new term.
MR. JUSTICE CLARKE:
-- the new term, I think realistically. I think it would be better that the precise date of the hearing should be fixed by Judge Kelly rather then myself. What I propose to do is put the matter in for mention before Judge Kelly on the first day in which the Commercial Court is sitting, event if it is ahead of the motion day. I am not sure when the Commercial Court will first sit but whatever date it is first sitting after the commencement of the new term for the purpose of fixing a date. In that context, it does not seem to me that allowing further affidavit would delay the matter.
MR. BUTLER:
No, my Lord. I wonder, my Lord, could you put a strict limit on it?
MR. JUSTICE CLARKE:
Well I think … (INTERJECTION)
MR. DOHERTY:
I should say to your Lordship that this matter came on before Mr. Justice Kelly on Monday week last and I think it was Mr. Quirke or Mr. O'Donnell, I am not sure which, asked for an extension of time to file further affidavits. I think Mr. Justice Kelly gave until the end of that week or the Thursday of that week. I am not sure if Mr. Quirke is looking for more time to file those affidavits or whether he wants to file further affidavits.
MR. JUSTICE CLARKE:
Be that as it may, I think Mr. Quirke makes a reasonable point that he had some hopes that he might be successful in the discovery application which might have … (INTERJECTION).
MR. QUIRKE: … there are some genuine difficulties in relation to it.
MR. JUSTICE CLARKE:
I think it is reasonable to allow, say, to Friday three weeks.
MR. QUIRKE:
I am obliged, my Lord.
MR. BUTLER:
My Lord, just so I can clarify that, are we to understand that it is now one affidavit, not a series of affidavits?
MR. JUSTICE CLARKE:
I am not going to limit Mr. Quirke as to the kind of affidavits he puts in. What I am making clear is that any affidavits that the applicant wishes to rely on must be –-
MR. QUIRKE:
Thank you.
MR. JUSTICE CLARKE:
-- before the Court –- sorry, must be filed and served on the other parties not later then 27 August.
MR. BUTLER:
May it please you Lordship.
MR. JUSTICE CLARKE:
It seems to me that if any of the respondents wish to reply to those affidavits they should perhaps have a further three weeks so to do.
MR. BUTLER:
Thereafter.
MR. JUSTICE CLARKE:
That would come to 17 September.
MR. BUTLER:
May it please your Lordship.
MR. JUSTICE CLARKE:
Sorry, 26 August is the Friday and 16 of September.
MR. BUTLER:
May it please your Lordship.
MR. JUSTICE CLARKE:
That should mean that the matter will be ready for hearing at the beginning of the next term so that it can go on on whatever day Mr. Justice Kelly feels is appropriate to it.
MR. BUTLER:
May it please your Lordship.
MR. DOHERTY:
I am much obliged.
MR. QUIRKE:
I am obliged.
SOLICITOR:
In that respect, my Lord, I wonder could you consider setting time for exchange of legal submissions at this stage or would that follow the affidavits?
MR. JUSTICE CLARKE:
The affidavits should be complete by -- on that basis, at the very latest by --
SOLICITOR:
16 September.
MR. JUSTICE CLARKE:
-- 16 September. Perhaps the best way to deal with it would be this, given that the Commercial Court motion list is on a Monday rather than put it in for an indeterminate date it might be safer if I specifically put it in for the first substantive Monday of next term which is 10 October. Could I therefore direct that the applicant should file an outline of their legal submissions by the previous Friday, that is 7 October. It will then be in the hands of the respondents as to how quickly they want to get the case on, which I would infer would be relatively quickly. If the respondents were able to tell Mr. Justice Kelly the following Monday that the submissions would be in fairly soon he would doubtless be in a position to give the case a very early date for hearing.
SOLICITOR: I am obliged.
MR. JUSTICE CLARKE:
Therefore the only order I make in respect of the continuing directions and the leave application is to put it in for the 10th and to give the various directions concerning affidavits and legal submissions that I have already given.
MR. BUTLER:
I am much obliged.
MR. JUSTICE CLARKE:
Very good. Thank you very much.