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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> People Over Wind, Enviromental Action Alliance Ireland -v- An Board Pleanála & ors [2015] IEHC 356 (11 June 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H356.html
Cite as: [2015] IEHC 356
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Judgment
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Neutral Citation [2015] IEHC 356 THE HIGH COURT COMMERCIAL [2014/487JR] IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED) BETWEEN PEOPLE OVER WIND, ENVIRONMENTAL ACTION ALLIANCE IRELAND APPLICANTS AND
AN BORD PLEANÁLA RESPONDENT AND
LAOIS COUNTY COUNCIL, COILLTE TEORANTA AND THE DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT NOTICE PARTIES JUDGMENT of Mr. Justice Haughton delivered the 11th day of June, 2015 1. I delivered my final judgment in these judicial review proceedings on 1st May, 2015, dismissing the applicants’ claims. The first named applicant by notice of motion dated 3rd June, 2015 now seeks inter alia the following two reliefs: firstly “reconsideration by this Honourable Court of the Court’s judgment…to take into account that the third named notice party was not served with the appeal lodged to the respondent and that it, and in particular, its servants or agents, The National Parks and Wildlife Service (NPWS) were not on notice of the appeal contrary to National and European law and in particular Article 69 of the Planning and Development Regulations 2000-2015”; secondly, if necessary an order allowing the first named applicant to amend its grounds of review to include the failure of Laois County Council and/or the respondent to notify the third named notice party of the appeal lodged with the respondent. Reconsideration of Judgment
However, it set out in detail the common law principle concerning the question, holding that where a final order has been made and perfected it can only be interfered with (1) in special or unusual circumstances, or (2) where there has been an accidental slip in the judgment as drawn up, or (3) where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended. The restriction on the power of a court to amend or vary an order which has been made and perfected, therein set forth, must apply to an application to set aside an order. At the conclusion of the passage from the said judgment set forth herein, it is emphasised that the finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law, and should not lightly be breached.”
4. In allowing the application by An Taisce Kearns P. delivered the unanimous decision of the Court stating at p.403:-
28. While obviously one is always reluctant to revisit a judgment which in ordinary circumstances would be regarded as bringing matters to a conclusion, the exceptional and unusual circumstances of this case really leave the court with no alternative if it is to do justice.” 7. The first named applicant’s solicitors promptly notified the respondents and Coillte’s solicitors, and also the NPWS and Chief State Solicitors Office (“CSSO”) of this development. Arthur Cox solicitors for Coillte replied on 25th May, 2015 expressing the view that “…we do not believe it has any impact on the judgment delivered by the Court on 1 May, 2015…”. 8. Barry Doyle and Company on behalf of the respondent replied on 27th May, 2015 stating:-
Accordingly, the Board was not aware of the alleged failure to notify the National Parks and Wildlife Service to which you refer, and all submissions to the Court were based on the assumption that Council had complied with its notification obligations. It would appear that any failure by the Council should have been discoverable long before the Board took its decision, and the time for bringing any judicial review has therefore long since expired. There appear to be no grounds for maintaining that the circumstances relating to your client’s failure to bring proceedings in respect of such alleged failure within the time limit of 8 weeks was outside its control. In addition, the Court has already delivered judgment in the matter without any reference being made to any alleged failure to notify. In the circumstances, we should suggest that the court is functus officio in the matter…”
(2) that the Department had made a written submission to Laois County Council, but had no record of being notified of the refusal of permission, or the appeal, but that its submissions would have been copied to the Board in accordance with statutory requirements. (3) that the “first time the Department was formally put on notice of the appeal, and the board’s decision to grant planning permission, was when it received copies of the pleadings in the judicial review proceedings”. (4) that “the Department’s decision not to participate in the proceedings was made with the knowledge of the non-notification.” (5) that not having participated in the proceedings to date the Department did not intend to appear at, or make submissions, on the present application.
11. Accordingly, Counsel contended that had the Court been aware that the Department did not make any submission on the appeal due to lack of notification it would have affected the outcome, and that this was a special or unusual circumstance sufficient to warrant the Court reopening/reconsidering its decision. In this regard Counsel argued that as no appeal lies to the Court of Appeal without certification by this Court under s.50A of the PDA 2000, this Court is effectively the last court of recourse and so the jurisprudence of the Supreme Court referred to above applies to consideration of the present application. 12. Counsel for the respondent argued that the non-notification point now raised would have made no substantive difference to the outcome; that the Department submission to the Laois County Council was before the respondent at the appeal stage; that the failure of notification was a failure of the county council, not the respondent; that the Department, as is apparent from their letter of 4th June, 2015, was aware of the non-notification of the appeal when the judicial review proceedings were served and yet chose not to participate; that the use of the phrase ‘formally put on notice’ in that letter suggests the Department may have been aware of the non-notification at an earlier date. Counsel further contended that if the Department chose not to complain in these proceedings then it was not for the first named applicant to pursue this issue; that Inland Fisheries Ireland, although notified of the appeal, also did not make any fresh submission on the appeal; that the first named applicant was now overstating the importance attached by Counsel for the respondent and Coillte in argument at the substantive hearing to the effect that in making no submission on the appeal the Department was implicitly supporting the mitigation measures proposed by Coillte. Counsel for the respondent also emphasised that in any case the Court was neutral in its attitude to this argument; that the sentence at the end of para.187 of the judgment was taken out of context - which was the Court’s analysis of the weight to be attached to Dr. Moorkens’ affidavit sworn on 23rd January, 2015 - and that the Court’s ratio decidendi on this issue appears later and in particular in para.212 and that this did not mention reliance on any inference from non-participation in the appeal. 13. While not disputing the law applicable to this application for review, Counsel argued that the circumstances that led to the Supreme Court’s decision in the Abbeydrive were very different. Firstly, An Taisce was actively misled by the planning authority as to whether the planning application had been withdrawn. Secondly, An Taisce was unaware of the true position and the existence of court proceedings until after the Supreme Court decision. Thirdly, the case concerned a ‘default permission’, so An Taisce’s submission to the planning authority was not given any effective consideration. Fourthly, the unlawfulness as a matter of European law of a default permission in such circumstances had not been raised or argued before the High Court or Supreme Court - whereas in the present proceedings the issues of ‘best scientific evidence’ and ‘restoration’ as a NPWS objective for the Nore Freshwater Pearl Mussel and its habitat were litigated, and all parties accepted that its current status was one of extreme vulnerability. 14. Counsel for Coillte adopted the respondent’s submissions but also emphasised the dicta of Kearns P. in Abbeydrive that the point raised by the first named applicant should ‘as a matter of probability have affected the outcome of the case’, and that it is important for the Court to consider whether the point ‘could have been raised in the High Court by a party who had opportunity to argue the point in that court.’ He referred the Court to para.258 onwards of my decision as containing the reasons for the decision as to the validity of the appropriate assessment, and suggested that there was no reliance by the Court on the submissions at the substantive hearing to the effect that an inference could be drawn from the absence of an appeal submission from the Department. 15. Counsel also contended that the inquiry of the Department recently initiated by Dr. Moorkens could have been made by the applicant at an earlier point in time, if necessary by freedom of information request. In particular, checking of the planning file held by Laois County Council would have disclosed the position, and as the respondent’s and Coillte’s written submissions to the Court for the substantive hearing relied on an inference from the absence of any appeal submission by the Department, this inquiry could have been made before the substantive hearing. Decision on Review 17. I accept the law is as set out earlier in this judgment. It follows that my decision should only be reconsidered or reviewed -
(2) if the point sought to be raised is of sufficient importance; (3) if the point, if valid, would as a matter of probability have affected the outcome of the case; (4) if the point is not one that could have been raised in the High Court by a party who had the opportunity to argue it. 18. I am not satisfied that the first named applicant has met this threshold or discharged this heavy onus for a number of reasons, any one of which would suffice to refuse this application. 19. Firstly, the Department was made a notice party at the commencement of these proceedings. It became aware at that time (if it was not already aware) that it had not been notified of the appeal to the respondent, and of the grant of permission. Notwithstanding this knowledge the Department decided not to participate. If it had concerns about the non-notification then it was the body most intimately concerned with the implications of that failure, and the appropriate party to take issue with the validity of the decision of the respondent in respect of appropriate assessment whether on grounds of non-compliance by Laois County Council with Article 69 of the Planning and Development Regulations 2000-2015, or on the substantive issues raised in the judicial review. 20. In this respect, the present case is materially different to the Abbeydrive case in which An Taisce was never on notice of the proceedings and only became aware of the relevant point and the proceedings after the Supreme Court judgment. It differs in that the Department took a conscious decision not to participate. It is also notable that the Department is not participating in this application, in stark contract to the involvement of An Taisce in Abbeydrive. 21. Secondly, I am far from persuaded that my decision would have been different in outcome if this point had been raised and argued in the course of the proceedings. While the absence of a submission by the Department is adverted to in para.187 of my decision, it is noted in a manner that is neutral, and that is the attitude that I took when interrupting Counsel for the respondent during argument at the substantive hearing. It is admittedly mentioned again in para.208, but this was in the context of analysis of Dr. Moorkens’ affidavit, and my decision on her evidence and the weight to be attached to it took into account a number of matters which led me to conclude as follows:-
23. Thirdly, the failure to notify the Department of the appeal was a matter that the first named applicant could have discovered at an earlier point in time. The applicants did inspect the planning file held by the respondent before these proceedings were instituted. Counsel colourfully described it as being ‘in a bit of a mess’. This featured in ground (14) which stated “This file is in disarray, follows no particular order, appears to be incomplete, and is impossible to follow”. Whatever about the Board’s file, it should have been possible for the applicants to ascertain from Laois County Council’s planning file the record of notification of the appeal, or this information could have been obtained by a freedom of information inquiry. Such an inquiry, whether of the county council, the Department or the respondent, was something that the applicants could certainly have initiated after they received the respondent’s and Coillte’s written submissions for the substantive hearing, as these alerted the reader to an argument based on the Department having made no submission on appeal. The first named applicant cannot ignore that alert and now ask the Court to reconsider its decision in the light of information that it could have obtained before the case proceeded to trial. 24. Practitioners are well aware of the need to bring forward a party’s entire case at the time of trial and the risk that to attempt to raise in fresh proceedings a claim or argument that ought to have been made in earlier proceedings will be treated as an abuse of process under the doctrine in Henderson v. Henderson. In asking the Court to reopen this case the first named applicant is in effect attempting to raise in fresh proceedings a point that could have been raised in the proceedings before the substantive hearing. As such, the exercise is impermissible. 25. Fourthly, my view is that the issue that is now raised is not of such importance as to justify acceding to the application. In Abbeydrive the European law issue raised by An Taisce was treated by the Court as ‘going to the very heart of a decision to grant permission’, and such that it would clearly have affected the outcome. This seems to me to be of a different order of magnitude to the issue now raised which, at its height, might have had some influence on the Court’s consideration of the validity of the appropriate assessment. Amendment 27. Counsel for the first named applicant argued that insofar as there was a delay beyond the permitted eight weeks for seeking leave to seek judicial review this was explained by the fact that the first named applicant did not become aware of the non-notification until after my judgment was delivered. 28. The respondent and Coillte argued that there was no good or sufficient reason to amend; that the fact of non-notification was information that was within the ‘control’ of the applicants to obtain at a much earlier point in time, and that almost one year on and post-judgment the Court should not exercise its discretion to allow amendment. Decision on Amendment 30. The provisions of the PDA 2000 and the RSC (as amended with effect from 1st January, 2012) relevant to amendment of planning judicial reviews were referred to in my judgment at para.s 35-37 in the context of considering the scope of the substantive judicial review, but for these purposes it is only necessary to refer to three provisions. Section 50(8)(a) of the PDA 2000 provides that the High Court may extend the eight week period for seeking leave to seek judicial review:-
(a) there is good and sufficient reason for doing so, and (b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension.” 32. I am satisfied that it was within the control of the first named applicant to have ascertained the non-notification of the Department of the appeal to the respondent. As referred to above in the context of review, this could and should have been discovered by inspection of the county council’s or (perhaps) the respondent’s planning files at an early stage, or by freedom of information request at any time; alternatively, following receipt of the written submissions of the respondent and Coillte the applicants were put on notice of the issue and should have conducted appropriate inquiries at once. 33. Accordingly, the application to amend does not satisfy the requirements of s.50(8)(a) of the PDA 2000. 34. I also do not accept that the delay from 13th June, 2014 when the respondent’s decision was made to the end of May, 2015 is acceptable or adequately or at all explained by the first named applicant, either on affidavit or in argument, and accordingly Order 84 rule 21(3) and (5) are not satisfied. 35. I therefore refuse the reliefs sought at para.s 1. and 2. of the first named applicant’s notice of motion dated 3rd June, 2015.
1 Which provides that the decision of the Supreme Court shall in all cases be final and conclusive. 2 A solicitor from the CSSO in fact attended before this court at the commencement of the substantive hearing to advise the court of this position, and then withdrew. |