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Cite as: [2020] IEHC 276

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THE HIGH COURT

JUDICIAL REVIEW

[2020 No. 293 J.R.]

IN THE MATTER OF SECTIONS 50, 50A AND 50B OF THE PLANNING

AND DEVELOPMENT ACT, 2000 (AS AMENDED)

BETWEEN

CHRISTIAN MORRIS

APPLICANT

AND

AN BORD PLEANÁLA

AND

RESPONDENT

CREKAV TRADING GP LIMITED

NOTICE PARTY

JUDGMENT of Ms. Justice Denis McDonald delivered on 8th June, 2020

1. This is an application for leave to bring judicial review proceedings in respect

of a decision of the respondent (“the Board”) dated 2nd March, 2020 granting

planning permission for a strategic housing development at the former Baily Court

Hotel, Main Street, Howth, County Dublin and on the adjoining lands located south of

the Martello Tower on Balscadden Road, Howth, County Dublin. The decision was

made pursuant to s. 9 of the Planning and Development (Housing) and Residential

Tenancies Act, 2016 (“the 2016 Act”) on foot of an application made to the Board

under s. 4. The 2016 Act introduced a new procedure under which applications for

permission for a strategic housing development are required to be made directly to the

Board under s. 4 and not to a planning authority. For this purpose, s. 3 defines a

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“strategic housing development” as meaning a development of 100 or more houses

on land zoned for residential use or for a mixture of residential and other uses.

2. Mr. Morris, the applicant, is a resident of Howth and he made written

observations to the Board in opposition to the proposed development. The applicant

pursues these proceedings in that capacity and as a lay litigant. The notice party

(“Crekav”) is the developer of the proposed housing development. The development,

if it proceeds, will involve the demolition of existing structures on site including a

disused sports building on the Balscadden Road and the former Bailey Court Hotel

buildings on Main Street and the construction of 177 residential units in three separate

apartment blocks and one mews building ranging in height from two to five stories.

The decision of the Board will permit the construction of 171 apartments and six

duplexes comprising 44 one bedroom units, 103 two bedroom units and 30 three

bedroom units.

3. In order to satisfy the applicable time limit for the making of the application

for leave, the applicant, previously, on 22nd April, 2020 appeared before Twomey J.

On that occasion, Twomey J. deemed the application to have been opened to the court

on that day even though the application for leave was not pursued at that time. The

applicant made both the Board and Crekav aware of the order made by Twomey J.

Thereafter, on 6th May, 2020, Arthur Cox solicitors acting on behalf of Crekav wrote

to the applicant to apprise him of High Court Practice Direction 74 which provides

that applications for leave to apply for judicial review of decisions in respect of

strategic infrastructure developments (which include strategic housing developments)

should be made to me as the judge in charge of the Strategic Infrastructure

Development List. As the judge in charge of that list, I subsequently fixed 28th May,

2020 as the date for the hearing of the application for leave to seek judicial review. In

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advance of that hearing, the applicant swore an affidavit on 25th May, 2020 in which

he exhibited the following documents:

(a) The report dated 19th February, 2020 of Stephen J. O’Sullivan, planning

inspector, appointed by the Board;

(b) The order of the Board dated 2nd March, 2020 granting permission for the

proposed development;

November, 2019 in relation to the proposed development;

(d) The written observations of the Howth/Sutton Community Council clg (the

Community Council”) submitted to the Board on the 6th December, 2019

in relation to the proposed development; and

(e) The written observations of Graínne Mallon architect and planning

consultant submitted to the Board on 9th December, 2019 on behalf of

Balscadden Road SAA Residents Association Ltd. (“the Residents

Association”).

4. The applicant attended before me in person for the purposes of moving his

application on 28th May, 2020. I reserved judgment on his application in order to

more fully consider the papers and in particular the nature of the relief and the

grounds on which it is sought.

The relevant test for the grant of leave

5. The present application is governed by the provisions of ss. 50 and 50A of the

Planning and Development Act, 2000 (“the 2000 Act”). Under s. 50 (2) the validity

of a decision of the Board cannot be challenged otherwise than by way of an

application for judicial review under O.84 of the Rules of the Superior Courts.

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However, as explained more fully below, there are a number of statutory requirements

imposed by the 2000 Act which differ from the requirements of O. 84.

6. Under s. 50 (6), there is a time limit for the making of the application but, on

the basis of the material before the court and, having regard to the application made to

Twomey J. in April 2020, I do not believe that any issue arises in relation to time. For

completeness, it should be noted that, in any event, the time limits specified in the

2000 Act has been the subject of a significant extension as a consequence of s. 9 of

the Emergency Measures in the Public Interest (Covid-19) Act, 2020 (“the 2020 Act”)

which inserted a new s. 251A into the 2000 Act. Under s. 251A, certain periods are to

be disregarded for the purposes of calculating the time limit for (inter alia) bringing

judicial review proceedings under s. 50 of the 2000 Act. In particular, s. 251A (2)

provides that the period to be disregarded is the period beginning on the date s. 9 of

the 2020 Act came into operation and ending on a date to be specified by ministerial

order. Section 9 of the 2020 Act (in common with the other provisions of Part 3 of

the 2020 Act) was commenced on 29th March, 2020. As a consequence of orders

made on 16th April, 2020 and subsequently on 8th May, 2020, the period to be

disregarded extends from 29th March, 2020 up to and including 23rd May, 2020.

7. Under s. 50A (3) of the 2000 Act, the court is not permitted to grant leave in a

case of this kind unless it is satisfied that:-

(a) There are substantial grounds for contending that the decision of the Board

is invalid; and

(b) That the applicant has a sufficient interest in the matter.

In circumstances where the second of those grounds can be dealt with quite briefly, I

will address that issue first and then consider whether the applicant has demonstrated

that he has substantial grounds for contending that the decision of the Board is invalid.

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Sufficient interest

8. I do not believe that it is necessary to address this issue in any significant level

of detail. It is clear from the statement of grounds and from the applicant’s grounding

affidavit that the applicant is a local resident in Howth. Moreover, he participated in

the process before the Board and submitted observations. According to Part C of the

statement of grounds, the applicant is also a member of a number of groups in the

local area including the Community Council. Given these facts, and without

prejudice to any arguments which the Board or Crekav may seek to make, it seems to

me that these facts demonstrate that the applicant has a sufficient interest in the matter

for the purposes of s. 50A of the 2000 Act. In this context, I bear in mind the decision

of the Supreme Court in Grace v. An Bord Pleanála [2017] IESC 10 where, in a joint

judgment, Clarke J. (as he then was) and O’Malley J. examined the issue of

“sufficient interest”. It is clear from that judgment that prior participation in a

process before a planning authority is generally regarded as enough to give an

applicant for judicial review a sufficient interest for the purposes of s. 50A.

Furthermore, while Grace was primarily concerned with the issue of standing in the

context of EU law, it is clear from the judgment that, even where domestic standing

rules are applied, close proximity to a proposed development will usually be enough,

of itself, to constitute sufficient interest. This is clear from paras. 8.7 to 8.8 of the

judgment:

“8.7. It is, … clear that a person who has a sufficient proximity, having regard

to the nature of the development and any amenity in the location of the

development (which might potentially be impaired), will have standing even

without participation. Those who do not have such proximity may reasonably

be required to show that they have some interest which is potentially affected

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and one very clear way of doing that is by demonstrating that interest by

participation in the permission process. That is not, however, the only way in

which such an interest can be demonstrated.

8.8. The more general and more important the amenity which may be at stake

then the wider range of persons who may well be able to show that they

have an interest in the amenity of the area which is the subject of the proposed

development. The nature of the legal challenge intended to be mounted will be

relevant also. For example, a person who cannot show proximity to a

proposed wind farm and did not participate in the process is unlikely to have

standing to make an argument more properly raised by a person more directly

affected. In our view a challenger who has not previously participated and

cannot show any direct personal prejudice must satisfy the leave judge that the

point being made is one directed solely to the purpose of the special protection

of the site”.

9. In the present case, the applicant is a local resident. He has shown his concern

for the locality by his membership of the Community Council. He has also

participated in the process before the Board and submitted written observations. For

the purposes of the present application, I therefore hold that the applicant has a

sufficient interest for the purposes of s. 50A (3) (b) of the 2000 Act.

Substantial grounds

10. It is well settled that, in determining whether an applicant has substantial

grounds for the purposes of s. 50A, the court should adopt the approach taken by

Carroll J. in McNamara v. An Bord Pleanála No. 1 [1995] 2 ILRM 125 at p. 130.

That approach has been approved by the Supreme Court in Re: Illegal Immigrants

(Trafficking) Bill, 1999, [2000] 2 IR 360. It was also applied by the Supreme Court

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more recently in I.G. v. Refugee Applications Commissioner [2018] IESC 25. In

McNamara, Carroll J. explained what is meant by “substantial grounds” in the

following way:

“What I have to consider is whether any of the grounds advanced by the

appellant are substantial grounds for contending that the board’s decision

was invalid. In order for a ground to be substantial it must be reasonable, it

must be arguable, it must be weighty. It must not be trivial or tenuous.

However, I am not concerned with trying to ascertain what the eventual result

would be. I believe I should go no further than satisfy myself that the grounds

are ‘substantial’. A ground that does not stand any chance of being sustained

(for example, where the point has already been decided in another case) could

not be said to be substantial. I draw a distinction between the grounds and the

various arguments put forward in support of those grounds. I do not think I

should evaluate each argument and say whether I consider it sound or not. If I

consider a ground, as such, to be substantial, I do not also have to say that the

applicant is confined in his arguments at the next stage to those which I

believe may have some merit.”

11. Although the “substantial grounds” requirement is a different test to that

prescribed by O.84 for conventional judicial review, I believe it is also useful to bear

in mind the approach taken by the Supreme Court in relation to the meaning of

“arguable grounds” for the purposes of O.84. The “arguable grounds” test under O.

84 is generally regarded as a lower threshold than the “substantial grounds” test

prescribed by the 2000 Act. In context of O. 84, Charleton J. explained the approach

to be taken as follows in AAA v. Minister for Justice [2017] IESC 80 at paras. 4-5 as

follows:

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“4. The test for leave to commence judicial review was set out in G v Director

of Public Prosecutions [1994] 1 IR 374 by Finlay CJ at pages 377-378:

An applicant must satisfy the court in prima facie manner by the facts set out

in his affidavit and submissions made in support of his application of the

following matters:-

(a) That he has a sufficient interest in the matter …

(b) That the facts averred in the affidavit would be sufficient, if proved,

to support a stateable ground for the form of relief sought by way of

judicial review.

applicant is entitled to the relief which he seeks.

…

5. In discussing the above test, in Esmé v Minister for Justice [2015] IESC 26,

Charleton J stated the following at paragraph 15:

‘Any issue in law can be argued: but that is not the test. A point of law

is only arguable within the meaning of the relevant decisions if it

could, by the standards of a rational preliminary analysis, ultimately

have a prospect of success. It is required for an applicant for leave to

commence judicial review proceedings to demonstrate that an

argument can be made which indicates that the argument is not empty.

There would be no filtering process were mere arguability to be the

test without, at the same time, taking into account that trivial or

unstatable cases are to be excluded: the standard of the legal point

must be such that, in the absence of argument to the contrary, the

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thrust of the argument indicates that reasonable prospects of success

have been demonstrated. It is still required to be shown that a prima

facie legal argument has been established.”

12. In light of the principles which emerge from McNamara, it is now necessary

to consider the relief sought by the applicant in the statement grounding his

application for judicial review and to consider whether the grounds advanced in

support of that relief constitute “substantial grounds” for the purposes of s. 50A of

the 2000 Act. In applying that test, it is clear that an applicant bears the burden of

identifying arguable grounds which must have some weight. Furthermore, it seems to

me that a ground which fails the arguability test under O. 84 (as explained in AAA)

cannot qualify as a substantial ground for the purposes of section 50A.

The relief sought

13. In Part D of his statement of grounds, the applicant seeks the following relief:

(a) In para. 1 of Part D, the applicant seeks an order of certiorari quashing the

decision of the Board to grant permission;

(b) In para. 2 of Part D, the applicant seeks a declaration that the Board erred

in law in failing to give due or any consideration to the existence of

plenary proceedings bearing record no. 2020 1628P Comerford v. Minister

for Housing Planning and Local Government in which a declaration is

sought that the Planning and Development (Housing) and Residential

Tenancies Act, 2016 (“the 2016 Act”) and the Planning and Development

(Strategic Housing Development) Regulations 2017 (S.I. No. 271 of 2017)

(the 2017 Regulations”) are invalid having regard to the provisions of the

Constitution;

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in law in failing to show “due or any consideration of general matters of

safety pertaining to the Site, same worries being expressed both

exhaustively and repeatedly throughout the objections process and

considerable substantial evidence of such being available through an

adequate assessment of the history of the overall area”;

(d) A declaration is sought in para. 4 of Part D that the Board erred in law in

granting permission without considering adequately or at all the general

ethos, general priorities and specific requirements of Fingal County

Council’s Objective DMS 174 (pertaining to coastal erosion).

(e) A declaration is sought in para. 5 of Part D that the Board erred in law in

granting permission for the proposed development on a site known to be

subject to flooding.

(f) A declaration is sought in para. 6 of Part D that the Board erred in law in

granting permission for the proposed development on a site known to be

subject to subsidence;

(g) In para. 7 of Part D, the applicant seeks a declaration that the Board erred

in law in “attempting to strike a balance of hierarchy between recent

Statute and both older Statute and jurisprudence the nature of which could

be held in contradiction of each other;

(h) In para. 8 of Part D, the applicant seeks a declaration that the Board erred

in law in acting as set out at (d) above in failing to adequately show “by

way of explicit treatment thereof or otherwise, that the Respondent

honoured its obligations to have regard to all the Statutory (either primary

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or secondary) and/or jurisprudential factors that should be given proper

consideration in order to leave such decision unassailable”;

(i) A declaration is sought at para. 9 of Part D that the Board erred in law by

“as admitted by the Respondent, taking factors of political motives into

consideration whereas the Respondent should be seen to be objective and

non-political”;

(j) In para. 10 of Part D, the applicant seeks a declaration that the proposed

development is not consistent with the zoning of the site pursuant to the

Fingal County Council Development Plan of 2017 to 2023;

(k) In para. 11 of Part D, the applicant seeks a declaration that the proposed

development “is not, and should have been foreseen as not, in keeping

with the current economic climate”;

(l) A declaration is sought at para. 12 of Part D that Condition 2 set out in the

order made by the Board does not make sense;

(m) In para. 13 of Part D, the applicant seeks an order that s. 50B of the 2000

Act and/or ss. 3 and 4 of the Environment (Miscellaneous Provision) Act,

2011 (“the 2011 Act”) and/or Article 9 of the Aarhus Convention applies

to the proceedings;

(n) Finally, in para. 14 of Part D, the applicant says that he does not seek

eligibility for recovery of costs other than those which would ordinarily be

available to a litigant in person but that he seeks indemnity under s. 50B of

the 2000 Act or otherwise in respect of any liability that he might

otherwise have with regard to costs.

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The grounds on which relief is sought

14. It is next necessary to consider the grounds upon which the applicant relies for

the purposes of the relief sought by him (as summarised in para. 13 above). As noted,

the principal relief sought by the applicant is an order of certiorari. Understandably,

the applicant relies on all of the grounds set out in his statement in support of that

relief. However, certain of the grounds set out in Part E of his statement are referable

solely to the specific declaratory relief sought by the applicant. It therefore seems to

me that the appropriate approach to adopt is to first consider the individual grounds

relied upon by the applicant in support of the specific declaratory relief sought by

him. If I come to the conclusion that the applicant has advanced substantial grounds

in support of any of the proposed declaratory relief, it is likely that those grounds will

also support his claim for an order of certiorari. In the circumstances, I propose to

consider the grounds advanced in respect of each of the declarations sought in the first

instance and to defer to a later point in this judgment, my consideration as to whether

the applicant has established substantial grounds in support of his claim to an order of

certiorari.

The complaint that the Board failed to give consideration to the constitutional

challenge to the 2016 Act and the 2017 Regulations.

15. This is a matter of significant concern to the applicant. It features strongly in

the observations made by him to the Board in which he highlighted his intention to

bring a constitutional challenge himself.

16. In para. 7 of Part E of his statement of grounds the applicant claims that the

Board acted erroneously in omitting to even mention his concern about the

constitutionality of the “Fast Track Planning Laws”. In addition, in his grounding

affidavit he drew attention to the proceedings already instituted in Comerford v.

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Minister for Housing Planning and Local Government (in which a challenge to the

constitutionality of the 2016 Act has been mounted) and he exhibited a letter sent by

him on 5th March, 2020 to the solicitors acting for the plaintiff in those proceedings in

which he suggested that he should be joined as a party to those proceedings.

17. In my view, the applicant has not identified any arguable ground (let alone a

substantial ground) in support of this element of the relief sought by him. At the

hearing of his application on 28th May, 2020 I asked him whether he had any authority

to support this element of his case. The applicant was unable to identify any such

authority but suggested that if leave was granted, he might, thereafter, be able to

identify case law in support of his case. The applicant is not entitled to proceed in

that way. In short, he cannot put the cart before the horse. If leave is to be granted in

respect of this element of the relief claimed by him, he must establish, at this stage,

that there are substantial grounds for the relief sought. That is an express statutory

requirement which is binding on him and on the court. It is a pre-condition to the

grant of leave.

18. Moreover, commencement of proceedings challenging the constitutionality of

statutory provisions does not, of itself, stay the operation of those provisions. On the

contrary, in the case of any statutory provision enacted after the adoption by the

people of the 1937 Constitution, the provision in question enjoys the presumption of

constitutional validity unless and until declared otherwise by the court. A statutory

body such as the Board is therefore required to comply with its obligations under the

2016 Act pending any determination to the contrary by the court. In this context, it is

important to recall that under s. 9 (9) of the 2016 Act, the Board is under very strict

time constraints to deal with an application made under s. 4 of the 2016 Act for

permission for a strategic housing development. The Board has no statutory power to

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halt that process pending the determination of any proceedings challenging the

constitutionality of the 2016 Act. If any party wished to stay the proceedings before

the Board, it would have been necessary to apply to the court for an order to that

effect. I express no view as to whether any such order could properly be granted.

What is clear, however, is that, in the absence of an order by a court of competent

jurisdiction staying the proceedings before the Board or a determination by a court

that any relevant statutory provision is invalid having regard to the Constitution, the

Board had no alternative but to proceed with the determination of the application

made to it by Crekav under s. 4 of the 2016 Act.

19. As noted in para. 11 above, the Supreme Court has made it clear, in the

context of the “arguable grounds” criterion in O. 84, a point of law is only arguable

if it could, by the standards of a rational preliminary analysis, ultimately have a

prospect of success. In applying that test, for all of the reasons outlined in para. 18

above, I cannot see any basis on which the grounds advanced by the applicant, in

respect of this element of the relief sought by him, could be said to have any prospect

of success. In those circumstances, the applicant does not even meet the “arguable

grounds” requirement under O. 84 in respect of this element of the proposed relief. It

follows, in my view, that he has not met the “substantial grounds” test imposed by

section 50A.

The grounds relied upon in support of the declaration that the Board failed to

give sufficient consideration to matters of safety pertaining to the site

20. This element of the relief sought by the applicant is addressed, in particular, in

para. 8 of the statement of grounds and in paras. 4 and 25 of his affidavit sworn on

25th May, 2020. In addition, the applicant relies broadly on the averments made by

him in paras. 5-24 of his affidavit.

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21. In para. 8 of Part E of the statement of grounds, the applicant refers to the

observations made to the Board by a number of parties in opposition to the proposed

development namely the Community Council and the observations made by Ms.

Grainne Mallon acting on behalf of the Residents Association. It is also alleged in

para. 8 that these parties “went into very considerable detail, with much expertise,

about why the Notice Party’s proposal I should fail”. The paragraph concludes in the

following terms:

“It was incumbent upon the Board to address, exhaustively and unassailably,

why, in its opinion, the averments of these three parties should be set aside in

order to properly and sustainably reach its final decision – this has not

happened. In short, there is a legitimate expectation that the Board would

furnish the Objectors, including this Applicant, with better detail in arriving at

its position than has happened”.

22. The combined effect of paras. 4 and 25 of the applicant’s affidavit of 25th

May, 2020 is that the applicant adopts not only his own objection to the Board but

also the observations made by the Community Council and by Ms. Mallon on behalf

of the Residents Association. These observations are exhibited to his affidavit. Thus,

for the purposes of considering the grounds set out in para. 8 of Part E of the

statement of grounds, it appears that the applicant also seeks to rely upon these

observations. Essentially, his case is that the Board failed to have any regard or

sufficient regard to these observations and that, to the extent that the Board rejected

these observations, the Board failed to provide sufficient reasons for doing so. That

seems to me to follow from what is stated in the final two sentences of para. 8 (which

I have quoted in para. 21 above).

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23. Insofar as his own observations are concerned, the principal issue raised by

him relates to the Constitutional challenge to the 2016 Act. For the reasons already

set out above, I do not believe that this gives rise to any arguable ground let alone a

substantial ground in support of the case made by the applicant. Under the heading

“other remarks” the applicant makes a number of general complaints in relation to

the process operated by the Board and in relation to the quality of the application

made by Crekav. They do not, however, appear to me to address in any sufficient

level of detail either the planning or legal basis for the objections made or the views

expressed by the applicant. In addition, under the heading “grounds for concern”, the

applicant made a number of observations in relation to what he characterised as the

“corrupt” nature of planning in Ireland generally. He also made submissions that the

development was unsuitable for Howth. Again, those observations are made in very

general terms and appear to be based on the personal view of the applicant rather than

on any specific planning or legal grounds. In his affidavit sworn on 25th May, 2020,

the applicant also highlights that there is no reference in the inspector’s report to the

observations made by him and he says in paras. 22-23 of his affidavit:

“(22) … I aver that … said omission of citation by the Board of my Objection

… renders the entire decision making process as set out in the Order to be

precarious. In plain terms – if my Objection has been left out, then what else

has been left out? Is this omission deliberate or accidental? Assuming

‘accidental’, then what amount of diligence did the Board apply in reaching

its position as in the Order?

(23) I do not believe that I need to seek leave of the Court to amend or

supplement the Statement of Grounds in these proceedings”.

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24. In the case of the observations from the Community Council, there are very

specific issues raised in relation to the risk of subsidence and landslides. In particular,

a case is made that there is already land slippage in the Howth area such that the

ground is shifting. The case is also made that the proposal entails the removal of

some 78,000 cubic metres of sand and gravel which it is suggested may lead to more

extensive and severe slippage instance in the future. Concern is also expressed about

the impact of construction traffic on the foundations of existing properties and

concern is also voiced in relation to air pollution and carbon emissions. In particular,

it is alleged that no consideration has been given to the effect that transporting the

excavated 78,000 cubic metres of sand and gravel (involving 11,000 lorry loads) will

have on the local population and the wider environment. The case is therefore made

that it is essential that an environmental impact assessment should be undertaken

which should not be confined to potential impacts on the conservation of natural

habitats but should also address the impact on the health and safety of human

inhabitants.

25. The risk of subsidence and landslides is also addressed in the submission

made by Ms. Mallon on behalf of the Residents Association which, at pp. 7-11

addresses issues in relation to the health and environmental impact of the excavations

and transport. The concerns expressed on behalf of the Residents Association are also

supported by a report from MTW Consultants Ltd, consulting civil and structural

engineers. The observations made both by the Community Council and by the

Residents Association are quite detailed and go well beyond any expression of

personal opinion. In my view, they provide sufficient detail to support the case which

the applicant seeks to make in para. 8 of his statement of grounds. While the applicant

should more properly have set out the case made by those parties in para. 8 of his

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statement of grounds, I believe that when one reads para. 8 in conjunction with the

observations made by the Community Council and the Residents Association, the

basis for the applicant’s case in support of the relief sought by him at para. 3 of Part D

of his statement of grounds is reasonably clear. However, in order to come to that

conclusion, one has to read the observations made by the Community Council and the

Residents Association in conjunction with para. 8 of the statement of grounds.

26. The issues raised by the Community Council and the Residents Association

(as summarised in paras. 24 to 25 above) were addressed (at least to some extent) in

the report of the planning inspector of 19th February, 2020 at paras. 13.1 to 13.2. It

would be entirely wrong for me to express any view, at this point, as to whether the

inspector has addressed the concerns adequately. All I can say is that, on the basis of

the submissions made by the observers, serious issues were raised and it seems to me

that the question of whether those issues were sufficiently addressed by the Board and

its inspector is, in legal terms, a weighty issue which satisfies the McNamara test.

27. That said, I am concerned about the rather broad-brush way in which the issue

is pleaded in the statement of grounds. As noted above, one has to read para. 8 with

the affidavit and the exhibits in order to understand the case made. Order 84 r.20 (3)

makes clear that it is not sufficient for an applicant, in his or her statement of grounds,

to make an assertion in general terms. An applicant seeking judicial review must state

precisely each ground, giving particulars where appropriate and identifying the facts

or matters relied upon as supporting the ground in issue. On the face of it, para. 8 of

Part E of the applicant’s statement of grounds does not comply with those

requirements. As noted above, one has to read the relevant parts of the observations

made by the Community Council and the Residents Association in order to

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understand the nature of the case which the applicant intends to make in para. 8 of his

statement of grounds.

28. Strictly speaking, I should, accordingly, direct the applicant to reformulate his

statement of grounds in order to comply with the requirements of O.84 r.20 (3).

However, I am concerned about the delay that any such process would inevitably

entail and, in those circumstances, it seems to me that the more efficient way to

address the matter will be to specify in the order to be made in this case that the

grounds on which leave is granted to seek this declaratory relief are those set out in

para. 8 of the statement of grounds when read with the submissions made by the

Community Council outlined in s. 1 of its observations dated 5th December, 2019 and

the observations made at pp. 7-11 under the headings “Risk of subsidence and

landslides” and “Health & Environmental Impact of the Excavations and Transport”

in the submission dated 6th December, 2019 made by Ms. Mallon on behalf of the

Residents Association together with the associated report by MTW Consultants Ltd

submitted to the Board on 9th December, 2019. When para. 8 is read in that way, it

seems to me to be sufficiently clear that the applicant makes the case that the Board

failed to properly address and make appropriate findings in relation to the submissions

made by the Community Council and Residents Association and/or to provide

sufficient reasons for rejecting those submissions.

29. If the order is framed in that way, it will, in my view, satisfy, in substance, the

requirements of O.84 r.20 (3). It will also allow all parties and the court to be aware

of the basis on which leave has been granted to the applicant to pursue this element of

his judicial review application. It is important in this context to bear in mind that, as

MacGrath J. observed in Harrington v. Minister for Communications, Energy and

Natural Resources [2018] IEHC 821 at para. 126:

Page 20 ⇓

“…it is clear from the authorities that this Court when considering the

grounds of challenge, submissions or arguments is concerned, and concerned

only, with the grounds upon which leave to apply for judicial review was

granted and the matters contained in statement of grounds and supporting

affidavits. Adopting dicta of Haughton J in Alen-Buckley v. An Bord Pleanála

(No.2), matters that fall outside the grounds upon which such leave was

granted do not come within the remit of this Court on this review and

therefore … unless they are grounds or a basis upon which leave was granted,

cannot come within the Court's consideration in deciding whether the Minister

acted lawfully when granting the consent.”

30. If, however, I frame the order in the terms suggested in para. 28 above, I

believe it will be very clear to all parties and the court the basis upon which leave is

granted to the applicant in respect of the declaration claimed in para. 3 of Part D of

the statement of grounds.

The additional claim made in respect of the omission of the Board to cite the

applicant as an observer.

31. As noted in para. 23 above, the applicant in paras. 22-23 of his affidavit also

raises an issue which is not currently pleaded in the statement of grounds – namely the

lack of any reference to the applicant in the list of observers noted by the inspector in

his report. While I fully appreciate that the Board may well have a complete answer

to this issue, I nonetheless believe that the omission to make specific reference to the

applicant as a person who submitted observations in opposition to the proposed

development qualifies as a substantial ground for the purposes of a judicial review

challenge to the decision made by the Board to grant permission for the development.

By reference to the language used by him in para. 22 of his grounding affidavit, I

Page 21 ⇓

therefore propose to grant leave to the applicant to seek a declaration that the

omission by the Board and/or its inspector of any reference to the observations made

by the applicant invalidates the decision of the Board to grant permission for the

development. I will grant leave to the applicant to seek such a declaration on the

grounds that the omission to refer to the applicant or to his observations constitutes an

error sufficient to invalidate the decision. I stress that, in giving such leave, I do so

only on the basis that I believe the applicant can make a weighty argument in support

of such relief. I do not in any way prejudge the outcome of that argument and I

reiterate that the Board may well have a complete answer to the concern expressed by

the applicant. If either the Board or Crekav so require, I will direct that the applicant

should file an amended statement of grounds in which the declaration described above

is sought in Part D on the grounds described in para. 22 of the applicant’s grounding

affidavit. I would, however, suggest that it should not be necessary to delay these

proceedings by the delivery of amended statement of grounds. In circumstances

where the order proposed by me will make clear the precise scope of the additional

relief which can be sought by the applicant and the grounds on which such relief can

be sought, it seems to me that this would be sufficient to make the scope of this aspect

of the applicant’s case clear for the purposes of the ultimate hearing of these

proceedings.

The grounds relied upon by the applicant in support of his claim that the Board

did not adequately consider the requirements of Fingal County Council’s

objective DMS 174 (pertaining to coastal erosion).

32. In support of this element of the relief claimed by him, the applicant relies

again on para. 8 of Part E of the statement of grounds and on paras. 4 and 25 of his

affidavit sworn on 25th May, 2020. For the reasons outlined above, I do not believe

Page 22 ⇓

that para. 8 of the statement of grounds is sufficient in itself to give any proper

indication of the basis upon which this element of the application for judicial review

is concerned. However, as noted above, the applicant has expressly adopted the

submissions made by the Community Council and the Residents Association.

33. The only reference I can find to Objective DMS 174 in the materials before

the court is on p. 6 of the submission made by Ms. Mallon on behalf of the Residents

Association. The objective in question prohibits new development outside urban

areas within the areas indicated on Green Infrastructure Maps which are within 100

metres of coastline at risk from coastal erosion unless it can be objectively established

based on the best scientific information available at the time of the application, that

the likelihood of erosion at a specific location is minimal taking into account, inter

alia, any impacts of the proposed development on erosion or deposition and the

predicted impacts of climate change on the coastline. According to Ms. Mallon, the

site is 28 metres from the cliff face above Balscadden Bay such that permission to

develop the site would be in contravention of this objective.

34. This objective is cited by the inspector on p. 16 of his report. I believe it

would be inappropriate, at this point in these proceedings, to comment any further on

the inspector’s report in relation to this issue. It is sufficient to note that, in my view,

the issue raised by Ms. Mallon on behalf of the Residents Association in relation to

this objective was potentially an important issue and it follows, in my view, that the

issue as to whether the Board adequately considered this objective qualifies as a

substantial ground. However, for similar reason to those set out in para. 28 above, I

am of the view that the statement of grounds does not adequately comply with O.84

r.20 (3) in relation to this ground. Paragraph 8 of Part E of the statement of grounds is

pleaded too generally. That said, it seems to me that the most efficient way to deal

Page 23 ⇓

with this deficiency is to make clear, in the order granting leave in respect of the relief

claimed in para. 4 of Part D of the statement of grounds, that such leave is granted on

the ground that the Board failed to properly consider and reach a determination on the

issue described on p. 6 of the observations dated 6th December, 2019 submitted by

Ms. Mallon on behalf of the Residents Association (which drew the attention of the

Board to objective DMS 174 and contended that, as the subject site is 28 metres from

the cliff face above Balscadden bay, permission to develop the site would be in

contravention of objective DMS 174 of the Fingal Development Plan 2017-2023).

The grounds relied upon in support of the claim to a declaration that the Board

erred in granting permission for the proposed development on a site known to be

subject to flooding.

35. Again, the applicant relies in support of this element of his claim to relief on

what is pleaded in para. 8 of Part E of the statement of grounds and on paras. 4 and 25

of his grounding affidavit. For the reasons previously discussed, those paras. do not

provide any detail in relation to this ground. However, the issue is addressed very

briefly in the observations made by the Community Council where it is stated that the

site is within a highly sensitive area with a unique topography where the “hilly terrain

and soil structure has historically led to flooding and subsidence related to rainfall

and changes in the ground moisture content”.

36. The question of flooding is addressed in para. 11.7.2 of the inspector’s report

where the inspector states that the site “does not have a recorded history of flooding

and the sandy soils upon it would not provide significant flood storage in its current

condition. The submitted surface water drainage proposals have due regard to the

circumstances of the site. They are there for considered acceptable and sufficient to

demonstrate that the proposed development would not be at undue risk of flooding

Page 24 ⇓

and would not give risk to an undue risk of flooding on other land and that it would be

in keeping with the 2009 guidelines on flood risk management”.

37. I do not believe that there is sufficient information before the court in relation

to the flooding issue. The flooding issue is raised in such general terms in the

observations made by the Community Council that, even having regard to those

submissions, it is impossible to properly identify a ground in support of this element

of the applicant’s claim. In those circumstance, it follows that there is an insufficient

basis on which to grant leave in relation to this element of the applicant’s claim.

Accordingly, I must refuse to grant leave in respect of the declaration claimed at para.

6 of Part D of the statement of grounds.

The grounds relied upon in support of the claim to a declaration that the Board

erred in granting permission for the proposed development on a site known to be

subject to subsidence.

38. The applicant relies on the same material in respect of this aspect of his claim

as he does in relation to the relief claimed at para. 3 of Part D of his statement of

grounds (namely, the declaration that the Board failed to give sufficient consideration

to matters of safety pertaining to the site). He, therefore, relies on para. 8 of Part E of

his statement of grounds and on paras. 4 and 25 of his grounding affidavit. A similar

issue, therefore, arises to that described in para. 27 above. However, when para. 8 of

the statement of grounds is read in conjunction with the observations submitted by the

Community Council and by Ms. Mallon on behalf of the Residents Association, it

seems to me that the grounds on which this declaratory relief is sought is clear. There

is a substantial overlap between the grounds relied on in support of this relief and the

grounds relied upon in support of the declaration that there was a failure to give

adequate consideration to matters of safety. As noted in para. 24 above, the

Page 25 ⇓

observations of the Community Council address the risk of subsidence and landslides

at pp. 3-4 of its observations while the risk of subsidence is also addressed at pp. 7-10

of the observations submitted by Ms. Mallon on behalf of the Residents Association

and supported by the report prepared by MTW Consultants Limited. I, therefore,

propose to take a similar approach here as I did in relation to the declaration sought in

relation to safety. It seems to me that I should specify in the order granting leave that

the grounds for granting leave in respect of the relief claimed in para. 6 of Part D of

the statement of grounds are those set out in para. 8 of Part E when read with pp. 4-4

of the Community Council observations and pp. 7-10 of the Residents Association’s

observations together with the MTW Consultants report.

The declarations sought in paras. 7, 8, 9 and 11 of the statement of grounds.

39. At the hearing of the applicant’s application on 28th May I invited him to

indicate whether he had any legal authorities to cite in support of these elements of his

claim to relief. The applicant was unable to cite any authority in support of these

elements of his claims.

40. In his statement of grounds, the only support which he provides in relation to

these elements of his claim are set out in paras. 9, 10 and 11 of Part E of the statement

of grounds. In para. 9, it is alleged in very general terms that the applicant’s case is

that “upon exhaustive examination of the overall Statutory and Jurisprudential

circumstance, the Board has found itself to be ultra-vires”. With due respect to the

applicant, I can see no basis upon which this could be said to constitute a substantial

ground. No basis whatever has been identified for suggesting that the Board found

itself to have acted in an ultra vires manner. Nor is there anything in the grounding

affidavit of the applicant that explains the basis for this element of the relief claimed

by him. In fact, it is clear from para. 26 of his affidavit that the applicant is not in a

Page 26 ⇓

position to identify a basis for this relief. He states in para. 26 that, in the event that

leave is granted, he will “endeavour to submit a detailed treatment of such contention

of mine”. For the reasons already explained in para. 17 above, the applicant cannot

take this approach. If leave is to be granted to the applicant, he must, as a pre-

condition to the grant of leave, establish, at this point in the proceedings, substantial

grounds for the relief sought. The court is not mandated by the 2000 Act to grant

leave unless such substantial grounds are demonstrated to exist.

41. In para. 27 of his affidavit, the applicant refers to the observation made by the

inspector at para. 6.1.1 of his report where he referred to the housing policy of the

government as set out in “rebuilding Ireland – Action Plan for Housing and

Homelessness issued in July 2016” and where the inspector states:

“The overarching aim of this Action Plan is to ramp up delivery of housing

from its current under-supply across all tenures to help individuals and

families meet their housing need”.

42. At para. 28 of his affidavit the applicant complains that the Board has acted in

an ultra vires manner by implementing government policies which are, more properly,

for the Department of Housing, Planning and Local Government.

43. In para. 29 of his affidavit the applicant complains about the use of language

in the passage quoted above which he suggests is vague, jargonistic and florid.

However, none of paras. 27-29 provides any legal basis to support the relief claimed

in paras. 7, 8, 9 and 11 of Part D of the statement of grounds. Accordingly, I can see

no substantial grounds in this case to support any of the relief claimed in those

paragraphs. I, therefore, refuse to grant leave to the applicant in respect of these

elements of his claim.

Page 27 ⇓

The declaration that the proposed development is not consistent with the zoning

of the site under the Fingal County Council Development Plan 2017 to 2023

44. In support of this ground, the applicant, again, relies on para. 8 of his

statement of grounds. In addition, he relies on paras. 4 and 25 of his grounding

affidavit. In other words, he relies principally upon the submissions and observations

made to the Board by himself, the Community Council and the Residents Association.

Insofar as I can see, zoning is not mentioned at all in the observations made by the

applicant to the Board. It is mentioned briefly by the Community Council but not in a

sufficiently detailed way to identify a specific ground. However, the issue is

addressed in more detail in the submission made by Ms. Mallon on behalf of the

Residents Association. In particular, it is addressed on pp. 2-4. Among the points

made is that only a small portion of the site of the proposed development is zoned

“RS-Residential”. According to the Residents Association, the greater portion of the

site is zoned “TC-Town & District Centre”. In addition, an issue is raised in this

section of the submission made on behalf of the Residents Association as to whether

the proposed development constitutes a strategic housing development. As noted in

para. 1 above, a strategic housing development is defined by s. 3 of the 2016 Act as

meaning a development of 100 or more houses “on land zoned for residential use or

for a mixture of residential and other uses”.

45. On the basis of the submissions made by the Residents Association, it appears

to me that there are two potential grounds on which this element of the relief claimed

by the applicant could be said to arise:

(a) The proposed development does not fall within the definition of a

“strategic housing development” within the meaning of s. 3 of the 2016

Page 28 ⇓

Act such that the Board had no jurisdiction to accept the application made

under s. 4 of the 2016 Act; and

(b) The proposed development is inconsistent with the zoning of the site under

the Fingal County Council Development Plan, 2017-2023 and that,

accordingly, such inconsistency invalidates the decision of the Board to

grant permission for the proposed development.

46. In my view, it would be difficult to suggest, at this point in the proceedings

and without having heard the case which the Board or Crekav might make, that these

grounds are not weighty grounds such as to constitute substantial grounds for the

purposes of the McNamara test. I, therefore, believe that I should grant the applicant

leave to seek the declaration sought in para. 10 of Part D of the statement of grounds

(i.e. the declaration summarised in para. 13 (j) above) on the grounds set out in para. 8

of Part E of the applicant’s statement of grounds when read in conjunction with the

issue raised by the Residents Association at pp. 2-4 of the observations submitted on

their behalf.

A declaration that Condition 2 as proposed in the Board’s order does not make

sense.

47. This is addressed in para. 11 of the statement of grounds where the applicant

says that the Board did not exercise due care and diligence in arriving at its decision

and in expressing its decision. In para. 30 of his grounding affidavit, the applicant

confirms that he has nothing further to add in relation to this issue beyond the

statement of grounds.

48. In my view, this element of the relief claimed by the applicant must be read in

conjunction with the terms of Condition 2 attached to the decision of the Board to

grant permission for the development. That condition is in the following terms:

Page 29 ⇓

“2. The proposed widening of the footpath along the Balscadden Road shall

be omitted from the proposed development.

Reason:

To protect pedestrians and to safeguard the structural integrity of the road”.

49. When one considers the terms of Condition No. 2, it is readily apparent why

the applicant seeks the relief which he does. On the face of it, it is difficult to

understand how the omission of the proposed widening of the footpath along the

Balscadden Road can be said to “protect pedestrians” as stated in the reason given by

the Board for the imposition of this condition. The widening of the footpath would

appear to be in the interests of the protection of pedestrians. It is, therefore, difficult to

see how the omission of that aspect of the proposed development could be said to

protect pedestrians. That is not to suggest that the Board will not be able to justify this

condition (and the reason given for it) but, on the face of it, it seems to me that the

applicant has a substantial ground on which to suggest that the reason given for this

condition does not make sense. In those circumstances, I propose to give the

applicant leave to seek the relief claimed in para. 12 of Part D of his statement of

grounds on the basis that Condition 2 to the order made by the Board does not make

sense.

The relief claimed in relation to costs

50. As noted in para. 13 (m) and (n) above, the applicant seeks a number of orders

in relation to costs. These are orders which are regularly sought in judicial review

proceedings of this type and I believe, without prejudging any issues that any of the

other parties may wish to raise in relation to these elements of the relief sought, that

the applicant has substantial grounds to seek such relief. I therefore do not believe

that this is an issue which requires further consideration by me in this judgment. I

Page 30 ⇓

will therefore give the applicant leave to seek the relief claimed by him in paras. 13

and 14 of Part D of the statement of grounds. While Part E of his statement of

grounds does not address these elements of the relief claimed by him, it seems to me

that leave can be granted to the applicant to seek this relief on the basis of the case

made in support of the remaining elements of the relief for which leave is granted by

this judgment.

The order of certiorari sought

51. For the reasons discussed in paras. 24 – 26, 31, 33 – 34, 38, 44 – 46 and 47 –

49 above, it seems to me that there is a basis on which the applicant should be given

leave to pursue his claim for an order of certiorari. In my view the grounds on which

such relief can be sought are those discussed in paras. 28, 31, 34, 38, 46 and 49 above.

The order to be made

52. For the reasons outlined above, I refuse to grant leave to seek any of the relief

set out in paras. 2, 5, 7, 8, 9 and 11 of Part D of the statement of grounds. However, I

will make an order granting the applicant leave to bring judicial review proceedings in

respect of the decision of the Board dated 2nd March, 2020 insofar as he seeks the

relief set out in paras. 1, 3, 4, 6, 10, 12, 13 and 14 of Part D of the statement of

grounds. Such leave is given on the grounds more particularly set out in paras. 53 – 60

below.

53. Insofar as the relief claimed in para. 3 of Part D of the statement of grounds,

leave is granted on the grounds set out in para. 8 of the statement of grounds when

read with the submissions made by the Community Council outlined in s. 1 of its

observations dated 5th December, 2019 and the observations made at pp. 7-11 under

the headings “Risk of subsidence and landslides” and “Health & Environmental

Impact of the Excavations and Transport” in the submission dated 6th December,

Page 31 ⇓

2019 made by Ms. Mallon on behalf of the Residents Association together with the

associated report by MTW Consultants Ltd submitted to the Board on 9th December,

2019.

54. I will also grant leave to the applicant to seek a declaration that the omission

by the Board and/or its inspector to make reference to the observations made by the

applicant invalidates the Board’s decision to grant permission for the development.

Such leave is granted on the ground that the applicant contends that the omission to

refer to the applicant or to his observations constitutes an error sufficient to invalidate

the decision. In the event that either the Board or Crekav require that an amended

statement of grounds be delivered by the applicant for that purpose, I will give liberty

to the applicant to amend the statement of grounds but only to the extent necessary to

give effect to the leave hereby granted.

55. Insofar as the relief claimed in para. 4 of Part D of the statement of grounds is

concerned, leave is granted on the grounds that the Board failed to properly consider

and reach a reasoned determination on the issue described on p. 6 of the observations

dated 6th December, 2019 submitted by Ms. Mallon on behalf of the Residents

Association.

56. Insofar as the relief claimed in para. 6 of Part D is concerned, leave is granted

on the grounds set out in para. 8 of Part E of the applicant’s statement of grounds

when read with pp. 3-4 of the Community Council’s observations and pp. 7-10 of the

Residents Association’s observations together with the MTW Consultants report.

57. Insofar as the relief claimed in para. 10 of Part D is concerned, leave is granted

on the grounds as set out in para. 8 of Part E of the applicant’s statement of grounds

when read in conjunction with the issue raised by the Residents Association at pp. 2-4

of the observations submitted on their behalf .

Page 32 ⇓

58. Insofar as the relief claimed in para. 12 of Part D of the statement of grounds

is concerned, leave is granted on the grounds that Condition 2 proposed by the Board

does not make sense.

59. Insofar as the relief claimed at paras. 13 and 14 of Part D of the statement of

grounds is concerned, leave is granted on the basis of the case made by the applicant

in respect of the remaining elements of the relief claimed by him in respect of which

leave is granted by this judgment as set out in paras. 53 – 58 above and para. 60

below.

60. Insofar as the primary relief is concerned, namely, the claim to an order of

certiorari claimed in para. 1 of Part D of the statement of grounds is concerned, leave

is granted on each of the grounds described in paras. 53 – 58 above.

61. I will direct that the application should proceed by way of an originating

notice of motion. I will direct the applicant to serve the originating notice of motion

together with a copy of the order made on foot of this judgment, the statement of

grounds and his affidavit sworn on 25th May, 2020 on both the Board and on Crekav

by sending copies thereof by email to their respective solicitors, namely, Philip Lee

Solicitors on behalf of the Board and Arthur Cox Solicitors on behalf of Crekav. I will

direct that service should be effected within 7 days from the date of perfection of the

order proposed herein, failing which the order granting leave shall lapse.

62. I will also direct that the originating notice of motion should be made

returnable in the Strategic Infrastructure list for Thursday, 25th June, 2020 at 10.30

a.m. at which stage I will give directions for the further prosecution of these

proceedings. In light of the fact that the respondent and notice party have previously

been served with the papers by the applicant, I expect that the statements of

opposition and accompanying affidavits should be capable of being delivered within a

Page 33 ⇓

relatively short period of time after 25th June. I direct the parties to confer with each

other by email or telephone in advance of the further consideration of the matter on

25th June with a view to agreeing the further directions to be made in relation to the

timescale for delivery of the statements of opposition and accompanying affidavits,

any replying affidavit, the written submissions and suitable dates for the hearing of

the proceedings. The Court Registrar should be informed of the outcome of that

interaction between the parties by email not later than 3:00pm on 24th June, 2020.

63. In the course of the interaction between the parties directed at para. 62 above,

the Board and Crekav should indicate to the applicant whether either of them requires

that an amended statement of grounds should be furnished to address the additional

relief set out in para. 54 above. In the event that either of them requires delivery of an

amended statement of grounds, the time for delivery of the amended statement of

grounds will require to be addressed in the further directions discussed in para. 62

above.

64. I will reserve the costs of the application.