Arklow Holidays Ltd (applicant) v An Bord Pleanla, Ireland and the Attorney General (respondents) and Wicklow County Council, Arklow Urban District Council, Seabank and District Residents Association, Arklow Action Group, Wicklow Planning Alliance, An Taisce, Arklow Caravan Park Residents Association, Coast Watch Europe, P.J. Hynes and Brendan Hynes (notice parties)
Judicial review - Planning - Applicant's challenge to an initial planning permission failed - Appeal to An Bord Pleanla - Grant of planning permission upheld subject to certain conditions - Leave to apply for judicial review granted - Whether applicant estopped from raising points asserted as grounds for seeking leave on the basis that those points would have been equally applicable, if they be good points, to the original grant of planning permission - Discretion of court - Planning and Development Act, 2000, s. 50
The High Court (Mr Justice Clarke); judgment delivered October 5th, 2007.
Where an applicant chooses to challenge by judicial review a local authority decision in the planning process and subsequently brings a second challenge in relation to a decision by the first named respondent in the same process, the applicant will, ordinarily, be precluded by the rule in Henderson v Henderson, from raising, in any such second challenge, any points which could and should have been raised in the original challenge.
The High Court so held in dismissing the applicant's application.
Michael Cush, SC, with Michael O'Donnell, BL, and Barney Quirke, BL, for the applicant; Nuala Butler, SC, with Emily Egan, BL, for the first named respondent; Patrick Andrew Butler, SC, with Gillian Reid, BL, for the second named notice party.
Mr Justice Clarke stated that the proceedings formed part of a long-running dispute concerning a proposal on the part of the second named notice party to build a waste water management treatment plant for the purposes of servicing the increasing needs of the Arklow area. These, and other connected, proceedings had a long history. The applicant challenged an initial planning permission granted by the first named notice party. That challenge failed. Thereafter an appeal as to the merits of the planning permission was pursued before the first named respondent which upheld the grant of the permission subject to certain conditions. The proceedings were commenced with a view to challenging that decision of the first named respondent on appeal.
Mr Justice Clarke said that in accordance with the requirements of section 50 of the 2000 Act, leave to seek judicial review was sought on notice to all respondents and notice parties. Some but not all of the notice parties participated. At that stage six groups of grounds were advanced in support of seeking leave to bring judicial review proceedings. Mr Justice Clarke had been persuaded to grant leave in respect of three of the six groups of grounds advanced which were in the following terms:
"2. that the Waste Management Act 1996 applied to the plant and that, therefore, it was wrong of the board to have regard, as it is said it did, to environmental questions, those matters being properly ones for the Environmental Protection Agency ('EPA')
"3. That the board failed to carry out a proper environmental impact assessment ('EIA') in relation to the whole of the project.
"5. That the Urban District Council did not have a sufficient interest in the property which was the subject of the planning application to entitle them to make the application."
The matter then proceeded to a full hearing at which those grounds were argued in detail.
Mr Justice Clarke said that the issues which he had to decide included questions as to whether any of the grounds which had been identified had been made out. At the substantive hearing the subject matter of this judgment only the first named respondent and the second named notice party, of those opposing the application, were represented. The hearing therefore, proceeded on the basis of the application for judicial review being opposed by the first named respondent and the second named notice party. In addition to the three grounds in relation to which leave had been granted, a further issue or point of defence was raised at the hearing before Mr Justice Clarke as a preliminary objection. This issue had been raised at the leave stage, however, while considering the point to be of substance, Mr Justice Clarke was of the opinion that it did not prevent the applicant from establishing substantial grounds. The issue concerned a contention, on the part of those opposing the judicial review, that the applicant was now estopped from raising any of the points being asserted, on the basis that those points would have been equally applicable, if they be good points, to the original grant of planning permission. It was said that none of those points were raised in the challenge to the planning permission. It was, therefore, argued that, having regard to the so-called rule in Henderson v Henderson, the applicant was now precluded from raising those issues at this stage.
Mr Justice Clarke said that there were, therefore, four matters which arose in the substantive matter. The first was as to whether or not the applicant was, in fact, precluded from raising any of the issues concerned. If, and to the extent that, the applicant was not so precluded in relation to any or all of the grounds in respect of which leave was given, then such of the three matters in respect of which leave had been granted as were not thus excluded, also fell for determination. It appeared appropriate to turn, firstly, to the question of whether the applicant was, in fact, precluded from raising any of the issues.
Mr Justice Clarke said that the original judicial review proceedings in respect of the grant of planning permission were commenced on September 10th, 1999. On October 15th, 2003, Mr Justice Murphy refused all of the relief sought and on February 3rd, 2004, Mr Justice Murphy also refused an application for the necessary certificate to enable an appeal to be brought to the Supreme Court. It seemed that none of the grounds before the court in the instant case were argued before Mr Justice Murphy in the challenge to the original permission. In this context, Mr Justice Clarke felt it necessary to examine the grounds raised for the purposes of determining whether they could (or indeed should) have been raised at that time. Mr Justice Clarke said that the first of the grounds concerned the applicability of the Waste Management Act, 1996, to the treatment plant, the subject matter of the proceedings. The issues concerned raised mixed questions of law and fact, but centered on the question of whether the proposal which was under consideration by the first named respondent for the waste management treatment plant concerned, was one which required a licence under the 1996 Act. If it did, then, it was argued that it was wrong of the first named respondent to consider environmental pollution questions in determining whether or not to grant planning permission or the conditions to be imposed on such a grant as those are matters properly in the jurisdiction of the EPA to decide on. Mr Justice Clarke said that if there was any merit to that point it was manifestly clear that it applied with equal strength to the considerations of the first named notice party in granting the original planning permission. The planning permission with which both the first named notice party and the first named respondent were concerned, was, of course, the same planning permission. If, as was now argued, it was impermissible for the first named respondent to have regard to the relevant environmental pollution issues, then it followed that it was equally impermissible for the first named notice party to have similar regard. Both imposed conditions which appeared to be designed to meet such environmental concerns. If the first named respondent was wrong in so doing then it equally followed that the first named notice party was wrong. It seemed to Mr Justice Clarke therefore to follow that, if there was any legitimate case to be made to the effect that the first named respondent was wrong, on the facts of the case, in considering environmental pollution factors, then the first named notice party was equally wrong. It, in turn, followed that if there was any validity to the argument that the planning permission granted by the first named respondent was invalid on these grounds, then the original decision of the first named notice party to grant planning permission was also invalid on virtually identical grounds. It followed therefore, that the grounds relied on under this heading were grounds which could have been agitated, if they had any merit, in the original application which sought to challenge the planning permission of the first named notice party.
Mr Justice Clarke said that similar considerations appeared to him to apply to the second set of grounds. Under this heading it was suggested that the first named respondent filed to carry out a proper environmental impact assessment in relation to the whole of the project. It was argued that the first named respondent failed to carry out an appropriate EIA in relation to some of the project and that the permission granted was, therefore, flawed. Mr Justice Clarke said that an identical process was engaged by the first named notice party at the stage of the original planning application and that there was no suggestion that the first named notice party had carried out a wider assessment than that carried out by the first named respondent. In those circumstances it also followed that, if there was any validity to the point raised, so as to render invalid the planning permission granted by the first named respondent, it followed that the same argument could have led to the original decision by the first named notice party being quashed on an identical ground.
Mr Justice Clarke said that the third group of grounds concerned the interest of the second named notice party in some of the property which was the subject of the planning application. The underlying point in respect of this aspect of the case concerned that fact that the second named notice party required to connect the water treatment plant to the town. While it had exercised its compulsory purchase powers in respect of the lands on which the plant itself was to be constructed, no such exercise had been conducted in relation to obtaining the necessary interests in the land between the town and the plant to enable that aspect of the project to be completed. Mr Justice Clarke said that whatever the merits or otherwise of any such argument it was clear that exactly the same situation pertained at the time when the original notice of intention to grant planning permission was given by the first named notice party.
Mr Justice Clarke concluded that each of the grounds now pursued raised issues which were equally capable of having been raised in respect of the original planning permission process as conducted by the first named notice party. If any or all of the point had any merit sufficient to justify the quashing of the grant of permission by the first named respondent then it equally followed that the same ground would have, had it been raised and properly argued, led to the quashing of the original decision by the first named notice party to notify an intention to grant permission. Mr Justice Clarke was satisfied that the factual situation identified as arising in the instant case will by no means necessarily arise in every case. It did not follow that just because there was a challenge to an original planning decision, all of the grounds which might be raised in a challenge to a subsequent decision by the first named respondent could have been raised at the earlier stage of a challenge to that original permission.
Mr Justice Clarke noted that the jurisprudence in this area stems from the case of Henderson v Henderson 3 Hare 100. The so called rule arising in that case was considered by the Supreme Court in the case of A.A. v The Medical Council 4IR 302 where Mr Justice Hardiman (speaking for the Supreme Court) noted the principle to the effect that a party to previous litigation is bound not only by matters actually raised but by matters which ought properly have been raised but were not. Mr Justice Hardiman also determined that, such a rule or principle could not, in its nature, be applied in an automatic or unconsidered fashion and that the public interest in the efficient conduct of litigation did not render the raising of an issue in later proceedings necessarily abusive where, in all the circumstances, the party concerned was not misusing or abusing the process of the court.
Mr Justice Clarke said that it is clear, therefore, that a plaintiff or applicant is at risk of being prohibited from raising, in a second set of proceedings, an issue which, it can properly be said, could and should have been raised in an earlier set of proceedings relating generally to the same subject matter. There is, however, an overriding discretion in the court to consider whether the raising of an issue in the second set of proceedings truly amounts to an abuse of process and, if it does not, then the party may be permitted to proceed. Mr Justice Clarke said that the question was as to whether there were any reasons why the rule in Henderson v Henderson should not apply in the instant case. Two possible bases for the non application of the rule had to be considered. The first concerned the extent of the applicability of the rule to a two-stage statutory process which had been described in a number of decisions of both the High and Supreme Courts as forming part of a single process. Secondly, it was necessary to consider whether there were any factors present which would make it appropriate for the court to exercise the discretion against imposing the full rigours of the rule.
In respect of the question of applicability, Mr Justice Clarke stated that there seemed to him to be both a domestic and European aspect. It is clear that the rule applies, in principle, to public law challenges. On a review of domestic caselaw, Mr Justice Clarke was of the view that there does not appear to be any reason why the rule in Henderson v Henderson should not apply with at least equal force in relation to judicial review proceedings. Such proceedings involve the exercise by public or quasi-public bodies of a public law role. Similar considerations mandate that that public role be carried out in an expeditious way in the interests of the public generally and those persons whose rights and obligations may fall to be governed by the public body concerned. It seemed to Mr Justice Clarke that these principles apply with equal force, if not greater, in relation to the planning process. It has been commented on in numerous recent decisions of the superior courts that the recent legislative changes and provisions concerning planning decisions are designed to ensure that finality will be brought to such matters, one way or the other, at the earliest possible time. Those who seek planning permissions and in respect of whose application objections are made, are entitled to have those objections determined, one way or the other, in a timely fashion. The 2000 Act imposes significant time limits on the conduct by the local authorities and the first named respondent of the planning process. The legislation also imposes significant time limits and other measures in relation to the bringing of challenges to such decisions before the courts. It is clear that there is a significant public interest involved in the bringing of early finality to any challenge to a planning decision for to allow otherwise may infringe on the rights of the other parties to the application.
Mr Justice Clarke said that counsel for the applicant did touch upon a European Union dimension to the matter. It was correctly argued that all organs of a Member State are required to seek to endeavour to ensure compliance with the obligations of the Member State concerned under applicable measures of the competent authorities of the EU. In appropriate circumstances that obligation applies equally to the courts. In those circumstances, it was argued, the court should lean against excluding, on procedural grounds, a challenge based on EU legal entitlements and obligations, on the basis that in so doing the court might, in substance, be countenancing a departure from EU mandated requirements. Mr Justice Clarke was not satisfied that there was any substance to this argument adding that it is manifestly clear that the obligation of the courts in reviewing, on the basis of compliance with EU law, the validity of development permissions or the like (or indeed the status of many other types of decisions whose validity may be challenged on EU grounds) is, prima facie, to be determined in a manner designated by the procedural law of the Member State concerned. That position should only be departed from where it can be established that the relevant procedural law of the Member State concerned breaches the principles of effectiveness or equivalence. Under those principles it is necessary that the procedural law of the Member State concerned should provide an effective remedy and that any limitations contained in that law, in respect of the enforcement of entitlements which may derive from EU law, should be equivalent to any similar limitations as might be applied in the domestic context.
Mr Justice Clarke said that there was no basis for suggesting that the application of the rule in Henderson v Henderson to a case such as this would breach either of those requirements. Such an application is manifestly equivalent. It is a rule which applies in any public law challenge and there is no basis for any suggestion that its application applies differently, and less favourably to a challenger, where EU environmental measures are being relied upon. Equally there was no basis for the suggestion that its application rendered any remedy effective. There was no practical reason why the points raised in the instant proceedings could not have been raised at the time of the original challenge to the decision of the first named notice party. Mr Justice Clarke could see no basis in EU law for determining that the rule in Henderson v Henderson should not apply to challenges in the environmental field which are based on an assertion of lack of compliance with EU law. Persons raising such challenges have an effective remedy which is equivalent to the remedy available in relation to similar domestic legal issues and is only restricted to the same extent that an equivalent purely domestic challenge would be restricted. Accordingly, Mr Justice Clarke expressed the view that where an applicant chooses to challenge by judicial review a local authority decision in the planning process and subsequently brings a second challenge in relation to a decision by the first named respondent in the same process, the applicant will, ordinarily, be precluded by the rule in Henderson v Henderson from raising, in any such second challenge, any points which could and should have been raised in the original challenge.
Mr Justice Clarke, in considering the matter of the court's discretion, could not see any basis for the exercise of the court's discretion in favour of the applicant. No real explanation had been given as to why the points now raised were not litigated in the first judicial review proceedings, for if they had been, this entire matter would now, almost certainly, be at an end. Mr Justice Clarke said that, either the points would have been successful, in which case the original planning permission decision by the first named notice party would long since have been quashed and whatever fresh planning applications following on from this would have been determined, or, if the points had been litigated and found to be unmeritorious then it would not, of course, have been open to the applicant, in any event, to raise them again in the instant proceedings. Mr Justice Clarke said that there was no basis upon which it could be considered just and equitable to permit the applicant to now rely on points which should and could have been raised eight years ago in proceedings before Mr Justice Murphy in the High Court. If all the rights concerned (including the rights of the public, the local authority as developer, and the planning authorities), were to be respected, the court could not now tolerate a further challenge to the underlying basis of the planning process which was being made, without explanation, six years after the first and which could and should have been incorporated with it. Whilst Mr Justice Clarke accepted the applicant could not be blamed for the delay of six years there was no basis on which to exercise the court's discretion in its favour.
Mr Justice Clarke concluded that the applicant was estopped from raising all of the issues in respect of which leave had been granted. It followed the application for judicial review must be refused. The applicant was not entitled to any of the reliefs in respect of which leave was given and its application was dismissed.
Solicitors: Hussey Fraser (Dublin) for the applicant; Barry Doyle & Co (Dublin) for the first named respondent; C.J. Louth & Son (Wicklow) for the second named notice party.
• Michele Rayfus, barrister