About this case:

• Citation:
  [2020] IEHC 128
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Mr Justice Garrett Simons heard the proceedings as part of a judicial review taken by the Mount Juliet Estates Residents Group against Kilkenny County Council pursuant to the statutory procedure provided for under the Planning and Development Act 2000.

The main complaint raised in the proceedings was that Kilkenny County Council, the planning authority, acted without jurisdiction in granting retention planning permission for a particular development.

Background

The Mount Juliet Estates Residents Group argued that the development for which retention has been sought had been carried out in breach of the requirements of the Environmental Impact Assessment Directive and the Habitats Directive, and, consequently, could not benefit from retention planning permission.

It was argued that the planning status of the development could only be regulated by way of an application for “substitute consent” pursuant to Part XA of the Planning and Development Act 2000.

Mr Justice Simons noted that the resolution of these legal issues must await the hearing of the substantive application for judicial review. His judgment was concerned solely with two interlocutory applications which have been brought by Kilkenny County Council and the beneficiary of the planning permission.

Kilkenny County Council sought to have these judicial review proceedings stayed pending the determination of an appeal which has been brought to An Bord Pleanála. Kilkenny County Council’s decision to grant retention planning permission is currently the subject of a third-party appeal to An Bord Pleanála.

It was suggested that this appeal to An Bord Pleanála should be determined first, in priority to the judicial review proceedings. The appeal has been brought by Mount Juliet Estates Residents Group. The residents’ group are pursuing an application for judicial review and a statutory appeal in parallel.

The judge said that the two interlocutory applications presented an “important issue of principle as to which is the more appropriate forum” in which the complaint that Kilkenny County Council has acted beyond its jurisdiction in granting retention planning permission, should be determined. “Put shortly, is it a matter for An Bord Pleanála or for the High Court.”

The court referred to the planning legislation which addresses the priority as between parallel appeal proceedings and judicial review proceedings, sections 50(4) and (5) of the Planning and Development Act 2000.

A planning authority, a local authority or the Board may, at any time after the bringing of an application for leave to apply for judicial review of any decision, apply to the High Court to stay the proceedings pending the making of a decision by the authority or the Board in relation to the matter concerned.

On the making of such an application, the High Court may, where it considers that the matter before the authority or the Board is within the jurisdiction of the authority or the Board, make an order staying the proceedings concerned on such terms as it thinks fit.

The legal test to be applied is whether or not the “matter” before the planning authority or An Bord Pleanála is “within the jurisdiction of” the relevant decision-maker. Where these criteria are met, the legislative preference is that challenges should be done by way of appeal rather than by judicial review.

Mr Justice Simons noted that this preference for an appeal “reflects a general principle of administrative law, namely, that an applicant should first exhaust his or her right of appeal before having recourse to the courts.”

Conclusion

The court held that the application to stay the within judicial review proceedings pursuant to section 50(4) and (5) of the PDA 2000 is refused. Appeal proceedings are to be given priority only in circumstances where the “matter … is within the jurisdiction of” An Bord Pleanála. The grounds of challenge submitted in the judicial review proceedings are ones which, if well-grounded, taint the appeal and affect An Bord Pleanála’s jurisdiction to hear the appeal. “The statutory criteria for a stay are not, therefore, met.”

Mr Justice Simons said that it “must be doubtful whether a planning authority can apply for a stay on judicial review proceedings in favour of an appeal which is pending before a different decision-maker”. The court considered that the wording of section 50(4) seems to suggest that what is contemplated is that it is only the decision-maker, before whom the matter is pending, who can apply for a stay.

The court also refused the “mirror-image application to vacate the stay”, to restrain An Bord Pleanála from determining the appeal before it. Mr Justice Simons said that the Oireachtas has put in place an express statutory provision which seeks to regulate the conduct of parallel appeal proceedings and judicial review proceedings. “Similar principles must guide the determination of the application on behalf of the developer to have the stay on An Bord Pleanála determining the appeal vacated.”

He noted that the justice of the case is best served, “not by denying the residents group an opportunity to challenge the legal validity of the planning authority’s decision, but rather by ensuring that the judicial review proceedings receive an expeditious hearing”.