About this case:

• Citation:
  [2021] IEHC 629
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Barniville

The court decided that an order of certiorari would be granted in the case, but refused to quash the decision simpliciter as suggested by the applicant.

The court considered that the justice of the case required the matter to be remitted back to the planning process prior to the point in time where the allegation of objective bias was formed. As such, the developer did not need to restart the entire planning process again.

Background

The applicant, Cork Harbour Alliance For A Safe Environment, brought judicial review proceedings against An Bord Pleanála regarding a planning decision for the development of an incinerator at Ringaskiddy, County Cork. The developer was Indaver NV trading as Indaver Ireland.

The applicant had raised eleven grounds of challenge in the proceedings but only succeeded on two points (see Cork Alliance Harbour For A Safe Environment v. An Bord Pleanála [2021] IEHC 203).

First, the applicant was successful on the main issue in the proceedings. The court concluded that the proceedings were tainted by objective bias by reason of the prior involvement of the then-deputy chairperson of the Board, who was also the presenting member of the Board in respect of its consideration of Indaver’s planning application, as a consultant in work done for Indaver in 2004.

Further, the applicant successfully argued that an applicant seeking permission under the SID provisions of the Planning and Development Act 2000 must be the same entity that engaged in the pre-application consultation procedure. In this case, Indaver Ireland Limited was named as the applicant to the permission even though Indaver NV had engaged in the consultation process. The court held that this was a clerical error.

Following the first judgment of the court, there was disagreement between the parties about the exact orders which were to be made in the case. While it was agreed that the granting of planning permission should be quashed, the Indaver argued that the application should be remitted back to An Bord Pleanála for fresh consideration. The applicant argued that the decision should be quashed simpliciter, meaning that the entire application process would need to be restarted.

As such, the parties made submissions to the court on the appropriate orders in the case.

High Court

Delivering judgment in the case, Mr Justice David Barniville noted that an order of certiorari would be granted for the underlying decision. Further, it was held that the matter should be remitted to the board at a particular point in the planning process rather than have the entire process started again.

The court began by noting that the parties were in agreement as to the applicable legal principles on the question of remittal, which were derived from cases such as Usk (No. 1), Tristor Ltd v. The Minister for the Environment [2010] IEHC 454, Clonres CLG v. An Bord Pleanála [2018] IEHC 473 and Barna Wind Action Group v. An Bord Pleanála [2020] IEHC 177.

The authorities provided inter alia that the court had a wide discretion to remit a matter to the Board under Order 83 Rule 27(4) RSC and that a decision to remit should aim to undo the consequences of an unlawful act but go no further.

In deciding to remit the matter, the court noted that the only allegations of objective bias were against the deputy chairperson of the Board and that he would not be involved in the process any further. It was held that there was no reason in principle why a case could not be remitted merely because there was a finding of objective bias against the Board.

The court stated that it was important to identify the exact case which was made by the applicant. The oral argument hinged on the involvement of the deputy chairperson in the latter stages of the pre-application consultation process and in various decisions by the Board between 2016 and 2018 in the application. However, the court held that this was not the case which had been pleaded by the applicant and no amendment had ever been sought.

The court emphasised the importance of the pleadings in judicial review cases and planning matters. The only allegation of objective bias came in the impugned decision and not for any of the other decisions made during the planning process.

The court also identified that the case had to be determined by reference to the fairness and justice of the situation. It was held that it would not be fair to require Indaver to begin the entire process again, where there was already an oral hearing which lasted 19 days and involved 90 witnesses.

Having decided to remit the matter, the court was then required to determine the exact point in the process that the application should restart from. The court considered the level of involvement of the deputy chairperson in the case. Ultimately, the court held that the appropriate point was where additional materials were relied on by Indaver but the applicant was precluded from making further submissions.

The court held that there would have been a reasonable apprehension of bias in that decision and that there was a qualitative difference between that decision and others made previously.

The court also considered the finding that the wrong entity made the application. The court held that this was a clerical error and that the Board had the power to amend the Indaver’s title in the application (Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403). Accordingly, the court held that it would not grant an order of certiorari on this ground alone, but directed the Board to amend the application.

Conclusion

The court granted an order of certiorari over the impugned decision and remitted the matter to the Board to the point immediately prior to the decision not to afford the applicant the opportunity of responding to further information and submissions received from Indaver.