Refusal of leave for Judicial Review of decision of An Bord Pleanála due to lack of standing

Author: Diarmuid O'hUallachain, Barry Magee and Zoe Richardson

July 26, 2019

Introduction

The High Court this week refused an application for leave to challenge a decision of An Bord Pleanála where the Board had refused planning permission sought by Dublin City Council involving the pedestrianisation of College Green. The Court described the case as “…one of the most unusual planning cases to have come before the Irish courts.” Unlike most planning cases, the Applicant in this case wanted to challenge a decision of the Board not to grant approval for a proposed development.

The Background

Dublin City Council had applied for planning permission for a proposed development on College Green, Dublin, which would involve the pedestrianisation of the Green, the implementation of new traffic measures and the undertaking of minor road works. The Board refused the planning permission.

In its decision, the Board concluded that the proposed development would have adverse impacts on pedestrians and bus transport within the city centre and therefore would be contrary to proper planning and the sustainable development of College Green.  In its reasoning, the Board cited the following considerations:

There was insufficient traffic analysis and associated information to quantify accurately the traffic impact and the magnitude of the development.

Although unclear, there would more than likely be significant negative effects for bus transport due to the extent of re-routing necessary. The Board emphasised the critical importance of bus transport to the city and its future role in facilitating a shift from car usage.

Issues on the Quays regarding their capacity to accommodate the scale of bus re-routing remained unresolved.

There had been a failure to demonstrate that the existing footpaths on the Quays were capable of accommodating the increased pedestrian numbers that would be using the Quays due to bus re-routing.

The Application before the High Court

The Applicant, who described himself as an ‘environmental activist’ from Dundalk, sought to challenge the decision not on the basis of any adverse environmental effects of the decision, but instead on the basis of the economic waste that was the result of the decision. He complained that there had been no public commentary on what he considered to be a waste of public resources.

The Applicant sought:

  1. an order of certiorari quashing the Board’s decision
  2. an order remitting the application to the Board; and
  3. a declaration that the procedure under Section 175 of the Planning and Development Act 2000 (as amended) was unlawful.

Findings of the Court

Barniville J identified some essential factual elements of the case that would define the course of the proceedings, namely that:

  • The Applicant had not participated at all in the planning process before the Board.
  • The Applicant resided more than 80 kilometres away from College Green in Louth.
  • The effect of the decision was merely to prevent a proposed development.
  • The Board’s decision did not involve any direct intervention into the environment or any protected or European site. As such, the decision did not engage the EIA or Habitats Directives.
  • There was no protected or European site which was adversely affected by the Board’s decision.
  • The Applicant did not assert any particular connection or interest with College Green or that it had any particular amenity value to him.
  • Dublin City Council did not seek to challenge the decision of the Board to refuse planning permission.

The Judgment

Barniville J considered whether the Applicant had standing to bring judicial review proceedings.

Applying national law, Barniville J observed that it was clear that the Applicant did not have a “sufficient interest” in the matter as required by Section 50A(3)(b) of the 2000 Act. The Court arrived at this conclusion by following the principles laid down in the seminal Supreme Court case of Grace and Sweetman v An Bord Pleanála and also referred to cases such as McDonagh v An Bord Pleanála.

In outlining his reasons for coming to this conclusion, the Judge noted:

  1. The decision did not result in any development. There would be no development unless a fresh application were approved. As such, the decision did not, in the eyes of the Court, give rise to any adverse intervention into the environment.
  2. There was no European site potentially threatened by the decision.
  3. There was a clear potential challenger to the Board’s decision; Dublin City Council. The result of this was that, unlike in previous cases, there was a person who could show that the decision had a direct effect on them.
  4. The Applicant lacked a reasonably close physical proximity to the site.
  5. There was no particular or special connection between the Applicant and the site and there was no assertion of an amenity value that was impaired by the decision. The Applicant could not establish direct personal prejudice as a result of the decision.
  6. While the Applicant undoubtedly had a particular interest in the environment and, specifically, in the protection, preservation and enhancement of the coastal areas of Ireland, there was no assertion of having any particular interest in College Green. The Applicant’s primary concern was that it would be a waste of money and resources to require the Council to make a fresh application for approval in respect of the proposed development rather than being based on any particular or special concern about the environment or the site.
  7. The Applicant failed to participate in the planning process. The Judge noted that while the case law provided that failure to participate does not, of itself, exclude a person from having standing to take a challenge, such a failure may leave the question of standing open to doubt, particularly when other factors such as a lack of physical proximity are also present. The Court could not find any cogent explanation for the Applicants failure to participate, in this case.

The Court was satisfied that there was nothing in EU law requiring the Court, in compliance with its EU obligations to ensure “wider access to justice” to  members of the public concerned by a decision, to interpret national rules on standing in a manner as to afford the Applicant standing in this case. The Court considered that it would be “extraordinary if…[EU law]…were to require the court to uphold the applicant’s standing to bring these proceedings having regard to the several factors which strongly militate against such standing.”

Conclusion

This case provides a useful examination of the case law in respect of the question of standing to bring judicial review proceedings in the context of planning decisions and a useful analysis of the factors to be applied in determining what constitutes a “sufficient interest” and how these are applied by the High Court.

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