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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kinsella v. Dundalk Town Council [2004] IEHC 373 (3 December 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/373.html Cite as: [2004] IEHC 373 |
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Neutral Citation No. [2004] IEHC 373
2004 No. 842 JR
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION BY WAY OF JUDICIAL REVIEW
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTY
JUDGMENT of Mr. Justice Kelly delivered the 3rd day of December, 2004
INTRODUCTION
On 3rd August, 2004, Dundalk Town Council (the Town Council) granted planning permission to Coverfield Developments Limited (Coverfield) for a very substantial development at Dowdallshill, Dundalk, County Louth.
The development will consist of a factory outlet centre containing 81 retail units with associated mall, snack bars, playground, crèche, public toilets and management suite. Parking for 1,120 cars and 20 coaches forms part of the planned development. The planning permission was subject to no fewer than 109 conditions.
THIS APPLICATION
The applicant seeks leave pursuant to s. 50 of the Planning and Development Act, 2000 (as amended) to apply for judicial review of the decision of the Town Council to grant the planning permission in question. If granted leave he wishes to seek an order of certiorari quashing the decision of the Town Council of 3rd August, 2004, to grant the planning permission. Further or in the alternative he seeks an order of certiorari quashing a decision of the Town Council of 25th June, 2004, whereby it decided that further information submitted on behalf of Coverfield on 24th June, 2004, did not contain significant additional data and did not therefore require the publication of an additional notice pursuant to article 35 of the Planning and Development Regulations, 2001.
In order to make sense, in particular of this second relief, I will have to refer to what happened when Coverfield's application for planning permission was pending before the Town Council.
COVERFIELD'S APPLICATION
Coverfield's application for planning permission was made on 4th March, 2004. It was accompanied by an Environmental Impact Statement (EIS) comprising seven documents. One of these was called the Overarching EIS Document to which I will have to return in due course. Curiously enough the grounding affidavit in this case did not exhibit the EIS or any relevant extract from it despite its importance to the issues in suit.
On 26th March, 2004, the applicant submitted his own rival application for outlying planning permission for a factory outlet centre at Dunleer. Neither the fact nor the content of this application was disclosed in the grounding affidavit supporting the present application.
On 7th April, 2004, the applicant made two separate submissions and observations to the Town Council concerning Coverfield's planning application. One was made personally and the other on his behalf by a firm of planning consultants.
On 27th April, 2004, the Town Council wrote to Coverfield requesting it, pursuant to the Planning and Development Regulations, 2001 to provide information/documents as set out in seven numbered paragraphs contained in a schedule to that letter of request. Coverfield was told that its application was deferred pending full compliance with that request. It was also informed that if the Town Council considered that the further information submitted contained significant additional data, Coverfield would be required to give notice in an approved newspaper in accordance with article 35 (1) (c) of the Planning and Development Regulations, 2001. In such circumstances the four week period for determining the application would run from the date that the notice was published.
THE INFORMATION REQUESTED
The schedule to the letter of 27th April, 2004, drew Coverfield's attention to several letters of objection received in relation to the proposed development. Copies of those letters were enclosed. Within the context of the information already supplied in what was called the Environmental Impact Assessment, Coverfield was requested to submit a written statement which would address, assess and comment upon each of the issues and concerns raised within the letters of representation in question. The schedule went on to set out non-exclusive points for consideration by Coverfield.
Amongst other things Coverfield was asked to deal with commercial synergy with the town centre; impact upon the town centre vitality and viability – within the context of the issues raised in the letters of representation; sustainable development – in response to the issues raised by the letters of representation and embellishment of
s. 2.9.1 of the EIS Overarching Document.
The schedule went on to draw attention to s. 2.3.5 of the EIS Overarching Document which outlined the hours of opening of the centre. It pointed out that the proposal referred to one late night opening but did not specify the day or times. Attention was also drawn to s. 2.4.15 of the Overarching Document which mentioned that signage for all units would be "Blade" type and it went on to comment on that.
The fourth paragraph of the schedule pointed out that the Town Council and Louth County Council had commissioned independent advice from Brady Shipman & Martin Consultants who had examined the proposal and requested that the following further information be sought:-
"Please give details of the catchment of the proposed centre and the expected number of visitors, in relation to the National Roads Network.
Please justify the scale of the overall development and the number of units with particular regard to the nature of factory outlet centres and the type of tenants proposed.
Please indicate the measures to be taken to ensure that the goods sold in the proposed development will not be in competition with the town centre in Dundalk.
The applicant has not provided the range of detail and analysis to substantiate the conclusions of the assessment of retail impact provided in s. 2.9.25 to 2.9.31 of the EIS. Please provide a revised response to the impacts on the town centres of Dundalk, Drogheda and Ardee with respect to the criteria in para. 65 of the Retail Planning Guidelines".
Coverfield was asked to substantiate the assertion made in s. 2.9.26 that the proposal would encourage international retail investment in the town centre of Dundalk. It was asked pursuant to s. 2.9.27 to consider and comment on the likely cumulative effects on town centres, of the application combined with other applications for factory outlets in the catchment, including the application at Dunleer (the applicant's) and at Banbridge, Co. Down. Coverfield was also asked to explain in greater detail and provide evidence for the assertion made in s. 2.9.28 that the proposed development would lead to an increase in demand for services in the town centre.
Coverfield was also asked to provide a full quantitative estimate of the retail impact on Dundalk setting out the level of displacement of comparison retail spending due to the proposed development. It was requested to provide a quantitative estimate of the retail impact on Drogheda and Ardee. Such an analysis was said to be required to fully address the issue of town centre vitality and viability. The Town Council noted that as per para. 65 of the Retail Planning Guidelines such an assessment should take account of recent developments or other outstanding planning permissions.
I should mention the fact that the applicant makes the case that this request of the Town Council is demonstrative of insufficient data having been supplied with the original planning application. However, he does not now suggest and has expressly disavowed any argument that the original application was invalid by virtue of this alleged shortcoming or that the planning permission granted on foot of it is invalid for that reason.
THE RESPONSE
On 24th June, 2004, Coverfield responded to the request for further information.
On the following day, Ann McDonnell, an official of the Town Council sent a memorandum to Mr. Ewbanks, an executive planner with that Council concerning the further information which had been submitted by Coverfield on 24th June, 2004. Her memorandum reads as follows:-
"Please indicate if the further information submitted on 24th June, 2004 in relation to the above mentioned application contains significant additional data. If so, the planning authority must require the applicant to publish notice of the new information and invite submissions or observations on the new information. (Article 35 of the Planning and Development Regulations, 2001 refers). You might also confirm if the further information needs to be referred to the sanitary services road engineers?"
On the same day Mr. Ewbanks responded to that memorandum in a manuscript note written on the bottom of it. He wrote:-
"Not significant additional data. Please pass a copy to roads and to John Kehoe, c/o Brady Shipman Martin (address such (sic) be on file). Can you request that both reply to this information as an urgent matter and request John Kehoe to email his reply to [email protected]. Thanks, TE 25/06/04."
This decision of Mr. Ewbanks is at the heart of these proceedings.
LATER EVENTS
The Town Council's advisors, Brady Shipman Martin, in July, 2004 furnished an independent assessment of the retail impact of the proposed factory outlet at Dundalk, Co. Louth.
That firm's main conclusion was that the estimated level of impact on retail centres in Co. Louth was acceptable. It furthermore concluded that the siting of the factory outlet centre at the proposed location was justifiable and was not in close proximity to the town centre and was not likely to directly compete with the comparison retail offering in the town centre. It also concluded that the size of the development was acceptable and was in keeping with the objectives of the County Retail Strategy.
On 14th July, 2004, planning and development consultants called Reid Associates attempted to make submissions in respect of the further information lodged by Coverfield on 24th July, 2004. Consistent with the view which it had already formed, the Town Council wrote to Reid Associates on 20th July, 2004, informing them that their submission could not be considered by the Town Council. The reason for that was that article 35 (1) of the Planning and Development Regulations, 2001 provides that a submission or observation may be made in relation to further information when the planning authority considers that the further information submitted contains significant additional data. The information submitted in this particular case did not, in the view of the Town Council, contain significant additional data and consequently Reid's submission could not be considered by it.
On 3rd August, 2004, the Town Council decided to grant planning permission.
On 27th August, 2004, the applicant lodged a full appeal to An Bord Pleanála against the decision to grant planning permission.
One month later, on 24th September, 2004, the notice of motion in the present case was issued with a return date of 1st November, 2004. On the application of Coverfield the case was transferred into the Commercial List and was heard by me on 18th and 23rd November, 2004.
MR. EWBANKS' DECISION (1)
The applicant contends that Mr. Ewbanks was wrong to conclude as he did in respect of the information supplied by Coverfield on 24th June, 2004. Contrary to his view, the applicant contends that there was significant additional data included in the response of Coverfield which should have triggered the necessity to take the steps specified in article 35 of the Regulations involving the publication of notice of the new information and the invitation of submissions or observations on it. Had that been done the applicant says he would have availed himself of the opportunity to do so. Because of Mr. Ewbanks allegedly wrongful decision the applicant was allegedly denied an opportunity of commenting upon this additional information.
THE STANDARD OF PROOF
This application is made pursuant to s. 50 of the Planning and Development Act, 2000. That section provides (insofar as it is relevant) that a person shall not question the validity of a decision of a planning authority on an application for permission otherwise than by way of an application for judicial review. The application must be made on notice and the High Court is enjoined not to grant leave unless it is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed and that the applicant has a substantial interest in the matter which is the subject of the application.
There are a significant number of decisions as to the meaning of the phrase "substantial grounds" in the context of an application such as this. The test formulated by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 at 130 has stood the test of time and has been followed on many occasions subsequently. She said:-
"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".
As I have already pointed out the applicant wishes to apply for leave to seek certiorari against the decision to grant planning permission of 3rd August, 2004, or alternatively the decision of the Town Council of 25th June, 2004, whereby, it decided that the further information submitted on behalf of Coverfield did not contain significant additional data. It is accepted by the applicant that the only basis upon which the decision to grant planning permission can be criticised is by reference to the decision of the 25th June, 2004. It is argued that if the decision of 25th June, 2004, is invalid then it must follow that the decision to grant permission is likewise invalid.
It was suggested on the part of the applicant that whilst the application for leave to apply for certiorari against the decision to grant permission undoubtedly fell within the ambit of s. 50, the application for leave to apply for certiorari in respect of the decision of 25th June, 2004, did not. It was said that it fell to be decided by reference to ordinary judicial review principles and that the threshold of arguable case identified by the Supreme Court in G. v. D.P.P. [1994] 1 I.R. 374 was all that had to be achieved.
I rejected that submission at an early stage in the hearing for reasons which I enunciated then. I took the view that it was quite clear that the whole thrust and ambition of these proceedings was to quash the decision of 3rd August, 2004. As the applicant was quite plainly questioning the validity of the decision to grant planning permission he could not avoid or evade meeting the necessary threshold of proof required under s. 50 of the Planning and Development Act, 2000. Indeed as I pointed out in giving my ruling on this topic, if the applicant were correct in his submission in this regard an absurd result could be achieved which would be entirely contrary to the letter and intent of s. 50.
Accordingly, as I ruled at the outset it is necessary for the applicant to demonstrate substantial grounds for contending that the decisions which he impugns in these proceedings are invalid or ought to be quashed.
As the only criticism which is made concerns the decision of Mr. Ewbanks of the 25th June, 2004, it is to that and the regulations under which it was made that I now turn.
THE REGULATIONS
Article 33 of the Planning and Development Regulations, 2001 insofar as it is relevant provides as follows:-
"33 (1) Where a planning authority acknowledges receipt of a planning application in accordance with Article 26, it may, by notice in writing, within eight weeks of receipt of the planning application require the applicant –
(a) to submit any further information (including any plans, maps or drawings, or any information as to any estate or interest in or right over land), which the authority considers necessary to enable it to deal with the application, or
(b) to produce any evidence which the authority may reasonably require to verify any particulars or information given in or in relation to the application."
Article 35 provides as follows:-
"35 (1) Where a planning authority receives further information or evidence following a request under Article 33, or revised plans, drawings or particulars following a request under Article 34, or otherwise receives further information, evidence, revised plans, drawings or particulars in relation to the application, and it considers that the information, evidence, revised plans, drawings or particulars received, as appropriate, contain significant additional data, including information in relation to effects on the environment, the authority shall –
(a) send notice and a copy of the further information, evidence, revised plans, drawings or particulars to any person or bodies specified in Article 28 as appropriate - …. and
(b) notify any person who made a submission or observation in relation to the planning application in accordance with Article 29 (1), as soon as may be following receipt of the further information or evidence or revised plans, drawings or particulars, as appropriate indicating…
(c) require the applicant to publish a notice in an approved newspaper, containing as a heading the name of the planning authority, marked 'Further Information' or 'Revised Plans', as appropriate and stating –
(i) the name of the applicant,
(ii) the location, townland or postal address of the land or structure to which the application relates (as may be appropriate),
(iii) the reference number of the application on the register,
(iv) that significant further information or revised plans, as appropriate, in relation to the application has or have been furnished to the planning authority, and is/or are available for inspection or purchase at a fee…
(v) a submission or observation in relation to the further information or revised plans may be made in writing to the planning authority on payment of the prescribed fee."
MR. EWBANKS DECISION (2)
It is clear that Mr. Ewbanks decision that the further information supplied by Coverfield did not contain significant additional data was made pursuant to Article 35 (1). The applicant accepts that in making that decision Mr. Ewbanks was exercising a discretion vested in the Town Council under the regulations. However, he contends that there was significant additional data in Coverfield's response to the request for further information and that the decision made by Mr. Ewbanks was made irrationally and unlawfully.
A consideration of articles 33 and 35 makes it clear that the mere fact that additional information is requested under article 33 does not mean that such information must be advertised and circulated to other parties under article 35. It is only when such information contains significant additional data that the procedure of advertisement etc. prescribed in article 35 applies.
The decision as to whether the information obtained on foot of an article 33 request contains significant additional data is one for the planning authority. "Significance" is primarily a matter of planning expertise to be decided upon by the planning authority.
This Court, in exercising its judicial review jurisdiction, is not a court of appeal on the merits from the exercise by a planning authority of its statutory function. I decline the invitation extended to me by counsel for the applicant to sit in the chair of Mr. Ewbanks and decide for myself whether or not the information supplied by Coverfield on foot of the article 33 request contained significant additional data. He contends that I would be in just as good a position as Mr. Ewbanks to make such a decision.
The acceptance of such an invitation would be a usurpation of the power of the Town Council. I remind myself of the observations of Lord Brightman in R. v. Chief Constable of North Wales Police ex parte Evans [1982] 1 WLR 1155 at pp. 1173 to 1174 where he said:-
"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.…[j]udicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made".
I quoted that statement in Flood v. Garda Síochána Complaints Board [1997] 3 IR 321 and I went on to say at p. 346:-
"Even if this Court would have reached a conclusion different from that of the respondent, it is not entitled on judicial review to substitute its view in that regard for the one formed by the entity charged by statute with forming the appropriate opinion. This limitation on the power of judicial review must be borne in mind so as to ensure that this Court does not trespass on matters in respect of which it has neither competence nor jurisdiction. I would not be justified in interfering with the decision of the respondent merely on the grounds that on the facts presented to it, I would have reached different conclusions. Once I am satisfied (as I am) that the appropriate procedures were followed and that the decision impugned is not irrational, the decision of the respondent must be upheld".
Those observations apply with equal force to this case and are supported by a recent dictum of Quirke J. in McEvoy v. Meath County Council [2003] I.R. 208 at 225 where he said:-
"In dealing with applications of this kind for judicial review of decisions of administrative and other bodies, the court is not concerned with the merits of the decision. It is concerned with the manner in which the decision-maker has exercised the power, i.e. the legality of the decision.
It is no part of my function in these proceedings to make any kind of determination in relation to conflicting views expressed by expert or other witnesses of the meaning or effect of the guidelines or as to their appropriate application by means of a development plan or otherwise. I am required to discover whether the respondent, when the making and adopting the Meath plan, informed itself fully and gave reasonable consideration to the guidelines with a view to accommodating the objectives and policies contained in them".
The task of assessing whether "significant additional data" is contained in a response involves the exercise of planning expertise and judgment which this Court does not have and is precisely the kind of question which falls within the competence of an expert decision-maker. This Court can only interfere with such a decision within the strict limitations of its judicial review jurisdiction which I have already outlined.
The net question which falls for consideration at this stage is therefore whether or not the applicant has demonstrated substantial grounds in support of its contention that the decision of the Town Council of 25th June, 2004, was irrational.
THE TEST OF IRRATIONALITY
In O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, Finlay C.J. at p. 70 said this on the topic of irrationality:-
"The question arising on this issue falls to be decided in accordance with the principles laid down by this Court in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 which are set out in the judgment of Henchy J. in that case, with which in respect of the legal principles applicable, all the other members of theCcourt specifically agreed.
In dealing with the circumstances under which the Court could intervene to quash the decision of an administrative officer or tribunal on grounds of unreasonableness or irrationality, Henchy J. in that judgment set out a number of such circumstances in different terms.
They are:-
'1. It is fundamentally at variance with reason and common sense.
2. It is indefensible for being in the teeth of plain reason and common sense.
1. Because the court is satisfied that the decision-maker has breached his obligation whereby he 'must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision'.
I am satisfied that these three different methods of expressing the circumstances under which a court can intervene are not in any way inconsistent one with the other, but rather complement each other and constitute not only a correct but a comprehensive description of the circumstances under which a court may, according to our law, intervene in such a decision on the basis of unreasonableness or irrationality.
In setting out these principles, Henchy J. in the course of that judgment quoted with approval the statement of Lord Greene M.R. in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223 where, at p. 230, he stated:-
'It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can intervene…; but to prove a case of that kind would require something overwhelming'."
The applicant places heavy reliance upon the more recent decision of the Supreme Court in the case of White v. Dublin City Council [2004] 2 ILRM 509. He contends that both factually and legally the present case is similar in many respects to Whites and that the reasoning of the Supreme Court in it has equal application to the facts of the instant case.
WHITE'S CASE
The applicants and the notice party in White's case owned adjoining houses situated adjacent to the Phoenix Park. The notice party sought planning permission to build a new two storey house on his land. The applicant's rear garden lay to the east of the site of the proposed new house. The initial planning application was made in June, 1999 and the required public notice was given. The applicants, having consulted the drawings for the proposed new house and received advice from an architect, were satisfied that they would not be overlooked and therefore did not object to the application. Permission was refused for this development by the planning authority. The principal reason for so doing was because of the height and size of the proposed development.
A new application was lodged with the planning authority about six weeks after the refusal. The notice party sought planning permission in terms that were substantially similar to the first application. A meeting took place on site which was attended by the notice party, his advisors and some planning officials. He was invited to submit revised plans or drawings modifying the proposed development pursuant to article 35 of the Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994). The substance of the meeting was that the procedure under article 35 would be employed so that the notice party would modify the application in such a way as to be acceptable to the planning authority and that permission would be granted without appearing to conflict with the earlier refusal. Article 35 of those regulations did not require the publication of a fresh notice. However, article 17 (3) empowered a local authority where it considered it necessary to do so to require an applicant to give further notice. The local authority decided not to require the publication of a further notice in respect of the modified plans because in the view of the relevant planning officer the degree of overlooking arising out of the modified plans was acceptable. The result of the modifications however had the effect of re-orientating the windows of the development by 90° so that the applicant's property was now overlooked. Revised drawings were submitted on behalf of the notice party and the decision to grant planning permission was made. The notice party informed the applicant that he had obtained planning permission and a few days later the applicant inspected the file to learn for the first time that modifications had been made to the drawings. The planning permission was quashed in the High Court. On appeal to the Supreme Court on this aspect of the case the leading judgment was delivered by Fennelly J.
In analysing the decision which was made by a Mr. Rose (who was a senior executive planner with the planning authority) to deal with the matter under the Article 35 procedure (which did not require re-advertisement) rather than by exercising the power under Article 17(3) to require new public notices Fennelly J. at pp. 517 to 518 said this:-
"Mr. Rose, in his internal written communication of January 25, 2000 to Mr. McDonnell made no reference to whether a new public notice should be required. He simply did not mention the matter. In his evidence, in the High Court, he said that it was a matter 'for the judgment of the planning authority' whether a new public notice was necessary. He did not 'consider it necessary to re-advertise the proposed development'. He explained his reason for this conclusion very fully. It is sufficient, for the purposes of this appeal, to say that, on the central issue of 'overlooking', he did not consider the change to be significant. He laid stress on the village location of the development. There would be no greater degree of overlooking than might be expected in a suburban site. He concluded that the particular level of overlooking was acceptable."
The White's case was that the development envisaged in the original application would have contained no windows overlooking their property. The planning authority required that the application be modified so as to orientate windows in an easterly direction which indeed would overlook their property. They were unaware of the modifications which had the effect of re-orientating the windows so as to overlook their property because that modification had never been advertised.
In dealing with the legal issues Fennelly J. reiterated the test of irrationality as having been 'propounded authoritatively' in the judgment of Henchy J. in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 which dictum was, he said applied by Finlay C.J. in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237 "with particular force to planning decisions".
He went on to say at pp. 523 to 524:-
"I would certainly be prepared to accept that the court should be extremely slow to interfere with the decisions of experts in planning matters. If the decision explained by Mr. Rose were a substantive decision of the planning authority or of An Bord Pleanála to grant planning permission in spite of the degree of overlooking of the Whites property, in circumstances where the Whites had been on notice and whether or not they had objected, it would have been extremely difficult if not impossible to quarrel with it, still less judicially review it.
I believe, however, that Mr. Rose's reasoning was flawed. He was, in reality, acting as if he was deciding whether permission should be granted. In considering whether the modified plans should be re-notified, he should rather have asked himself, in the circumstances of the application before the planning authority, whether some members of the public might reasonably wish to object to the plans as modified".
Later he said at p. 524:-
"I do not say that the planning authority's decision was irrational in the broad sense. Mr. Rose's planning expertise is undoubted. I consider rather that Mr. Rose, on behalf of the planning authority, excluded from his consideration the likelihood that the Whites would want to object and that, if they did, the planning authority would have had to consider the objection. This was, no doubt, an understandable oversight on the part of a person exercising an expert planning function. Nonetheless, I am satisfied, given the very particular circumstances of this case, that he did not give proper consideration to the radical effect of the required modifications. In that sense, it was unreasonable and irrational. The planning authority created a dilemma for itself by requiring modifications in order to differentiate the second application sufficiently to justify a departure from the decision to refuse, but which would be, nonetheless, not sufficiently different to warrant a new public notice. This is a very fine line to tread. This factor is special to this case. It would not arise in every case of Article 35 modifications. Article 35 accords a substantial discretion to a planning authority and clearly envisages a wide range of cases in which modifications to a planning application should not require new public notices but the radical nature of the changes to the application in this case make it exceptional."
It is quite clear that Whites case does not depart from the earlier decisions of the Supreme Court in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237. It does not create a new species of legal entitlement for this Court to interfere with decisions of inferior bodies or tribunals. Rather it applies the well established principles to the facts of the case. The decision of Mr. Rose was not deemed to be irrational in the broad sense. Rather, on what was described as the very particular circumstances of the case, it was unreasonable and irrational because he did not ask himself the relevant question and so "excluded from his consideration the likelihood that the Whites would want to object." His failure to ask himself and therefore to answer the correct question made his decision irrational under the O'Keeffe v. An Bord Pleanála rubric.
THE PRESENT CASE
In this case (unlike White's case) there can be no doubt but that the question posed to Mr. Ewbanks was the correct one. Ms. McDonnell's memorandum of 25th June, 2004, could not have been clearer. She asked him to decide if the further information submitted the previous day in relation to the application contained significant additional data. Not merely that, but she went on to point out that if that were so then the planning authority must require Coverfield to publish notice of the new information and invite submissions or observations on it. She referred specifically to article 35 of the regulations. Faced with the dilemma of the correct question having been asked of Mr. Ewbanks, counsel on behalf of the applicant submitted that there was evidence that Mr. Ewbanks misunderstood it and therefore although the right question was posed to him he asked the wrong question of himself.
Incorrect self-interrogation can be a species of unreasonableness or irrationality. That was so even before the decision of the Supreme Court in White's case. But where is the evidence of it here?
It is said to be found in the replying affidavit of Mr. Ewbanks sworn on 1st November, 2004. I do not propose to reproduce the affidavit in full but the following are pertinent averments from it.
At para. 14 Mr. Ewbanks said:-
"14. The information sought by way of a notice for further information was for the purpose of supplementing and clarifying information received with the notice party's application and information in the possession of the respondent herein. I say and believe that the requirement of the respondent of the notice party to submit further information or evidence was reasonably necessary to enable the respondent to consider the notice party's application for planning permission.
15. I beg to refer, in particular, to the belief averred from paragraph 12 of the affidavit of Christopher McGarry wherein it is contended that the response of the notice party to the notice for further information constituted a body of significant additional data. I say and believe that the notice party's response did not contain significant additional data. In the circumstances that the respondent had determined that the notice party's response did not contain significant additional data there is no statutory requirement on the respondent to inform the applicant of the receipt of additional information or to provide the applicant with the opportunity of commenting on the same.
16. I say and believe that all points of further information which were requested referred back to the notice party's application, its drawings, EIS and other particulars. I beg to refer to the letters of representation received from the applicant and RPS McHugh on behalf of the applicant contained (sic) no issue of concern or objection which was reflected in the further information request. I further say and believe that the notice party's further information reply elaborated and expanded upon information already present within the application and information contained within the retail study of County Louth and as such did not constitute significant additional data. I also say and believe that as none of the further information requested, or the notice party's reply related to any of the issues of concern and objection raised in the said letters of representation submitted by and on behalf of the applicant, the notice party's reply was not of significance to the applicant."
I am unable to glean from this replying affidavit of Mr. Ewbanks any support for the notion that he had misunderstood the question posed to him in Ms. McDonnell's memorandum of 25th June, 2004, or that he asked himself the wrong question in respect thereof.
I am therefore not satisfied that the applicant has made out substantial grounds for contending that the decision of 25th June, 2004, is irrational by reference to Mr. Ewbanks failing to ask himself the correct question.
There remains the question of whether the applicant has demonstrated substantial grounds for interfering with Mr. Ewbanks decision on the basis that it is not supported by reference to the information which was before him. In other words did he, on the basis of the information placed before him, come to a conclusion in respect of which there are substantial grounds for believing was fundamentally at variance with reason and common sense or was indefensible for being in the teeth of plain reason and common sense or in respect of which he breached his obligation not to flagrantly reject or disregard fundamental reason or common sense in reaching the decision?
I am satisfied that the applicant has failed to show substantial grounds to lead to an affirmative answer to this question.
The context in which the additional information was sought by the Town Council must be considered. Retail planning guidelines existed at the time when Coverfield made its application. Those guidelines deal, at paras.85 to 88, with factory outlet centres. Paragraph 88 acknowledges that the market potential is such that only a limited number of factory outlet centres are sustainable within Ireland. They furthermore indicate that applications for permission should be considered in accordance with para.65 of the guidelines. That paragraph states that the onus is on the applicant to demonstrate compliance with the development plan, and requires the applicant to address six criteria. There is no requirement under the guidelines to submit a document called a "Retail Impact Assessment".
The purpose of the guidelines is set out at para.1 thereof which states:-
"These retail planning guidelines provide a comprehensive framework to guide both local authorities in preparing development plans and assessing applications for planning permission and, retailers and developers in formulating development proposals."
Paragraph 57 of the guidelines under the heading of "Assessing New Developments – General Principles" states:-
"The intention of these guidelines is that development plans should provide the background guidance and context against which the retail sector and developers can prepare proposals with a degree of certainty as to the way in which any particular scheme will be judged. Where an application for development complies with the policies and proposals of a development plan in all material respects, it should not be necessary for the applicant to provide additional supporting background studies. However, the onus is on an applicant to demonstrate convincingly that his/her proposal does comply closely with the development plan. Where there is doubt on any aspect of a planning application, local authorities should require a detailed justification related to the matter which is questionable. All applications for retail developments should be assessed against the principles set out in this section of the guideline".
The question of the location of a factory outlet had been addressed in considerable detail both in the Louth County development plan and the Dundalk and Environs development plan, 2003/2009. It is clear that the location of a factory outlet centre in County Louth had been the subject of a number of planning applications over a period of five or six years and a detailed study had been done at the behest of the County Council in this regard. That study had identified the northern outskirts of Dundalk as the preferred location for such a centre. The county development plan demonstrates that a retail study for County Louth had been produced in accordance with the retail planning guidelines and had recommended a factory outlet centre should be located in County Louth. The Dundalk and Environs development plan of December, 2003 stated:-
"The retail study recommends that the most appropriate location is one which relates to the existing built up area of the town, preferably within the urban area of Dundalk. One which is also far enough away from the existing town centre so that it does not directly compete, but with good public transport links to the town centre."
It went on to say that:-
"If there is no brownfield site suitable for development, it is recommended that the council should adopt an area of search for a factory outlet centre to the north of Dundalk urban area. The development will be subject to the strict conditions set out within the development plan, policy and retail strategy of County Louth."
The location for the development in suit satisfies these criteria. The environmental impact statement demonstrated the absence of any suitable brownfield site and the compliance of the present site with the criteria set out in the retail study and the Dundalk and Environs development plan. Coverfield was not obliged or required to submit a retail impact study or assessment in the circumstances.
The Overarching EIS Document contained detailed information in respect of retail impact. It addressed the requirements of the retail planning guidelines. All of the further information which was sought was in respect of matters referred to in the EIS Overarching Document. The information submitted on foot of it is in direct response to the questions posed.
Considering the information furnished in the context of the request made and the overall planning background I am of opinion that the applicant has not demonstrated substantial grounds for contending that there was no reasonable or rational basis upon which Mr. Ewbanks could come to the conclusion which he did.
This is sufficient to dispose of the present application. It is however I think desirable that I should express my view on one of the two other grounds which were raised in opposition to this application.
ADEQUATE ALTERNATIVE REMEDY
The applicant has an entitlement to appeal the decision to grant planning permission on 3rd August, 2004, to An Bord Pleanála. He has exercised that right. No steps have been taken by him to seek to stay that appeal.
There can be little doubt but that the court is entitled on an application for leave to apply for judicial review to take into consideration the existence of an adequate alternative remedy. In G. v. D.P.P. [1994] 1 I.R. 374, Finlay C.J. at pp. 377 to 378 said:-
"It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-…. (e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure."
That decision was given in the context of ordinary or, as it sometimes called, non-statutory judicial review. The provisions of s. 50 of the Planning and Development Act, 2000 impose more stringent procedural requirements than those envisaged in G. v. D.P.P. The requirement therefore that an applicant demonstrate that judicial review is the only or a more appropriate remedy than another one available applies with at least equal if not more force to a s. 50 application. Support for that approach may also be found in s. 50 (3) of the Act where it provides:-
"The Board or any party to an appeal or referral, may, at any time after the bringing of an application for leave to apply for judicial review of a decision of the planning authority, apply to the High Court to stay the proceedings pending the making of a decision by the Board in relation to the appeal or referral concerned, and the Court may, where it considers that the matter is within the jurisdiction of the Board, make an order on such terms as it thinks fit."
In response to Coverfield's argument that in the present case not merely was there an adequate alternative remedy, but it had actually been invoked by the applicant, counsel sought to draw a distinction between issues of law appropriate for judicial review and issues of planning merit for appeal to An Bord Pleanála. I do not think that that distinction is one which is consistent with the jurisprudence which has been built up on this topic. Furthermore, I think it is fair to say that many of the grounds of appeal in objecting to the planning permission in the present case relate to the legal validity of it.
The test which appears to emerge from the decided cases is not one which involves the creation of the somewhat artificial distinction between issues of law appropriate for judicial law and issues of planning merit for appeal to An Bord Pleanála. Rather it is - what is the more appropriate remedy for the applicant's complaints or to put it in the converse fashion will the applicant suffer any injustice if left to his remedy before An Bord Pleanála?
In The State (Abenglen) v. Dublin Corporation [1984] I.R. 381, O'Higgins C.J. at 393 said:-
"The question immediately arises as to the effect of the assistance of a right of appeal or an alternative remedy on the exercise of the courts discretion. It is well established that the existence of a right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all of the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy and, of course, the conduct of the applicant."
In his judgment of the same case Henchy J. at pp. 403 to 404 said:-
"The second reason why I would refuse to quash the respondent's decision, even if it were made in excess of jurisdiction, is that the correct procedure for the correction of the legal errors complained of lay in an appeal to An Bord Pleanála (the Board). The statutory scheme for making applications for development permission to the relevant planning authority provides for the giving of prior notice, as prescribed, to the public; compliance with the requirements of the regulations; allowing interested parties to make representations by way of objection or otherwise; requiring the planning authority to deal with the application within the given time and according to prescribed standards; requiring that the decision shall contain prescribed essentials; allowing an appeal from the planning authority's decision to the Board, who may hold oral hearings, who are not bound to comply with the development plan… and who may refer a question of law to the High Court… and the removal of the Board's decision from the reach of certiorari or other legal proceedings questioning its validity unless such proceedings were brought within two months of the giving of the Board's decision… Those and other features of the Acts envisage the operation of a self-contained administrative code, with resort to the courts only in exceptional circumstances.
The present case does not seem to me to exhibit the exceptional circumstances for which the intervention of the Courts was intended. On the contrary, certiorari proceedings would appear to be singularly inapt for the resolution of the questions raised by Abenglen. Certiorari proceedings, based as they are on affidavit evidence, can result only in a stark and comparatively un-illuminating decision to quash or not to quash; whereas an appeal to the Board would have allowed all relevant matters to be explored (if necessary, in an oral hearing, with the aid of experts in the field of planning), thus allowing an authoritative exposition to have been given of the appropriate practice and procedure, aided, if necessary, by reference to the High Court on a question of law."
That approach was followed by Barron J. in McGoldrick v. An Bord Pleanála
[1997] 1 I.R. 497 at p. 509 where he said:-
"The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedies. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the question raised on principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities referred to shows that this in effect, the real consideration."
In my view the applicant has in his right of appeal to An Bord Pleanála not merely an adequate but a preferable remedy to that which is sought here. I do not perceive that these proceedings display any of the exceptional characteristics which would justify the court in intervening in the self-contained planning process. Thus were it necessary I would be inclined to refuse this application on the basis of the existence of an adequate alternative remedy. Given that the applicant has availed himself of that right my inclination to refuse would be all the stronger.
As I have already concluded that no substantial grounds have been shown for arguing in favour of the irrationality or unreasonableness of the decision of 25th June, 2004 it is not necessary for me to decide this case on the basis of the existence of an alternative and adequate remedy to judicial review.
The third basis of objection made by counsel for Coverfield related to the conduct of the applicant in respect of these proceedings and the information placed before the court by his affidavit evidence. In the circumstances it is not necessary for me to make any findings or express any views on this topic.
CONCLUSIONS
For the reasons already stated I am not satisfied that the applicant has demonstrated the substantial grounds required under s. 50 in order for the court to grant leave to bring these judicial review proceedings. Leave to bring the proceedings is refused and the application is dismissed.
