Judgment of Mr Justice Finnegan delivered on the 21st day of July 2011
By order made on the 18th January 2008 the appellant’s application for orders by way of judicial review was refused. By the said order the High Court certified that its decision to refuse the relief sought by the appellant involves points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court on the following points:-
BACKGROUND
On the 21st January 2005 An Bord Pleanála (“the Board”) granted planning permission to Arklow Urban District Council (“the UDC”) for the development of a waste water treatment works together with associated sewers, roads and an outfall pipe at Seabank, Arklow, Co. Wicklow. The first named notice party Wicklow County Council (“the County Council”) is the planning authority to whom the original application for planning permission was made, the development in question relating to lands largely situate outside the functional area of the UDC and within the functional area of the County Council. Arklow Holidays Limited (“Arklow”) is the occupier of lands adjoining the site of the proposed development upon which it operates a mobile home park which attracts some one thousand three hundred visitors per annum. The visitors to the mobile home park are accustomed to use the lands the subject matter of the planning permission and the beach and dunes through which it is proposed to lay the outfall pipe.
The County Council decided to grant planning permission Reference No. 23/99 on the 13th July 1999.
Arklow challenged that grant of planning permission in proceedings entitled the High Court 1999 359JR Between Arklow Holidays Limited Applicant and Wicklow County Council and Arklow Urban District Council Respondents (“the 1999 application”). The County Council and the UDC did not oppose the grant of leave and by order of the 10th November 2000 leave was granted to apply for judicial review on an amended statement of grounds. The hearing of the application was much delayed due to protracted disputes regarding discovery. The matter ultimately came on for hearing over twenty one days between the 29th April and the 9th July 2003. In a judgment delivered on the 15th May 2003 Arklow were refused leave to amend further the statement of grounds to include an allegation of bias against the County Council. Thereafter the hearing continued. For the reasons set out in a further judgment delivered on the 15th October 2003 the application was refused. Thereafter Arklow applied for an appeal certificate and for the reasons set out in a third judgment delivered on the 4th February 2004 the certificate was refused bringing the 1999 application to a conclusion.
Thereafter an appeal to An Bord Pleanála was pursued and by decision of the Board of 21st January 2005 planning permission was granted to the UDC for the development. By notice of motion dated the 16th March 2005 Arklow commenced the present application (“the 2005 application”) seeking leave to apply for judicial review of the decision of the Board to grant planning permission for the proposed development. Pursuant to section 50 of the Planning and Development Act 2000 (“the 2000 Act”) Arklow was required to establish that it has substantial grounds for contending that the decision of the Board is invalid in order that it may be granted leave to challenge the decision. The High Court (Clarke J.) delivered five judgments in all on the leave application and the substantive application.
1. Judgment delivered 18th January 2006
The statement of grounds raises some thirty four issues. These were summarised under six headings in the judgment:-
1. That there was an improper abdication by the Board of its role under the Planning Acts in accordance with domestic law, or alternatively no proper assessment by the Board under EU law, in relation to the manner in which the Board determined that the outfall pipe from the plant to the sea was to be situated.
2. That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have regard, as 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.
4. As an alternative to Point 2 it is said that if the Waste Management Act 1996 does not apply to the circumstances of the case then Ireland has failed to properly transpose Council Directive 75/442/EC (as amended by Council Directive 91/156/EC).
5. That the UDC did not have a sufficient interest in the property, which is the subject of the planning application, to entitle it to make the application.
6. That the grant of planning permission is invalid by virtue of the fact that part of the works encompassed within the project are to be carried out on the foreshore in respect of which, it is said, the Board has no jurisdiction. It is contended that works on the foreshore are within the exclusive jurisdiction of the relevant Minister, that is the Minister for the Marine.
In its Notice of Opposition the UDC placed reliance on a contention that Arklow are precluded from raising most of the foregoing grounds by virtue of the fact that those grounds could have been, but were not, raised in the 1999 application.
The judgment dealt in turn with the grounds advanced under the foregoing headings and determined in respect of each whether Arklow had established substantial grounds for contending that the decision of the Board is invalid in order that leave to challenge the decision might be granted. The learned trial judge was not satisfied that substantial grounds were disclosed in respect of the grounds at 1, 4 and 6 above, while in respect of the remaining grounds at 2, 3 and 5 he was so satisfied. In relation to the UDC’s opposition to the grant of leave on the basis that the grounds sought to be relied upon could have been relied upon on the 1999 application and that in consequence Arklow is precluded from raising the same on the 2005 application, having regard to the established jurisprudence of the courts (see for example AA v Medical Council [2003] 4 IR 302) the learned High Court judge held as follows:-
“10.2 However the precise application of such principles in the field of public law challenges to the validity of decisions (and in particular decisions made in what can be and often is a two part process) remains, in my view, open to argument. There can be little doubt but that, to a significant extent, the three issues upon which I am satisfied substantial grounds have been made out would have been available to Arklow at the stage of their original challenge to the grant of permission by the County Council.
10.3 The fact that the EIS did not extend to the entirety of the project applied equally at that stage. It is possible that there may be some distinction between the additional consideration given by the County Council to the assessment of the environmental impact of those aspects of the project not encompassed within the EIS compared with the consideration given by the Board to the same matter. However there would appear to be a significant overlap. The issues concerning the sufficiency of the interest of the Urban District Council in the lands and the proper interpretation of the Waste Management Act 1996 would appear to apply equally to the earlier application. In those circumstances it seems to me that it will be necessary for Arklow to establish that a distinction can and should be made between the types of cases in which the principles to which I have referred were established and public law challenges of the type with which the court is concerned in this case. However in the absence of any clear authority as to the proper approach which the court should take in a challenge of this type, where a contention is made that the applicant is precluded from raising the issue because he could have raised the same issue in a previous challenge to another aspect of the same process, I am not prepared, at this stage, to hold that Arklow has not established substantial grounds.”
2. Judgment delivered 29th March 2006
Following the judgment of the 18th January 2006 Arklow sought a certificate to enable it to appeal to the Supreme Court in respect of the refusal of leave on the grounds at 1, 4 and 6 for the reasons set out in the judgment. The certificate sought was refused on the first two grounds on the basis that they did not raise a point of law of exceptional public importance and on the third ground that it was not in the public interest to certify.
3. Judgment delivered 8th September 2006
In relation to the last mentioned ground, ground 6, Arklow sought a certificate to enable an appeal to be brought to the Supreme Court in respect of the refusal to grant a certificate of appeal. The learned High Court judge held that he did not have jurisdiction to grant a certificate in respect of a point of law arising on a certification hearing.
4. Judgment delivered 5th October 2007
In this judgment the learned trial judge recorded that at the substantive hearing, of those opposing the application, only the Board and the UDC were represented notwithstanding that the County Council and the State Notice Parties had been represented at the leave hearing. At the substantive hearing the County Council indicated that it did not have anything to add to the proceedings and was prepared to abide by the result. By reason of the refusal of leave in relation to some of the grounds advanced at the leave application the State notice parties were no longer necessary or proper parties to the substantive hearing. The substantive hearing accordingly proceeded on the basis of the application for judicial review being opposed by the Board and the UDC. The court proceeded to consider by way of preliminary objection whether Arklow are precluded, having regard to the rule in Henderson v Henderson, from raising the three issues in respect of which leave was granted. The learned trial judge held that, subject to the exercise of any such discretion as identified by Hardiman J. in AA v the Medical Council in favour of Arklow, all of the points sought to be raised are caught by the rule in Henderson v Henderson and cannot be litigated in these proceedings. Further he held that there was no basis for exercising any discretion which might arise in favour of Arklow. The application for judicial review was refused. It will be necessary to consider this judgment in greater detail.
5. Judgment delivered 11th January 2008
Arklow sought a certificate pursuant to the Planning and Development Act 2000 section 50(4)(f)(i) that the decision of the 5th October 2007 involved a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The learned trial judge, being satisfied that the decision involved a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court granted a certificate in the terms sought and which are set out above.
Judgment delivered 5th October 2007
Arklow was granted leave in respect of three groups of grounds identified by the learned trial judge as follows:-
“2 That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have regard, as it 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.”
A further issue arose out of the Statement of Opposition of the UDC which raised a preliminary objection in the following terms:-
“The applicant is estopped from raising all the points and grounds upon which leave has been granted and which were and/or could have been raised in previous Judicial Review proceedings entitled Arklow Holidays Limited Applicant v Wicklow County County Council and Arklow Urban District Council Respondents Record No. 1999 No. 358JR and the related proceedings of Jeremy Hynes and Brendan Hynes v Wicklow County County Council and Arklow Urban District Council, Record No.1999 No. 359JR. In those previous Judicial Review proceedings, which also involved an unsuccessful application for leave to appeal, the legal issues raised included the alleged failure to comply with the mandatory requirements of Articles 19 and 23.1 of the Planning Regulations 1994, failure to comply with the requirements of the EU Directive and the EIA Regulations giving effect to the Directive, the failure of Wicklow County Council as planning authority to carry out an adequate environmental impact assessment, irrationality of the decision of the planning authority, inadequacy of the EIS, the requirements under the Waste Management Act 1996 and the ownership of the property.”
In short the contention of the UDC was that Arklow are estopped from raising any of the three grounds upon which they had been granted leave on the basis that each of the same would have been equally applicable to the original decision of the County Council to grant planning permission. None of the grounds were raised in the 1999 application, the challenge to the original decision to grant planning permission. Therefore, it was argued, that having regard to the rule in Henderson v Henderson, Arklow are precluded from raising those issues in the 2005 application. The learned trial judge determined to deal firstly with the question of whether Arklow are precluded from raising any of the three issues on the 2005 application.
The 1999 application was commenced on the 10th September 1999 and raised a significant number of legal issues which, it was alleged, rendered the decision of the County Council to grant planning permission invalid. In the course of the application Arklow were given leave to amend their grounding statement to enable the reliefs claimed to be fully set out and was this done on the 13th November 2000. On the 15th October 2003 the High Court (Murphy J.) refused Arklow all the reliefs sought. On the 3rd February 2004 the High Court (Murphy J.) refused an application for a certificate to enable an appeal to be brought to the Supreme Court. None of the grounds upon which leave was given on the 2005 application were raised in the first application.
The learned trial judge considered each of the three grounds upon which leave was granted for the purpose of determining whether they could have been raised on the 1999 application. The learned trial judge made findings in respect of each of the three grounds as follows.
Ground 2.
That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have regard, as it said it did, to environmental questions, those matters being properly ones for the Environmental Protection Agency (“EPA”).
Central to this ground is whether the proposed development before the Board was one which required a licence under the Waste Management Act 1996. If a licence is required, Arklow submit that it was wrong of the Board to consider environmental pollution questions in determining whether or not to grant a planning permission, or to consider the conditions to be imposed on a grant of permission, these matters falling within the jurisdiction of the EPA. The learned trial judge found that this ground applied equally to the decision of the County Council, as the County Council had engaged in the same exercise to that conducted by the Board and had included in its consideration an assessment of environmental pollution issues. If it was impermissible for the Board to have regard to environmental pollution issues then it follows that it was equally impermissible for the County Council to do so. If the permission granted by the Board is invalid on these grounds then the original decision of the County Council was also invalid on the same grounds. Accordingly this ground could have been agitated in the 1999 application.
Ground 3
That the Board failed to carry out a proper environmental impact assessment (“EIA”) in relation to the whole project.
The EIS submitted on behalf of the UDC addressed itself only to the waste water treatment plant and some but not all of the ancillary works that would be necessary to bring the plant into operation. Arklow submits that the EIA carried out by the Board does not go to any significant or adequate extent in scope beyond the EIS. It is therefore argued that the Board failed to carry out an appropriate EIA in relation to some of the project and that the permission granted by the Board is accordingly flawed. The learned High Court judge in his judgment of the 18th January 2006 detailed the manner in which the Board dealt with the application; the inspector, and therefore the Board, noted that the EIS did not deal with the rising mains and pumping stations, but that these were not located in an environmentally sensitive area and were unlikely to have a significant environmental impact and therefore did not consider that the Board should require a new EIS. As in ground 2 if the Board were wrong then so too were the County Council in dealing with the original planning application. The same EIS was before both the Board and the County Council. The County Council did not carry out a wider assessment than that carried out by the Board. Accordingly the same argument could have been made in the 1999 application.
Ground 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 Urban District Council required to connect the waste water treatment plant to the town of Arklow. It exercised compulsory purchase powers to acquire the lands on which the plant itself was to be constructed. The compulsory purchase powers had been exercised only to the point of obtaining a confirmation of the entitlement to compulsorily acquire, and no notice to treat had been served. Further no compulsory purchase powers had been exercised in relation to obtaining the necessary interests in land between the town and the plant to enable that aspect of the project to be completed. However exactly the same situation pertained at the time of the 1999 application as pertained when the Board gave its decision. All the points arising under this heading were equally available to challenge the decision of the County Council.
For the foregoing reasons the learned High Court judge was satisfied that each of the issues raised under the three headings above was equally capable of having been raised in respect of the original planning permission process conducted by the County Council.
Consideration of the Rule in Henderson v Henderson in the judgment delivered 5th October 2007
Having determined that each of the issues arising on the leave granted to Arklow on the 2005 application could have been raised on the 1999 application the learned High Court judge went on to consider the rule in Henderson v Henderson and its application to the facts of the application.
In the judgment of 18th January 2006 on the leave application the learned High Court judge noted in relation to the rule:
“The precise application of such principles in the field of public law challenges to the validity of decisions (and in particular decisions made in what is often a two-part process) remains, in my view, open to argument… in those circumstances it seems to me that it would be necessary for Arklow to establish that a distinction can and should be made between the types of cases in which the principles to which I have referred were established and public law challenges of the type which the court is concerned with in this case.”
Being satisfied that the rule had potential application to the facts of this case he went on to consider in this judgment two possible bases for the non-application of the rule:-
As to the first, the learned trial judge held the rule applies to public law challenges: AA v The Medical Council, Mitchell v Ireland [2005] IEHC 102, Akram v Minister for Justice [2004] 1 IR 452. The planning code evinces a clear intention that challenges to decisions should be dealt with in a timely fashion. There is a significant public interest involved in bringing challenges to planning decisions to early finality. The logic identified in AA v The Medical Council applies with at least equal force to planning challenges and accordingly the rule applies to such challenges. Counsel for Arklow touched upon an EU dimension to this issue. It was submitted 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 and that that obligation applies to the courts. Accordingly 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. The learned High Court judge dealt with this submission as follows:-
In dealing with the second matter, the exercise of the courts discretion, the learned High Court judge noted that no real explanation had been given as to why the points were not raised in the 1991 application. There was no basis for the exercise of the court’s discretion. Accordingly he concluded that Arklow by virtue of the rule in Henderson v Henderson is precluded from arguing any of the issues in respect of which leave was granted. The application was dismissed.
SUBMISSIONS OF THE APPELLANT
The Appellant’s submissions can be considered under 6 headings identified by the appellant.
1. Henderson v Henderson in a public law context.
Estoppel cannot be used as a means of giving an administrative body jurisdiction which it does not possess: Green Dale Building Company v Dublin County Council [1977] I.R. 256 where Henchy J.said:-
“The general rule is that a plea of estoppel of any kind cannot prevail as an answer to a well-founded claim that something done by a public body in breach of a statutory duty or limitation of function is ultra vires.”
See also Ashbourne Holdings Limited v An Bord Pleanála, unreported, Supreme Court, 10th March 2003 Hardiman J. If the Waste Management Act 1996 applies to the development, environmental questions are matters for the Environmental Protection Agency and not An Bord Pleanála and An Bord Pleanála acted ultra vires in considering environmental matters and imposing conditions in relation to the same.
In decisions subsequent to Dublin City Council v Tallaght Block Company Limited [1982] I.L.R.M. 534 the courts have displayed a reluctance to incorporate private law principles of estoppel into the public law sphere: Illium Properties Limited v An Bord Pleanála and Dublin City Council, unreported, the High Court 16th December 2004 Smith J. where passages from South Bucks District Council v Flanagan & Another [2002] 1 WLR 2601 were cited with approval. In Fingal County Council v William P. Keeling & Sons Limited [2005] 2 I.R. 108 this court declined to follow Tallaght Block.
2. The authorities relied upon by the learned High Court judge in applying the rule in Henderson v Henderson do not support the application of the rule in a public law context.
The learned High Court judge relied upon AA v The Medical Council [2003] 4 IR 302, Mitchell v Ireland [2007] IESC 11 and Akram v The Minister for Justice [2004] 1 IR 452 in coming to a conclusion that the rule in Henderson v Henderson applies in a public law context. He went on to hold that the rule applied in planning law to a first and timely challenge to a decision of An Bord Pleanála. AA v The Medical Council concerned an inquiry under the Medical Practitioners Act 1978 a very different process to that under the planning code which envisages much wider public participation. Further the planning process is a two-stage process with public involvement at both stages. If the Board on an appeal repeats an error of law made by the Planning Authority, to challenge the Board’s decision within time cannot be an abuse of process. Mitchell v Ireland and Akram v Minister for Justice are of little assistance in determining the applicability of the rule in Henderson v Henderson to the present case. The former concerned a second application to prohibit a trial. However the parties to the second application were not the same and Kearns J. was satisfied that it was not a case in which it was sought to re-open earlier proceedings. In the present case the parties to the 1999 application and the 2005 application are not the same. In none of the three cases was the applicability of the rule in public law cases argued or considered. There is considerable authority from the United Kingdom suggesting that it is doubtful whether issue estoppel is applicable to judicial review proceedings: R v Secretary of State for the Environment Ex p. Hackney London Borough Council [1984] 1 W.L.R. 592, and R (Munjaz) v Mersey Care NHS Trust and Ors [2004] QB 395.
3. The European Law Dimension
Two of the three issues on which leave was granted raise the application of European Directives and their transposition into Irish law. When dealing with possible breaches of European Law the principle of supremacy of European law is relevant and it is clear that an applicant should not be prevented from raising such an issue on grounds that it could have been raised earlier: Kraaijeveld BV v Holland [1996] ECR 1-05403.
It is clear from Friends of the Curragh Environment Limited v An Bord Pleanála, unreported, the High Court, Finlay Geoghegan J. 8th December 2006, Harrington v An Bord Pleanála [2006] 1 IR 388, and Lanceford Limited v An Bord Pleanála [1999] 2 IR 270 that the rules regarding standing should not be applied in such a restrictive manner as would preclude the courts from checking a clear and serious abuse of process. This is particularly so where the process involves significant public participation. Directive 2003/35/EEC makes clear that public participation is an essential element of the decision-making process for projects which have or may have considerable effects on the environment and that this is so should inform the decision as to whether the rule in Henderson v Henderson should apply to a case of that nature. The terms of the Directive and the issues raised in these proceedings make it particularly inappropriate to import the private law principle of estoppel by omission into this public law application.
4. The Convention for the Protection of Human Rights and Fundamental Freedoms Article 6.
Article 6 provides that every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law. The rule in Henderson v Henderson operates to deprive a party of any hearing whatsoever on matters which affect his civil rights and entitlements. The rule in Henderson v Henderson should be limited and not readily imported into areas of law to which the principle is unsuited and where there are various competing public and private interests at play. In Johnson v Gore Wood & Company [2001] 1 All ER 481 at 59(c) Lord Millet said:-
“It is one thing to refuse to allow a party to re-litigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. The latter (though not the former) is prima facie a denial of the citizen’s right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.”
It is to be noted that there is no example of the application of the rule in Henderson v Henderson in a context similar to the present.
5. Exercise of discretion not to apply the rule in Henderson v Henderson
In the first instance the court should have regard to the public interest in deciding whether or not it is appropriate to apply the rule in a particular case. In the present case the appellant lacked material information. The appellant only became aware that the planning authority had come to a decision on the applicability of the provisions of the Waste Management Act 1996 when discovery was received in the 1999 application.
In McQuaid v Malone, unreported, High Court, Geoghegan J. 29th January 1998 it was held that the rule in Henderson v Henderson would not apply where:-
In this case the impugned decision had not been made at the time the earlier proceedings were taken. Again two of three grounds for which leave had been granted had been defeated on purely technical grounds of objection. In any event all the matters for which leave had been granted were raised and fully argued before the Board with expert evidence being adduced. Under the EIA Regulations and Directives the Board is required to carry out its own environmental impact assessment of the proposed development. This had not occurred at the time of the previous proceedings. The assessments carried out by the Board were different in certain respects from those carried out by the Local Authority. The appellant goes on to list nine matters which should be considered in determining whether to apply the rule in Henderson v Henderson.
6. Article 267 Reference
The appellant submits having regard to the decision in Kraaijeveld BV v Holland [1996] E.C.R. 1-05403 that in applying the rule in Henderson v Henderson the court is in breach of its duty to endeavour to ensure compliance with the provisions of European Law. Before determining that it would make no decision on the points of European law raised by the appellant the High Court ought first to have made a reference pursuant to Article 267 of the Treaty of the following questions:-
The question of a reference should have been considered before determining the application of the rule in Henderson v Henderson. The court had an obligation to raise the issue of its own motion.
SUBMISSION ON BEHALF OF THE UDC
Three points arise on the 2005 application which could have been raised on the 1999 application:-
The first two issues were always within the knowledge of the appellant. The learned High Court judge found that no real explanation had been given as to why these points were not litigated in the 1999 application.
Estoppel applies in planning law: see cases relied upon by the learned High Court judge and also Downderry Construction Limited v Secretary of State for Transport, Local Government and the Regions [2002] E.W.H.C. 19, Tower Hamlets LBC v Sherwood [2020] E.W.C.A. Civ. 229. Certainty as to the outcome of the planning process and finality for litigants within a short period of time are important and the legislature has imposed time limits and special procedures to ensure these objectives.
As to the European law dimension, it is well established that European law rights can be subject to domestic procedural rules provided the same are no less favourable than those governing actions seeking similar relief at domestic law, but which must not render the exercise of those European law rights virtually impossible. The domestic procedural rules must not offend against the principles of equivalence and of effectiveness: Peterbroek [1995] E.C.R. 1-4599; [1995] E.C.R.1-4705. See also Collins and O’Reilly, Civil Proceedings and The State in Ireland [2003] 2nd edition. In McNamara v An Bord Pleanála [1998] 3 I.R. 453 Keane J. said:-
“The time limit imposed by section 82(3A) of the Act of 1963, as amended by section 19(3) of the Act of 1992 is applicable to all proceedings in which a person seeks to question the validity of decisions to grant planning permissions, whether the challenge is based on domestic law or European law or a combination of both. Cases involving questions of European law are thus not treated in any sense less favourably and, while the time limit applicable is undoubtedly inflexible, it cannot be seriously contended that it renders the assertion of right under European Union law ‘virtually impossible’ or ‘excessively difficult’.”
Finally, for the respondent it is submitted that the courts are entitled to regulate their own procedures under their inherent jurisdiction. The rules of estoppel are applied equally and proportionately and therefore are not in conflict with the Convention for the Protection of Human Rights and Fundamental Freedom. The courts will carry out a balancing exercise and will have regard to the interests of the public in general and will have regard to any special circumstances. This the High Court did. In the present case there were no special circumstances which would make the operation of the rule unfair, excessive or disproportionate.
Discussion
In Re Green Dale Building Company [1977] I.R. 256 the facts were as follows. Dublin County Council served notice to treat under a Compulsory Purchase Order before the same became operative: when this was discovered a second notice to treat was served. The claimant’s lands were worth more at the service of the first notice to treat and the claimant sought to rely on the same contending that Dublin County Council were estopped by its conduct from raising the invalidity of the first notice to treat. Henchy J. at page 264 of the judgment said:-
“The general rule is that a plea of estoppel of any kind cannot prevail as an answer to a well-founded claim that something done by a public body in breach of a statutory duty or limitation of function is ultra vires. That was held by Cassels J. in Minister of Agriculture and Fisheries v Matthews, by Harman J. in Rhyl U.D.C. v Rhyl Amusements Limited, and in the reported case of Minister of Agriculture and Fisheries v Hulkin (cited with approval by Cassels J. and Harman J. in those cases) in which Lord Greene M.R. said:-
‘The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it was possible for the donee of a statutory power to extend his power by creating an estoppel.’
…I know of no case where a public authority was held to be estopped from asserting that it had acted in breach of an express or implied prohibition or restriction of function in a statute: see Spencer Bower and Turner on the Law Relating to Estoppel by Representation (2nd ed pp.132-3). The reason, I believe, is that it is incompatible with parliamentary democracy for the courts under the guise of estoppel or waiver or any other doctrine to set aside the will of Parliament as constitutionally embodied in a statute.”
In Ashbourne Holdings Limited v An Bord Pleanála and Another, Supreme Court, unreported, 10th March 2003 the court held that conditions attached by An Bord Pleanála to a planning permission were ultra vires and went on to consider whether Ashbourne could be precluded from challenging the conditions on the basis of estoppel by representation. The conditions in issue largely consisted of a requirement to permit public access to Ashbourne’s lands. In the course of a lengthy planning process Ashbourne had consistently offered similar if not identical public access. Of relevance, however, is that Hardiman J. accepting the principle In Re Green Dale Building Company said of the same:-
“It is, however, premised on the assumption that it is a substantive decision (and not some incidental matter of little materiality) that is ultra vires. That much is specifically stated in the part of the judgment of Henchy J. immediately following the passage quoted above. I would add that an intermediate situation may arise in some cases. If the defect in vires related to something more marginal then the essence of the action which is impugned – for example its scale or extent rather than its nature – there may be greater scope for the operation of estoppel.”
In South Bucks DC v Flanagan [2002] 1 WLR 2601 at 2606 /7 Keene L.J. said:-
“He (the applicant) recognises that in the light of the authorities, estoppel by representation really no longer has any part to play in planning law. That was almost the position achieved after the Court of Appeal decision in Western Fish Products Limited v Penwith District Council [1981] 2 All ER 204, there remaining only limited circumstances where a Local Planning Authority would be bound by such representation.
This is because planning decisions are not simply matters of private interest confined to the developer and the local planning authority, but involve public interest also. One is here in the realm of public law.”
Both here and in the United Kingdom it is well settled that estoppel by representation cannot in matters of substance confer upon a planning authority vires which the legislature has not seen fit to confer. The appellant seeks to rely on the phrase “a plea of estoppel of any kind” in the passage cited from Henchy J. above. It is important, however, to be clear that we are here concerned not with estoppel by representation but with the rule in Henderson v Henderson which is an extension of res judicata to matters which might have been brought forward in a first action but which were not: see the judgment Wigram V.C. [1843] 3 Hare 100 at 115:-
“The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and to pronounce a judgment, but to every point which properly belongs to the subject of the litigation and which the parties, exercising reasonable diligence might have brought forward at the time.”
From the cases three reasons justify the application of res judicata and its extension by the rule in Henderson v Henderson:-
1. The public policy that an individual has a right to be protected from a vexatious multiplication of suits: D v C [1984] I.L.R.M. 173 Costello J., Lockyer v Ferryman [1877] 2 App. Cas. 519 at 530 Lord Blackburn.
2. The maxim interest rei publicae ut sit finis litium: Belton v Carlow County Council [1997] 1 I.R. 172 Keane J.
3. In other cases aspects of the public interest are mentioned such as efficient use of court time.
In Johnson v Gore Wood & Company [2002] 2 AC 1 Lord Bingham at p.31 said:-
“Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality of litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in earlier proceedings if it was to be raised at all. ...It is, however, wrong to hold that because a matter could have been raised in the earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad merits-based judgment which takes account the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse so one cannot formulate any hard and fast rule to determine whether on given facts, abuse is to be found or not.”
This passage is cited with approval by Hardiman J. in A.A. v Medical Council. I would adopt that approach. Further, the application of the rule should not be circumscribed by unnecessarily restrictive rules: Talbot v Berkshire C.C. [1994] Q.B. 290, cited with approval by Bingham M.R. in Barrow v Bankside Members Agency Ltd & Anor [1996] 1 All E.R. 985.
Greendale Building Company was concerned with estoppel by representation and the conferral of vires by such estoppel. Estoppel by representation has its origin in equitable principles and the requirement to do justice between the parties. Henderson v Henderson estoppel has its origin in the jurisdiction of the courts to regulate their own process and to prevent abuse of the same. This distinction is of significance when one comes to consider dicta in Greendale Building Company and in Bucks DC v Flanagan and cases therein mentioned. It is well established that estoppel by representation has no application in public law. The appellant here seeks, however, to extend by analogy that principle to Henderson v Henderson estoppel.
In this jurisdiction Henderson v Henderson has been applied in the public law area. It is understandable that it should be. It is not just individuals who must be protected from a multiplicity of suits: why not public bodies, local authorities and Ministers of State all of whom are funded by the taxpayer? The three elements of the rationale for the rule apply equally to public law litigation. Henderson v Henderson estoppel in Australia (there called Anshun estoppel: Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 C.L.R. 589) applies in the public law area. In Stewart v Sanderson & Another [2000] 175 A.L.R. 681 the applicant sought to extend the principle that estoppel by representation does not apply to administrative decisions by analogy to Anshun estoppel. The court relying on the different origins of estoppel by representation and Anshun estoppel refused to extend the principle. In the course of its judgment the court said:-
“The applicant thus sought to extend to the doctrine of Anshun estoppel, by analogy, the well established principle that estoppel by representation does not apply to administrative decisions. Formosa v Secretary, Department of Social Security [1988] 46 F.C.R. 117 at 135 81 A.L.R. 687, and Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic [1990] 21 F.C.R. 193 -92 A.L.R. 93 were relied upon. However as appears from the discussion below the basis of the Anshun principle is quite different from the foundation of estoppel by representation, which lies in equitable principle. One obvious difference for example is that estoppel by representation seeks to provide justice between the parties whereas the justification for Anshun estoppel, as discussed above is broader. No principle or authority was cited to indicate that the capacity of a court to prevent an abuse of its processes and to safeguard the orderly administration of justice ought to be blunted merely because the supposed right which is sought to be vindicated before the court is derived from statute rather than the common law.”
There are public policy considerations for the application of the rule in Henderson v Henderson in the area of public law which I have already identified. The protection not just of individuals but also public bodies from a vexatious multiplication of suits and the desirability that there should be finality to litigation are two. Efficient and economic use of court time is a third. Relevant in the present case, however, is that it has long been a concern of the legislature that infrastructural projects can be greatly delayed by the planning and related processes and litigation arising therefrom. This has resulted in legislative attempts to ensure that challenges to such projects are dealt with promptly by the courts: see Planning and Development Act 2000 section 50 as amended by the Acts of 2002, 2006 and 2010. The policy of the legislature would be undermined if issues which could be raised at the first stage of the two-stage process were not in fact raised but were litigated piecemeal thereafter. Thus the possibility exists in a two-stage process of a challenge by way of judicial review to the decision at the end of the first stage being followed by appeal to the Supreme Court: this in turn if unsuccessful may be followed by the ordinary planning appeal process with further challenges in the High Court and the Supreme Court to the same. In AA v The Medical Council Hardiman J. at p.318 said of the Medical Council:-
“The respondent is discharging a public function in the hearing and determination of allegations of professional misconduct as well as observing the profession’s interest in promoting high professional standards and public confidence. The allegations in question here relate to a time some six and a half years ago and it is manifestly in the interest of the applicant, the respondent, the profession, the complainants and the public generally that these be resolved as soon as possible and without unnecessary or unreasonable delay.”
These considerations apply equally here. Clearly the interests of the appellant are affected but also affected are those of the UDC, the other respondents and the notice parties to the proceedings in the High Court. The general public are affected as the scheme in question concerns infrastructure for the town of Arklow which has been seriously delayed notwithstanding its significance to the development of the town and to the citizens for whose benefit the scheme is intended. The rule in Henderson v Henderson it seems to me must apply with even more force than was the case in AA v The Medical Council. For these reasons I am satisfied that there is no requirement to take a different view of the application of the rule in Henderson v Henderson in public law planning cases. I am satisfied that the rule in Henderson v Henderson has application to the two-stage planning process: on a challenge to the decision of a planning authority all issues affecting the decision which then exist must be raised.
However where special circumstances exist excusing a litigant from compliance with the duty to bring forward his whole case at the outset justice may require the non-application of the rule: Henderson v Henderson. In Yat Tung Investment Co Ltd v Dao Heng Bank [1975] A.C. 58 the issue giving rise to omission estoppel arose at a late stage of the earlier proceedings and this was held not to excuse non-compliance with the rule: an application should have been made to amend the pleadings in the earlier action. From the cases it is clear that negligence or inadvertence or accident will not necessarily excuse non-compliance with the rule: Barrow v Bankside Members Agency Limited & Anor. It is not possible to attempt to define what may amount to a special circumstance and each case must be considered on its facts and circumstances. Also relevant in deciding whether to excuse non-compliance with the duty to bring forward the whole of one’s case is prejudice suffered by the defendant or respondent. In public law litigation prejudice to the wider public may also be relevant. The only special circumstances touched on in the present case relates to the Waste Management Act issue. The appellant says it only became aware of this issue when discovery was finalised on the 12th October 2000 a year after leave was granted. However no application was made to the court to amend the statement of grounds to include this issue. An application was made to amend grounds in 2003 to include an issue as to bias and even at that stage no application was made to the court to include the Waste Management Act issue. In these circumstances I am satisfied that this does not in the present case amount to a special circumstance which would excuse non-compliance with the rule in Henderson v Henderson. The position remains as stated by Clarke J. in the High Court – no real explanation has been given as to why the Waste Management Act issue was not litigated in the first judicial review proceedings.
Before the High Court counsel for the appellant touched upon a European dimension to the matter and correctly argued that all organs of a Member State are required to endeavour to ensure compliance with the obligations of a Member State under applicable measures of the competent authorities of the EU. The obligation in appropriate circumstances applies to the courts. Accordingly it is submitted that the courts 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. The learned trial judge held as follows:-
“I am not satisfied that there is any substance to that argument. It is manifestly clear that the obligations 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.
There seems to me to be 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 application is manifestly equivalent. It is a rule which applies, for the reasons which I have set out, 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 is no basis for the suggestion that its application renders any remedy ineffective. There is no practical reason why the points raised in these proceedings could not have been raised at the time of the original challenge to the decision of Wicklow County Council. If they be good points then Arklow Holidays had an effective remedy in relation to them. The way in which that remedy was to be exercised, in accordance with Irish procedural law, was to raise the points at the time of the challenge to the original Wicklow County Council decision. It does not diminish the effectiveness of the remedy to rule that, having omitted to include those points in the original challenge, they can not be raised in this challenge to the decision of the Board.”
It is the case that the rule in Henderson v Henderson is a procedural rule: Yat Tung Investment Company Limited v Dao Heng Bank Limited. It is well settled that rights arising under European law can be subject to domestic procedural rules provided that the same are no less favourable than those governing actions seeking similar reliefs at domestic law and provided that they do not render the exercise of European law rights virtually impossible. The domestic procedural rules must not offend against the principles of equivalence and of effectiveness: Aministrazione delle Finanze dello Stato v Ariete SpA [1980] ECR 2545, Frankovich v Italian Republic [1991] ECR 1-5357, McNamara v An Bord Pleanála [1998] 3 I.R. 453.
Both before the High Court and in this court the appellant relied upon a decision on a reference in Kraaijeveld BV v Holland [1996] E.C.R.1 - 05403 as authority for the proposition that when dealing with a possible breach of European Law the supremacy of European Law is relevant and an applicant should not be prevented from raising a point on the grounds that it could have been raised in earlier proceedings. In the judgment I can find no support for that proposition. Kraaijeveld BV had never raised the particular issue and the issue on the reference was whether, having regard to the domestic law of Holland, the court should have raised the issue of its own motion. The reference concerned Directive 85/337/EEC and raised four questions. What was there decided was that where, by virtue of national law, a court must of its own motion raise points of law based on binding domestic rules which have not been raised by the parties such an obligation also exists where binding Community rules are concerned. The position is the same if national law confers on courts a discretion to apply of their own motion binding rules of law: Case C-213/89 Factortame [1990] E.C.R. 1-2433, Van Schijndel and Van Veen v SPF [1995] E.C.R.1.- 4705. It is not part of our national law that a court must of its own motion or may of its own motion raise points of law concerning the legality or vires of administrative decisions which have not been raised by the parties. I find the decision of no assistance to the appellant.
The appellant also draws attention to Directive 2003/35/EEC. The Directive does not relate directly to projects which require or may require a waste licence and was not in force at the time of the planning application. However from the recitals to the same principles emerge which, it is submitted, are relevant to the application of the rule in Henderson v Henderson to the present case. The Directive reflects the fact that the institutions of the EU consider that public participation is an essential element of the decision making process for projects which have or may have considerable effects on the environment. The Directive in Article 2 requires Member States to ensure that the public is given early and effective opportunities to participate in the preparation, modification or review of the plans or programmes required to be drawn up, inter alia, under Article 7(1) of the Waste Framework Directive (Council Directive 75/442/EC). It is submitted that the policy apparent from this Directive makes it inappropriate to import the rule in Henderson v Henderson into the present proceedings. As already pointed out Henderson v Henderson is grounded on the principle of res judicata. It is based on the premise that a party to proceedings had an opportunity to raise all the relevant points of law in earlier proceedings which have already been finally determined. Accordingly, as a matter of fact, it cannot be said that the appellant has been deprived of an effective opportunity to participate in the decision making process for the project in question, apart from the fact that the appellant has, of course, had an opportunity of fully participating in the planning application process and the appeal process before An Bord Pleanála.
I am not satisfied that the policy apparent in Directive 2003/35/EC and elsewhere aimed at public participation in decisions affecting the environment can displace our domestic procedural law. The rule in Henderson v Henderson is part of our procedural law and, subject to the principles of effectiveness and equivalence, the validity of decisions challenged on EU grounds is to be determined by Irish procedural law. The rule in Henderson v Henderson does not infringe either the principle of effectiveness or the principle of equivalence. This is manifestly clear from the extensive and well established jurisprudence of the Court of Justice and in any event, the appellant has not, as already pointed out, as a matter of fact been denied an opportunity to participate in the process including raising issues of law by way of judicial review.
The appellant seeks to rely on Article 6 the Convention for the Protection of Human Rights and Fundamental freedoms which provides that every person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The purpose of the reliance is to call in aid the jurisprudence of the European Court of European Rights on Article 6 as being persuasive to this court that the rule in Henderson v Henderson ought not to extend to public law matters in general and to planning matters in particular. However the convention right of access is not an absolute one and restrictions may be imposed: Ashingdane v U.K. 7 EHRR 528. In imposing restrictions the State is allowed a margin of appreciation, so however that any restriction must not be such that the very essence of the right is impaired. The restriction must have a legitimate aim and comply with the principle of proportionality, that is there must be a reasonable relationship of proportionality between restriction and the aim sought to be achieved. There is no objection to time limits for the bringing of first instance or appeal proceedings: they are permissible if they meet the requirement of proportionality. The rule in Henderson v Henderson has a legitimate aim, that there should not be a vexatious multiplication of suits, that there should be an end to litigation, and that it is in the public interest that there should be an efficient use of court time. The restriction is proportionate to the aim. There is access to the courts and it cannot be said that the very essence of the right of access is impaired.
The final issue raised by the appellant is that the learned trial judge erred in failing of his own motion to refer appropriate matters to the European Court of Justice by way of Article 324 Reference. It is submitted that the following questions ought to have been referred:
These questions simply did not arise for the court as the appellant’s substantive case was not considered. The High Court quite correctly applied Irish procedural law to the circumstances of this case, that is the rule in Henderson v Henderson. As already indicated the application of the rule does not breach either the principle of effectiveness or the principle of equivalence. If the appellant’s challenge had been excluded by a Statute of Limitations provision, rather than by the rule in Henderson v Henderson, and so was not at all considered by the court, could it be suggested that the issues of European law arising in the challenge could be made the subject of an Article 267 Reference on the court’s own motion or otherwise.? In either case the court does not embark on a consideration of the issues. In this case the two questions suggested by the appellant did not arise for consideration by the court and could not be the subject matter of an Article 267 Reference.
Conclusion
Having regard to the foregoing I would answer the points raised as follows:-
In the present case the learned High Court judge had regard to all the circumstances of the case in considering the exercise of his discretion not to apply the rule in Henderson v Henderson. In particular he did consider the nature of the issues sought to be raised. He considered the conduct of the parties and did so appropriately.
In those circumstances I would dismiss the appeal and affirm the order of the High Court.
