Collette O'Connell (applicant) v Environmental Protection Agency (respondent); and Dungarvan Energy Ltd and Ireland and the Attorney General (notice parties).
Judicial Review - Planning and development - Application to strike out proceedings - Locus standi - Whether proceedings statute barred - Whether prompt application - Whether proceedings vexatious - Whether material nondisclosure - Undertaking as to Damages - Environmental Protection Agency Act 1992 - Rules of the Superior Courts 1986, Order 58, rules 1 and 13; Order 84 rules 20 and 22.
The High Court (Mr Justice Herbert); judgment delivered July 5, 2001.
Where a notice party would be seriously affected by the outcome of judicial review proceedings, then that notice party would have a sufficient locus standi to maintain an application to strike out those proceedings, even though it had not been joined as a respondent and could have applied to court to be added as such. It would amount to a total denial of fairness and justice to that notice party if it could not intervene in the matter notwithstanding any procedural irregularity to protect its lawful interests.
The High Court so held in refusing the application to strike out the proceedings and in ordering the applicant to provide an undertaking as to damages in favour of the first notice party.
Paul Sreenan SC, Eamon Galligan SC, Michael O'Donnell BL, Conleth Bradly BL and Oisin Collins BL for the applicant; Alan Doyle, Solicitor, for the respondent; Frank Clarke SC and Michael Howard BL for the first notice party; Niamh Hyland BL for second and third notice parties.
Mr Justice Herbert said that in January 2001 the respondent had granted an integrated pollution control licence under the Environmental Protection Agency Act 1992 ("the 1992 Act"), in respect of a gas turbine electricity generating plant being developed by the first notice party ("the notice party"). The applicant sought judicial review of the decision. In the present application the notice party sought to strike out the judicial review proceedings.
Mr Justice Herbert stated that, having regard to the decisions in East Donegal Co-operative Livestock Mart Ltd v The Attorney General IR 317 and O'Keeffe v An Bord Pleanβla 1 IR 39, the notice party, whose rights would be very seriously affected by the avoidance of the licence, must have a sufficient locus standi to maintain the application, even though it had not been joined as a respondent in the proceedings and could and should have applied to the court to be added as such a party. Mr Justice Herbert said that it would amount to a total denial of fairness and justice to that notice party if it could not intervene in the matter, notwithstanding any procedural irregularity, to protect its lawful interests.
The first basis upon which the notice party sought an order striking out the judicial review proceedings was that the proceedings were statute barred having regard to the provisions of section 85(8) of the 1992 Act. That section provided that a person shall not by any application for judicial review or in any other legal proceedings, question the validity of a decision to grant or refuse a licence or revised licence unless the proceedings were instituted within the period of two months commencing on the date on which the decision was given. In this case, the date upon which the decision was made to grant the licence was January 3, 2001 and on March 2, 2001 the applicant was granted leave to seek judicial review.
Mr Justice Herbert said that in his judgment an application for judicial review was clearly a proceeding within the meaning of section 85 (8) of the 1992 Act. Mr Justice Herbert said that he agreed with the decision of Mr Justice Kelly in Ni Eili v The Environmental Protection Agency 2 ILRM 454, in that the court had no power to extend the time allowed by that section.
Mr Justice Herbert said that an application for judicial review for the purpose of the subsection was "instituted" as soon as an ex parte motion for leave to apply for judicial review was moved before the court. The 1992 Act did not itself contain any definition of the phrase "proceedings are instituted" or of any word comprised in the phrase and the same was true of the Interpretation Act 1937. Mr Justice Herbert said that, in looking at the policy of the 1992 Act, and the possible abuse which was sought to be remedied by section 85(8), that he found nothing to indicate that the second stage of the procedure commencing on the date of application for judicial review rather than the first stage commencing on the date of application for leave to seek judicial review was intended by the framers of the subsection.
The second ground was that the applicant had failed to make her application for judicial review "promptly" as required by Order 84 rule 21 (1) of the Rules of the Superior Courts 1986. Mr Justice Herbert said that it might be fairly inferred from the decision of Mr Justice Keane in DPP v Johnson ILRM 747 that a relatively short delay would not deprive an applicant of "the greatest remedy available to citizens" and that the delay would have to be such as might be categorised as "substantial" in all the circumstances of the particular case, one such circumstance being the overall period of time allowed for the application.
Mr Justice Herbert said that the applicant in this case was a citizen whose dwellinghouse was located near the proposed power station and could be adversely affected by emanations from that plant and who therefore had a sufficient interest to maintain the application. The notice party submitted that, given the previous proceedings instituted by the applicant pursuant to section 27 of the Local Government (Planning and Development) Act 1976 as substituted by section 19(4)(g) of the Local Government (Planning and Development) Act 1992, the delay on her part until March 2 to bring on her application was excessive, unreasonable and inexcusable.
Mr Justice Herbert said that it was sometime in the week preceeding January 22, 2001 that the applicant had became aware of the apparent breaches by the respondent of the conditions attached to the grant of planning permission, and having checked the files determined to take legal proceedings to prevent such breaches. Prior to this there was a short period during which she was considering her position and examining the newly available complete file of the respondent in respect of the application for and the decision to grant the licence. This, he said, could not possibly amount to excessive, substantial or unreasonable delay on her part. He said that the delay after this initial period until February 5 was due solely to the wrongful activities of the notice party and that it would be unjust and unreasonable that it should benefit from its own breaches of the planning permission.
Mr Justice Herbert referred again to Ni Eili where it was held that the court had no power to permit an applicant in a matter to which section 85(8) of the 1992 Act applied, to amend its statement of grounds to include new grounds which were not raised within the statutory two month period. In these circumstances, he said, this added significantly to the time and responsibility involved in the preparation of such document. Mr Justice Herbert said he considered the statement of grounds dated March 2, while echoing the objection which was submitted by the applicant on 12 October, was a careful pleading raising a considerable number of apparently serious issues to be determined by the court.
Mr Justice Herbert said he was satisfied that the applicant had fully excused and explained any seeming delay on her part in seeking leave to apply for judicial review.
Mr Justice Herbert said that the third basis upon which the notice party sought to have the proceedings struck out was on the assertion that they were frivolous and vexatious and disclosed no reasonable cause of action against the first notice party or any other party. Mr Justice Herbert said that this argument suffered the infirmity that the cause of action was against the respondent and since that party had not made an application under Order 19 rule 28 of the Rules of the Superior Courts 1986, or by reference to the inherent jurisdiction of the court, he doubted whether the first notice party could make such an argument on their behalf.
Mr Justice Herbert said that the cases of Tassan Din v Banco Ambrosiano Spa 1 IR 569 and Sun Fat Chan v Osseus Ltd IR 426 were relevant. Those cases clearly established that the court should exercise the utmost caution in depriving a party of the right to be heard and should do so only where confident that the claim must inevitably fail. In this case the applicant had been granted leave to apply for judicial review on 18 separate grounds, which the court clearly considered at the very least to be stateable grounds. Unless there was evidence to satisfy him that the order was obtained by fraud, misrepresentation or material non-disclosure, this basis of challenge to the proceedings must fail.
The fourth ground asserted that the order granting leave to seek judicial review had been obtained by material non-disclosure and additionally or alternatively misrepresentation. In this regard the notice party submitted that the applicant failed to disclose to the court at the ex parte motion for liberty to apply for judicial review, the challenge to the bona fides of her application by the notice party in the section 27 proceedings.
Mr Justice Herbert said that even if the matters and the affidavits in which they were set out had been fully opened to the court, the court would have had no option but to entirely disregard them particularly in the context of an application for leave to apply for judicial review where the court was not adjudicating on the merits of the particular application. Mr Justice Herbert said he was making no finding as to any of these issues as to bona fides but that he did find that there was no material nondisclosure or misrepresentation of the part of the applicant or her legal advisers in the course of her application for leave.
The final relief sought was an order requesting the applicant to provide a "fortified" undertaking as to damages as a condition of being permitted to continue these judicial review proceedings.
Mr Justice Herbert said he had some considerable reservations as to the power of the court to make any form of order, either against or in favour of a party who is on notice of proceedings but who was not a respondent in the proceedings, and this included an order as to costs and an order that an applicant should give an undertaking to pay damages to such a mere notice party for any possible loss sustained by such notice party should the applicant not be successful.
Mr Justice Herbert said that these proceedings might delay the construction and commissioning of the power station and might result in loss and damage to the notice party. Had the notice party been joined, as he considered they ought to have been, he would have had little hesitation in finding that the justice of the situation required that such an undertaking as to damages be given. Having regard to all the circumstances of the application and in particular the terms of the objection on October 12, 2000, but without determining any issue between the parties, he said he considered that the real substance of this application was the preservation and protection of private property rights which were normally protected by private law remedies and the apparent public law aspects of the challenge were in fact subsidiary though important issues.
In the circumstances Mr Justice Herbert considered it appropriate that the applicant should give an undertaking to pay damages to the notice party in respect of any provable loss and damage sustained by it as a consequence of the stay on any implementation of the licence should she not be successful in her challenge to the granting of that licence.
Mr Justice Herbert stated that in our system of jurisprudence with a constitutional right of access to the courts, the occasions on which a court might properly require what was described as a "fortified undertaking to pay damages" must be very few and that this was certainly not such an occasion. Accordingly, Mr Justice Herbert said he refused the application that the undertaking to pay damages which the court required to be given by the applicant should be supported in any way whatever by the giving of security or the payment of money into court or otherwise.
Solicitors: Fionnuala Cawkhill & Associates (Dublin) for the applicant; TTL Overend McCarron & Gibbons (Dublin) for the respondent; A & L Goodbody (Dublin) for the first notice party; the Chief State Solcitor for the second and third notice parties.
