The Supreme Court has dismissed an appeal by Arklow Holidays Limited and affirmed the High Court’s refusal of its judicial review application concerning planning permission for a wastewater treatment works at Seabank, Arklow.
In a judgment delivered on 21 July 2011, Mr Justice Finnegan said the rule in Henderson v Henderson applied to a timely challenge to an An Bord Pleanála decision where the substantive issues could have been raised in earlier proceedings against the planning authority. The court’s ruling addressed that procedural bar; it did not decide whether the planning permission itself was legally valid on the substantive grounds Arklow Holidays had advanced.
The Board granted planning permission to Arklow Urban District Council in January 2005 for a treatment works and associated sewers, roads and an outfall pipe. Arklow Holidays, which operates a mobile home park adjoining the proposed site, had previously challenged the County Council’s 1999 grant of permission. The High Court refused that earlier application in 2003.
In a separate judicial review begun in 2005, Arklow Holidays obtained leave to pursue three grounds: that the Board had considered environmental matters said to fall within the Environmental Protection Agency’s remit; that it had failed to assess the whole project adequately; and that the urban district council lacked sufficient interest in the relevant property to apply for permission.
The High Court found that all three grounds could also have been raised against the County Council’s original decision. It concluded that the rule barred them from being litigated in the later case and refused the application. Arklow Holidays appealed, arguing, among other things, that the rule should not prevent a first challenge to a later decision in a two-stage planning process, particularly where European law and public participation were involved.
The Supreme Court rejected those arguments. It held that the rule applied in public-law planning cases and to the two-stage process. It said a court deciding whether to apply the rule must consider all the circumstances, including the nature of the issues and the parties’ conduct. In this case, it found the High Court had considered those matters appropriately and that no special circumstance justified allowing the omitted grounds to proceed.
The court also concluded that applying the rule did not breach the European-law principles of effectiveness or equivalence, or the right of access to court under Article 6 of the European Convention on Human Rights. Because the substantive challenge was excluded on procedural grounds, the proposed questions about the environmental directives did not arise for determination or a reference to the European Court of Justice.