The High Court dismissed Arklow Holidays Limited’s judicial review challenge to An Bord Pleanála’s decision concerning planning permission for a wastewater treatment plant serving the Arklow area. The court did not decide the substance of the company’s environmental and land-interest arguments. It ruled that those arguments were barred because they could and should have been raised in an earlier challenge to the original planning decision.
Mr Justice Clarke delivered judgment on 5 October 2007. Arklow Holidays had first challenged the planning permission granted by Wicklow County Council. That challenge was dismissed by Mr Justice Murphy in October 2003. The company later challenged the Board’s decision on appeal, after the Board upheld the permission subject to conditions.
At the full hearing, the company had leave to pursue three groups of grounds: that the Waste Management Act 1996 meant environmental pollution issues were for the Environmental Protection Agency; that the Board had not properly assessed the whole project; and that Arklow Urban District Council lacked sufficient interest in some of the land involved in its planning application.
The Board and Arklow Council argued that the company was precluded from raising those issues in a second set of proceedings. The judge found that each ground could have been raised against the original decision by Wicklow County Council. He applied the rule in Henderson v Henderson, under which a party may be barred from bringing a later claim based on matters that could and should have been raised in earlier litigation. The court retained discretion to allow the later arguments, but the judge found no sufficient reason to exercise it in Arklow Holidays’ favour.
The judgment said the six-year period between challenges was not the company’s fault: it had pursued the Board appeal and then challenged the Board’s decision in a timely way. But that did not explain why the grounds had been omitted from the first judicial review. The judge concluded that Arklow Holidays was estopped from raising all three groups of issues and dismissed its application.
The court made no findings on whether the environmental assessment was adequate, whether the Waste Management Act applied to the plant, or whether the Council had sufficient interest in the land. The judge expressly declined to give views on those substantive questions because they were no longer capable of determining the outcome.