The High Court has limited the evidence that can be used in Thomas Reid’s challenge to An Bord Pleanála’s grant of planning permission for a manufacturing facility at Leixlip, County Kildare. The ruling concerned a procedural motion by notice party Intel Ireland Limited; it did not decide the judicial review itself.
Mr Justice Humphreys delivered the judgment on 12 April 2021. Intel sought to exclude affidavits from the applicant and research scientist Maria Cullen, prevent Ms Cullen from filing a proposed third supplemental affidavit, and remove specified material from other affidavits.
The court said judicial review is generally confined to the grounds pleaded, and that affidavits cannot be used to add new grounds. It also set out when points and evidence may be raised for the first time in court, including in some cases involving jurisdiction, procedural unfairness, technical explanation, or EU environmental access-to-justice rules. The judge stressed that the rules depend on the nature of the challenge and the evidence; the ruling did not establish a blanket ban on new evidence.
Applying those principles, the court ordered parts of the applicant’s affidavits and Ms Cullen’s supplemental affidavits struck out. Some material was allowed for limited purposes. For example, Ms Cullen’s first affidavit could be read as expert explanation or comment on documents before the board, but not as an independent factual opinion. Some evidence about the applicant’s alleged prejudice could remain for that purpose, without being treated as new evidence that the board should have considered matters never put before it.
The judge refused permission to file Ms Cullen’s proposed third supplemental affidavit, finding that it largely contained new scientific information going to the merits. He said the court was not required to sift through it to identify fragments that might be admissible.
The order also directed that certain unstruck statements be understood only in the limited sense described in the judgment. The parties were directed to contact the List Registrar to have the case listed on the next convenient Monday List. The substantive challenge to the board’s planning decision was not determined in this ruling.