The Court of Appeal has refused Diamrem Limited’s application to introduce additional planning-file documents in its appeal over a car park at the Cliffs of Moher Visitor Centre, finding the company could have obtained them before the High Court trial with reasonable diligence.
The judgment, delivered by Ms Justice Costello on 9 March 2021, concerned only the application to admit new evidence. The court did not decide the underlying appeal or determine whether the car park was authorised. Justices Haughton and Binchy agreed with the judgment and proposed orders.
Diamrem operates a park-and-ride business for visitors. It brought proceedings under section 160 of the Planning and Development Act 2000 concerning a 481-space car park operated by Cliffs of Moher Centre Limited and Clare County Council. Diamrem says the car park, on the east side of the R478, is unauthorised. The respondents relied on two local-authority Part VIII processes, saying they permitted the car park’s continued operation. The 2002 planning permission had provided for a permanent 249-space car park on the road’s west side and a temporary car park on the east side during construction. The western car park was never built.
Diamrem sought to add documents from the Part VIII process known as LA 04/08, including notices, plans, a planning report and the council resolution. It said these would help show that the process had not changed the planning permission’s car-parking conditions. The respondents’ evidence had relied on a 2004 architect’s letter, but did not include the complete Part VIII file. The Court of Appeal did not assess the merits of either side’s position on what that process meant.
Applying the test for fresh evidence on appeal, the court focused on whether the documents could have been obtained for trial with reasonable diligence. The planning file was available for public inspection, and a Diamrem director had inspected it in February 2017, about ten months before trial. The relevance of the Part VIII decision was clear, at the latest, from a respondents’ affidavit delivered on 5 May 2017, the judgment said.
The court rejected Diamrem’s explanations, including that the respondents’ defence had seemed weak and that the trial had taken an unexpected turn. It also rejected the argument that the respondents’ incomplete file or an asserted duty of candour justified admitting the evidence. The judgment said the respondents had put forward the evidence on which they relied, and Diamrem could have obtained and presented the full file itself.
The application was refused because the court was not satisfied that the documents could not have been produced at trial despite reasonable diligence. Costello J. was provisionally of the view that the respondents should receive the costs of the application, with execution stayed pending determination of the appeal. A party could seek a short hearing on costs or the stay within ten days of delivery of the judgment.