The High Court has directed An Bord Pleanála executive Pierce Dillon to attend the substantive hearing of a judicial review case so he can be cross-examined about an affidavit he filed for the Board.
Mr Justice Garrett Simons made the order on 30 November 2018. He said the questioning should not cover parts of Mr Dillon’s affidavit that consisted purely of legal submissions. The judge left the precise scope of questioning to the judge hearing the substantive case. If Mr Dillon does not attend, his entire affidavit is to be disregarded.
The judicial review was brought by Maire Olive Pierse and Eilin Enright against a Board determination dated 5 April 2017. The Board had declared that forming two entrances on lands near Listowel, County Kerry was development and did not qualify as exempted development. Kerry County Council and Dermot Godsell were notice parties.
The applicants challenge the Board’s conclusion, among other grounds, that the proposed development would endanger public safety through a traffic hazard or obstruction of road users. That issue arises under the Planning and Development Regulations 2001. The substantive judicial review has not been decided in this judgment.
The immediate application concerned whether Mr Dillon could be questioned on his affidavit. He was a senior executive officer at the Board, but was not a Board member or the inspector who handled the planning case. In his first affidavit, he said he had been “advised” that material before the Board justified its traffic-hazard conclusion, referring to the inspector’s description of the residential setting and Mr Godsell’s submissions.
The judge said it was unclear who had advised Mr Dillon, and that cross-examination could clarify whether he was relying on information from someone directly involved or expressing his own view after reviewing the inspector’s report. The Board had maintained its reliance on the affidavit and on its statement that material supported the decision.
Mr Justice Simons held that the applicants were entitled to limited cross-examination to test what Mr Dillon meant. He emphasised that the court had before it only the application for leave to cross-examine, not the underlying challenge to the planning determination. The precise form of the order and any costs order were left for further submissions.