High Court refuses strike-out of housing appeal grounds, rejecting procedural objections to vagueness.

[2023] IEHC 344

THE HIGH COURT

JUDICIAL REVIEW

[2022 No. 157 JR]

BETWEEN

MARTIN STAPLETON

APPLICANT

AND

AN BORD PLEANÁLA, THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND

HERITAGE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

SAVONA LIMITED AND DUBLIN CITY COUNCIL

NOTICE PARTIES

(No. 4)

JUDGMENT of Humphreys J. delivered on the 23rd day of June, 2023

1. The applicant challenges a decision by the board on 23rd December, 2021 authorising a

strategic housing development in Redcourt, Seafield Road, Clontarf, Dublin 3, consisting of 131

build-to-rent apartment units.

2. Proceedings were commenced on 25th February, 2022.

3. Amendment of the pleadings was allowed on 28th February, 2022 and 7th March, 2022 and

a first amended statement of grounds was filed on 16th March, 2022. Further amendments were

allowed on 21st March, 2022 and a second amended statement of grounds was filed on 23rd March,

2022. Leave was granted on the basis of that latter statement on 28th March, 2022.

4. Following that, an issue blew up about costs protection.

5. In Stapleton v. An Bord Pleanála (No. 1) [2022] IEHC 372, [2022] 6 JIC 2201 (Unreported,

High Court, 22nd June, 2022) I refused costs protection relief in part and decided in principle to refer

a question in that regard to the CJEU.

6. In Stapleton v. An Bord Pleanála (No. 2) [2022] IEHC 455, [2022] 7 JIC 2602 (Unreported,

High Court, 26th July, 2022) I gave directions regarding the reference.

7. In Stapleton v. An Bord Pleanála (No. 3) [2022] IEHC 456, [2022] 7 JIC 2603 (Unreported,

High Court, 26th July, 2022) I made the formal order for reference.

8. Subsequently however the costs issue was agreed and the reference was withdrawn.

9. Statements of opposition were filed by the board on 18th October, 2022, by the notice party

on 1st December, 2022 and by the State on 21st March, 2023 – the first anniversary of the order

allowing the latest amended statement of grounds.

10. The board’s opposition papers contained numerous legalistic complaints about the drafting

of the statement of grounds, which sparked a kind of arms race between the parties whereby the

applicant has responded in an equally, if not more, legalistic manner. That is possibly not an ideal

situation.

11. Following the delivery of papers by all opposing parties, the applicant delivered a notice

setting out further particulars of its case, dated 4th April, 2023. That resulted in the issue of a

motion by the applicant which was heard on 24th May, 2023 and 12th June, 2023. On the latter

date, reliefs 6 to 8 in the applicant’s motion were adjourned generally, by consent. I now deal with

reliefs 1 to 5, albeit not in that precise order.

Reliefs relating to particulars

12. Relief 1 claims:

“An Order pursuant to Order 19 Rule 7 of the Rules of the Superior Courts as amended, or

otherwise, deeming good the Applicant’s Reply to Deemed Notice for Particulars annexed

hereto at Schedule 1 Parts 1 and 2 respectively.”

13. I will assume without deciding that the particulars procedure can apply to judicial review.

But even if it does apply, it can only apply subject to fairly close supervision by the court; and in

that regard, in many situations it is better in the interests of certainty for any significant clarifications

to be effected by amendment rather than by notice giving particulars.

14. To some extent it is a matter of degree. In many situations it may be acceptable for an

applicant to write a letter saying “for the avoidance of doubt, in ground number 1 we wish to clarify

that this is intended to make point x specifically (and not point y)”. However the extent of the

particularisation here is such that amendment is the preferable way to go. Hence I would refuse to

approve the applicant’s attempt to serve a notice giving further particulars of his case.

15. Finally in relation to this relief, I should note that the inventive confection of a “Deemed

Notice for Particulars” is just an attempt by the applicant to pass the buck to the opposing parties.

There is no such thing as a deemed notice for particulars. If, whether stimulated by complaints from

other parties or for any other reason, a party wants to give additional particulars of its case in

proceedings, it should just serve notice to that effect if the procedures applicable to the litigation so

permit. If they don’t so permit, the party should apply to the court to be allowed to do so in the

appropriate form, which may be by way of amendment.

16. Relief 5 claims:

“In the alternative to reliefs 1, 2 and 4 above, an Order pursuant to Order 84 Rule 26 of the

Rules of the Superior Courts as amended, declaring that the First Respondent, An Bord

Pleanala, and the First Notice Party, Savona Ltd, are not entitled to contest the adequacy of

the particularisation of the Statement of Grounds herein, by reason of their and each of their

failure to reply in accordance with Order 19 Rule 7 to the Applicant’s Reply to Deemed Notices

for Particulars, annexed at Schedule 1, Parts 1 and 2 respectively.”

17. This is totally misconceived. A party in judicial review is perfectly entitled to object to a lack

of particularisation of the other side’s case without being obliged to first request particulars. That

doesn’t mean that the party complained against has no come-back – that party can argue that its

case is adequately pleaded, or can seek to amend its pleadings. The board objected that there was

no such thing as a reply in judicial review pleading, which is quite correct, but an objection to an

applicant’s pleadings is not an inherently irremediable one. Just because there is no pleading in the

form of a “reply” doesn’t mean that an applicant is prohibited from taking any steps by way of

damage-limitation. Seeking an amendment is one such step.

18. The board complains that the applicant is “mending his hand” as a result of opposition

papers, and that doing so creates a further round of activity and expense. But so be it – there is no

rule that you can never mend your hand. A pleading objection is not a “gotcha” point from which

there can be no escape. But it does to some extent require the party at the receiving end to either

stick or twist – stand on their pleadings and defend them as written, or seek an amendment (even

for the avoidance of doubt).

Reliefs relating to amendment of pleadings

19. Relief 2 claims:

“In the alternative to relief 1 above, an Order pursuant to Order 84 Rule 23 of the Rules of

the Superior Courts as amended granting liberty to the Applicant to amend his grounds of

application in accordance with the draft Amended Statement of Grounds annexed hereto at

Schedule 2.”

20. I endeavoured to summarise the principles applying to amendments in Habte v. Minister for

Justice and Equality [2019] IEHC 47, [2019] 2 JIC 0405 (Unreported, High Court, 4th February,

2019), the first point being that the jurisdiction to amend is intended to be liberal: Croke v. Waterford

Crystal Ltd. [2004] IESC 97, [2005] 2 I.R. 383, [2005] 1 I.L.R.M. 321, [2004] 11 JIC 2605, [2005]

7 JIC 0701, Moorehouse v. Governor of Wheatfield Prison and Others [2015] IESC 21, 2015 WJSC-

SC 18608, [2015] 3 JIC 0502 (Unreported, Supreme Court, 5th March, 2015).

21. The point made in Croke about the approach to amendments and the need for justice not to

be defeated by technicalities has been relied on in numerous recent cases including Reddy v. Hyper

Trust Ltd. [2023] IEHC 278 (Mulcahy J.).

22. The critical issues are arguability, explanation, and lack of irremediable prejudice, all under

the umbrella of the interests of justice (see Keegan v. Garda Síochána Ombudsman Commission

[2012] IESC 29, [2012] 2 I.R. 580, [2012] 5 JIC 0103, B.W. v. Refugee Appeals Tribunal [2017]

IECA 296, [2018] 2 I.L.R.M. 56, [2017] 11 JIC 1501).

23. Broadly, the amendments are arguable. And they have now been explained, albeit that the

explanation is rather ingenuous and defiant – the applicant thinks the amendments are unnecessary

but wants to avoid an issue at trial. I can only construe that as meaning that if the amendments

are in fact needed, then the explanation for the amendments is the applicant’s lawyers’ error (as in

Keegan) – specifically an erroneous belief in relation to that issue. I think it would be unduly harsh

to penalise the applicant for a lack of guile in relation to how the explanation was phrased.

24. The matter to be explained is the failure to make the point originally within the statutory

time period. An applicant is not under any absolute obligation to explain on a day-by-day basis each

element of the delay after the expiry of that period, although in effect the lawyers’ mistaken view

as to the correct approach does explain that here. Indeed, it is clear that delay is not a bar to an

amendment, and the power to amend can be exercised during the trial, after judgment is reserved,

or at any time up to perfection of the final order (Wildgust v. Bank of Ireland [2001] 1 I.L.R.M. 24,

J.K. (Uganda) v. Minister for Justice and Equality [2011] IEHC 473, [2011] 12 JIC 1305 (Unreported,

High Court, Hogan J., 13th December, 2011)). The board majored on the applicant’s failure to seek

amendments after delivery of its own statement of opposition, but it was perfectly reasonable for

the applicant to await all opposition papers before deciding on the next move. The standard

directions set out in Practice Direction HC119 make clear that any applicant’s replying affidavit only

comes after all opposition papers are in, and not on a piecemeal basis. The fact that the State took

an entire year from the second amended statement of grounds to deliver opposition papers, even

bearing in mind that there were costs protection issues being debated, doesn’t particularly improve

the look of the board’s belligerent complaints regarding the applicant’s alleged delay here. In that

context, a delay of about 17 days from the State’s opposition to the applicant making the points it

has sought to make here is small potatoes.

25. As far as lack of irremediable prejudice is concerned, I have minimised prejudice to the

opposing parties by setting a trial date notwithstanding that the case is not fully ready.

26. Implausibly, the opposing parties claimed prejudice due to merely having to deal with the

points. That is wholly self-proving and circular and would defeat the court’s jurisdiction to amend.

Cognisable prejudice must stem from the fact of the belated alteration of the pleadings, rather than

the presence (if allowed) of the amendment itself: per Clarke J. in Woori v. KDB Ireland Ltd [2006]

IEHC 156, [2006] 5 JIC 1702 (Unreported, High Court, 17th May, 2006) at para. 3.2, per Collins J.

in Stafford v. Rice [2022] IECA 47, [2022] 3 JIC 0201 (Unreported, Court of Appeal, 2nd March,

2022) at para. 23, per Ferriter J. in Behan v. Deering Transport Ltd. [2023] IEHC 64, [2023] 2 JIC

1003 (Unreported, High Court, 10th February, 2023) at para. 10.

27. I set out in a table below the position in relation to each of the amendments claimed. I have

added a reference number for the purpose of this exercise, for ease of navigation.

28. In certain respects some further amendments are required which I will direct as terms on

which the claimed amendments should be allowed. Those terms are as follows, and any amendments

allowed are subject to those:

(i) Correct heading: The amended grounds should be headed Third Amended

Statement of Grounds, and should refer to the orders of 28th February, 2022, 7th

and 21st March, 2022 and the current order.

(ii) Removal of reference to opposition papers: All text phrased as a reply or by

reference to points made by the opposing parties should be removed. The statement

of grounds is meant to be a stand-alone document and should not be phrased as a

reply.

(iii) Argumentative matters to be moved out of the factual grounds section: It

will be a term of the amendments being allowed that argumentative statements in

the factual grounds section be moved to the legal grounds section. This includes

paras. 30 to 34 setting out alleged errors, 52 to 57 regarding transport, 66 to 68

regarding climate and 90 regarding water, which is essentially legal. Contested facts

can remain in the factual grounds section as long as they are purely factual. But

argumentative matters and mixed questions of fact and law should be in the legal

grounds.

(iv) Consecutive paragraph numbering: It will be a general term of the order allowing

amendments that numbering of paragraphs be by consecutive integers, starting with

1 and increasing upwards thereafter, and not re-starting for any new heading

(whether sub-grounds or factual grounds or otherwise). This greatly simplifies

references to the statement of grounds by the court or otherwise.

(v) Narrative rather than over-technical drafting: More generally the pleadings are

drafted in a way that uses an incredible density of technical references. One would

have to be forgiven for at least momentarily drifting into the undoubtedly unfair

speculation that this could be to discourage comprehension lest such comprehension

invite disagreement. But for the time being anyway, pleadings are to be digested

by humans rather than by AI, so drafting should bear that in mind. Every time a

reader comes to an unnecessarily tortured technical reference, she hits a speed

bump and a distraction, and runs the subconscious risk of irrecoverably losing

whatever level of interest she had in the first place regarding the point being made.

Pleadings should be phrased narratively in relatively understandable English or Irish

or any other permissible language. So technical references should be made readable

where possible and in particular all references to “E1” should be changed to “core

ground x”, “E2” should read “sub-ground x” and “E3” should read “factual ground

x”. Obviously this process should not be taken to extremes – patronisingly sub-

literate oversimplifications are even worse (but this applicant is in absolutely no

danger of going down that road). Essentially any communication with the court

should be on a level that presupposes a mutually respectful reasonable commonality

of comprehension – neither above the court’s head nor de haut en bas. (This tone

really should also apply to communications by the court as well, but that would take

us beyond what is necessary for present purposes.)

(vi) Glossaries to be at the end: Front-loading a glossary or other lengthy apparatus

merely forces the reader to engage in repeated page-downing in order to get to the

substance, if any. So such apparatus should be placed at the end of the grounds,

not at the start. Although this is small potatoes compared to the unhelpful way the

Law Reform Commission’s revised Acts proudly (and, I’m afraid, pointlessly to

almost everyone else) add a long list of all the legislation affecting the Act that they

have looked at before we even get to section 1 of any given Act. While the content

is excellent, the way it is presented could be a lot more user-friendly – their website

should really be considered as a shrine and monument to the page-down key.

(vii) Correction of errors: The terms will also include the correction of errors. In para.

1 of the factual grounds the reference to “self-cleaning” should be deleted. Factual

ground 69 should be a heading, not a ground (“Water”).

(viii) Purely consequential changes: Any consequential changes or link phrases

required by the amendments can also be included.

29. To avoid any further confusion at the hearing, the filed version of the third amended

statement of grounds should be a completely clean copy with totally consecutive numbering,

removing any tracking of amendments already made. But the applicant should provide the opposing

parties for information with a tracked version to allow them to confirm that the order has been

complied with.

Ref No. Amendment sought Disposition

1. Ground E2 §1 is intended to be read Refused – this merely spreads

as a whole, and each paragraph uncertainty and confusion. The

informs the others. grounds should be distinctly

intelligible.

2. The factual particulars are at Part E3 Refused – it is unnecessary to state

§1 in accordance with Practice that factual particulars are in the

Direction HC107. factual grounds section.

3. 1.3. That roof is a structure, enclosed Allowed – permissibly correcting an

supported on 4 sides by other error.

structures, with the result that the

proposed communal open space is

not open space for the purposes of

the Development Plan.

4. 1.5.1. The irrelevant material in this Allowed – this essentially removes

respect was the proposed structure “irrelevant consideration” as an issue

itself, which failed to constitute and re-phrases this as a point that the

“open” space, being roofed. applicant has already made

separately. Thus it is in the interests

of the opposing parties to box off this

issue in this way.

5. 1.5.2. Submissions relating to Allowed – this does not make any new

material contravention are at: legal claim but elaborates the facts.

1.5.2.1. Book 03 p1338, Council This should be placed in the factual

Chief Executive Report notes this is grounds section.

all one structure. 1.5.2.2. Book 03 p

1391 CRA sub, p8.

1.5.2.3. Book 03 p 1443, 1447,

Marston Planning sub. 1.5.2.4. Book

03 p1481, Hugh McIlvenna, no open

space. 1.5.2.5. Book 03 p1541, Aine

Kidd 1.5.2.6. Book 03 p1995

Horsburgh Family

6. 1.7. Allowed – this is acceptable

The following additional particulars clarification.

are provided in relation to the

Grounds of Opposition pleaded by However, all references to opposition

the Developer, Savona Ltd. papers should be deleted from this

1.7.1. and all other amendments.

The Board has erred by considering

the internal part of a structure to be

open space. The proposed purported

open space is not open space,

because it is not open, and therefore

§16.10.1 of the Development Plan is

breached.

1.7.2.

§1.6.3 refers back most particularly

to §1.3 and 1.4.

7. 2.2. It failed to take “appropriate and Allowed – while the board complained

reasonable regard” of the BRE that these were new points, they were

Guidelines as required by part 3.2 of largely already there, albeit mis-

the Height Guidelines, and failed to located in the factual grounds section.

“be guided” by those Guidelines as

required by part 16.10.1 of the However, as a term of the

Development Plan, in particular the amendment, the issues relied on

recommended average daylight should be particularised by reference

factor (ADF) of 5% for a well daylit to the particular parts of the BRE

space guidelines not followed and the

particularised at E3 §31-32, the erroneous factual steps in that regard.

vertical sky component for windows

particularised at E3 §30, and the loss Also, as regards the opening

of light to rear gardens particularised underlined words, this amendment

at E3 §33, and the loss of light due has been allowed previously but it will

to light passing through the proposed be a term of the further amendments

ETFE root particularised at E3 §34. now being allowed that “in particular”

2.2.1. §2.2.2 to 2.2.6 are advanced be changed to “specifically” in the

by way of further particulars. interests of certainty.

2.2.2. The Applicant is not required

to identify what rooms are required

to meet the ADF threshold. What is

pleaded is that the Board failed to

apply the test posited AT ALL, and

failed to determine whether any

room was required to be a “well

daylit space” and whether it met the

5% threshold for such a room.

2.2.3. Part E3 §2-34 set out how the

Developer and Board approached the

matter and provide sufficient

particulars to demonstrate that the

Board did not consider or apply, and

was not guided by, the concept of

5% ADF for a well daylit space.

2.2.4. They particularise that the

Board did not determine which

rooms, if any, should constitute a

well daylit space, and did not apply

the 5% ADF rule at all. Instead, it

applied the minimum values for

kitchens, living rooms and

bedrooms, but applied them as

though they were recommended

levels which could be breached,

rather than minima which should be

respected.

2.2.5. In circumstances where the

Board has not sought to justify its

non-compliance with the BRE

Guidelines by asserting that it

applied alternative compensatory

design solutions, the plea at §2.3 will

not arise.

2.2.6. The Applicant reserves its

position in the event that the Board

seeks to argue that in fact it adopted

a compensatory design solution

2.2.7. The Applicant relies on the

Affidavit of Dr Paul Littlefair in

relation to the factual matters set out

at E3 §30 to 35.

8. 2.4.1. By way of clarification, Ground Allowed – essentially narrows the

2.4 relates to absence of reasons in case and is legitimately clarificatory.

respect of both Grounds 2.2 and 2.3.

It is not confined to compensatory

design solutions.

9. 2.10. By way of further particulars in Refused – unnecessary and defensive

reply to the Board’s Statement of verbiage that is repetitive of points

Opposition, the following are noted: already made.

2.10.1. Part E3, §2-34 set out how

the Developer and Board approached

the matter and provide sufficient

particulars to demonstrate that the

Board did not consider or apply, and

was not guided by, the concepts of

5% ADF for a well daylit space.

2.10.2. They particularise that the

Board did not determine which

rooms, if any, should constitute a

well daylit space, and did not apply

the 5% ADF rule at all. Instead, it

applied the minimum values for

kitchens, living rooms and

bedrooms, but applied them as

though they were recommended

levels rather than minima.

2.10.3. Insofar as they provide no

detail as to “how” the Board

approached “(i) the issue of alleged

non-compliance with the

recommended 5% ADF for well-lit

daylit spaces, and (ii) the alleged

failure to identify a rationale for

compensatory design solutions”, this

is because they recount the Board’s

failure to do so at all.

2.11. The following additional

particulars are provided in relation to

the Grounds of Opposition pleaded

by the Developer, Savona Ltd.

2.11.1. Particulars already given at

E2 §2 and E3 §2 - §30 fully

particularise how or in what manner

the Board failed to correctly interpret

and apply the Building Height

Guidelines or how or in what manner

the Board failed to have "appropriate

and reasonable regard" to the BRE

Guidelines.

2.11.2. There is no requirement to

particularise what spaces in the

Proposed Development are subject

to the 5% average daylight factor

because the argument is that the

Board failed to have regard to that

factor at all, not that it failed to apply

it to particular rooms.

2.11.3. Factual particulars in relation

to the relationship between the

Building Height Guidelines and the

BRE Guidelines for the purposes of

Ground E2 §2.5 is contained in Part

E3, particularly at §2 - §6, in

accordance with [sic – ends here].

10. 3.1.3. By way of further particulars, Allowed on terms – this particularises

the relevant material referred to is what the issue is but the applicant

the view of the NTA and Dublin Bus must re-phrase the existing 3.1.1 and

as to whether there was such this ground in terms of failure to

capacity. obtain information (which is what the

issue is), not failure to have regard to

information.

11. 3.6.1. By way of further particulars, Allowed – legitimately clarificatory.

there are two aspects to the concept

of “proper planning and sustainable

development”: first, that the

Proposed Development must be in

accordance with the proper planning

of the area; second, that it must

constitute sustainable development.

Ground E2 §3.6 relates to the latter

element.

3.6.2. The Board failed to consider

the question of public transport

capacity raised in submission, or the

likely impact on the environment

arising from issues relating to lack of

capacity in public transport.

3.6.3. For the avoidance of doubt, no

issue in relation to environmental

impact assessment is pleaded in this

Ground.

12. 3.8.1. By way of further particulars, Allowed – this is essentially

it is confirmed that Ground E2 §3.7 clarificatory.

and 3.8 relate to the Board’s error in

its interpretation of National

Strategic Objectives of the National

Planning Framework, or failure to

apply those provisions or

requirements. Those Objectives are

part of the National Planning

Framework to which the Board is

required to have regard pursuant to

S9(2)(g) of the 2016 Act. In its

Decision the Board stated it

considered that permission should be

granted “having regard to

Government Policies as set out in the

Project Ireland 2040 National

Planning Framework.” The Board

cited two objectives in particular

(Objectives 13 and 35), but made no

reference to Strategic Outcomes 1

and 4 which are relevant to public

transport. It failed to make any

determination as to whether the

Objectives at Outcomes 1 and 4

would be served, or impeded, by the

Proposed Development, or to give

any reasons in relation to them, as

set out at §3.8.

13. 3.12. By way of additional Allowed on terms – this is basically

particulars, the Applicant adds the particularising having regard to

further particulars at 3.13 to 3.16 matters in the factual grounds

below. section. However, the amendment

3.13. The Applicant relies on the needs to be made more specific.

factual particulars in Part E3 §38-68 Insofar as the NPF or RSES is

as the factual basis for this Ground. concerned, the claim should be

3.14. As set out at E3 §49, Chapter phrased as a failure to have regard.

5 of the RSES (Regional Spatial and Insofar as Dublin Bus and the NTA is

Economic Strategy) for the Dublin concerned, that should be phrased as

area states that, “the NTA's a failure to obtain material. The

Transport Strategy for the Greater specific Dublin Bus email issue is

Dublin Area (2016) provides a addressed below.

framework for the planning and

delivery of transport infrastructure

and services in the Greater Dublin

Area (GDA) over the period 2016-

2035," and that "alignment of the

MASP and the GDA Transport

Strategy is key to the coordination of

policy making and investment within

the Dublin Metropolitan Area.”

(MASP – Metropolitan Area Strategic

Plan.)

3.15. The Board is required by

S9(1)(a)(iii), S9(2) and S18 of the

2016 Act, and S143 of the 2000 Act,

to consider any relevant information

in so far as it relates to the likely

consequences of the Proposed

Development for proper planning

and sustainable development in the

area in which it is proposed to situate

the development, and the likely

effects on the environment of the

proposed development, if carried

out. It is required to have regard to

the policies and objectives for the

time being of the Government, a

State authority, the Minister,

planning authorities and any other

body which is a public authority

whose functions have, or may have,

a bearing on the proper planning and

sustainable development of cities,

towns or other areas, whether urban

or rural. (It is noted that no “public

authority” has been prescribed for

this purpose: the obligation to have

regard to the views of the NTA and

Dublin Bus arise under S9(1).)

3.16. In this regard, it is obliged to

have regard to government policy,

including National Strategic

Outcomes Objectives of the National

Planning Framework, and it is

obliged to have regard to other

relevant material, in particular the

views of the statutory providers of

transport services, the NTA and

Dublin Bus, to consider those

matters before taking its decision,

and then to set out its consideration

in the decision. It failed to do so, and

it thereby erred in law and

contravened those provisions.

14. 3.17. The following additional Refused – no proper factual basis has

particulars are provided in relation to been made out as to how the board

the Grounds of Opposition pleaded committed a legal error in failing to

by the Developer, Savona Ltd. have regard to an email that wasn’t

3.17.1. For the avoidance of doubt, sent to it. Any other points appear to

the material to which the Board failed have been incorporated in the

to have regard is as set out at E2 previous amendment.

§3.1 and §5.1, namely evidence

generated by Dublin Bus and

evidence in relation to the Bus

Connects project (which would

probably be generated by the

National Transport Authority which is

the public authority responsible for

Bus Connects.[)] In this respect, the

email from Dublin Bus exhibited to

the Affidavit of Julian Keenan might

potentially have addressed this

deficiency if provided as part of the

application, save that the Applicant

and other objectors would or could

have questioned its adequacy, for

instance because: it is an informal

document; the question it addresses

is not provided; the person who

generated it is unknown, it was sent

to a third party, Thomas Anderson,

whose identity is not known; and it is

hearsay before the Court.

3.17.2. In addition, the point which

the email from Dublin Bus addresses

relates to capacity in buses travelling

from Dublin City to Clontarf in the

morning, and from Clontarf to Dublin

City in the evening, against the

predominant flow of rush hour

traffic.

15. 4.2.1. It failed to “be guided” by “in Allowed – as an EU law point, this

particular the recommended average legitimately mirrors the clarification of

daylight factor (ADF) of 5% for a well the issue as a domestic law point.

daylit space.”

16. 4.17. The following additional Allowed in part – the legislation

particulars are provided in relation to referred to is generally already cited

the Grounds of Opposition pleaded in the existing grounds. Arts. 3(3)

by the Board: and 4 TEU are mentioned in core

4.17.1. The breach of EU law alleged ground 4. Sub-ground 4 references

in this Ground is a failure to consider Regulations 2018/842 and

the requirement of sustainable 2021/1119. So this amendment is

development under A3(3) of the essentially legitimately

Treaty on European Union. Failure to particularising. The references to

consider that objective, as mediated opposition papers should, as noted

through the Binding Reductions above, be deleted throughout.

Regulation, European Climate Law

and Climate Neutrality Regulation is

also pleaded.

4.17.2. Without prejudice to the

above, the Applicant will emphasise

the following:

4.17.3. In Regulation 2021/1119,

the Climate Neutrality Regulation,

Recitals 3, 4, 6, 9, 10, 13, 14, 20,

25, 32, 34, 35, and Articles 1, 2, 4,

5 and 9.

4.17.4. In Regulation 2018/842, the

Binding Reductions Regulation,

Recitals 2, 8, 9; Articles 1 to 4;

4.17.5. Article 3(3) of the Treaty on

European Union is sufficiently precise

in itself to sustain this ground on the

basis of Article 4(3) thereof.

4.17.6. For the avoidance of doubt,

this ground relies on the submission

of Clontarf Residents’ Association,

relating to buildings in which the

lights have to be left on, even in

daylight, at p7.

4.17.7. As pleaded, the claim is one

of failure to have regard to relevant

material, or to explain how regard

was had to it. No ground is advanced

as to what the outcome would have

been if the Board had considered the

matter in accordance with law.

4.17.8. As pleaded above, the

obligation is to refrain from any

action that would impede

achievement of EU objectives, such

as the objective to reduce emissions

of greenhouse gases as set out in the

European Climate Law and the

Binding Reductions Regulation

comes from A4(3) of the Treaty on

European Union.

4.18. The following additional

particulars are provided in relation to

the Grounds of Opposition pleaded

by the Developer, Savona Ltd.

4.18.1. The legal source of the

obligation on the Board to have

specific regard to the National

Climate Policy Position and/or the

National Adaptation Framework, as

set out at E2 §2 and §4 and E3 §58

- §68, lies in the following:

4.18.2. S9(6) of the 2016 Act which

authorizes the Board to grant

permission in material contravention

of the Development Plan where it

would do so if S37 of the 2000 Act

applies, and S37 allows such grant

where the Board considers it is

justified having regard to any

relevant policy of the Government,

the Minister or any Minister of the

Government, and

4.18.3. A4(3) of the Treaty on

European Union which requires the

State and its authorities, which

include the Board, to refrain from

any action that would undermine the

achievement of objectives of

European Union law, including the

objectives of the European Climate

Law and the Binding Reductions

Regulation.

4.18.4. With respect to §4.14 and

4.15 above, the specific provision or

requirement of the European Climate

Law and Binding Reductions

Regulation, are set out at E3 §62 -

§65. A2 and A4 of the Binding

Reductions Regulation are also relied

upon, but the objective at Recital 12,

the reduction of transport emissions,

is the key provision in this instance.

17. 5.17. The additional particulars Allowed on terms – as drafted this is

provided at E2 §3 in this amended overly defensive and impenetrable. It

Statement of Grounds in relation to should simply say that the domestic

matters raised by the Board and by law particulars apply to the

the Developer, Savona Ltd, are corresponding EU law claim mutatis

repeated in respect of this Ground, mutandis. It should not refer to

E2 §5, as though set out here. matters raised by the opposing

parties.

18. 6.9.1. The Applicant relies on Part 12 Allowed – acceptably clarificatory.

of the Inspector’s Report and on Part Directive 2000/60 is already referred

7 of the Natura Impact Statement to in the pleadings at core ground 6.

which show potential impact on

habitats and species within the water

body through pollution and / or

sediment transfer, but do not

consider impact on the water body

itself.

6.9.2. For the avoidance of doubt,

the Applicant relies on the provisions

of Directive 2000/60 in interpretation

of national implementing legislation.

19. Practice Direction 107 requires that Refused – this is based on the

particulars of legal grounds and incorrect premise that mixed

factual particulars be separated. questions of fact and law should be in

Factual particulars are located in Part the factual grounds section. They

E3 as per that Direction. Part E3 is should not. Contested facts however

not intended as a statement of may be in the factual grounds section

uncontested fact, but as a statement as long as they are purely factual.

of the factual particulars of the legal Mixed questions should be in the legal

infringements pleaded in Part E2. grounds section.

20. 30.1. The Applicant relies on the Refused – this appears to be an

report and Affidavit of Dr Littlefair in attempt to incorporate the whole

this regard. affidavit by stealth into the grounds.

That creates unacceptable

uncertainty.

Time for filing of third amended statement of grounds

30. Relief 3 claims:

“If necessary, an Order pursuant to Order 84 Rule 21 of the Rules of the Superior Courts as

amended and / or Section 50(8) of the Planning and Development Act 2000 as amended,

extending time for the Applicant to file such amended Statement of Grounds.”

31. The concept of extension of time applies to the initiation of the proceedings, or to

amendments that add reliefs challenging wholly new decisions (not for example interim decisions

that are included for the avoidance of doubt). Delay is a factor to be taken into account in the

balance of justice but there is no rule that any amendments have to be sought within 8 weeks or

else extension of time applies. Pleadings carry with them the inherent possibility of being amended

later (see Krops v. Irish Forestry Board Ltd [1995] 2 I.R. 113, [1995] 2 I.L.R.M. 290, 1995 WJSC-

HC 2649, [1995] 4 JIC 0601; Smyth v. Tunney [2009] IESC 5, [2009] 3 I.R. 322, [2009] 1 JIC

2103, O'Leary v. Minister for Transport, Energy and Communications [2000] IESC 16, [2001] 1

I.L.R.M. 132, [2000] 5 JIC 1801 and Keegan itself).

32. The court should of course set a time for the filing of any amended statement of grounds on

foot of the order allowing an amendment and an order to that effect is set out below.

Relief regarding opposition papers

33. Relief 4 claims:

“In the alternative to reliefs 1 and 2 above, an Order pursuant to Order 84 Rule 26 of the

Rules of the Superior Courts as amended, striking out so much of the Statements of

Opposition of the First Respondent, An Bord Pleanala, and the First Notice Party, Savona

Ltd, as maintain that the Applicant’s Statement of Grounds is insufficiently particularised,

the portions to be struck out being those struck through in orange on the annexed marked

copies of the said Statements of Opposition at Schedule 3 Parts 1 and 2 respectively.”

34. This seems to be again based on the false premise that opposing parties cannot object in

their papers to vague pleadings by an applicant without taking some other procedural step such as

seeking particulars. They can so object. This relief is therefore refused.

Costs

35. My provisional view on costs is that given that a number of amendments were refused, and

that such benefit as accrued to the applicant by the amendments that were allowed was balanced

by the procedural confusion caused by the applicant in raising misconceived issues regarding

particulars and in mistakenly objecting to the opposing parties’ pleadings insofar as that relief arose,

so in the absence of submissions to the contrary, there would be no order as to costs of the motion.

Order

36. The order made on 24th May, 2023 was that:

(i) the need for the matter to be certified as ready be dispensed with prior to fixing a

date;

(ii) the matter be adjourned to the List to Fix Dates;

(iii) the applicant have liberty to file an affidavit explaining the request for amendments

within 7 days; and

(iv) the motion be listed for further hearing on 12th June, 2023.

37. The order made on 12th June, 2023 was that:

(i) reliefs 6 to 8 in the motion be adjourned generally by consent; and

(ii) the substantive matter be fixed for hearing commencing on 21st November, 2023.

38. For the reasons set out in the judgment, it is now ordered that:

(i) reliefs 1, 4 and 5 in the applicant’s notice of motion be refused;

(ii) relief 2 be granted to the extent and on the terms set out in the judgment;

(iii) pursuant to relief 3 the third amended statement of grounds be filed within two

weeks from the date of this judgment incorporating all past and current amendments

in non-tracked form;

(iv) a fully tracked version of the third amended statement of grounds be furnished for

information to the opposing parties in the same timescale;

(v) the matter be listed for mention on the sitting Monday next following the expiry of

that two-week period;

(vi) subject to any application in that regard, amended opposition papers be filed within

four weeks from that date (excluding August), in relation to which the opposing

parties will not be confined to responding to the amendments and will be at large as

to how they wish to phrase or re-phrase their opposition; and

(vii) unless any party lodges a reasoned written legal submission to the contrary within

a 7-day period from the date of this judgment, the foregoing order be perfected with

no order as to costs.