High Court dismisses judicial review application where applicant is estopped from raising previously decided issues.

Neutral Citation Number: [2007] IEHC 327

THE HIGH COURT

JUDICIAL REVIEW

[2005 No. 291 J.R.]

[2005 No. 52 COM]

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963–95

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WICKLOW COUNTY COUNCIL, ARKLOW URBAN DISTRICT COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION,

ARKLOW ACTION GROUP, WICKLOW PLANNING ALLIANCE, AN TAISCE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION,

COAST WATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

Judgment of Mr. Justice Clarke delivered the 5th October, 2007

1. Introduction

1.1 These proceedings form part of a very long running dispute concerning a proposal on the part of Arklow Urban District Council

(“Arklow”) to build a waste water management treatment plant for the purposes of servicing increasing needs of the Arklow area.

These, and other connected, proceedings have a long history. The applicant (“Arklow Holidays”) challenged, in this Court, an initial

planning permission granted by the first named notice party (“Wicklow Council”). That challenge failed. Thereafter an appeal as to the

merits of the planning permission was pursued to the first named respondent (“the Board”) which upheld the grant of permission

subject to conditions. These proceedings were commenced with a view to challenging that decision of the Board on appeal. I will set

out the relevant procedural history of the respective proceedings in due course.

1.2 In accordance with the requirements of s. 50 of the Planning and Development Act, 2000 (“the 2000 Act”), leave to seek judicial

review was sought on notice to the respondents and the various notice parties. Some, but not all, of the notice parties participated.

For the reasons which I set out in an earlier judgment in these proceedings on the 18th January, 2006 [2006 (IEHC) 15], I was

persuaded to give leave to apply for judicial review pursuant to s. 50 of the 2000 Act relating to some but not all of the grounds

advanced.

1.3 At para. 4.1 of that judgment, I identified six groups of grounds in respect of which leave had been sought. As set out later in

that judgment, I was persuaded that leave should be granted only in respect of the groups of grounds identified at 2, 3 and 5 in that

paragraph, which were in the following terms:-

“2. That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have

regard, as it is said it did, to environmental questions, those matters being properly ones for the Environmental Protection

Agency (“EPA”).

3. That the Board failed to carry out a proper environmental impact assessment (“EIA”) in relation to the whole of the

project.

5. That the Urban District Council did not have a sufficient interest in the property which was the subject of the planning

application to entitle them to make the application.”

1.4 The matter then proceeded to a full hearing at which those grounds were argued in detail.

2. Issues

2.1 The issues which I have to decide include, therefore, questions as to whether any of the grounds which I have identified are

made out. At the substantive hearing only the Board and Arklow Council, of those opposing the application, were represented

notwithstanding the fact that both Wicklow County Council and the State respondents had been represented at the leave hearing.

Wicklow County Council indicated that it did not feel that it had anything to add to the proceedings and was prepared to abide by the

result. By reason of the refusal of leave in relation to some of the grounds which had been advanced at the leave application, the

State respondents were no longer necessary or proper parties to the full hearing.

2.2 The hearing, therefore, proceeded on the basis of the application for judicial review being opposed by the Board and Arklow

Council. In addition to the three groups of grounds in relation to which leave had been granted, a further issue or point of defence

was argued at the hearing before me as a preliminary objection. It should be noted that this issue had been raised by those opposing

the judicial review at the leave stage, but I was not, at that time, and for the reasons which I set out in my judgment, satisfied that

it could be determined that the resolution of the issue concerned was sufficiently clear so as to necessarily provide an answer to

these proceedings, at that leave stage. In other words while considering the point to be of substance, it did not, it seemed to me,

prevent Arklow Holidays from having established substantial grounds. The issue concerns a contention, on the part of those opposing

the judicial review, that Arklow Holidays are now estopped from raising any of the points which are now asserted, on the basis that

those points would have been equally applicable, if they be good points, to the original grant of planning permission. It is said that

none of those points were raised in the challenge to the planning permission. It is, therefore, argued that having regard to the so

called rule in Henderson v. Henderson (to which I will return), Arklow Holidays are now precluded from raising those issues at this

stage.

2.3 There are, therefore, four matters which arise in this substantive application.

The first is as to whether those opposing the application are correct in their contention that Arklow Holidays are now precluded from

raising any of the issues concerned.

2.4 If, and to the extent that, Arklow Holidays are not so precluded in relation to any or all of the grounds in respect of which leave

was given, then such of the three matters in respect of which leave has been granted as are not thus excluded, also fall for

determination.

2.3 In the circumstances, it seems to me to be appropriate to turn, firstly, to the question of whether Arklow Holidays are, in fact,

precluded from raising any of the issues.

3. The preliminary objection- the facts

3.1 The original judicial review proceedings in respect of the grant of planning permission in this case were commenced on the 10th

September, 1999 by Arklow Holidays naming Arklow and Wicklow County Council as respondents. Those proceedings bore Record No.

1999 No. 358 J.R. It is fair to say that in those proceedings Arklow Holidays raised a significant number of legal issues which, it was

alleged, rendered the grant of the planning permission concerned invalid. As part of the process Arklow Holidays were given leave to

amend their grounding statement to enable the relief claimed to be more fully set out. This was done on the 13th November, 2000.

3.2 On the 15th October, 2003 Murphy J. refused Arklow Holidays all of the relief sought. Further on the 3rd February, 2004 Murphy J.

refused an application for the necessary certificate to enable an appeal to be brought to the Supreme Court.

3.3 It would seem that none of the grounds which are now before this court were, in fact, raised by Arklow Holidays in the challenge

to the original planning permission which was ultimately dismissed by Murphy J. In that context it is necessary to examine the grounds

now raised for the purposes of determining whether they could (or indeed should) have been raised at that time. It is appropriate to

address each of the groups of grounds in turn.

3.4 As noted at par. 1.3 above the first group of grounds concern the question of the applicably of the Waste Management Act, 1996

(“the 1996 Act”) to the plant. The issues concerned raise mixed question of law and fact but centre on the question of whether the

proposal which was under consideration by the Board for the waste management treatment plant concerned was one which required a

licence under the 1996 Act. If it does, then, it is argued that it was wrong of the Board to consider environmental pollution questions

in determining whether or not to grant a planning permission or the conditions to be imposed on such a grant, for those matters, it is

in turn argued, are properly within the jurisdiction of the EPA.

3.5 If there is any merit to that point it is manifestly clear that it applied with equal strength to the considerations of Wicklow County

Council in granting the original planning permission. Wicklow County Council engaged in a similar exercise to that conducted by the

Board and included in its consideration an assessment of environmental pollution issues. The planning permission with which both

Wicklow County Council and the Board were concerned was, of course, the same planning permission. If, as is now argued, it was

impermissible for the Board to have regard to the relevant environmental pollution issues, then it follows that it was equally

impermissible for Wicklow County Council to have similar regard. Both the Board and Wicklow County Council imposed conditions which

appear to be designed to meeting such environmental concerns. If the Board was wrong in so doing then it equally follows that

Wicklow County Council was wrong.

3.6 It, therefore, seems to me to follow that, if there is any legitimate case to be made to the effect that the Board was wrong, on

the facts of this case, in considering environmental pollution factors, then Wicklow County Council was equally wrong. It, it turn,

follows that if there is any validity to the argument that the planning permission granted by the Board is invalid on these grounds,

then the original decision of Wicklow County Council to grant planning permission (or more accurately to give notice of intention to

grant planning permission) was also invalid on virtually identical grounds.

3.7 It, therefore, follows that the grounds now relied on under this heading are grounds which could have been agitated, if they have

any merit, in the original application which sought to challenge the planning decision of Wicklow County Council.

3.8 Similar considerations appear to me to apply to the second set of grounds raised. Under this heading it is suggested that the

Board failed to carry out a proper environmental impact assessment (“EIA”) in relation to the whole of the project. The underlying

argument under this heading stems from the fact that the environmental impact statement (“EIS”) submitted on behalf of Arklow, as

part of the planning process, addressed itself only to the waste water treatment plant itself and some, but not all, of the ancillary

works that would be necessary to bring the plant into operation. The EIA carried out by the Board does not, it is argued, go, to any

significant or adequate extent, so far as its scope is concerned, beyond the EIS. It is, therefore, argued that the Board failed to carry

out an appropriate EIA in relation to some of the project and that the permission granted is, therefore, flawed.

3.9 However, an identical process was engaged in by Wicklow County Council at the stage of the original planning application. The

EIS submitted by Arklow is the same EIS which was before both Wicklow County Council and the Board. There is no suggestion that

Wicklow County Council carried out a wider assessment than that carried out by the Board. In those circumstances it also follows

that, if there is any validity to the point raised, so as to render invalid the planning permission granted by the Board, it follows that

the same argument could have led to the original decision by Wicklow County Council being quashed on an identical ground.

3.10. The third group of issues concerns the interest of Arklow in some of the property which was the subject of the planning

application. The underlying point in respect of this aspect of the case concerns the fact that Arklow required to connect the waste

water treatment plant to the town. While it had exercised compulsory purchase powers in respect of the lands on which the plant

itself was to be constructed, no such exercise had been conducted in relation to obtaining the necessary interests in the land

between the town and the plant to enable that aspect of the project to be completed. It should be noted in passing that even the

compulsory purchase powers in respect of the land for the plant itself had been exercised only to the point of obtaining a confirmation

of the entitlement to compulsorily acquire which had not, at any material time, been formally exercised by the service of a notice to

treat. On the other hand it has to be said that Arklow had within its complete discretion the acquisition of at least those latter lands

by the simple expedient of the service of such a notice to treat.

3.11 Whatever may be the merits or otherwise of any such argument it is clear that exactly the same situation pertained at the time

when the original notice of intention to grant planning permission was given by Wicklow County Council as pertained at the time when

the Board gave its decision. It again follows that if any of the points under this heading be good points, they were equally available to

challenge the grant of the original planning permission.

3.12 That review of the factual basis for the challenges which are now before the court leads only to one conclusion. Each of the

grounds now pursued raises issues which were equally capable of having been raised in respect of the original planning permission

process conducted by Wicklow County Council. If any or all of the points have any merit sufficient to justify the quashing of the grant

of permission by the Board then it equally follows that the same ground would have, had it been raised and properly argued, led to the

quashing of the original decision by Wicklow County Council to notify an intention to grant permission.

3.13 Before going on to deal with the legal issues which flow from that factual situation, it is of some importance to point out that the

factual situation which I have identified as arising in this case will by no means necessarily arise in every case. There is, of course, an

established jurisprudence which is concerned with questions as to whether, in any individual case, an appeal to the Board is a more

appropriate remedy in respect of a complaint relating to the planning process and planning decisions of a local authority, rather than a

judicial review of the decision of the planning authority concerned. There are certainly cases where this Court has held that an appeal

is a more appropriate remedy and that, therefore, judicial review in relation to the original planning decision of the local authority is

not appropriate. However, it is equally clear that there will be some cases where judicial review will be considered to be a more

appropriate means of challenging that original decision.

3.14 Obviously some cases where judicial review might, in principle, be the more appropriate remedy will, nonetheless, fail on the

merits. In some such circumstances there may, in any event, be an appeal to the Board so that the possibility of a second challenge

(being one to the decision of the Board) arises. In such an eventuality it will by no means always be the case that the sort of

grounds that might be advanced as a basis for a challenge to the decision of the Board would have been available to the party

concerned in an earlier challenge to the original decision of the relevant local authority. The matters complained of may relate to

actions taken by the Board which had no equivalent in either the process conducted by, or decision of, the local authority. The Board

may impose terms or conditions in respect of the grant of the planning permission which are different from those which the local

authority considered appropriate. The challenge may relate to the appropriateness of such matters. In addition, the challenge might

concern the process before the Board itself which would, of course, have no application to the original planning decision. Many other

examples could be given. It does not, it therefore needs to be noted, follow that, just because there was a challenge to an original

planning decision, all of the grounds which might be raised in a challenge to a subsequent decision by the Board could have been

raised at the earlier stage of a challenge to that original permission.

3.15 It just happens that on the facts of this case all of the grounds which Arklow Holidays are now permitted to rely on (after the

leave application) are grounds which could have been raised as a challenge to the original planning decision. Against that factual

background it is necessary to turn to the legal principles applicable.

4. The Rule in Henderson v. Henderson

4.1 The jurisprudence in this area stems from Henderson v. Henderson (1843) 3 Hare 100. The so-called rule in that case was

considered by the Supreme Court in A.A. v. The Medical Council [2003] 4 I.R. 302 where Hardiman J. (speaking for the Supreme Court)

noted the principle to the effect that a party to previous litigation is bound not only by matters actually raised but by matters which

ought properly have been raised but were not. It is clear, however, that Hardiman J. also determined that a rule or principle so

described could not, in its nature, be applied in an automatic or unconsidered fashion and that the public interest in the efficient

conduct of litigation did not render the raising of an issue in later proceedings necessarily abusive where, in all the circumstances, the

party concerned was not misusing or abusing the process of the court.

4.2 It is clear, therefore, that a plaintiff or applicant is at risk of being prohibited from raising, in a second set of proceedings, an issue

which, it can properly be said, could and should have been raised in an earlier set of proceedings relating generally to the same

subject matter.

4.3 There is, however, an overriding discretion in the court to consider whether the raising of the issue in the second set of

proceedings truly amounts to an abuse of process and, if it does not, then the party may be permitted to proceed.

4.4 As I noted earlier, this issue was raised by those opposing the leave in this case. In that regard I noted in my judgment at the

leave stage that:

“The precise application of such principles in the field of public law challenges to the validity of decisions (and in particular

decisions made in what is often a two-part process) remains, in my view, open to argument …

In those circumstances it seems to me that it would be necessary for Arklow to establish that a distinction can and

should be made between the types of cases in which the principles to which I have referred were established and public

law challenges of the type which the court is concerned with in this case.”

The reference to Arklow is a reference to Arklow Holidays.

4.5 It is clear, therefore, that the rule in Henderson v. Henderson has potential application to the facts of this case. There is no

doubt but that each of the issues which Arklow Holidays is now entitled to pursue, is an issue which could have been raised in the

original challenge to the grant of planning permission. The question which I must address is as to whether there are any reasons why

the rule in Henderson v. Henderson should not apply in a case such as this. Two possible bases for the non-application of the rule

need to be considered.

4.6 The first concerns the extent of the applicability of the rule to a process such as that with which I am concerned, that is to say

a two-stage statutory process which has been described in a number of decisions of both this Court and the Supreme Court as

forming part of a single process.

4.7 Secondly, it is necessary to consider whether there are any factors present which would make it appropriate for the court to

exercise the discretion identified by Hardiman J. in A.A. against imposing the full rigours of the rule.

4.8 I propose to consider both of these matters in turn.

5. Does the rule apply

5.1 There seems to me to be both a domestic and a European aspect to this question. It is clear that the rule applies, in principle, to

public law challenges. A.A. itself involved a challenge to a process before the Medical Council. The fact that the same point could

have been raised in an earlier challenge to the same process debarred the applicant from being entitled to raise it at a second

challenge.

5.2 Indeed Hardiman J., at p. 318, noted the following:

“The respondent is discharging a public function in the hearing and determination of allegations of professional misconduct

as well as observing the profession’s interest in promoting high professional standards and public confidence.

The allegations in question here relate to a time some six and a half years ago and it is manifestly in the interest of the

applicant, the respondent, the profession, the complainants and the public generally that these be resolved as soon as

possible and without unnecessary or unreasonable delay.”

At p. 320 Hardiman J. went on to state that:

“The applicant has numerous legal and constitutional rights in relation to the Inquiry into the allegations against him which

he has quite properly and exhaustively been at pains to assert. But so also have the other participants in the procedures

envisaged by Part V of the Medical Practitioners Act, 1978 and the public in whose interest that measure was enacted. If

these rights, as well as those of the applicant, are to be respected, the Court cannot tolerate a further challenge to the

Inquiry and its proceedings made, without explanation, two years after the first, and which could and should have been

incorporated with it.”

5.3 Similar principles were applied by Hanna J. in Mitchell v. Ireland [2005] IEHC 102 and by Kearns J. in Akram v. Minister for Justice

[2004] 1 I.R. 452. Both of those proceedings involved public law considerations in a judicial review process.

5.4 As a matter of domestic law there does not, therefore, it seems to me, appear to be any reason why the rule in Henderson v.

Henderson should not apply with at least equal force in relation to judicial review proceedings. Such proceedings involve the exercise

by public or quasi-public bodies of a public law role. There will almost invariably be similar considerations to those identified by

Hardiman J., in respect of the Medical Council, which mandate that that public role be carried out in an expeditious way in the

interests of the public generally and those persons whose rights and obligations may fall to be governed by the public body

concerned. It seems to me that the principles apply with equal force, if not greater, in relation to the planning process. It has been

commented on in numerous recent decisions of the superior courts that much of the recent legislative adjustments to the provisions

governing challenge to planning decisions are designed to ensure that finality will be brought to such matters, one way or the other,

at the earliest possible time. Those who seek planning permissions and in respect of whose application objections are made, are

entitled to have those objections determined, one way or the other, in a timely fashion. The 2000 Act imposes significant time limits

on the conduct by local authorities and the Board of the planning process. The legislation also imposes significant time limits and other

measures in relation to the bringing of challenges to such decisions before the courts. It is clear that there is a significant public

interest involved in the bringing of early finality to any challenge to a planning decision.

5.5 If it were to be ordinarily permissible for a party to raise some points at the stage of a challenge to an original favourable planning

decision by a local authority and then raise other points (which could have been raised on the original occasion) at a subsequent

challenge to a decision on appeal to grant permission by the Board, then the very mischief identified by Hardiman J. in the passages

from A.A. which I have cited would occur. The rights of all concerned, including the applicant for planning permission, the planning

authorities and the Board, and the public generally, in the timely determination of planning applications, would not be respected.

5.6 I am satisfied, therefore, that the logic identified in A.A. applies with at least equal force in respect of planning challenges. I can

see no reason, therefore, deriving from domestic law, to suggest that either principle or authority should lead to any different view

being taken of the application of the rule in planning cases to other cases.

5.7 Counsel for Arklow Holidays did touch upon a European Union dimension to the matter. It is correct, as he argued, that all organs

of a Member State are required to seek to endeavour to ensure compliance with the obligations of the Member State concerned under

applicable measures of the competent authorities of the EU. In appropriate circumstances that obligation applies equally to the

courts. In those circumstances it was argued that this court should lean against excluding, on procedural grounds, a challenge based

on EU legal entitlements and obligations, on the basis that in so doing the court might, in substance, be countenancing a departure

from EU mandated requirements.

5.8 I am not satisfied that there is any substance to that argument. It is manifestly clear that the obligations of the courts in

reviewing, on the basis of compliance with EU law, the validity of development permissions or the like (or indeed the status of many

other types of decisions whose validity may be challenged on EU grounds) is, prima facie, to be determined in a manner designated by

the procedural law of the Member State concerned.

5.9 That position should only be departed from where it can be established that the relevant procedural law of the Member State

concerned breaches the principles of effectiveness or equivalence. Under those principles it is necessary that the procedural law of

the Member State concerned should provide an effective remedy and that any limitations contained in that law, in respect of the

enforcement of entitlements which may derive from EU law, should be equivalent to any similar limitations as might be applied in the

domestic context.

5.10 There seems to me to be no basis for suggesting that the application of the rule in Henderson v. Henderson to a case such as

this would breach either of those requirements. Such an application is manifestly equivalent. It is a rule which applies, for the reasons

which I have set out, in any public law challenge and there is no basis for any suggestion that its application applies differently, and

less favourably to a challenger, where EU environmental measures are being relied upon.

5.11 Equally there is no basis for the suggestion that its application renders any remedy ineffective. There is no practical reason why

the points raised in these proceedings could not have been raised at the time of the original challenge to the decision of Wicklow

County Council. If they be good points then Arklow Holidays had an effective remedy in relation to them. The way in which that

remedy was to be exercised, in accordance with Irish procedural law, was to raise the points at the time of the challenge to the

original Wicklow County Council decision. It does not diminish the effectiveness of the remedy to rule that, having omitted to include

those points in the original challenge, they can not now be raised in this challenge to the decision of the Board.

5.12 In those circumstances I can see no basis in EU law for determining that the rule in Henderson v. Henderson should not apply to

challenges in the environmental field which are based on an assertion of lack of compliance with EU law. Persons raising such

challenges have an effective remedy which is equivalent to the remedy available in relation to similar domestic legal issues, and is only

restricted to the same extent that an equivalent purely domestic challenge would be restricted.

5.13 For all those reasons I am satisfied that the rule in Henderson v. Henderson applies equally to successive challenges in the same

planning or environmental context. The fact that the second challenge is, technically, different from the first challenge in that it

amounts to a challenge to the decision of the Board rather than the decision of a local authority does not, it seems to me, affect the

matter.

5.14 I would leave for consideration to a case where the point directly arises the question as to the extent to which the rule or,

perhaps more accurately similar considerations, may have any application in a case where no challenge is, in fact, brought to the

original planning decision by the local authority but where the grounds sought to be relied on to challenge a decision of the Board

could have been raised had such a challenge been brought. It is possible that different considerations might apply in such a case. For

the purposes of these proceedings I confine myself to determining that where an applicant chooses to challenge by judicial review a

local authority decision in the planning process and subsequently brings a second challenge in relation to a decision by the Board in

the same process, the applicant will, ordinarily, be precluded by the rule in Henderson v. Henderson, from raising, in any such second

challenge, any points which could and should have been raised in the original challenge. I should emphasise that I say “ordinarily”

because it is clear from the decision of Hardiman J. in A.A. that the court retains a discretion to consider whether, on the facts of the

case under consideration, the full rigours of the rule should be applied.

5.15 It follows, therefore, that subject to the exercise of any such discretion as has been identified by Hardiman J. in A.A. in favour of

Arklow Holidays, all of the points now raised are caught by the rule in Henderson v. Henderson and cannot be litigated in these

proceedings. I now turn to the question of discretion.

6. Discretion

6.1 I can see no basis for the exercise of the court’s discretion in favour of Arklow Holidays in this case. No real explanation has been

given as to why the points now raised were not litigated in the first judicial review proceedings. If they had been, then this entire

matter would now, almost certainly, be at an end. Either the points would have been successful, in which case the original planning

permission decision by Wicklow County Council would long since have been quashed and whatever fresh planning applications followed

on would, doubtless, by now, have been determined. If the points had been litigated and found to be unmeritorious then it would not,

of course, have been open to Arklow Holidays, in any event, to raise them again in these proceedings. At best, from Arklow Holidays’

point of view, these proceedings would, then, have ended at the leave stage. I can see no basis upon which it could be considered

just and equitable to permit Arklow Holidays to now rely on points which should and could have been raised eight years ago in the

proceedings before Murphy J. To echo, with appropriate adaption, the words of Hardiman J. in A.A., if all the rights concerned

(including the rights of the public, the local authority as developer, and the planning authorities), are to be respected, this Court

cannot now tolerate a further challenge to the underlying basis of the planning process which is made, without explanation, six years

after the first and which could and should have been incorporated with it.

6.2 I am mindful of the fact that the six-year period, to which I have referred, should not be blamed upon Arklow Holidays. After the

failure of its original challenge, Arklow Holidays was required to deal with the appeal before the Board and thereafter brought its

challenge to the decision of the Board in a timely fashion. However, that does not get away from the fact that the points now sought

to be relied upon could and should have been incorporated in the original challenge and, had they been, the overall process of seeking

planning permission in respect of the waste water treatment plant for Arklow would, almost certainly, have now come to a definitive

conclusion or, at a minimum, be very much more advanced that it, in fact, is.

6.3 In the circumstances I can see no basis for exercising any discretion which might arise in favour of Arklow Holidays. It follows that

I have concluded that Arklow Holidays are now estopped from raising all of the issues in respect of which leave has been granted. It,

therefore, follows that the application for judicial review must be refused.

7. Some additional matters

7.1 There are two further matters upon which it seems appropriate to comment. Firstly, this is yet another case where the issue upon

which the final determination of this Court has turned, could (and in my view should) have been capable of being determined at one

substantive hearing. Unfortunately, under the statutory regime which the court is obliged to apply, leave must be granted unless it

can be said that no substantial grounds have been established. A similar principle applies to any point of defence raised by

respondents or notice parties. Unless the point raised, at the leave stage, is so strong that it deprives the applicant of having

substantial grounds for its challenge (unless, that is, it delivers a knock out blow), then leave must be granted with the issue having

to go to a second substantive hearing before final determination. That is what happened here. There is not, however, any real reason

why it would not have been more beneficial to have this issue fully and finally determined at an initial single hearing.

7.2 In view of the conclusions which I have reached it is clear that had the statutory regime permitted me to do just that and had I

had the benefit of full argument on both sides leading to a final decision, these proceedings would have been over after that initial

hearing however it might have been characterised. It is unfortunate that these proceedings have been prolonged because of the

cumbersome procedure imposed on the court by statute.

7.3 Secondly, I gave careful consideration as to whether it would be appropriate to express views and reach conclusions on the

substantive issues raised, notwithstanding my determinations that Arklow Holidays were estopped from raising them. On balance, I

have come to the view that it would not be appropriate so to do in this case. The issues raised are, in many cases, of considerable

importance and of potentially wide-ranging application. For example, the question of the entitlement of a party which has the benefit

of compulsory purchase powers, which have not yet been exercised, to make a planning application in respect of lands to which the

compulsory purchase powers might be applied, is one of considerable importance. It does not seem to me to be appropriate that

obiter views be expressed on such an issue in circumstances where I have determined that the applicant seeking to raise the issue is

estopped from making the point in this case. Similar considerations apply to the arguments under the Waste Management Act and

those relating to the question of whether a proper assessment was made of the entire project.

7.4 I have come to that view with some little regret having regard to the very great assistance which I received from counsel on all

sides in exploring what are, undoubtedly, important if extremely complex issues. However, it is their very importance and complexity

which lead me to the view that those issues should be decided, authoritatively, in proceedings where they are potentially

determinative of the result rather than be left as obiter comments in proceedings where their resolution has no capability of effecting

the final decision of the court.

8. Conclusion

8.1 For the reasons which I have set out, it, therefore, seems to me that I should confine my self to determining that Arklow Holidays

are precluded, by virtue of the rule in Henderson v. Henderson, from arguing any of the issues in respect of which leave was granted.

It follows that Arklow Holidays are not entitled to any of the reliefs in respect of which leave was given and that its application must,

therefore, be dismissed.