Alen-Buckley & Anor v An Bord Pleanala & Ors

Factual and Procedural Background

This opinion concerns an application brought by the second named respondent ("the State defendants") seeking dismissal and/or striking out of the applicants' judicial review proceedings on the basis that the pleadings disclose no reasonable cause of action against the State defendants and/or are frivolous, vexatious, an abuse of process, or bound to fail.

The applicants initiated judicial review proceedings challenging a decision of the first named respondent ("the Board") dated 14 December 2016, which granted planning permission for a development including eight wind turbines and ancillary works in County Waterford. The applicants applied ex parte for leave to seek judicial review, which was granted by the High Court on 20 February 2017. The proceedings were subsequently served on the State defendants, who applied to have the case entered into the commercial list and sought dismissal of the proceedings against them on various grounds.

The State defendants argue no relief is sought against them and that the pleadings fail to disclose a cause of action. The applicants contend that leave to seek judicial review having been granted, the motion to dismiss is unfounded, and they maintain that issues relating to the transposition of EU Directives justify their inclusion of the State defendants.

Legal Issues Presented

1. Whether the applicants' pleadings disclose a reasonable cause of action against the State defendants.
2. Whether the judicial review proceedings against the State defendants are frivolous, vexatious, or an abuse of process.
3. Whether the court has jurisdiction to dismiss judicial review proceedings after leave to seek judicial review has been granted.
4. Whether the applicants have complied with procedural rules governing the specificity and clarity of grounds in judicial review pleadings.

Arguments of the Parties

State Defendants' Arguments

• The applicants seek no relief against the State defendants, thus the proceedings should be dismissed as against them.
• Only three of the 37 grounds concern the State defendants, and these are vague, imprecise, and fail to identify specific provisions of EU Directives or Irish law allegedly breached.
• The court must first determine the lawfulness of the Board's actions under domestic law before addressing alleged failures to transpose EU Directives.
• The applicants have not sought declarations or relief directly against the State defendants regarding transposition issues.
• The pleadings fail to meet the requirements of Order 84, rule 20(3) for specificity, and prevent the State defendants from properly responding under rule 22(5).
• The applicants' approach of reserving their case pending the Board's opposition papers is impermissible and constitutes an abuse of process.
• Relying on Order 19, rule 28 and the court's inherent jurisdiction, the pleadings disclose no cause of action, and the proceedings are frivolous, vexatious, and an abuse of process.
• Cited authorities include Barry v. Buckley and Lowes v. Coillte Teo supporting dismissal of proceedings lacking a cause of action or constituting abuse of process, even after leave to seek judicial review is granted.

Applicants' Arguments

• The grant of leave to seek judicial review is a complete answer to the State defendants' motion to dismiss, having established substantial grounds and standing.
• The pleadings are neither frivolous nor vexatious, and it would be improper to re-examine the court's prior grant of leave at this stage.
• It is legitimate to raise issues concerning the transposition of EU Directives into Irish law and to include the State defendants in the proceedings.
• The jurisdiction to strike out proceedings should be exercised sparingly and only where it is clear the case is bound to fail.
• The fundamental error by the Board was conducting an Environmental Impact Assessment (EIA) broader in scope than the planning permission applied for, including grid connection works not properly notified to the public.
• If the Board acted ultra vires, the decision is invalid; if domestic law permits this, then the State has failed to properly transpose the Directive, justifying relief against the State defendants.
• The applicants deny failure to comply with procedural rules regarding pleadings and assert that relief has been sought against the State defendants.
• The State defendants should have applied to set aside the grant of leave rather than seek dismissal at this stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first rejected the applicants' submission that the grant of leave to seek judicial review precluded dismissal of the proceedings against the State defendants. It held that the court retains jurisdiction to dismiss or strike out judicial review proceedings even after leave is granted, citing Lowes v. Coillte Teo and related authorities.

The court emphasized that the grant of leave is not a final determination on the merits but only establishes that substantial grounds and standing exist, without deciding the substantive issues.

The court found that the applicants had not sought any express relief against the State defendants in their pleadings, despite the applicants' assertions to the contrary. The pleadings failed to identify specific provisions of EU Directives or domestic law allegedly breached by the State defendants, nor did they comply with procedural rules requiring specificity.

The applicants' attempt to reserve their case on transposition issues pending the Board's opposition papers was held to be contrary to procedural rules and an impermissible circumvention of the requirement to plead the full case within time.

Consequently, the court concluded that the continued maintenance of proceedings against the State defendants was vexatious and an abuse of process, and that the pleadings disclosed no reasonable cause of action against the State defendants within the meaning of Order 19, rule 28.

The court exercised its inherent jurisdiction alongside the procedural rules to dismiss the proceedings against the State defendants.

Holding and Implications

The court ordered that the proceedings against the State defendants be dismissed and/or struck out pursuant to Order 19, rule 28 and the court’s inherent jurisdiction.

The direct effect of this decision is the termination of the judicial review proceedings as against the State defendants. No relief will be granted to the applicants against these respondents, and the proceedings are deemed an abuse of process insofar as they are maintained against them. The court did not set any new precedent beyond affirming established principles regarding dismissal and abuse of process in judicial review proceedings.