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Pierse & anor v An Bord Pleanala
Factual and Procedural Background
The Applicants sought judicial review of a declaration made by An Bord Pleanála under Section 5 of the Planning and Development Act 2000 (as amended), whereby An Bord Pleanála determined that the formation of two entrances on lands near Listowel, County Kerry, constituted "development" and was not "exempted development." Leave for judicial review was granted ex parte by the High Court on 29 May 2017. The Applicants filed an amended statement of grounds containing 59 grounds. The Respondent, An Bord Pleanála, filed a detailed statement of opposition, verified by an affidavit sworn by a senior executive officer of the Board, Mr Dillon. The present application concerns the Applicants' request for leave to cross-examine Mr Dillon on his affidavit pursuant to Order 40, rule 1 of the Rules of the Superior Courts.
Section 5 of the Planning and Development Act allows An Bord Pleanála to declare whether certain acts constitute exempted development, which is development exempt from the requirement to obtain planning permission. The Board found that the proposed entrances were not exempted development because they endangered public safety by creating a traffic hazard or obstruction, pursuant to Article 9(1)(a)(iii) of the Planning and Development Regulations 2001 (as amended). The Applicants challenged this conclusion, alleging that the Board erred in law in finding a traffic hazard.
The Board's opposition emphasized the residential nature of the adjacent housing estate and relied on an inspector's report and submissions from a notice party. Mr Dillon's affidavit detailed the chronology of the referral and included commentary and legal submissions on the issues, some of which the court found inappropriate for affidavit form. The Applicants sought to cross-examine Mr Dillon to clarify ambiguous statements in his affidavit, particularly regarding who advised him on the existence of material supporting the Board's decision.
Legal Issues Presented
- Whether leave to cross-examine the deponent of the Board's affidavit should be granted under Order 40, rule 1 of the Rules of the Superior Courts.
- Whether there is a material conflict of fact or ambiguity in the affidavit that necessitates cross-examination to resolve the issues in the judicial review proceedings.
- The appropriateness of the content of the affidavit, particularly the inclusion of legal submissions and opinions by a deponent who was not directly involved in the decision-making process.
Arguments of the Parties
Applicants' Arguments
- The affidavit of Mr Dillon contains ambiguous statements, particularly his claim to have been "advised" of material justifying the Board's conclusion on traffic hazard, without specifying the source of that advice.
- Cross-examination is necessary to clarify whether Mr Dillon's statements are based on direct knowledge, hearsay, or mere opinion.
- The Applicants are concerned that without cross-examination, the factual basis for the Board's decision remains unclear and speculative.
Respondent's Arguments (An Bord Pleanála)
- The affidavit was intended to summarize the chronology and the Board's file, not to provide personal views on the planning judgment, which is a matter for the court.
- The Board relies on documentary material and the inspector's report to justify its decision; no member of the Board need supplement this with affidavit evidence.
- There is no material conflict of fact in Mr Dillon's affidavit that requires resolution by cross-examination.
- The legal test for leave to cross-examine requires a material conflict of fact necessary to determine the issues, which is not present here.
- The affidavit includes legal submissions unsuitable for cross-examination and the application for leave to cross-examine is motivated by a concern about new arguments at the substantive hearing rather than actual factual disputes.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Director of Corporate Enforcement v Seymour [2006] IEHC 369 | Legal test for granting leave to cross-examine on affidavits: cross-examination is warranted if there is a material conflict of fact necessary to resolve the issues. | The court adopted the principle that cross-examination should be permitted where material factual conflicts exist or where it is necessary to resolve issues before the court, but discretion remains with the court. |
| Somague Engenharia SA v Transport Infrastructure Ireland [2015] IEHC 723 | Refinement of the cross-examination test, allowing cross-examination on inferences, interpretations, or conclusions drawn from facts, even if no real dispute on primary facts exists. | The court accepted that cross-examination may extend beyond primary facts to test opinions and conclusions relevant to the issues in dispute. |
| Killross Properties Ltd. v Electricity Supply Board [2016] 1 I.R. 541 | Legal consequences of declarations under Section 5 of the Planning and Development Act 2000. | The court referenced this precedent to explain the statutory framework and legal effect of declarations on exempted development. |
| Westwood Club Ltd. v An Bord Pleanála [2010] IEHC 16 | Propriety of affidavits sworn by senior executive officers not members of the decision-making board. | The court noted that affidavits by non-members of the Board may be appropriate depending on the facts, providing context for the affidavit of Mr Dillon. |
| O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 | Principles governing the assessment of material before the Board to justify planning decisions. | The court indicated that the substantive hearing would likely apply these principles in assessing the sufficiency of material supporting the Board's decision. |
Court's Reasoning and Analysis
The court acknowledged that leave to cross-examine is generally granted when there is a material conflict of fact or when it is necessary to resolve issues before the court. Both primary facts and inferences or conclusions drawn from facts may be subject to cross-examination. The difficulty in this case arose because the affidavit filed by the Board's senior executive officer included extensive commentary and legal submissions, which are inappropriate in affidavit form and expose the deponent to cross-examination.
The court identified that a key issue was the ambiguity surrounding Mr Dillon's statement that he had been "advised" of material justifying the Board's decision on traffic hazard, without specifying the source of this advice. This ambiguity could suggest reliance on hearsay or undisclosed sources, which warranted clarification through cross-examination.
While the Board argued that the affidavit was merely a summary of documents and not evidence of the Board’s decision-making process, the court found that the Applicants were entitled to challenge the affidavit's assertions on the basis that they directly addressed the issues for determination. The court emphasized that the cross-examination should be limited to relevant matters and leave the precise scope to the trial judge hearing the substantive application.
The court also noted that the substantive hearing would determine whether the affidavit evidence is admissible or should be excluded as hearsay or opinion. However, this did not preclude granting leave to cross-examine at this stage.
Holding and Implications
The court granted the application for leave to cross-examine the deponent, Mr Dillon, pursuant to Order 40, rule 1 of the Rules of the Superior Courts. The order directs that Mr Dillon attend the substantive hearing for cross-examination, and in the event of his non-attendance, his affidavit is to be disregarded in its entirety.
The court emphasized that cross-examination shall not extend to parts of the affidavit consisting purely of legal submissions. The precise ambit of cross-examination is to be determined by the trial judge at the substantive hearing.
The core ruling is that leave to cross-examine is granted. The direct effect is that the Applicants may challenge the factual and opinion evidence contained in the affidavit through cross-examination, which may clarify ambiguities and assist in resolving the judicial review. No new precedent is set beyond the application of established principles regarding cross-examination on affidavits in judicial review proceedings.
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