Envir Impact Assessment
Cases
Connelly -v- An Bord Pleanala & ors
[2018] IESC 31 (17 July 2018)
Clarke C. J.
O’Donnell J.
Dunne J.
O’Malley J.
Finlay Geoghegan J.
Between/
Kathleen Connelly
Applicant/Respondent
and
An Bord Pleanála
Respondent/Appellant
And
Clare County Council
McMahon Finn Wind Acquisitions Ltd
Notice Parties
Judgment of Mr. Justice Frank Clarke, Chief Justice delivered the 17th July 2018
1. Introduction
1.1 In very simple terms the application which lies at the heart of these proceedings involved a proposed wind farm development consisting of six turbines in respect of which the second named notice party (“the Developer”) was the applicant. The application for permission was turned down by the relevant planning authority, being the first named notice party (“Clare County Council”), on the 12th July 2011. While it will be necessary in due course to say a little more about the process which followed on from an appeal against that refusal to the respondent/appellant (“the Board”), ultimately, on the 9th May 2014, the Board determined to grant permission with the formal decision of the Board being dated the 29th May 2014.
1.2 The applicant/respondent (“Ms. Connelly”) brought these judicial review proceedings challenging that decision of the Board. For reasons which it will again be necessary to address in more detail, the High Court (Barrett J.) (Connelly v. An Bord Pleanála[2016] IEHC 322) decided to quash the decision of the Board granting permission. It is in respect of that decision of Barrett J. that the Board has appealed to this Court.
1.3 I propose to turn initially to the grant of leave, but it is appropriate at this stage to record that the central issue with which the High Court was concerned, and also the central issue with which this Court is concerned on this appeal, relates to the question of whether, at least in very general terms, adequate reasons were given by the Board in its decision.
1.4 There have been significant developments in recent years in the law relating to the reasons required to be given by any decision maker who has the legal power to make determinations which affect legal rights and obligations. It will be necessary to address that evolving jurisprudence in due course. The particular focus of the issues which arise on this appeal concerns the application of those principles to decisions made by the Board when exercising its statutory role in relation to planning permission. However, questions of European law also arise in the context of this appeal, for the project in respect of which the challenged permission was given involved obligations under Union law both to conduct an environmental impact assessment (“EIA”) and, having regard to the possibility of there being an effect on a sensitive site, an appropriate assessment (“AA”). It follows that it is also necessary to consider the extent, if any, to which there may be additional obligations placed on the Board when making decisions involving either or both an EIA or an AA.
2. The Grant of Leave
2.1 The Board applied to this Court for leave to bring a leapfrog appeal direct to this Court.
2.2 For the reasons set out in a determination (Connelly v. An Bord Pleanála & ors[2017] IESCDET 57) this Court granted leave.
2.3 The issues which this Court identified as meeting the constitutional threshold and in respect of which leave to appeal was, therefore, granted were all of the grounds proposed by the Board in its application for leave. These grounds were set out in the following terms:-
1. The High Court erred in law in finding legal fault with the reasons for the Board’s Decision by failing to consider the Decision as a whole and focusing only on the conclusions cited at [12] and [25] to the detriment of the clear and express reasoning set forth elsewhere in the Decision. The law requires that the whole of the Board Decision be examined (see e.g.Rathineska v An Bord Pleanála[2015] IEHC 18) which includes the entire of its reasoning and the reasons for the imposition of specific conditions. Further, the adequacy of the Board’s reasons fall to be considered in light of the documents and evidence before the Board and from the standpoint of an intelligent person who has participated in the relevant proceedings and is appraised of the broad issues involved (see e.g.O’Keeffe v. An Bord Pleanála[1993] 1 IR 39 and O’Neill v. An Bord Pleanála [2009] IEHC 202). In the premises the High Court applied an inappropriate standard of review to the Board’s Decision.
2. The High Court erred in law by concluding that the Board had failed to comply with s.177V(1) of the PDA insofar as the High Court held that a failure to provide proper reasons for a conclusion on AA equates to non-compliance with s.177V(1) and erred in law in concluding that the Board had failed to provide proper reasons for its Decision insofar as AA was concerned. S.177V(1) does not impose any express reasoning obligation on a decision maker apart from the obligation to make a determination under Article 6(3) of the Habitats Directive.
3. The High Court erred in holding that the Board could not refer to and rely on other material in its decision unless the particular observations or conclusions relied upon are identified with specific particularity on the face of the Board’s Decision.
4. The High Court erred in law by holding that the Board could not adopt contents of the Inspector’s report in circumstances where it did not accept the Inspector’s recommendations and where the report was not “unfailingly positive” as regards the proposed development.. The Board Decision clearly indicates that the Inspector’s report was adopted save in respect of issues where the Board disagreed with the Inspector and express reasons were provided by the Board for its conclusions on these issues.
5. The High Court erred in law and in fact in holding that the Board could not rely on the Inspector’s report because the proposed development had been redesigned subsequent to the preparation of that report. In so holding the High Court paid no regard to the fact that the redesign had been invited by the Board to meet specific concerns highlighted by the Inspector in her report or that the development remained broadly similar save certain items were omitted (thereby lessening any impact the development might have) that the location of other items of infrastructure were changed to meet the said concerns.
6. The High Court erred in law by holding that the Board had not carried out an EIA and had not complied with s.172(1J) of the PDA and/or not provided proper reasons with regard to its carrying out of EIA.
7. The High Court erred in law in his interpretation of s.172(1J) insofar as it held that same required more in terms of the Board’s statement of the “evaluation of the direct and indirect effects of the proposed development” than what had occurred and requires a standard of Board reasoning in terms of detail that is not required by law.
8. The learned High Court Judge erred in law by holding that for the Board to be able to refer to evidence which was before it in defence of its Decision that evidence had to be specifically cross referred or linked in a manner greater than actually done and evident in the Board Decision.
9. The learned High Court Judge erred in law by failing to have regard to the established principle that the adequacy of reasons should be assessed from the perspective of an intelligent person who has participated in the relevant proceedings and is appraised of the broad issues involved and applied an inappropriate standard in its stead.
10. The learned High Court Judge erred in law in holding that the Applicant was given no proper understanding of how the Decision was reached by the Decision itself and, again, in so holding analysed only the conclusions of the Board which in no way profess to amount to complete explanations of the Board Decision which has to be read as a whole.
2.4 It is therefore to those issues that this appeal is directed. In order to more fully identify the precise issues which arise it is appropriate to start with a brief account of the facts.
3. The Facts
3.1 As noted above, on the 12th July 2011, a planning application by the Developer for a wind farm development consisting of 6 turbines and associated works was refused by Clare County Council. This refusal was appealed to the Board on the 8th August 2011.
3.2 The Board appointed an inspector (the “Inspector”) to prepare a report, which report is dated the 30th November 2011. On the 25th January 2013, a Board meeting was held at which this appeal was considered. The Board had various concerns and requested the Developer to provide specific information and revisions, including a so-called Natura Impact Statement (“NIS”). On the 13th February 2013, a statutory notice under s. 132 of the Planning and Development Act 2000 (“the 2000 Act”) was issued to the same effect.
3.3 On the 9th August 2013, the Developer provided a detailed response to the s. 132 notice, including the requested NIS. The Board was satisfied that the new information provided was sufficient to address the concerns it had raised previously.
3.4 At a meeting on the 9th May 2014, the Board decided to grant permission. The Board decision (“the Decision”) is dated 29th May 2014. For the purposes of understanding the Decision it is also important to have regard to certain provisions of European Union law which require, in certain circumstances, that there be an EIA and, in some cases, an AA. It will therefore be necessary to consider certain aspects of the legal parameters surrounding the Union law obligations in that regard in due course.
3.5 However, for present purposes, it is sufficient to note that, in the Decision, the Board stated that it was satisfied that the information before it was adequate to undertake an EIA and an AA in respect of the proposed development.
3.6 The Board then continued on in its Decision to set out the areas in which it disagreed with the conclusions of the Inspector in this context. The reasoning of the Board as set out in its Decision will be explored in detail below.
3.7 The Decision also sets out various conditions to be attached to the grant of permission relating to, for example, the mitigation measures set out in the environmental impact statement and the NIS, measures to be taken in the interests of protection of the Hen Harrier, and measures to be taken in the interests of residential and visual amenity.
3.8 Against the background of those facts it is next necessary to consider the judgment of the High Court.
4. The Judgment of the High Court
4.1 As noted above, the Decision was challenged by Ms. Connelly. The grounds on which Ms. Connelly objected to the decision are described in the judgment of the High Court as follows:-
“[Ms. Connelly] raises four key objections to the decision of An Bord Pleanála. These are that An Bord Pleanála failed:(1) to carry out and/or record any screening assessment for appropriate assessment, contrary to national and European law, (2) to carry out and/or record any proper appropriate assessment under national and European law, (3) to carry out and/or record any proper environmental impact assessment under national/European law, and (4) to consider or have regard to its obligations under s.37(2) of the Planning and Development Act 2000. Each of [Ms. Connelly’s] objections is considered below.”
4.2 Regarding the argument that there was a failure to carry out and/or record a screening assessment for an AA, the High Court rejected the Board’s argument that the s. 132 statutory notice, requesting a NIS so that it could carry out a full AA, was sufficient in this regard. The trial judge concluded at para. 10 of the judgment that the Board has failed to meet the requirements of s. 177U(6)(a) of the 2000 Act :-
“In this regard, [Ms. Connelly] points to the fact that the s.132 notice indicates that a Natura Impact Statement is required so that an appropriate assessment can be undertaken but gives no indication as to the reason/s that An Bord Pleanála has for undertaking that appropriate assessment. Try as it might (and it has tried), An Bord Pleanála cannot escape the fact that (i) a statement which indicates that An Bord Pleanála requires a Natura Impact Statement so that an appropriate assessment may be done, (ii) offers no reason as to why An Bord Pleanála has determined that the appropriate assessment falls to be done.”
4.3 Regarding the objection that there was a failure to carry out and/or record any proper AA under EU and national law, the High Court agreed that the Decision failed to satisfy the relevant requirements. In this regard the trial judge referred to the analysis of the High Court (Finlay Geoghegan J.) inKelly v. An Bord Pleanála[2014] IEHC 400, and also to the decisions of the Court of Justice of the European Union (“CJEU”) inMellor[2009] ECR I-3799 and the High Court (Clarke J.) inChristian v. Dublin City Council[2012] IEHC 163. After examining these decisions, the trial judge stated that:-
“… what is required of An Bord Pleanála are complete, precise and definitive findings and conclusions of a degree of specificity sufficient that a party minded to seek judicial review of such determination can turn readily to the particular observations, reasoning or conclusions in, say, a particular report or text to which reference is made, rather than simply being told that somewhere in an ocean of documentation is some stream of logic that An Bord Pleanála favours. And if it is all of a particular report or text that is being relied upon by An Bord Pleanála, so be it, but let it be identified properly, so that, the findings and conclusions reached in its determination are sufficiently complete, precise and definitive as to enable (i) an interested party meaningfully to assess the lawfulness of that determination and (ii) a court to undertake a ready and comprehensive judicial review of same.”
4.4 The trial judge was not satisfied that the Decision met this standard and concluded that Ms. Connelly could not readily satisfy herself as to whether or not to bring a challenge.
4.5 It should be noted that, in this context, the High Court judgment does not refer to the analysis inKellyregarding the specific requirements, which must be satisfied under EU law as implemented in Irish law, in carrying out an AA in order to give the Board jurisdiction to grant a permission, but rather focuses on the general duty to provide reasons. These issues will be addressed in greater detail later in this judgment.
4.6 The trial judge went on to consider the argument that the Board had failed to carry out and/or record any proper EIA as required by both national and European law. Having set out the relevant legislative provisions and having quoted from the Decision, the trial judge stated:-
“The difficulty that the court considers to present for An Bord Pleanála in this regard is that in relying upon quite generic reasoning and a rather contrary report that relates to a different development, it is difficult to see that An Bord Pleanála has complied (in fact this Court concludes that it has not complied) with the requirement in s.172(1J) to give a proper “evaluation of the direct and indirect effects of the proposed development”. Moreover and separately, when it comes to providing, again pursuant to s.172(1J) “the main reasons and considerations on which the decision is based”, the court considers that the summary form of the text of An Bord Pleanála’s decision in this regard imparts next to no information to an affected party – here [Ms. Connelly]. She is not given a proper understanding of why the decision has been reached– and if she wants to seek a judicial review of the decision within the tight time constraints applicable, the generic form of the reasoning employed by An Bord Pleanála has the effect that she cannot properly assess matters without a detailed consideration of the underlying documentation and/or costly expert assistance.”
4.7 Finally in this context, the trial judge stated that, with regard to acceptability of referring to material outside of a decision to provide the reasoning for that decision, it is possible in some situations that a decision and a related inspector’s report may “lawfully fall to be read in tandem”. However, the trial judge concluded that it is not acceptable for a public decision-making body to issue a decision which refers to “an ocean of material consulted or relied upon” in support of its decision “and to leave an affected party thereafter to fish in that ocean for what she might catch there of relevance…”.
4.8 The final objection which was considered by the High Court related to an alleged failure on the part of the Board to consider or have regard to s. 37(2) of the 2000 Act. This objection was rejected by the High Court and is not of relevance to this appeal.
4.9 The trial judge also stated that the High Court judgments inBalz v. An Bord Pleanála[2016] IEHC 134 andDunnes Stores v. An Bord Pleanála[2016] IEHC 226, which were delivered after the High Court had reserved its judgment in this case, did not give cause to depart from its conclusions.
4.10 Therefore, the High Court concluded that the Board had breached its obligations regarding the recording of the screening assessment of the AA, the AA itself and the EIA in the Decision. The trial judge considered that the cumulative effect of these breaches was such that the order ofcertiorarisought should be granted.
5. Some General Observations
5.1 It is perhaps trite to say that it is very difficult to be specific about the manner in which the obligation to give reasons must apply in different types of situations. This is so not least because the kind of decisions to which the obligation to give reasons applies can vary enormously. Furthermore, the process leading to a decision can differ greatly from one case to the next. Some decisions follow on from a largely adversarial process not entirely unlike that which might occur where a court is required to consider a similar question. Others involve a decision of a regulator who has engaged only with a regulated entity. Some decisions, such as most in the environmental field, can involve the interests of a wide range of persons and the participation of many in the process itself.
5.2 Furthermore, the legal requirements which go into different types of decisions may, themselves, vary very significantly from case to case. In certain circumstances a decision maker may be required to determine whether very precise criteria are met. The issue will, therefore, be as to whether those criteria are present, and the reasons which will require to be given will necessarily have to address why it is said that the criteria were, or were not, met. That, in turn, may very well itself require an understanding of the process which led to the decision and the precise issues which were focused on in that process. On what basis was it suggested that the criteria were not met and how did the person concerned suggest that those questions could be answered in its favour? The issues which arise clearly inform the reasoning behind any decision.
5.3 However, other decisions involve much broader considerations involving general concepts, and often, to a greater or lesser extent, a degree of judgment or margin of appreciation on the part of the decision maker. Indeed, it may be said that, in the field of environmental law, issues at various points along that spectrum can arise. There may be specific issues as to whether, for example, a particular project conforms to a development plan or guidelines which the decision maker is required to take into account. On the other hand, a decision may also involve a broader question of whether, for example, a proposed development would involve an excessive impairment of visual amenity in a sensitive area. Many other examples could be given. However, the point is that the type of reasons which may be necessary will depend, amongst other things, on the type of decision which is being made and the legal requirements which must be met in order for a sustainable decision of that type to be reached.
5.4 In my view it is of the utmost importance, however, to make clear that the requirement to give reasons is not intended to, and cannot be met by, a form of box ticking. One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account and all irrelevant factors are excluded from the consideration. It is useful, therefore, for the decision to clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the decision is challenged, as to whether those requirements were met. But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other. That does not enlighten any interested party as to why the decision went the way it did. It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the conclusion to the degree necessary to meet the obligation to give reasons.
5.5 Arising out of those general observations there seem to me to be three specific areas of law which it is necessary to address before going on to apply the principles identified to the circumstances of this case. They are:-
(a) The criteria by reference to which a court should assess whether the reasons given are adequate in any particular case;
(b) The identification of the documents or materials which can properly be considered for the purposes of identifying the reasoning of the decision maker as part of the process of determining whether adequate reasons have been given; and
(c) The potentially separate question of whether European Union law requires, either for the purposes of an EIA or, perhaps more clearly, for the purposes of an AA, that reasons require to be given in any particular form or, importantly, whether certain express scientific findings require to be made prior to a sustainable decision occurring.
That latter point is of particular relevance in the context of the argument that there is an obligation on a relevant permission giver in the environmental field who is required to conduct an AA to reach certain sustainable conclusions before a valid permission can be given. There is a sense in which the argument under that heading is not, strictly speaking, an argument as to the obligation to give reasons but rather represents an argument as to the type of detailed findings which require to be made before a sustainable decision can be arrived at. It is proposed to deal with each of those three matters in turn.
6. The Purpose behind Reasons
6.1 As noted above, what the Court is concerned with here is the criteria by reference to which a court should assess whether the reasons given are adequate in any particular case. It seems to me that it is possible to identify some key principles from the recent case law in this area.
6.2Mallak v. Minister for Justice, Equality and Law Reform[2012] IESC 59 concerned a refusal by the relevant Minister to grant a certificate of naturalisation to the appellant, a Syrian refugee residing in the State. The Minister’s decision did not give any reason for the refusal beyond simply stating that the Minister had exercised his absolute discretion under the relevant legislation.
6.3 Delivering the decision of this Court, Fennelly J. engaged in a review of the sometimes conflicting jurisprudence in this area. He cited the decision of Barron J. in the High Court inState (Daly) v. Minister for Agriculture[1987] I.R. 165, which concerned a civil servant on probation whose appointment was terminated pursuant to s. 7 of the Civil Service Regulation Act 1965. Regarding the failure of the Minister to give reasons for reaching this decision, Barron J. stated:-
“Such powers may only be exercised in conformity with the Constitution. The view of the Minister must be seen to bebona fideheld, to be factually sustainable and not unreasonable. If no reasons have been given for the exercise of the power, then this court cannot review the exercise of the power in the light of these criteria.
The court must ensure that the material upon which the Minister acted is capable of supporting his decision. Since the Minister has failed to disclose the material upon which he acted or the reasons for his action there is no matter from which the court can determine whether or not such material was capable of supporting his decision. Since the Minister continues to refuse to supply this material, it must be presumed that there was no such material.”
6.4 Fennelly J. also referred to the decision of the High Court (Blayney J.) inInternational Fishing Vessels Ltd. v. Minister for the Marine[1989] I.R. 149 which concerned the refusal by the respondent Minister to grant a licence. Blayney J. held that in this context reasons must be provided:-
“It is common case that the Minister’s decision is reviewable by the court. Accordingly, the applicant has the right to have it reviewed. But in refusing to give his reasons for his decision the Minister places a serious obstacle in the way of the exercise of that right. He deprives the applicant of the material it needs in order to be able to form a view as to whether grounds exist on which the Minister’s decision might be quashed. As a result, the applicant is at a great disadvantage, firstly, in reaching a decision as to whether to challenge the Minister’s decision or not, and secondly, if he does decide to challenge it, in actually doing so, since the absence of reasons would make it very much more difficult to succeed.”
6.5 Fennelly J. stated as follows at paras. 64 and 65 of his judgment inMallak:-
“In the present case, the applicant points to the effective invitation to the appellant to “reapply for the grant of a certificate of naturalisation at any time.” That statement might reasonably be read as implying that whatever reason the Minister had for refusing the certificate of naturalisation was not of such importance or of such a permanent character as to deprive him of hope that a future application would be successful. While, therefore, the invitation is, to some extent, in ease of the appellant,it is impossible for the appellant to address the Minister’s concerns and thus to make an effective application when he is in complete ignorance of the Minister’s concerns.
More fundamentally, and for the same reason,it is not possible for the appellant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts effectively to exercise their power of judicial review.”
(Emphasis added)
6.6 Importantly, Fennelly J. stated at para. 66:-
“In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”
6.7 In a useful and elucidating analysis of the judgment inMallak, O’Donnell J., writing in an academic context, has described this preceding paragraph as the “core” of Fennelly J.’s decision inMallak. (see, O’Donnell, “Mallakand the Rule of Reasons” inOf Courts and Constitutions: Liber Amoricumin Honour of Nial Fennelly, (2014) at 228)
6.8 Following the above quoted statement at para. 66 ofMallak, Fennelly J. stated that there are:-
“Several converging legal sources [which] strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based,in short to understand them.” (Emphasis added)
6.9 Therefore, Fennelly J.’s decision inMallakpoints to at least two purposes served by the provision of reasons by a decision maker being, first, to enable a person affected by the decision to understand why a particular decision was reached, but secondly, to enable a person to ascertain whether or not they have grounds on which to appeal the decision where possible or seek to have it judicially reviewed.
6.10 It is possible to cite further recent decisions of this Court in this context to similar effect.
6.11 InMeadows v. Minister for Justice[2010] 2 IR 701, Murray C.J. stated:-
“An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context.
Unless that is so then the constitutional right of access to the courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective.”
6.12 In my judgment inRawson v. Minister for Defence[2012] IESC 26, I stated at paragraph 6.8:-
“As pointed out by Murray C.J. inMeadowsa right of judicial review is pointless unless the party has access to sufficient information to enable that party to assess whether the decision sought to be questioned is lawful and unless the courts, in the event of a challenge, have sufficient information to determine that lawfulness. How that general principle may impact on the facts of an individual case can be dependant on a whole range of factors, not least the type of decision under question, but also, in the context of the issues with which this Court is concerned on this appeal, the particular basis of challenge.”
6.13 Similarly, inEMI Records (Ireland) Limited & ors v. The Data Protection Commissioner[2013] IESC 34, I concluded at paragraph 6.5:-
“It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful and, if there be a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends.”
6.14 InOates v. Browne[2016] IESC 7, Hardiman J. stated at paragraph 47:-
“It is a practical necessity that reasons be stated with sufficient clarity that if the losing party exercises his or her right to have the decision reviewed by the Superior Courts, those Courts have the material before them on which to conduct such a review. Secondly, and perhaps more fundamentally, it is an aspect of the requirement that justice must not only be done but be seen to be done that the reasons stated must ‘satisfy the persons having recourse to the tribunal, that it has directed its mind adequately to the issue before it’.”
6.15 Therefore, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision maker. First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review.
6.16 However, in identifying this general approach, it must be emphasised that its application will vary greatly from case to case as a result of the various criteria identified earlier which might distinguish one decision, or decision making process, from another.
6.17 In this regard, it is important to note that, in the context of challenges to environmental decisions which are subject to European law, as in the present appeal, failure to participate in the permission process does not necessarily exclude a person from having standing to challenge a decision (seeGrace and anor v. An Bord Pleanála[2017] IESC 10). This may potentially impact on the requirement that a person is entitled to have sufficient information to consider whether they can or should seek to have a decision judicially reviewed. Where a person has participated in a process it might potentially be open to a decision maker to point to information which would be obvious to someone who had so participated for the purposes of explaining a decision and this information might help to satisfy the requirement to give reasons. However, where the person who seeks to challenge the decision was not involved in the process, it may not be open to the decision maker to take this approach, as the same information might not necessarily be obvious or available to the ‘outsider’, and therefore the requirement to give reasons would not necessarily be met.
6.18 This latter point feeds in to the question of the identification of the documents or materials which can properly be considered for the purposes of identifying the reasons of the decision maker as part of the process of determining whether adequate reasons have been given. I now turn to that issue.
7. Where can the Reasons be Found?
7.1 This issue is essentially concerned with identifying the materials which may be considered appropriate or acceptable in determining the reasons for a decision.
7.2 Of relevance here is the decision of the High Court inChristian. That case concerned, in part, a claim that Dublin City Council had failed to provide adequate reasons regarding aspects of a development plan, which reasons were said to be required under the relevant legislation.
7.3 With regard to identifying the location of reasons for a decision, I made the following comments at para. 9.2 of my judgment inChristian:-
“The second leg of the requirement to give reasons is that the reasons be capable of being determined with some degree of precision. It seems to me in that context that any document recording the reasons must be such that it is possible to say that the document concerned actually represents the reasons for the decision in question in a way which ought not be capable of real debate. It does not seem to me that it necessarily follows from the above analysis that the reasons have to be included in the development plan itself. It is, for example, possible that there may be documents referred to in the development plan which can provide the rationale for aspects of the measures incorporated into the development plan. In addition, documents prepared in the context of the adoption process may, depending on the content, also be capable of being relied on as an authoritative statement of the rationale. However, the requirement of reasonable certainty as to the reasons seems to me to necessitate that any documentation said to represent the reasons must be either expressly referred to in the development plan or be, by necessary implication, from the terms of the development plan, clearly adopted by those voting in favour of the development plan as part of the reasoning concerned.”
7.4 In this context it is also worth returning to the decision of Fennelly J. inMallak. As noted above, at para. 66 of his judgment, Fennelly J. stated:-
“The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”
7.5 Therefore, it is possible that the reasons for a decision may be derived in a variety of ways, either from a range of documents or from the context of the decision, or in some other fashion. However, as is clear from the above analysis, this is always subject to the requirement that the reasons must actually be ascertainable and capable of being determined. In this regard, I refer to my judgment inEMI, where I stated at paragraph 6.8:-
“While the comments made inChristianrelated to the specific circumstances of that case and derived from the context of a development plan, it seems to me that there is a more general principle at play. Legal certainty requires, as was pointed out inChristian, that it must be possible to accurately determine what the reasons were. There should not be doubt as to where the reasons can be found. Clearly, an express reference in the decision itself to some other source outside of the decision document meets that test. Where, however, it is suggested that the reasons can be found in materials outside both of the decision itself together with materials expressly referred to in the decision, then care needs to be taken to ensure that any person affected by the decision in question can readily determine what the reasons are notwithstanding the fact that those reasons do not appear in the decision itself or in materials expressly referred to in the decision.”
7.6 Again, it is worth emphasising the point made earlier. The range of persons who are able to challenge a particular decision will vary from case to case, as will the extent of their involvement in the process. Thus, as a consequence of the above analysis, the requirement that reasons given for a decision must be adequate necessitates that, where the reasons are not included in the text of the decision itself, they must be capable of being readily determined by any person affected by the decision. Clearly, the ability of a person who was not involved in the process, but who is nonetheless entitled to challenge the decision, to identify the reasons for a decision, where those reasons are to be derived from a diffuse range of sources, will differ greatly from the ability of a person who was involved in the process to do so.
8. The European Union Dimension
8.1 As stated above, this issue concerns the question of whether European Union law requires, either for the purposes of an EIA or, perhaps more clearly, for the purposes of an AA, that reasons require to be given in any particular form or, importantly, whether certain express scientific findings require to be made prior to a sustainable decision occurring. In this context, the decision of Finlay Geoghegan J. inKellyis of particular relevance and importance.
8.2 However, it is first necessary to set out the relevant legislative framework regarding the carrying out of an EIA and an AA.
8.3 Part X of the 2000 Act makes provision regarding the carrying out of EIAs, and the information which the Board must supply after reaching a decision in that context. Section 171A(1) provides:-
“In this Part—
‘environmental impact assessment’ means an assessment which includes an examination, analysis and evaluation carried out by … the Board … in accordance with this Part and Regulations made thereunder, that shall identify, describe and assess in an appropriate manner, in light of each individual case and in accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive, the direct and indirect effects of a proposed development on the following:
(a) human beings, flora and fauna;
(b) soil, water, air, climate and the landscape;
(c) material assets and the cultural heritage and
(d) the interaction between the factors mentioned in paragraphs (a), (b) and (c).”
8.4 Section 172(1H) provides:-
“In carrying out an environmental impact assessment under this section the planning authority or the Board, as the case may be, may have regard to and adopt in whole or in part any reports prepared by its officials or by consultants, experts or other advisers.”
8.5 Section 172(1J) provides:-
“When the … the Board … has decided whether to grant or to refuse consent for the proposed development, it shall inform the applicant for consent and the public of the decision and shall make the following information available to the applicant for consent and the public:
(a) the content of the decision and any conditions attached thereto;
(b) an evaluation of the direct and indirect effects of the proposed development on the matters set out in section 171A;
(c) having examined any submission or observation validly made,
(i) the main reasons and considerations on which the decision is based, and
(ii) the main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions or observations made by a member of the public;
(d) where relevant, a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects;
(e) any report referred to in subsection (1H);
(f) information for the public on the procedures available to review the substantive and procedural legality of the decision, and
(g) the views, if any, furnished by other Member States of the European Union pursuant to section 174.”.
8.6 Part XAB of the 2000 Act provides for the making of an AA.
8.7 Section 177U of the 2000 Act makes provision regarding screening for an appropriate assessment. Section 177U(1) provides:-
“A screening for appropriate assessment of a draft Land use plan or application for consent for proposed development shall be carried out by the competent authority to assess, in view of best scientific knowledge, if that Land use plan or proposed development, individually or in combination with another plan or project is likely to have a significant effect on the European site.”
8.8 Of particular relevance for the purposes of this appeal is s. 177U(6), which provides for the notification of a decision by the competent authority that an appropriate assessment is required:-
“(a) Where, in relation to a proposed development, a competent authority makes a determination that an appropriate assessment is required, the competent authority shall give notice of the determination, including reasons for the determination of the competent authority, to the following—
(i) the applicant,
(ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or
(iii) if appropriate, any party to an appeal or referral.
(b) Where a competent authority has determined that an appropriate assessment is required in respect of a proposed development it may direct in the notice issued under paragraph (a) that a Natura impact statement is required.
(c) Paragraph (a) shall not apply in a case where the application for consent for the proposed development was accompanied by a Natura impact statement.”
8.9 Section 177V of the 2000 Act provides for the carrying out of an AA. Section 177V(1) provides:-
“(1) An appropriate assessment carried out under this Part shall include a determination by the competent authority under Article 6.3 of the Habitats Directive as to whether or not a draft Land use plan or proposed development would adversely affect the integrity of a European site and an appropriate assessment shall be carried out by the competent authority, in each case where it has made a determination under section 177U(4) that an appropriate assessment is required, before—
(a) the draft Land use plan is made including, where appropriate, before a decision on appeal in relation to a draft strategic development zone is made, or
(b) consent is given for the proposed development.”
8.10 Article 6 of Council Directive 92/43/EEC (as amended)(“the Habitats Directive”) provides in relevant part:-
“2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.”
8.11 The judgment of Finlay Geoghegan J. inKellyprovides an important analysis of these legislative provisions, and the requirements of EU law in this area as interpreted by the CJEU.Kellyconcerned a challenge to decisions of the Board granting planning permission for wind turbine developments in County Roscommon. It was contended that the Board had failed to adhere to the requirements of Irish and EU law in carrying out an EIA and an AA. It was also contended that the Board had failed to record its conclusions or give any proper statement of its reasons, contrary both to EU and to national law.
8.12 Finlay Geoghegan J. set out the relevant legislative framework for both EIAs and AAs, and, having considered the requirements in each instance, stated:-
“33. As appears, the respective effects on the decision making process of the Board of the environmental impact assessment and the appropriate assessment (where both have to be carried out by the Board prior to taking its planning decision) are quite different. In carrying out an environmental impact assessment, the Board is required to conduct an examination, analysis and evaluation of and identify the direct and indirect effects of the proposed developments on the matters specified in section 171A(1). However, the outcome of that examination, analysis, evaluation and identification informs rather than determines the planning decision which should or may be made. The Board has jurisdiction in its discretion to grant consent regardless of the outcome of the EIA though of course it impacts on how it should exercise its discretion.
34. In contrast, the Board, in carrying out an appropriate assessment under Article 6(3) and s.177V, is obliged, as part of same, to make a determination as to whether or not the proposed development would adversely affect the integrity of the relevant European site or sites in view of its conservation objectives. The determination which the Board makes on that issue in the appropriate assessment determines its jurisdiction to take the planning decision. Unless the appropriate assessment determination is that the proposed development will not adversely affect the integrity of any relevant European site, the Board may not take a decision giving consent for the proposed development unless it does so pursuant to Article 6(4) of the Habitats Directive.”
8.13 Finlay Geoghegan J. went on to consider the nature of an AA, taking into account the decisions of the CJEU inWaddenzee (Case C-127/02) [2004] ECR I-7405,Commission v. Spain (Case C-404/09)[2011] E.C.R. I-11853 and Sweetman (Case C-258/11). Finlay Geoghegan J. concluded in this regard:-
“Section 177V(1) must be construed so as to give effect to Article 6(3) of the Habitats Directive, and hence, an appropriate assessment carried out under the section must meet the requirements of Article 6(3) as set out in the CJEU case law. If an appropriate assessment is to comply with the criteria set out by the CJEU in the cases referred to, then it must, in my judgment, include an examination, analysis, evaluation, findings, conclusions and a final determination.”
8.14 Finlay Geoghegan J. went on to summarise what is required in order to carry out an AA in compliance with EU law. It is worth quoting this summary in full:-
“It must be recalled that the appropriate assessment, or a stage two assessment, will only arise where, in the stage one screening process, it has been determined (or it has been implicitly accepted) that the proposed development meets the threshold of being considered likely to have significant effects on a European site. Where that is the position, then, in accordance with the preceding case law, the appropriate assessment to be lawfully conducted in summary:
(i) Must identify, in the light of the best scientific knowledge in the field, all aspects of the development project which can, by itself or in combination with other plans or projects, affect the European site in the light of its conservation objectives. This clearly requires both examination and analysis.
(ii) Must contain complete, precise and definitive findings and conclusions and may not have lacunae or gaps. The requirement for precise and definitive findings and conclusions appears to require analysis, evaluation and decisions. Further, the reference to findings and conclusions in a scientific context requires both findings following analysis and conclusions following an evaluation each in the light of the best scientific knowledge in the field.
(iii) May only include a determination that the proposed development will not adversely affect the integrity of any relevant European site where upon the basis of complete, precise and definitive findings and conclusions made the Board decides that no reasonable scientific doubt remains as to the absence of the identified potential effects.”
8.15 Thus, it seems to me as a result of the foregoing analysis that the overall conclusion which must be reached before the Board has jurisdiction to grant a planning consent after an AA is that all scientific doubt about the potential adverse effects on the sensitive area have been removed. However, there seems, as a matter of EU law, to be a separate obligation to make specific scientific findings which allow that conclusion to be reached. This is apparent from the above passages fromKellyand the European case law therein cited.
8.16 The analysis inKellyshows that there are four distinct requirements which must be satisfied for a valid AA decision which is a necessary pre-condition to a planning consent where an AA is required. First, the AA must identify, in the light of the best scientific knowledge in the field, all aspects of the development project which can, by itself or in combination with other plans or projects, affect the European site in the light of its conservation objectives. Second, there must be complete, precise and definitive findings and conclusions regarding the previously identified potential effects on any relevant European site. Third, on the basis of those findings and conclusions, the Board must be able to determine that no scientific doubt remains as to the absence of the identified potential effects. Fourth and finally, where the preceding requirements are satisfied, the Board may determine that the proposed development will not adversely affect the integrity of any relevant European site.
9. Application to this Case – Where Can the Reasons be Found
9.1 It is important to note that enquiry was made at the hearing before this Court as to the availability to members of the general public, at the relevant time, of all the materials which the Court was now being asked to consider. In light of the analysis conducted earlier, it would be difficult to justify placing reliance, in the identification of reasons, on any document which was not publicly available, given the entitlement of some members of the public who had not participated in the process to challenge a relevant decision. It is true that it was indicated that not all of the materials concerned were available online but it was made clear that an interested party did have free access to any of the materials under consideration by this Court.
9.2 The test is, in my view, that identified inChristian. Any materials can be relied on as being a source for relevant reasons subject to the importantcaveatthat it must be reasonably clear to any interested party that the materials sought to be relied on actually provide the reasons which led to the decision concerned. In that regard, it seems to me that the trial judge has, put the matter much too far. The trial judge was clearly correct to state that a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive then the reasons could not be said to be reasonably clear.
9.3 But it must also be noted that, in at least certain types of applications for planning consent, the issues involved may themselves be complex. The reasons put forward either in favour or against a proposed project may involve detailed scientific argument or complex calculation. If such issues arise then it will inevitably be the case that the reasons themselves may be complex and scientific. Where a party wishes to engage with the planning process in a case which raises complex issues of that type (whether at the stage of the application for permission or in the context of mounting a court challenge to a permission granted) then it is inevitable that the party concerned will also have to engage with such matters if any part of their opposition or challenge derives from such complex or scientific questions. It could form no part of a legitimate complaint, based on an argument as to reasons or the lack thereof, to suggest that the reasoning was unduly complicated or scientific if the issues which arose in the context of the grant or refusal of permission required engagement with such issues.
9.4 In the context of a process such as that which occurred in this case, the reasonable observer would undoubtedly look to the Inspector’s report but also have regard to the reservations expressed in that report, to the further information, including the NIS, which the Developer was required to submit because of those reservations and to the rationale found in the decision itself for the Board expressing itself as being satisfied that those reservations had been met.
9.5 In that context, it does not seem to me that the report of the Inspector becomes irrelevant even though it pre-dated the s. 132 notice and the filing of an NIS. It was precisely because of concerns which the Board entertained in the light of the Inspector’s report that further information and an NIS was required. The Inspector’s report forms the backdrop to the further information sought and the further process which occurred before the Board after that information was provided. While it is correct, as the trial judge noted, that things had moved on from the time of the Inspector’s Report, that in itself does not seem to me to be a basis for regarding the Inspector’s Report as irrelevant to the process of reasoning for that Report dealt with the project as it then stood and any changes to the project or additional information supplied in respect of it, were clearly made or submitted in the context of those aspects of the Inspector’s Report which were adverse.
9.6 In that context it does seem to me to be worth saying that it would be preferable in all cases if the Board made expressly clear whether it accepts all of the findings of an Inspector or, if not so doing, where and in what respect it differs. It may be possible, in certain circumstances, to reach a significantly clear inference as to what the Board thought in that regard but it would be better if the matter were put beyond inference and were expressly stated.
9.7 Where the Board differs from its Inspector then there is clearly an obligation for the Board to set out the reasons for coming to that conclusion in sufficient detail to enable a person to know why the Board differed from the Inspector and also to assess whether there was any basis for suggesting that the Board’s decision is thereby not sustainable. But where, as here, a further process intervenes between an Inspector’s report and the final decision of the Board then it is obvious that that further process was designed to ascertain whether the concerns set out in the Inspector’s report and accepted by the Board could be met by further information. In essence, the general reasons issue in this case comes down to one of assessing whether the Board has given adequate reasons for being satisfied that the initial concerns expressed in the Inspector’s report, and which would appear to have found favour with the Board at least on aprima faciebasis, had been adequately dealt with by the additional information, including the NIS supplied.
9.8 It seems to me, therefore, that the reasons for the Board’s development consent decision in this case can, at a minimum, be found in the Inspector’s report and the documents either expressly or by necessary implication referred to in it, the s. 132 notice and the further information and NIS subsequently supplied, as well as the final decision of the Board to grant permission including the conditions attached to that decision and the reasons given for the inclusion of the conditions concerned.
9.9 Any interested party will have had access to all of that documentation. If the reasons for the Board’s decision can be reasonably ascertained from that documentation, then, at least so far as national law is concerned, the requirement to give reasons will be met because any interested party (including a person who has standing but who was not involved in the planning process before the Board) will be able to assess whether adequate reasons have been given or whether there might be grounds for challenging the decision of the Board. Insofar as the High Court judgment suggests that the reasons for the Board’s decision cannot be sufficiently identified, I would reverse the judgment.
9.10 Having identified the potential source of reasons in the context of this case I now turn to the question of whether, as a matter of national law, the reasons given were adequate.
10. Were the Reasons given Adequate?
10.1 As noted earlier, the general duty to give reasons does not involve a box ticking exercise. It will rarely be sufficient to set out, in almost standard form, a generic description of the legal test or principles by reference to which the decision is to be made, to state that that test has been applied, and simply to go on to say that a particular decision has been made. While it has often been said that a decision maker is not required to give a discursive determination along the lines of what might be expected in a superior court judgment, it is equally true that the reasoning cannot be so anodyne that it is impossible to determine why the decision went one way or the other.
10.2 Indeed, it is worth saying that there may have been times in the past when decision makers felt that their decisions were more likely to be open to successful legal challenge if they gave detailed reasons because, it might have been considered, the giving of detailed reasons allowed parties to assert that the reasons were legally inappropriate. However, the modern position makes clear that it is more likely that a decision will be open to successful challenge because reasons are not given rather than because they are. Decision makers are normally afforded a significant margin of appreciation within the parameters of the legal framework within which a particular decision has to be taken. Courts will not second guess sustainable conclusions of fact. As noted earlier, many decisions involve the exercise of a broad judgment and here again the courts will not second guess the decision maker on whom the law has conferred the power to make the decision in question. Giving an explanation as to why the decision maker has concluded one way or the other does not affect that position. What may, however, lead to a successful challenge is if a court concludes that it is not possible either for interested parties or, indeed, the court itself, to know why the decision fell the way it did.
10.3 There is a middle ground between the sort of broad discursive consideration which might be found in the judgment of a court, on the one hand, and an entirely perfunctory statement that, having regard to a series of factors taken into account, the decision goes one way or the other. There is at least an obligation on the part of decision makers to move into that middle ground, although precisely how far will depend on the nature of the questions which the decision maker had to answer before coming to a conclusion.
10.4 It is important to return to the precise sequence of events which occurred in this case. The original report of the Inspector was dated the 30th November 2011. Thereafter the Board required the Developer to provide an NIS and issued a statutory notice under s. 132 of the 2000 Act to like effect. Thereafter, the Developer provided a response to that notice including the requested NIS. The Board was satisfied that the new information provided was sufficient to address the concerns it had raised previously and ultimately decided to grant permission on the 9th May 2014.
10.5 The reasons given by the Board need to be seen in the context of that sequence of events. In other words, the reasons need to be seen in the context of an Inspector’s report which dealt with many issues in a way which were not unfavourable to the Developer but raised specific concerns in a number of areas. The Inspector’s report was followed by a process where the Developer was required to give further information on foot of a statutory requirement, and where the Board subsequently expressed itself as having been satisfied to grant permission in the light of that additional information.
10.6 Against that backdrop it is appropriate to set out the reasons given by the Board in its Decision in full:-
“In coming to its decision, the Board had regard to the following:
(a) national policy relating to the development of sustainable energy sources,
(b) the provisions of the Wind Energy Development Guidelines – Guidelines for Planning Authorities, issued by the Department of the Environment, Heritage and Local Government (2006),
(c) the provisions of the Mid West Regional Planning Guidelines 2010 – 2022,
(d) the policies of the planning authority as set out in the Clare County Development Plan 2011 – 2017, as varied, including the provisions of the Clare Wind Energy Strategy set out in Volume 5 of that Plan,
(e) the location of the subject site within an area designated in the said County Development Plan as “Acceptable in Principle” for wind energy,
(f) the provisions of the Draft Clare County Renewable Energy Strategy 2014-2020,
(g) the location of the subject site outside of any European Site, and the distance to such sites,
(h) the pattern of development in the vicinity, and the planning history of the area, including the existing and permitted wind farms in the vicinity,
(i) the range of mitigation measures set out in the documentation received,
(j) the submissions made in connection with the planning application and the appeal,
(k) the report of the Inspector, and
(l) the further information submitted to An Bord Pleanála on the 9th day of August, 2013, in response to the Board’s request, and to the submissions received following circulation of that response.
The Board was satisfied that the information before it was adequate to undertake an Appropriate Assessment and an Environmental Impact Assessment in respect of the proposed development.
Having regard to the nature, scale and design of the proposed development, the Natura impact statement, the environmental impact statement submitted with the application, the documentation and submissions on file generally, and the significant further information submitted to An Bord Pleanála on the 9th day of August, 2013, and notwithstanding the Inspector’s assessment of impacts on European Sites, which is noted, the Board completed an Appropriate Assessment in relation to the potential impacts of the proposed development on the Carrowmore Point to Spanish Point and Islands Special Area of Conservation (Site Code number 001021) and on the Mid-Clare Coast Special Protection Area (Site Code number 004182). Subject to the implementation of the identified mitigation measures, the Board concluded that the proposed development, by itself, or in combination with other plans or projects, would not adversely affect the integrity of these European sites, in view of the conservation objectives for the sites.
Having regard to the nature, scale and design of the proposed development, the environmental impact statement and supporting documentation submitted at the application and appeal stages, the submissions and documents on file generally, the Inspector’s assessment of environmental impacts and, in particular, to the significant further information submitted to An Bord Pleanála on the 9th day of August, 2013, the Board completed an environmental impact assessment. The Board noted and generally adopted the Inspector’s assessment of environmental impacts, with the exception of the matters set out below, and concluded that the proposed development would not have unacceptable effects on the environment.
It is considered that, subject to compliance with the conditions set out below, the proposed development would accord with the National and County policies set out above, would not seriously injure the amenities of the area or of property in the vicinity, would not result in detrimental visual or landscape impacts, would not give rise to pollution, would not be injurious to the cultural heritage of the area, would be acceptable in terms of traffic safety and convenience, and would not be prejudicial to public health. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area.
1. In deciding not to accept the Inspector’s recommendation to refuse permission for reasons relating to residential amenity, the Board had regard to the distance to residential properties generally, which it considered to be acceptable, to the provisions of the Wind Energy Development Guidelines – Guidelines for Planning Authorities, issued by the Department of the Environment, Heritage and Local Government (2006), and to the further information submitted to the Board by the applicant on the 9th day of August 2013, including cumulative noise and shadow flicker modelling, and was satisfied that the potential impact on residential properties arising from noise and shadow flicker, including the potential cumulative impact arising in combination with effects from the permitted wind farm to the north, would not seriously injure residential amenity.
2. In deciding not to accept the Inspector’s recommendation to refuse permission for reasons relating to visual impact, including impact on a scenic route to the north, the Board had regard to the landscape characteristics of the area, to the scale of the revised four-turbine development, and to the planning history of the area, and in particular to planning appeal reference number PL03.237524 (planning authority register reference number 10/9) in respect of Slieve Callan Wind Farm, whereby permission was granted for 29 wind turbines at a site bisected by the scenic route in question, to the north of and in close proximity to the proposed development. The Board considered that the proposed development of four turbines would read as an extension of the permitted 29-turbine wind farm, and would not have an unacceptable visual impact. Furthermore, the Board noted that the proposed development is located in an area designated as “Acceptable in Principle” for wind power, as set out in the Clare County Development Plan 2011-2017. In the context of national policy to develop alternative sources of renewable energy, the Board considered the planning authority policy to be appropriate, and noted that it had been subject of strategic environmental assessment. In this context, the Board considered that the proposed development would be acceptable at this location in terms of visual amenity.
3. In deciding not to accept the Inspector’s recommendation to refuse permission because of the potential for impact on species and habitats in the vicinity, and on Hen Harrier in particular, the Board had regard to the distances to European Sites generally, to the location of the subject site outside of and at a significant distance from any area designated for the protection of Hen Harrier, to the extensive survey work undertaken in respect of Hen Harrier and other species, to the existing habitats on site, which are varied in terms of their suitability for Hen Harrier foraging, and in particular, to the provisions of the Hen Harrier Conservation and Habitat Enhancement Plan, submitted to An Bord Pleanála by the applicant on the 9th day of August 2013, which provides for the creation of a favourable habitat mosaic for Hen Harrier. The Board also took note of the correspondence from the National Parks and Wildlife Service to the applicant, dated 6th August 2013 (a copy of which was submitted to An Bord Pleanála by the applicant on the 9th day of August 2013), which indicated that the site and this part of Clare are not designated or proposed for designation as a Special Protection Area for Hen Harrier. The Board was satisfied that any finer details required for the implementation of the Hen Harrier Conservation and Habitat Enhancement Plan could be satisfactorily resolved by means of condition.
4. The Board noted the Inspector’s recommendation to refuse permission arising from concern in relation to the potential for water pollution, and decided to request the applicant to revise the proposed wind farm layout as a result, and to submit further information in relation to water quality protection measures. In deciding not to accept the Inspector’s recommendation to refuse permission, the Board had regard to the significant further information submitted by the applicant on the 9th day of August 2013, including the revision of the wind farm layout to provide for adequate separation distances to watercourses, and to the extensive additional information and mitigation measures proposed in respect of water quality. The Board was, therefore, satisfied that the proposed development would not be likely to give rise to water pollution or to adverse impacts on the aquatic environment, and that the Inspector’s concerns had been addressed.
5. Having come to the conclusions set out at items 3 and 4 above, the Board did not accept the Inspector’s concerns in relation to the potential for adverse effects on the integrity of the Carrowmore Point to Spanish Point and Islands Special Area of Conservation and the Mid Clare Coast Special Protection Area. The Board had regard to the nature and scale of the potential impacts arising and, in particular, to the direct and hydrological distances to these European Sites, and to the significant further information submitted by the applicant on the 9th day of August 2013, including a Natura Impact Statement, the revised wind farm layout, increased distances to watercourses, the reduced number of turbines, the omission of one borrow pit, the revised provisions for the two remaining borrow pits, the extensive mitigation measures proposed, and to the preliminary drainage design, peat stability assessment and the preliminary construction stage environmental management plan that were provided. The Board is, therefore, satisfied that the proposed development, by itself, or in combination with other plans or projects, would not adversely affect the integrity of these European sites, in view of the conservation objectives for the sites.
6. The Board noted the Inspector’s concerns in relation to ground instability, and decided not to accept the recommendation made in this respect. The Board noted the ground conditions at this site, including the generally low peat depths, and the characteristics of the peat on this site generally, including high shear strength values, and the characteristics of the subsoils and underlying rock, and concurred in general with the conclusions set out in the geotechnical assessment submitted by the applicant, including the peat stability risk assessment. The Board is satisfied that the investigations undertaken were appropriate and proportionate to the conditions found on this site, and that risk of slippage is low. The concerns of the Inspector in relation to the level of peat probing that was undertaken is noted; however, the Board also had regard to the additional survey work subsequently undertaken in June 2013. The Inspector had also expressed concern in relation to excavations at Turbine 6 and Borrow Pit 2, and in relation to the proximity of the initial wind farm layout to the stream to the south, and was satisfied that the revised proposal submitted to An Bord Pleanála on the 9th day of August 2014, including a revised wind farm layout, addresses these concerns. The Board is satisfied that geotechnical risks at this site are low, and that a material risk of slippage at this site is not likely to arise from the proposed development, either by itself, or in combination with development in the vicinity.
10.7 At this stage of this judgment I do not propose to deal with the separate requirements identified earlier in respect of the grant of permission following on from an AA or whether a case involving an EIA requires different or an additional reasoning.
10.8 I have already identified the materials by reference to which the reasons can be ascertained. Obviously, the starting point has to be to consider the reasons given in the Decision including the reasons given for the application of various conditions. However, as noted earlier, it is obvious from the Decision that it came at the end of a process involving the Inspector’s report and the further information thereafter supplied. It follows that it would be obvious to any reasonable observer that the reasons given by the Board in the Decision must be seen in the context of the Inspector’s report, including the matters on which the Inspector did not express concern, together with the problematic issues identified by the Inspector and the manner in which those issues were addressed in the additional information supplied including the NIS.
10.9 It might well be that had the Decision stopped before the numbered paragraphs (1) to (6) as cited earlier, a legitimate criticism could be made that the determination of the Board was insufficiently reasoned. Up to that point there was a simple recitation of the various matters taken into account and a recording of the ultimate conclusion of the Board. That part of the document would undoubtedly enable a court to review whether all appropriate matters were taken into account and would also enable a court to consider whether the Board had asked itself the right questions. However, not least because of the negative recommendation in the Inspector’s report, it would be difficult to see on what basis the relevant conclusions were reached.
10.10 However the six numbered paragraphs go on to address the issues which caused concern to the Inspector. They set out reasons why the Board was ultimately satisfied that a permission could be granted notwithstanding the various aspects of the Inspector’s report which were negative. For example, in relation to the point made at Item (1) the Board considered residential amenity. Having identified the Inspector’s negative assessment in that regard the Board specifically referred to additional information submitted which included “cumulative noise and shadow flicker modelling”. It is clear, therefore, that the Board took the view that the additional information, and in particular the modelling, was sufficient to satisfy it that the effect of both noise and flicker would not seriously injure residential amenity.
10.11 It is important to emphasise that this Court is not in these proceedings concerned with whether such a finding was open to the Board on all of the materials before it, still less with second guessing the judgment of the Board in that regard. The Court is only concerned with whether adequate reasons were given. In my view, that analysis of point (1) demonstrates that the Board did give reasons for disagreeing with the Inspector’s report under that heading.
10.12 Similar observations can be made in respect of each of the other points (2) to (6). In each case the Board identifies the negative assessment by the Inspector and sets out its reasons, including where appropriate additional information which was received after the Inspector’s report was compiled, for ultimately reaching a different conclusion.
10.13 As noted earlier the Board was also entitled to take into account any aspect of the Inspector’s report which was not negative. The cumulative effect of the Inspector’s report and the Board’s Decision which specifically addresses those areas where the Inspector’s view was negative, provides, in my view, adequate reasons for the Board’s ultimate conclusion.
10.14 The law on reasons does not require that one agrees with the reasons given. In a challenge based on allegedly inadequate reasoning, the law only entitles an interested party to know what the reasons were. Someone reading the Decision is informed as to why the Board ultimately came to be satisfied in respect of each of the aspects of the Inspector’s report which were negative. It is no part of the function of this Court in this case to review whether there was a sustainable basis for any of the views expressed by the Board in that regard let alone to second guess the judgment of the Board as to whether it reached the correct conclusions. However, any interested party knows why the Board came to a different view from the Inspector and has attention drawn, where appropriate, to any specific materials which played an important part in persuading the Board to come to that view.
10.15 In my view, an interested party would, as a result of reading the Decision in conjunction with the Inspector’s report, together with documents (such as, for example, the Noise and Shadow Flicker Monitoring Report referred to earlier) which are either expressly referred to or by necessary inference must be taken to form part of the reasoning, have sufficient information both to inform themselves as to why the Board ultimately came to the conclusions which it did and also to consider whether there was any basis for challenging the conclusions which the Board reached. In my view, the trial judge imposed too exacting a standard in respect of reasons. Just as, at one extreme, the modern law on reasons does not permit a decision maker to engage in a simple box ticking exercise so also, at the other extreme, the law does not require a level of reasoning which goes beyond that required to afford an interested party reasonable information as to why the Decision was made and whether it can be challenged. In those circumstances I would hold that the reasoning of the Board in this case was adequate. Insofar as the High Court judgment held otherwise I would reverse the judgment.
10.16 Having considered that the reasons given were adequate to meet the requirements of national law it is next necessary to consider the European Union law dimension to this case starting with the question of whether different requirements as to reasons apply in a case in respect of which an EIA is required before turning to the separate question of the requirements which arise in the case of an application to which an AA applies.
11. The Position under an EIA
11.1 In my view the same rules apply, at the level of principle, to the reasons which must be given in a case involving an EIA as compared with a case where an application for permission is dealt with purely under national law.
11.2 The principle of subsidiarity requires that national procedural autonomy be respected, subject to the overriding requirements of European Union law that relevant national procedures comply with the principles of equivalence and effectiveness. Clearly, a requirement that the rules concerning reasons should, in principle, be the same whether an EIA is involved or whether the matter is to be determined purely as a matter of national law meets the obligation of equivalence, for exactly the same rules are being applied.
11.3 Furthermore, it does not seem to me that requiring compliance with the national rules concerning reasons, analysed in some detail earlier in this judgment, could fall short of the obligation to provide an effective remedy. If a person knows the reasons why a particular decision was taken to the standard identified earlier in this judgment, then they will be able to assess whether there might be an arguable case that the EIA was not properly carried out to the standards required by Union law. The overriding principle is that a person needs to know why the decision was made and be able to assess whether it can be challenged. Where the decision was made after an EIA then it follows that, as part of the application of the general principle to the circumstances of such a case, the person must know enough about the decision to be able to assess whether it can be challenged on, amongst other grounds, the basis of an alleged failure to carry out a proper EIA.
11.4 It follows that, while the general principle remains the same, there is an additional requirement in a case to which the EIA regime applies to the effect that the decision must be sufficiently clear to enable any interested party to consider whether they may have grounds to challenge the decision on the basis that it might be contended that an adequate EIA had not been conducted.
11.5 In that context, it is important to note that the EIA regime does not require any particular result to the relevant process but rather is concerned with the process itself. It requires a particular assessment to be carried out and, by necessary inference, that a sustainable permission only be granted where that assessment is favourable to the grant of the permission concerned. It follows that, amongst the reasons which need to be given, there must be included the basis on which the assessment required under the EIA regime leads to the conclusion that a permission can be granted. That in turn requires that the decision, or other relevant and connected materials available to any interested party, must demonstrate that an EIA was carried out and that the decision maker properly had regard to the results of the EIA in coming to its conclusion.
11.6 Against that background it is necessary to look at the Decision. It is clear that the Inspector’s report sets out the analysis of the matters which the Inspector considered necessary in the context of an EIA. But it is also clear that an additional assessment was carried out both by the Board in considering the Inspector’s report, again by the Board in requiring additional information including an NIS and finally by the assessment of the Board of the overall situation in the light, amongst other things, of that additional information.
11.7 In those circumstances it does not seem to me that it can be said that there is inadequate information to allow a party to assess whether a proper EIA has been carried out. Any interested party can identify the issues which were addressed in the Inspector’s report, in the additional information and in the Board’s final assessment. If there is a case to be made that material issues were not assessed then an interested party has access to adequate information to enable them to mount such a case. In my view it follows that the information and reasons given are adequate to permit any interested party to mount a challenge based on a contention that a proper EIA was not carried out. Such a party knows the matters that were assessed and, for the reasons already analysed, knows why the result of that assessment was as set out in the Decision. So far as information and reasons are concerned that is sufficient to meet the legal requirement. Insofar as the High Court judgment found otherwise I would reverse the judgment.
11.8 Having concluded that the reasons in this case were adequate to demonstrate that an EIA had been carried out and that a sustainable decision had been made to grant permission having regard to that assessment, it is necessary to turn to the somewhat different considerations which apply in the context of an AA.
12. Appropriate Assessment – Reasons
12.1 Two separate questions arise under this heading. First, there is the finding of the trial judge that no reasons can be found anywhere in the materials to suggest why the Board decided that a full AA was required. There can be no doubt but that the trial judge was correct in that conclusion. However, I am also satisfied that the trial judge was correct to hold that such a failure could not, in and of itself in the circumstances of this case, render a permission invalid when an AA was actually carried out and where it is clear from the AA, if that should prove to be the case, that all potential adverse effects on the protected area, having regard to its conservation objectives, had been identified and the necessary analysis conducted which would permit permission to be granted.
12.2 For those reasons, I agree that the trial judge was correct not to regard the failure to give adequate reasons for requiring a full AA as being sufficient in itself to render a permission granted invalid provided that the AA itself was compliant with the requirements analysed earlier most particularly in the judgment of Finlay Geoghegan J. inKelly. That seems to me to be the real issue which arises under this heading.
13. Appropriate Assessment – Validity
13.1 It must be recalled, in that context, that a key requirement of a sustainable AA must involve the identification of all aspects of the development project which might affect the protected site in the light of its conservation objectives and, in particular, the identification of precise and definitive findings and conclusions which can lead to a determination that no reasonable scientific doubt remains as to the absence of the identified potential detrimental effects.
13.2 A conclusion to that latter effect is a necessary element of a sustainable process, but it is not, in and of itself, sufficient. There must, before a valid AA can be said to have been conducted,, be a precise identification of the potential risks and, importantly, precise scientific findings to allay any fear of those risks coming to pass.
13.3 As noted earlier this is not, strictly speaking, a reasons issue. The issue concerns the validity of an AA decision which gives jurisdiction to the Board to grant permission. It may involve reasons, and when it does those reasons must be given in accordance with the established jurisprudence. But there must also be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. It is against that backdrop that it is necessary to assess the Decision to determine whether it can be said to contain the sort of scientific findings which the CJEU jurisprudence requires.
13.4 In that context it is important to note that there are, in reality, two different stages to the process which must take place in an appropriate sequence. First there must be an AA and an appropriate decision must be made as a result of the AA in order that the Board have jurisdiction to grant a consent. Thereafter, assuming the Board has jurisdiction, the Board may go on to consider whether it should, in all the circumstances, actually grant permission and, if so, on what conditions.
13.5 There is no reason why the analysis and conclusion of the Board in respect of both of those matters cannot be contained in the one document. That is, of course, what happened here. The Decision sets out the analysis and conclusion both in respect of the AA and also in respect of the general planning process including the EIA. Once a single document dealing with both matters contains all appropriate information (including reasons) then the fact that all matters are dealt with in a single document even though relating to what are, technically, two different decisions, creates no difficulty. I would, however, recommend that the Board take care in ensuring that there is reasonable clarity as to which parts of such a document relate to an AA and which parts relate to more general planning considerations. This is not a formal requirement and a decision of a planning authority (including the Board) will not be invalid provided that the reasonable observer would be able to understand with reasonable clarity what the Board was deciding and why. However, it might well make the task of all concerned a lot easier if the Board were to clearly distinguish, in any document recording its decision, those aspects of the document which are concerned with an AA from those which are concerned with more general planning considerations.
13.6 In any event there is no doubt but that the Decision reaches the appropriate conclusion in respect of the AA. But as already noted that is not sufficient. There must be found either in the decision itself or in other materials which clearly must be taken by express reference or by necessary inference to identify the reasons for the ultimate determination, the sort of complete, precise and definitive findings which justify that conclusion.
13.7 The Decision states that the Board concluded that the proposed development, by itself, or in combination with other plans or projects, would not adversely affect the integrity of the relevant protected sites in view of the conservation objectives of those sites. That is undoubtedly the correct legal test which the Board had to consider. However, as already stated, that is not sufficient. In accordance with the jurisprudence of the CJEU complete, precise and definitive scientific findings must be set out in the relevant materials which are sufficient to justify that conclusion.
13.8 In that regard the reasons why the Board ultimately came to a different conclusion from that of the Inspector are set out, to a very large extent, at Items (2), (3) and (5) of the Decision. While those paragraphs identify the considerations which the Board took into account and provide, for the purposes of national law, adequate reasons, it does not seem to me that they meet the more exacting standard required in the context of an AA of identifying the precise findings which allow for a sustainable conclusion to be reached to the effect that all scientific doubt has been removed concerning adverse impacts on the protected site having regard to its conservation objectives.
13.9 There is, indeed, very little by way of specific finding to be found in the paragraphs in question. Ultimately, at point (5), the Board states that it took into account the distance of the proposed development from the sites in question, the nature and scale of the potential impacts arising and what it described as the significant further information submitted together with revised layout including increased distances to water courses. On that basis the Board stated that it was satisfied that the relevant test was met.
13.10 But in so doing the Board does not set out any specific findings. There is, for example, undoubtedly a significant distance between the proposed development and the protected sites. But what findings can be found in the Board’s decision which specifies a scientific finding as to the kind of distance which may be material to a consideration of whether all relevant scientific doubt has been removed. Likewise it is doubtless the case that a different design for water courses and the like may reduce the risk of adverse effects downstream but again there are no specific scientific findings which address the extent to which that re-design, whether taken by itself or in conjunction with other matters considered by the Board, removes all scientific doubt.
13.11 On that basis I would hold that the Decision falls short of the more exacting standard of analysis which is required as a matter of European Union law in those cases to which an AA applies. It may, indeed, as counsel for the developer suggested, have been a marginal case as to whether an AA was required in the first place. Whether that be so or not is not a matter for this Court. But once an AA is embarked on then the jurisprudence makes clear that a decision maker is required not just to provide reasons for reaching the relevant conclusion but to make complete, precise and specific scientific findings which justify that conclusion. It is, in that latter regard, that the Decision falls short of the standard required in respect of an AA.
13.12 I would, therefore, conclude that the Decision falls short of containing the necessary findings which underpin the conclusion required to be reached for a valid AA and thus deprived the Board of jurisdiction to grant a development consent. It may be that the conclusion concerned is indeed justified and that it would have been possible to make appropriate findings to justify it. However, those findings cannot be found either in the Decision or in any other materials which are either expressly referred to in the Decision or must be taken by necessary implication from the Decision and the process leading to it to be findings underpinning the ultimate conclusion. On that basis I consider that Ms. Connelly’s case, insofar as it relates to the adequacy of the AA, is made out.
14. Conclusions
14.1 For the reasons analysed earlier in this judgment I would conclude that the trial judge imposed too exacting a standard on the Board in respect of the obligation under national law to give reasons. I am satisfied that the reasons given were adequate to enable any interested party to know why the Decision, insofar as it relates to the development consent, went the way it did and to consider whether there was any legitimate basis for seeking to mount a challenge. I would, therefore, reverse the judgment of the High Court in that regard.
14.2 I am also satisfied that the Decision and any other materials which are either expressly referred to in it or can be taken by necessary implication to form part of the reasoning, provide adequate information to enable any interested party to assess whether an appropriate EIA has been carried out. I would also reverse the judgment of the High Court in relation to those issues.
14.3 However different considerations apply in respect of an AA. For the reasons which I have sought to analyse I am satisfied that neither the Decision itself nor any other materials which were expressly referred to in the Decision or must be taken by necessary implication to form part of the process leading to the ultimate determination of the Board, can be shown to contain the sort of complete, precise and definitive findings which would underpin a conclusion that no reasonable scientific doubt remained as to the absence of any identified potential detrimental effects on a protected site having regard to its conservation objectives. Such findings are a necessary pre-condition to the Board having jurisdiction to grant a development consent in a case where it is determined that an AA is required. It follows that I would hold that the permission granted in this case must be quashed because of the failure to make the sort of findings which the jurisprudence of the CJEU requires to be made as part of a valid AA.
14.4 In all those circumstances I would dismiss the appeal but do so on much narrower grounds than those identified by the trial judge confining myself to quashing the Decision on the grounds related to an AA identified earlier in this judgment and in these conclusions. In relation to the other issues raised on this appeal I would reverse the judgment of the High Court.
14.5 I would propose that the Court hear counsel further on the precise order to be made and in particular whether, and if so in what manner, this matter should be referred back to the Board.
O’Mahony v An Bord Pleanála
[2005] I.E.H.C. 39
APPROVED JUDGEMENT OF MR. JUSTICE O’NEILL DELIVERED ON FRIDAY, 18TH FEBRUARY 2005
MR. JUSTICE O’NEILL:
This is an application for a leave to apply for Judicial review of two decisions of the first named Respondent, An Bord Pleanála, made on the 4th February 2004 whereby in the first decision it Confirmed a Compulsory Purchase Order in relation to Part of the applicant’s lands on the 29th October 2003 and in its second decision gave approval of a road improvement scheme in relation to the N25 at or about or adjacent to the plaintiff’s lands. In these proceedings orders of certiorari are sought to quash both of these decisions.
This application for leave was made pursuant to Section 50 of the Planning Act of 2000 and therefore the applicant must show substantial grounds for contending that these decisions are invalid. Substantial grounds means weighty or substantial or reasonable grounds, that is to say, not tenuous or just simply open to argument. It is, of course, a higher standard than the ordinary standard that pertains for obtaining leave to apply for judicial review.
Now, the background to this matter is that the applicant is the owner of approximately 12 hectares of land zoned in the Cork County Development Plan for mid density housing. He has access from these lands via a driveway onto the N25. At the moment the lands are of an agricultural nature and the buildings were used in recent times as an abattoir. The actual entrance that is there at the moment is of a driveway type and manifestly, as it stands, unfit as an access into a housing development. The Cork County Council have a proposed scheme to upgrade the N25 and for that purpose have sought approval for that scheme from An Bord Pleanála under Section 51 of the roads Act 1993. In order to build a slip road off the N25 leading to the Bandon direction, Cork County Council made a Compulsory Purchase order of the entrance and a significant part of the avenue leading up to the buildings on the applicant’s land. The road scheme Provides for another access into the applicant’s land nearer the Dunne Stores property.
The applicant is clearly aggrieved because the proposed scheme does not give him an access directly onto the N25 suitable for a development on this lands consistent with its zoning for mid density housing. The applicant has applied for planning permission for housing and this application was refused initially by the Cork County Council and on appeal by An Bord Pleanála, and the primary reason for refusal by both of these bodies was traffic safety reasons and also the unsuitability of an access onto a national
Primary route.
The applicant raises a number of grounds in respect of which he seeks leave and I will deal with these in turn. The first of these grounds is that he says that the application to An Bord Pleanála by Cork County Council was misconceived being expressed to be for approval of the Environmental Impact Statement rather than for approval of the Road Improvement Scheme itself as required by Section 51 of the 1993 Roads Act.
This contention by the applicant appears to me to be almost solely, if not indeed solely, based upon a sentence in a letter of the 30th October of 2003 from the County Council to An Bord Pleanála in which it purports to seek the approval in question. It is the applicant’s case that in apparently seeking approval only for the Environmental Impact Statement that the jurisdiction of An Bord Pleanála under Section 51 of The Road Act 1993 has not been correctly invoked and, hence, its decision lacks essential jurisdiction and is, therefore, invalid. In my view this ground is not sustainable, it is based solely on an extract from a letter of 30th October 2003. Taking this letter as a whole it is quite clear to me that the application was for approval of the road scheme and not just the Environmental Impact Statement. It has to be remembered that there is no prescribed form in the regulations under the Roads Act for making these applications and indeed the only documents which are expressly required to be provided in the Environmental Impact Statement, but having regard to these factors and the overall tenor of the letter itself, it seems to me that nobody could be in any doubt but that what was sought to be approved was the Road Improvement Scheme and not otherwise. It seems to me that this ground is no more than a clutching at a very frail straw indeed.
This ground, in my view, can be fairly characterised as purely technical, not affecting at all the merits one way or the other of the main issue and I’m quite satisfied that it lacks sufficient weight or substance to warrant leave for judicial review.
The next ground put forward was that the Bord did not have regard to an alleged breach of Section 15(1) of the Roads Act of the Planning and Developments Act of 2000 on the part of the County Council in failing to have provided the applicant with an access onto the N25 suitable for a housing development and in so doing breached its own Development Plan by frustrating a housing development on the applicant’s land. It must be remembered that the decisions challenged are those of An Bord Pleanála, thus, in my view, the court cannot be asked in this application to consider the merits of the contention that the County Council breached Section 15(1) in the manner alleged.
The question of whether the applicant was effectively denied a proper access to this land by the road scheme was extensively canvassed in the oral hearing with experts called on both sides of the argument. The applicant’s case was that that access to the Eagle Valley estate to the east was not likely to be achieved because of the inadequacy of the roads there and also because of a ransom strip separating the applicant’s land from the actual road itself on the Eagle Valley side. Also, it was contended that access was unlikely to be achieved onto the Bandon Road, hence, without access onto the N25 the zoning objective relative to his land would be defeated.
For the County Council the case was made that both of these routes had the potential to provide access to the applicant’s lands. Having considered all the evidence the Inspector came down on the side of the County Council. Soon after that the applicant’s application for planning permission for his land for housing was refused by the County Council and later An Bord Pleanála primarily on the ground of road safety and the undesirability of access onto the national primary route. Thus, it was argued here by Ms. Butler and Mr. Macken that even without the Road Improvement Scheme the applicant was not going to Have an access onto the N25 in any event. It is not for me to decide these issues. Suffice it to say, that in an application for a judicial review, such as this, it is the legality of the decision and not the merits that must be considered. No allegation has been made in respect of that issue, by the applicant in respect of a breach of natural justice, not is there an allegation of irrationality made. I would, of course, draw attention to the fact that ground 15 of the grounds does, in fact, allege irrationality, but, in fact, this ground was not pressed in the course of the argument by Mr. Galligan and indeed if it had been pressed, I wouldn’t have had the slightest hesitation or difficulty in finding that there was ample material before the Board to support and justify the decisions it had taken and had that ground been pressed it would undoubtedly have failed. The decision as to whether there was such a breach, that is to say, a breach of Section 15(1) of the Planning and Development Act 2000 was one which was within the competence of An Bord Pleanála to consider and decide upon it having been raised by the applicant in the oral hearing, and its decision, in my view, cannot now be disturbed on this ground. Hence, in my view it is not open to this court on a judicial review application to interfere with the decision of An Bord Pleanála on the grounds that there was alleged to have been a breach of Section 15(1) of the Planning and Development Act 2000 on the basis that, the Road Improvement Scheme did not provide for an access to the plaintiff’s lands suitable for a housing development on to the N25 directly. Accordingly, in my view this ground fails.
Now, the next ground that was raised related to the adequacy of the Environmental Impact Statement. The applicant contends that the Environmental Impact Statement did not consider future development on the applicant’s land and the impact of the roads scheme on it in terms of noise, air quality and access to the N25. In the oral hearing the County Council experts conceded that this was so, for An Bord Pleanála it was submitted that an Environmental Impact Statement could not consider impacts on development not yet known as to do so would be simply to speculate, it was submitted that an Environmental Impact Statement could only consider impacts on planned development, that is to say, development in respect of which there was planning permission.
I would be satisfied that the absence of planning permission would not be sufficient to excuse a non-consideration of future potential development. The zoning on the land indicates that within the lifetime of the development plan, development of a particular kind may take place, in this case mid density housing, it would seem to me that to ignore the likelihood zoned development would be a significant deficiency in an Environmental Impact Statement and a failure to comply with the relevant directive, that is to say, the Environmental Impact Statement, directive. While in this case the applicant’s real and only concerns with the access onto the N25, at no stage had he raised any concerns about the noise or air quality impacts or the like. Insofar as the N25 access problem is concerned that problem is a present and immediate problem and is well described and considered in the Environmental Impact Statement. It is a problem which exists now and its impact can indeed undoubtedly be fully anticipated and indeed it would be unreal to suggest that the Environmental Impact Statement does not fully deal with the future impact of that problem. In my view, therefore, there is no deficiency in the Environmental Impact Statement in this regard.
In essence the Environmental Impact Statement describes the link road which as described and laid out in the scheme has the undoubted consequence of denying access on the link road except as a private entrance being, a left in and left out entrance, making it clear that the impact of the roads scheme so far as the access to the applicant’s lands is concerned is to deny access on to N25 for a housing development. All of this, in my view, is readily apparent from the Environmental Impact Statement, and as I have said it would be unreal to criticise the Environmental Impact Statement for failing to describe future impacts in that regard.
Having regard to the fact that the applicant has no real concern about noise or air pollution issues it would seem to me that his complaint, that the EIS does not consider the impact of the scheme on future development of land in this regard is of a very tenuous nature and lacks the kind of weight or substance to justify leave to apply for judicial review.
The next ground relates to compliance with article 3 of EU directive 85/337/EC as replaced by Article 5 of the EU directive 97/11/EC. The applicant’s case is that there was an obligation on An Bord Pleanála to identify, describe and assess in their decision the direct and indirect effects of the scheme on human being, flora, fauna, on soil water, air climate and landscape, on material assets and cultural heritage, and on the interaction between these factors mentioned above. The duty to carry out this assessment, it was submitted, lies solely on the Bord and not the Inspector and must be recorded in its decision. Manifestly the decision does not do this and it is submitted, therefore, on its fact it is invalid for failure to comply with Article 3. It was submitted that the reason that his is a requirement was, that it was there to demonstrate compliance in a transparent way that the Bord has, in fact, carried out the required assessment.
Both Ms. Butler and Mr. Macken submitted that the Environmental Impact Assessment is a process set out in Articles four to nine of the directive in question, each step of which forms part of the assessment. The function of the Bord are then set out and prescribed in paragraphs eight and nine. They submit that there has been a full compliance by An Bord Pleanála with the requirements of the Directive and Section 51 of the Roads Act 1993. I’m satisfied that Ms. Butler and Ms. Macken are right in this regard and I’m also satisfied that the construction place by Mr. Galligan on Article 3 is entirely misplaced. It is quite clear reading through the directive in question that the Environmental Impact Assessment is indeed a process which is set out in various stages and steps, as are described in articles four to nine of the directive in question. In my view the assessment cannot be seen as confined to Article 3 alone. Indeed Article 3 itself prescribes that the assessment must be carried out in accordance with Articles four to 11.
Indeed in the case of Burkely v the Secretary For the Environment 2001, 2 AC, a case relied on by Mr. Galligan at pages 615 and 616 of the report,
Where it sets out part of the opinion of Lord Hoffman affords a good illustration or description of how, in fact, this assessment works in a staged way in accordance with these articles. I’m satisfied that this ground is wholly unsustainable and lacks the weight and substance to warrant judicial review.
The last ground, which is raised by the applicant is a denial of natural justice on the grounds that the Inspector refused to divulge the contents of a letter from Dunnes Stores during the oral hearing. The contents of this were later made available to the applicants. It was conceded by the applicant that nothing in the arrangement or agreement between Dunnes Stores and the County Council in any way prejudiced the applicant. The applicant contends, however, that the statement in the letter to the effect that the Road Improvement Scheme would not go ahead for an indefinite period because the NRA had not provided funding for it should have been revealed by the Inspector as it materially affected the assessment of impacts from the scheme and if known could have effected the evidence from experts particularly in cross-examination.
The applicant has failed to demonstrate at all to my satisfaction how this information would materially have altered the assessment of the Environmental Impact and in particular the one that he was exclusively concerned about, namely, access to the N25 and, hence, he has failed to demonstrate that the non-disclosure of the contents of this letter inhibit him in making his case at the oral hearing or that it had the effect of, as it were, rendering the EIS incapable of dealing with the particular Environmental Impacts to which he drew attention. I’m satisfied that the applicant has failed to demonstrate a breach of his right to natural justice in this regard and hence in that being so this ground lacks sufficient weight to justify a judicial review.
Towards the end of the hearing the applicant applied to me for a reference to the European Court of Justice under Article 234 of the treaty on two questions. The first of these being: does Directive number 97/11/EC or directive have direct affect in our law? And the second question was: does article three oblige the decision maker, in this case An Bord Pleanála, to identify, describe and assess Environmental Impacts in relation to the matter set out in the article? I’m satisfied that it is open to me to interpret the relevant provisions of the directive in question and that I have done that as is clear from the above and, therefore, I do not need the assistance of the European Court for that purpose. No issue was raised in the argument as to the inadequacy of the transposition of this directive or any of its Provisions into our domestic law and, therefore, it seems to me that the issue of direct effect just simply does not arise.
Having regard to all of the foregoing it would appear to me that all of the grounds put forward by the applicant have failed and that being so I must refuse leave to apply for judicial review.
END OF JUDGMENT
APPROVED JUDGMENT O’NEILL J.
Power v An Bord Pleanála (No. 1), unreported, High Court, Quirke J., January 17, 2006
JUDGMENT of Quirke J. delivered the 17th day of January, 2006.
This is an application made pursuant to the provisions of Order 84 of the Rules of the Superior Courts 1986 (S.I. No. 15 of 1986), for leave to seek judicial review of a decision of the respondent An Bord Pleanála (hereafter “the Board”) made on the 15th December, 2004, granting approval to Waterford County Council (hereafter “the Council”) for the development of a waste management facility at Garrynagree, Dungarvan, Co. Waterford.
The application has been made upon notice to the Board and to the Council as required by the provisions of s. 50(4)(b) of the Planning and Development Act, 2000 (hereafter “the Act of 2000”).
The applicant wishes to seek an order of certiorari quashing the decision of the Board on the following four grounds;
1. That the decision is invalid because it was made in violation of the provisions of Article 6 of Council Directive 92/43/E.E.C. of 21st May, 1992 on “the conservation of natural habitats and of wild fauna and flora”, (hereafter “the Habitats Directive”).
2. That the decision was invalid because the environmental impact assessment of the development was defective having regard to the provisions of Articles 5 and 6 of Council Directive 85/337/EEC of 27th June, 1985, (as amended by Council Directive 97/11 E.C. of 3rd March, 1997), (hereafter “the E.I.A. Directive”).
3. That the decision was invalid because its terms contravened the provisions of Articles 4 and 7 of Council Directive 75/442/E.C. on waste (hereafter “the Waste Directive”) and Article 8 of Council Directive 99/31/EC on the landfill of waste (hereafter “the Landfill Directive”).
4. That the decision of the Board was and is invalid having regard to the provisions of Article 10 of the Treaty establishing the European Community.
RELEVANT FACTS
The following facts are relevant to the application.
1. On 13th June, 2003, the Council applied to the Board pursuant to s. 175 of the Act of 2000 for approval for the development of a waste management facility at Garrynagree, Dungarvan, Co. Waterford. The facility was of the type known as a “landfill”. The Council’s application for approval was accompanied by an environmental impact statement (hereafter “E.I.S.”).
The site of the proposed landfill waste facility is located close to the River Lickey which contains a species of pearl mussel called “Margaritifera margaritifera” (hereafter “the pearl mussel”), which is endangered and protected under domestic and European environmental legalisation (including the Habitats Directive).
2. In October, 2001, the applicant, who is the secretary of a group entitled “the Lickey Concern Group” made a complaint to the European Commission alleging a failure on the part of the Government of Ireland to comply with its obligations under the Habitats Directive.
In June, 2003, (after contact and correspondence between the Commission and the applicant and between the Commission and the Government of Ireland), a list of proposed candidate areas for designation as a “Special Areas of Conservation”, (hereafter “S.A.C.”), was published by the, (then), Minister for the Environment, Heritage and Local Government (hereafter “the Minister”). The list included a site comprising a significant stretch of the River Lickey.
3. By letter dated 30th July, 2003, the Council submitted a report (hereafter “the Natura Report”) to the Board. It was entitled “A Report on the ecology of the River Lickey in the context of the proposed landfill development at Garrynagree”. At paragraph 3.1 under the heading “Designated Status” the report referred to the designation of the River Lickey (hydrometric Area no. 18) as a “Candidate Special Area of Conservation” under the Habitats Directive.
The report concluded that the River Lickey was of high ecological value due to the presence therein of various species (including the pearl mussel), which are listed species under the Habitats Directive. It considered that the principal threat to the pearl mussel posed by the proposed landfill development was the release of leachate and of sediment as a result of earthworks during construction giving rise to the risk of siltation through run-off.
The report concluded that management and mitigation measures which had been recommended would result in a “…positive impact on the habitat of the River Lickey and its capability to support fresh water pearl mussel and other important species.”
4. By letter dated 22nd September, 2003, the Council submitted a revised non-technical summary of the E.I.S. which had earlier been furnished with the application for approval.
The summary concluded inter alia that the proposed development would not have any significant effect on the River Lickey. It stated that the pearl mussels had already been adversely affected by forestry activities and that alternative planting on the rest of the site would significantly improve the breeding grounds for the pearl mussels.
5. Notice of the Council’s application to the Board on 13th June, 2003, for approval was advertised by newspaper notice bearing the same date. The fact that additional information (comprising the Natura Report and the revised non-technical summary of the E.I.S.) was published by newspaper notice on 16th October, 2003.
6. Mr. Michael Walsh who is the Deputy Planning Officer of the Board and Mr. Eugene Daly who was a consultant geologist and hydrogeologist were appointed inspectors on behalf of the Board. They carried out a number of inspections of the proposed site on various dates between 27th November, 2003, and the 28th September, 2004.
7. Pursuant to its discretionary power conferred by the provisions of s. 134 (5) of the Act of 2000 the Board directed that an oral hearing in respect of the development should be conducted. This was intended to include and facilitate submissions by interested parties. The hearing was commenced on 22nd June, 2004, in the Park Hotel Dungarvan, Waterford. It was completed on 30th June, 2004.
8. By letter dated 30th March, 2004, the Commission of the European Communities wrote to the Minister for Foreign Affairs indicating inter alia that:
(a) it had registered a complaint against Ireland in 2002 in relation to the proposed landfill development,
(b) it had received additional information from complainants since that date,
(c) the Commission:
“(i) was not convinced that …the proposal of Garrynagree as a ‘suitable disposal site..’ was consistent with E.U. legislation,
(ii) …would submit that Garrynagree ought not to have been identified as a suitable disposal site and…
(iii) (would submit) ..that the documents (including the E.I.S.) submitted and supporting the proposal lacked detail,
(iv) considered that the selection of Garrynagree as a proposed landfill was inconsistent with Ireland’s obligations pursuant to Article 10 of the Treaty establishing the European Community and
(v) ..took the view that Ireland had failed to fulfil its obligations under Article 4 and 7 of the Waste Directive, Article 8 of the Landfill Directive, Article 5 of the E.I.A. Directive and Articles 6 (3) and (4) of the Habitat Directive.”
9. The Commission’s letter, invited the Government of Ireland, (hereafter “the Government”), in accordance with the provisions of Article 226 of the Treaty establishing the European Community, to submit its observations to the Commission on the latter’s view.
No evidence has been adduced in these proceedings indicating whether or not the Government took the opportunity to submit its observations to the Commission upon its observations. No evidence has been adduced indicating that the Commission took action against Ireland as a Member-State of the European Union alleging a breach of European Law by Ireland in relation to any matters which are the subject of these proceedings.
10. The inspectors appointed by the Board submitted their report to the Board. It comprised four substantial and comprehensive volumes.
The third volume (volume (iii)) of the Inspectors Report was written by Mr. Eugene Daly. It concentrated upon geological, hydrological and hydrogeological matters relating to the proposed development.
11. On the 30th November, 2004, the submissions on the Board’s file were considered at a board meeting. During that meeting the Board decided, (by a majority of 6 to 1), to “…approve the development generally in accordance with the inspector’s recommendations subject to.. (certain).. draft reasons, considerations and conditions”. A Direction was issued dated 1st December, 2004, that the development should be approved subject to the draft reasons, considerations and conditions and to the following “Note”:
“1. the Board noted the Inspector’s concerns that the development as originally proposed (a) would be likely to have significant adverse effects on the environment, particularly on the aquatic environment of the River Lickey proposed c.S.A.C. and, (b) was greatly oversized in terms of the long term landfill needs. For these reasons, the Inspector had recommended the omission of seven of the proposed 15 cells….the Board considered that the omission of cells 1 to 4 inclusive, i.e. those cells nearest to the River Lickey was sufficient to ensure that the proposed development would not be likely to result in significant adverse effects on the environment while at the same time providing adequate capacity to meet future needs….the omission of more than four cells would be excessive and could not be justified in terms of any benefit to the S.A.C….”
12. The submissions on the Board’s file on 30th November, 2004, included the applicant’s submissions. Dr. Evelyn Morkens who is an internationally acknowledged expert in the distribution, water quality requirements, captive breeding and conservation of pearl mussels attended at the oral heading before the inspectors between 22nd and 30th June, 2004 and testified in support of the applicant’s contentions. Before the oral hearings she had availed of the opportunity to carefully consider the documents made available to all members of the public as part of the authorisation process. Those documents included the E.I.S, the revised non-technical summary and the Natura report.
13. The file before the Board when it made its decision on 30th November, 2004, contained the letter from the European Commission to the Government inviting observations on the Commission’s view.
14. On the 15th December, 2004, the Board by order formally granted the Council approval for the development subject to a number of conditions.
These proceedings were commenced on behalf of the applicant on 16th February, 2005.
RELEVANT LEGISLATIVE PROVISIONS
Article 6.2 of the Habitats Directive provides as follows:
“Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, insofar as such disturbance could be significant in relation to the objectives of this Directive.”
Article 6.3 of the Habitats Directive provides as follows:
“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site ……the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
Article 5.1 of the E.I.A. Directive places upon Members States of the EU an obligation to adopt the appropriate measures to ensure that developers provide particular information in respect of proposed projects.
Article 5.2 of that Directive provides as follows:
“The information to be provided by the developer in accordance with paragraph 1 shall include at least:
– A description of the project comprising information on the site, design and size of the project,
– A description of the measures envisaged in order to avoid, reduce and, if possible remedy significant adverse effects,
– the data required to identify and assess the main effects which the project is likely to have on the environment,
– a non-technical summary of the information…”
Article 6 (2) of the E.I.A. Directive (as amended) provides as follows:
“Member States shall ensure that any request for development consent and any information gathered pursuant to Article 5 are made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before a development consent is granted.”
Article 8 of the E.I.A. Directive (as amended) provides that:
“Results of consultations and the information gathered pursuant to Article 5, 6 and 7 must be taken into consideration in the development consent procedure.”
Article 4 of the Waste Directive provides as follows:
“Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment, and in particular:- without risk to water, air, soil and plants and animals, – without causing a nuisance through noise or odours, without adversely affecting the countryside or places of special interest.”
Article 7 (1) of the Waste Directive (as amended) provides as follows:
In order to attain the objectives referred to in Articles 3,4 and 5 the competent authority or authorities referred to in Article 6 shall be required to draw up as soon as possible one or more waste management plans. Such plans shall relate in particular to;
– the type, quantity and origin of waste to be recovered or disposed of,
– general technical requirements,
– any special arrangements for particular wastes,
– suitable disposal sites or installations …”.
Article 8 of the Landfill Directive provides that Member States must not issue landfill permits unless first satisfied inter alia that
“The landfill project complies with all the relevant requirements of this Directive, including the Annexes …”.
Annex 1 of the Landfill Directive dealing with general requirements for all classes of landfills provides that:
1.1 The location of a landfill must take into consideration requirements relating to:
(a) the distances from the boundary of the site to residential and recreation areas, waterways, water bodies and other agricultural or urban sites…
(c) the geogological and hydrogeological conditions in the area;
(e) the protection of the nature or cultural patrimony in the area.
1.2 The landfill can be authorised only if the characteristics of the site with respect to the abovementioned requirements, or the corrective measures to be taken, indicate that the landfill does not pose a serious environmental risk.”
Article 10 of the Treaty establishing the European Community provides as follows:
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievements of the Community’s tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.
THE TEST FOR LEAVE
Section 50 (4) (b) of the Act of 2000 provides inter alia that upon an application such as this
“…leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.”
It has not been contended on behalf of the Board or on behalf of the Council that the applicant does not have a “substantial interest” in the matter which is the subject of these proceedings.
It is strongly contended however on behalf of both the Board and the Council that the applicant does not have “substantial grounds”, (of the kind referred to in that subsection), for contending that the Board’s decision is invalid and should be quashed.
The term “substantial grounds” in the virtually identical context of s. 82 (3) (b) of the Local Government (Planning and Development) Act, 1963 (as amended by s. 19 of the Act of 1992), was considered by the High Court (Carroll J.) in the case of McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125. It was held to have the following meaning (at p. 130).
“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe that I should go no further than satisfy myself that the grounds are ‘substantial.’ A ground that does not stand any chance of being sustained (for example where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it as sound or not. If I consider a ground, as such, to be substantial, I do not also have to say, that the applicant is confined in his arguments at the next date to those which I believe may have some merit.”
That interpretation of the term “substantial grounds”, (in the context in which it is to be applied in these proceedings), was cited with approval by the Supreme Court in the case of In Re: Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. It has been adopted repeatedly by the courts in this jurisdiction and I have no hesitation in adopting it for the purposes of these proceedings.
Although non-compliance with the provisions of a Council Directive is a ground relied upon with increasing frequency as a ground for relief by way of judicial review of planning decisions none of the four grounds which have been relied upon by the applicant come precisely within the category identified by Carroll J. as grounds “where the point has already been decided in another case…”. Like Carroll J. I draw a distinction between the grounds relied upon and the various arguments put forward in support of those grounds.
Similarly, I do not intend to evaluate each of the arguments which have been advanced in support of the grounds or, if the applicant is successful, to confine her to the arguments which have been advanced in these proceedings.
If the ground relied upon is not trivial or tenuous but is reasonable, arguable and of substance then the applicant will be entitled to seek the relief which she seeks.
I propose to deal with each of the grounds in the sequence in which I have set them out earlier.
1. The Habitats Directive.
The Habitats Directive has been implemented in Ireland by the enactment of the European Communities (Natural Habitats) Regulations, 1997 (S.I.) No. 94 of 1997 as amended, (hereafter “the Habitats Regulations”).
Regulation 28 of the Habitats Regulations imposes an obligation upon the Minister to agree, (broadly in the terms of Article 6.3 of the Habitats Directive), to a proposed development within a special area of conservation only when satisfied that the development will “…not adversely affect the integrity of the site concerned…”.
Section 175 of the Act of 2000, requires the preparation of an E.I.S. in respect of developments of the kind which is the subject of these proceedings. The section precludes development in such cases without approval of the Board.
The applicant argues that the obligations imposed upon the Minister by Regulation 28 of the Habitats Regulations (and imposed upon the State by the provisions of Article 6(3) of the Habitats Directive) must be deemed to have been imposed upon the Board which is the designated State authority to which the Minister’s decision making function has been delegated.
It is argued that the Board could only have granted approval for this development if satisfied that the development would not result in any adverse effect upon the conservation objectives of the site. Reliance is placed upon the decision of the Court of Justice in case C-172 /02 – Landelijke Vereniging tot Behoud Van de Waddenzee v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] E.C.R. 1 – 7405 and in particular paragraph 59 thereof which provides:
“Therefore, pursuant to Article 6(3) of the Habitats Directive, the competent natural authorities, taking account of the conclusions of the appropriate assessment of the implications of (the plan or project in question) for the site concerned, in the light of the site’s conservation objectives, are to authorise such activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.”
The applicant relies upon observations contained within the Inspector’s Report to the Board as evidence of a deterioration in water quality in the area concerned and the need for a higher level of water quality in the interest of the conservation of the pearl mussel.
It is contended that in the light of those observations the Board could not have been satisfied that approval of the development would not result in adverse effects on the conservation objectives of the site. It is argued that the Board did not properly consider the question of such adverse effects and was therefore in breach of the obligations imposed upon it by the Habitats Regulations and the Habitats Directive.
When making its decision the Board was required to consider a very substantial amount of evidence and material. Much of that evidence and material was provided by way of expert scientific evidence and the material contained in the reports of its Inspectors, Mr. Michael Walsh, who is the Deputy Planning Officer of the Board, and Mr. Eugene Daly who is a Consultant Geologist and Hydrogeologist.
The Board also considered a very substantial quantity of expert testimony from other expert witnesses including the testimony of Dr. Moorkens who is an acknowledged international expert on the conservation of the pearl mussel and upon environmental science and management.
It has been argued that the evidence of Dr. Moorkens should have been preferred to that of Mr. Daly by reason of Dr. Moorkens’ particular expertise upon the conservation of the pearl mussel. However it is also argued on behalf of the applicant that the evidence of the Board’s own inspector was not adequately considered by the Board when it reached its decision.
The Inspector expressed his concern (see Inspector’s Report Vol. 2 at pp. 41, 42 and 53) as to the potential effect which the development might have upon the aquatic environment and in particular the potential for discharges of silt–laden water into the river.
However these concerns were clearly considered by the Board which made its approval subject to conditions which were expressly intended to address those concerns.
The applicant has conducted an exhaustive review of the expert testimony and material which was before the Board. She argues that the Board has not adequately addressed the environmental impact upon the area of the development which is proposed.
Mr. Collins S.C. has argued eloquently that the decision of the Board is invalid because it has been made in violation of the provisions of Article 6 of the Habitats Directive and Regulation 28 of the Habitats Regulations.
However it seems to me that his argument in relation to alleged breaches of the Habitats Directive is based upon the contention that the evidence and material before the Board did not support the Board’s decision.
The fundamental ground relied upon in support of the argument that the applicant should be granted leave to seek to quash the decision is, in fact, based upon that contention.
The courts will not intervene by way of judicial review to quash decisions of administrative tribunals (such as the Board) in the absence of evidence of illegality. The function of the court in an application for judicial review is limited to determining whether or not an impugned decision was legal, not whether or not it was correct.
It is decidedly not a function of this court to substitute itself for the Board for the purpose of determining whether it believes that the decision made was the correct one. This court has neither the jurisdiction nor the competence to undertake such an exercise.
In the “Notes” attached to its Direction dated 1st December, 2004, the Board specifically noted the Inspector’s concern “…that the development as originally proposed (a) would be likely to have significant adverse effects on the environment, particularly on the aquatic environment of the River Lickey proposed cSAC…”. The grant of approval was made subject to specific conditions intended to eliminate such effects.
It is not contended that the decision of the Board was unreasonable or irrational in the sense outlined by the Supreme Court in “The State (Keegan and Lysaght) v. The Stardust Victims Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. On the evidence such a contention could not have been sustained.
In the circumstances I am not satisfied that the first ground relied upon by the applicant in these proceedings comprises a “substantial ground” for the relief sought within the meaning ascribed to that term by s. 50(4)(b) of the Act of 2000. Accordingly the application for leave to seek relief on that ground is declined.
2. The E.I.A. Directive.
Article 5.2 of the E.I.A. Directive requires that particular information be provided to the decision making body by aspiring developers. The information to be furnished must include a description of “..measures envisaged to avoid, reduce and, if possible, remedy significant adverse affects and the data required to identify and assess the main affects that the project is likely to have on the environment…”.
Article 6(2) of the E.I.A. Directive requires that information gathered pursuant to Article 5 should be made available to the public “…within a reasonable time in order to give the public concerned an opportunity to express an opinion before a development consent is granted…”.
Thereafter the “…results of consultations and information gathered pursuant to Article 5, 6 and 7 must be taken into consideration in the development consent procedure” – (see Article 8 of the Directive).
No breach, by the Board, of the European Communities Environmental Impact Assessment Regulations 1989 – 2001 (hereafter the E.I.A. Regulations) has been alleged. The applicant wishes to seek relief solely on the ground of non-compliance with the E.I.A. Directive.
The information provided by the developer and made available to the public included the E.I.S. Report, the Natura Report (dated 30th July, 2003) and the revised non-technical summary of the E.I.S.
Thereafter an oral hearing was held which commenced on the 22nd June, 2004 and was completed on 30th June, 2004.
That oral hearing was advertised to interested members of the public who attended and participated in the hearing.
A substantial part of the oral hearing was occupied with evidence and submissions relating to the effect which the project was likely to have on the environment and the“…measures envisaged in order to avoid, and if possible remedy significant adverse effects…” on the environment.
The applicant complains that the original E.I.S. was defective and inadequate. However the original E.I.S. was part only of the information provided by the developer pursuant to the provisions of Article 5.2 of the E.I.A. Directive.
On the evidence the Board was satisfied that the information provided by developer was sufficient to comply with the provisions of Article 5.2 of the E.I.A. Directive. It was within the jurisdiction of the Board to so decide (see Kenny v. An Bord Pleanála (No. 1) (2001) 1 IR 565).
It has not been alleged that the Board’s decision to treat the information as adequate was irrational or unreasonable in the sense outlined by the Supreme Court (Finlay C.J.) in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.
The applicant relies upon the observations of the Commission of the European Communities contained in a letter to the Minister for Foreign Affairs dated 30th March, 2004. In its letter the Commission expressed the view that the documents submitted for the purposes of the E.I.A. Directive lacked detail and did not provide adequate information on the construction and operation phases of the proposed development and the mitigation measures proposed to address the impact of those phases. It took “ the view”, that Ireland had “failed to fulfil its obligations under..” Article 5 of the E.I.A. Directive.
The applicant contends that the view expressed by the Commission is sufficient, by itself, to require a finding by this court that the applicant’s similar contention comprises a “substantial ground” for leave to seek the relief which the applicant wishes to seek.
I do not agree. The Commission’s observations and views were made and expressed in the context of a complaint made by the applicant to the Commission. No evidence was adduced in these proceedings which would enable this court to discover how the Commission arrived at its “view”. It may have been a preliminary view based upon the applicant’s complaint. The letter concludes with an invitation to the Government to submit to the Commission its “observations” upon the Commission’s “view” indicating that in default the Commission “.. may, if appropriate, issue a Reasoned Opinion as provided for in the …Article”.
The letter dated 30th March, 2004 containing the Commission’s
observations and views was before the Board when it made its decision. On the balance of probabilities the Board took its content into account when making its decision. It was within its jurisdiction to decide upon the adequacy of the material which informed its decision. It is not the function of this court to substitute itself for the Board in order to discover whether it would reach the same conclusion. The requirements of the E.I.A Directive as to public notification and participation were complied with. The public, including the applicant, was provided with access to all of the documentation which was before the Board. It was enabled to, and did, participate fully in the planning process.
It follows from what I have just found that I do not consider that the second ground advanced on behalf of the applicant comprises a “substantial ground” within the meaning ascribed to that term by s. 50(4)(b) of the Act of 2000.
3. The Waste Directive and the Landfill Directive.
It is contended on behalf of the applicant that the decision made by the Board was invalid because its terms contravened the provisions of Articles 4 and 7 of the Waste Directive and Article 8 of the Landfill Directive.
Again the applicant relies upon the observations of the Commission of the European Communities as contained in its letter to the Minister for Foreign Affairs dated 30th March, 2004, wherein the Commission expressed the view that: “…Garrymagree ought not to have been identified as a suitable disposable site for the purposes of Article 7 …(of the Waste Directive)… in the currently applicable Waste Management Plan” and expressed the “view” that the State had failed to comply with the provisions of Articles 4 and 5 of the Waste Directive and Article 8 of the Landfill Directive. I have indicated earlier that I do not believe that the Commission’s view must necessarily be accepted as having established a “substantial ground” for the purposes of these proceedings.
In these proceedings the Board has granted permission for the development of a waste management facility. The evidence has established that the State authority which is empowered, (by ss. 39 and 40 of the Waste Management Act, 1996), to grant a waste licence for the operation of such a facility and required to operate and control emissions from the facility is the Environmental Protection Agency (hereafter the E.P.A.).
Section 40 of the Waste Management Act, 1996 (as amended) expressly provides that the E.P.A. shall not grant a waste licence for an activity unless it is satisfied that the activity, if carried out subject to the conditions attached to the licence, will not cause environmental pollution and will comply with the provisions of the Landfill Directive.
The legislation enacted by the Oireachtas for the transposition of the Waste Directive and the Landfill Directive has not been challenged in these proceedings. The State has, by that legislation, designated the E.P.A. as the appropriate competent authority for ensuring compliance with Articles 4 and 7 of the Waste Directive and Article 8 of the Landfill Directive. The Board has, inter alia, been designated by the State as a competent authority with responsibility to approve or reject proposed planning developments on the grounds of proper planning and sustainable development within specific areas.
The applicant cannot sustain her claim that the decision of the Board was invalid for failure to comply with the provisions of the Waste and Landfill Directives. The obligation to comply with the provisions of the Waste and Landfill Directives rests upon the State. The State has sought to discharge that obligation by the enactment of legislation imposing responsibility for compliance upon a State agency, (the E.P.A.). That legislation has not been challenged and must be deemed lawful for the purposes of these proceedings. The E.P.A. is a State agency separate and distinct from the Board.
Extensive powers have been conferred upon the E.P.A. to enable it to perform its statutory functions and obligations. They include the monitoring of waste disposal in the context of environmental protection and extensive enforcement measures directed towards preventing or limiting environmental pollution resulting from waste disposal activity. (see ss. 55 A and 56 A of the Waste Management Act, 1996).
The contention that a planning decision made by a State body, (the Board), should be quashed as unlawful for failure to comply with obligations which do not rest upon the Board and have been imposed lawfully upon another State agency cannot be deemed a “substantial ground” for the relief which the applicant wishes to seek.
It follows that leave is refused on that ground.
4. Article 10 of the Treaty establishing the European Community.
Article 10 of the E.C. Treaty imposes a general obligation to ensure fulfilment of the obligations arising out of the Treaty and abstinence from measures which could jeopardise the attainment and the objectives of the Treaty.
The applicant relies upon the decision of the Court of Justice in Case C-201/02 R, (on the application of Wells) v. Secretary of State for Transport, Local Government and the Regions [2004] E.C.R. 1-723 as authority for the proposition that Article 10 imposes a duty upon the Board to give effect to Community law and to take full account thereof in reaching its decision. This court acknowledges the existence of that duty and respectfully adopts the principle identified by the Court of Justice in that case.
However the ground relied upon by the applicant under this heading is general in nature and comprises an overall claim or argument that the Board, by its decision, has failed to give effect to Community law and to take full account of Community law in makings its decision.
In summary, it is contended on behalf of the applicant that, when makings its decision, the Board failed to comply with the provisions of a number of Directives of the Council (i.e. those relied upon by the applicant as the first three grounds for the relief sought).
It is argued that the failure on the part of the State to comply with those Directives comprises a failure to comply with the obligations imposed by Article 10 of the Treaty.
It is claimed also that the Board’s decision is in breach of the State’s obligation to “…abstain from any measure which could jeopardise the attainment of the objective of the Treaty.”
However the applicant has failed to establish “substantial grounds” in support of her contention that the Board is in breach of the various Council Directives referred to earlier.
A general allegation that the board has failed to comply with Community Law, which is based upon contentions which have not been sustained can hardly be deemed
“substantial grounds” for the relief sought.
It is contended that the Board is in breach of principles of Community law by failing to “abstain from any measure which could jeopardise the attainment of the objective of the Treaty”. This ground, if sustained, would require a review by the court of all of the expert and other testimony and material which was before the Board when it has made its decision. It would require the court to substitute itself for the Board in order to consider and analyse all of the material that came before the Board. The court would be required to arrive at its own view as to what, if any measure, would jeopardise the attainment of the objectives of the Treaty.
As I have already indicated the function of this court in judicial review proceedings such as these is limited to determining whether or not the impugned decision was legal, not whether or not the court would have made the same decision.
It follows from all the foregoing that the relief sought on behalf of the applicant is refused.
Arklow Holidays Ltd v An Bord Pleanála (No. 1) [2006] I.E.H.C. 16
Judgment Title: Arklow Holidays Limited v An Bord Pleanala & Ors
Neutral Citation: [2006] IEHC 15
High Court Record Number: 2005 291JR
Date of Delivery: 18/01/2006
Court: High Court
Composition of Court: Clarke J.
Judgment by: Clarke J.
Status of Judgment: Approved
[2006] IEHC 15
THE HIGH COURT
COMMERCIAL
[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 PLEANALA, 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 18th January, 2006.
1. Introduction
1.1 In these proceedings the applicant Arklow Holidays Limited (“Arklow”) seeks leave to challenge a decision of the first named respondent, An Bord Pleanála (“The Board”) granting planning permission to the second named notice party, Arklow Urban District Council (“the Urban District Council”) for the development of a waste water treatment works together with associated sewers, roads and an outfall pipe at Seabank, Arklow, Co. Wicklow. The second and third named respondents, Ireland and the Attorney General (“the State”) are joined by virtue of the fact that certain questions relating to whether Ireland has properly transposed relevant EU directives into domestic law arise in the course of these proceedings. The first named notice party, Wicklow County Council, (“the County Council”) is made a notice party by virtue of the fact that the development sought to be carried out by the Urban District Council is, in large measure, outside the functional area of the Urban District Council and is within the functional area of the County Council. The County Council is, therefore, the planning authority to whom the original application for planning permission was made. The remaining notice parties were put on notice by virtue of the fact that they had an involvement in the planning process now sought to be challenged. However none of those parties have taken an active part in the application before me.
2. Background
2.1 Arklow is the occupier of lands adjoining the site of the proposed development and owns and operates a large mobile home park which attracts approximately 1,300 visitors annually. It would appear that those visitors used the lands, including those comprised in the proposed development and the beach and dunes through which it is proposed to construct the outfall pipe in relation to the proposed development, for recreational activities.
2.2 On the 13th July, 1999 planning permission was granted by the County Council as the relevant planning authority in application reference no: 23/99. Arklow challenged that original grant of planning permission (“the first challenge”). Neither the Urban District Council (as developer) nor the County Council (as the planning authority) resisted the leave application in the first challenge. However by virtue of the existence of that challenge the appeal which had been lodged by Arklow to the grant of the planning permission to the Board was delayed. It would appear that there were protracted disputes between the parties regarding discovery in respect of the first challenge. As a result the matter did not come on for hearing until 2003 and was the subject of separate judgments of Murphy J. on respectively 15th May, 2003 (in respect of the substantive leave application) and 15th October, 2003 (in respect of an Appeal Certificate).
2.3 It will be necessary to return to the first proceedings to some extent later in the course of this judgment. However at this stage it is sufficient to note that the proceedings were unsuccessful and, for the reasons set out in the second judgment referred to above, Murphy J. declined to certify any issues as being suitable, in accordance with the provisions of the Planning Acts, as a basis for an appeal to the Supreme Court. The first challenge therefore terminated with that final determination by Murphy J. on 15th October, 2003.
2.4 The appeal on the merits to the Board followed. That appeal was unsuccessful in substance in that the Board confirmed the decision of the County Council to grant planning permission although certain additional or different conditions were imposed by the Board. Certain of those conditions arise in the context of these proceedings and it will be necessary to refer in more detail to them later in the course of this judgment.
3. Substantial Grounds
3.1 Arklow’s current leave application is made pursuant to s. 50 of the Planning and Development Act 2000 (“the 2000 Act”). Under this section Arklow must establish that it has substantial grounds for contending that the decision of the Board is invalid in order that it may be granted leave to challenge that decision.
3.2 The criterion of “substantial grounds” was originally imposed by s. 82(3B) of the Local Government (Planning and Development) Act 1963 as amended by s. 19 of the Local Government (Planning and Development) Act 1992. The test has been the subject of significant judicial interpretation and may now be said to be well settled.
3.3 In McNamara v. An Bord Pleanála [1995] 2 ILRM 125 Carroll J. held that “substantial grounds” in the context of s. 82(3B) has the following meaning:-
“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are “substantial”. A ground that does not stand any change of being sustained (for example where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in this argument at the next stage to those which I believe may have some merit”.
3.4 That interpretation has been followed in this court on a number of occasions, for example in Drogheda Port Company v. Louth County Council (Unreported, High Court, Morris P. 11th April, 1997); Hynes v. An Bord Pleanála (Unreported, High Court, Laffoy J. 10th December, 1997); and Blessington and District Community Council v. Wicklow County Council (High Court, Unreported, Kelly J. 19th July, 1996).
3.5 Of perhaps even greater importance is the fact that the Supreme Court, in the Illegal Immigrants (Trafficking) Bill 1999 (2000) 2 IR 360, endorsed the McNamara test as the appropriate test applicable to the regime then under consideration that is to say the largely identical statutory regime in respect of challenges in the immigration sphere.
3.6 The test set out in McNamara is, therefore, well established as the appropriate basis for a consideration of whether there are substantial grounds in any statutory regime where the Oireachtas has determined that such grounds require to be established before leave to challenge can be given. There can be little doubt, as McKechnie J. pointed out in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565, that the threshold of “substantial grounds” was intended to result in a different and higher threshold than that normally applicable to an application for judicial review under the Rules of the Superior Courts. As McKechnie J. pointed out certain of the phraseology in the McNamara test would, in any event, apply in any leave application even at the lower or ordinary threshold. As he, correctly in my view, pointed out perhaps the greatest guidance as to the distinction between the test applicable in “substantial grounds” cases as opposed to ordinary cases can be gleaned from the word “weighty”.
3.7 However there is another important aspect of the process which applies in those cases where substantial grounds are required by statute. Applications for leave in such cases are, invariably, required to be on notice to other relevant parties. It is, therefore, the case that the court on the hearing of the leave application in such cases has the benefit of argument and, in some cases, evidence, not only from the applicant but also from those who might wish to resist the application.
3.8 While the parties did not differ as to the test to be applied – it was agreed on all sides that the McNamara test as approved by the Supreme Court in Illegal Immigrants (Trafficking) Bill was the test – there was what might euphemistically be described as a difference in emphasis as to the extent to which it is necessary for the court to analyse in considerable detail the evidence and arguments put forward on both sides at such a leave application. Counsel for Arklow drew attention to the comments of Carroll J. in McNamara to which I have referred and which make it clear that, while the court is required to be satisfied that each ground advanced is a substantial ground, the court is not required to deal in detail with each argument put forward in respect of each ground and to comment in detail on each such argument. Counsel for the Board drew attention to the detailed analysis of the argument conducted by McKechnie J. in Kenny as suggesting that there should, perhaps, be a more rigorous analysis of the case than might be suggested from the interpretation on McNamara urged on behalf of Arklow.
3.9 It seems to me, however, that any distinction between the approach of Carroll J. in McNamara and McKechnie J. in Kenny is more apparent than real. The realities of a contested leave application are that the court will necessarily have before it argument on behalf of those resisting the leave and in many cases additional evidence put before the court by those parties. It is frequently the case that an argument which sounds superficially attractive on first presentation may become insubstantial (and thus not sufficient to allow leave on that ground) when it is critically analysed with the benefit of argument by an opposing party. Furthermore opposing parties may draw attention to other relevant aspects of the factual situation which may place all of the facts in context and which may lead to a conclusion that certain grounds are insubstantial. In that way the very process of conducting a contested leave application may lead to certain grounds, as it were, “falling away”.
3.10 Nonetheless, notwithstanding such process, there will always be cases where some, or indeed all, of the grounds advanced remain ones upon which substantial argument can be advanced on either side. There is, in my view, no basis to be found in any of the authorities for suggesting that the court should attempt to weigh the strength of such competing arguments. The process envisaged is that, with the assistance of argument from all sides, the court has to form a judgment as to whether notwithstanding the points raised by those opposing leave there remains substantial or weighty arguments in favour of the challenge.
3.11 Where the arguments relate to legal issues only, it is appropriate to note that McKechnie J. in Kenny indicated that “whilst obviously I should not attempt to resolve conflicts of fact or express any concluded view on complex questions of law or indeed anticipate the long term results, nonetheless within existing limitations I should, I feel, make some evaluation of the factual matrix and should, where with certainty I can form some view of the appropriate statutory provisions and the relevant and material case law”. Thus where, even after having had the benefit of argument on both sides, the court remains of the view that there are substantial or weighty arguments either way, the court should not express any view on the relative strengths of those arguments. Rather leave should be granted and it is for the court dealing with the substantive application to weigh the strengths of the relevant arguments.
3.12 I should not leave this point without commenting that the current practice in relation to leave applications in planning matters points to a potential duplication in the work of courts which are required to hear such applications.
3.13 There can be little doubt but that the statutory requirement that leave can only be granted after an application on notice, and where a higher standard has been established, was introduced as a means of attempting to streamline challenges to planning permissions. Thus, it was hoped, insubstantial cases would be disposed of in early course. While that end has, in part, been achieved, the fact is that leave applications have now come to take on a life of their own. It is interesting to note that it is common practice for respondents and notice parties in planning leave applications to file detailed replying affidavits even though it is rare for the respondent Minister or respondent statutory bodies charged with making decisions in the immigration sphere to file any replying affidavits in the almost identical process that applies to such cases. There may, of course, be good reasons for the filing of affidavits in some cases. However the reality is that leave applications have now turned into substantial hearings themselves. On the initial date the hearing has to be adjourned from time to time to allow for the filing of further affidavits. Furthermore, in many cases, the leave application takes, as here, a number of days at hearing and thus requires to wait for a suitable place in the court list. Where leave is granted, whether on some or all grounds, a second substantive hearing then follows.
3.14 It is difficult to avoid the conclusion that, at least in a not insignificant number of cases, the process leads to a longer rather than a shorter challenge period. A particularly significant aspect of the current process was identified and commented on by Kelly J. in Mulholland v. An Bord Pleanála (Unreported, High Court, Kelly J, 4th October, 2005). In many challenges to planning permissions a significant number (and in some cases all) of the grounds put forward are either wholly or substantially legal grounds. This is hardly surprising given the judicial review jurisprudence. However it is frequently the case that the judge dealing with the leave application will have had the benefit of as full an argument in relation to such legal grounds as any judge hearing a substantive application would have. In relation to the case before him in Mulholland Kelly J. commented as follows:-
“Many of the detailed criticisms which have been made in respect of the reasons given and the adequacy of the EIS really have their genesis in this difference of approach. More than this I need not and indeed ought not to say. It is regrettable that having had detailed argument made to me of the type and depth that will be reproduced at the full hearing I am precluded from deciding the case. But such is the scheme of the Act”.
I can only endorse the view there expressed.
3.15 In summary it seems to me, therefore, that I should apply the McNamara test. I should engage in an analysis of the arguments put forward on behalf of Arklow in respect of each of the grounds advanced taking into account the arguments put forward by those opposed to leave. I should do so, however, solely for the purposes of determining whether the ground advanced (as opposed to each and every argument that may have been mentioned in the course of the hearing) is one in respect of which I am satisfied there can be said to be a substantial or weighty basis. In respect of any ground where I am so satisfied I should refrain from passing any comment on the strength or weakness of the ground, that being properly a matter for the judge who would (if leave is granted) ultimately have to determine the substantive case.
4. The Grounds Advanced
4.1 While a large number of grounds appear in the statement filed on behalf of the applicant they were conveniently grouped by counsel for Arklow into six areas. This involved the abandonment of some grounds. I did not understand Arklow to pursue any of the grounds set out in the statement beyond those which I will now set out. I would therefore propose dealing with each of those six matters. In summary the grounds are as follows:-
1. That there was an improper abdication by the Board of its role under the Planning Acts in accordance with domestic law, or alternatively no proper assessment by the Board under EU law, in relation to the manner in which the Board determined that the outfall pipe from the plant to the sea was to be situated.
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.
4. As an alternative to point 2 it is said that if the Waste Management Act, 1996 does not apply to the circumstances of this case then Ireland has failed to properly transpose council directive 75/442/EC (as amended by council directive 91/156/EC).
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.
6. That the grant of planning permission is invalid by virtue of the fact that part of the works encompassed within the project are to be carried out on the foreshore in respect of which, it is said, the Board has no jurisdiction. It is contended that works on the foreshore are within the exclusive jurisdiction of the relevant Minister, that is the Minister for the Marine.
4.2 Before going on to consider each of those grounds I should also note that those opposed (and in particular in this context the Urban District Council), place reliance on a contention that Arklow are precluded from raising most of the grounds now sought to be relied upon by virtue of the fact that those grounds, it is said, could have been, but were not, raised in the first challenge mounted by Arklow to the grant of planning permission by the County Council.
4.3 I propose to deal initially with the each of the grounds on its own merits. In so doing I will deal with such grounds in the order in which they appear above save that I will leave grounds 2 and 4 (which I will deal with together) until last. I will then turn to a consideration of whether any of those grounds can properly be said to be excluded on the basis of the argument to which I have just referred. I now turn to the first ground.
5. Improper Abdication
5.1 Under this ground Arklow complains that the manner in which the Board dealt with the grant of permission in respect of the outfall pipe, which would lead from the waste treatment plant itself to the sea, amounts either to an improper abdication of its role as a matter of Irish law or shows a failure to conduct the process required in accordance with EU Law. Issues were raised before the Board as to the adequacy of the manner in which the original proposal dealt with that outfall pipe. In that regard it would appear that the Board was, at least in part, persuaded by the arguments put forward by Arklow (including the evidence placed before the Board by experts engaged by Arklow). As a result the Board imposed condition 9 in the following terms:-
“A full bedrock survey along the proposed alignment of the outfall pipe shall be submitted to the planning authority prior to the commencement of development. The survey shall indicate the nature, extent and depth of the bedrock overburden along the alignment. The proposed tunnel section of the outfall pipe shall be driven completely into the bedrock under the sea bank sand dunes to the immediate east of the appeal site and the tunnel shall remain within the bedrock to a point ten meters beyond the high watermark (i.e. the seaward side of the high watermark). Details of the revised longitudinal sectional of the outfall shall be submitted to the planning authority for agreement prior to the commencement of development on site.
Reason: to ensure that the proposed outfall pipe does not damage the integrity of the sand dunes.”
5.2 A second condition also arises for consideration under this heading. At condition 13 the Board imposed the following requirements:-
“The developer shall facilitate the planning authority in the archaeological appraisal of the site and in preserving and recording or otherwise protecting archaeological materials or features which may exist within the site. In this regard the developer shall:-
(a) Notify the planning authority in writing at least four weeks prior to the commencement of any site operation (including hydrological and geotechnical investigations) relating to the proposed development, and
(b) Employ a suitably qualified archaeologist prior to the commencement of development.
The archaeologist shall assess the site and monitor all site development works. The assessment shall address the following issues:-
i. The nature and location of archaeological material on the site, and
ii. The impact of the proposed development on such archaeological material.
Prior to the commencement of development, a report containing the results of the assessment shall be submitted to the planning authority. Arising from this assessment, the developers shall agree with the planning authority details regarding any further archaeological requirements (including, if necessary, archaeological excavation) prior to commencement of construction works.
Reason: in order to conserve any potential archaeological heritage of the site and to secure the preservation of any remains which may exist on the site.”
5.3 In respect of both of the above conditions Arklow contends, in the first leg of its argument under this ground, that the Board has been guilty of an impermissible abdication of its obligation to determine the issues by the manner in which questions were referred back to the County Council, as planning authority, for the purposes of finalising the details of the issues raised.
5.4 The principles applicable are to be found in Boland v. An Bord Pleanála [1996] 3 I.R. 435. In that case the Supreme Court was asked, upon an appeal certified to be on a point of law of exception of public importance, to determine the principles applicable to the imposition of such conditions. Hamilton C.J. (at p. 466-467) said the following:-
“1. The Board is entitled to grant permission subject to conditions.
2. The Board is entitled in certain circumstances to impose a condition on the grant of planning permission in regard to a contribution or other matter and to provide that such contribution or other matter be agreed between the planning authority and the person to whom the permission or approval is granted.
3. Whether or not the imposition of such a provision in a condition imposed by the Board is an abdication of the decision making powers of the Board depends on the nature of the “other matter” which is to be the subject matter of the agreement between the developer and the planning authority.
4. The “matter” which is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and circumstances of each particular application and the development.
5. In imposing a condition a matter left to be agreed between the developer and the planning authority the Board is entitled to have regard to:-
(a) The desirability of leaving a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
(b) The desirability of leaving technical matters of detail to be agreed between the developer and the planning authority particularly when such matters or such details are within the responsibility of the planning authority and may require redesign in the light of practical experience;
(c) The impracticability of imposing detailed conditions having regard to the nature of the development;
(d) The functions and responsibilities of the planning authority;
(e) Whether the matters essentially are concerned with offsite problems which do not affect the subject lands; and
(f) Whether the enforcement of such conditions requires monitoring or supervision.
6. In imposing conditions of this nature the Board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement, to state clearly the reasons therefore and to lay down criteria by which the developer and the planning authority can reach agreement.”
5.5 It would also appear that the court adopted one further condition which is to be found in the judgment of Blayney J. at p. 472 (with whom Hamilton C.J. agreed) when he proposed a further condition to the effect that:-
“Could any member of the public have reasonable grounds for objecting to the work to be carried out pursuant to the condition having regard to the precise nature of the instructions in regard to it laid down by the Board and having regard to the fact that the details of the work have to be agreed by the planning authority.”
5.6 In essence, therefore, the question which arises in this case is as to whether the two impugned conditions (that is to say condition 9 and condition 13) are in breach of what might may be called the Boland criteria. At this stage the question which I have to determine is as to whether there are substantial grounds for the argument that either or both of the relevant conditions are in breach of the Boland criteria.
5.7 Boland also needs to read in conjunction with the earlier decision of Murphy J. in this court in Holohan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993). In Holohan a condition concerning the route of an outfall pipe was found to be unlawful in circumstances where the local authority was left at large as to the route that would be followed.
5.8 I have also had regard to the careful analysis of the authorities on this issue carried out by McKechnie J. in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 and to the further authorities referred to therein.
5.9 Having considered the evidence concerning the debate which took place between the parties to the appeal before the Board and the manner in which the Board considered and determined the issues which arise under this heading, I have come to the conclusion that the conditions sought to be impugned are consistent with the Boland test. As was pointed out by counsel for the Board, condition 9 sets out precise parameters in relation to the manner in which the outfall pipe is to be constructed. It is required to be drilled through the rock for the duration of the sand dunes to ensure that the pipe does not damage the integrity of those dunes. The condition, in my view, sets out precise parameters in relation to that requirement and provides that the precise route in terms of the depth of the pipe is only to be determined by agreement between the Urban District Council, as developer, and the County Council, as planning authority, after an appropriate survey.
5.10 It may well be that Arklow does not agree with the views expressed by the Board’s inspector to the effect that he was satisfied that such an exercise could lead to an appropriate outfall pipe which would adequately safeguard the dunes involved. However it is clear that the Board came to that view. There are not, in my view, substantial grounds for arguing that it was not open to the Board to so conclude. Furthermore it should be noted that if it proves impossible to construct a suitable pipe which is entirely drilled through the rock it will, in substance, be impossible to rely on the planning permission as it currently stands. In addition it seems to me that an interested party would be entitled to challenge an agreement reached on foot of such a condition between a developer and a planning authority on the grounds that the agreement did not comply with the criteria specified in the condition imposed by the Board. Development can only, therefore, take place in circumstances where it proves possible for the developer and the planning authority to reach an agreement which is within those criteria. If that should not prove possible then it would be necessary for the developer to make application for a revised planning permission which would, in turn, confer all appropriate rights of objection on Arklow.
5.11 It seems to me, therefore, that the criteria set out for the agreement to be reached between the Urban District Council and the County Council are sufficiently precise to meet the Boland test and there do not seem to me to be substantial grounds to the contrary.
5.12 I have come to a similar view in relation to condition 13. Conditions of this type are quite common in planning permissions granted by the Board. They do, in my view, provide an appropriate mechanism for ascertaining whether there may be any archaeological material present and for dealing with any such materials as might be found to be present. It is clear from the Boland criteria that an important aspect of the assessment of the latitude given by a condition which provides for further agreement is an assessment of the importance of the issue to which the condition relates in the overall context of the development. It was in that context that the Supreme Court came to the view that a condition providing for subsequent agreement in relation to a significant number of matters relating to traffic management arising out of the redevelopment of Dun Laoghaire Port was permissible having regard to the Boland criteria. In a case where there is no obvious pre-existing or anticipated significant archaeological difficulties, a condition of the type set out in condition 13 seems to me to meet that criteria. A different situation might well arise in circumstances where it was clear, or at least established to be probable, that there would be significant archaeological material which needed to be provided for in the course of the development under consideration.
5.13 In those circumstances I am not satisfied that there are substantial grounds for arguing that condition 13 breaches the Boland principles.
5.14 Finally, before leaving this aspect of the case, I should advert to the additional argument made under this heading on behalf of Arklow which stems from the fact that under section 145 of the Local Government Act 2001 the manager of the County Council is also the manager of the Urban District Council. In those circumstances it is contended that the Board has left the matter for agreement between two bodies who have the same manager. It should be made clear that it was not argued on behalf of Arklow that the fact that the same manager held office in both the entity which is, in the context of this case, the developer and also the planning authority, was, in itself, a matter that gave rise to any difficulty. It was, however, contended that, in the context of the additional criteria specified by Blayney J. in Boland, the alleged conflict of interest gave rise to a situation where a member of the public could have reasonable grounds for objecting to the work to be carried out “having regard to the precise nature of the instructions in regard to it laid down by the Board and having regard to the fact that the details of the work have to be agreed by the planning authority”.
5.15 I am not satisfied that there are substantial grounds for this proposition. It is well settled that the same entity may, in substance, carry out different roles under different statutory regimes. This is particularly so within the realm of local government where a local authority is frequently given different roles as, for example, planning authority, sanitary authority and the like. The underlying assumption, as applies in respect of all legislation, must be that an authority will properly carry out its functions under legislation. In the circumstances it must be assumed that the County Council, as planning authority, will comply with its obligations in respect of agreement under conditions 9 and 13 and will only enter into appropriate agreements under both of those conditions in circumstances where it is proper for it so to do. As I indicated above, if it could be established that an agreement had been reached which was outside the parameters laid down by the Board, then same would be open to challenge by any party legitimately interested.
5.16 In all those circumstances it does not appear to me that Arklow has established substantial grounds under this heading.
5.17 The second leg of Arklow’s argument under this heading was that the same facts and the same conditions disclose a situation where there has not been an adequate assessment of the environmental impacts of the project necessary to satisfy the requirements of Directive 85/337. In Wells v. Secretary of State for Transport the Court of Justice determined, in the context of Council Directive 85/337/EEC, that, in consent procedures comprising several stages, the assessment by the competent authorities of the Member State concerned required by that directive must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment.
However the court went on to determine that:-
“The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State under the principle of procedural autonomy of the Member States provided that they are not less favourable then those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the community legal order (principle of effectiveness)”.
It is clear from the context of the judgment that the possibility of a consent being revoked is a material matter to be considered.
5.18 In those circumstances it is important to note that, insofar as any matters are left over for agreement as a result of the imposition of conditions such as those contained in condition 9 and condition 13, there remains a variety of ways in which the development consent concerned may not become practically operative. Clearly such conditions impose a requirement that the agreement of the planning authority is a pre-requisite to the commencement of development. Therefore, while there is a sense in which the developer has secured a planning consent, there is also a sense in which it is a conditional consent in that it is conditional upon an appropriate agreement being reached. Furthermore, as I have indicated above, it is open to any party to challenge an agreement reached on the basis that it does not conform with the criteria specified in the decision of the Board. It is thus open to revocation in practice in the event that an impermissible agreement is reached. Finally it may be that, as a result of the further enquiries carried out in accordance with such a condition, it may prove impossible to develop in accordance with the consent already granted. In that sense also the consent must be taken to be conditional.
5.19 In all the circumstances it does not seem to me, therefore, that there is any breach of the directive, as interpreted by the Court of Justice in Wells, where the Board imposes a condition which complies with the Boland principles. In those circumstances any interested member of the public will have had the opportunity to engage in the process and to influence the criteria which the Board specifies. Clearly if those criteria are impermissibly wide, so as not to meet the Boland test, then it might well be arguable that the public was excluded from appropriate consultation, as required by the directive, in relation to the final determination of the matters subject to the condition. Where, as I am satisfied is the case here, the Board has imposed sufficiently detailed criteria as a result of a process involving public engagement, I am not satisfied that there is any breach of the requirements to carry out the necessary assessment under the directive.
6. Assessment of whole of project
6.1 This ground was sometimes referred to in the course of the hearing, and in the papers before the Board, as the “project splitting” ground. However it was accepted by counsel for Arklow that that term was somewhat inaccurate. The term project splitting is more properly applied to allegations raised by objectors who contend that a developer has divided a single overall project into two or more separate (and by definition smaller) projects so that each of the subdivisions fall below thresholds set out in both European and domestic legislation over which a higher levels of environmental assessment are required. There is an established jurisprudence for determining whether project splitting in that sense has occurred. However no such allegation is made in this case. What is, however, said, is that the environmental impact statement (“EIS”) submitted by the Urban District Council in support of its application for planning permission omitted from its considerations any potential impact on the environment of all aspects of the project other than those directly connected with the wastewater treatment plant itself.
6.2 It is, of course, necessary to note that there is a distinction between the EIS (which is a document prepared by the developer and submitted to the planning authority) and the environmental impact assessment (“EIA”) which is the process required, as a matter of EU law, of the competent authority (in this case the planning authority) prior to the grant of development consent. It is clear that, as a matter of EU law, it is open to the competent authority to supplement any information submitted on behalf of the developer with its own enquiries. In that context the focus under this ground must be on the manner in which the Board assessed the environmental impact of the project as a whole and in particular the manner in which it assessed the environmental impact of those aspect of the project which were not specifically dealt with in the EIS.
6.3 At paragraph 13.2.5 of the Inspector’s report he said the following:-
“Project Splitting
It is argued that the proposed development is split into a number of separate parts mainly
(a) that part of the development which is located within the administrative area of Arklow UDC i.e. the pumping station and rising mains;
(b) that part of the rising main that is located within the jurisdiction of Wicklow County Council but is located outside the site demarcated for the proposed treatment works;
(c) the proposed treatment works within the confines of the site boundary; and
(d) the outfall pipe which runs under the beach area and into the Irish sea
It is suggested therefore that an EIS should have been prepared for the totality of the development and not just the development which takes place within the application site outlined in red.
My comments in relation to the above arguments are as follows.
The EIS directive and SI 349 of 1989 are not clear as to what constitutes the totality of the project in question. The regulation state that an EIS must be compiled in the case of:
Waste water treatment plant with a capacity greater than 10,000 p.e.”
6.4 Having noted that the EIS adequately assesses that part of the development which, in the view of the inspector, was critical in terms of the significant likely impact, that is the actual waste water treatment plant, the inspector went on to note that by virtue of the fact that the rising mains and pumping stations were not located in environmentally sensitive areas that they were unlikely to have a significant environmental impact and therefore did not consider that the Board should require a new EIS.
6.5 It is therefore clear that the Inspector, and by inference the Board, would appear to have taken the view that it was unnecessary to conduct any further assessment of the environmental impact of those aspects of the project which were outside the waste water treatment plant itself. The question which I must answer at this stage is as to whether that fact provides substantial grounds for challenging the decision of the Board.
6.6 In Kenny v. An Bord Pleanála (No. 1) [2001] I.R. 567 a challenge to the adequacy of an EIS was dismissed by McKechnie J. as not constituting a substantial ground. In so doing he stated as follows (at p .578):-
“Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the EIS or the debate on it had before the Inspector. These are not matters of concern to this court. The planning authority and An Bord Pleanála as these bodies must under the regulations were satisfied as to the EIS with the Inspector and the Board also being satisfied with the evidence, both documentary and oral, produced at the oral hearing”.
6.7 However it seems to me that the issue in this case is somewhat different. Here the question is not as to whether the EIS dealt adequately or properly (in the qualitative sense) with the issues required to be addressed. Here the question is as to whether there was, in any real or sufficient sense, a proper assessment of those aspects of the project which were outside the wastewater treatment plant itself.
6.8 It may well have been within the competence of the Board to take the view that the potential environmental impacts of those aspects of the project outside the wastewater treatment plant itself were much less significant than those from the plant. It may well also have been within the competence of the Board to take the view that the impacts that might be associated with those aspects outside the wastewater treatment plant itself were not, of themselves, significant. However what is required to be assessed is the totality of the impact of the project taken as a whole. It is, therefore, at least arguable sufficient for the purposes of leave, that aspects of a project which might not have impacts which would be significant in themselves might, when taken on a cumulative basis, and when added to the impacts of other aspects of the same project, give rise to an overall view that the environmental impacts taken as a whole were such as should lead to a refusal of development consent or, indeed, the imposition of more stringent conditions. On that basis I am satisfied that there are arguable grounds, sufficient for the purposes of leave, for the proposition that the process engaged in by the Board in assessing the environmental impact of this project taken as a whole was flawed by reason of the failure to adequately identify the impact of those aspects of the project excluded from the EIS and in particular, notwithstanding the finding that the environmental impact of those aspects taken by themselves might not be significant, to consider the cumulative effect of all impacts.
7. Sufficient Interest
7.1 Under this ground Arklow contends that the Urban District Council did not have a sufficient interest in the property the subject matter of the application for planning permission. There does not appear to be any dispute about the factual position. As has been pointed out earlier the project consisted of a number of elements including the pumping station and rising main which would bring waste water to the treatment plant, the treatment plant itself, and the outfall from treatment plant through the dunes and foreshore into the sea. The question of the entitlement of the Board to deal with the foreshore arises under the next ground. Insofar as the remainder of the project is concerned it would appear that the lands upon which the waste water treatment plant itself was to be constructed were the subject of a compulsory purchase order which had, at the relevant time, reached the stage where the compulsory purchase order had been confirmed and a notice to treat served. The remainder of the project (with the exclusion of the foreshore) consisted of certain works within the administrative jurisdiction of the Urban District Council, certain other works in relation to the rising main which are within the functional area of the County Council and the outfall pipe as far as the high water mark which was also within the functional area of the County Council. It would appear that no compulsory purchase process had been commenced in respect of any of those works.
7.2 This issue arose as part of the process before the Board. In that context the Inspector commented as follows:-
“I consider that Arklow Town Council are entitled to carry out works within its own administrative jurisdiction under Part X procedures. Works in relation to the rising main from Porters Bridge to the site along the sea road could, in my opinion be carried out under compulsory acquisition procedures, as set out in s. 213 of the Planning and Development Act 2000. I am of the opinion that the same procedures could be used in acquiring any land necessary for the construction of the outfall pipe as far as the high water table. The construction of the outfall pipe beyond the high water table is the subject of a foreshore licence from the Department of the Marine and therefore is not under the remit of An Bord Pleanála.
Finally reference is made to the small parcel of land to the south of the site, which is to used as a temporary working area. This appears not to be in the ownership of the planning authority. If these lands could not be made available to the planning authority by way of CPO procedures there is nothing to suggest that another temporary working area could not be made available within the confines of the site”.
7.3 The current state of the law in relation to issues such as this is to be found in the judgments of the Supreme Court in Frascatti Estates Limited v. Walker [1975] I.R. 177 and Keane v. An Bord Pleanála [1998] 2 ILRM 241.
In an often quoted passage from Frascatti Henchy J. (speaking for the court) said the following:-
“I consider that an application for development permission, to be valid, must be made either by or with the approval of a person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so much of the proposed development as relates to the property in question”.
7.4 The matter was re-visited by the Supreme Court in Keane. Having analysed the judgment of Henchy J. in Frascatti Keane J. went on to say the following:-
“It may be that the “ratio” is to be found in the first paragraph of this passage and that the second paragraph, to the extent that it suggests that an application for planning permission can only be made by or with the consent of a person entitled to a legal estate or interest sufficient to enable him to carry out the proposed development should properly be regarded as “obiter”. One could readily envisage circumstances in which an application could be made by some other person who could not possibly be described as either “unnecessary” or “vexatious”. In the context of the present case, however, it is sufficient to say that the principle apparently laid down in Frascatti Estates Limited v. Walker must be strictly confined to cases in which the application is not made by or with the approval of a person who has a legal estate or interest in the relevant property sufficient to enable him to carry out the proposed development”.
7.5 It is therefore fair to state that the Supreme Court has, in Keane, cast doubt on whether the statements in Frascatti to the effect that an applicant for planning permission must have an interest in the land or the permission of someone who has such an interest represents the law without qualification.
7.6 However it is clear that much of the passage from Keane to which I have referred is itself obiter in that, on the facts then before the Supreme Court, that court was satisfied that even the full rigours of Frascatti would not avail the applicant. The position therefore remains that the precise extent of the exclusion is one which requires a definitive decision. It may, on the one hand, be that, as was suggested in Keane, the true position is one which requires the court to exclude only cases where the applicant for planning permission is engaged in a vexatious or spoiling exercise. It may, on the other hand, be that the clear wording of the judgment in Frascatti will prevail. Between those two poles there are a number of intermediate positions which might also find favour. For example on the facts of this case it might be arguable that a party such as the Urban District Council who has the benefit of a confirmed compulsory purchase order and who has served a notice to treat (and who has thus put themselves in a position where they are entitled, as a matter of law, with certainty to acquire the lands concerned) might be regarded as having a sufficient interest for the purposes of Frascatti but that the same Urban District Council might not be regarded as having such an interest in respect of those other portions of the project where no compulsory purchase order process was in being and where the entitlements remained contingent on the successful conclusion of such a process.
7.7 In the light of the clear wording of Frascatti it seems to me that I could not conclude that there are not substantial grounds under this aspect of the case. I should not leave this ground without commenting that it seems to me that this issue is one of those where a relatively net, though important, point of law arises upon which it might well be the case that a judge hearing a leave application on notice and having had full argument on both sides is in as good a position to determine the issue as a judge at a substantive hearing. However as was pointed out by Kelly J. in Mulholland I am notwithstanding those circumstances precluded from deciding the case. “Such is the scheme of the Act”.
7.8 A further argument is raised by Arklow which stems from much of the same factual matrix as the “sufficient interest” ground but is based on the fact that the site of the purposed development, as delineated on the map required to be lodged as part of the planning process, was confined to the site of the wastewater treatment plant itself and did not extend to those areas where the additional works were to be carried out.
The purpose of the requirement for a map, with the site of the proposed development delineated on it, is clearly to draw the attention of the public to the location of the proposed works. If the site is incorrectly marked, in a material respect, the public might be misled and, thus, not involve themselves in a process which they would have been interested in had the site been correctly described.
However it seems to me that, in order to have standing to raise such an argument, an applicant for judicial review would need to satisfy the court that it had been misled. Arklow were clearly not misled as they were fully aware of the extent of the proposal and fully participated in the planning process. I am not satisfied, therefore, that there are substantial grounds for arguing that Arklow has standing to advance any argument under this head.
8. Foreshore
8.1 It would appear that the last 10 metres of the proposed outfall pipe run beneath the foreshore. In those circumstances Arklow argues that the Board has no jurisdiction to impose a condition relating to that part of the development. It is suggested that the competent authority in respect of applications relating to developments on the foreshore is the Minister for the Marine (“the Minister”). The procedures in respect of developments on the foreshore would appear to be governed by ss. 2 and 3 of the Foreshore Act 1933 as amended. Those sections (as amended by the European Communities (Environmental Impact Assessment) Regulations 1989) provide that when an application is made to the Minister under the Foreshore Act for a foreshore licence which is for a class of project which requires an EIA, then such EIA is carried out in conjunction with the appropriate application for a lease or licence pursuant to the Foreshore Act.
8.2 In the course of the hearing attention was drawn to s. 225 of the Planning and Development Act 2000 which makes express provision for the grant of planning permission in respect of development on the foreshore which is, for the purposes of that section, treated as being within the functional area of the adjoining planning authority. However in the course of the hearing it was accepted on behalf of the opposing parties that s. 225 was not in force at the material time for the purposes of these proceedings. Therefore it seems clear that, as a matter of law, the grant of permission in respect of development to be carried out on the foreshore requires the permission of the Minister for the Marine rather than the planning authority.
8.3 In those circumstances it is necessary to consider whether it may be said that a planning permission which imposes conditions in respect of the foreshore is invalid. Furthermore it is necessary to consider the fact that Arklow’s submissions to the Board on the planning appeal sought to eliminate any environmental damage which might be caused by the outfall pipe from the proposed development. In those circumstances it is argued that Arklow lacks standing to contest the Board’s jurisdiction. It is clear that no works can be carried out on the foreshore without going through all of the necessary process established under the Foreshore Act. That does not, however, mean that the Board is restricted in considering the effect on the foreshore in the grant of its planning consent. Indeed for the very reasons advanced on behalf of Arklow in respect of ground 3 above, it is necessary, as a matter of EU law, that an overall assessment of the project as a whole is carried out by some person or body.
8.4 If the planning acts and the foreshore acts were construed in a manner that required entirely separate considerations to be given by the planning authority (and on appeal by the Board) to those aspects of a project which was on land and by the Minister in respect of those aspects of the project which were on the foreshore then there would be no single overall assessment of all of the environmental impacts of the project as a whole. Such a construction of the relevant legislation would be inconsistent with EU law. In those circumstances, and in accordance with the established jurisprudence of the courts in this jurisdiction and the EU, such an interpretation should only be placed on the legislation in circumstances where it was not possible to construe the relevant provisions in a manner consistent with EU law. There is nothing in the planning acts which, in my view, expressly excludes the entitlement of An Bord Pleanála to take into account the environmental impact on the foreshore of any project which is under consideration and to impose, where it thinks it appropriate so to do, conditions designed to protect the foreshore. In the circumstances I am not satisfied that Arklow has made out substantial grounds under this heading.
9. Waste Management
9.1 I now return to the two grounds concerning the respective domestic and EU legislation in relation to waste management. At its simplest the contention of Arklow can be put in this way. It is said that while there are separate domestic regulatory regimes in relation to wastewater on the one hand and the management of waste generally on the other hand it is contended that certain aspects of wastewater treatment (including dealing with sludge) come within the ambit of the regime applicable to waste management generally. On that basis it is suggested that a waste licence is required and, as a consequence, and by reason of s. 54(1) of the Waste Management Act 1996, that the Board is precluded from granting a permission subject to conditions which are for the purposes of “prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity “and that the Board is further precluded from considering” any appeal submission or observation which relates to the risk of environmental pollution.” It is clear that this issue arose before the Board and that the Board was satisfied that the provisions of the Waste Management Act requiring a waste licence did not apply to the project. The Board therefore proceeded to consider the matter on that basis. It is contended by Arklow that the Board was wrong in so doing.
9.2 As an alternative Arklow argues that, if a proper construction of the Waste Management Act 1996 leads to the conclusion that projects such as the one under consideration do not require a waste management licence, then, it is said, the State has failed to properly transpose Council Directive 75/442/ EEC (as amended by Council Directive 91/156/EEC) into Irish law.
9.3 Before considering the questions of construction of both domestic and European legislation which arise under this heading it seems to me necessary to address the way in which the transposition issue should be dealt with in a leave application such as this. Counsel for the state drew attention to the now established jurisprudence to the effect that a court should only go on to consider whether there has been a failure to transpose in circumstances where such a determination is necessary for the purposes of resolving the litigation. In that regard similar principles have evolved in respect of transposition challenges as had already been determined in respect of challenges to Irish legislation on the grounds of inconsistency with the provisions of the Constitution. On that basis it was suggested that the transposition issue should only be dealt with in the event that it became necessary so to do. I fully accept the principles applicable.
9.4 However it seems to me that a somewhat different position pertains on a leave application. As pointed out by counsel for Arklow, the only issues which can be dealt with at a substantive hearing subsequent to leave being granted are those in respect of which leave has been given. If, therefore, there are circumstances in which a transposition issue might arise at a substantive hearing and if there are substantial grounds in favour of the argument on transposition then leave should be granted to preserve the position that the transposition can be dealt with if, in the light of the views which the judge hearing the substantive case takes on other issues, it becomes necessary so to do.
9.5 However there is another aspect of the interaction between the construction issue and the transposition issue that needs to be dealt with at this leave stage. As pointed out above it is well established that this court should, where possible, construe Irish legislation in a manner which is consistent with EU law. Therefore if it is necessary to construe the waste management legislation in a particular manner so as to bring same into conformity with the directives then such a construction should be placed upon the Irish legislation if it is at all possible so to do. That brings into relief the interaction of the construction and transposition issues with the principles applicable to the grant of leave on substantial grounds.
9.6 If there are substantial grounds for arguing that the waste management legislation can be construed in the manner contended for by Arklow then it is difficult to see how the transposition issue could arise. Even if the contentions put forward on behalf of Arklow as to the proper construction of EU law are correct, then the transposition issue could only arise if it were impossible to construe the waste management legislation in a manner consistent with the directives. Therefore in order for there to be substantial grounds for arguing that there has been a failure of proper transposition it would be necessary for Arklow to satisfy me that there were substantial grounds for believing that there was no construction that could properly be placed on the Waste Management Act 1996 consistent with Arklow’s contention as to the proper meaning of the directives. If that was the case then it would be difficult to see how there could, at the same time, be substantial grounds for believing that the waste management legislation had to be construed in the way for which Arklow contends.
9.7 For those reasons it seems to me that there cannot, in principle, be substantial grounds for both of the propositions. If the argument in favour of Arklow’s construction for the waste management legislation is sufficiently strong to afford substantial grounds for the proposition that the legislation should be construed as Arklow suggests then it is difficult to envisage circumstances where the legislation could not, if necessary, be construed in that fashion in circumstances where the court was required so to do so as to bring the legislation into conformity with EU law.
9.8 In that context I now approach the question of the proper construction of the waste management legislation. I have come to the view that there are substantial grounds for Arklow’s contention as to the proper construction of the waste management legislation. For the reasons set out above I do not feel that I should, in those circumstances, do more than set out in brief outline my reason for so concluding given that it will be for the judge having carriage of the substantive issues in this case to determine the proper construction.
9.9 It is clear on the evidence currently before the court that EPA (which is, of course, the agency charged with dealing with waste management), took the view that the project did require a waste management licence. That fact is not, of course, decisive. The EPA could be wrong. However having considered the basis upon which the EPA came to that conclusion, as set out in relevant correspondence, I have come to the view that it would not be possible to describe the contention as tenuous or insubstantial. In those circumstances I am satisfied that substantial grounds exist for Arklow’s contention that a waste management licence was required as a matter of domestic law.
9.10 The point at issue stems, substantially, from the proper interpretation of s. 3 of the Waste Management Act 1996. In material part that section provides:-
“This Act shall not apply to:
(b) sewage and sewage effluent (other than sludge from a facility for the treatment of sewage);
(c) the treatment of effluent or the discharge thereof to waters other than the treatment of effluent at, or its discharge from, a facility for the holding recovery or disposal of waste;”
Arklow argues that the proviso to s. 3(1)(b) applies in this case because the proposed development consists of a waste water disposal system which has, as a necessary consequence, the requirement to dispose of sludge created as part of the treatment process. Arklow further argues that the EIS submitted envisages that sludge from the plant would be disposed of to a landfill and that this disposal activity would, therefore, require a waste licence under the provisions of the Act. In response it is argued that the EIS envisages that sludge will be removed from the site by the County Council and that the treatment of sludge by way of lime stabilisation is only envisaged on site. Therefore it is suggested that any landfill capping as a result of the creation of sludge which is necessitated by the process will be carried out at another site. In those circumstances the argument of those opposing the application is that it is the other site (that is the site upon which land capping by sludge will occur) that requires to be subject to the waste licensing requirements. This issue therefore turns on whether the Urban District Council may be said to be undertaking the recovery of waste at a facility (to use the terminology of s. 39 of the 1996 Act) which, in the context of the description of the process referred to above, might be said to be the wastewater treatment plant rather than any other location. For the reasons indicated above it is not possible, at this stage, to regard the arguments advanced by Arklow on this complex question of interpretation as insubstantial.
9.11 I have also considered whether that interpretation does, of itself, even if established to be correct, necessarily lead to the planning permission granted being invalid. On one view it may be open to consider that even if the Board was wrong in the view which it took as to the necessity for a waste management licence same would not necessarily invalidate a planning permission given. If the project does require a waste management licence then nothing which the Board decided alters that fact. The project would still require a waste management licence. However having regard to the clear imperative set out in s. 54 of the Waste Management Act, 1996 which purports to prevent the Board from giving any consideration to such environmental matters in cases which are properly within the remit of the EPA, it seems to me that there are substantial grounds for arguing that a planning permission which results from a consideration by the planning authority, or the Board on appeal, of environmental issues, which the relevant authorities are precluded from taking into account under that section, may be invalid.
9.12 In all those circumstances it seems to me that leave should be granted on the ground advanced in respect of the proper interpretation of the Waste Management Act, 1996.
9.13 In the light of that view and for the reasons set out at para 9.7 above it does not seem to me that there are substantial grounds on the transposition issue.
10. Grounds that could have been argued
10.1 As indicated earlier in the course of this judgment reliance was placed in opposition to the grant of leave on the fact that many of the grounds now sought to be relied upon are, it is said, grounds which could also have been relied upon when Arklow challenged the original grant of planning permission by the County Council. In particular counsel for the Urban District Council places reliance on the established jurisprudence of the courts (see for example AA v. Medical Council [2003] 4 IR 302) to the effect that a party is precluded from raising in subsequent litigation not only issues which have already been raised and deposed of in previous litigation but also issues which could have and should have been raised in such litigation.
10.2 However 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 can and often is a two part process) remains, in my view, open to argument. There can be little doubt but that, to a significant extent, the three issues upon which I am satisfied substantial grounds have been made out would have been available to Arklow at the stage of their original challenge to the grant of permission by the County Council. 10.3 The fact that the EIS did not extend to the entirety of the project applied equally at that stage. It is possible that there may be some distinction between the additional consideration given by the County Council to the assessment of the environmental impact of those aspects of the project not encompassed within the EIS in comparison compared with the consideration given by the Board to the same matters. However there would appear to be a significant overlap. The issues concerning the sufficiency of the interest of the Urban District Council in the lands and the proper interpretation of the Waste Management Act, 1996 would appear to apply equally to the earlier application. In those circumstances it seems to me that it will 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 with which the court is concerned in this case. However in the absence of any clear authority as to the proper approach which the court should take in a challenge of this type, where a contention is made that the applicant is precluded from raising the issue because he could have raised the same issue in a previous challenge to another aspect of the same process, I am not prepared, at this stage, to hold that Arklow has not established substantial grounds.
Dunne v Minister for the Environment, Heritage and Local Government (No. 2) [2005] I.E.S.C. 49;JUDGMENT of the Court delivered on the 25th day of July, 2006 by Murray C.J.
Background
Section 8 of the National Monuments (Amendment) Act, 2004, (the Act of 2004) introduced a special provision in relation to the South Eastern Route of the M50 C-Ring motorway around Dublin with a view to facilitating the completion of works at or adjacent to an archaeological site at Carrickmines Castle. This appeal is concerned with questions as to whether that section offends Articles 5, 10, 15 and 40 of the Constitution, whether it offends EC law in particular the provisions of Council Directive 85/337/EEC of 27th June, 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC of 3rd March, 1997. Further, even if the first two questions are answered in the negative, whether certain directions issued by the Minister for the Environment pursuant to the section are null and void having regard to the requirements of the Directives in relation to environmental impact assessment.
The section of motorway in question forms a strategic element of the National Road Network, providing a link between the N11 and other national primary routes around Dublin. The South Eastern Route lies within the functional area of the fourth named defendant. Part of the South Eastern Route motorway traverses the archaeological site known as Carrickmines Castle, the ownership of which is also vested in the fourth named defendants. Following a public enquiry in January, 1998, the predecessor of the first named defendant approved the Council’s scheme for the construction of the South Eastern Motor Route subject to certain modifications. In October, 1998, the Minister’s predecessor, pursuant to s. 51 of the Roads Act, 1993 (the Act of 1993), approved that scheme having considered an Environmental Impact Statement (EIS) of September, 1997 which was submitted by the Council, the submissions which were made and the report and recommendations of the person who conducted the public inquiry as to the likely effects on the environment of the development.
The 1997 EIS was issued in accordance with Directive 85/337/EEC, as transposed into Irish law by the Act of 1993.
In relation to archaeology, it was recorded in the EIS that the Carrickmines interchange design had been modified so that Carrickmines Castle could be retained in an open area and that minimal disturbance would be caused to the more significant areas. It was further recorded that wherever possible the engineering design had avoided all identified sites. Where this could not be achieved, a series of ameliorative measures were proposed to be carried out prior to construction to mitigate the impact of the proposed route on archaeology. These included investigative excavation to determine the exact nature and significance of the sites and whether a full archaeological excavation was required on the basis of the results of the initial investigation.
Initial investigations were conducted at Carrickmines Castle in early 2000. Archaeological excavations commenced in August 2000 and continued over the following two years and six months.
The plaintiff in these proceedings was one of the co-plaintiffs in the first action in relation to Carrickmines Castle, which was reported as Dunne v. Dun Laoghaire-Rathdown County Council [2003] 1 IR 567 (Dunne No. 1). In those proceedings it was held by the Supreme Court that there was a bona fide question to be determined as to whether the absence of a consent by the Minister under s. 14 of the National Monument Act, 1930 (the Act of 1930), as amended, precluded the activities being carried on at the site, notwithstanding that the Minister had previously granted a licence pursuant to s. 26 of the Act of 1930 for the excavation of another part of the site.
While the hearing in relation to the granting of an interlocutory injunction did reach the Supreme Court, the main proceedings never went to plenary hearing. Instead, the Council and the State put a consent in place in purported compliance with the statutory requirements. This was in the form of a joint consent given by the Council and the Minister to the carrying out of the works which had been restrained by the interlocutory injunction. The Minister then made an order pursuant to the National Monuments (Approval of Joint Consent) Order, 2003 approving the works in question. That order required to be laid before both Houses of the Oireachtas and did not become effective until the 2nd December, 2003. On the 8th December, 2003, the interlocutory injunction which had been granted by the Supreme Court in Dunne v. Dun Laoghaire-Rathdown County Council was discharged and the Council proceeded to implement the approval given by the Minister.
This in turn provoked the second proceedings in relation to Carrickmines Castle, namely, Mulcreevy v. Minister for Environment, Heritage and Local Government & Dun Laoghaire-Rathdown County Council [2004] 1 IR 72. In those proceedings the applicant sought various reliefs, including an order of certiorari quashing the Minister’s approval order of the 3rd July, 2003. These proceedings were ultimately successful and resulted in the quashing of the Minister’s approval order on the basis that the same purported to effect an amendment of the statutory scheme established under s. 15 of the Act of 1994 by purporting to substitute for the statutory regime requiring the consent of three distinct and independent statutory bodies provided for in the Act of 1994 a regime requiring the consent of only two such bodies.
The strategy for the archaeological resolution of Carrickmines Castle is set out in the 1997 EIS which envisages the preservation by record of any archaeological features discovered on the line of the motorway and associated local roads. It envisaged that areas not within the area of construction would be preserved in situ. In September, 2002, the Minister for Transport directed a modification to the design of a roundabout adjacent to a number of stone structures on the Carrickmines Castle site which were uncovered in the course of the archaeological works. The purpose of these modifications was to allow the preservation in situ of certain structures and of a revetted fosse where it runs under the roundabout. These modifications were the subject matter of an application by Mr. Stephen Deveney to An Bord Pleanála (the Board) that it exercise its powers under s. 50(1)(b) of the Act of 1993, which provides:-
“Where the Minister considers that any proposed road development (other than development to which para. (a) applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be likely to have significant effects on the environment, he shall direct the road authority to prepare an environmental impact statement in respect of such proposed road development and the authority shall comply with such direction.”
The functions of the Minister under s. 50(1)(b) were vested in the Board by
s. 215 of the Planning and Development Act, 2000. On the 21st March, 2003, the Board decided not to direct the preparation of an environmental impact statement in respect of the proposed modifications to the approved road development. The reasons given for the decision were that the proposed modifications: –
(a) do not significantly alter the proposed road development from that previously approved and that the development remains in essence the same as that for which approval has previously been obtained,
and
(b) would not of themselves have a significant adverse effect on the environment and, accordingly, do not comprise a project specified at para.13 of Annexe II of Directive 85/337/EEC, as amended by Directive 97/11/EC.
Ultimately, and as already noted, the Oireachtas moved to introduce the Act of 2004 which, insofar as it applies to the South Eastern Route, was clearly intended to facilitate and expedite the completion of the roadworks which, by virtue of the various legal challenges, had been held up for a significant time. It amended the National Monument Act, 1930, by substituting a new provision, set out in s. 5, for s. 14. This was the section which, as originally enacted, provided that in the case of a National Monument of which a local authority was the owner, the joint consent in writing of the Commissioners of Public Works and the local authority was necessary to render lawful certain activities. It introduced a special provision in relation to the South Eastern Route when it provided as follows at s. 8:-
“(1)The consent of the Minister under section14 and any further consent or licence under any other provision of the National Monument Acts, 1930 to 2004 shall not be required in relation to the carrying out of any works affecting any national monument in connection with the completion of the South Eastern Route (as described in the Third Schedule of The Roads Act, 1993, (Declaration of National Roads) Order, 1994 (S.I. No. 209 of 1994) by Dun Laoghaire-Rathdown County Council but any such works shall be carried out on the directions of the Minister.
(2) In considering the issue of directions under subs. (1) of this section –
(a) the Minister is not restricted to archaeological considerations but he is entitled to consider the public interest notwithstanding that such exercise may involve –
(i) injury to or interference with a national monument or
(ii) the destruction in whole or in part of a national monument.
(b) the Minister may have regard to the following to the extent that they appear to the Minister to be relevant in exercising discretion to issue directions in respect of a national monument:
(i) the preservation, protection or maintenance of the archaeological, architectural, historical or other cultural heritage or amenities of, or associated with the national monument,
(ii) the nature and extent of any injury or interference with the national monument,
(iii) any social or economic benefit that would accrue to the State or region or immediate area in which the national monument is situated as a result of the carrying out of the road development,
(iv) any matter of policy of the Government, of the Minister or of any other Minister of the Government,
(v) the need to collect or disseminate information on national monuments or in respect of heritage generally,
(vi) the cost implications (if any) that would, in the Minister’s opinion, occur from the issuing of a direction, or not issuing a direction, under subs. (1) of this section.
(3) Where an archaeological object is found as a consequence of work undertaken by Dun Laoghaire-Rathdown County Council relating to work on the South Eastern Route, then section 8 of the National Monuments (Amendment) Act, 1994, shall not apply to the land or any premises under which or in the vicinity of which the archaeological object has been found.
(4) Section 50(1)(b) of The Roads Act, 1993, shall not apply in respect of the South Eastern Route.”
The first named defendant is the relevant Minister for the purposes of section 8. On the 21st July, 2004, the Council applied to the Minister for directions under section 8. The application set out the works which the Council, subject to the terms and conditions of any direction which the Minister might issue, proposed to carry out to the site of Carrickmines Castle. It was stated that the works in question are in respect of “outstanding archaeological resolution measures at the site”. Subsequently, by letter dated the 12th August, 2004, the chief archaeologist in the National Monument Section of the Minister’s department agreed method statements submitted by the Council. On the 5th August, 2004, the Council was informed that the Minister had issued directions “in respect of the remaining works as they affect any national monument” and the directions were set out in an appendix attached to the letter. The directions were described as being for archaeological resolution of the Carrickmines Castle site. The various defendants in these proceedings contend that the directions relate solely to the archaeological mitigation of the site and do not contain or involve any alteration, material or otherwise to the road development approved under the Act of 1993. The defendants contend that the works which recommenced at Carrickmines in August, 2004 are archaeological works. Therefore they contend that they are being carried out in accordance with method statements submitted by the Council and their archaeological advisers and approved by the National Monument Section of the Minister’s Department.
In the present third set of proceedings, the plaintiff claims the following reliefs:-
(a) a declaration that section 8 of the Act of 2004 is invalid having regard to the provisions of the Constitution and, in particular, that by investing in the Minister the power to make directions, section 8 is in conflict with Article 15.2 thereof and further that section 8 is in conflict with the duties and rights recognised and protected by the combined effects of Articles 5, 10 and 40 of the Constitution.
(b) a declaration that section 8 of the Act of 2004 is invalid and of no legal effect having regard to the provisions of European law and, in particular, the provisions of Directives 85/337/EEC and 97/11/EC.
Alternatively, the plaintiff seeks a declaration that the directions of the Minister pursuant to s. 8 of the Act of 2004 are a nullity and of no effect and invalid by reason of the failure of the Minister to comply with or to have regard to the requirements of the Directive in relation to environmental impact assessment.
(c) An injunction restraining the Council from demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering with a national monument, the property of the Council, being the remains of Carrickmines Castle.
Analysis of the relevant Statutory Provisions
The Court, which has been greatly assisted by the clarity of the judgment of Laffoy J, is entirely satisfied to adopt the following comprehensive analysis of the statutory provisions as elaborated in her judgment in the instant case as follows:-
“Awareness of the importance of ancient monuments and historic sites and the desirability of preserving them for posterity is not a phenomenon of the 20th and 21st centuries. The earliest legislative provisions which protected ancient monuments in Ireland were contained in the Ancient Monuments Protection Act, 1882. That Act enabled the appointment of the Commissioners of Public Works in Ireland as guardians of monuments to which the Act applied, with a duty to maintain the monument. It also empowered the Commissioners to purchase monuments and accept gifts or bequests of monuments. It provided a criminal sanction for injuring or defacing a monument. The monuments to which the Act applied were those listed in a Schedule to the Act ‘and any other monuments of a like character’. Among the ancient monuments in Ireland listed in the Schedule were Grianan Aileach, Staigue Fort, and Newgrange. Monuments which featured in litigation in the last three decades also featured: the earthworks on the Hill of Tara, the graves at Carrowmore and Knocknarea. By an amendment in 1892 the powers of the Commissioners under the Act of 1882 were extended to ‘any ancient or mediaeval structure, erection or monument, or any remains thereof’ where the Commissioners were of opinion that preservation thereof was a matter of public interest by reason of the historic, traditional, or artistic interest attaching to it. There was a further amendment in 1910 which further extended the powers of the Commissioners.
The Act of 1930 repealed the Act of 1882 and the amending Acts. In its long title it was described as:
‘An Act to make provision for the protection and preservation of national monuments and the preservation of archaeological objects in Soarstát Éireann and to make provision for other matters connected with the matters aforesaid.’
It defined the word ‘monument’ and the expression ‘national monument’. When Dunne No. 1 was before the Supreme Court, although conceding that an arguable case had been made out for the proposition that Carrickmines Castle constituted a national monument, the Council denied that it was (see judgment of Hardiman J. at p. 572). When Mulcreevy was before the Supreme Court it was not in dispute that Carrickmines Castle is a national monument (see judgment of Keane C.J. at p. 419). In these proceedings it is accepted by the Council that certain remains of Carrickmines Castle constitute a national monument. The Minister admits that certain of the remains of the fortification structures come within the definition of national monument. In any event, the whole raison d ‘etre of s. 8 and the Minister’s directions thereunder is that the works to which they relate are works to a national monument.
In the context of these proceedings the most important provision of the Act of 1930 is s. 14. In outlining the background to these proceedings earlier, I have touched on the provisions of s. 14, as amended by s. 15 of the Act of 1994. The provisions as originally enacted, and the amendments wrought by the Act of 1994 were considered by Keane C.J. in Mulcreevy at pp. 430-432. For present purposes, suffice it to say that the amendment enacted in 1994 more rigorously controlled the granting of consent to the demolition, removal, disfigurement, defacement, alteration or any manner of injury to or interference with a national monument in the ownership or guardianship of the Commissioners of Public Works or a local authority or which was the subject of a preservation order. The breadth of discretion which had hitherto reposed in the statutory bodies in relation to the grant of consent was greatly curtailed and, where the activity proposed was not in the interests of archaeology or, in the opinion of the relevant Minister, expedient in the interests of public health or safety, the tacit approval of the Oireachtas was necessary. I use the expression ‘tacit approval’ as shorthand for the requirement of laying a ministerial approval consent before both Houses of the Oireachtas while conscious of the fact that such a requirement was described as ‘something of a blunt instrument’ by Keane J., in the Laurentiu case referred to later.
The structure of s. 14 as now contained in s. 5 of the Act of 2004 in broad outline is that s. 14 re-enacts the existing s. 14 with amendments, s. 14A introduces supplementary provisions in relation to road development, s. 14B augments s. 14A in dealing with directions which the Minister may make under s. 14A, and s. 14C deals with grant of consent in the interest of public health and safety.
Section 14 regulates activities in relation to national monuments of the type which were protected by the original s. 14: national monuments in the ownership or guardianship of the State or a local authority or which are subject to a preservation order. Broadly speaking the activities regulated are the activities regulated by s. 14 as originally enacted: demolition and so forth and injury or interference with the monument in any manner; excavation, digging and so forth; sale for exportation or exportation; and an additional category of activity, renovation and restoration, which was first introduced in 1987. Any of the foregoing activities are unlawful without a consent under sub-s. (2). Under sub-s. (2), the Minister is given a discretion to consent to the doing of any of the activities referred to in sub-s. (1). However, he is obliged to consult with the Director of the National Museum before granting consent. The consent may be subject to conditions and restrictions. The exercise of the discretion to grant consent is of the same amplitude as the consideration of the issuing of directions under s. 8(2)(a), which I have quoted earlier. Moreover, the Minister may have regard to the factors listed in s. 8(2)(b) to the extent that they appear to him to be relevant, subject to one variation: he may have regard to any environmental, cultural and recreational benefit that would accrue, in addition to any social or economic benefit as referred to in
s. 8(2)(b)(iii). Subsection (5) of s. 14 renders it a criminal offence to contravene sub-s. (1), which is triable summarily or on indictment.
Section 14A would appear to reflect the experience of the State and local authority in relation to the South Eastern Route. The combined effect of sub-ss. (1) and (2) in relation to an approved road development is similar to the effect of s. 8(1) in relation to the South Eastern Route: consent under s. 14, any further consent or licence under the National Monuments Act is not necessary, but any works of an archaeological nature that are carried out must be carried out in accordance with the directions of the Minister. However, s. 14(2) contains a safeguard which is not found in s. 8(1): the Minister is obliged to consult with the Director of the National Museum before issuing directions. Sub-section (4) deals with the situation where a national monument is discovered in the course of the carrying out of an approved road development where neither approval under s. 51 of the Act of 1993 nor the environmental impact statement to which the approval relates deals with the national monument. In such case, there is a duty on the road authority to report the discovery to the Minister and to desist from works which would interfere with the monument except such as are urgently required to secure its preservation in accordance with such measures as may be specified by the Minister. The substantive provisions in relation to a discovery to which sub-s. (4) applies are contained in sub-ss. (4), (5), (6) and (7) of s. 14A and in s. 14B. Neither a consent under s. 14 nor any consent nor any licence under the National Monuments Acts (with one exception) is required. The Minister may, at his discretion, issue directions to the road authority concerning certain activities in relation to the monument – preservation, renovation or restoration, excavation and such like, recording it, and demolition, removal, alteration and any manner of injury or interference with it. There are a number of safeguards, however. The exercise of the discretion is subject to similar provisions as those set out in s. 8(2) in relation to the consideration of the issuing of directions under s. 8.
The exceptions and safeguards embodied in ss. 14A and 14B in relation to discovered monuments are as follows:
(1) A road authority is not absolved from obtaining a licence under s. 25 of the Act of 1930 as amended, which, in broad terms, is a licence to alter an archaeological object.
(2) The Minister is obliged to consult with the Director of the National Museum before issuing directions.
(3) Where the Minister has issued directions, he is obliged to inform the Board of those directions and of any change in the approved road development necessitated by the directions. The Board is required to determine, as soon as practicable, whether in consequence of the directions there is a material alteration to the approved road development. There appears to be a slight drafting infirmity in
s. 14B(2). However, for present purposes, if the Board determines that no material alteration arises to the approved road development, it is obliged to so advise the road authority. Alternatively, if it determines that a material alteration arises, it is then obliged to further determine
(a) whether or not to modify the approval for the purposes of permitting any changes to the route or the design of the approved road development,
and
(b) whether or not the material alteration is likely to have significant adverse effects on the environment.
Where it makes the determination that a material alteration is not likely to have significant effects on the environment, it is obliged to give its approval subject to any modifications and additions determined in accordance with (a). Where it makes the determination that a material alteration is likely to have significant adverse effects on the environment, then it is obliged to require the preparation of an environmental impact statement. The remainder of s. 14B contains provisions which govern the environmental assessment of the consequences of the directions and culminates either in –
(i) confirmation of the approved road development as affected by the directions, or
(ii) approval, with or without modifications, of a change to the approved road development, or
(iii) the refusal to confirm the approved road development as affected by the Minister’s directions (sub-s. (8)).
In the event of a refusal to confirm, the road authority is not obliged to comply with the directions.
Section 8 of the Act of 1994, which is referred to in s. 8(3) of the Act of 2004, provides that where the finding of an archaeological object has been reported to the Director of the National Museum he, or a designated person on his behalf, may inspect the locus of the find and do all things as may be reasonably necessary for performing his functions under the National Monuments Acts, including excavation where he considers that an archaeological object, or the site thereof, is in immediate danger of destruction or decay”.
The consequence of section 8 insofar as the South Eastern Route is concerned is that the works at Carrickmines Castle are regulated only by the provisions of sub-ss (1) and (2) of the section. They are no longer to be regulated under the National Monuments Acts. In place of the former consent under s. 14, there is only the requirement that the works be carried out on the directions of the Minister. The Council as landowner does not need consent from any statutory body to the carrying out of the works, nor is the approval of both Houses of the Oireachtas necessary. There is no requirement to obtain a license under s. 25 or s. 26 of the Act of 1930. Furthermore, the disapplication of s. 50(1) (b) of the Act of 1993 precludes the Board from considering whether the completion of the development works would be likely to have a significant effect on the environment and from considering whether to direct an environmental impact statement. The provisions of s. 8 of the Act of 1994 designed to safeguard the locus of an archaeological find are also disapplied. Quite obviously section 8 removes a bundle of protections and one now has to consider if this was permissible having regard to the Constitution and to European Union law.
The Constitutional Challenge
It is asserted on behalf of the plaintiff that s. 8 of the Act of 2004 represents an unconstitutional delegation of legislative power contrary to Article 15.2.1 of the Constitution. It is further asserted on behalf of the plaintiff that s. 8 offends Articles 5, 10 and 40 of the Constitution.
(a) Challenge by reference to Article 15.2.
Article 15.2 provides as follows:-
“1○ Sole and exclusive power of making laws for the State is hereby invested in the Oireachtas: no other legislative authority has power to make laws for the State.
2○Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.”
As we have seen, s. 8 of the Act of 2004 empowers the Minister to issue directions in relation to the carrying out of works to which s. 8 relates. The plaintiff contends that the delegation of this power to the Minister is contrary to Article 15.2 in that:-
(a) The Minister is empowered to issue directions which are inconsistent with the principles and policies enshrined in the National Monuments Acts, 1930-2004, namely that the code thereby created is for the protection, preservation and safeguarding of the historical, architectural, traditional, artistic and archaeological heritage of the State,
(b) Paragraph (a) of subs. (2), in not confining the Minister to consideration of archaeological issues but in allowing him to take into account the public interest notwithstanding that the destruction in whole or in part of a National Monument may ensue, does not provide any guiding principle or policy by which he is obliged to balance the public interest and the underlying principles and policies of the code,
(c) Paragraph (b) of subs. (2) gives to the Minister the power to act at large and in a manner unrelated to and incompatible and inconsistent with the principles and policies underlying the code, and
(d) The Minister is empowered to act on the basis of a range of criteria, including unspecified policies of the government or of any other Minister, and no guidance is given as to how the various criteria are to be prioritised or weighed in the balance.
The learned trial judge in her judgment found that s. 8 did not confer any power to make law on the Minister, but instead allowed him only to issue directions for the carrying out of the works to which the section applies. Going further, the learned trial judge held that, properly construed, s. 8 mandates the Minister to do certain administrative acts.
It goes without saying that if powers had been delegated to the Minister to make regulations or orders which went outside the principles and policies of the Act of 2004, any such measure would be unconstitutional. Thus, in Laurentiu v. Minister for Justice, Equality and Law Reform [1999] 4 IR 26, the provisions of s. 5(1)(e) of the Aliens Act, 1935, were declared to be unconstitutional. The subsection had purported to allow for the making of ministerial orders regulating immigration policy generally. This was held to be far more than the mere giving of effect to principles and policies contained in the statute itself and was thus unauthorised.
The permitted parameters of delegated legislation under Article 15.2 were defined in the seminal judgment of O’Higgins C.J. in Cityview Press v. An Comhairle Oiliúna [1980] I.R. 381, when he stated (at pp. 398-399):-
“The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever changing situations which confront both the Legislature and the Executive in a modern state. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
The Court is satisfied that s. 8 of the National Monuments (Amendment) Act, 2004, does not give rise to delegated legislation at all. Rather, the section is concerned with the making of an administrative decision which consists of the giving of directions. This is an entirely different legal concept as the exercise of a statutorily conferred discretion is not governed by the provisions of Article 15 of the Constitution, but is instead subject to the requirements of administrative law.
In that regard, the exercise of those powers by the Minister is subject to the necessarily implied constitutional limitation of jurisdiction in all decision- making which affects rights or duties, namely, the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision: see State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642, at p.658. Thus understood, the exercise by the Minister of his powers under s. 8 is a discretion which is open to challenge by way of judicial review proceedings in the ordinary way. In order to succeed in any such challenge, it would be necessary to demonstrate that there had been a breach of one or other of the well established principles governing administrative decisions. For example, it would be necessary to demonstrate that the decision maker had failed to have regard to all relevant considerations, had had regard to an improper consideration or had acted irrationally.
The considerations relevant to the making of a decision as to the giving of directions are set out under s. 8 itself. A detailed list of the criteria as specified under s. 8(2)(b). It is obvious from these criteria that in making a decision as to directions, the Minister is entitled to balance the benefits of archaeological preservation against the wider public interest (including social or economic benefit) which would accrue as a result of the carrying out of the road development.
It can hardly be disputed that it is within the competence of the Oireachtas under Article 15.2 to make a law giving the Minister a wide discretion both in terms of the scope of the direction under s. 8 and the criteria to which he may have regard, provided of course that no other provision of the Constitution is thereby infringed.
Having regard to the Court’s conclusions on this matter, it is strictly speaking unnecessary to go further and consider whether the delegated functions fall within the parameters of the principles and policies set out in the National Monuments Acts, 1930-2004. As noted by the learned trial judge, it is clear on the face of s. 8 what the policy of the Oireachtas is in relation to the completion of the South Eastern Route. Beset as it had been over a number of years by legal challenges, the intention of the legislature was clearly to ensure the completion of the South Easter Route without any input or further interference from any party external to the Minister and his advisers and the Council and its advisors. It effectively provides that the works affecting the Carrickmines Castle site are to be carried out by the Council on the directions of the Minister. Provided the Minister exercises his discretion under s. 8 in a constitutional manner, he may give such directions as he sees fit subject only to the criteria set out in subs. 2(2)(b) and to the requirement that no other provision of the Constitution is infringed.
This Court is accordingly quite satisfied that the learned trial judge was absolutely correct in holding that the challenge to s. 8 based on Article 15.2 fails.
Constitutional challenge by reference to Articles 5, 10 and 40
Article 5 of the Constitution provides:-
“Ireland is a sovereign, independent, democratic State”.
Article 10 provides:-
“All natural resources…within the jurisdiction…belong to the State…”
Article 40.3.1 provides:-
“The State guarantees in its laws to respect, and, as far as practicable, by its law to defend and to vindicate the personal rights of the citizen.”
The essence of this aspect of the plaintiff’s claim is that, in enacting s. 8 of the Act of 2004, the Oireachtas put in place arrangements which are inimical to the preservation of a monument which is part of the natural heritage and that such failure is in contravention of the State’s obligation derived primarily from Article 5 of the Constitution.
For the purposes of both the Dunne (No. 1) and Mulcreevy cases, it was held that the plaintiff did have locus standi to bring the various challenges already described and his entitlement to so in the present proceedings has not been contested on this appeal..
The plaintiff contends the State is under a constitutional duty and obligation by virtue, inter alia, of Article 5 to safeguard and protect the national heritage, including historic and archaeological monuments. Alternatively, the plaintiff has a constitutional right by virtue of Article 40.3.1 to have this constitutional imperative enforced. In this regard, reliance was placed by the plaintiff on the decision of this Court in Webb v. Ireland [1988] IR 353, and in particular on that passage in the judgment of Walsh J. where he stated at p. 393:-
“I am satisfied that the People as the sovereign authority having by the Constitution created the State, and by Article 5 declared it to be a sovereign State, have the right and the duty, acting by the State which is the juristic person capable of holding property by virtue of the Constitution, to exercise dominion over all objects forming part of the national heritage, whether they be found or not, subject always to the lawful title of a true owner if and when the true owner is discovered and to exercise full rights of ownership when no true owner can be ascertained.
It is within the power of the Oireachtas, acting on behalf of the People, to make such arrangements as it sees fit by legislation for the disposal or other use of all such objects, subject to all the provisions of the Constitution, as the Oireachtas deems proper in the interest of the common good. While it is not for this Court to indicate to the Oireachtas how this power should be exercised it is the duty of this Court to state that pending any such legislation the State is entitled to possession of all such objects unless and until the true successors in title of those who hid them for safe keeping can be ascertained.”
Insofar as the plaintiff relies on Article 10 of the Constitution it must be emphasised that Article 10 is concerned with natural resources of the State, i.e. air and rivers, minerals and water and sources of energy from same. Indeed, the contention that Article 10 had any particular relevance having regard to the facts of this case does not appear to have been pursued with any vigour in the High Court. The National Monuments legislation limits acts of damage to manmade structures or things or areas associated with or archeologically characterised by the inhabitation of Ireland by its people which are clearly not natural resources within the meaning of Article 10. I think it correct to state that no authority has been invoked in the course of this appeal which identifies any interpretation of the Constitution in a way which restricts the making of legislation which affects heritage structures or national monuments. It is the defendant’s contention that the judgment of Walsh J. delivered in Webb bears out an interpretation of Article 10 of the Constitution which is confined to natural resources. Furthermore, the defendants maintain that the self same judgment only confirms that matters of policy are within the competence of the Oireachtas. In the Court’s view there is nothing in the judgment of Walsh J. which could be interpreted as restricting the Oireachtas from legislating, for policy reasons, in the manner which it did when it enacted s. 8 of the Act of 2004. On the contrary, that judgment expressly acknowledges the power of the Oireachtas to legislate in respect of such matters in the interests of the common good.
The learned trial judge in the course of her judgment found that the duty of the State to safeguard the national heritage could not be translated into a personal right of the type which, although unspecified, is protected by Article 40.3. This view is undoubtedly correct, given that the true position of the plaintiff may be seen as being that of the concerned citizen who seeks to exercise a supervisory role in relation to decision making by the Executive or the Legislature, such as arose in McGimpsey v. Ireland [1990] 1 I.R. 110 or in Horgan v. An Taoiseach, Minister for Foreign Affairs and Others [2003] 2 IR 468.
The various contentions of the plaintiff under these invoked Articles relate entirely to the plaintiff’s alternative view of the appropriate policy for the protection of the natural heritage of Carrickmines. As noted by the learned trial judge, it is not inconceivable that in a hypothetical case, a person in the position of the plaintiff might successfully challenge a statutory measure on the basis that it purported to permit a clear-cut breach of the State’s duty to protect the national heritage. As noted by the learned trial judge, this is not such a case. In inviting the Court to review s. 8 in the light of the State’s duty to safeguard the national heritage and on the basis of the other requirements of the common good, the plaintiff is inviting the courts to undertake a policy role which is conferred on the Oireachtas by the Constitution.
As Keane C.J. noted in T.D. v. Minister for Education [2001] 4 IR 259 at p. 288, this would be “to cross a Rubicon and to undertake a role which is conferred by statute on the Oireachtas under the Constitution.”
While it is hardly necessary to state it, it follows from the fact that no private or fundamental right of the plaintiff is involved in these proceedings, that there is no question of applying a proportionality test to the legislative measure under attack in the manner suggested on behalf of the plaintiff.
Accordingly, all of the arguments advanced to impugn s. 8 by reference to the provisions of the Constitution must fail.
Challenge by reference to EC Directives
The plaintiff argues that s. 8 is a provision in conflict with European Union law because it fails to require the Minister to consider whether an environmental impact assessment is necessary in accordance with the provisions of Directive 85/337/EEC as amended by Directive 97/11/EC and to carry out such an assessment in accordance with those provisions before issuing directions. Alternatively, the plaintiff argues that the directions given on the 5th August, 2004, and the method statement agreed on the 12th August, 2004, are invalid by reason of the failure of the Minister to comply with the provisions of the Directive.
The following articles of the Directive are relevant to the issues in these proceedings:-
(a) Article 1(1) which applies the Directive to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment, Article 1(2), whereby “project” is defined as meaning “the execution of construction works or other installations or schemes and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources”. In the case of a public project “developer” means the public authority which initiates the project. The expression “development consent” is defined as meaning:-
“… the decision of the competent authority or authorities which entitles the developer to proceed with the project”.
(b) Article 1(5), whereby there are exempted from the Directive: –
“… projects, the details of which are adopted by a specific act of national legislation, since the objectives of this Directive….are achieved through the legislative process”
(c) Article 2(1), now contained in Article 1(1) of Directive 97/11/EC, whereby:-
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development, consent and an assessment with regard to their effects. These projects are defined in Article 4”.
(d) Article 3, now contained in Article 1(5) of the Directive 97/11/EC whereby:-
“The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
– human beings, fauna and flora,
– soil, water, air, climate and the landscape,
– material assets and the cultural heritage,
– the interaction between the factors mentioned in the first, second and third indents.”
(e) Article 4, now contained in Article 1(6) of Directive 97/11/EC, whereby it is mandatory to conduct an environmental impact assessment in the case of projects listed in Annex I. Motorway construction is included at par 7 of Annex I. Article 4(2) provides that for projects listed in Annex II the Member State shall determine through: –
(i) a case by case examination
or
(ii) thresholds or criteria set by the Member State whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Point 13 in Annex II refers to:-
“Any change or extension of projects listed in Annex I or Annex II, already authorized, executed, or in the process of being executed which may have significant adverse effects on the environment”
Article 4(3) provides that when a case by case examination is carried out or thresholds or criteria are set, the relevant selection criteria set out in Annex III shall be taken into account. Annex III under the heading “Location of Projects” requires that the environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard, in particular, to the factors listed, including “landscapes of historical, cultural or archaeological significance.” Under the heading of “characteristics of potential impact”, Annex III requires that the potential effects of projects be considered in relation to the criteria previously set out and having particular regard to, inter alia, the reversibility of the impact.
Insofar as motorway and road development are concerned, the provisions of the Directive are transposed into Irish law by sections 50 and 51 of the Act of 1993. Since 2000, the decision maker as to whether an environmental impact statement should be prepared is the Board. Prior to that time, an environmental impact assessment was carried out in relation to the South Eastern Route scheme under section 51, in tandem with the approval of the road scheme under section 49, the relevant orders under the Act of 1993 being both dated the 19th October, 1998.
The plaintiff effectively contends that the works referred to in s. 8(1), being “works affecting any national monument in connection with the completion of the South Eastern Route”, constitute “a project” within Article 4(2) in respect of which there is an obligation on the State to adopt the measures prescribed in the Directive. It is further argued that the directions made on the 5th August, 2004, constitute a development consent as defined in the Directive.
The plaintiff’s contentions in this regard run immediately into the difficulty that the road development has already been the subject matter of an environmental impact assessment. The area of land and the nature of the development, including works affecting archaeological remains, were all properly considered under the EIS prepared in 1997 under the Act of 1993.
In her judgment, the learned trial judge found that the relevant project for the purposes of the Directive was the road development and not the archaeological works. She further found that the Ministerial directions did not constitute a “development consent” within the meaning of the Directive.
The scheme envisaged under domestic Irish law provides that certain road development is subject to the requirement for approval under the Act of 1993. Initially, the legislation provided that the approval was to be granted by the Minister for the Environment. This function was transferred to the Board in 2000. In addition to the requirement for a statutory approval, certain road development was also subject to the requirement for environmental impact assessment. Such an assessment could be carried out in parallel with the statutory approval procedure. Under s. 55(A) of the Roads Act, 1993 (as inserted by s. 6 of the Roads (Amendment) Act, 1998), a person may not question the validity of either an approval order or an order in respect of environmental impact assessment other than by way of statutory judicial review. In the case of the South Eastern Route, the relevant statutory approval and confirmation of the environmental impact statement were given in October, 1998. It was certainly too late for the plaintiff to challenge the adequacy of that EIS in the present proceedings. However, the plaintiff seeks to pursue an alternative approach, arguing that the Minister’s directions constitute a “development consent” in their own right.
This argument, however, does not withstand close scrutiny. The Ministerial directions regulate works of excavation and, in some instances, of removal. They do not constitute a project for the purposes of the environmental impact assessment. The requirement for environmental impact assessment only applies to a limited class of development projects as prescribed under Annex I and Annex II of the Directive. It is manifestly clear that these prescribed projects do not include works of the type permitted under the directions of August, 2004. The project subject to environmental impact assessment is the road development itself. This road development is authorised under the decisions of 1998, not under the directions of August, 2004.
The concept of “development consent” has been considered in a number of cases, including R(Wells) v. Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR 1-723, R v. North Yorkshire County Council ex-parte Browne [2000] 1 AC 397; and R (on the application of Prokopp) v. London Underground Limited [2004] 1 P and C.R. 479, and some of these cases are more fully explored in the judgment of the learned trial judge.
What emerges clearly from these judgments is that the question as to whether or not a particular decision constitutes a “development consent” cannot be determined simply by the application of a “but for” test; in other words, the fact that the development might not be permitted to proceed “but for” the particular decision in issue cannot per se be conclusive. As Lord Justice Buxton stated in Prokopp (at para.60): –
“In our case, both in law and in common sense the “project” is the whole of the ELLX. For that reason, as Mr. Gordon pointed out, the fact that by a rule of the domestic law of a particular member state further permission is required in the course of the project, though for reasons unconnected with its environmental impact, does not mean that the granting of such permission must be treated as a ‘development consent’. Indeed, quite the reverse, the relevant and only such consent in terms of the Directive was the original decision that permitted the project to go forward in the first place.”
The essence of the environmental impact assessment is that it occurs at an early stage in the decision making process. Where there are a series of decisions, it may obviously give rise to certain difficulties as to which event in the series of decisions is to be regarded as the “development consent” for the purposes of the Directive. This problem was considered by the House of Lords in R v. North Yorkshire County Council ex-parte Browne, [2000] 1 AC 397, when the following test was suggested by Lord Hoffman at p.404:-
“The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken. In such a case, the environmental impact assessment (if any) would have been made at an earlier stage and no further assessment would be required”.
He continued at p.405:-
“… the principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given.”
In R (Wells) v Secretary of State for Transport, Local Government and the Regions (Case C – 201/02), [2004] ECR 1-723, the European Court of Justice emphasised that:-
“It would undermine the effectiveness of that Directive [i.e., 85/337] to regard as mere modification of an existing consent the adoption of decisions which, in circumstances such as those of the main proceedings, replace not only the terms but the very substance of a prior consent, such as the old mining permission”. (Emphasis added)
In considering when the environmental assessment must be carried out, the Court also noted (at para 52):-
“Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision”.
Further, as Lord Hoffman noted in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at p. 617:-
“A point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language”
The Court considers the dicta of Lord Hoffman as correctly interpreting the requirements of the Directives in this regard.
In the present case, it seems clear to the Court that the principal development consent is that of October, 1998. The Court is of the view that the plaintiff is mistaken in suggesting that the decisions of 1998 and the directions given in August, 2004, are in some manner different stages in the same decision- making process. In our view, the decisions of 1998 are stand alone decisions which allow the road development to proceed whereas the directions involve merely the regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given.
The Court is satisfied for the following reasons that the Ministerial directions under s. 8 do not fulfil any of the requirements necessary to constitute a “development consent”: –
(a) Firstly, the Minister does not have power under s. 8 to embark upon a reconsideration of the environmental issues arising for the road development, and, more importantly, does not have power to modify the road development. All that is left for the Minister is a power to regulate the manner in which the works which are necessary to allow the road to proceed are carried out.
(b) Secondly, the project is prescribed for the purposes of the environmental impact assessment Directive as the road development, the subject matter of the 1998 consent. Excavation works of the type the subject matter of the Ministerial directions under s. 8 are not a prescribed project.
Essentially however the Ministerial directions of August 2004 do not in our view give rise to the environmental effects of which the plaintiff complains: it is the construction of the road development which gives rise to the environmental impact, not the archaeological resolution measures contained in the Ministerial directions. Furthermore, the plaintiff has completely failed to make out a case for challenging the adequacy of the 1998 environmental impact assessment. In particular, the plaintiff has failed to adduce any evidence to demonstrate that the methodology employed at that time was inappropriate. Nor is it the case that a fresh environmental impact assessment must be obtained on every occasion where works uncover a site of archaeological interest, provided always that archaeological issues were addressed in the original environmental impact statement. A similar conclusion was arrived at in Murphy v. Wicklow County Council (Unreported, High Court, 19 March, 1999) where the eventual identification of a third route through the Glen of the Downs between two alternative routes which were considered in the EIS did not give rise to any requirement to draw up an entirely new EIS. It can hardly be suggested that the Directive requires a succession of environmental impact assessments each time some significant new material is uncovered. Accordingly all of the plaintiff’s contentions on this aspect of the case fail.
Were the directions given by the Minister invalid for non-compliance with the Directive?
In resolving this issue, the learned trial judge asked herself two questions as follows:-
(1) Has the plaintiff established that the approved road development has been changed or extended (i.e., between 1998 and 2004) in a manner which may have “significant adverse effects” on the environment?
(2) Has the plaintiff established that it is the directions issued by the Minister pursuant to s. 8 that now entitle the Council to proceed with an approved road development?
If the first question were to be answered in the affirmative, the matter would come within the ambit of point 13 of Annex 11. The learned trial judge found as a fact that there had been a radical change by 2004 in respect of knowledge concerning the archaeological site, which said store of knowledge had, of course, grown as a result of the mitigation measures implemented under the environmental impact assessment process. In particular, the trial judge found that the extent of the revetted fosse had not been previously known. Further, it was not in dispute that, as a result of the works, a large part of the fosse would cease to exist.
However, as Laffoy J. stressed, the archaeological assessment is not to be conflated or confused with the assessment of the environmental effects generally. The accretion to the store of knowledge, ironically brought about by the ameliorating measures, did not convert the project from being a road project into something else. The learned High Court judge pointed out that section 8 does not empower the Minister to change the project and then found as a fact that the directions did not change the project. Accordingly, she found, and this Court also finds, that the first question must be answered in the negative.
In relation to the second question, it would be impossible to conclude that anything contained in or done pursuant to s. 8 forms the basis whereby the Council is entitled to proceed with the project. In reality, it is the orders made on the 19th October, 1998, which authorised the Council to proceed with the road development. The fact that a multiplicity of functions under various enactments are reposed in the Minister does not detract from the position that he is the source of authority for the completion of the South Eastern Route. The fact that he also issues directions under
s. 8 is beside the point. This Court is also of the view therefore that the works regulated in accordance with s. 8 do not fall within the ambit of point 13 of Annex II and that the directions which have been issued by the Minister under s. 8 could not on any reasonable interpretation of the Directives constitute a development consent and accordingly, that the implementation of the directions will not contravene the Directive.
Article 234 of EC Treaty
The issues in this case where mixed questions of fact and law. The Court has upheld the factual finding of the learned High Court Judge that the directions given by the Minister pursuant to s. 8 of the Act of 2004 did not effect the actual road project in a manner which could have “significant adverse effects” on the environment. Apart from this finding of fact, given the nature of the directions issued by the Minister pursuant to s. 8 and their limitation to the kind of works referred to in that section the Court is quite satisfied that they could not be considered a development consent within the meaning of the Directives on any possible or arguable view as to the meaning of the terms of the Directive. The Court is satisfied that there is no scope for reasonable doubt as to the manner in which the Directives fall to be applied in relation to the directions of the Minister in this case and, having regard to the principles set out by the Court of Justice in Cilfit –v- Ministry of Health [1982] ECR 3415 there is no obligation to make a reference under the third paragraph of Article 234 of the EC Treaty.
Order
The Court will dismiss the appeal against the judgment and order of the learned High Court judge.
Curragh Environment Ltd v An Bord Pleanála (No. 1) [2006] I.E.H.C. 243JUDGMENT of Mr. Justice Kelly delivered on the 14th day of July, 2006
Costs
It is unusual to deal with an issue of costs at the commencement of a judgment. It is even more rare to deal with the topic at the beginning rather than the end of litigation. But that is what I am asked to do in this case.
These are not the only unusual aspects of the matter. I am asked to depart from the general rule, which has been traditionally accepted in this jurisdiction, that costs are awarded to a successful litigant. Instead, I am asked to make an order the effect of which, if granted, will be to insulate the applicant from any costs liability to any other party regardless of the outcome of the litigation. In addition I am asked to make an order absolving the applicant from any obligation to furnish security for costs or to give any undertakings as to damages to any other party to the litigation.
Such orders appear to turn on their head the long accepted view on the awarding of costs in this jurisdiction, as mentioned above. The Irish courts are not alone in their approach. Throughout the common law world the issue of costs is decided at the conclusion of litigation and in general they are awarded to the successful litigant, or, to use the language of lawyers, they follow the event.
But orders of the type sought are not unknown. They are certainly unusual but not unprecedented. They have been considered and granted in a number of common law jurisdictions.
There is just one instance of such an order being sought in this State. It was refused, but the jurisdiction to grant such an order in an appropriate case was acknowledged (Village Residents Association Limited v. An Bord Pleanála [2000] 4 I.R. 321). Indeed the topic was also considered by the Law Reform Commission in its 2004 report on judicial review procedure.
The applicant here contends that it is entitled to such an order not merely by reference to the principles which have been worked out at common law, but also on foot of certain alleged European legal rights which I shall have to consider in due course.
Background
The applicant is a company limited by guarantee and does not have a share capital. Its principal objects are to “preserve, protect and improve the environment and heritage of the Curragh of Kildare by representing the interests of members of the community of and owners and users of sheep grazing rights on the Curragh of Kildare and its environs and to take such legal or other actions as may be considered necessary or desirable to promote such interests”.
The first notice party (the Turf Club) is proposing to develop lands at the Curragh.
The respondent (the board) granted two planning permissions to the Turf Club in that regard.
It is these permissions which the applicant seeks leave to judicially review.
The Planning Permissions
Both permissions are dated the 18th January, 2006.
The first grants permission for the realignment of approximately 1.1 km of the R413 road, generally situate to the north of the existing Curragh racecourse complex and to the south of the existing Stand Hotel. The new realigned R413 will include a total of five new accesses along its length as well as a horse and rider underpass. The permission was granted subject to six conditions.
The second decision of the board grants permission to the Turf Club for the demolition of the western half of the west stand at the Curragh and the construction of a 72 bedroom hotel and ancillary facilities. This permission was granted subject to eleven conditions.
Each decision of the board was accompanied by a letter in identical terms signed by an administrative assistant to the board.
Each letter is dated 18th January, 2006. They point out that an order had been made by the board under the relevant legislation and that the board took the decisions within the specified statutory time period. They say that due to work load constraints it was not possible to sign and issue the order in the appeal on that day. The letters then continue:-
“In accordance with section 146(3) of the Planning and Development Act, 2000, the Board will make available for inspection and purchase at its offices the documents relating to the appeal within three working days following its decision. In addition, the Board will also make available the inspector’s report and the Board direction on the appeal on its website (www.pleanala.ie). This information is normally made available on the list of decided cases on the website on the Wednesday following the week in which in (sic) the decision is made.”
These Proceedings
The substantive relief sought in these proceedings is judicial review of the two decisions of the board. Pursuant to the provisions of s.50 of the Planning and Development Act, 2000, (the Act), such an application must be made on notice to the relevant parties.
In this case the originating notice of motion is dated 2nd March, 2006.
The first three reliefs sought in the notice of motion are those relating to costs which I have already outlined. The remaining parts of it seek the substantive reliefs.
It was agreed by all parties to the litigation that the court should consider the costs orders which are sought, first. Indeed the applicant made it clear on a number of occasions that in the event of it being unsuccessful in obtaining the costs orders it will not proceed further with the judicial review application.
The institution of these proceedings was preceded by an extraordinary application which was made to Laffoy J. That application was apparently made on 28th February, 2006. The applicant there sought ex parte the three reliefs which are the subject of this judgment. Not surprisingly, that application failed.
The originating notice of motion was issued on 2nd March, 2006 and made returnable in the judicial review motion list for 27th March, 2006. In the meantime however, the Turf Club issued a notice of motion on 22nd March, 2006, seeking to have the case transferred into the commercial list pursuant to the provisions of Order 63A of the Rules of the Superior Courts.
That motion was heard on 3rd April, 2006 and I made an order pursuant to the provisions of Order 63A, rule 1(g), of the Rules of the Superior Courts entering the case into the commercial list despite the opposition of the applicant.
I then proceeded to treat the hearing of the motion as the initial directions hearing in accordance with the normal practice in the commercial list.
The Statement of Grounds
On that directions hearing it was obvious that the statement of grounds accompanying the originating notice of motion fell far short of what is required in such a document. This was so despite the fact that the applicant was represented by a lawyer whose entitlement to practice as such is recognised by the Law Society of Ireland.
A good example of the substandard nature of the document is to be found at para. E where the grounds relied on to support the application for judicial review are required to be set forth. All that is said is that such grounds “are outlined in the affidavit of Percy Podger dated 2nd March, 2006. They are mainly infringements of European environmental legislation, Irish planning law including procedural matters”.
It was accepted that this statement of grounds was not in proper form and accordingly on 3rd April, 2006, I afforded the applicant an opportunity to mend its hand in that regard. I gave it liberty to put the statement of grounds into proper form and to file it and serve it on all of the relevant parties. I also fixed times for the board and the Turf Club to file any replying affidavit evidence which they wished and adjourned the directions motion to 26th April, 2006. The purpose of the hearing on 26th April was, in the light of all of the affidavit evidence that would then be before the court, to decide whether the costs order sought by the applicant should be determined first or along with the application for leave to apply for judicial review.
The Hearing of 26th April, 2006
The applicant, in purported compliance with the order of 3rd April, 2006, filed and served a fresh statement of grounds. This fresh statement of grounds is the subject of complaint by the board because it is said it seeks to introduce new matter which could not be gleaned from a fair reading of either the original statement or the affidavit of Mr. Podger referred to in it. That new matter it is alleged has now been introduced outside the statutory time limit for the bringing of a judicial review application. Accordingly, a motion has been issued seeking in effect to disallow those parts of the fresh statement of grounds which are said to be new and time barred. I need not deal further with this aspect of the matter in this judgment.
At the hearing on 26th April, 2006, a strange thing happened. The lawyer on record for the applicant failed to appear and instead Mr. Percy Podger purported to address the court on behalf of the applicant. It appears that this arrangement was come about as a result of some agreement between the applicant and its lawyer.
I pointed out to Mr. Podger that it was not open to him, as a member of the company, to appear on its behalf. I explained in some detail to him why this was so having regard to the decision of the Supreme Court in Battle v. Irish Art Promotion Centre Limited [1968] I.R. 252. Despite his inability to represent the applicant I nonetheless heard what he had to say and gave him considerable leeway in explaining the position of the applicant. I found it difficult to understand why a lawyer on record for the applicant simply did not appear on the day in question and left it to Mr. Podger to do the best he could.
In these circumstances I directed the lawyer to appear in court the following day to explain the position. She did not appear to have a great deal of appreciation of the obligations of a lawyer on record. In any event she remained on record and has appeared for the applicant ever since.
The Orders Sought
The precise wording of the orders sought by the applicant are as follows:-
“1. An order directing that the applicant shall not be liable for the costs of any other party to the application for leave to take judicial review proceedings and the judicial review proceedings that shall emanate from the initial application for leave, in the matters of the respondents decisions to grant planning permission in PL09.213787 and PL09.213791 (An Bord Pleanála reference numbers) to the first named notice party, as may arise, or for the reserved costs of any such party as may arise in such proceedings;
2. An order directing that the applicant shall not have to furnish security for costs of any other party to all the afore stated sets of proceedings; and
3. An order directing that the applicant shall not have to make any undertakings as to damages or to any other party to the afore stated sets of proceedings.”
The orders sought were referred to during the course of the hearing as either pre-emptive costs orders or protective costs orders. The latter description seems to be the more up-to-date one. I will refer to the order sought as a PCO.
Jurisdiction
The first and only time, as far as I can ascertain, that a court in this jurisdiction had to consider a PCO was in the case of Village Residents Association Limited v. An Bord Pleanála and Ors. [2000] 4 I.R. 321.
In that case Laffoy J. held that this court has jurisdiction to make a PCO.
In coming to that conclusion she considered in some detail the only authority cited to her in support of the proposition. That was the decision of Dyson J. (as he then was) in R. v. Lord Chancellor Ex Parte CPAG [1999] 1 WLR 347.
It is not necessary for me to rehearse the analysis of his judgment carried out by Laffoy J. save to say that I agree with it. In reaching her conclusions Laffoy J. said:-
“While I am satisfied that the court has jurisdiction in an appropriate case to deal with costs at an interlocutory stage in a manner which ensures that a particular party will not be faced with an order for costs against him at the conclusion of the proceedings, it is difficult in the abstract to identify the type or types of cases in which the interests of justice would require the court to deal with the costs issue in such a manner and it would be unwise to attempt to do so. For the reasons adumbrated in the passage from the judgment of Hoffman L.J. quoted by Dyson J. in R. v. Lord Chancellor Ex Parte CPAG [1999] 1 WLR 347, I cannot envisage such an approach to a costs issue having any place in ordinary inter partes civil litigation. As a broad proposition the principles enunciated by Dyson J. – confining the possibility of making such orders to cases involving public interest challenges, as Dyson J. explained the concept of a public interest challenge, and requiring that the issues raised on the challenge be of general public importance and that at the stage at which it is asked to make the order the court should have a sufficient appreciation of the merits of the claim to conclude that it is in the public interest to make the order – would seem to meet the fundamental rubric that the interests of justice should require that the order be made. Having said that, it may be that in a particular type of case other factors may come into play. For instance, in judicial review proceedings challenging the validity of a decision of An Bord Pleanála or of a planning authority which has no private, as opposed to public, ramifications and, therefore, where what is at issue is a true public interest issue of general importance perhaps a heritage protection issue or an environmental issue, it might well be that there would exist policy considerations reflected in legislation which the courts would have to have regard to. The observations of Keane J., as he then was, on the question of locus standi in Lancefort Limited v. An Bord Pleanála (No. 2) [1999] 2 IR 270, highlight the multiplicity of factors and considerations which might arise and, for my part, are sufficient to discourage any generalisation as to the circumstances in which it would be appropriate to make a pre-emptive costs order.”
Laffoy J. then went on to give reasons for refusing the application in that case. The first involved her finding that the challenge in that case was not a public law challenge in the sense that that concept had been explained by Dyson J. She pointed out that the members of the applicant company there had a private interest in the outcome of the application. Secondly, she was not satisfied that the ground on which the applicant had been granted leave raised an issue of general public importance. Thirdly, she had insufficient information on the merits of the case to conclude that it was in the public interest to make a PCO. Finally, she took the view that the making of a PCO against the second respondent which was a private company would be unjust in the circumstances of that case.
Laffoy J. accepted the definition of a public law challenge for the purpose of a PCO as defined by Dyson J. In his judgment he said this on that topic:-
“The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interest of his or her own.”
Laffoy J. accepted a number of other observations made by Dyson J. First, he made it clear that the discretion to make PCOs even in cases involving public interest challenges should be exercised only in the most exceptional circumstances. His conclusions as to the necessary conditions for the making of such orders were expressed by him as follows:-
“I conclude, therefore, that the necessary conditions for the making for a pre-emptive costs order in public interest challenge cases are that the Court is satisfied that the issues raised are truly ones of general public importance, and that it has a sufficient appreciation of the merits of the claim that it can conclude that it is in the public interest to make the order. Unless the Court can be so satisfied by short argument, it is unlikely to make the order in any event. Otherwise, there is a real risk that such applications would lead, in effect, to dress rehearsals of the substantive applications, which in my view would be undesirable. These necessary conditions are not, however, sufficient for the making of an order. The Court must also have regard for the financial resources of the applicant and respondent, and the amount of costs likely to be in issue. It would be more likely to make an order where the respondent clearly has a superior capacity to bear the costs of the proceedings than the applicant, and where it is satisfied that, unless the order is made, the applicant will probably discontinue the proceedings, and will be acting reasonably in so doing.”
Subsequent to the decision of Dyson J. PCOs were considered on a number of occasions in the High Court and in the Court of Appeal in England. The issue arose before the Court of Appeal in December, 2004, in the case of R. (On the Application of Corner House Research) v. Secretary of State for Trade and Industry [2005] 4 All ER 1.
The court took the opportunity to conduct a comprehensive review of the authorities on the topic of PCOs not merely in England but throughout the common law world. The judgment of the court which was prepared by Brooke L.J. was delivered by Lord Phillips M.R. Amongst the authorities considered was the decision of Laffoy J. in the Village Residents case and the views expressed by the Irish Law Reform Commission in its 2004 report on judicial review procedure. The judgment notes that that commission recommended that the jurisdiction should be exercised only in exceptional circumstances which it did not attempt to define.
His Lordship, in considering the judgment of Dyson J., accepted his definition of public interest challenges. Of that definition he said:-
“We believe that this definition can usefully be incorporated into the guidelines themselves. Dyson J. said that the jurisdiction to make a PCO should be exercised only in the most exceptional circumstances. We agree with this statement, but of itself it does not assist in identifying those circumstances.”
The Court of Appeal went on to endorse the bulk of the guidelines which had been adumbrated by Dyson J. but recast them.
At para. 74 of the judgment Lord Philips said:-
“We would therefore restate the governing principles in these terms:
1. A PCO may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
(i) The issues raised are of general public importance;
(ii) The public interest requires that those issues should be resolved;
(iii) The applicant has no private interest in the outcome of the case;
(iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
(v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.”
These appear to me to represent the appropriate principles which courts in this jurisdiction ought to have regard to in deciding whether or not to exercise their discretion to make orders of the type sought. They differ very little from those stated by Laffoy J. in the Village Residents case.
An order of the type sought will only fall to be made in most exceptional circumstances and where the interests of justice require such a course to be taken.
Whether one applies the relevant principles in their original or recast form, it is clear that the first thing an applicant for a PCO must demonstrate is that the issues raised are of general public importance. It is to that topic that I now turn in the context of the facts of this case.
In considering this question I will proceed on the basis of the amended statement of grounds being in order. By so doing I am not adjudicating upon the issue, which is the subject of the separate motion, which I have already mentioned and which seeks to strike out some parts of that statement for being time barred.
The Grounds
Despite the length of the grounds in the amended statement of 7th April, 2006, it is clear that the applicant’s case falls under four headings.
They can be summarised as follows:-
1. It is alleged that there has been an unlawful delegation by the board to the planning authority in respect of certain conditions attached to the board’s decisions. Those conditions require agreement to be reached between the planning authority and the developer. The applicant contends that these are matters that ought not to have been delegated and that by so doing its right of participation in the planning process has been denied. In this regard it refers to Directive 85/337 on Environmental Impact Assessment (EIA) and to the amendment of that directive by Directive 2003/35.
2. The applicant alleges that the Turf Club has engaged in what is called “project splitting”. It contends that the Turf Club has a master plan for the entire location. It criticizes it for not applying for planning permission in respect of the implementation of this entire plan. Its says that the Turf Club’s statement of the environmental impact of the whole intended proposal should have been furnished to the board and that it was not sufficient to apply for permission only in respect of that part of the development which the Turf Club wishes to proceed with at present. By so doing it is said that the environmental impact of the whole proposal as distinct from that involved in the projects the subject of the decisions of the board has not been assessed.
3. Criticism is made of the Environmental Impact Statement (EIS) which was submitted. One EIS was submitted. It is criticized in some detail. In addition it is contended that the local planning authority should have obliged the Turf Club to submit a single application for planning permission and not have permitted the two applications which were in fact made. These two applications in due course gave rise to the two decisions in suit.
4. In delaying between making its decision and notifying the applicant it is said the board prejudiced the applicant in respect of its legal rights.
I will consider each of these grounds in turn. In doing so I am conscious of the fact that as yet the application for leave to seek judicial review has not been heard. Nonetheless I am in receipt of sufficient information to enable me to identify whether these grounds raise issues of general public importance.
Ground 1 – Unlawful Delegation
The question of the entitlement of the board to attach conditions which involve a developer obtaining the subsequent consent or agreement of the planning authority has been considered by the courts on a number of occasions.
In Boland v. An Bord Pleanála [1996] 3 I.R. 435, the Supreme Court concluded that there was an entitlement on the part of the board so to do. It held that the board is entitled to grant a permission subject to conditions. Such conditions may, in certain circumstances, provide that matter be agreed between the planning authority and the developer. Whether or not the imposition of such a provision in a condition imposed by the board constitutes an abdication of its decision making power depends upon the nature of the matter which is to be the subject of agreement between the developer and planning authority. What is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and the circumstances of the particular application and development.
That court also set forth the considerations which the board is entitled to have regard to in imposing a condition that a matter be left to be agreed between a developer and a planning authority.
If there was any doubt concerning the entitlement to attach conditions leaving matters to be agreed between the planning authority and the developer subsequent to the decision in Boland it was disposed of by the provisions of the Act.
The question was again judicially considered in Kenny v. An Bord Pleanála [2001] 1 IR 565, by McKechnie J., in this court. In that case he had to consider an argument that a condition attached to a planning permission amounted to an unlawful delegation by the board of its decision making power to the planning authority. It was claimed that as a result of the condition the developer and the planning authority were at large as to the appearance, nature and scale of the ultimate development. This, it was said, gave rise to the agreement of matters in private without any input from or access by members of the public.
The judge identified the appropriate criteria to apply in examining the complaint in the light of the facts of the case. He had no difficulty in refusing leave to apply for judicial review.
The topic was again considered by Clarke J. in Arklow Homes Limited v. An Bord Pleanála [18th January, 2006].
In that case Clarke J. considered all of the preceding jurisprudence and applied the well established Boland principles which are binding on this court. In addition he also addressed the issue raised here under Directive 85/337 in the context of an alleged unlawful delegation to the planning authority. He said this:-
“The second leg of Arklow’s argument under this heading was that the same facts and the same conditions disclose a situation where there has not been an adequate assessment of the environmental impact of the project necessary to satisfy the requirements of Directive 85/337. In Wells v. Secretary of State for Transport the Court of Justice determined, in the context of Council Directive 85/337/EEC, that, in consent procedures comprising several stages, the assessment by the competent authorities of the Member State concerned required by that directive must, in principle, be carried out as soon as is possible to identify and assess all the effects which the project may have on the environment.
However the court went on to determine that:-
‘The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State under the principle of procedural autonomy of the Member States provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the community legal order (principle of effectiveness)’.
It is clear from the context of the judgment that the possibility of a consent being revoked is a material matter to be considered.
In those circumstances it is important to note that, insofar as any matters are left over for agreement as a result of the imposition of conditions such as those contained in condition 9 and condition 13, there remains a variety of ways in which the development consent concerned may not become practically operative. Clearly such conditions impose a requirement that the agreement of the planning authority is a prerequisite to the commencement of the development. Therefore, while there is a sense in which the developer has secured a planning consent, there is also a sense in which it is a conditional consent in that it is conditional upon an appropriate agreement being reached. Furthermore, as I have indicated above, it is open to any party to challenge an agreement reached on a basis that it does not conform with the criteria specified in the decision of the board. It is thus open to revocation in practice in the event that an impermissible agreement is reached. Finally it may be that, as a result of the further enquiries carried out in accordance with such a condition, it may prove impossible to develop in accordance with the consent already granted. In that sense also the consent must be taken to be conditional.
In all the circumstances it does not seem to me, therefore, that there is any breach of the directive, as interpreted by the Court of Justice in Wells, where the board imposes a condition which complies with the Boland principles. In those circumstances any interested member of the public will have had the opportunity to engage in the process and to influence the criteria which the board specifies. Clearly if those criteria are impermissibly wide, so as not to meet the Boland test, then it might well be arguable that the public was excluded from appropriate consultation, as required by the directive, in relation to the final determination of the matter subject to the conditions. Where, as I am satisfied is the case here, the board has imposed sufficiently detailed criteria as a result of a process involving public engagement, I am not satisfied that there is any breach of the requirements to carry out the necessary assessment under the directive.”
Having regard to the well established jurisprudence to which I have referred I am quite satisfied that this case, should it get to trial, will involve an assessment on whether, on the facts, the matter which was delegated by the board to the planning authority complies with “Boland” principles or not. If what was done by the board was impermissibly wide it will not meet the Boland test and consequences may flow from that.
Given that the principles which the court must apply to this head of complaint are well established I am quite satisfied that the applicant has not demonstrated an issue of general public importance. The application of well established existing legal principles to the facts of this particular case do not raise issues of general public importance. In such circumstances it would be neither fair nor just to make a PCO.
Ground 2 – Project Splitting
This is a rather pejorative term. It applies to situations where a developer splits a project into sections so that each section falls below the threshold necessary for an EIS to be carried out.
Such is not, of course, the case here. A lengthy EIS running to in excess of 200 pages was prepared, considered and an EIA carried out in respect of both developments.
The real argument which the applicant seeks to make is that the board ought to have taken into consideration future proposed works which were not the subject of an application for planning permission.
It is correct to say that in the EIS it is made clear that the permissions sought are in respect of the first phase in the redevelopment of the overall Curragh racecourse complex. That redevelopment is being undertaken pursuant to a master plan. The applicant says that, such being the case, it is impermissible to apply for permission in respect of the development on a phased basis. Rather a single permission should be sought with a single EIA to be carried out covering all elements of the proposed development.
Apart from the fact that this proposition lacks all commercial reality, I am quite satisfied that it does not give rise to any issue of law of general public importance. I so conclude for the following reasons.
An EIA is required in respect of a development project for which planning permission is sought once the project is in excess of the threshold where such assessments are inapplicable. The project in the present case is the development works in respect of which the permissions were sought by the Turf Club. No further planning permissions were sought. There is no power invested in the board to force somebody to make an application in respect of proposed works.
If, in the future, the Turf Club proceeds to the next stage of its master plan it will be obliged to obtain planning permission for that development. The board will be obliged to carry out an EIA for that development and in so doing will have regard to all of the circumstances that obtain in relation to that project including the development for which planning permission had already been granted. No part of the total development will therefore avoid being subject to appropriate scrutiny.
A similar issue fell for consideration by Clarke J. in the Arklow Holiday’s case. In dealing with the topic he said this:-
“The term ‘project splitting’ is more properly applied to allegations raised by objectors who contend that a developer has divided a single overall project into two or more separate (and by definition smaller) projects so that each of the sub-divisions fall below thresholds set out in both European and domestic legislation over which a higher level of environmental assessment are required. There is an established jurisprudence for determining whether project splitting in that sense has occurred.”
He then went on to consider the allegation made in that case which was not one of project splitting but rather one involving an allegation that the board had failed to take into account other existing works that had not been included in the EIS submitted by the developer.
I am satisfied that as Clarke J. said there is an established jurisprudence for determining whether project splitting in the proper sense of that word has occurred. It is difficult to see how the applicant can bring itself within that jurisprudence having regard to what happened here. If, however, the case proceeds to trial it will involve an assessment of the facts by reference to well established jurisprudence. No issue of law of general public importance has been identified.
Ground 3 – The Single EIS
In the present case a very detailed EIS was submitted in respect of both of the applications. I cannot identify any issue of law, still less an issue of law of general public importance, in relation to the complaint which is made here. In the course of developing this line of argument the applicant’s lawyer pointed out to what she perceived as shortcomings in the EIS. For example, she criticized the bat survey. Bats are dealt with over approximately ten pages of the EIS. The criticism was levelled at the fact that a bat fauna study was undertaken on just one day. Likewise it was suggested that in dealing with the question of birds the EIS failed to identify the Golden Plover as being a species present on the Curragh.
Following the lead of McKechnie J. in Kenny’s case I am quite satisfied that the court should not concern itself with such matters. To use the language of McKechnie J.:-
“I would set my face totally against such a microscopic examination by this court of such matters of detail.”
The fact that a single EIS covering the two permissions was prepared made perfect sense. It covered both.
The seeking of two permissions rather than a single one in circumstances where there was no project splitting in the true meaning of that term does not give rise to a point of law of general public importance.
Ground 4 – Delay
The contention here is that the applicant’s legal rights were unlawfully interfered with because of the delay between the making of the board’s decision and its notification. It is contended that the time periods given to it to take such steps as it might think appropriate were shortened by some twelve days. This is the subject of the letter from an administrative officer of the board from which I quoted earlier in this judgement.
It is difficult to see how any point of law, still less a point of law of general public importance, is sought to be raised in respect of this complaint.
The board met on 6th January, 2006 and made a decision to grant permission. The decision order was not finalised or issued until 18th January, 2006. Accordingly the 18th January, 2006, is the date of the decision of the board from the point of view of the reckoning of time. Time began to run from that date for the purposes of s. 50 of the Act. I cannot see any way in which the applicant’s legal entitlements were compromised in such circumstances.
In the case of the board (as distinct from a planning authority) there are no legal consequences which attach to a failure to determine an appeal by a particular date.
I cannot identify any point of law, still less a point of law of general public importance, which would justify the making of a PCO in respect of this ground.
Conclusions on PCO at Common Law
None of the grounds advanced by the applicant raise an issue or issues of general public importance.
That is sufficient to dispose of this part of the case. The application is dismissed.
Insofar as the other matters appropriate for consideration are concerned I observe as follows.
As there are no issues of general public importance raised by the applicant, it is not in the public interest that such issues as are raised be resolved with the aid of a PCO.
The applicant, as distinct from at least some of its members, may well have no private interest in the outcome of the case. Its financial position is almost certainly weaker than that of the board or the Turf Club. It says it will discontinue the proceedings if refused a CPO. There is no evidence that those acting for the applicant are doing so on a pro bono basis.
It is difficult to see how it would be fair or just to make a PCO in this case. Such orders are most exceptional. This case exhibits no circumstances which would merit such an order.
Directive 2003/35/EEC
The applicant contends that even if it is unsuccessful in obtaining a PCO on foot of the common law jurisdiction of the court it is nonetheless entitled to such an order by virtue of the provisions of this Directive.
This Directive was adopted on 26th May, 2003 and provides for public participation in respect of the drawing up of certain plans and programmes relating to the environment. It amends, with regard to public participation and access to justice, Council Directives 1985/337/EEC and 96/61/EC.
The basis of the applicants claim is the amendment, by insertion of the following article, into Directive 85/337/EEC. The inserted article is given number 10a. It reads:-
“Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
Member States shall determine at what stage the decisions, acts or omissions may be challenged.
What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of sub-paragraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of sub-paragraph. (b) of this Article.
The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
In order to further the effectiveness of the provisions of this Article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.”
It is to be noted that earlier on in this Directive there is an amendment to Article 1(2) of Directive 85/33/EEC by the addition of two definitions. The first is a definition of “the public”. The second is a definition of “the public concerned”.
The “public” is defined as –
“One or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups”.
The “public concerned” means –
“The public affected or likely to be affected by, or having an interest in, the environmental decision making procedures referred to in Article 2(2); for the purposes of this definition, non governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”.
Article 6 of this Directive requires Member States to implement it by 25th June, 2005, at the latest. Using the precise wording of Article 6 Member States are obliged to “bring into force the laws, regulations and administrative revisions necessary to comply with this Directive by 25th June, 2005, at the latest. They shall forthwith inform the Commission thereof”. It is common case that Ireland has failed to implement this Directive in accordance with its terms.
It is not to the credit of this State that it has failed to give effect to its legal obligations under the Directive. Its omission to do so is said to give rise to the applicant’s alleged entitlement to a PCO quite apart from any common law entitlement to such an order. The Directive also means, it is argued, that no order for security for costs ought to be made or undertaking as to damages sought from the applicant.
The basis for this contention on the part of the applicant is that, Ireland having failed to implement the Directive by the due date, it has direct effect. It is said that the way to give effect to it in this case is to make a PCO.
Direct Effect
There is a well established body of law setting forth the circumstances in which a Directive may have direct effect. (See for example Becker’s case [1982] ECR 53 and Marshall’s case 152/84). The conditions which must be met are as follows.
First, the date for implementation must have passed and the Member State must either have failed to implement or have inadequately implemented the Directive.
Secondly, the relevant provisions of the Directive sought to be relied upon must be identified and must be clear, precise and unconditional.
Thirdly, direct effect has no horizontal effect. It may only be relied upon as against a Member State or an emanation of the State. (Vertical effect) This third proposition rules out the possibility of a PCO being made in respect of the Turf Club.
The first of these conditions is met.
The applicant argues that a PCO is at present the only approach open to this court to give “effet utile” or full effect to Article 3 of Directive 2003/35/EEC. It says that by reference to that part of Article 10(a) which refers to a review procedure being fair, equitable, timely and not prohibitively expensive. It argues “there is no other approach established to get such a review procedure which is not prohibitively expensive other than by way of the order sought”. This means, says the applicant, that it cannot be obliged to pay costs.
If I were to accede to this application I would have to be satisfied that the wording of the Directive has about it that clarity, precision and unconditionality so as to make it directly applicable. I am not convinced that it does.
A few examples from many that are available demonstrate why this is so.
It is by no means clear that the Directive has any application to judicial review of the type in suit.
Article 10(a) requires the public to have access to a review procedure before a court of law or other independent and impartial body to challenge the substantive or procedural legality of decisions. The Act allows an appeal from a decision of a planning authority to the board. The board is an independent and impartial body which is established by statute. It is empowered to hear challenges, both substantive and procedural. It conducts a de novo consideration of the application for planning permission.
Whilst there is a right of redress on a limited basis to the courts by means of judicial review, it is not clear that it is covered by the Directive. It is just as arguable that the Directive covers an appeal to the board.
Members of the public can bring such an appeal. It is fair and the only charges involved are the fees payable. Furthermore the board can award expenses pursuant to s. 145 of the Act. On this interpretation the question of a PCO in judicial review proceedings is unaffected by Article 10(a). If judicial review can be regarded as an additional layer of challenge then that is not subject to the requirements of Article 10(a).
Indeed it is also questionable as to whether the Article applies to court proceedings at all in the Irish context. It must be remembered that Irish court proceedings in questions of this type do not permit of a substantive review. The only form of review is a judicial review which does not address the merits of the case. Thus, it is doubtful if the Directive applies at all.
Even if the Directive can be taken as applying to judicial review applications the question arises as to what the words “prohibitively expensive” refer to. It is not clear whether this refers to court fees which are chargeable by the State or to legal costs which are not. If it is court fees then access is available to any persons on paying a modest court fee. It is particularly modest in the case of judicial review in planning matters where the originating document is a notice of motion carrying a fee which is a fraction of the fee payable for the issue of a plenary summons. If the Directive is dealing only with fees then it has no application whatsoever in the case of a PCO.
These are just two examples out of many of how this Directive is lacking in clarity, precision and unconditionality so as to make it incapable of direct effect.
It is worth pointing out that if the applicant is correct and this Directive has direct effect in the way in which it contends, it means that an applicant relying upon it could never be obliged to pay another party’s costs irrespective of the outcome of proceedings. All such litigation would be conducted without any cost penalty being available against an unmeritorious claimant.
In many cases it is either a planning authority, the board or the Environmental Protection Agency that is a respondent to such applications. All such litigation would effectively be carried on at state expense. This would give rise to a subsidisation of an applicant in environmental litigation irrespective of the questions, the merits or the manner in which the litigation is conducted.
The Directive is replete with language which is framed in such a way as to make clear that a wide measure of discretion is left to the Member State as to how it should be implemented. It was never intended to be a Regulation nor is it capable of being, in effect, converted into one by reason of the state’s omission in implementation. The language is not sufficiently precise, clear or unconditional to render it of direct effect.
This Directive, although not given effect to by this State within the time permitted, cannot have direct effect for the reasons which I have set out.
Result
I am satisfied that insofar as there is a common law jurisdiction to make a PCO the applicant has fallen at the first hurdle and has not demonstrated that it has a point or points of law of general public importance for litigation in this suit.
Insofar as it seeks to rely upon Directive 2003/35/EC I am satisfied that that Directive does not meet the criteria which would render it capable of being given direct effect in this jurisdiction. Even if it did, it could not be utilised as a vehicle for granting a PCO in respect of the Turf Club since that is not an emanation of the State.
Insofar as the application seeks absolution from the provision of security for costs or the furnishing of an undertaking as to damages, no such applications have yet been made. Nonetheless, in accordance with the conclusion reached on the PCO application I see no basis upon which the applicant should be exempted from being the subject of such applications, if appropriate.
This application is dismissed.
Dunne v. Minister for the Environment, Heritage and Local Government & Ors
[2004] IEHC 304 (7 September 2004)
Judgment of Miss Justice Laffoy delivered on 7th September, 2004.
Background
This is the third occasion on which the jurisdiction of this Court has been invoked in connection with the construction of the South Eastern Route motorway at the location where it traverses and adjoins the archaeological site which is colloquially known as Carrickmines Castle.
The South Eastern Route is the final part of the M50 C-ring motorway around Dublin. As has been recognised in earlier proceedings, it forms a strategic element of the national road network, providing a high-speed link between the N11 and the other national primary routes around Dublin. The South Eastern Route is within the functional area of the fourth named defendant (the Council). Ownership of Carrickmines Castle and the land the subject of these proceedings is vested in the Council. On 19th October, 1998, following a public local inquiry in January 1998, which was held over nine days, the predecessor of the first named defendant (the Minister), pursuant to s. 49 of the Roads Act, 1993 (the Act of 1993) approved the Council’s scheme for the construction of the South Eastern Route subject to certain modifications. On the same day, 19th October, 1998, the Minister’s predecessor, pursuant to s. 51 of the Act of 1993, approved that scheme, having considered the Environmental Impact Statement of September, 1997 (the 1997 EIS) submitted by the Council, the submissions which had been made and the report and recommendations of the person who conducted the public local inquiry as to the likely effects on the environment of the development.
The 1997 EIS was expressed to be issued in accordance with EC Directive 85/337, as transposed into Irish law by the Act of 1993 (para. 1.3). In its “Non-Technical Summary” it dealt with archaeology and disclosed that archaeological investigations and surveys had been carried out on the area affected by the proposed scheme, which was described as part of a landscape rich in archaeological and historical material. Topographical and geophysical surveys, which have been carried out, indicated that in three locations, which included Carrickmines, a complex of archaeological features was likely to exist. It was stated that investigative excavation was proposed for the relevant sites to determine their exact nature and significance. On the basis of the excavations full archaeological excavation would be carried out if required on the areas of the sites affected by the proposed scheme prior to the commencement of the construction works. During construction an archaeologist would be retained with full watching brief. Chapter 17 dealt in detail with the results of the archaeological investigations and surveys which had previously been conducted. The location, features, impact of the route on, and recommendations in relation to, selected sites, including the sites at Carrickmines Castle were summarised in tabular form (table 17.2.1). The ameliorative measures proposed were detailed. (para. 17.2.5). In chapter 18 the proposed environmental measures were summarised. In relation to archaeology, it was recorded that the Carrickmines Interchange design had been modified so that the castle remnant could be retained in an open area and minimum disruption would be caused to the more significant areas. Further, it was recorded that where possible the engineering design had avoided all identified sites. Where this could not be achieved a series of ameliorative measures were proposed to be carried out prior to construction to mitigate the impact of the proposed route on archaeology. These included investigative excavation to determine the exact nature and significance of the sites and full archaeological excavation if required on the basis of the results of initial investigation.
Initial archaeological investigations were conducted at Carrickmines Castle during April and May, 2000. Archaeological excavations commenced on 28th August, 2000 and were conducted over the following two years and six months. As has been acknowledged on the previous occasions on which the jurisdiction of this court has been invoked, a large team of archaeologists, up to 200, has been involved in, and considerable resources, in excess of €6 million up to January, 2003, and approximately €9.6 million as of now, have been committed to, the archaeological resolution of Carrickmines Castle. This is part of a total expenditure to date of €12.7 million on archaeology in connection with the South Eastern Route.
The plaintiff in these proceedings was one of the co-plaintiffs in the first action in relation to Carrickmines Castle, which is reported as Dunne v. Dun Laoghaire-Rathdown County Council [2003] 1 IR 567. For the sake of clarity I will refer to these proceedings as “Dunne No.1”. That was a plenary action which was initiated on 5th February, 2003, more or less contemporaneously with the completion of the archaeological investigations which had been ongoing for two and a half years. On the date the proceedings were initiated the plaintiffs brought a motion seeking an interlocutory injunction to prevent the Council from demolishing, removing, altering or in any manner injuring or interfering with the national monument at Carrickmines Castle or from excavating, digging or otherwise disturbing the ground around or in the proximity of the national monument. The relief was refused at first instance. On appeal to the Supreme Court an interlocutory injunction was granted in the terms sought with the addition of the words “without a valid consent under s. 14 of the National Monuments Act, 1930, as amended”. That addition encapsulates the sole basis on which the interlocutory relief was granted. The Supreme Court held that there was a fair and bona fide question to be determined as to whether the absence of a consent by the Minister under s. 14 of the National Monument Act 1930 (the Act of 1930), as amended, precluded the activities the subject of the injunction notwithstanding that the Minister had previously granted a licence pursuant to s. 26 of the Act of 1930 for excavation of another part of the site.
Dunne No. 1 never went to plenary hearing. The response of the Council and the State was to put a consent in place. Section 14(2) of the Act of 1930, as originally enacted, provided that in the case of a national monument of which a local authority was the owner, the joint consent in writing of the Commissioners of Public Works and such local authority was necessary to render lawful activities of the type restrained by the interlocutory injunction. Section 14 was amended by s. 15 of the National Monuments Act, 1994 (the Act of 1994) which prohibited the giving of a consent under s. 14(2) “unless it is in the interest of archaeology to do so or the Minister has approved of the giving of that consent . . .”. At the time the amendment was enacted the relevant minister was the Minister for Arts, Culture and the Gaeltacht. By 2003 two changes had occurred. First, in 1996, by a Government order purported to be made under the Ministers and Secretaries Act, 1924, the functions vested in the Commissioners for Public Works under the Act of 1930 and the Act of 1994 were transferred to the Minister for Arts, Culture and the Gaeltacht. Secondly, in 2002 by a Government order purported to be made under the Ministers and Secretaries (Amendment) Act, 1939 the functions previously vested in the Minister for Arts, Culture and the Gaeltacht under the Act of 1930 and the Act of 1934, and which were then vested in the Minister for Community, Rural and Gaeltacht Affairs, were transferred to the Minister. On 3rd July, 2003 a joint consent was given by the Council and the Minister to the carrying out of the works which had been restrained by the interlocutory injunction. On the same day the Minister made the National Monuments (Approval of Joint Consent) Order, 2003 approving the works in question. That order required to be laid before both Houses of the Oireachtas and it would not become effective until 21 sitting days of both Houses had elapsed during which no resolution to annul the order had been passed by either House. It did not become effective until 2nd December, 2003. On 8th December, 2003 the interlocutory injunction which had been granted by the Supreme Court in Dunne No. 1 was discharged and the Council proceeded to implement the approval given by the Minister.
This provoked the second proceedings, which are reported as Mulcreevy v. Minister for Environment, Heritage and Local Government and Dun Laoghaire-Rathdown County Council [2004] 1 ILRM 419. In those proceedings, the applicant sought various reliefs by way of judicial review, including an order of certiorari quashing the Minister’s approval order of 3rd July, 2003 and injunctive relief restraining certain activities at Carrickmines Castle. The application for leave to seek the reliefs in issue by way of judicial review was on notice to the respondents. Leave was refused at first instance. On appeal to the Supreme Court the applicant was given leave to apply by way of judicial review for an order of certiorari quashing the Minister’s approval order on the ground that the order of 1996 was ultra vires in that it purported to effect an amendment of the statutory scheme established under s. 15 of the Act of 1994 – in that it purported to substitute for the statutory regime requiring the consent of three distinct and independent statutory bodies provided for in the Act of 1994 a regime requiring the consent of only two such bodies.
Subsequently, the substantive application in the judicial review proceedings was heard in this court by Kearns J. While the order of Kearns J. had not been put before the court, I understand that its effect was to quash the Minister’s approval order.
There is one further procedure in the background to these proceedings to which it is necessary to advert in order to give a complete picture. In line with the stance adopted by the Council and the State in the previous proceedings, the position of the defendants in these proceedings is that the strategy for the archaeological resolution of Carrickmines Castle as set out in the 1997 EIS envisaged the preservation by record of any archaeological features discovered on the line of the motorway and associated local roads, which I understand to mean full excavation and recording. It envisaged that areas not within the area of construction would be preserved in situ, although the evidence before the court indicates that preservation in situ may involve preservation under the roadworks when completed. In September, 2002 the Minister for Transport directed the modification to the design of a roundabout adjacent to a number of stone structures on the Carrickmines Castle site which were uncovered in the course of the archaeological works. In these proceedings evidence adduced by the Minister indicate that the purpose of the modifications was to allow the preservation in situ of these structures and of a feature which was highlighted in the earlier proceedings, a revetted fosse, where it runs under the roundabout. The modifications were the subject of an application for a direction by Stephen Deveney to An Bord Pleanála (the Board) under s. 50(1)(b) of the Act of 1993. Section 50(1)(b) provides:
“Where the Minister considers that any proposed road development (other than development to which paragraph (a) applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be likely to have significant effects on the environment, he shall direct the road authority to prepare an environmental impact statement in respect of such proposed road development and the authority shall comply with such direction.”
The functions of the Minister under s. 50(1)(b) were vested in the Board by
s. 215 of the Planning and Development Act, 2000. On 21st March, 2003 the Board decided not to direct the preparation of an environmental impact statement in respect of the proposed modifications to the approved road development. The reasons ascribed for the decision were that the modifications proposed –
(i) do not significantly alter the proposed road development from that previously approved and that the development remains in essence the same as that for which approval has previously be obtained, and
(ii) would not of themselves have significant adverse effects on the environment and, accordingly, do not comprise a project specified at para. 13 of Annexe II of Directive 85/337/EEC, as amended by 97/11/EC.
National Monuments (Amendment) Act, 2004
The National Monuments (Amendment) Act, 2004 (the Act of 2004) came into force on 18th July, 2004. It amends the Act of 1930 by substituting a new provision, set out in s. 5, for s. 14. It introduces a special provision in relation to the South Eastern Route, s. 8, which provides as follows:
“(1) The consent of the Minister under section 14 and any further
consent or licence under any other provision of the National Monuments Acts, 1930 to 2004 shall not be required in relation to the carrying out of any works affecting any national monument in connection with the completion of the South Eastern Route (as described in the Third Schedule of the Roads Act, 1993 (declaration of National Roads) Order 1994 (S.I. No. 209 of 1994) by Dun Laoghaire-Rathdown County Council but any such works shall be carried out on the directions of the Minister.
(2) In considering to issue directions under subsection (1) of this
section –
(a) the Minister is not restricted to archaeological
considerations but he is entitled to consider the public interest notwithstanding that such exercise may involve –
(i) injury to or interference with a national monument,
or
(ii) the destruction in whole or in part of a national monument,
(b) the Minister may have regard to the following to the extent that they appear to the Minister to be relevant in exercising discretion to issue directions in respect of a national monument:
(i) the preservation, protection or maintenance of the archaeological, historical or other cultural heritage or amenities of, or associated with the national monument,
(ii) the nature and extent of any injury or interference with the national monument,
(iii) any social or economic benefit that would accrue to the State or region or immediate area in which the national monument is situated as a result of the carrying out of the road development,
(iv) any matter of policy of the Government, of the Minister or of any other Minister of the Government,
(v) the need to collect or disseminate information on national monuments or in respect of heritage generally,
(vi) the cost implications (if any) that would, in the Minister’s opinion, occur from the issuing of a direction, or not issuing a direction, under subsection (1) of this section.
(3) Where an archaeological object is found as a consequence of work undertaken by Dun Laoghaire-Rathdown County Council relating
to work on the South Eastern Route, then section 8 of the National Monuments (Amendment) Act, 1994 shall not apply to the land or any premises under which or in the vicinity of which the archaeological object has been found.
(4) Section 50(1)(b) of the Roads Act, 1993 shall not apply in respect of the South Eastern Route.”
Section 9 of the Act of 2004 provides that the National Monuments Acts, 1990 to 1994 and the Act of 2004 shall be construed together as one Act. Section 3 of the Act of 2004 introduces a new definition of “Minister” for the purposes of the National Monuments Acts. The first named defendant is the relevant minister for the purposes of s. 8.
Events post the coming into operation of the Act of 2004
On 21st July, 2004 the Council applied to the Minister for directions under s. 8. The application set out the works which the Council, subject to the terms and conditions of any direction which the Minister might issue, proposed to carry out to the site of Carrickmines Castle. It was stated that the works in question are in respect of “outstanding archaeological resolution measures at the site”. Subsequently, by letter dated 12th August, 2004, the chief archaeologist in the National Monument Section of the Minister’s department agreed method statements submitted by the Council. On 5th August, 2004 the Council was informed that the Minister had issued directions “in respect of the remaining works as they affect any national monument” and the directions were set out in an appendix attached to the letter. In the appendix the directions were described as being for archaeological resolution of Carrickmines Castle site. The position of the State and the Council in these proceedings is that the directions relate solely to the archaeological mitigation of the site. They do not contain or involve any alteration, material or otherwise, to the road development approved under the Act of 1993. Works recommenced at Carrickmines Castle on 16th August, 2004. The position of the defendants is that the works in question are archaeological works and they were being carried out in accordance with method statements submitted by the Council and their archaeological consultants and approved by the National Monuments Section of the Minister’s department. Some method statements remain to be submitted by the Council.
These Proceedings
In these proceedings which were commenced on 18th August, 2004 the plaintiff seeks the following reliefs:
(1) A declaration that s. 8 of the Act of 2004 is invalid having regard to the provisions of the Constitution and, in particular, Articles 5, 10, 15 and 40 thereof.
(2) A declaration that s. 8 of the Act of 2004 is invalid and of no legal effect having regard to the provisions of European law and, in particular, the provisions of Directives 85/337/EEC, 97/11/EC, 2001/42/EC and/or 2003/35/EC, as amended. At the hearing it became clear that the plaintiff is only relying on the 1985 Directive and the 1997 Directive, which will be collectively referred to as “the Directive”.
(2)(A) In the alternative, a declaration that the directions of the Minister pursuant to s. 8 of the Act of 2004 are a nullity and of no effect and invalid by reason of the failure of the Minister to comply and/or to have regard to the requirements of the Directive in relation to environmental impact assessments.
(3) An injunction restraining the Council from demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering with a national monument, the property of the Council, being the remains of Carrickmines Castle.
On the same day, 18th August, 2004, the plaintiff issued a motion seeking an interlocutory injunction. By consent of the parties, it was ordered that the plenary hearing of the matter should commence on 26th August, 2005.
The Council has given an undertaking to the Court in the terms of the interlocutory injunction sought by the plaintiff pending this judgment.
Analysis of the relevant statutory provisions
Awareness of the importance of ancient monuments and historic sites and the desirability of preserving them for posterity is not a phenomenon of the 20th and 21st centuries. The earliest legislative provisions which protected ancient monuments in Ireland were contained the Ancient Monuments Protection Act, 1882. That Act enabled the appointment of the Commissioners of Public Works in Ireland as guardians of monuments to which the Act applied, with a duty to maintain the monument. It also empowered the Commissioners to purchase monuments and accept gifts or bequests of monuments. It provided a criminal sanction for injuring or defacing a monument. The monuments to which the Act applied were those listed in a Schedule to the Act “and any other monuments of a like character”. Among the ancient monuments in Ireland listed in the Schedule were Grianan Aileach, Staigue Fort, and Newgrange. Monuments which featured in litigation in the last three decades also featured: the earthworks on the Hill of Tara, the graves at Carrowmore and Knocknarea. By an amendment in 1892 the powers of the Commissioners under the Act of 1882 were extended to “any ancient or mediaeval structure, erection or monument, or any remains thereof” where the Commissioners were of opinion that preservation thereof was a matter of public interest by reason of the historic, traditional, or artistic interest attaching to it. There was a further amendment in 1910 which further extended the powers of the Commissioners.
The Act of 1930 repealed the Act of 1882 and the amending Acts. In its long title it was described as:
“An Act to make provision for the protection and preservation of national monuments and the preservation of archaeological objects in Soarstát Éireann and to make provision for other matters connected with the matters aforesaid.”
It defined the word “monument” and the expression “national monument”. When Dunne No. 1 was before the Supreme Court, although conceding that an arguable case had been made out for the proposition that Carrickmines Castle constituted a national monument, the Council denied that it was (see judgment of Hardiman J. at p. 572). When Mulcreevy was before the Supreme Court it was not in dispute that Carrickmines Castle is a national monument (see judgment of Keane C.J. at p. 419). In these proceedings it is accepted by the Council that certain remains of Carrickmines Castle constitute a national monument. The Minister admits that certain of the remains of the fortification structures come within the definition of national monument. In any event, the whole raison d’etre of s. 8 and the Minister’s directions thereunder is that the works to which they relate are works to a national monument.
In the context of these proceedings the most important provision of the Act of 1930 is s. 14. In outlining the background to these proceedings earlier, I have touched on the provisions of s. 14, as amended by s. 15 of the Act of 1994. The provisions as originally enacted, and the amendments wrought by the Act of 1994 were considered by Keane C.J. in Mulcreevy at pp. 430-432. For present purposes, suffice it to say that the amendment enacted in 1994 more rigorously controlled the granting of consent to the demolition, removal, disfigurement, defacement, alteration or any manner of injury to or interference with a national monument in the ownership or guardianship of the Commissioners of Public Works or a local authority or which was the subject of a preservation order. The breadth of discretion which had hitherto reposed in the statutory bodies in relation to the grant of consent was greatly curtailed and, where the activity proposed was not in the interests of archaeology or, in the opinion of the relevant Minister, expedient in the interests of public health or safety, the tacit approval of the Oireachtas was necessary. I use the expression “tacit approval” as shorthand for the requirement of laying a ministerial approval consent before both Houses of the Oireachtas while conscious of the fact that such a requirement was described as “something of a blunt instrument” by Keane J., in the Laurentiu case referred to later.
The structure of s. 14 as now contained in s. 5 of the Act of 2004 in broad outline is that s. 14 re-enacts the existing s. 14 with amendments, s. 14A introduces supplementary provisions in relation to road development, s. 14B augments s. 14A in dealing with directions which the Minister may make under s. 14A, and s. 14C deals with grant of consent in the interest of public health and safety.
Section 14 regulates activities in relation to national monuments of the type which were protected by the original s. 14: national monuments in the ownership or guardianship of the State or a local authority or which are subject to a preservation order. Broadly speaking the activities regulated are the activities regulated by s. 14 as originally enacted: demolition and so forth and injury or interference with the monument in any manner; excavation, digging and so forth; sale for exportation or exportation; and an additional category of activity, renovation and restoration, which was first introduced in 1987. Any of the foregoing activities are unlawful without a consent under sub-s. (2). Under sub-s. (2), the Minister is given a discretion to consent to the doing of any of the activities referred to in sub-s. (1). However, he is obliged to consult with the Director of the National Museum before granting consent. The consent may be subject to conditions and restrictions. The exercise of the discretion to grant consent is of the same amplitude as the consideration of the issuing of directions under s. 8(2)(a), which I have quoted earlier. Moreover, the Minister may have regard to the factors listed in s. 8(2)(b) to the extent that they appear to him to be relevant, subject to one variation: he may have regard to any environmental, cultural and recreational benefit that would accrue, in addition to any social or economic benefit as referred to in s. 8(2)(b)(iii). Subsection (5) of s. 14 renders it a criminal offence to contravene sub-s. (1), which is triable summarily or on indictment.
Section 14A would appear to reflect the experience of the State and local authority in relation to the South Eastern Route. The combined effect of sub-ss. (1) and (2) in relation to an approved road development is similar to the effect of s. 8(1) in relation to the South Eastern Route: consent under s. 14, any further consent or licence under the National Monuments Act is not necessary, but any works of an archaeological nature that are carried out must be carried out in accordance with the directions of the Minister. However, s. 14(2) contains a safeguard which is not found in s. 8(1): the Minister is obliged to consult with the Director of the National Museum before issuing directions. Sub-section (4) deals with the situation where a national monument is discovered in the course of the carrying out of an approved road development where neither approval under s. 51 of the Act of 1993 nor the environmental impact statement to which the approval relates deals with the national monument. In such case, there is a duty on the road authority to report the discovery to the Minister and to desist from works which would interfere with the monument except such as are urgently required to secure its preservation in accordance with such measures as may be specified by the Minister. The substantive provisions in relation to a discovery to which sub-s. (4) applies are contained in sub-ss. (4), (5), (6) and (7) of s. 14A and in s. 14B. Neither a consent under s. 14 nor any consent nor any licence under the National Monuments Acts (with one exception) is required. The Minister may, at his discretion, issue directions to the road authority concerning certain activities in relation to the monument – preservation, renovation or restoration, excavation and such like, recording it, and demolition, removal, alteration and any manner of injury or interference with it. There are a number of safeguards, however. The exercise of the discretion is subject to similar provisions as those set out in s. 8(2) in relation to the consideration of the issuing of directions under s. 8.
The exceptions and safeguards embodied in ss. 14A and 14B in relation to discovered monuments are as follows:
(1) A road authority is not absolved from obtaining a licence under s. 25 of the Act of 1930 as amended, which, in broad terms, is a licence to alter an archaeological object.
(2) The Minister is obliged to consult with the Director of the National Museum before issuing directions.
(3) Where the Minister has issued directions, he is obliged to inform the Board of those directions and of any change in the approved road development necessitated by the directions. The Board is required to determine, as soon as practicable, whether in consequence of the directions there is a material alteration to the approved road development. There appears to be a slight drafting infirmity in s. 14B(2). However, for present purposes, if the Board determines that no material alteration arises to the approved road development, it is obliged to so advise the road authority. Alternatively, if it determines that a material alteration arises, it is then obliged to further determine
(4) whether or not to modify the approval for the purposes of permitting any changes to the route or the design of the approved road development, and
(5) whether or not the material alteration is likely to have significant adverse effects on the environment.
Where it makes the determination that a material alteration is not likely to have significant effects on the environment, it is obliged to give its approval subject to any modifications and additions determined in accordance with (a). Where it makes the determination that a material alteration is likely to have significant adverse effects on the environment, then it is obliged to require the preparation of an environmental impact statement. The remainder of s. 14B contains provisions which govern the environmental assessment of the consequences of the directions and culminates either in –
(i) confirmation of the approved road development as affected by the directions, or
(ii) approval, with or without modifications, of a change to the approved road development, or
(iii) the refusal to confirm the approved road development as affected by the Minister’s directions (sub-s. (8)).
In the event of a refusal to confirm, the road authority is not obliged to comply with the directions.
Section 8 of the Act of 1994, which is referred to in s. 8(3) of the Act of 2004, provides that where the finding of an archaeological object has been reported to the Director of the National Museum he, or a designated person on his behalf, may inspect the locus of the find and do all things as may be reasonably necessary for performing his functions under the National Monuments Acts, including excavation where he considers that an archaeological object, or the site thereof, is in immediate danger of destruction or decay.
Effect of Section 8
On its proper construction, in my view, the effect of s. 8 is that, insofar as any works necessary in connection with the completion of the South Eastern Route impact on Carrickmines Castle, such works are totally free from regulation under the National Monuments Acts other than the provisions of sub-ss. (1) and (2) of s. 8. The only regulation which may be imposed under sub-ss. (1) and (2) is that any such works must be carried out on the directions of the Minister.
It was submitted on behalf of the Minister that he has a discretion as to whether he makes directions under s. 8 or not, a construction with which counsel for the plaintiff agreed. On this construction, it was submitted on behalf of the Minister, that if the Minister chose not to make directions, or, alternatively, if the directions which he made on 5th August, 2004 were found to be invalid, the Council would have a carte blanche as to how it would carry out such works. I do not accept that proposition. It is expressly mandated in sub-s. (1) that such works “shall be carried out on the directions of the Minister.” It is implicit in subs. (1) that the Minister must give directions. Absent directions of the Minister, in my view, there would be a lacuna which would prevent the completion of the South Eastern Route. Accordingly, in the event that the directions which were made on 5th August, 2004 being invalid, the Minister would be constrained to make valid directions. That the Minister was not intended to have a discretion under s. 8(1) as to whether to issue or not to issue directions, in my view, is borne out by the terms in which subs. (2) introduces the scope of his obligation – “in considering to issue directions…”. Neither the reference to the exercise of his “discretion” in s. 8 (2) (b) nor the reference to the cost implications of not issuing a direction in sub-para (vi) of para (b) that subsection bears out the contention of all the parties that the Minister is not obliged to issue directions. In my view, those references relate to the contents of the directions. Even if I am wrong in interpreting s. 8 (1) as imposing an obligation on the Minister, that does not affect any of the conclusions which I reach later in this judgment.
Although the Minister must issue valid directions if such are necessary for the completion of the South Eastern Route, which clearly is the case, his consideration as to the content of the directions is untrammelled by archaeological considerations even to the extent that he may direct the destruction in whole or in part of the national monument at Carrickmines Castle, taking account of the public interest.
As a matter of construction, no part of s. 14, as now contained in s. 5 of the Act of 2004, governs the completion of the road development the subject of s. 8. Failure by the Council to comply with directions given under s. 8(1) would not constitute an offence under s. 14(5). Counsel for the Minister explained the rationale underlying the absence of a criminal sanction in s. 8 by submitting that the Council, being a creature of statute, may not do what it is not statutorily empowered to do.
By comparison to the situation which prevailed under s. 14, as originally enacted and amended by the Act of 1994, and given that the order of 1996 struck down in the Mulcreevy case was ultra vires, from the perspective of the preservation and protection of a national monument, the completion of the road development works in connection with the South Eastern Route under s. 8 is virtually uncontrolled in that –
(a) the Council, the landowner, does not need the consent of any distinct and independent statutory body to the carrying out of the works, nor is the approval of a third independent statutory body necessary, nor is the tacit approval of both Houses of the Oireachtas necessary,
(b) there is no requirement to obtain a licence under s. 25 or s. 26 of the Act of 1930 which might otherwise be necessary,
(c) the statutory measure to safeguard the locus of an archaeological find provided for in s. 8 of the Act of 1994 is dissapplied, and
(d) disapplication of s. 50 (1) (b) of the Act of 1993 precludes the Board from considering whether the completion of the development works would be likely to have a significant effect on the environment and of considering whether to direct an environmental impact statement.
Of course, as against the foregoing deregulation, and, in particular, the lack of requirement for the tacit approval of both Houses of the Oireachtas, the Oireachtas has expressly sanctioned the regulation of the national monument aspects of the completion of the South Eastern Route by the Minister solely.
Further by comparison to the manner in which national monument considerations in connection with future road development will be regulated in accordance with s. 14(A) and (B), the completion of the South Eastern Route in accordance with s. 8 is virtually bereft of independent safeguards, in that neither the Director of the National Museum nor the Board has or will have, any function, although, as regards the Board, this comment must be qualified by a recognition (without, of course, making any finding) of the improbability of the scenario such as provided for in s. 14(A)(4) (the discovery of a national monument which has not been dealt with in the 1997 EIS) arising in relation to the South Eastern Route given the degree of archaeological investigation which has taken place at Carrickmines Castle and in the development area in general to date. Further, national or local environmental, cultural or recreational consideration need not play any part in the Minister’s deliberations under s. 8.
On its face, when considered in the context of the entire National Monuments Acts code and, in particular the provisions of the Act of 2004, in my view, the meaning and effect of s. 8 is absolutely clear. The history of the South Eastern Route, which is partially recounted earlier, leaves one in no doubt as to the policy by which the enactment of s. 8 was driven. It was to ensure the completion of the South Eastern Route without any input in relation to national monument protection implications from any party external to the Minister and his advisors and the Council and its advisors. Prima facie, the Oireachtas has given statutory force to that policy in s. 8. What this case is about is whether that was permissible having regard to the Constitution and European Union law. The answer turns primarily on legal issues.
The evidence
No oral evidence was adduced at the hearing of the action. As I understand the position, the question of evidence was not addressed on 19th August, 2004 when, by agreement of the parties, the matter was listed before full plenary hearing one week later, although a time frame was imposed on the parties in relation to pleading and suchlike.
At the hearing, the following affidavits were open to the court by consent of the parties:
(a) On behalf of the plaintiff, an affidavit of the plaintiff, an affidavit of John D. Prynce, who observed the works being carried on at Carrickmines Castle on 16th August, 2004 and three affidavits of Dr. Mark Clinton, an archaeologist, who was a site director for Phase 1 of the archaeological investigations at Carrickmines Castle;
(b) On behalf of the Minister and other State defendants, an affidavit of Kevin Cullen, Principal Officer in the National Monuments section of the Minster’s department, which dealt with, inter alia, the factual background; and
(c) On behalf of the Council, affidavits of Rory O’Sullivan and Michael Noonan, engineers involved in the road development works and two affidavits of Gary Conboy, an archaeologist, who is now the Site Director at the Carrickmines site on behalf of Valerie J. Keeley Limited, who are the archaeological consultants to the Council.
The court was referred to order 39, rule 1 of the Rules of the Superior Courts, 1986 which provides as follows:
“In the absence of any agreement in writing between the solicitors of all parties, and subject to these rules, the witnesses at the trial of any action…shall be examined viva voce and in open court, but the court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable….”
All of the parties were agreed that the matter should be heard on affidavit evidence. While conflicts of evidence were disclosed on the affidavits, because of the course adopted by the defendants in their pleadings, the issues of fact which arise for determination are minimal.
It is appropriate to record that there was a conflict between the archaeological experts, Dr. Clinton and Mr. Conboy, as to the best way forward from an archaeological point of view. What constitutes best archaeological practice in relation to the management of the Carrickmines Castle site having regard to the current state of knowledge as to its significance is not a matter for determination by the court.
Although the matter proceeded on affidavit, counsel for the plaintiff laid particular emphasis on the third affidavit of Dr. Clinton sworn on 27th August, 2004, the second day of the hearing, to which I will return later. Counsel for the plaintiff proffered Dr. Clinton for cross-examination on that and his other affidavits. The defendants did not avail of the opportunity to cross examine Dr. Clinton or seek to respond, by affidavit or otherwise to the facts deposed to in the affidavit of 27th August, 2004.
E.U. Law Challenge
In outline the contention of the plaintiff is that s. 8 is incompatible with European Union Law in failing to require the Minister to consider whether an environmental impact assessment is necessary in accordance with the provisions of the Directive and to carry out such an assessment in accordance with those provisions before issuing directions. In the alternative, the plaintiff contends that the directions given on 5th August, 2004 and the method statement agreed on 12th August, 2004 are invalid by reason of the failure of the Minister to comply with the provisions of the Directive.
The provisions of the Directive which are of particular relevance in the context of the issues which arise in these proceedings are as follows:
Article 1(2), which contains definitions.
“Project” is defined as meaning the execution of construction or other installations or schemes and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources. In the case of a public project “developer” means the public authority which initiates the project. The expression, “development consent” is defined as meaning:
“…the decision of the competent authority or authorities which entitle the developer to proceed with the project”.
Article 1(5), which exempts from the Directive-
“…projects, the details of which are adopted by a specific act of national legislation, …”
The rationale for the exemption is set out in Article 1(5) is that the objectives of the Directive, including the supplying of information are achieved through the legislative process.
Article 2(1), which is now contained in Article 1(1) of the 1997 Directive, which provides as follows:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4”.
Article 3, which is now contained in Article 1(5) of the 1997 Directive, and provides:
“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
– human beings, fauna and flora;
– soil, water, air, climate and the landscape;
– material assets and the cultural heritage;
– the interaction between the factors mentioned in the first, second and third indents.”
Article 4, which is now contained in Article 1(6) of the 1997 Directive. Article 4(1) makes it mandatory to conduct an environmental impact assessment in the case of the projects listed in Annex I. Motorway construction is included in Annex I. Article 4 (2) provides that for projects listed in Annex II the Member State shall determine through –
(a) a case-by-case examination or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Article 5 to 10.
Point 13 in Annex II refers to
“any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed which may have significant adverse effects on the environment”.
Article 4 (3) provides that when a case-by-case examination is carried out or thresholds or criteria are set, the relevant selection criteria set out in Annex III shall be taken into account. Annex III under the heading, “Location of Projects” requires that the environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard, in particular, to the factors listed, including, “landscapes of historical, cultural or archaeological significance”. Under the heading of “Characteristics of Potential Impact”, Annex III requires that the potential effects of projects be considered in relation to the criteria previously set out and having particular regard to, inter alia, the reversibility of the impact.
In the case of motorway and certain road development the provisions of the Directive are transposed into Irish law by ss. 50 and 51 of the Act of 1993. As has been previously stated, since the enactment of the Planning and Development Act, 2000 the decision maker as to whether an environmental impact statement should be prepared is the Board. Prior to that change, an environmental impact assessment was carried out in relation to the South Eastern Route scheme under s. 51, in tandem with the approval of the road scheme under s. 49, the relevant orders being dated 19th October, 1998 referred to earlier. Those orders cannot now be challenged, nor can the determination of the Board of 21st March, 2003 referred to earlier. It was submitted on behalf of the Minister that there is implicit in the plaintiff’s case a challenge to the adequacy of the environmental impact assessment carried out in 1998. Counsel for the plaintiff resolutely rejected this argument. In my view, no such challenge is implicit in these proceedings.
The plaintiff’s challenge to s. 8 and the directions made thereunder is predicated on the following propositions:
(1) That the works referred to in s. 8 (1) – “works affecting any national monument in connection with the completion of the South Eastern Route.” – constitute a project within Article 4 (2) in respect of which there is an obligation on the State to adopt the measures prescribed in the Directive. As I understand it, this proposition is founded entirely on point 13 of Annex II.
(2) That the directions made on 5th August, 2004 constitute a development consent as defined in the Directive.
It seems to me that in analysing the authorities cited by counsel and in applying the relevant principles to the factual situation in relation to Carrickmines Castle, it is not always possible to treat these propositions as being mutually exclusive.
Two of the authorities cited arose from a U.K. statute of 1991 which required owners of old planning permissions in relation to quarries and mining to apply within a stipulated period to the local mineral planning authority (MPA) for registration of the old permission and for determination of conditions to which the planning permission would thereafter be subject, failing which the old permission would cease to have effect.
The decision of the House of Lords in Reg. v. North Yorks. C.C., ex p. Brown [2000] 1 AC 397 concerned a planning permission dating from 1947 in relation to a quarry in Yorkshire which was located near a designated conservation area. The relevant MPA registered the permission under the 1991 statute and, after initiating a consultation process, determined the conditions. The applicants were local landowners who sought, by way of judicial review, a declaration that the determinations were unlawful on account of the failure of the MPA to conduct an environmental impact assessment in accordance with the Directive. The issue before the House of Lords was whether the determination of the conditions was a development consent. Quarrying falls within Annex II of the Directive. Lord Hoffman, having observed that the source of the developer’s right to proceed with the project was and remained the planning permission of 1947, even after conditions had been imposed, but that, nonetheless, the developer could not proceed unless the planning authority had determined the appropriate conditions, continued as follows (at page 404):
“So that although the determination does not decide whether the developer may proceed but only the manner in which he may proceed, it is nevertheless a necessary condition for his being entitled to proceed at all.
Is this sufficient to bring it within the European concept of a development consent? I think it is. The purpose of the Directive, as I have said, is to ensure that planning decisions which may affect the environment are made on the basis of full information. In Aannemersbedrijf P.K. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] E.C.R. 1-5403, 5444, para. 3 the European Court of Justice said that ‘the wording of the Directive indicates that it has a wide scope and a broad purpose.’
A decision as to the conditions under which a quarry may be operated may have a very important effect on the environment …
The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken. In such a case, the environmental impact assessment (if any) would have been made at the earlier stage and no further assessment would be required…
The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given….
It [the principle] seems to me, clear, however, that it can have no application to this [case]. The procedure created by the Act of 1991 was not merely a detailed regulation of a project in respect of which the substantial environmental issues had already been considered. The purpose of the procedure was to give the mineral planning authority a power to assess the likely environmental effects of old mining permissions which had been granted without, to modern ways of thinking, any serious consideration of the environment at all. It is true that the power to deal with these effects was limited to the imposition of conditions rather than complete prohibition. But the procedure was nevertheless a new and freestanding examination of the issues and could therefore, in my opinion, require the information provided by an environmental impact assessment. It was therefore a ‘development consent’ within the meaning of the Directive.”
A similar issue arose in Wells v. Secretary of State for Transport, Local Government and the Regions (Case C- 201/02) in which, on a reference from the English High Court, the European Court of Justice gave judgment on 7th January, 2004. The factual situation in this case was slightly more complex. It also concerned a 1947 planning permission in relation to a quarry in an environmentally sensitive area. In 1991 the owner of the quarry procured its registration under the Act of 1991 and he followed this with an application to the competent MPA to determine the new planning conditions. By a decision in 1994 the MPA imposed conditions. These were more stringent than had been submitted by the owners of the quarry, who appealed to the Secretary of State. By a decision of 1997 the Secretary of State imposed planning conditions, leaving some matters to be decided by the competent MPA. Those matters were approved of by the competent MPA by a decision of 1999. In its judgment the European Court referred to the decision of the Secretary of State of 1997, together with the decision of the MPA of 1994 as “the decision determining the new conditions” and the subsequent decision of the MPA in 1999 as “the decision approving matters reserved by the new conditions.” Neither the MPA nor the Secretary of State had carried out an environmental impact assessment pursuant to the Directive. At no stage was a formal environmental impact statement considered. The issue of the admissibility of the questions as to whether the decisions in question could be classified as a development consent was raised. The Court held that the questions were admissible (para. 38). On the substance of the questions, it stated as follows at paras. 44 to 47 inclusive of its judgment.
“44. In the main proceedings, the owners of Conygar Quarry were obliged under the Planning Compensation Act 1991, if they wished to resume working of the quarry, to have the old mining permission registered and to seek decisions determining new planning conditions and approving matters reserved by those conditions. Had they not done so, the permission would have ceased to have effect.
45. Without new decisions such as those referred to in the previous paragraph, there would no longer have been consent, within the meaning of Article 2 (1) of Directive 85/337, to work the quarry.
46. It would undermine the effectiveness of that directive to regard as mere modification of an existing consent the adoption of decisions which, in circumstances such as those of the main proceedings, replace not only the terms but the very substance of a prior consent, such as the old mining permission.
47. Accordingly, decisions such as the decision determining new conditions and the decision approving matters reserved by the new conditions for the working of Conygar Quarry must be considered to constitute, as a whole, a new consent within the meaning of Article 2 (1) of Directive 85/337, read in conjunction with Article 1 (2) thereof.”
The Court recognised that, as the consent procedure comprised several stages, to provide the referring court with a complete answer as regards the obligation created by the Directive, it was necessary to consider the question as to when the assessment must be carried out. The Court answered this question in paragraphs 50 to 52 of its judgment as follows:
“50. As provided in Article 2 (1) of Directive 85/337, the environmental impact assessment must be carried out before consent is given.
51. According to the first recital in the preamble to the directive, the competent authority is to take account of the environmental effects of the project in question at the earliest possible stage in the decision-making process.
52. Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.”
Counsel for the State emphasised two features which distinguish the Brown and Wells cases on the facts from this case: both Brown and Wells concerned very old planning permissions, in both cases permissions which were over 40 years old; and there had been no environmental impact assessment of any sort in either case when the permissions were granted. A case based on facts which, in some respects, are akin to circumstances in this case, which was relied on by counsel for the Minister, was R (Prokopp) v. London Underground Limited [2004] 1 P. & C.R. 31 479, a decision of the English Court of Appeal. In that case, the respondent, London Underground Limited had planning permission for the construction of a railway line extension, referred to as “ELLX”. It was not in dispute that a proper environmental impact assessment and consultation process in accordance with the Directive had taken place prior to the coming into existence of the planning permission. The respondent commenced construction works in breach of a condition of the permission. The permission lapsed. However, the respondent was unwilling to submit any new planning application because of the probability of delay and the risk of losing funding. The condition which had been breached could fairly be described as creating a “catch 22” type situation. It provided that the development was not to commence until certain lands were landscaped for use as open space; the landscaping could not be carried out until a railway station was closed; but that could not sensibly be done until ELLX was completed. In those circumstances, the relevant Borough Councils entered into an agreement with the respondent, and passed resolutions, not to take enforcement action in respect of the breach of condition. The appellant, Mr. Prokopp was interested in a goods yard, which contained a viaduct which had recently been listed as a building of architectural interest. He sought to have the respondent’s decision to demolish part of the yard and the decisions of the Borough Councils to refrain from taking enforcement action quashed by way of judicial review. He argued that the resolutions of the Borough Councils not to take enforcement action amounted to a development consent, which could only been granted after a full environmental impact assessment. The Court of Appeal rejected that argument. In his judgment, (at page. 495), Buxton L.J. said:
“In our case, both in law and in common sense terms, the “project” is the whole of the ELLX. For that reason…the fact that by a rule of domestic law of a particular member state further permission is required in the course of the project though for reasons unconnected with its environmental impact, does not mean that the granting of such permission must be treated as a “development consent”. Indeed, quite the reverse. The relevant and only consent in terms of the Directive was the original decision that permitted the project to go forward in the first place.
Further, it is even less likely that not a formal permission in the course of the project, but what we have here, a failure to interrupt the project, is a development consent in terms of the Directive. Both [counsel] pointed to aspects of the wording of the Directive that supported that view. Thus such a failure does not entitle the developer to proceed, but merely leaves him to proceed at his peril. They said that it was difficult or impossible to fit that circumstance into not merely the formal wording but also the scheme of the Directive which requires the consent to be proceeded by a detailed application. No such “application” in the terms envisaged by the Directive was made or would be appropriate, or, indeed, comprehensible where what was sought was an assurance that enforcement action would not be taken.”
Counsel for the Minister submitted, by way of general observation, that there is no authority for an interpretation of the Directive which necessitates an extra environmental impact assessment if extra information in relation to environmental issues comes to hand, or for successive assessment in relation to the same project. If the Directive was open to such interpretation, when would there be an end to the requirement for assessment, he asked rhetorically. The requirement of the Directive, it was submitted, is for an environmental impact assessment which is a single process and which precedes the planning or development decision. The purpose of the environmental impact statement is to inform the decision maker. It is not an end in itself. Counsel laid particular emphasis on the following passage from the speech of Lord Hoffman in Berkeley v. Secretary of State for the Environment [2001] 2 AC 603 at page 617:
“A point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language.”
Counsel for the Minister also pointed to the decision of the Board on Mr. Devaney’s application as being instructive.
It seems to me that in determining whether the plaintiff has established that the measures provided for in s. 8 fail to give effect to the requirements of, and are compatible with, the Directive, the two key questions are the following:
(1) Has the plaintiff established that the approved road development has been altered or extended in a manner which may have adverse effects on the environment?
(2) Has the plaintiff established that it is the directions issued by the Minister pursuant to s. 8 that now entitle the Council to proceed with an approved road development.
On the first question, it is the change in the body of knowledge in existence as to the historical and archaeological significance of the Carrickmines Castle site between 1997 and 1998, when the 1997 EIS was prepared and the order was made under s. 51 of the Act of 1993, and August 2004, when the Minister made the directions, which the plaintiff contends brings the matter within the ambit of point 13 of Annex II. The Minister has, in effect, admitted that such a change has occurred in his defence in that he has pleaded as follows:
“The extensive excavations have uncovered a series of outer defence ditches or fosses into which the local river may have been diverted so as to create water filled moates and a section of medieval wall and other medieval structures. The substructure of various buildings were also revealed including what may potentially be the remains of the castle chapel, workshops, kilns, wells and store rooms. A large volume of pottery pieces, coins, worked flints and leather footwear were also discovered, as well as human remains. The extensive excavations have not unearthed the foundations of the castle proper, nor any associated internal areas of habitation.”
The Minister makes the point that the excavation was prescribed as part of the mitigation measures under the environmental impact assessment process. Counsel for the Minister suggested that there is a certain irony in this.
In Dr. Clinton’s uncontroverted affidavit of 27th August, 2004 it is averred that what was known by the Minister on 5th August, 2004 was, in archaeological terms, radically different from the state of knowledge reflected in the 1997 environmental impact statement, as approved by his predecessor on 19th October, 1998. I find as a fact that there has been a radical change. In particular, the extent of the revetted fosse was not known. It is not in dispute, that in consequence of the works, a large part of that fosse would seek to exist.
However, I believe that there is a fault line running through the plaintiff’s contention that there is a necessity for a further environmental impact assessment because of this change in that it seems to me that two concepts are conflated: archaeological assessment and the assessment of the environmental effects generally. It is clear that what the Directive envisages is that the environmental impact statement should be based on current knowledge at the time of its preparation. The fact that, as happened here, in consequence of the steps taken on foot of the environmental impact assessment there is a considerable accretion to that knowledge, does not, of itself, change the project.
The project is the road development. Section 8 does not empower the Minister to change the project, and, as a matter of fact, the directions have not changed the project. Accordingly, the answer to the first question is negative.
In relation to the second question, it is the orders of 19th October, 1998 which entitle the Council to proceed with the project, which is the road development, not anything contained in or done pursuant to s. 8. It was submitted on behalf of the Minister that the constraints imposed by the National Monuments code, including s. 8, are an extra layer of regulation separate and distinct from the regulatory regime to which planning and development decisions give effect. In the context of the application of the Directive, in my view, that submission is correct, even if, in the case of s.8, it is less rigorous than the layer of regulation provided for in s. 14A. I think that this becomes obvious if one considers what would have been the position if, say, early in 2003 the provisions of s. 14 of the Act of 1930, as amended, had been properly complied with, but on the basis that the relevant functions were exercisable without regard to the changes purported to be effected by the order of 1996. If the necessary consent and approval of the consent, including the tacit approval of both Houses of the Oireachtas, had been properly put in place, in my view, it could not be seriously contended that it was compliance with the requirement of s. 14 which enabled the road development to proceed. The fact that a multiplicity of functions under various enactments are reposed in the same member of the Executive, the Minister, may give rise to an incorrect perception as to the source of the authority to complete the South Eastern Route. If that is the case, the following passage from the judgment of Hardiman J. in Dunne No. 1 should dispel the perception:
“No doubt, it is a somewhat odd position that a Minister with an interest in the road building programme is the person who requires to give consent under the National Monuments Act, even in relation to a monument whose removal or alteration, in whole or in part, is proposed for road building purposes. However, the Court must presume that the Minister would correctly direct himself, if asked for a consent under s. 14, that he was then discharging a freestanding statutory function to which many of the considerations which properly influenced him in other capacities were irrelevant or improper to consider.”
On the basis of the foregoing answers to what I consider to be the two key questions, I conclude that the works regulated in accordance with s. 8 do not fall within the ambit of point 13 of Annex II and that the directions which have been issued by the Minister under s. 8 do not constitute a development consent and, accordingly, that the implementation of the directions will not contravene the Directive.
In the light of the conclusions I have reached in relation to the applicability of the Directive to the procedure provided for in s. 8, it is unnecessary to consider the alterative argument advanced on behalf of the Minister that the Directive does not apply to the works the subject of s. 8 by virtue of Article 1 (5) because the environmental impact of those works has been considered as part of the legislative process in the Dáil and Seanad. I would merely comment that this argument is advanced on the basis that the works do constitute a project, which is totally at variance the primary submission made on behalf of the Minister.
Finally, it is not necessary to consider what the appropriate remedy would be if s. 8 was found to be in conflict with the Directive.
Application for reference
At the hearing, counsel for the plaintiff requested the court to refer the question whether the giving of directions by the Minister pursuant to s. 8 is a development consent for the purposes of the Directive to the European Court of Justice under Article 234 E.C. for a preliminary ruling. At the end of the hearing, draft questions were submitted. The formulation of the questions was not debated at all at the hearing and I make no comment on them. It was submitted on behalf of the Minister that this court does not need the assistance of the European Court on any question of interpretation of Community law and that the decision of the European Court in Wells gives sufficient guidance.
In Wells, in concluding that the question whether the decision determining the new conditions and the decision approving matters reserved by the new conditions constituted a development consent within the meaning of Article A 1 (2) of the Directive was admissible, the European Court stated at (para. 37):
“The question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Article 1 (2) of Directive 85/337 is a question concerning the interpretation of Community law. The Court has consistently held that, in light of both the principle that Community law shall be applied uniformly and the principle of equality, the terms of a provision of community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope is normally given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question…”
As is clear from the portions of the judgment of the Court which dealt with the substantive issue, which I have quoted earlier, it was held that, as a matter of Community law, the new decisions constituted a development consent because they replaced not only the terms but the very substance of the prior consent, the 1947 permission. As a matter of fact the directions made by the Minister neither replace nor alter the approved road development. Whether the consent procedure for projects which fall within the ambit of the Directive is to be carried out in several stages is determined in accordance with national law. As Hardiman J. pointed out in Dunne No. 1, the Minister’s function in relation to regulating interference of national monuments is a freestanding function. Directions given under s. 8 are not a stage of the consent procedure for the implementation of the South Eastern Route scheme.
Accordingly, on the basis that the proper interpretation and application of Community law is clear, I do not accede to the application for a reference under Article 234 E.C.
Constitutional challenge in outline
In asserting that s. 8 is invalid having regard to the provisions of the Constitution, the plaintiff advanced two separate and discrete bases of alleged repugnancy:
(1) That in vesting in the Minister the power to make directions, s. 8 is in conflict with Article 15.2;
(2) That s. 8 is in conflict with the duties and rights recognised and protected by the combined effect of Articles 5, 10 and 40.
I propose to deal with each of these distinct challenges separately.
Section 8, being a provision of a post 1937 statute, carries a presumption of constitutionality.
CHALLENGE BY REFERENCE TO ARTICLE 15.2
Article 15.2 provides as follows:
“1° Sole and exclusive power of making laws for the State is hereby invested in the Oireachtas: no other legislative authority has power to make laws for the State.
2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.”
The plaintiff’s challenge founded on Article 15.2 was directed to the power conferred by s. 8 to the Minister to issue directions in relation to the carrying out of works to which s. 8 relates. That power, it was contended, is an impermissible delegation to the Minister contrary to Article 15 (2) in that –
(a) the Minister is empowered to issue directions which are inconsistent with the principles and policies enshrined in the National Monuments Acts 1930 – 2004, namely that the code thereby created is for the protection, preservation and safeguarding of the historical, architectural, traditional, artistic and archaeological heritage of the State,
(b) paragraph (a) of subs. (2), in not confining the Minister to consideration of archaeological issues but in allowing him to take into account the public interest notwithstanding that the destruction in whole or in part of a national monument may ensue, does not provide any guiding principle or policy by which he is obliged to balance the public interest and the underlying principles and policies of the code,
(c) paragraph (b) of subs. (2) gives the Minister power to act at large and in a manner unrelated to and incompatible and inconsistent with the principles and policies underlying the code, and
(d) the Minister is empowered to act on the basis of a range of criteria, including unspecified policies of the Government or of any other Minister, and no guidance is given as to how the various criteria are to be prioritized or weighed in the balance.
The response of counsel on behalf of the Minister and the other State parties was that the plaintiff’s reliance on Article 15.2 was misconceived. The jurisprudence invoked by the plaintiff was concerned with delegated legislation. Section 8 does not give rise to delegated legislation at all. Rather it is concerned with the making of an administrative decision – the giving of directions. In exercising his power under s. 8 the Minister exercises a statutorily conferred discretion. The exercise of that discretion is open to challenge by way of judicial review. A secondary response was that, in any event, the principles and policies governing the making of directions are clearly set out in s. 8: the legislature has provided that the desirability of preservation must yield to the exigencies of the common good, including the public interest in socially or economically beneficial development.
The classical exposition of the permitted parameters of delegated legislation under Article 15.2 is the following passage from the judgment of O’Higgins C.J. in Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381 (at pp. 398/399):
“The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern state. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This maintains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within permitted limits – if the law is laid down in the statute and the details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”
Counsel for the Minister laid particular emphasis on the reference in the above quotation to the giving of powers to a designated Minister “to make regulations or orders”.
More recently, the test to be applied in determining whether delegated legislation comes within the boundaries stipulated in Article 15.2 was considered by the Supreme Court in two cases in which the constitutionality of s. 5 (1) of the Aliens Act, 1935 was at issue.
In the earlier of the two, Laurentiu v. the Minister for Justice [1999] 4. I.R 26 the provision at issue was paragraph (e) of s. 5 (1). The subsection provided that the relevant Minister might, if and whenever he should think proper, do by order (an aliens order) all or any of the things set out in the succeeding paragraphs in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens. The matter covered by paragraph (e) was to –
“make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Éireann and provide for and authorise the making by the Minister of orders for that purpose.”
It was held by the majority of the Supreme Court, following the Cityview Press decision, that the Oireachtas was the sole body with power to legislate and it was for the Oireachtas to establish the principles and policies of legislation. Administrative, regulatory and technical matters only might be delegated. The principles and policies test was to be applied in accordance with constitutional presumptions as to the interpretation of legislation and that the actions of ministers and officials were presumed to be constitutional. The test to be applied was whether that which was challenged as an unauthorised delegation of parliamentary power, was more than the mere giving effect to principles and policies contained in the statute itself. If so then it was not authorised. A special feature of the power under consideration was that the power to expel or deport aliens inhered in State as a sovereign state and not because it had been conferred on particular organs of the State by statute. The power to deport aliens was of an executive nature as it could be exercised by the executive in the absence of legislation. In setting out her conclusions, Denham J. stated (at page 63) that the legislature had grasped the power over aliens from the executive and then delegated inadequately to the Minister. It had abdicated its power. Earlier (at p. 62) she had stated that principles and policies such as those discussed in the Cityview Press case were not present. Standards, goals, factors and purposes such as those set out in Mistretta v. United States (1989) 488 U.S. 361 were absent.
The provision at issue in the later case, Leontjva v. DPP and Ors., in which judgment was delivered by the Supreme Court on 23rd June, 2004, was paragraph (h) of s. 5 (1) which empowered the relevant Minister to –
“require such aliens to comply, while in Saorstát Éireann, with particular provisions as to registration, change of abode, travelling, employment, occupation and other like matters.”
In his judgment, Keane C.J. distinguished the decision in the Laurentiu case in the following passage:
“In Laurentiu where the constitutional validity of s. 5 (1) (e) was in issue, the majority were of the view that, in delegating to the Minister the exclusive power of making provision for the exclusion or deportation of aliens (including aliens of a particular nationality), the legislature had abdicated its policy making rule in the entire area of exclusion and deportation to the Minister. In my judgment in that case, I emphasised that the provision under attack could not be construed as a formulation of the policy of the State in relation to the exclusion and deportation of aliens, leaving the detailed aspects of the policy to be filled in by subordinate legislation. Since the right to exclude and deport aliens derived from the character of Saorstát Éireann as a sovereign state, it was not vested in the State by virtue of the 1935 Act. It followed that the only policy being implemented by the 1935 Act and the delegated legislation purportedly made thereunder was the regulation of the exercise of that sovereign power by the executive. Conferring the exclusive right so to regulate its exercise on the Minister was not the choice of a particular policy by the legislature: it was the assignment by the executive to the legislature of exclusive responsibility for determining policy in that specific area, including decisions as far reaching as the exclusion from the State of all persons of a particular nationality.
No such considerations, in my view, arise in the case of s. 5 (1) (h). The policy enunciated is plain: the desirability of regulating the registration, change of abode, travelling, employment and occupation of aliens while in the State and the further desirability of regulating ‘other like matters’.
The court held that s. 5 (1) (h) was not inconsistent with Article 15.2.”
In Casey v. Minister for Arts [2004] 2 ILRM 260 the Supreme Court considered a challenge to the lawfulness of an administrative scheme which regulated access to Skellig Micheál, a national monument in the ownership of the Minister by commercial boat operators. The constitutionality of a statutory provision delegating power was not at issue. The argument was that the administrative scheme failed to meet the test laid down by the Supreme Court in the Cityview Press case. In dealing with this argument, Murray J., as he then was, stated as follows as p. 277:
“The fundamental issue in this case therefore remains whether in introducing a system for the grant of permits of certain boat operators by way of administrative arrangements the respondent was acting intra vires her powers and obligations under the National Monuments Acts, 1930 – 1974. Although there are parallels to be drawn between the criteria which may be applied to ascertain whether an administrative act by a Minister in the carrying out of his or her statutory functions falls properly within the ambit of his/her statutory powers and the exercise of a delegated power to make legislation, such as the principles and policies criteria, the question of whether what the respondent did in this case involved an unconstitutional delegation of power to legislate or the exercise of a delegated legislative function in an unconstitutional manner does not arise. We are not concerned here with the making or the enforcement of a legislative instrument. The preservation and protection of national monuments is quintessentially an administrative matter to be achieved by implementing policy decisions.”
In my view, the primary submission made on behalf of the Minister and the other State parties is correct: s. 8 does not confer any power to make law on the Minister. What it does is to confer power on him to do administrative acts – to issue directions for the carrying out of the works to which the section applies. Indeed, on the basis of what I believe to be the correct construction of s. 8, it mandates him to do administrative acts.
It is clear on the face of s. 8 what the policy of the Oireachtas is in relation to the completion of the South Eastern Route. As I have already stated, it is to ensure its completion without any input in relation to national monument implications from any party external to the Minister and his advisors and the Council and its advisors. The manner of implementation of that policy is set out in s. 8. It is that the works affecting the Carrickmines Castle site will be carried out by the Council on the directions of the Minister. The implementation of this policy undoubtedly effects a change in the law. Moreover, it creates special legislative arrangements in relation to a segment of the South Eastern Route. It is undoubtedly within the competence of the Oireachtas under Article 15.1 to make such a law, assuming it does not infringe any other provision of the Constitution.
The policies and principles by reference to which the directions are to be issued are stipulated in s. 8. Paragraph (a) of subs. (2) defines the scope of the directions. Paragraph (b) sets out the criteria which may inform the Minister’s decision. While the Minister is given a wide discretion both in terms of the scope of the directions and the criteria to which he may have regard, assuming again that no other provision of the Constitution is infringed, it is within the competence of the Oireachtas under Article 15.2 to make a law giving such a wide discretion. It is presumed, of course, that the discretion will be exercised in a constitutional manner.
If, by reference to the judgment of O’Higgins C.J. in the Cityview Press case, a question is posed as to where and by what authority the law which implements the obvious policy in relation to the completion of the South Eastern Route was made, in my view, there can be only one answer. It was made in Leinster House and signed into law in Áras an Uachtarán and it was made on the authority of the Oireachtas.
Accordingly, I am satisfied that the challenge to s. 8 based on Article 15.2 fails.
Constitutional challenge by reference to articles 5, 10 and 40
Article 5 provides:
“Ireland is a sovereign, independent, democratic state”.
Article 40.3.1° provides:
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and to vindicate the personal rights of the citizen.”
Although the plaintiff has invoked Article 10, it was acknowledged by his counsel that that Article is of debateable relevance in the context of this case.
Counsel for the Minister submitted, not unfairly in my view, that the plaintiff’s claim based on Articles 5, 10 and 40 is nebulous and hard to pin down. The plaintiff’s own counsel acknowledged, realistically in my view, that it is an ambitious claim and that it sails into uncharted waters.
In support of this basis of constitutional challenge the following argument was advanced on behalf of the plaintiff. There is a duty on the State to preserve and protect the national heritage, including monuments of historic and archaeological interest. However, the duty is not absolute or unqualified. There is a correlative right in the People and in individual citizens to have such monuments preserved and protected. The right of the individual citizen is one of the unenumerated personal rights protected by Article 40.3. It is recognised that such duty and right may come into conflict with other duties and rights imposed and protected by the Constitution. When legislating, the Oireachtas must balance the competing rights. The power of the court to intervene is governed by the following principles:
(1) The principle enunciated by the Supreme Court in Tuohy v. Courtney [1994] 3 I.R. 1 (at page 47) in the context of a challenge to the constitutionality of certain provisions of the Statute of Limitations, 1957 in the following terms:
“The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function [of constitutional rights and duties], the role of the courts is not to impose their view of the correct or desirable balance in substitution with a view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”
(2) The principle of proportionality as enunciated by Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 (at p. 607) in the following terms.
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society….The object of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
(a) be rationally connected to the objective and not arbitrary, unfair or based on irrational considerations;
(b) impair the right as little as possible; and
(c) be such that their effects on rights are proportional to the objective…”
As I understand the plaintiff’s argument it is that s. 8 should be struck down under both principles because it is a disproportionate interference on his right as a citizen that the State should protect and preserve the national heritage so far as is reasonably achievable and that it is not an interference which can be adjudged reasonable by applying an objective standard. As I understand it, the specific complaint is that the Oireachtas did not provide in s. 8 for an evaluative process which gives appropriate weight to the protection of the heritage and to the status of Carrickmines Castle and does not incorporate any appropriate safeguards, such as the obligation to consult with the Director of the National Museum.
In response, counsel for the Minister argued that reliance on Articles 5 and 40 does not give the plaintiff standing to challenge the constitutionality of s. 8. The challenge to the constitutionality of s. 8 must be predicated on the plaintiff establishing that he has a constitutionally protected personal right. The plaintiff has not established any constitutionally protected right capable of being invoked. He is inviting the court to stray into the realm of policy which is the sole domain of the legislature under the doctrine of separation powers.
Counsel for the plaintiff submitted that the courts have an honourable record in protecting national monuments. He referred to the decision of the Supreme Court in Tormey v. Commissioners of Public Works, in which judgment was delivered in the Supreme Court on 21st December, 1972 by Ó Dálaigh C.J., which is now set out as an appendix to the report of Howard v. Commissioners of Public Work at [1993] I.L.R.M. 703. That case concerned a challenge to a compulsory purchase order made under the Act of 1930 in relation to lands forming part of the Hill of Tara. He also referred to the decision of the Supreme Court in Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 in which the proposed use of a quarry as a refuse dump at the site of the Carrowmore, passage graves was restrained on various grounds, including that it was a breach of s. 14 of the Act of 1930. I do not find either authority to be of any particular relevance to the matters to which the plaintiff is canvassing on this aspect of his claim.
The plaintiff principally relies on a number of authorities which his counsel submitted establish the constitutional context in which the duty and right which he contends for can be identified or, at any rate, be seen to be germinating.
Chronologically, the earliest of the authorities is O’Callaghan v. Commissioners of Public Works [1985] I.L.R.M. 364. In that case the plaintiff was challenging the making of a preservation order under s. 8 of the Act of 1930 in relation to a prehistoric promontory fort in North County Dublin, which was part of a plaintiff’s farm, on the ground, inter alia, that s. 8, which included no provision for the payment of compensation for the owners of land containing national monuments, was an unjust attack on the property rights of citizens within the meaning of Article 40.3.2° of the Constitution. He failed both in the High Court and the Supreme Court. The plaintiff referred to the following passage from the judgment of O’Higgins C.J. on the constitutional issue (at p. 367):-
“It cannot be doubted that the common good requires that national monuments which are prized relics of the past should be preserved as part of the history of our people. Clearly, where damage to such monuments is a probable result of unrestricted interference by the owners or other persons, a conflict arises between the exigencies of the common good and the exercise of property rights. This is particularly so where, as in this case, the interference initiated by the owner involves the ploughing and consequent destruction of that which constitutes the monument.”
The principal source of the constitutionally protected right for which he contends suggested by the plaintiff is the decision of the Supreme Court in Webb v. Ireland [1988] IR 353, in which the State’s entitlement to possession and ownership of the Derrynaflan Hoard was at issue. Expressing the majority view of the Court Finlay C.J. stated as follows (at p. 383):-
“It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern states, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that a necessary ingredient of sovereignty in a modern state and certainly in this State, having regard to the terms of the Constitution, with an emphasis on its historical origins and a constant concern for the common good should be an ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them.”
Finlay C.J. invoked both Article 5 and Article 10, which provides that, inter alia, “all royalties” within the jurisdiction belong to the State, when construed in the light of Article 5, to support his conclusion that there exists in the State a right or prerogative of treasure trove having the characteristics of treasure trove as known at common law.
In his judgment in Webb, Walsh J., while disagreeing with the majority view that Article 10 ruled the case, expressed a full agreement with the views set out in the passage of the judgment of Finlay C.J. quoted above. He set out his concept of ownership in the State of antiquities of importance in the following passage at p. 390:-
“When I speak of ownership in this context, I speak of a claim of ownership as against all the persons except those who can establish a title by succession to the original owner of the chattels and other materials which make up this heritage. However, I do not wish to be understood as saying that it would not be within the competence of the Oireachtas to vest ownership in the State in the interest of the common good in accordance with Article 43 of the Constitution, and subject to the payment of just compensation, if in the circumstances justice required the payment of compensation. I fully agree that when the Chief Justice says that it would be inconsistent with the framework of the society which is created by the Constitution and which has sought to be protected by that Constitution that such objects could become the exclusive property of those who by design or by chance discover them and take possession of them. In my view that opinion applies to the owners of the land in or on which they are found or to any other persons who find them in or upon the lands. But unless and until legislation be enacted the State must be regarded as owners in the sense of having a better right to possession than anyone else. I am content to base my opinion upon what I believe to be the fundamental duty of the State to safeguard all the national assets whether truly in the ownership of private individuals and more importantly, where the owner is not known or cannot be ascertained.”
Having outlined his views on the non-applicability of Article 10, Walsh J. summarised his views as follows (at p. 393):
” I am satisfied that the People as the sovereign authority having by the Constitution created the State, and by Article 5 declared it to be a sovereign state, have the right and duty, acting by the State which is the juristic person capable of holding property by virtue of the Constitution, to exercise dominion over all objects forming part of the national heritage, whether they be found or not, subject always to the lawful title of the true owner if and when the true owner is discovered and to exercise full rights of ownership when no true owner can be ascertained.
It is within the power of the Oireachtas, acting on behalf of the People, to make such arrangements as it sees fit by legislation for the disposal or other use of all such objects, subject to all the provisions of the Constitution, as the Oireachtas deems proper in the interest of the common good. While it is not for this Court to indicate to the Oireachtas how this power should be exercised, it is the duty of this Court to state that pending any such legislation the State is entitled to possession of all such objects unless and until the true successors in title of those who hid them for safekeeping can be ascertained.”
Finally, counsel for the plaintiff referred to the decision of this Court (Barr J.) in In Re La Lavia” [1999] 3 I.R. 413 in which, following Webb, Barr J. held that maritime archaeological wrecks and related artefacts found on or under the sea-bed in Irish territorial waters, like similar objects discovered on land, are the property of the State. Barr J. also held that the Commissioners of Public Works, in whom the relevant function was then vested under the National Monuments Acts, as agents for the State, had a duty to take all reasonable steps to investigate, regulate, protect and safeguard archaeological finds made in Irish territorial waters and, where possible, to cause such objects to be retrieved, conserved and displayed for the benefit of the Irish people and other interested persons.
It is necessary at this juncture to comment generally on the challenge of the Minister and the other State parties to the standing of the plaintiff. In their defence, these defendants pleaded that the plaintiff does not have sufficient interest or locus standi to maintain a challenge to the provisions of the Act of 2004, in that he is not, it was alleged, able to point to any personal right of his affected by that Act, nor is he a person affected by the proposed road development or proposed works as a neighbouring land owner or otherwise. Further, it was pleaded that the plaintiff does not have sufficient locus standi to maintain a challenge based on the Directive, in circumstances where the plaintiff did not participate in the 1997 EIS process. At the hearing, counsel on behalf of these defendants clarified the position and confirmed that their position was that the plaintiff does not have standing to invoke Article 40.3 or to invite indirect scrutiny of the orders made on 19th October, 1998. As I consider that the plaintiff has not indirectly raised the issue of the adequacy of those orders, that last point does not arise.
There is a very helpful introduction to the discussion on the topic of locus standi for constitutional challenges in Kelly on the “Irish Constitution”, 4th edition, at p. 807 in the following terms:
“The question of locus standi of a party wishing to challenge the invalidity of an Act of the Oireachtas (or the constitutionality of a pre-Constitution statute) has received much consideration in a series of recent decisions. Although the law in this area is still evolving and lacks precision, the following principles seem to emerge. First, the courts will only entertain a constitutional challenge where it is demonstrated that the litigants’ rights have been either infringed or threatened. Secondly, the courts will only listen to arguments based on the plaintiff’s own personal situation and will generally not allow arguments based on a jus tertii. However, since ‘every member of the public has an interest in seeing that the fundamental law of the State is not defeated’ the courts will permit a citizen to challenge an actual or threatened breach of a constitutional norm where there is no other suitable plaintiff or where the threatened breach is likely to affect all citizens in general.”
The decision of this court (O’Hanlon J.) in Madigan v. Attorney General [1986] I.L.R.M. 136 is cited as authority for the second proposition and was relied on by counsel for the Minister and the other State parties in this matter. In Madigan and the associated matter which was tried with it, the plaintiffs challenged the validity of provisions of the Finance Act, 1983 which imposed a residential property tax on the basis that it infringed rights of the person and family, and of property and privacy, to be found in Articles 40 and 41 of the Constitution. Having reviewed the law on locus standi, O’Hanlon J. held that he must leave out of consideration any matters relied on the plaintiffs in their challenge which were not relevant to the circumstances of the plaintiffs themselves, or any of them.
The issue of locus standi was raised both in Dunne No. 1 and Mulcreevy. In Dunne No. 1, Hardiman J. held that, for the purposes of the interlocutory application, it was indisputable that an arguable case for the plaintiffs standing had been established (p. 574). Mulcreevy, as stated earlier, was an application for leave to issue judicial review proceedings on notice. Keane C.J. held that the plaintiff did have locus standi to institute the proceedings. In dealing with the issue at (p. 426) he stated as follows:
“While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.
It has been made clear in decisions of the High Court and this court in recent times that it is not in the public interest that decisions by statutory bodies which are of at least questionable validly should wholly escape scrutiny because a person who seeks to invoke the jurisdiction of the court by way of judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision. …
It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and vexatious challenges are not entertained.”
Keane C.J. went on to point out features which distinguished Mr. Mulcreevy’s situation from that of the plaintiff in Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 IR 270. It is perhaps worth noting that no issue of constitutional validity of a statute arose in the Supreme Court in the Lancefort case.
The essence of this aspect of the plaintiff’s claim, as I understand it, is that, in enacting s. 8, the Oireachtas has put in place arrangements which are inimical to, and fail to safeguard and protect, a monument which is part of the natural heritage in contravention of the States obligation derived primarily from Article 5 of the Constitution. I am of the view that there is authority for the proposition that he has locus standi to maintain this challenge.
It is beyond doubt that it is a constitutional imperative that the State safeguard the national assets, including monuments of cultural and historical significance. The plaintiff properly recognises that that duty is not unqualified. In Mulcreevy, an argument that, where the interference with a national monument could not be justified on the ground that it was in the interests of archaeology or was required in the interest of public health or safety, the approval of the Minister under s. 14 of the Act of 1930, as it was in force before the enactment of the Act of 2004, could only be given for the protection and preservation of national monuments and archaeological objects, got short shrift. Keane C.J., in a passage (p. 334), which is also apposite to the argument advanced by the plaintiff in relation to the challenge under Article 15(2), stated as follows:
“I am satisfied that this argument is entirely misconceived and that the applicant has failed to establish a stateable or arguable case to support this ground. The Oireachtas plainly intended that, in cases where neither archaeological considerations nor public health and safety could be invoked, the Environment Minister should enjoy a wide residual discretion to permit the interference with the national monument, subject to the qualification that his order had to be laid before both Houses of the Oireachtas. To confine the exercise of his discretion to cases in which it could be said that he was ensuring the protection or a preservation of a national monument or the preservation of archaeological objects would be to render that residual discretion entirely meaningless, since the acts contemplated by the approval – the destruction, removal, etc. of the monument in whole or in part – far from protecting or preserving the monument would have precisely the opposite effect. If this argument were well founded, no such approval could ever be given.”
Of course, what was at issue in Mulcreevy was not the validity of a statutory provision having regard to the provisions of the Constitution, but the validity of the exercise of a statutory discretion. However, as the passage shows, historically, in regulating the protection of national monuments, the Oireachtas has given a considerable degree of latitude to the decision maker. As is clear from Webb, it is for the Oireachtas to determine the policy for the protection of the national heritage consistent with the provisions of the Constitution and in the interest of the common good.
I cannot see, however, how the duty of the State to safeguard the national heritage can translate into a personal right of the type which, although unspecified, is protected by Article 40.3. In my view, the plaintiff has not established that he is entitled to invoke Article 40.
It is not inconceivable that in a hypothetical case, a person in the position of the plaintiff, a concerned private citizen, could successfully challenge a statutory measure on the basis that it purported to permit a clear-cut breach of the State’s duty to protect the national heritage. This is not such a case. In inviting the court to review s. 8 in the light of the State’s duty to safeguard the national heritage and the other requirements of the common good, the plaintiff is asking the court, to use the metaphor used by Keane C.J. in TD v. Minister for Education [2001] 4 IR 259 at 288, to cross a Rubicon and to undertake a role which is conferred by statute on the Oireachtas under the Constitution. The court cannot do that.
Accordingly, the plaintiff’s claim that s. 8 is invalid by reference to Articles 5, 10 and 40 fails.
Decision
The plaintiff is not entitled to any of the reliefs claimed.
O’Connell v. The Environmental Protection Agency
[2003] IESC 14 (21 February 2003)
JUDGMENT delivered on the 21st day of February 2003, by FENNELLY J., [Nem Diss].
1. The applicant appeals to this court from the judgment of Butler J in the High Court, refusing her application for Judicial Review by way of certiorari of a decision of the respondent (hereinafter called “the Agency”) granting an Integrated Pollution Control Licence (hereinafter called “the licence”). Under European Community law, Member States must ensure that applicants supply certain information, called an Environmental Impact Statement (an “EIS”), regarding the effects on the environment, including pollution, of development projects and that this information be assessed by means of an Environmental Impact Assessment (an “EIA”). The applicant complains that, in this case, there was no EIS, and, thus, no EIA. This, she says, was by reason of the incorrect transposition into Irish law of the relevant directives. The applicant says that the planning authority and An Bórd Pleanála (“the Board”) did not obtain an EIS because they, rightly, considered that they had no power to do so insofar as environmental pollution is concerned. She says that the Agency did not do so because they, wrongly, thought they had no such power.
2. It is necessary to steer through what counsel has aptly described as a statutory maze in order to uncover the effect of the regulations implementing the State’s European Union obligations. Thankfully, counsel has provided the Court with a map. At the end of the day, nonetheless, the case turns almost entirely on the contention that section 98 of the Environmental Protection Agency Act, 1992 (“the act of 1992”) prevented the planning authority or An Bórd Pleanála from asking for an EIS covering pollution matters.
The Facts
3. Thesio Limited (“Thesio”), a joint venture company between Rolls Royce Power Ventures Limited, an English Company, and Dellware Limited, wish to build a combined cycle gas turbine power generation plant (“the power plant”) at Shandon, Dungarvan, Co. Waterford. The chosen site is adjacent to the town where creamery operations had been carried on for many years, most recently by Waterford Foods.
4. In order to carry out the development, Thesio had to obtain planning permission. In addition, the heat input of the proposed power plant would exceed 50 MW. This brought it above the threshold laid down in Part IV and the First Schedule to the act of 1992 so that it required an integrated pollution control licence from the agency. This division of function between planning and pollution-control licensing is at the root of the entire case.
5. The planning authority, Dungarvan Urban District Council, made a decision granting planning permission on 30th March 2000. No EIS had accompanied the application. The application related to a power plant with an output of 105 MW and a possible maximum heat output of 240MW. Under the relevant regulations (in its most recent form, Class 2(a) of Part I of the First Schedule to the European Communities (Environmental Impact Assessment) Regulations, 1999) (“the 1999 EIA Regulations”)), an EIS is not mandatory for a thermal power station, unless the heat output will be 300 MW or more. The planning authority could have sought an EIS, if they had considered that the development would have a significant effect on the environment, but they did not do so.
6. The applicant appealed to the Board, which had the same power as the planning authority to demand an EIS. The Board’s inspector reported in a document headed, “E.I.S. Recommendation- E.I.S. not submitted.” This document contained boxes to be ticked or not depending on the view being taken. The inspector noted that the development could be of a class for which an EIA was required, by reference to the relevant regulations and that the activity to be permitted was “licensable under the Environmental Protection Agency Act, 1992.” He added a note to the effect that “under Article. 18 of the 1999 Planning Regs IPC cases no longer automatically require EIS.” He added that, in his view, an EIS was not mandatory and that the development would not come within the scope of Article 56(2). The Board, in its direction dated 30th August 2000, having referred to the inspector’s report, decided to grant permission in accordance with the inspector’s recommendation and also ruled:
“having regard to S98 and the nature and extent of existing development on the site, the Board considered that, in the context of Article 56(2) of the 1994 Regulations, the proposed development would not have a significant effect on the environment.”
Thus, there was no EIS or EIA in the context of the planning process.
7. Thesio applied to the Agency for the necessary Integrated Pollution Control Licence. It is agreed that the Agency has no express statutory power to demand an EIS, though, where one has been supplied to the planning authority, the regulations provide that notice of it must be given to the Agency. At any rate, no EIS having been produced during the planning process and, the Agency believing that they had no power to demand one, no EIS was supplied to the Agency.
8. The Agency granted the licence on 3rd January 2001, pursuant to section 83 of the Environmental Protection Act, 1992 (hereinafter “the act of 1992”).
The Proceedings
9. By order dated 2nd March 2001, McKechnie J, in the High Court, granted leave to the applicant to apply for Judicial Review of the decision of the Agency.
10. Not all the grounds upon which leave was granted remain relevant. In particular, it has not seriously been contended that the decision of the Agency was irrational in the Wednesbury sense. The principal grounds can be summarised as follows:
The licence sought was likely to have a significant effect on the environment;
Accordingly, an EIS was required;
The planning authority and the Board were precluded by section 98 of the act of 1992 from considering environmental pollution not only while making decisions to grant or refuse planning permission but also, and crucially, in considering whether to demand an EIS;
Consequently, in order to give effect to the mandatory requirements of the European Community directives, the Court should interpret the powers of the Agency as including a power to demand an EIS;
In the event that neither the planning authority, the Board nor the Agency have power to demand an EIS, the State is in breach of its obligations under European Community law;
The Agency failed to have regard to the impact of the proposed license on a designated Special Area of Conservation or Special Protection Area and failed to comply with its obligations under the European Communities (Natural Habitats) Regulations 1997 (S.I. 194/97).
11. Butler J, in a judgment of 25th April 2002, dismissed the application for Judicial Review. He held that, under Irish law, the responsibility for conducting an EIA and for demanding an EIS rested on the planning authority and the Board respectively. The applicant’s argument regarding section 98 of the act of 1992 was mistaken. That section prevented the planning authority and the Board from considering matters of environmental pollution only when making the substantive planning decision. This did not apply, at the earlier stage, where it was necessary to consider whether to require an EIS. He also rejected the argument relating to the protection of natural habitats. He found that the Agency had, in fact, sought the necessary information on this point and had formed the view that the activity to be licensed would not have significant effects.
The Appeal
12. It is convenient, before dealing with the appeal to set out the terms of section 98(1) of the act of the act of the act of 1992. It reads as follows:
“98.—(1) Notwithstanding section 26 of the Act of 1963, or any other provision of the Local Government (Planning and Development) Acts, 1963 to 1991, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity—
(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or
(b) decide to grant such permission subject to conditions which are for the purposes of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,
and, accordingly—
(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall not consider any matters relating to the risk of environmental pollution from the activity;
(ii) An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity.
13. It was common case that the proposed power station would not exceed the heat-output threshold of 300MW, which would have made an EIS mandatory. Equally, it was not in dispute that the designated national authority must make a judgement as to whether an EIS should, nonetheless, be required because of likely effects on the environment. In addition, the appellant claimed that the development would involve water abstraction in excess of a threshold of 2 million cubic metres. This, if correct, would bring it above a mandatory threshold, laid down, as a matter of the exercise of a national discretion, by a distinct heading (Class 10(l)) of Part II of the First Schedule to the 1999 EIA Regulations.
14. Mr Paul Sreenan, Senior Counsel, for the appellant, centred his argument almost entirely on the effects he claimed for section 98 of the act of 1992. He said that the record showed that the Board had rightly, at all stages, interpreted the section as precluding it from considering any polluting effects on the environment. He acknowledged that the view taken by the Board could not have any bearing on the correct interpretation of the section, a matter falling to be decided as a matter of law. Indeed, even if the Board had been incorrect in their interpretation of their powers, that error would not avail the appellant, who had not taken any proceedings to contest the validity of the decision of the Board within the two-month period now allowed by law for that purpose. Even if some of the regulations regarding the Agency and the planning authorities appeared to give power to the latter to seek an EIA, they could not prevail against the words of the statute.
15. Mr Sreenan contended that, based on his contention for the preclusive effect of section 98 on the Board, there would be no provision in Irish law requiring that an EIS be provided, where a statutory authority was considering the licensing of an activity with the potential to pollute the environment and, furthermore, no body at all charged with the task of evaluating, in an integrated way, all risks to the environment. Since that result would be patently contrary to Community law, the Court was obliged, as established in the case law, to give effect to the directives in Irish law. This could only be done by implying, in the act of 1992, a power for the Agency to seek an EIS and to conduct an EIA. Since there had been no EIA in this case, no consideration had been given to the risks of environmental pollution, including the inter-relation of the proposal with other matters such as water abstraction, disturbance of ground water, power lines and gas supply.
16. Mr Eamonn Galligan, Senior Counsel, also for the applicant, argued, in the alternative, that the Agency did, in fact, have power to seek an EIS. This he based on Articles of the Environmental Protection Agency (Licensing) Regulations, 1994 (S.I. 85/94). Article 12 provides that, “where an application for planning permission for development comprising or for the purposes of the activity is required to be accompanied by an environmental impact statement,” the application to the Agency for a licence must, in addition to other matters, be accompanied by at least 15 copies of the environmental impact statement. Article 14 obliges the Agency to consider the EIS, “insofar as the risk of environmental pollution is concerned.” Mr Galligan also argued that the Agency had not complied with its obligations in respect of the protection of habitats, particularly the Regulations governing them mentioned above.
17. Mr Michael Collins, Senior Counsel, on behalf of the Agency, presented a detailed analysis of what, with commendable understatement, he described as the “statutory maze.” He explained regulations adopted from 1989 to 1999. He contended that, as held by Butler J, the statutory function of seeking an EIS and of conducting an EIA was conferred on the planning authority and the Board respectively. They are not merely empowered but obliged to consider, in cases where it is not mandatory, whether an application for planning permission should be accompanied by an EIS. The Board, contrary to the argument of the appellant, decided that there was, in this case, no need to call for an EIS, as they considered that there was no significant risk of effects on the environment. The Board has all the powers of the planning authority including the power to seek an EIS. Mr Collins did not accept that the development involved a water abstraction exceeding the threshold of 2 million cubic feet, or that the appellant had produced any evidence to that effect. In any event, the question of water abstraction was a matter for the Board to consider and they had done so. Furthermore, section 98, properly construed, does not bear the interpretation placed upon it by the appellant. With regard to habitats, an appropriate assessment was carried out.
18. Mr Frank Clarke, Senior Counsel, for Thesio, the first-named Notice Party, said that it was central, from the point of view of Thesio, that no EIS was requested by the competent planning authorities and that the planning permission could not now be attacked. Furthermore, it must now be assumed that the Board correctly exercised its powers. While supporting the interpretation of section 98 adopted by the learned High Court judge, he argued that, the existence of any ambiguity would require that Irish law be interpreted, in accordance with the appellant’s contention, so as to bring it into conformity with European Community law. Where this can be done in a number of different ways, it is more appropriate that it be done by interpreting the powers of the planning authority so as to enable them seek an EIS in respect of all matters, including pollution of the environment, rather than by interpreting the powers of the Agency by interpolating an additional power, which neither the governing statute nor the Regulations confer. However, the correct and more appropriate view of section 98 is that there is, in Irish law, provision for an integrated assessment, in accordance with the directives and the relevant criteria which they require to be taken into account. It is provided that the planning authority has the sole power of considering whether an EIS should be demanded in respect of all matters.
19. Mr Michael Cush, Senior Counsel, for Ireland and the Attorney General, the second-named Notice Party, pointed out that the directives clearly accepted that there could be more than one body involved in the process of conducting an EIA. Section 98 should be construed, in accordance with its ordinary meaning, as not precluding the planning authority or the Board from seeking an EIS. The prohibition relates only to considering questions of environmental pollution at the planning-permission decision stage. Mr Cush contended that the word, “accordingly,” as well as the place of the two sub-paragraphs numbered (i) and (ii) indicate a hierarchy of meaning within the section. These subparagraphs are consequential or subsidiary. The Oxford Dictionary gives “appropriately” or “consequently” as alternatives to “accordingly.” The Court should not expand the meaning of sub-paragraphs (a) and (b), but should treat the sub-paragraphs (i) and (ii) as amplifications of the earlier words.
20. I will refer in greater detail to this aspect of Mr Cush’s submissions, when I come to analyse the section. The scheme, he said, in place since 1989, when the first directive on environmental impact assessment was implemented in Irish law meant that the planning authorities and the Board only were responsible, because it was they who had to consider matters of pollution of the environment. The act of 1992 conferred no function in relation to seeking an EIS on the Agency. Section 98, if construed in the manner contended for by the appellant, would have the effect of depriving the planning authorities of their existing functions in respect of environmental impact assessment, while the governing act would have failed to assign it to the agency. Such a result should only be accepted, if the construction was clear and unambiguous.
Analysis
21. It is an important fact that, as is common case, the decisions of the planning authority and of the Board are now immune from challenge. It is, of course, the case that there was no EIS. However, if the planning authority or the Board, having power to do so, were bound to demand one, either because it was mandatory or, in the proper exercise of their discretion, the fact that there was no EIS would not be the result of any defect in the law. On that hypothesis, no EIS would have accompanied the application because the competent authorities had wrongly exercised their powers. In the present circumstances, the absence of an EIA would flow from the failure of the appellant to challenge the relevant planning decisions in time. In that situation, moreover, there would be no question of Ireland having failed correctly to transpose the directives.
22. For the same reason, it is clear that it is not strictly necessary to decide whether the Board, in the paragraph quoted from their direction of 30th August 2000, were stating that they had no power to seek an EIS, in cases where an Integrated Pollution Control Licence was required, or that, on the facts, they did not consider one to be necessary. My own view is that the statement of the Board can only mean that they gave consideration to the question of whether an EIS was necessary. It appears that the inspector thought an EIS, apart from not being mandatory, was not necessary. The concluding words of the Board’s direction say that “the proposed development would not have a significant effect on the environment.” The legal provisions referred to do not suggest that any meaning different from their ordinary meaning be given to those words.
23. As has been seen, the appellant says that section 98(1) prohibits all planning authorities and the Board from considering the risk of environmental pollution, not only at the time of making a decision on the relevant planning application or appeal, but also at every earlier stage and, in particular, when deciding whether to seek an EIS. A planning authority may, of course, seek an EIS, but the appellant’s contention is that, in deciding whether to do so, it may not have regard to the risk of environmental pollution. That result would patently make a nonsense of the whole notion of environmental impact assessment, for the very reason advanced by the appellant. There would be no integrated consideration of the inter-reaction of polluting and other environmental effects. Without section 98, the appellant accepts that the statutory and regulatory scheme obliges and authorises the competent planning authorities (including the Board) and not the Agency to call for an EIS, where appropriate, and to conduct an EIA.
24. It is not possible, nonetheless, to examine the meaning of section 98, without entering the statutory maze of directives and the statutes and regulations, which have transposed them into Irish law. I will endeavour to set out a number of simple sequential propositions.
The Directives Permit the EIA to be conducted by one or more National Authorities
25. The Council has adopted two directives concerning environmental impact assessment, one before and one after the passing of the act of 1992. The primary implementation of the directives have been effected by three EIA Regulations, respectively in 1989, 1994 and 1999, which avail of the power, conferred by section 3 of the European Communities Act, 1972, to amend statutes by such orders. Many of the statutory amendments thus actually made confer power on the relevant minister to adopt secondary legislation in the normal sense by means of statutory instruments.
26. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (O.J. L175, p. 40) recites that:
development consent … should be granted only after prior assessment of the likely significant environmental effects [of development projects];
appropriate information [should be] supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned;
projects belonging to certain types have significant effects on the environment and these projects must as a rule be subject to systematic assessment;
projects of other types may not have significant effects on the environment in every case and… these projects should be assessed where the Member States consider that their characteristics so require.
Giving effect to that objective, Article 2.1 of the directive imposed a general obligation on Member States expressed in the following terms:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to [a requirement for development consent and] an assessment with regard to their effects. These projects are defined in Article 4.”
[Note: words in square brackets added in 1997.]
27. The directives proceed, throughout, in accordance with the nature of a directive, as an instrument respecting the principle of subsidiarity, and, thus, on the footing that their objects are to be achieved through the various and diverse competent bodies in and in accordance with the laws of the Member States. For example, Article 1.2, defines “development consent” as “the decision of the competent authority or authorities which entitles the developer to proceed with the project.” Similarly, Article 2.2 provides:
“2. The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive.”
28. The respondents have emphasised, and it is not in dispute, that the directives leave it to the Member States to decide whether the entire EIA procedure be conducted by one or several national bodies, as demonstrated by the addition, by the 1997 Directive, of a provision covering the very situation which arises in the present case:
“2a. Member States may provide for a single procedure in order to fulfill the requirements of this Directive and the requirements of Council Directive 96/61/EC of 24 September 1996 on integrated pollution prevention and control…”
[The Directive of 1996, referred to here required Member States to control pollution by means of a single permit rather than separate ones for water, air and noise pollution. Article 2.8 of that Directive also spoke of “the authority or authorities or bodies responsible under the legal provisions of the Member States..]
29. Article 2.2a permits but does not oblige the Member States to lay down a single procedure for planning and pollution matters.
30. Article 3 provides that an EIA must identify, describe and assess the direct and indirect effects of a project, in particular on human beings, fauna and flora, soil, water, air, climate, landscape, the inter-action between these factors and on material assets and cultural heritage
31. Article 3, therefore, represents a comprehensive general statement of the central environmental concerns. Here they delineate the essence of the EIA which Member states must conduct. They are crucial to the EIS, the EIA and to this case.
32. Article 4, both in its 1985 wording and as amended in 1997 (Council Directive 97/11 EC of 3 March 1997… (O.J. 14.3.97 No. L73/5)) gives effect to the recited distinction between the cases where an EIS is mandatory and those where it becomes so only upon an assessment of the characteristics of the proposed development. It provides, following amendment:
“Article 4
1. Subject to Article 2 (3), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2. Subject to Article 2 (3), for projects listed in Annex II, the Member States shall determine through:
(a) a case-by-case examination,
or
(b) thresholds or criteria set by the Member Statewhether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
3. When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
4. Member States shall ensure that the determination made by the competent authorities under paragraph 2 is made available to the public.”;
33. The directives do not, of course, use the term EIS. This shorthand term, appearing in national legislation, represents the sort of information which Articles 5 to 10 of the directives require to be provided.
34. The amending directive of 1997 also amended the Annexes to the 1985 directive. Although the power plant, proposed by Thesio, fell below the wattage threshold which would have made an EIA mandatory under Annex I of the Directive, it is covered by a heading in Annex II (both 1985 and 1997 versions): “Industrial installations for the production of electricity, steam and hot water.” Thus, this is what is called a “sub-threshold” case, where consideration has to be given to likely effects on the environment. The dispute concerns whether the planning authorities, or the Board, can exercise that function.
35. From 1985, in any event, the basic requirement of Article 2 of Directive 85/337/EEC was that projects be assessed where they were “likely to have significant effects on the environment.” As noted above, however, Article 4.2 of the 1997 directive added an obligation to have regard to “selection criteria” listed in a new Annex III. The complex way in which that obligation has been introduced into Irish law will be discussed later.
36. The principal features of the Directive of 1985 were transposed into Irish law in 1989. None of the 1997 amendments materially altered its structure, though it will be necessary to refer to the (1997) Annex III criteria.
Ireland transposed the directives by providing for the relevant EIA tasks to be performed by the competent planning authorities (including the Board)
37. The first transposition measure was the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. 349/1989) (“the 1989 EIA the Regulations”). This was, in turn, amended by the European Communities (Environmental Impact Assessment) (Amendment) Regulations, 1994 (S.I. 84/1994) and by the 1999 EIA Regulations. As already stated, these instruments were adopted pursuant to section 3 of the European Communities Act, 1972. They amended several parts of the Local Government (Planning and Development) Act, 1963 (“the act of 1963”).
38. Section 25 of the act of 1963 gives power to the Minister, now the Minister for the Environment, to regulate the basic machinery for application for and grant of planning permission. Section 25(2) (c), for example, gave power to make Regulations prescribing the information, which applicants for planning permission must supply. The 1989 and 1994 Environmental Impact Assessment Regulations, by amendments to the planning acts, authorised the Minister to regulate further the information to be supplied so as to give effect to the 1985 Directive. In general terms, such further planning regulations could deal with the following matters:
39. that an EIS must be submitted
enabling planning authorities to require applicants to submit an EIS
the contents of an EIS
enabling planning authorities to rule on the adequacy of an EIS
the making of submissions by others
the making available of EIS for purchase.
In fact, no regulations were adopted pursuant to these powers until 1994 and, therefore, until after the act of the act of 1992.
The Planning Authorities became obliged to have regard to the EIS and EIA
40. While section 25 of the act of 1963 dealt with regulatory and procedural aspects of planning applications, section 26 contains the key statement of the matters which planning authorities must consider when making their decisions. Article 8 of the 1989 Regulations, as amended in 1994, also amended section 26 of the act of 1963. It inserted a new subsection (1A) into section 26 requiring a planning authority, when deciding on an application, to have regard to any EIS and any supplementary information or observations concerning the effects of the proposed development on the environment.
41. Article 8 introduced a corresponding provision requiring the Board to have regard to environmental impact statements and related matters when determining an appeal.
42. Two remaining important provision of the 1989 the regulations are relevant. Article 24 reads:
“Development of the classes set out in Part I and Part II of the First Schedule is hereby specified for the purposes of these Regulations.”
43. Article 24 is an important link in the complex chain, which I will trace later. Its reference to the classes of development listed in Parts I and II of the First Schedule, means that it applies only to cases for which an EIS is mandatory. The headings in Part I reflect Annex I of the Directive, making an EIS mandatory as a matter of Community Law. Part II reflects Annex II and, inter alia, makes an EIA mandatory for cases exceeding lower thresholds set by the State, in the exercise of the discretion conferred by Article 4.2 of the 1985 Directive. One of these is a threshold of 2 million cubic metres annually for water abstraction. The appellant filed an additional affidavit on that point at a late stage of the judicial review proceedings in the High Court. It is based on a document sent on behalf of Thesio to the Agency. This document gives a figure for daily water usage of about 5,800 cubic metres, which would exceed 2 million annually. The document, however, mentions use but not water abstraction. In a replying affidavit sworn on behalf of Thesio, it is stated that abstraction would not exceed the threshold. The burden of proof is on the applicant, who has not been able to produce any evidence of the intended level of water abstraction. In any event, the question of water abstraction does not come within the jurisdiction of the Agency. Even if an EIS had been mandatory for exceeding the water-abstraction threshold, it would have been a matter for the planning authority or the Board to deal with it. Their decisions have nor been challenged.
44. Article 25 provides:
“An environmental impact statement for the purposes of these Regulations or of any enactment as amended or adapted by these Regulations shall contain the information specified in paragraph 2 of the Second Schedule and may also contain the information specified in paragraph 3 of that Schedule.”
45. Paragraph 2 of the Second Schedule lists, inter alia, all of the basic environmental considerations found in Article 3 of the directive. In this way, the State, when transposing the directive, ensured that an EIS would contain all material referable to the fundamental environmental matters set out in Article 3 of the 1985 directive as constituting an EIA. The European Communities (Environmental Impact Assessment) (Amendment) Regulations , 1999 (S.I. 93/1999) substituted new Schedules for the First and Second Schedules to the 1989 EIA Regulations but retained all the elements based on Article 3 of the 1985 Directive. These provisions, in the 1989 EIA Regulations, depended, however, for their effect on the adoption of regulations by the Minister prescribing for the submission and scrutiny of an EIS. Each of these provisions became effective from the adoption of three sets of regulations in 1994.
46. At the date of passing of the act of the act of 1992, it is clear that, although the necessary Regulations to give full effect to the 1985 Directive had not yet been adopted, the intended statutory scheme was that all aspects of the implementation of the Directive were to occur within the planning process.
Planning authorities and the Board were no longer to consider environmental pollution after the act of 1992
47. Article 6 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations (S.I. 84/1994) (“the 1994 EIA Regulations”) made important changes to this scheme, in order to reflect the change effected by section 98(1) of the act of 1992.
48. Firstly, it inserted into section 26 (1A) of the act of 1963 a new sub-paragraph (b) affecting planning authorities:
“(b) Notwithstanding paragraph (a) of this subsection, a planning authority shall, in dealing with an application for permission for the development of land where the development comprises or is for the purposes of an activity to which a licence under Part IV of the Environmental Protection Agency Act, 1992 (No. 7 of 1992) is required, have regard to the matters referred to in the said paragraph
(a) only insofar as those matters do not relate to the risk of environmental pollution from the activity.”; [the letter (a) makes no sense and seems otiose]
49. The same provision, Article 6 of the 1994 EIA Regulations, introduced a corresponding provision, subsection 5(dd), into section 26(5) of the act of 1963, regarding the Board:
“Notwithstanding paragraph (d) of this subsection, the Board shall, in determining on appeal an application for permission for the development of land where the development comprises or is for the purposes of an activity in relation to which a licence under Part IV of the Environmental Protection Agency Act, 1992 (No. 7 of 1992) is required, have regard to the matters referred to in the said paragraph (d) only insofar as those matters do not relate to the risk of environmental pollution from the activity.”
50. From that time, therefore, the planning authority and the Board had to exclude environmental pollution when considering the grant or refusal of planning permission.
The Agency became obliged to have regard to any EIS submitted with an application for a licence
51. The 1994 EIA Regulations also amended sections 83 and 87 of the act of 1992. The effect of the changes to section 83 can be briefly stated. The Agency, when considering an application for a license, must “have regard” to any EIS “submitted with the application,” and to any submissions or further information it receives about it. In particular, the Agency must have regard to “any further information or particulars submitted in relation to the [EIS] in compliance with a notice given under regulations under section 87.” Section 87 is amended so as to provide that the Minister may make Regulations:
“(d) specifying the submissions, plans, documents, and other information and particulars, including environmental impact statements, to be forwarded to the Agency or other specified person by applicants, licensees, objectors, or other persons within such periods as may be specified,
(e) requiring applicants, licensees, objectors or other persons to furnish to the Agency or any other specified person, within such period as may be specified, such additional information or particulars relating to applications, including environmental impact statements, or reviews as the Agency may request,”;
52. Thus, contemporaneously with the exclusion of consideration of environmental pollution, in the making of planning decisions, the Agency acquired the specific obligation to consider the contents of an EIS and the power to seek further information, where one has been supplied to a planning authority.
Three sets of Regulations in 1994
53. The Minister for the Environment adopted three sets of regulations in 1994.
On 13th April 1994, the Minister adopted the 1994 EIA Regulations, just described, pursuant to section 3 of the European Communities Act, 1972. Thus it enabled the Minister for the Environment to adopt the next two regulations;
On the same day, the Minister adopted, pursuant to the general power to make regulations conferred on him by section 6 of the act of 1992, but also and more relevantly, pursuant to sections 3, 83 and 87 of that act, as amended the same day by the 1994 EIA regulations, the Environmental Protection Agency Regulations (S.I. 85/1994).
On 14th April 1994, the Minister adopted, pursuant to a number of provisions of the planning acts, but more specifically, pursuant to such provisions as amended by the 1989 and 1994 EIA regulations, the Local Government (Planning and Development) Regulations, 1994 (S.I. 86/1994) (“the 1994 planning regulations”).
54. In order to discern the ultimate meaning and effect of these provisions, as they relate to the consideration of the issues in this case, it is necessary to read and cross-reference many of the interlocking provisions of the three sets of Regulations. As will be seen, some of the regulations of greatest relevance to the present case can only be understood following reference to provisions in other related instruments. Complex is merely the mildest term that can be applied. It is regrettable that rules of law intended to regulate processes in which individual members of the public are supposed to be able to take part cannot be written in a more accessible form.
55. Nonetheless, it is possible, following laborious study, and according due respect to the ingenuity of the draftsman, to arrive at a clear conclusion concerning the allocation of functions between the planning authorities and the Agency, in respect of the whole EIA process. It becomes clear, upon reading the three sets of regulations adopted almost contemporaneously, governing related matters, that they were intended to operate together.
Wherever an EIS is mandatory, there must be one accompanying the Planning Application
56. Article 24 of the 1994 planning regulations provides that a planning application must be accompanied by an EIS where the development “is of a class for the time being specified under Article 24 of the Environmental Impact Assessment Regulations, or under any provision amending or replacing the said Article 24….” Article 25 reinforced this obligation by empowering the planning authority to insist that an applicant comply with Article 24.
57. As I have already pointed out, the cross-reference to Article 24 of the 1989 Regulations means that it applies only to cases where an EIS is mandatory, whether because the Directive directly so provides or because Ireland has decided to make it so. It does not apply to this case, because the power station does not reach the 300MW threshold and it has not been shown that it exceeds the 2 million water-abstraction threshold.
58. It is a matter of note, in this case, that Article 24(1) of the 1994 planning regulations (i.e. Article 24 of this Regulation of 1994, not the Article of the 1989 EIA Regulation, bearing the same number), originally contained a sub-paragraph (b). That provision covered cases, in which, regardless of the thresholds, a licence under part IV of the act of 1992 was required, thus making an EIS mandatory in all such cases. This was, however, deleted by Article 10 of the Local Government (Planning and Development Regulations, 1999 (S.I. 92/1999). This deletion explains the observation, correctly made by the planning inspector, that “…. IPC cases no longer automatically require EIS.”
59. Nonetheless, it is worth noting that Article 24 of the 1994 planning regulations does not exclude environmental pollution effects from the EIS, where one must be supplied. This follows from the manner in which, as I have explained, the concerns of Article 3 of the 1985 Directive are included in the regulations prescribing the contents of and EIS.
In sub-threshold cases, the planning authority must require an EIS, where it considers that development is likely to have a significant effect on the environment
60. Article 26 of the 1994 planning regulations deals with cases which do not exceed the thresholds for a mandatory EIS, but have potentially significant environmental effects. These are called “sub-threshold cases.” It provides:
“Where a planning authority receives a planning application in respect of any development which would be of a class referred to in Article 24(1) (a) but for not exceeding a quantity, area or other limit for the time being specified in relation to that class………and where they consider that the development would be likely to have significant effects on the environment, they shall require the applicant to submit an environmental impact statement..”
61. Thus, where consideration has to be given, in a sub-threshold case, to the question of whether a proposed development would be likely to have significant effects on the environment, which is the criterion for deciding whether the planning application should be accompanied by an EIS, it is the planning authority which must make that judgement. Moreover, the planning authority is required to consider all environmental effects, including pollution. I have explained how the EIA Regulations, most recently that of 1999, prescribe that the environmental concerns, comprehensively set out in Article 3 of the 1985 Directive, be dealt with in the contents of an EIS
The Board is similarly obliged to consider whether to require an EIS in sub-threshold cases
62. Article 56 of the 1994 planning regulations is crucial on the facts of this case and was central to the decision of the learned trial judge. It requires the Board, on appeal, where the planning authority has not sought an EIS to exercise the same judgement, as that just described, in sub-threshold cases. Where the appeal relates to a sub-threshold development, Article 56(2) says:
“…where the planning authority did not require the applicant, in accordance with Article 26, to submit an environmental impact statement, the Board shall, where it considers that the development would be likely to have significant effects on the environment, require the applicant to submit to the Board an environmental impact statement.”
The Planning Authority or the Board must have regard to the selection criteria
63. Article 4.3 of the 1985 Directive, as amended, requires Member States to “take into account…the relevant selection criteria set out in Annex III..” both when setting national thresholds and when considering, on a case-by-case basis, whether the likely effects on the environment are such as to lead to the conclusion that an EIS should be required.
64. The 1999 EIA Regulations added a new Article 27 of the1989Regulations:
“The criteria set out in the third schedule are hereby specified for the purposes of this Article”
65. Strangely, however, the Article specifies no such purposes, creating, as counsel said “a mystery” about this provision. However, Article 11 of the Local Government (Planning and Development) Regulations, 1999 (S.I. 92/1999) inserted a new paragraph (1B) in Article 26 of the 1994 Planning Regulations , which solves the mystery.
“A planning authority shall, where it is deciding pursuant to this Article whether a proposed development would or would not be likely to have significant effects on the environment, have regard to the criteria specified for the purposes of Article 27 of the European Communities (Environmental Impact Assessment) Regulations, 1989.”
66. Thus, the planning authority, making the judgment already referred to under Article 26 of the 1994 Planning Regulations on likely effects on the environment, they must have regard to the specified criteria. They are contained in the new Third Schedule to the 1999 EIA Regulations, which list a number of matters under the headings of characteristics and location of the proposed development, and the characteristics of its potential impacts. For present purposes, it is important that the criteria include, for example, size, cumulation with other development, use of natural resources, production of waste and pollution and nuisances.
67. Mr Galligan, on behalf of the appellant, objected that Article 11 of the 1999 Planning Regulations could not affect or amend section 98 of the act of 1992. It must be remembered, however, that the “mysterious” Article 27 of the 1999 EIA Regulations has the status of a statute, being adopted pursuant to the European Communities Act, 1972. The selection criteria, which it enacts, come from Annex III of the 1997 Directive. It refers to the power to specify these criteria. Article 11 effectively does this. It does not purport to amend section 98(1) of the act of 1992. Insofar as the selection criteria have any effect, this derives from the 1994 EIA Regulations. It seems to me that all of these linked provisions are designed to give effect to the Directive. I do not accept, therefore, that Article 11 purports to amend or affect the act of 1992.
68. Where an EIS accompanies a planning application, in a case requiring a licence, it must, as has been seen, be sent to the Agency, which has the power to seek more information.
69. An EIS, submitted to a planning authority, must comply with Article 25 of the 1989 Regulations, as amended. Paragraph 2 of the Second Schedule to the 1999 EIA Regulations reflects, in slightly different words, the “aspects of the environment likely to be significantly affected by the proposed development…” They are:
“human beings, fauna and flora,
“soil, water, air, climatic factors and the landscape,
“material assets, including the architectural and archaeological heritage, and the cultural heritage,
“the inter-relationship between the above factors..”
70. I have explained how the contents of a EIS, as so prescribed, find their origin in Article 3 of the 1985 Directive. Clearly, a competent authority, whether a planning authority or the Board, in considering whether a proposed development is likely to have significant effects on the environment, will have regard to the matter which an EIS must contain. Such an authority must also, in considering how to exercise its powers, do so in such a manner as to give effect to the relevant provisions of European Community law.
71. A planning authority must also give notice of any EIS it receives to the Agency, where the development comprises activity requiring a licence.
72. There are separate provisions regarding the seeking of further information. Article 28 of the 1994 planning regulations obliges the planning authority to consider the adequacy of an EIS and to require further information, but they must exclude from their consideration “the risk of environmental pollution.” In that respect, the function of evaluating an EIS and seeking further information is conferred on the Agency by Article 14 of S.I. 85 of 1994.
73. The complex of regulations, as I have described them, contain a coherent scheme for the EIS and EIA. An EIS is furnished, in the first instance only to the planning authority. In sub-threshold cases, the planning authority considers whether there should be an EIS. When doing so, it will need have regard to the selection criteria set out in the Third Schedule the 1999 EIA Regulations and to consider what would be in an EIS, as specified in the second Schedule. To the extent that the appellant submits that a later act of secondary legislation cannot amend an earlier statutory provision, this cannot, in any event apply to the 1999 EIA Regulations. They have the status of a statute, having regard to the fact that they were adopted pursuant to section 3 of the European Communities Act, 1972 and have the status of a statute. The assignment of these tasks to the planning authority means that a single competent body must consider the likely environmental effects (including polluting effects) of a proposed development in an integrated way.
74. Even in cases involving a licence, the Agency cannot, therefore, require an EIS. However, where there is an EIS in a case involving a licence, it must be provided to the Agency and the Agency may seek further information.
75. The foregoing suffices to show that Mr Galligan’s argument for the existence of an independent power of the Agency to seek an EIS is incorrect. It is clear that the Agency’s function under S.I. 85 of 1994 is merely to be provided with an EIS, where An application for planning permission……is required to be accompanied by” an EIS.
Section 98(1) of the act of 1992
76. I turn then to the question of the meaning of section 98(1). The words of sub-paragraphs (a) and (b) refer, in clear terms, to two principal matters, which the planning authority or the Board have power to decide. They are:
the refusal of a permission or an approval under Part IV of the Act of the act of 1963
the imposition of conditions on the grant of a permission.
77. In either of these cases, a planning authority or the Board may not have regard to the risk of environmental pollution. These words, taken on their own, are not apt to preclude these authorities from having regard to these matters, when exercising any of their other powers. I can see the possible force of the argument that the EIA process, if it were not relevant to any decision that the planning authorities could make, would be pointless. Put at its highest, it could be said that, even though the plain words seem restricted to the two acts of refusal of permission and the imposition of conditions, it would be absurd to confer on an authority power to gather and consider material for no ultimate purpose. Accordingly, it might be said, the plain or primary meaning of the words should be rejected.
78. However, this “futility” argument will fail, if it can be shown that there is a plausible reason or point in the primary meaning. I think that the combined facts of the existence of the 1985 and 1997 Directives and their transposition into Irish law by the 1989, 1994 and 1999 EIA Regulations constitute an adequate answer. The statutory scheme in existence at the date of the relevant decisions in this case envisaged the planning authority and the Board taking steps to ensure that an EIS would be provided and that its adequacy be considered, and for the making of regulations to that effect.
79. The question then arises whether, as strongly contended by the appellant, the part of the wording of section 98 following the word, “accordingly,” lead to a different conclusion.
80. Given the conclusion I have already reached about sub-paragraphs (a) and (b), I am prepared, in principle, to accept that this is the correct approach. I agree that the ordinary meaning of “accordingly” is that it refers to matter which follows logically from an initial proposition. Nonetheless, it is necessary to consider the content of the two sub-paragraphs, lest their meaning clearly expanded the range of the prohibition in the earlier part. Sub-paragraph (ii) corresponds closely with the meaning of the earlier sub-paragraphs. The Board is not to “consider any appeal …, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity.” Here the prohibition is closely linked to the consideration of the decision that the Board has to make on the appeal itself. I do not think these words go further than those in (a) and (b).
81. In the case of the planning authority, the language is different. It says that “…in dealing with an application for a permission or for an approval for any such development [the planning authority] shall not consider any matters relating to the risk of environmental pollution from the activity;” “Dealing” is a word of broad import. One could well see that, in another context, it might refer to any and all stages of the handling by the planning authority of an application for planning permission. Here, however, I do not think the words can have been intended by the legislature to refer to the stage when the planning authority has to consider whether to call for an EIS. Several points lend support to this view.
82. Firstly, a broad interpretation of “dealing” seems in conflict with the meaning I have given to “accordingly.” It would go beyond the terms of sub-paragraphs (a) and (b). Secondly, it would be inconsistent with the language used by sub-paragraph (ii) relating to the Board. Thirdly, apart from the possible generality of the word, “dealing,” there is no positive indication that the sub-paragraph (i) was intended to cover the EIA procedure. Finally, quite direct support for the narrower meaning, in this particular context, can be derived from the language of section (1A) of the act of 1963 as inserted by the 1989 Regulations. Where it speaks of a planning authority “dealing with an application for permission for the development of land in respect of which an environmental impact statement was submitted,” the context concerns only consideration after the receipt of an EIS and, thus, necessarily the decision stage. In fact, as suggested at the hearing, sub-paragraph (i) of section 98 may have been following this wording.
83. I have reached the foregoing conclusion upon an analysis of the wording of the section, construing it as a matter of Irish law, pursuant to the normal canons of construction. Section 98 does not, in my view, bear the meaning propounded on behalf of the appellant. Moreover, I would, if necessary, accept Mr Clarke’s submission, on behalf of Thesio. It is common case that Irish law implementing directives should be construed in the light of the obligations imposed on the State by the provisions of the directives and with a view to giving effect to Community law. However, it is a matter for the national court to decide how that result is to be achieved. When applying national law, whether adopted before or after the directive, the national court called upon to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result which it has in view. (See, for example Dorsch Consult (Case C-54/96 [1997] ECR I-4961). It is more natural to interpret an existing provision of the law, even in the event of ambiguity, so as to make that meaning conform to Community law than to insert a provision into a particular national law so as to give it a meaning it does not naturally bear. In this case, it would be preferable to interpret section 98 as not prohibiting the competent planning authorities from giving effect to the directives (by having regard to the entire range of possible effects on the environment and deciding whether an EIS should be called for) rather than to insert a new provision conferring that power on the Agency, by implication, at some undetermined place in the act of 1992. The first course would do less violence to the statutory words.
84. I also accept that it is more consistent with the objective of the directives that a single authority be charged with giving comprehensive consideration to the likely effects of a development on the environment, for the purpose of deciding whether there should be an EIA. The competent authority performing that function is in a better position to take into account the interaction, required by Article 3 of the 1985 Directive, between the different environmental considerations.
85. Therefore, I would reject the appellant’s submission that section 98(1) prevented the planning authority or the Board from taking environmental pollution into account in deciding whether there should be an EIS. Thus, there was no failure to transpose the directives. The failure, if any, of the planning authority or the Board to seek an EIS was within their powers, which have not been contested.
Protection of Habitats
86. Finally, I consider the complaint that the Agency did not give proper consideration to the effects of the activity to be permitted by the licence would have on habitats. There is, in close proximity to the site, a Special Protection Area designated pursuant to Council Directive on the conservation of wild birds of 2nd April 1979 (O.J. L 103 of 25th April 1979) the Wild Birds Directive of 1979). That Directive was amended and extended by Directive 92/43 of 21st May 1992 on the conservation of natural habitats, and of wild fauna and flora (O.J. L 206 22nd July 1992 page 7), (known as “the habitats Directive). Article 6.3 of the Habitats Directive imposes an obligation on Member States:
“3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”
87. Regulations to give effect to the State’s obligations pursuant to these directives are found in the European Communities (Natural Habitats) Regulations, 1997. Article 32(1) of those regulations provides:
“Where an operation or activity or an established activity to which an application for a licence or a revised licence or a review of a licence or revised licence, as appropriate, under any of the enactments set out in Part II of the Second Schedule applies is neither directly connected with nor necessary to the management of a European site or likely to have a significant effect thereon either individually or in combination with other operations or activities or established activities a local authority, the Board or the Environmental Protection Agency shall ensure that an appropriate assessment of the environmental implications for the site in view of the site’s conservation objectives is undertaken.”
88. Thesio submitted to the Agency, as part of the material accompanying its application for a licence, a report from an ecological consultant on the “Proposed Combined Cycle Power Station at Dungarvan…” under the heading, “Flora and Fauna.” This report considered the possible effects of the proposed power plant on the Dungarvan harbour SPA, already mentioned as well as on five other provisional National Heritage Areas within a ten-kilometre radius. The expert reported that no adverse effects were to be expected. The Agency was entitled to accept the accuracy of this report, as they did. It is not contended that the decision of the Agency was irrational in the sense in which that term is used in applications for judicial review.
89. This ground of appeal must also be rejected.
90. I would, therefore, dismiss the appeal.
Thomas Maher v An Bord Pleanála and Thomas McEvoy
and the County Council of County Kilkenny (notice parties)
1
997 No. 316 JR
High Court
7 May 1999
[1999] 2 I.L.R.M. 198
(Kelly J)
Introduction
On 20 June 1997 the respondent (the board) granted the first named notice party (Mr McEvoy) planning permission for a 200 sow integrated pig unit at Ballyconra, Ballyragget, Co Kilkenny. It is common case that in making this decision the board did not require the submission of an Environmental Impact Statement (EIS) by Mr McEvoy. Neither did it conduct an Environmental Impact Assessment (EIA) prior to reaching its decision to grant the planning permission.
In these proceedings the applicant seeks an order of certiorari to quash this decision of the board. He does so on two alternative bases. First, he says that there was a mandatory obligation imposed upon the board to have an EIS sub *201 mitted and to conduct an EIA pursuant to the thresholds set by the European Communities (Environmental Impact Assessment) Regulations 1989 (SI No. 349) (‘the 1989 regulations’).
If he is incorrect in this assertion he says that in the light of the nature, size and location of the proposed development then pursuant to EC directive 85/337 or in the light of the likely significant effects on the environment of the proposed development then pursuant to article 56(2) of the Local Government (Planning and Development) Regulations 1994 (SI No. 86) (the 1994 regulations) both an EIS and EIA should have been conducted.
The applicant contends that a failure on the part of the board to insist upon the submission of an EIS and a failure to conduct an EIA renders its decision bad in law and that it ought to be quashed.
Judicial review
On 20 October 1997 Moriarty J granted leave to commence these proceedings. The board did not oppose the application and accepted that a ‘substantial ground’ within the meaning of s. 82(3B)(a) of the Local Government (Planning and Development) Act 1963 exists as to the interpretation and application of the relevant regulatory provisions.
The applicant
The applicant is a principal teacher in a primary school. He resides together with his family in Ballyragget in the near vicinity of the proposed development.
He is a member of a group called the Noreside Environmental Protection Group (the group). The group objected to the second named notice party (the county council) when Mr McEvoy first sought permission for the development. The group was one of the appellants against the grant of the permission by the county council. The board does not take any issue with the applicant’s locus standi and it accepts that the issues raised in these proceedings are substantially the same as those raised by the group in its appeal to the board.
Mr McEvoy
Mr McEvoy made previous applications for planning permission for similar developments in the same locality. These applications were refused. However, these applications related to a different site in a different townland and they also included different spread grounds for the slurry likely to be generated by the proposed development. It does not appear to me that what happened on those occasions or the attitude adopted by the board in relation to them has any bearing on the legal questions in suit. Neither do I consider to be relevant the fact that Mr McEvoy previously made an application for planning permission for a development on the precise site of the development the subject of these *202 proceedings and withdrew his application before any decision was reached by the county council.
This application falls to be considered on its own merits in the light of the relevant statutory provisions. As the judgment proceeds it will become apparent that the board has not been consistent in its interpretation and application of the relevant statutory provisions. Again that is not a factor which has a bearing upon this application since it falls to me to decide whether or not in the present case the board adopted the correct approach or not.
The locality
The applicant contends that the proposed development includes spreading sites for pig slurry adjacent to and in the vicinity of the waters of the river Nore and its tributary the Grange river. He says that these waters are recognised as important spawning grounds for brook lampreys as well as being a habitat for the fresh water pearl mussel. He contends that both of these species are protected under the EU Habitats directive. He says that the site lies in a nature heritage area. The slurry generated by the development will be spread in an area overlying a major aquifer. It is a kirstified aquifer and has been classified as being extremely vulnerable. He says that this classification indicates that the time taken for a pollutant to reach the water table would be less than one week. In an area of low vulnerability the time taken would be in excess of 20 years. He also contends that the development will be sited in an area which was already seriously polluted and it must therefore have a significant effect on the environment posing a threat to the life, health and well-being of the inhabitants of the area and the flora and fauna of the locality.
He points out that the group requested the board to conduct an oral hearing prior to giving its decision. That request was refused on 20 March 1997.
The applicant contends that in these circumstances (which were more fully outlined in the submissions made to the board) it must have been clear to the board that this development was likely to have significant effects on the environment which required further investigation in the form of an EIA prior to the giving of consent to the project.
Legislative framework
EC Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment imposed a requirement on member states to implement measures to ensure that an environmental impact assessment is carried out by the appropriate competent authority before development consent is given for certain projects likely to have significant effects on the environment. Article 2(1) of the directive reads:
Member states shall adopt all measures necessary to ensure that before consent *203 is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to any assessment with regard to their effects.
These projects are defined in article 4.
Article 4 divides the projects to which the directive is applicable into two categories. Article 4(1) provides that the projects set out in annex I of the directive shall be subject to a mandatory environmental impact assessment before development consent is granted in all cases.
Article 4(2) provides that projects of the classes listed in annex II shall be made subject to an assessment, where member states consider that their characteristics so require. To this end member states may, inter alia, specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in annex II are to be subject to an assessment.
Regardless of whether an assessment is to be carried out pursuant to article 4(1) or article 4(2) of the directive such assessments must be done in accordance with articles 5 to 10.
Annex II sets out the projects which are subject to article 4(2). They include at paragraph 1(f) ‘pig-rearing installations’.
Articles 5 to 10 set forth the procedures to be adopted where an environmental impact assessment is required. The most significant provisions in the present case are article 5 which provides that the developer shall be required to submit certain information in accordance with annex III of the directive and article 6 which provides for the provision of information to the public and a consultation procedure together with article 8 which provides that the competent authority must consider the information gathered pursuant to articles 5, 6 and 7 in the development consent procedure.
Implementation of Directive 85/337
The directive was implemented in Ireland by the 1989 Regulations as supplemented by the 1994 Regulations. In summary, the system adopted in Ireland provides that where an EIA is required, the developer must submit an EIS with his planning application. The EIS must contain the information specified in paragraph 2 of the second schedule to the 1989 Regulations and may contain the information specified in paragraph 3 of the second schedule.
If an EIS as submitted is inadequate the planning authority must inform the developer and require the submission of such further information as is necessary.
There are obligations placed upon a planning authority to publish notice of cases in which an EIS has been submitted or is required. Notification of any *204 such application must also be given to the Minister for the Environment. In addition, bodies which are entitled to receive notification of certain applications pursuant to article 2 of the 1994 Regulations must be sent a copy of any EIS submitted to the planning authority. The EIS itself must be available for public inspection at the offices of the planning authority and copies of it or extracts from it must be available for purchase.
A planning authority is not entitled to determine a planning application in which an EIS has been submitted until at least 28 days after the information necessary to comply with the EIS requirements has been submitted by the developer. The usual minimum period which must elapse between receipt of an application and the making of a decision is 14 days but extra time is given in the case of a development involving an EIS. This is intended to facilitate public comment on the contents of the EIS.
Under s. 26(1A) of the 1963 Act as amended, the planning authority must have regard to the contents of the EIS and any observations or submissions made thereon in deciding upon an application for permission.
When an EIS is required it is submitted to the planning authority. If the decision of the planning authority is appealed to the board, the EIS forms part of the material placed before the board before it makes its decision. The board, in determining an appeal, is required to have regard to the contents of the EIS and any submissions or observations thereon pursuant to s. 26(5)(d) of the 1963 Act.
The application of the regulations
Article 24 of the 1994 Regulations requires the submission of an EIS in relation to developments which are deemed to be ‘specified development’ under article 24(1) of the 1989 Regulations or developments which would be specified developments but for not exceeding certain thresholds or criteria and in respect of which an integrated pollution control (IPC) licence is required. I should digress here to indicate how the IPC licence comes into the picture. The measures required to be taken under the directive have been implemented in Ireland by integrating them into existing procedures. In part they have been integrated into the planning process and in part into the IPC licensing procedure under the Environmental Protection Agency Act 1992.
To return to article 24 of the 1989 Regulations, one finds that it provides that projects set out in parts I and II of the first schedule to the regulations are ‘specified’ for the purposes of the regulations. Part I of the first schedule corresponds with annex I of the directive. It covers those projects in respect of which an EIS is mandatory in all cases. Part II corresponds with annex II of the directive and sets thresholds in respect of the projects listed therein in accordance with article 4(2) of the directive. Projects which exceed these thresholds are deemed to be ‘specified development’ within the meaning of article 24 of the *205 1989 Regulations. The submission of an EIS in respect of such developments is mandatory under article 24 of the 1994 Regulations.
Paragraph 1(e) of part II of the first schedule to the 1989 Regulations sets the threshold above which an EIA is mandatory in relation to pig rearing installations. It reads as follows:
(e) Pig rearing installations, where the capacity would exceed 1,000 units on gley soils or 3,000 units on other soils and where units have the equivalents:
1 pig = 1 unit,
1 sow = 10 units.
In addition to circumstances where an EIS is mandatory by reason of the proposed development falling within a class listed at part I of the first schedule or by virtue of exceeding a threshold set in respect of a class listed at part II of the first schedule of the 1989 Regulations, the 1994 Regulations also make provision for the submission of an EIS where either the planning authority, or the board on appeal therefrom, forms the view that the proposed development, although not covered by the first schedule, ‘would be likely to have significant effects on the environment’. The relevant provisions in this regard are contained in article 56(2). It reads as follows:
Where an appeal is against a decision of a planning authority on a planning application which relates to development which would be of a class for the time being specified under article 24 of the Environmental Impact Regulations (or under any provision amending or replacing the said article 24) but for not exceeding a quantity, area or other limit specified in relation to that class and which is not development referred to in sub-article 1(b), and where the planning authority did not require the applicant, in accordance with article 26, to submit an environmental impact statement, the board shall, where it considers that the development would be likely to have significant effects on the environment, require the applicant to submit to the board an environmental impact statement.
It is clear that the 1994 Regulations also envisage circumstances in which the submission of an EIS was mandatory under article 24 of the 1994 Regulations, but where the planning authority mistakenly did not require an EIS and one was not submitted by the developer. Article 56(1) of the 1994 Regulations gives the board a power to require the submission of an EIS on appeal in such circumstances. It reads as follows:
Where an appeal is against a decision of a planning authority on a planning application which relates to development which, in the opinion of the board, is development— *206
(a) of a class for the time being specified under article 24 of the Environmental Impact Assessment Regulations (or under any provision amending or replacing the said article 24), or
(b) which would be of a class referred to in paragraph (a) but for not exceeding a quantity, area or other limit for the time being specified in relation to that class and which comprises or is for the purposes of an activity in relation to which a licence under Part IV of the Environmental Protection Agency Act 1992 is required,
and an environmental impact statement was not submitted to the planning authority in respect of the planning application, the board shall require the applicant to submit to the board an environmental impact statement.
The application of the thresholds
The first question which I have to decide is whether the proposed development exceeded the threshold set for developments of that class in paragraph 1(e) of part II of the first schedule to the 1989 Regulations. If so, then the submission of an EIS was mandatory pursuant to article 24 of the 1994 Regulations.
The applicant contends that the interpretation which was given to paragraph 1(e) by the board on this occasion was incorrect. The board argues otherwise. In so doing however, it accepts that in considering previous appeals it adopted interpretations of the regulations at variance with the interpretation which it now believes to be correct.
In my view the question of the proper interpretation of the regulations is a matter of law which must be decided upon this application. The previous approach of the board is not directly relevant nor shall I take it into account in considering the question. In fairness to the board however, it must be said that it accepts that the submission of an EIS is mandatory once a proposed development exceeds the threshold and the interpretation of the threshold is a matter of law. The board also accepts that it does not have discretion to err within jurisdiction in this regard. It follows therefore that if the applicant’s contention as to the interpretation of the threshold set by paragraph 1(e) is correct and Mr McEvoy’s proposed development exceeds that threshold then the applicant is entitled to an order of certiorari.
The numbers involved
At paragraph 17 of his grounding affidavit the applicant says that on a proper calculation of the units produced by a 200 sow integrated unit, the total units produced by the proposed development would be in excess of 4,300. This would mean that the development would be well above the limit of 3,000 units which is permissible in respect of non-gley soils. The basis for his calculation is as follows: *207
Pigs Housed
No. of Units
200 sows
2,000
30 gilts
300
800 weaners
800
1,200 finishers
1,200
10 boars
10
Total
4,310
Mr McEvoy’s figures as to units are dramatically different. It was his figures which were accepted by the board. In her affidavit of 4 December 1997 Elizabeth Dolan, a senior administrative officer of the board says as follows:
I say that on receipt of the said appeal the respondent considered whether the submission of an EIS in relation to the proposed development was mandatory pursuant to article 24 of European Communities (Environmental Impact Assessment) Regulations 1989–1994 (hereinafter referred to as the regulations of 1989) and in particular pursuant to the first schedule, part II, class (1)(e) thereof. I say that under the said article the submission of an EIS is required for developments comprising pig rearing installations on non-gley soils (as was the case in the instant appeal where the capacity exceeds 3,000 units and where one pig is taken as equalling one unit and one sow is taken as equalling ten units. I say that pursuant to the developer’s application the pig population of the proposed development, in full production, would comprise 165 dry sows, 35 suckling sows with bonhams, 20 maiden gilts, 8 boars, 900 weaners and 1,000 finishers. I beg to refer to chapter 2 entitled ‘Description of Project’ of the developer’s application exhibited as TM 5A of the affidavit of the applicant herein when produced.
She goes on:
I say that the respondent took the view that the proposed development comprised 2,208 units being 1,650 units of dry sows, 350 units of suckling sows, 200 units of maiden gilts and 8 units of boars. I say that it is the respondent’s understanding that the reason a sow is treated as ten units is to take account of the cumulative environmental effect (especially by the creation of effluent) of a sow and her progeny including weaners and finishers. It is the practice of the board also to treat gilts as ten units.
From her affidavit it is clear that in reaching the view which it did that the total capacity of the proposed development was 2,208 units the board had regard to the Environmental Protection Agency’s ‘BATNEEC’ Guidance Note for the Pig Production Sector. In p. 4 thereof it is noted that the definition of a sow includes her progeny. However, whilst the board adopted the view that the approach of the Environmental Protection Agency was appropriate and correct in regard to the calculation of the equivalent unit value of the number of sows, *208 the board did not regard itself as bound by that. Having concluded that the number of units was well below the 3,000 threshold the board concluded that this was not a case in which there was a mandatory obligation to have an EIS or to conduct an EIA. I must now examine this contention.
Why the difference?
The reason for the discrepancy between the two unit figures is easy to discern. The board has decided that in the calculation of pig numbers it will proceed on the basis of the Environmental Protection Agency’s ‘BATNEEC’ Guidance Note for the Pig Production Sector where the term ‘sow’ includes progeny. If that is so it follows that the board does not take into account the individual finishers and weaners in calculating the number of pigs and indeed the number of units. This means in effect that the board excludes certain types of pigs from the test set down in the regulations. The reason for this is given at paragraph 7 in the affidavit of Elizabeth Dolan. She says:
… since the progeny of each sow is taken into account in calculating her environmental effect as ten units, it would involve the double counting of animals to include each weaner and finisher as a separate unit. Consequently the weaners and finishers likely to be present in the installation are excluded from individual calculation when calculating the capacity of the installation since they are already included by virtue of the additional units accorded to each sow to take account of her progeny.
There was a good deal of affidavit evidence adduced as to which approach was correct from the point of view of agricultural practice. For example, on behalf of the applicant, Mr John O’Malley, an agricultural consultant, said that it is normal for a sow to give birth to approximately two and a half litters per year. A litter will contain between eight and 12 pigs. It is accepted in the industry that a sow will produce on average 23 finished pigs in any given year. Accordingly a 200 sow integrated unit can be expected to produce approximately 4,600 finished pigs in any year. A piglet normally suckles a sow for the period of three to five weeks. Once they are weaned from the sow the pig is termed a ‘weaner’. It is usual practice in integrated units that at this stage the weaner will be housed in separate weaner houses or units. When a pig reaches the liveweight of about 35 kgs it becomes known in the industry as a ‘finisher’. A finisher is normally kept at the unit until it reaches the weight of approximately 85 to 100 kgs. Other categories of the pig family include the gilt and the boar. The term gilt is applied to female pigs prior to and including their first pregnancy. In his experience it is the practice of State and other agencies in assessing the unit capacity of integrated pig units for the purpose of determining whether an EIS is required to assess a gilt selected for breeding as equalling ten units in similar manner to a sow. Unlike the sow, however, the gilt is not *209 nursing piglets and so it follows that the ten unit assessment results from the potential environmental impact of the gilt herself. He went on to say that the capacity of a unit determines the number of categories of pigs housed in the unit and the number of pigs and pig types determines the quantity of manure produced by the unit. In terms of neat excreta, as a single environmental impact issue, the sow produces a daily average of nine litres whilst a growing pig produces three and a half litres. On average therefore the sow produces more than twice the daily neat excreta of the growing pig. For these and other reasons he expressed the view that the ten units accorded to a sow under the regulations could neither in common sense nor as a matter of agricultural science be deemed to encompass the environmental impact of the progeny of the sow i.e. 23 pigs at various stages of development — approximately ten in the final stage to slaughter. He says that by simple analogy, if one applied this method of assessment to all pig units then one could only conclude that specialised finishing units could never be required to conduct an EIA by reference to the unit capacity alone of the finishing unit as they would be accorded zero units.
In her affidavit of 26 March 1998, Elizabeth Dolan accepts and agrees with Mr O’Malley that a sow will give birth to an average of two and a half litters per year and that each litter will contain an average of eight to 12 piglets. But she points out that whilst it is correct to state that an average sow will produce 23 finished pigs per year and that a 200 sow unit will produce 4,600 finished pigs in the same period, those figures are misleading as all 23 piglets produced by an average sow in any given year would never be alive and present in an integrated pig unit at any one time.
She also accepts and agrees that a finisher is a young pig weighing between 32 kgs and 85–100 kgs and that finishers are usually aged between three and five months. She says that in the industry finished pigs are usually sold for slaughter at the age of approximately five months. In general therefore finished pigs produced by a sow in any one litter are usually ready to be sold for slaughter at roughly the same time as the sow is due to farrow her new litter. Therefore any overlap between the presence of a sow’s last litter and her new litter in an integrated pig unit is necessarily short and in many cases may not arise at all.
She also accepts that the relevance of the number of pigs present in an integrated unit arises from the amount of slurry or neat excreta produced by each animal and the effect of such slurry on the surrounding environment.
Whatever may be the relative merits of these different points of view what I am asked to consider on this application is a question of interpretation of regulations.
The board’s own evidence demonstrates that the interpretation of the regulations which is urged upon me by the applicant is one which they shared until quite recently. The affidavit of Paula McHugh of 10 September 1998 demon *210 strates this. That departure seems to rely upon the ‘BATNEEC’ Guidelines which treat a sow as including her progeny. In so doing the EPA which produced these guidelines make it clear that the test is not a legal one. The explanation for this change in approach on the part of the board is accounted for by, inter alia, the fact that a different interpretation of a pig and a sow prevailed at the time when the original attitude was adopted by the board. Indeed Elizabeth Dolan’s affidavit of 20 October 1998 makes it clear that the board’s interpretation of the regulations ‘has evolved over time in light of judicial authority and of consultations with the Environmental Protection Agency … and publications by the EPA and other public bodies’. The board says that its present interpretation ‘best reflects the legislative intention and best achieves the objective of the said regulations’.
What is a pig?
The applicant contends that the plain and ordinary meaning of the word ‘pig’ and ‘sow’ in the context of the regulations requires the board to take account of each pig within the unit in calculating the thresholds in question. It is to be noted that no definition of the word ‘pig’ is given in the directive or indeed in the implementing regulations.
Statutory construction — Part I
The board accepts that in normal course when approaching the interpretation of a regulatory provision a court should give the ordinary and natural meaning to the word or phrase under consideration. However, it says that there are circumstances where the adoption of an overly literal construction of a particular word or phrase will result in an ambiguity or inconsistency in the context of a provision as a whole. In this context the board submits that whilst it might at first sight appear logical to give the word ‘pig’ a literal interpretation to cover any porcine animal of any age, such interpretation is ambiguous when taken in the context of paragraph 1(e) as a whole. The board further says that the interpretation advanced by the applicant is contradictory in that whilst seeking to have ‘weaners’ and ‘finishers’ treated as pigs in their own right, the applicant concedes that suckling piglets prior to weaning are not intended to come within the definition of ‘pig’. Such a concession the board says is an acknowledgement that the word ‘pig’ is not intended to cover all pigs and that the definition of sow is intended to include the progeny of a sow. What is in issue therefore between the parties is the extent to which a sow’s progeny are included within the definition of sow and encompassed within the ten pig units assigned to a sow under the regulations.
The applicant counters by saying that there is a distinction to be drawn between a piglet and a pig. The piglet is associated with the mother and largely dependant upon her. It then moves from the mother to become a weaner and *211 must then be regarded as a pig in its own right. It moves to a production unit which in the case of an integrated unit will form part of the overall. If however, the weaner were to move to a production unit which was a little distance further from the breeding unit it would have to be regarded as a pig in its own right and would reckon as a single unit for the purpose of the regulations.
Statutory construction — Part II
Leaving aside any European element in the case, it appears to me that the most elementary rule of construction of legislation has been stated by Lord Reid in Pinner v. Everett [1969] 1 WLR 1266 at p. 1273 when he said:
In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute?
In Rahill v. Brady [1971] IR 69 Budd J said at p. 86:
In the absence of some special technical or acquired meaning, the language of a statute should be construed according to its ordinary meaning and in accordance with the rules of grammar. While the literal construction generally has prima facie preference, there is also the further rule that in seeking the true construction of a section of an Act the whole Act must be looked at in order to see what the objects and intention of the legislature were; but the ordinary meaning of words should not be departed from unless adequate grounds can be found in the context in which the words are used to indicate that a literal interpretation would not give effect to the real intention of the legislature.
In Howard v. Commissioners of Public Works [1994] 1 IR 101 Blayney J at p. 151 quoted with approval the following passage from Craies on Statute Law (7th edition 1971):
The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver. ‘The tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to enquire what is the subject matter with respect to which they are used and the object in view’ [perLord Blackburn in Direct United States Cable Co. v. Anglo-American Telegraph Co. (1877) 2 App Cas 394].
Applying this approach it seems to me that the term ‘pig’ is a generic one to *212 describe several categories of the swine species. The concise Oxford Dictionary defines a pig as ‘any omnivorous hoofed bristly mammal of the family Suidae’. Accordingly, in my view, applying the literal test, the term ‘pig’ covers boars, weaners and finishers and would apply to sows were it not for the fact that they are separately identified as such in the regulations. The application of this literal test would of course mean that piglets would also be included and would have to be accounted for as representing one unit each. Applying the test enunciated by Budd J in Rahill v. Brady (supra) I have to ask myself does such a literal interpretation give effect to the real intention of the legislature? In my view it does not.
The principal reason for so concluding is the separate identification of sows from pigs and the attribution to them of ten units rather than one. The attribution of the number of units per head is quite clearly associated with the excreta of the animal. The attribution of ten units to a sow is in my view a clear acknowledgement by the regulations that her progeny are taken into account in assessing the ten units. But the question then arises as to whether the progeny so included go beyond mere piglets and also include weaners and finishers derived from an individual sow. The resolution of this question can in my view be best achieved by resorting to the teleological or ‘purposive’ approach to interpretation.
The purposive approach
In Shannon Regional Fisheries Board v. An Bord Pleanála [1994] 3 IR 449 at pp. 457–458 Barr J said:
The EU regulations imported into Irish law by the European Communities (Environmental Impact Assessment) Regulations 1989, emanate from a recognition that large-scale industrial or agricultural activities, such as pig-rearing and breeding, may cause substantial damage to the environment and, therefore, such activities require to be properly regulated to minimise that risk. The regulations provide that where such agricultural activities are intended to be concluded at or above a certain minimum scale of intensity, then it is mandatory for an applicant who seeks planning permission for the development to furnish to the local planning authority an EIS, which it in turn must consider and take account in deciding whether or not to grant permission for the proposed development for retention of an existing unauthorised development and, if so, on what terms. In relation to a pig breeding operation it is recognised that a pregnant pig differs from her brothers in that within about three months she is likely to give birth to ten young pigs and, if retained for breeding, the probability is that she will have not less then two such litters every year. In short, the pregnant breeding pig and her prospective litters will generate annually a substantially greater effluent problem than will her male counterparts. The regulation recognises and deals with the situation by providing a formula for measuring the size and scale of *213 production of a piggery by allocating points per animal based on maximum occupancy and differentiating between sows on the one hand which are allocated ten units each, and all other pigs, which are allocated one unit each. The logic for this formula is perfectly clear. Pregnant pigs, all of which have a potential for generating through their expected offspring a substantially greater amount of slurry than single pigs, are allocated a greater number of units to reflect that situation. When one has regard to the object of the regulation as I have outlined, it follows that there is no practical distinction between a pregnant pig which is a gilt awaiting her first litter and a pregnant pig which has already had one or more litters.
The regulations in suit have their genesis in an EU Directive. They therefore fall to be interpreted in accordance with the underlying purpose of the directive. In this regard the decision of the Supreme Court in Nathan v. Bailey Gibson Ltd [1998] 2 IR 162 at p. 174 is apposite:
It is also well established that national or domestic courts in interpreting a provision of national law designed to implement the provisions of a directive, should interpret their national law in the light of the wording and the purpose of the directive in order to achieve the results envisaged by the directive.
The Supreme Court quoted from the European Court of Justice in the case of Von Colson and Kamann v. Land Nordrhein—Westfalen (Case 14/83) [1984] ECR 1891 at p. 1909 where it said:
However, the member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No. 76/207, national courts are required to interpret their national law in the light of the wording and purposes of the directive in order to achieve the result referred to in the third paragraph of Article 189.
In the present case Directive 85/337/EEC proceeds on the basis that the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects. It affirms the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision making processes. It recites that it is necessary to achieve one of the Community’s objectives in the sphere of the protection of the environment and the quality of life. It goes on to point out in the recital that general principles for the assessment of environ *214 mental effects should be introduced with a view to supplementing and co-ordinating development consent procedures governing public and private projects likely to have a major effect on the environment. The recitals to the directive also provide that development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out. It also provides that the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life.
Given that the regulations fall to be interpreted in the light of these recitals in the directive can it be said that the board’s approach to the interpretation of the regulations is correct? That approach means that all the progeny of a sow, both piglets, weaners and finishers are captured in the attribution of ten units to such sow. I do not think that this is the correct interpretation to be given to the regulations.
It is clear that the regulations are principally concerned with the detrimental effect which effluent from pigs is going to have on the environment. When dealing with the prospect of damage to the environment it is prudent to be cautious. This is so because frequently damage done to the environment is either irreparable or takes many years to repair. That is undoubtedly so in the case of the discharge of pig effluent or slurry.
It seems to me that the intention of the regulations in attributing ten units to a sow was intended to take account of the polluting impact of her litter before weaning. At that time the piglets are dependant on their mother and whilst on a literal construction are pigs, the effluent discharged by them would be of such a quantity as to be captured within the ten units assigned to the mother. When however they move on from being dependent upon her and are producing an ever greater quantity of effluent as they develop I cannot see any merit in the argument advanced by the board that they should still be reckoned as falling within the ten units assigned to the mother. I do not find any sound basis for the argument that the units accorded to the sow are intended to account for the environmental impact of that sow and her progeny right up to slaughter.
The evidence satisfies me that generally when piglets become weaners, that is having been weaned from the sow, they are moved to independent units where they are fattened so as they become finishers prior to slaughter. Indeed a perusal of the actual application for permission in the instant case demonstrates that separate weaning and finishing houses were envisaged. It would indeed be ironic if simply because these finishing and weaning houses are accommodated on the site of an integrated unit neither the weaners nor finishers were to be reckonable for an award of points under the regulations whilst if they were *215 housed a short distance away from the integrated unit they would each attract one point. Regardless of their geographic situation whilst in or out of an integrated unit they still produce the same amount of effluent. Yet in one case that effluent would not be reckoned for points purposes under the regulations but on the other it would. In my view it cannot have been the intention of the legislature that such an anomalous situation would arise particularly having regard to the intent of the regulations which in turn find their roots in the European directive.
It follows that the board ought to have regarded the weaners and finishers as being ‘pigs’ for the purposes of the regulations. They ought to have been reckoned as attracting one point each. Such being so, the project exceeded the threshold.
Conclusion
I conclude that the interpretation by the board of the threshold requirement in paragraph 1(e) of part II of the first schedule to the Regulations of 1989 is legally incorrect. It follows therefore that an EIS was required for the proposed development. As it was not forthcoming and no EIA was carried out the planning permission granted by the board is fatally flawed. It follows that the applicant is entitled to an order of certiorari directing the board to send up to this Court for the purpose of being quashed its decision of 20 June 1997 to grant planning permission to Mr McEvoy.
In such circumstances it is neither necessary nor I think desirable that I should consider the alternative grounds which were advanced in support of the application.
The applicant succeeds and an order of certiorari will issue to quash the decision in suit.
O’Nuallainn v. The Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin
[1999] 4 I.R. 137
[1999 No. 154 JR]
High Court 2nd July 1999
Smyth J.
2nd July, 1999
Introduction
Nelson’s Pillar was built between 1808 and 1809. The General Post Office (designed by the distinguished Irish architect, Francis Johnston) was built in 1820. The statute of Lord Nelson was executed by Thomas Kirk R.H.A. (1781 to 1845), one of the few Irish sculptors of international renown. The Nelson monument was irreparably damaged in 1966, and ultimately required to be removed in its entirety for public safety reasons.
The formal dimensions of O’Connell Street were determined as early as the 1740’s by the eighteenth century entrepreneur, Luke Gardiner, who developed Gardiner’s Mall with terraces of elegant townhouses running from the grounds of the newly built Rotunda Hospital to Henry Street. This spacious thoroughfare was subsequently known as Sackville Mall and, after 1922, was renamed as Upper O’Connell Street. In 1796, the Wide Street Commissioners decided to continue the street from Henry Street to the river in the construction of what is known as Lower O’Connell Street. The considerable width and spatial qualities of this street promoted its use as a place of public assembly and civic ritual. Its importance as a focus for national ideals can be seen in its choice as the site of commemorative monuments to historic figures such as Daniel O’Connell, Charles Stuart Parnell, William Smith O’Brien and James Larkin. With the exception of the comparatively recently executed Anna Livia fountain, every other monument on O’Connell Street has a pronounced verticality of emphasis. The abiding perception of the street has traditionally been a serial progression of vertical elements of different heights – forming a central zone running from the river to the Rotunda – flanked by a continuous building perimeter forming the edges of the street. The oldest and most historic monument associated with O’Connell Street – the former Nelson’s Pillar – was considerably higher than the peripheral buildings in the street. At 134 feet high, it was nearly two and a half times as high as the adjoining General Post Office. There is respectable architectural opinion for the view that the destruction of the Pillar seriously altered the architectural coherence and ceremonial character of the street-scape. The success of the compositional relationship between Nelson’s Pillar and the surrounding buildings was not accidental. Francis Johnston was deeply involved in the design of both the Pillar and the General Post Office. The siting and the dimensional co-ordination of both these monuments was under his control. As architect of the Board of Works from 1805 until the 1820’s, he was responsible for developing the design of the Pillar from an original sketch made by William Wilkens. Several drawings of the Pillar – some without Nelson’s statue – made by Johnston have survived. He in fact supervised the construction of the Pillar and the execution of the statue.
In or about the month of July, 1997, the respondent, through its then Lord Mayor, Councillor John Stafford, initiated a study which came to be known as the O’Connell Street Integrated Area Plan. The Integrated Area Plan was prepared and completed, and launched by the Lord Mayor on the 27th February, 1998. On the 31st March, 1998, the Integrated Area Plan was submitted to the Department of the Environment and Local Government, and the Minister for Housing and Urban Renewal approved of it by letter dated the 17th February, 1999. The Integrated Area Plan provides for the reinstatement of a monument at the site of the former Nelson’s Pillar at the junction of O’Connell Street and Henry Street. The proposal was to reinstate a monument at the said site in order to foreshorten the length of O’Connell Street and to give a focal point to the street in the city. The Integrated Area Plan indicates at p. 98 that:-
“The present shortfall in the definition of space at the junction of O’Connell Street and Henry Street will be addressed by public competition.”
A number of illustrations of the proposed monument are to be found throughout the Integrated Area Plan.
The competition
A competition for a new monument for O’Connell Street was initiated on the 8th July, 1998. The competition was promoted by the respondent and was organised and administered by the Royal Institute of the Architects of Ireland. 205 entries were received, and the winning entry was announced to the public on the 25th November, 1998. There were both rules and regulations governing the competition. The design parameters provided for in the competition rules are of importance and are as follows:-
“1.1 Design Parameters
The objective of the competition – strictly in urban design terms – is to reinstate a monument which has a pivotal role in the composition of the street, fixing the central points of the street beside the General Post Office, enclosing the vistas from north , south, east and west.
The monument should be a new symbol and image of Dublin for the twenty-first century (such as, for example, the Eiffel Tower is for Paris and the Statue of Liberty is for New York).
The area zoned for this monument is the former site of the Nelson Monument at the junction of Upper and Lower O’Connell Street on the north/south axis and Henry Street and North Earl Street on the east/west axis.
The monument shall have a vertical emphasis, an elegant structure of twenty-first century contemporary design, which shall relate to the quality and scale of O’Connell Street as represented by the late eighteenth century and early twentieth century architecture and civic design adaptable to new technologies and require low maintenance in the future.
Competitors are expected to familiarise themselves with the O’Connell Street Integrated Area Plan.”
The rules provided for a two-stage competition and for the presentation of a design package and also included a programme which made specific reference to “Planning Part X”, which, it is common case, refers to Part X of the Local Government (Planning and Developments) Regulations, 1994 (S.I. No. 86 of 1994), (hereinafter referred to as “the Regulations of 1994”). The applicant was one of the competitors. He did not succeed in passing the first stage of the competition. Accordingly, he was not considered at stage two when a jury (by common agreement referred to as being autonomous) chose the winning entry at the end of the stage two process and so reported to the respondent. The matter was put before the Planning and Development Committee (a statutory committee of the City Council) on the 12th January, 1999, and the Council were informed that it was proposed to follow the Part XI procedure of the Regulations of 1994 in relation to the planning process for the construction and erection of the new monument for O’Connell Street. The matter was advertised in “The Irish Times” and “The Irish Independent” newspapers on the 13th January, 1999. A planning notice was placed on the site of the proposed development. On the 21st January, 1999, a weekly planning list together with a notification of the particulars in respect of the proposed monument was circulated under the provisions of art. 132(3)(c) of the Regulations of 1994 but a challenge has been raised as to whether this article was fully complied with. Pursuant to art. 133 of the Regulations of 1994, the respondent made available for inspection by members of the public a document describing the nature and extent of the proposed development by the respondent, which document outlined the principal features of the new monument proposed to be constructed by the respondent. The document was available for inspection for a period of one month from the 13th January, 1999. The respondent received some observations and submissions in regard to the proposal and, pursuant to art. 134 of the Regulations of 1994, a report was prepared by Mr. Gleeson, a Deputy Assistant Planning Officer, which recommended the construction of the monument. The said report was signed by Mr. John Fitzgerald, the City Manager and Town Clerk, and was submitted to the elected members who by majority noted the report. The decision to proceed with the project was made on the 1st March, 1999, as extended at a further meeting on the 8th March, 1999. The managerial orders referable to the project are those exhibited as
“CMN6” in the affidavit of Ciaran McNamara sworn on the 11th May, 1999.
Legal proceedings
On the 23rd April, 1999, the applicant sought and obtained leave to apply by way of application for judicial review for the reliefs set forth at para. D of the statement and on the grounds set forth in para. E of the statement required to ground an application for judicial review.
The first of the several complaints of the applicant was that there were a number of illegalities associated with the architectural competition, in particular, that the winning entry does not relate to the scale of O’Connell Street, as represented by the late eighteenth century and early twentieth century architectural and civic design. Provisions of the design brief hereinbefore referred to were also subject to art. 2(1) of the competition regulations which provided that: “the assessment shall be carried out in accordance with the requirements of the briefing information and competition regulations provided to the competitors”. The requirement that the new monument “shall relate to the quality and scale” of O’Connell Street, as represented by the late eighteenth century and early twentieth century architecture and civic design, was of defining importance. The inclusion of this criterion in the design parameters for the new monument meant that persons entering the competition reasonably concluded that their proposed designs were obliged to relate to all elements of the quality and the scale of the streetscape as it stood at the date of the competition. The former requires a qualitative relationship between the proposed design and the existing factors, whereas the latter required a quantitative relationship between the proposed design and those factors. The applicant contended that a reasonable entrant for the competition was entitled to conclude that this latter criterion addresses the issue of the height of the new monument. Its height, where it was required to relate to the buildings on O’Connell Street, it is contended, must be similar to the height of the said buildings. I do not accept this contention, but at the same time I acknowledge that the question of scale is a mandatory provision in the terms of the competition rules because of the expression “shall relate” in the design parameters, and to have any meaning it must mean that some relationship of height, scale and other dimensions shall exist between the new monument and the buildings of eighteenth century and twentieth century architecture and civic design should be adhered to. While no Environmental Impact Statement was prepared (a matter to which I will return later), there were nonetheless a number of listed buildings on the street which are described in appendix A to the Integrated Area Plan. In the matter of architecture there were twoaffidavits filed in the proceedings, one on behalf of the applicant by Mr. Sam Stephenson, architect, and the other by a Mr. Arthur Gibney, chartered architect, for the respondent. Neither of these witnesses was cross-examined on their affidavits. It seems clear to me that the proposed new monument was intended to affect buildings of architectural or historic interest on O’Connell Street and its environs. It is not expressly agreed that the General Post Office is the most significant building on the street, but in fact there is no real significant divergence of architectural opinion in this regard. It is a building of grand proportions, and is approximately two hundred feet long and three stories high and clad in stone. It is stated to be “of a strongly horizontal design and its form and scal e set the present unified character of the street which was substantially rebuilt after 1916”. Professional architectural opinion on the replacement of the Pillar is divided. That of the respondent, as expressed by Mr. Gibney, was that the effect that the compositional principle of using high vertical features such as towers or column or monuments as a dramatic foil to horizontal buildings masses is one of the most common patterns encountered in historic examples of urban design. In his view, the material proposed and the slenderness of the intended pole clearly identify the monument as a sculptural form and not a building intervention which could visibly clash with the fabric of the street-scape. The applicant, on the other hand, has adduced evidence that, as any two objects can be deemed to relate to each other, in architectural terms, where a new development is obliged to relate to the scale of other buildings such relation cannot be that which comes about merely because of the proposed coexistence of the new monument and the pre-existing buildings, and that more than mere coexistence is contemplated by a design brief which requires a development to relate to the scale of other existing buildings. The contention of the applicant was that the winning entry to the respondent’s competition being approximately 400 feet high (over twice the height of the former Pillar) does not and cannot relate to the scale of O’Connell Street, as represented by the late eighteenth century and twentieth century architecture and civic design. In the course of the hearing, evidence was given by the chairperson of the jury that the concept of the word “scale”, in the design brief of the intended monument, could be in certain circumstances as high as 1.2 kilometres. The argument being made was that, although the jury was autonomous, the respondent was entitled to proceed with or abandon the project and therefore the final decision rested with the respondent who, having set before the competitors certain design parameters, was obliged to see that the competition, from its inception to its conclusion, was carried out in accordance therewith. That the respondent failed to do this, by reason of its non-adherence to the mandatory provision in the design parameters that the monument should relate to the quality and scale of the eighteenth century and twentieth century architecture and civic design, was of such a character that no reasonable planning authority could accept or endorse the decision of the jury as it (the chosen entry) failed to meet the design parameters of the rules. A number of other points were raised by counsel for the applicant concerning the competition but on these evidence was not conclusive in favour of the applicant. The fact that the competition regulations provided for in art. 2 that the jury shall, at the end of stage one, select a minimum of five entries for stage two submissions does not, in my view, obligate them so to do and in this instance the expression “shall select” is directory, and I am satisfied that there was nothing improper or unreasonable in the actions of the jury and those charged with the implementation of the competition rules in this regard. Furthermore, I am satisfied that the competition was conducted anonymously and the assessors did not change or abandon the rules without notice in this regard at all. Furthermore, I do not consider that the assessors or jury in any way departed from the competition rules or regulations in considering a monument of a design which had no public access or viewing platform or designs incorporating any such element. The competition regulations (art. 15) provided that in the event of a dispute arising out of the competition the matter shall be dealt with by an arbitrator appointed by the President of the Royal Institute of the Architects of Ireland. The respondent is not to be faulted in failing to seek the appointment of an arbitrator. This was open to the applicant if he so wished. He did not do so before proceedings were brought, and in my opinion this complaint of the applicant cannot sustain any of the reliefs claimed.
Non-compliance with the Regulations of 1994
The respondent utilised the statutory procedures set out at Part X of the Regulations of 1994 when it decided to propose that a monument be erected. Article 132(1) of the regulations requires the local authority to send notice (as provided for by art. 132(2)) of the proposed development to certain prescribed bodies. In particular, art. 132(3)(c) of the regulations provides that “where it appears to the local authority that the proposed development would affect any … object of … historical interest or any building or artistic, architectural or historic interest” the notice “shall be” sent to named bodies. The proposed new monument, I am satisfied, would affect and will affect objects of historic interest and/or buildings of artistic, architectural or historic interest. This view is expressed by Mr. Stephenson in para. 8 of his affidavit as follows: “I have no hesitation whatsoever in saying that the domination of this street by the new monument will directly and dramatically affect the buildings on the street. In particular, the effects on the nearby historical buildings will be significant”. Mr. Gibney’s affidavit at para. 10 states: “Its height will have a considerable impact on both its immediate site and the central city area”. The respondent notified,inter alia, one Ms. Linda Patten of the National Parks and Wildlife of Dúchas, 5th Floor, Hill Samuel House, at 25/28 Adelaide Road, Dublin 2, and, notwithstanding that that may not have been the Minister for Arts, Culture and the Gaeltacht under the Heritage (Transfer of Functions of Commissioners of Public Works in Ireland) Order, 1996, I am nonetheless satisfied that there is compliance with the spirit of the regulations if not with the letter and that the non-compliance is of a technical nature. Furthermore, I am satisfied that such bodies as were notified and who were invited to make representations did so, and that same were incorporated in the report placed before the elected members of the respondent when they ultimately made the decision to note the report of the manager to proceed with the project.
Accordingly, I do not think any of the prescribed bodies were in any way deprived of the opportunity, which is intended to be given to them under the Regulations of 1994, for making such observations or submissions as were considered appropriate. However the provisions of art. 132(2)(b) have not in my opinion been adhered to. The article provides for notice of proposed developments to be given to certain bodies but the notice that is to be given is to include certain matters which I am satisfied they were not given, i.e.,”a copy of the plans and particulars of the proposed development made available for inspection by members of the public in accordance with article 133.” In my opinion this is a mandatory provision under the Regulations of 1994 and was not complied with, and is not of a technical or peripheral nature such as can be excused or overlooked in the instant case. The fact that the information given to the prescribed bodies indicates the location, nature and extent of the proposed development does not excuse the non-compliance with the provision hereinbefore cited from article 133(2)(b).
Which Part of the Regulations of 1994 applies?
Notwithstanding the provisions of the competition rules that Part X of the Local Government (Planning and Development) Regulations, 1994, would apply, I am satisfied that no decision was actually taken then, or before any of the competition was held, as to which part of the regulations would be appropriate. In following through the public announcement of the decision of the jury of the winning entry, which was announced on the 25th November, 1998, I am satisfied that the true position is as set out in para. 4 in the affidavit of Mr. Gleeson sworn on the 11th May, 1999, which is to the following effect:-
“I say that following the public announcement of the winning entry in the design competition for the new O’Connell Street Monument, the respondent had to decide on the appropriate planning route for the project. I say that having considered the criteria contained in the European Communities (Environmental Impact Assessment) Regulations, 1989, governing the requirement for an environmental impact statement, I was satisfied that the project was not covered by either Part I or Part II of the First Schedule of the said Regulations.
I say that, having considered the requirements of the Part IX procedure under the Local Government (Planning and Development) Regulations, 1994, I was also satisfied that the project did not come close to any of the thresholds that are specified in Part II paragraph 10(b) of the first schedule of the said Regulations of 1989, and I concluded that it was not necessary to apply the procedures of Part IX. I say that having determined that the Part IX procedure was not required, I decided that Part X was the appropriate procedure to adopt and apply in respect of the project.” [Emphasis added]
While this matter was dealt with in cross-examination and on affidavit, and was the subject of specific submissions by counsel on behalf of the respondent, I am satisfied that the true state of facts is as stated by Mr. Gleeson in his affidavit. This being so, I am satisfied that no managerial order delegating any function of a character such as would enable Mr. Gleeson to have made a decision as to which Part of the Regulations of 1994 were applicable was made in the instant case. In my opinion, the presentation by the City Manager and Town Clerk, who adopted Mr. Gleeson’s report and placed same before the City Council of the respondent for notation, was not a decision as to which part of the Regulations of 1994 was appropriate either expressly or inferentially. The decision in this regard had been made by Mr. Gleeson some considerable time before any report was presented to the City Council of the respondent in the person or through the office of the City Manager and Town Clerk. As to which Part of the regulations is to operate is a matter of considerable importance, because there is a degree of autonomy under Part X that is not available under Part IX of the regulations which is more restrictive as to the fashion in which a local authority can give effect to proposals it may wish to implement. Furthermore, and most particularly, the decision as to whether an Environmental Impact Statement is necessary is, under Part IX, art. 117, the prerogative of the Minister. The fact that the intention to proceed with the project may have been”common knowledge”, or that the Minister may have been circulated (by way of notice) of the proposal under Part X, art. 132(2)(a), or approved of the project under the Urban Renewal Act, 1998, cannot deprive the Minister of his entitlements under Part IX of the Regulations of 1994. Before making any determination on this question of the delegation, it is of importance that the general background to the question of environmental impact statements and assessments should be considered.
Environmental Impact Statement
In the present case the Council Directive 85/337 E.E.C. of the 27th June, 1985, is the first matter for consideration. While it is true to say that many of its objects in the recitals are directed to projects that have or are likely to have a detrimental or adverse effect on the environment, the Council Directive is not to be construed narrowly. Indeed, the judgment of the European Court of Justice in Aannemersbedrijf P.K. Kraaijeveld BV v. Gedeputeerde Staten Van Zuid Holland (Case C-72/95) [1996] E.C.R. I-5403, notes that the wording of the Directive indicates that it has a wide scope and a broad purpose (para. 31, and also para. 39). The scope of the Directive is not to be curtailed or diminished by looking only at its recitals. Article 1(1) of the Directive provides that “This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment”. Article 2 further provides that “Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia,of their nature, size or location are made subject to an assessment with regard to their effects”.Article 2(3) further provides that”Member States may, in exceptional cases, exempt a specific project in whole or in part from the provisions laid down in this Directive”. Article 3 provides that the Environment Impact Assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with arts. 4 to 11, the direct and indirect effects of a project on the following factors:- “… material assets and the cultural heritage” It is not necessary for the purpose of this case to carry out a detailed analysis of the Directive, suffice it to say that in Annexe II, s. 10 projects, which are the subject to art. 4(2), include infrastructure projects and in particular urban-development projects. Annexe III of the Directive, which is expressly referable to art. 5(1), embraces in paras. 2 and 3 in particular, the type of information to be incorporated in an environmental impact statement, and, insofar as this case is concerned, it includes a description of the aspects of the environment likely to be significantly affected by the proposed project, including the architectural heritage. Arising from the provisions of the Directive, the appropriate regulations applicable in this jurisdiction are to be found in the European Communities (Environmental Impact Assessment) Regulations, 1989, and the Local Government (Planning and Development) Regulations, 1990.
In my opinion, the provisions of the Directive are applicable in the instant case and it does not lie with the national court to cut down the broad scope of the Directive and merely to confine its application to projects which have an “adverse effect”. The matter of”adverse effects on the environment” is referred to in both the judgment in Aannemersbedrijf P.K. Kraaijeveld v. Gedeputeerde Staten Van Zuid-Holland (Case C-72/95) [1996] E.C.R. I-5403 (para. 15) and in the Regulations of 1989, art. 10, amending s. 78 of the Local Government (Planning and Development) Act, 1963, by insertion of subs. (2)c. Neither reference is a warrant to delimit the Directive. Argument was advanced as to whether the project, even if it were one in respect of which the Directive should apply, came within the area of discretion in which a decision may be made as to whether a proposal should or should not be the subject of an environmental impact statement. Mr. Gleeson in the course of his evidence averred to the fact that he gave consideration not only as to whether Part IX or Part X of the Regulations of 1994 was the appropriate course to adopt, but more particularly, in considering the question of the environmental impact statement, he considered the project from the point of view of being within the terms of the requirements of the Regulations of 1989 and of 1990 to which I have referred, and also gave particular consideration as to whether the development fell below the threshold that mandates the production of an environmental impact statement.
I am satisfied that, taking into account the provisions of the Directive, and of the Regulations of 1989, 1990 and 1994, there is an obligation on decision-makers to require the carrying out of an environmental impact statement in accordance with the Directive if a particular project is likely to have significant effects on the environment by virtue of its nature, size and location, notwithstanding the fact that this particular project falls below the threshold established in the Regulations of 1989 (First Schedule, Part II, class 10). In the instant case the proposal of the respondent is an urban development project, will be part of the infrastructure of Dublin City, and is well below the area thresholds as set out in the Regulations of 1989. However, it is a project which is likely to have, and is intended to have, significant effects on the environment, and in those circumstances the respondent, in my judgment, is required to cause an environmental impact statement to be prepared in accordance with the Directive and the regulations.
Delegated power
Even if I am incorrect in the view that I have formed concerning the necessity for an environmental impact statement, it is a very important matter in a case such as this and the attention of the court has been brought to a decision of Hopper J. in the High Court in England – Regina v. St. Edmundsbury Borough Council, ex parte Walton, (Unreported, High Court, 5th May, 1999). The issue in that case was – who could take decisions under the Directive? It was held that an officer of the local authority was not authorised to decide whether a proposed development would be likely to have significant effects on the environment unless formally delegated to do so by the local authority. On the basis of his decision, Hopper J. pointed out that the decision whether or not to require an applicant to submit an environmental impact statement was an important one. With this latter observation I am in complete agreement. In the instant case, the decision as to whether to proceed under Part IX or Part X of the Regulations of 1994 is a decision of great seriousness, and is of a character and nature such as should have been the subject of a managerial order by the City Manager, or by a person duly delegated with powers to make such a decision. This did not occur in the instant case. The decision as to whether to proceed under Part IX or Part X should have been the subject of a considered position by a properly delegated officer of the respondent with powers to make a decision having particular regard to the obligations arising from the Directive and the Regulations of 1989 and of 1990, as well as those of 1994. This is not a decision of a simple routine administrative nature – it is one with profound consequences.
This bold beacon – which is to be the Millennium Monument – is intended to be erected in the middle of the principal street of the capital of the country and is intended to affect and is likely to have significant effects on the environment.
Delay
The applicant entered into correspondence with the respondent initially by letter dated the 29th October, 1998, the response to which was made by an undated letter but with the indication that the applicant’s inquiry to the City Manager had been referred to the city architect for an appropriate response. No direct response appears ever to have been received from that source, though a certain amount of correspondence passed between the applicant and the Royal Institute of Architects of Ireland. The applicant resumed correspondence with the respondent on the 23rd February, 1999, in which various matters were canvassed. While it is true that this latter
[1999]
4 I.R. O’Nuallainv. Dublin Corporation
Smyth J. 150
H.C.
correspondence was in part a response to the notification issued on foot of the activities of Mr. Gleeson and Mr. McNamara, I am satisfied that at no stage did the applicant acquiesce in the course being taken by the respondent. The decision which ultimately came to be made, and which is challenged, is that of the 1st March, 1999, and it seems to me that the application brought to court was brought in time. Even if I am wrong in this, and a point of view was canvassed to the contrary by counsel for the respondent in the course of the hearing, I would nonetheless be disposed to accepting that the applicant did apply for leave timeously in all the circumstances and, if necessary, I would have exercised my discretion and extended the time limits under the rules.
Conclusion
Accordingly the order of this court will be in terms of the reliefs sought in para. D of the statement required to ground the application for the judicial review under items 1, 2, 3, 4, 5 and 8. However, as this is a matter of considerable importance to the respondent, it seems only just and proper that it should be given an opportunity to address matters as from the date of receipt of the decision of the jury anew, in the light of the judgment of the court and that the injunctive relief should cease to have effect on compliance therewith. The work of the courts has to continue since the case came to an end and it has not been possible for me to give exclusive attention to the preparation of this judgment, as I would like to have done. Liberty to apply to either party will be an express part of the order of the court.
Harrington v The Environmental Protection Agency & ors
(Unapproved) [2020] IECA 84 (06 April 2020)
he PresidentNi Raifeartaigh J.Haughton J.THE COURT OF APPEALCIVILNeutral Citation Number: [2020] IECA 84Record Number: 2018 31BETWEENMAURA HARRINGTONAPPLICANT/APPELLANTANDTHE ENVIRONMENTAL PROTECTION AGENCY, IRELAND ANDTHE ATTORNEY GENERALRESPONDENTSANDVERMILLION EXPLORATION AND PRODUCTION IRELAND LIMITEDSHELL E&P (IRELAND) LIMITEDNOTICE PARTYJUDGMENT of the President delivered on the 6th day of April 20201. These proceedings mark the latest phase in the long-running Shell Bellanaboycontroversy. At issue is an appeal from a decision of the High Court (Binchy J) of 21stNovember 2017. The decision in question was given in the context of the applicantchallenging the decision of the first-named respondent dated 8th October 2014 to grant thenotice party, then known as Shell E&P (Ireland) Ltd. a revised industrial emissions licence.The revised licence, which was the subject of challenge, was issued following a review of an1Page 2 ⇓existing licence, PO738-01, which had been granted by the Environmental Protection Agency(“EPA”) in 2007 and which was amended in 2014. The 2007 licence and the revised licencerelate to activities undertaken by Shell in connection with the Corrib gas field development.At a meeting on 29th September 2015, the EPA approved the recommendation of itsTechnical Committee and made a decision to grant a revised licence to the notice party. Aformal revised licence was drawn up and dated 8th October 2015. It is this revised licencewhich the applicant, with others, sought to challenge in the High Court and now in this Courton appeal.2. By order of 14th December 2015, four applicants, Martin Hartington, MauraHarrington, Monica Muller, and Peter Sweetman were granted leave to seek judicial review.The applicants were seeking the following reliefs:“(i) An order of certiorari quashing the decision of the respondent to grant alicence, 0738-03 subject to conditions, to the Notice Party in respect of anactivity consisting of a gas refinery and large combustion plant at BellanaboyBridge, Bellagelly South, County Mayo.(ii) A declaration that no Environmental Impact Assessment (EIA) sufficient tocomply with the requirements of 2011/92/EU (the ConsolidatedEnvironmental Impact Assessment Directive) (‘the Directive’) in respect ofthe development the subject matter of licence no. 0738-03 which is theoperation of a gas refinery and large combustion plant, associated pipenetwork, including the pipe line conveying the raw gas from the well headand the pipe network connecting to the Bórd Gáis Éireann network, whichassessment must be carried out in order to comply with the requirements ofthe aforesaid Directive 2011/92/EU.2Page 3 ⇓(iii) A declaration that both the first named Respondent and the second namedRespondent were required and obliged to take all general or particularmeasures to remedy any past failure to carry out an assessment of theenvironmental impact and or effects of a project as provided for under theEIA Directive and take the appropriate necessary measures to ensure that incarrying out an EIA the requirements of Directive 2011/92/EU werecomplied with.(iv) In the alternative, the second named respondent failed to transpose therequirements of Council Directive 2011/92/EU in failing to provide forappropriate procedures to ensure that the requirements of the EIA Directiveare fully complied with and through a system of law has created a procedurewhere no integrated EIA is carried out in respect of those projects specifiedunder the EIA Directive and in particular that the full effects of suchdevelopments including direct and indirect effects of a project in accordancewith Articles 3,4 – 11 of the Directive on human beings, fauna and flora, soilwater air climate and landscape, material assets and the cultural heritage andthe interaction between these factors are carried out and to nullify theunlawful consequences of a breach of laws out of the principal of cooperationand good faith laid down in Article 10 EC (Articles 4(3)) of the Treaty of theEuropean Union and filed to take appropriate measures necessary to remedyfailure to carry out an EIA in respect of the [whole] of the project the subjectmatter of licence 0738-03.(v) An order requiring the respondents to take such steps so as to carry out anEIA in respect of the gas refinery at Bellanaboy Bridge gas terminal toinclude all the elements of the project and specifically the upstream gas3Page 4 ⇓pipeline conveying raw gas from the well head to the terminal, the gasdistribution network conveying the treated gas in the pipeline specificallyconstructed for that purpose, the gas refinery and all associated plant andequipment, the waste water treatment pipe so as to accord with Articles 3 and4-11 of the EIA Directive and in particular identify all likely significanteffects both direct and indirect, the cumulative effects so as to fully complywith and have the project properly assessed pursuant to the requirements ofthat directive.(vi) An order requiring production of all reports and or draft reports and or allother documents prepared by or on behalf of the first named respondentrelating to or connected with the decision of the 8th October 2015 on licence0738-03.(vii) If necessary an order pursuant to Article 234 of the TEU for a referral to theEuropean Court of Justice.”A motion seeking the reliefs set out above was issued, grounded upon an affidavit of Mr.Peter Sweetman, the fourth-named applicant.3. On 2nd February 2017, the first, third and fourth-named applicants withdrew from theproceedings and the legal representatives who, to that point, had acted for all the applicants,came off record. It seems that the decision of the third and fourth-named applicants towithdraw from the proceedings was linked to the fact that they had, in earlier proceedings,challenged a decision of An Bord Pleanála dated 19th January 2011, granting approval for theconstruction of an onshore pipeline associated with the project. The earlier proceedings weresettled and the settlement was reduced to writing. The settlement saw the applicants in thoseproceedings, Ms. Muller and Mr. Sweetman, agree not to litigate before the courts or to makea complaint to the European Commission, European Parliament, the Aarhus Convention4Page 5 ⇓Committee, or any international body, any issue in respect of the above named consents orany amendments thereof or modifications thereto, and not to procure, encourage or assistothers to institute or pursue any proceedings. While it is not entirely clear why the first-named applicant joined the third and fourth-named applicants in withdrawing from theproceedings, it is a fact that he did so, leaving Ms. Maura Harrington as the only remainingapplicant. She represented herself at the hearing before Binchy J. in the High Court. Prior tothe withdrawal from the proceedings of the other applicants, and at a time when they and Ms.Maura Harrington were still legally represented, an issue paper was prepared. The Court hasbeen told that it was the subject of discussion and negotiation involving the four legal teamsthat were then party to the proceedings i.e. the teams representing each of the respondents,the notice party, and the applicants. It seems that the suggestion of an issue paper may haveemanated from a suggestion made by a judge in the course of a case management listing.4. As one of the questions or issues referred to in the issue paper is central to the presentappeal and as the document is not a lengthy one, for ease of reference, it is convenient to setout its terms in full:“(1) (a) Was there an Environmental Impact Assessment carried out in accordancewith the requirements of Council Directive 20/11/92/EU?(b) Was there an Environmental Impact Assessment carried out for thepurposes of domestic law?(2) Is the applicants’ contention that an adequate Environmental ImpactAssessment was not carried out premised on an impermissible collateral attackto the validity of earlier development consents?(3) Was the approach adapted by the respondents consistent with the judgment ofthe European Court of Justice in Case C-50/09 and/or with C-50/09 relative tothose assessments previously carried out?5Page 6 ⇓(4) Did the first named respondent carry out an Appropriate Assessment for thepurposes of Council Directive 2011/92/EU?(5) Has there been a failure to give reasons in accordance with ground 12?(6) Can a licence which has expired and was not in existence be the subject of areview?(7) In the event that the answer to (1)(b) is in the affirmative, is the applicants’claim in respect of transposition inadmissible by reason of the applicants’’failure to provide proper particulars of the alleged shortcomings in nationallaw? If it is admissible, have the requirements of the Directive beenappropriately transposed?(8) Whether the proceedings previously brought and the subsequent settlement inNovember 2011 are such as to disentitle or prevent these proceedings againstthe State respondents and/or the EPA from being heard and determined, inwhole or in part?(9) Does the applicants’ failure to disclose the existence of the earlier proceedingsand of the settlement agreement in their application for leave to apply forjudicial review amount to a breach of the applicants’ duty of disclosure suchas to disentitle the applicants to any relief?”It is paragraphs (1)(a), and to a lesser extent, paragraph (6) of the above issue paper which areof relevance to this appeal.5. The High Court Judge commented that the applicant’s statement of grounds was,regrettably, prolix, repetitious and at times both general and vague in character. In the courseof careful and very comprehensive judgment, the judge summarised what he saw as the keyissues raised by the applicants in their statement of grounds and the responses of therespondents thereto. In the course of this exercise, he identified twelve grounds. The judge’s6Page 7 ⇓approach was then to turn to the issue paper, having referred to the fact that the applicant hadconfirmed her agreement with the issue paper on the first day of the hearing. Having referredto the submissions from the applicant and from the respondents on each of the issues, thejudge gave his ruling on each respective issue raised.(1)(a) Was there an Environmental Impact Assessment carried out in accordance withthe requirements of Council Directive 20/11/92/EU [“the EIA Directive”]?6. In relation to the first point on the issue paper, the judge was of the view that theapplicant had not identified any specific shortcomings in the EIA. One specific issue, that ofcold venting, which had been referred to by the applicant in her submissions, was addressedby the Inspector (Ms. Jennifer Cope) in her report and had been subject to an EIA inconnection with the 2007 licence application. As to the applicant’s contention, echoing whathad been said by Mr. Sweetman in his grounding affidavits, that there had been noassessment of changes to the project since the issue of previous consents, the judge saw thatas flatly contradicted by the evidence of the respondents. The judge said that it was clear thatthe evidence established that the EIA conducted by the EPA was an assessment of theactivities as they are designed to operate and that he was satisfied that that was so. The judgefelt that the applicant’s other main argument under this heading was a legal rather than afactual matter, and was to the effect that the entire project has to be the subject of a singleintegrated assessment. The judge was of the view that it was clear from the authorities,instancing Martin v. An Bord Pleanála [2008] 1 IR 336 and Commission v. Ireland Case C-50/09, that there was no such requirement under the EIA Directive and that it was open tocompetent authorities in member states to entrust the task of an EIA to several entities if thatwas considered appropriate. Accordingly, the judge was satisfied that the applicant had failedto establish that the EIA had not been carried out in accordance with the EIA Directive, and7Page 8 ⇓consequently, the applicant’s challenge to the issue of the licence, insofar as it was groundedupon an alleged failure to conduct an EIA in accordance with the EIA Directive, must fail.(1)(b) Was there an Environmental Impact Assessment carried out for the purposes ofdomestic law?7. The judge quoted the applicant as having said, in the course of her oral submissions,that her submissions as regard question (1)(b) were the same as those advanced in relation toquestion (1)(a). He put this issue in the context of the applicant’s contention that there had tobe a single integrated EIA of the entirety of the project. Put differently, the complaint wasthat the State had not correctly transposed the EIA Directive into Irish law. The judgerepeated his earlier expressed view that there was no authority for such a proposition, and thatif anything, the manner in which the State had chosen to implement the EIA Directive hadbeen endorsed by the Supreme Court in Martin and by the CJEU in Case C-50/09. He saidthat it followed from what he had said that the applicant had failed to establish that the EIAconducted by the EPA was not carried out in accordance with domestic law.(2) Is the applicants’ contention that an adequate Environmental ImpactAssessment was not carried out premised on an impermissible collateral attack to thevalidity of earlier development consents?8. The judge pointed out that in her oral submissions, the applicant stated that it wasnever her intention to attempt an impermissible collateral attack on earlier developmentconsents and that she had stated that she was not seeking to have earlier consents set aside.The applicant had expressly stated that the question did not arise for her and she did notaddress the question. The judge said that, strictly speaking, therefore, there was no need toaddress the question, but that while the applicant had made it very clear that she did not wishto mount a collateral challenge to earlier consents or licences, that there could be scarcely any8Page 9 ⇓doubt that had in fact she done so, and further noting that such a challenge would have beendoomed to fail in any event.(3) Was the approach adapted by the respondents consistent with the judgment ofthe European Court of Justice in Case C-50/09 and/or with C-50/09 relative to thoseassessments previously carried out?9. The judge commented that it was difficult to know precisely what case the applicantwas making as regards Case C-50/09. Indeed, no reference to that case was to be found in theapplicant’s submissions. The respondents had pointed to the fact that the CJEU had expresslyconcluded that it was permissible to entrust the task of conducting an EIA to several entities.Insofar as the CJEU identified a “gap” or a lacuna, that gap had been addressed by way ofamendments to the Environmental Protection Act 1992, and the Waste Management Act1996, so as to impose an express obligation on the EPA to carry out an EIA. Accordingly, thejudge was satisfied that the reliance placed by the applicant upon Case C-50/09 wasmisplaced.(4) Did the first-named respondent carry out an Appropriate Assessment for thepurposes of Council Directive 2011/92/EU?10. The crux of the applicant’s issue with the assessment in this respect was that it waspurportedly conducted without due independence. The judge began his consideration byholding that there was no obligation on the EPA to share the Scott Cawley Report. This wasan expert report commissioned by the EPA to confirm that the approach adopted by its ownInspector had been a proper one. The judge was of the view that while the EPA had decided,out of an abundance of caution, to obtain an independent view, that it had been under noobligation to do so, and that really there was no difference in substance between what hadoccurred and having the Inspector’s conclusions reviewed by a colleague within the Agency.9Page 10 ⇓As to the suggestion that there was an obligation to disclose the Scott Cawley Reportpursuant to the provisions of the Aarhus Convention, the judge agreed that while a report hadbeen sought from an independent expert in the circumstances described, it was, in his view,an internal report for the members of the EPA’s sole consideration. This flowed from the factthat it had been obtained in the period after the public consultation had taken place. The judgewas of the view that the applicant had failed to put forward any basis upon which it could besaid that the assessment conducted by the EPA did not meet the requirements of the CouncilDirective 92/43/EEC (‘Habitats Directive’).(5) Has there been a failure to give reasons in accordance with ground 12?11. The judge first explained that the reference to ground 12 was a reference to ground 12advanced by the applicant in the statement of grounds. That ground had stated:“[t]he first named respondent failed to give any reasons sufficient to justify thechange in the emissions from licence 0738-01 to licence.”The EPA submitted that the minutes, which record the decisions of that body, set out inconsiderable detail its reasons for concluding that the licensed activities would not adverselyaffect the integrity of any European site. The judge was satisfied that far from not giving anyreasons sufficient to justify the change in the emission level value (“ELV”), the report of theInspector, the report of the Technical Committee, and the minutes of the EPA all recorded adetailed analysis of the issue and gave sufficient reasons to justify the decision. In a nutshell,as the judge put it, the EPA had been satisfied that the increases in the ELV proposed did notgive rise to any pollution of Carrowmore Lake and would not affect the integrity of anyrelevant European site.(6) Can a licence which has expired and was not in existence be the subject of areview?10Page 11 ⇓12. The judge first observed that the question had not been correctly posed because itassumed that the 2007 licence had expired and that was something that was in disputebetween the parties. The judge concluded that the applicant’s claim under this heading mustalso fail. As this issue has featured prominently in the appeal, I will return to it in greaterdetail later in this judgment. Suffice to say at this stage the affidavit of Gerry Costello dated16th April 2016, retired Regulatory Affairs Manager of Shell, indicated to the satisfaction ofthe judge that the activity had commenced in accordance with the letter submitted to theagency dated 11th November 2014.(7) In the event that the answer to (1)(b) is in the affirmative, is the applicants’ claimin respect of transposition inadmissible by reason of the applicants’’ failure to provideproper particulars of the alleged shortcomings in national law? If it is admissible,admissible, have the requirements of the Directive been appropriately transposed?The judge referred to the fact that he had already determined that, for the purposes ofdomestic law, the applicant had failed to establish that there was any defect in the EIA thatwas carried out by the EPA. He felt that absent submissions addressing the question ofalleged shortcomings in national law, the applicant’s claim that the State respondents hadfailed to transpose the requirements of the EIA Directive properly was inadmissible to theextent that it had been advanced at all.(8) Whether the proceedings previously brought and the subsequent settlement inNovember 2011 are such as to disentitle or prevent these proceedings against the Staterespondents and/or the EPA from being heard and determined, in whole or in part?13. The judge pointed out that the respondents had elected not to pursue that line ofopposition in view of the fact that the applicant was not a party to the settlement of theproceedings in November 2011.11Page 12 ⇓(9) Does the applicants’ failure to disclose the existence of the earlier proceedings and ofthe settlement agreement in their application for leave to apply for judicial reviewamount to a breach of the applicants’ duty of disclosure such as to disentitle theapplicants to any relief?14. The judge pointed out that this question had been formulated when all namedapplicants were party to the proceedings. The judge was of the view that the third and fourth-named applicants should have brought the settlement of the 2011 proceedings to the attentionof the High Court at the application for leave stage. However, he felt that this was not anissue that could disentitle the applicant to relief to which she might otherwise have beenentitled.15. The judge concluded his judgment by saying that given the applicant had failed toobtain any of the reliefs sought, it followed that the application had to be dismissed in itsentirety. He also stated that he saw no necessity to make a reference to the CJEU as none ofthe issues raised by the applicant merited doing so.Issue to be Decided in this Appeal16. The Notice of Appeal filed 25th January 2018 contains two substantive grounds ofappeal which identify particular paragraphs of the High Court judgment with which Ms.Harrington has taken issue:(a) Paragraph 62 – the learned judge erred in law and fact in failing to completely answerQ1(a) of the Issue Paper in circumstances where the Judge confirms at paragraph 50of the judgment that the Applicant/Appellant was acting at a considerabledisadvantage. In those circumstances if the Applicant/Appellant was not sodisadvantaged the expert evidence required by the Judge to decide/determine Issue1(a) would have been available.12Page 13 ⇓(b) Paragraphs 81-87 – the learned judge erred in law and fact in failing to correctly applySection 92(1) EPA Act 1992 [as amended] and in particular failing to considerwhether the carrying on of the activity had or had not been substantially commencedduring the seven year period in circumstances where the Judge noted that ‘it is indeedcurious that there is nothing in the materials produced before the Court to indicate thatthe EPA verified that the activities the subject of the 2007 licence had indeedcommenced within the seven year period’.The appellant’s submissions sought to alter the above grounds of appeal so as to includecriticisms of paragraphs 61 and 63 of the High Court judgment and at the same time excludeparagraphs 86 and 87 from consideration. It is accepted by Ms. Harrington that such areformulation was necessary due to an error on her own part which she attributes to her statusas a lay litigant, representing herself.17. Insofar as the applicant now suggests that paras. 61 and 63 of the judgment of theHigh Court should form part of the appeal, it is the case that there has been no application toexpand the grounds of appeal put before this Court. The ground of appeal in questionspecifically and directly related to the decision of the judge not to seek to provide a fullanswer to question (1)(a) on the issue paper. Any criticisms, therefore, of paras. 61 and 63 donot form part of the appeal. However, the summary of the judgment set out above makesclear that what the applicant is seeking to do at this stage is to argue that the EPA wasrequired to undertake a single integrated assessment pursuant to the EIA Directive and notsplit the task of conducting an EIA among several entities as occurred here. This is thesubstance of what I have labelled “Ground A”. The other issue, “Ground B”, concernswhether the activities which form the subject matter of the case i.e. those conducted pursuantto the 2007 licence were commenced within the seven-year period provided for by same.13Page 14 ⇓The Purported Necessity of a Single Integrated Assessment [Ground A]18. I am happy to confirm that I am in agreement with the judge that there is norequirement under the EIA Directive for a single integrated assessment, and I agree with hisview that it was open to the national authorities to entrust the task of conducting an EIA toseveral entities. The judge’s approach was in accordance with the judgment of the SupremeCourt in Martin v. An Bord Pleanála, and in accordance with the decision of the CJEU inCase C-50/09.Whether the Activities were “Substantially Commenced” within the Seven Year Period[Ground B]19. The other ground of appeal advanced seems to have been promoted by the judge’sobservation at para. 85 of his judgment that:“[i]t is indeed curious that there is nothing in the materials produced before theCourt to indicate that the EPA verified that the activities the subject of the 2007licence had indeed commenced within the seven-year period.”In her submissions, the applicant had contended that there was nothing in the materials beforethe High Court to indicate that the EPA had done anything to verify the confirmation that itreceived from Shell, and the judge added that this appeared to be the case. Having made thecomment which has triggered the applicant’s interest, set out above, the judge went on to say“[b]ut it is beyond any doubt that the respondents are correct in their submissionsas to the legal effect of s. 92(1) of the EPA Act. For a licence to cease to haveeffect, the EPA must notify the licence holder that the activity has not commencedwithin the specified period.”Section 92 of the Environmental Protection Agency Act 1992, as substituted by s. 15 of theProtection of the Environment Act 2003, provides as follows:14Page 15 ⇓“Limit on Duration of Licence92(1) Where, in the opinion of the Agency, the carrying on of the activity towhich a licence or revised licence relates has not been substantially commencedwithin the period of three years beginning on the date on which the licence wasgranted, or, as may be appropriate, the period referred to in paragraph (a) or (b)of subsection (2), and the Agency notifies the licensee of that opinion, then thatlicence shall cease to have effect on the giving of that notice.(2) The Agency may, having regard to the nature of the activity to which alicence or revised licence to be granted or granted by it will relate or relates, asthe case may be, and any arrangements necessary to be made or made inconnection with the carrying on of the activity and any other relevantconsideration—(a) specify for the purposes of subsection (1) a period of more than 3 yearsbeginning on the date on which the licence or revised licence is to be granted.”20. In this case, it is not in dispute that licence number PO738-01 had stipulated a periodof seven years rather than three years. Paragraph 1.5 of that document provides:“[h]aving regard to the nature of the activity and arrangements necessary to bemade in connection with the carrying on of the activity, the specified period forthe purposes of section 92(1) of the EPA Acts 1992 and 2003 is seven years.”21. If one has regard to the terms of s. 92, it is clear that for the licence to cease to haveeffect, there are two conditions that have to be satisfied. First, the Agency must form theopinion that the carrying on of the activity to which the licence related had not beensubstantially commenced within the relevant period i.e. seven years. Second, the Agencymust notify the licensee of that opinion. The section makes clear that it is on the giving of thenotice that the licence ceases to have effect. In this case, it is quite clear that the Agency15Page 16 ⇓never formed the opinion that the activity had not substantially commenced within the periodof seven years, being the relevant period, and that no notice was ever given by the Agency.22. When one considers the totality of what was before the court below, it seems to me tobe beyond argument that s. 92 does not assist the appellant. No evidence was presented by oron behalf of the applicant to even suggest that the activity had not been substantiallycommenced within the relevant period. Insofar as there was any evidence on this issue, itwent the other way. A letter was sent by Ms. Aoife Reynolds, Environmental Adviser to ShellE&P (Ireland) Ltd. to Dr. Michael Henry of the Office of Environmental Enforcement dated26th September 2014. That letter was as follows:“Re: Compliance with Condition 11.1Dear Dr. Henry,In accordance with Condition 11.1 of Licence Reg. No. PO738-01 IndustrialEmissions Licence, granted under Part IV of the Environmental Protection AgencyAct 1993, Sepil wish to advise you that it intends to commence operations on 1stNovember 2014 of the Scheduled Activities at the Bellanaboy Bridge gas terminal,Bellanaboy Bridge, Bellagelly South, County Mayo.Should you have any query with the attached, please contact Aoife Reynolds.”Condition 11.1 had required the licensee to notify the Agency in writing one month inadvance of the intended date of commencement of the Scheduled Activity(ies) and inadvance of any planned maintenance event of the Corrib import pipeline using pressureinspection gauges/spheres.23. A second letter was written by Aoife Reynolds dated 11th November to Dr. Henry,which stated:16Page 17 ⇓“Sepil wish to confirm that it is operating under its IE Licence PO738-01 at theBellanaboy Bridge gas terminal, Bellanaboy Bridge, Bellagelly South, CountyMayo.”Again, this confirms that the activity in question was well and truly underway such that itcould be said to have commenced substantially. For all these reasons, I am quite satisfied thatthe complaint raised by Ms. Harrington in this regard must fail.24. All this leads to the inescapable conclusion that this ground of appeal, to the extent itis capable of being advanced at all, must fail. I am of the view that none of the groundsadvanced by the appellant have convinced me that there was any deficiency in the approachtaken by the High Court Judge which would warrant the interference by this Court.25. Accordingly, for the reasons outlined above, I would dismiss the appeal. As the eventsof the COVID-19 pandemic required this judgment to be delivered electronically, the viewsof my colleagues are set out below.Ní Raifeartaigh J.1. I have had the opportunity to read the judgment delivered by the President and Iagree with the conclusions reached therein.Haughton J.1. Having read the within judgment, I also agree with the approach adopted by thePresident.17Page 18 ⇓18
Result: Dismiss Appeal