Aherne and Others v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Noonan
• Judgment Date: 03 October 2016
• Neutral Citation: [2016] IEHC 536
• Date: 03 October 2016
• Docket Number: [2013 No. 363 J.R.]

[2016] IEHC 536

THE HIGH COURT

JUDICIAL REVIEW

Noonan J.

[2013 No. 363 J.R.]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

AND IN THE MATTER OF AN APPLICATION

BETWEEN

ANNA AHERNE, GLEN BARRY, DERMOT CAHILL, JOHANNA CAHILL, BENNY FLAHERTY, PADDY HISTON, JIM HICKEY, COLUM HORGAN, JOHN MURPHY, BARBARA O'GORMAN, SEAMUS ROCHE, MICK WALLEY, AIDEEN WHITSTON

AND

TOM WOOD

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK DOCKYARD HOLDINGS LIMITED

AND

COBH TOWN COUNCIL

NOTICE PARTIES

Environment & Planning – S. 50A (7), 171A and 172 of the Planning and Development Act, 2000 (as amended) – Environmental Impact assessment (EIA) – Report of inspector – Point of law of exceptional importance – Uncertainty in law.

Facts: The applicants sought a certificate of leave to appeal under s. 50A(7) of the Planning and Development Act, 2000 after the trial Court refused to grant the applicants a declaration that the respondent failed to carry out an Environmental Impact Assessment (EIA) in accordance with s. 172 of the Act of 2000. The applicants raised questions with regard to the requirement under the s. 171A and 172 of the 2000 Act on the assessment of EIA that had to be recorded by the decision-maker. The applicants questioned the extent of the requirement of the separate record of EIA, in case the respondent did not adopt the recommendation of its inspector.

Mr. Justice Noonan refused the application for certificate under s. 50A (7) of the 2000 Act. The Court held that the respondent's decision clearly stated that it had carried out an EIA and the documents that referred to how the EIA was arrived satisfied the respondent's obligations under s. 172 of the 2000 Act. The Court observed that the respondent adopted the inspector's conclusions with some exception and that there had been no dispute over the evidence between the respondent and the inspector. The Court found that no point of law of exceptional importance or any uncertainty in law arose in the present case.

JUDGMENT of Mr. Justice Noonan delivered the 3rd day of October, 2016

1 This is an application by the applicants for a certificate pursuant to s. 50A(7) of the Planning and Development Act 2000, giving leave to the applicants to appeal the judgment delivered by me in this matter on 23rd April, 2015. This section, as amended, provides:-

‘The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Court of Appeal in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal.’

2 The applicants have formulated six questions in respect of which they seek certification pursuant to the section. These are:-

‘(1) Does an EIA as defined by s. 171A of the Planning and Development Act and Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (the ‘EIA Directive’) have to be recorded by the decision maker?

(2) If such a record of an EIA is required, what are the legal requirements for such a record for the purpose of s. 171A and s. 172 of the Planning and Development Act 2000 and the EIA Directive?

(3) If a record of the Board's EIA is required, to what extent does the EIA have to be separately recorded by the Board where the Board does not adopt the recommendation and/or report of its inspector?

(4) What are the legal requirements for the record of or information to be made available to the public relating to the evaluation of the direct and indirect effects of the proposed development on the matter set out in s. 171A to ensure compliance with s. 172(1J) of the Planning and Development Act 2000, as interpreted in the light of the EIA Directive?

(5) To what extent does the said evaluation or information have to be separately recorded and/or made available to the public by the decision maker where the decision maker does not adopt the recommendation and/or report of its inspector?

(6) Is the Board entitled, for the purposes of s. 172(1H) of the Planning and Development Act 2000 and Directive 2011/92/EU, to adopt the EIS furnished by the developer as its EIA, or part thereof, and if so, what steps must be taken by the Board to ensure its effective adoption?’

The Applicable Test

3 The principles to be applied in applications of this nature are set out in the judgment of MacMenamin J. in Glancré Teoranta v. An Bord Pleanála (Unreported, High Court, 13th July, 2006) and have been followed in many cases. They bear repeating:-

‘1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court.

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court.

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.

8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.

9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’

4 These principles must, I think, now be regarded as settled.

The Earlier Judgment

5 The main relief sought in these proceedings was a declaration that the respondent (‘the Board’) failed to carry out an...