An Taisce v Bord Pleanála and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Michael White |
| Judgment Date | 09 October 2015 |
| Neutral Citation | [2015] IEHC 633 |
| Court | High Court |
| Date | 09 October 2015 |
BETWEEN
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[2015] IEHC 633
THE HIGH COURT
Local Government – Planning & Development – The Planning and Development Act 2000 – Judicial review – EIA Directive 2011/92/ EU – Environment Impact Assessment – European Communities (Natural Habitats) Regulations 1997 S.I. 94/97 – Remedial obligation
Facts: The first applicant sought an order of certiorari for quashing the decision of the respondent to grant, to the first notice party, planning permission for the continued use and operation of a previously permitted peat and biomass co-fired power plant, and other ancillary reliefs. The first applicant alleged that the respondent was under remedial obligation to address prior deficiencies in the environmental assessment history of the peat bogs because when the first notice party was issued the licences, the requirement to submit an Environmental Impact Statement (EIS) was not in existence. The first applicant contended that the domestic legislation did not properly transpose Directive 85/337/EEC codified in Directive 2011/92/EU. The second applicant alleged that the second named respondent was under an obligation to avoid destruction of habitats in the special area of conservation. The second applicant also sought certain reliefs against the second named respondents.
Mr. Justice Michael White held that the first applicant was entitled to declaration to the effect that the respondent was obliged to ensure the effectiveness of the EIA Directive by subjecting the environmental effects to an Environment Impact Assessment before granting planning permission for the thermal power plant as the effects of extraction of the peat fuel source for the thermal power plant were not properly assessed. The Court, however, refused to grant any relief to the second applicant. The Court found that the first named respondent's interpretation of art. 3 of the EIA Directive 2011/92/ EU was narrow and it must be given broad meaning encompassing direct as well as indirect effects. The Court found that there was functional interdependence, not the project splitting as asserted by the first named respondent, because the power plant relied for the vast majority of its raw material on the designated bogs for which the permission was issued and the first named respondent could not ignore the indirect effect of the use of the peat from those bogs. The Court opined that it had no jurisdiction to interfere in the determination of planning application at the stage of judicial review but it could interfere if the relevant directive was being misinterpreted by the appropriate authority.
JUDGMENT of Mr. Justice Michael White delivered on the 9th October, 2015
1. By order of the 17 th January 2014,The applicant, An Taisce,(hereafter called the first applicant) a non governmental organisation of longstanding, was granted leave to seek:-
i (i).
An order of certiorari by way of application for judicial review quashing the decision of the respondent to grant, to the first notice party, planning permission for the continued use and operation of a previously permitted peat and biomass co-fired power plant at Clonbullogue, Co. Offaly under An Bord Pleanála planning reference PL19.242226 granted on 19 th December, 2013.
(ii) A declaration by way of application for judicial review that the environmental effects of extracting the peat fuel source for the thermal power plant were not properly assessed for the purposes of the Environmental Impact Assessment Directive, 85/337/EEC (as amended) (now quoted as Directive 2011/92/EU (the EIA Directive)) prior to construction and at no point up to and including the present application.
(iii) A declaration by way of application for judicial review that where the environmental effects of extracting the peat fuel source for the thermal power plant were not properly assessed for the purposes of the Directive. The respondent is obliged to ensure the effectiveness of the EIA Directive by subjecting those environmental effects to Environmental Impact Assessment before granting planning permission for the thermal power plant.
(iv) A declaration by way of application for judicial review that the Environmental Impact Assessment conducted by the respondent was inadequate and failed to comply with the EIA Directive.
2. The first applicant issued a motion on 22 nd January, 2014, originally returnable for 11 th March, 2014, seeking the reliefs. The respondent filed a statement of opposition on 18 th June, 2014.
3. The applicant, Friends of the Irish Environment Limited,(hereafter called the second applicant) was granted leave on 22 nd January, 2014, to apply for judicial review to seek,
(i) An order of certiorari by way of application for judicial review quashing the decision of the first named respondent to grant to the first notice party planning permission for the continued use and operation of a previously permitted peat and biomass co-fired power plant at Clonbullogue, Co. Offaly under Bord Pleanála reference PL 19.242226, which said decision was purportedly made on 19 th November, 2013.
(ii) A declaration by way of application for judicial review that the effects of extracting the peat fuel source for the thermal power plant were not properly assessed for the purposes of Habitats Directive, 92/43/EEC.
(iii) A declaration that the first and second named respondents have failed to fulfil their obligations pursuant to Article 6 of the Habitats Directive to establish necessary conservation measures and to avoid deterioration of natural habitats and disturbance of species in Natura 2000 sites.
(iv) A declaration by way of application for judicial review that the first named respondent is obliged to conduct an appropriate assessment pursuant to Article 6 of Habitats Directive in respect of the peat extraction works that will occur directly or indirectly as a result of the proposed development.
(v) A declaration by way of application for judicial review that the first named respondent is required to carry out an appropriate assessment pursuant to Article 6 of the Habitats Directive of the operation of the power plant in combination with the peat extraction works.
(vi) A declaration that the said development is a plan or project not directly connected with or necessary to the management of Natura 2000 sites but likely to have a significant effect thereon, either individually or in combination with other plans or projects, and therefore should have been subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.
(vii) A declaration that a screening assessment for an appropriate assessment ought to have been conducted subject to s. 177U of the Planning and Development Act 2000.
(vii) The applicant issued a motion on 23 rd January, 2014, returnable for 11 th March, 2014. The first named respondent filed a statement of opposition on 18 th June, 2014. The second and third named respondents and third named notice party filed a statement of opposition on 4 th July, 2014.
4. In 1998, Edenderry Power applied for planning permission for the construction of a peat fired electricity generating station on the site in Clonbullogue, Co. Offaly. Permission for this development was granted on appeal by the respondent on the 24 th of December 1998, Planning reference PL2/98/437.
5. On 12 th July, 2005, the Board granted permission for a material change of use of the electricity generating station, to allow for a mix of fuels to be burnt, to include biomass. A further change of use was granted by Offaly County Council on the 30 thAugust 2011, to allow for the storage of biomass on site and an increase in the amount of biomass which could be used to fuel the plant.
6. These permissions were time limited by nature of condition 1.2 attached to the 1998 permission which stated:-
"This permission shall have effect for the period up to 31 st day of December, 2015, unless before the end of that period, a further permission for the continuance of the development beyond that date shall have been granted by the planning authority or by An Bord Pleanála on appeal."
7. On the 30 th of April 2013, the first notice party applied for planning permission for the continued use and operation of the power plant. This is the application, the subject matter of these proceedings. It did not involve the construction of any new structures, and was accompanied by and environmental impact statement, (EIS). On 21 st June, 2013, Offaly County Council gave notification to grant planning permission. The first applicant appealed. By order of 19 th November, 2013, the respondent granted planning permission for the continued use and operation of the plant for a period of ten years from the date of the order, unless prior to the end of that period, planning permission shall have been granted for the retention of the development for a further period.
8. In considering this application, the respondent completed an environmental impact assessment, (EIA) and a screening exercise for the purposes of...
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