Cairde Chill an Disirt Teoranta (applicant) & an Bord Pleanála & Ireland and Attorney General (respondents) and Shannon Explosives Ltd, Clare County Council, an Taisce and Others (Notice parties)

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 06 February 2009
• Neutral Citation: [2009] IEHC 76
• Court: High Court
• Date: 06 February 2009

[2009] IEHC 76

THE HIGH COURT

[No. 1175 J.R./2008]

Cairde Chill An Disirt Teoranta v Bord Pleanála & Ors

BETWEEN/

CAIRDE CHILL AN DISIRT TEORANTA

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENTS

AND

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

SHANNON EXPLOSIVES LIMITED, CLARE COUNTY COUNCIL,

AN TAISCE, TERENCE CORRY, JOHN HURLEY, NOEL CORRY, MARGARET AYRES

NOTICE PARTIES

EEC DIR 1985/337 ART 10A

EEC DIR 2003/35 ART 3(7)

EEC DIR 1996/61

PLANNING & DEVELOPMENT ACT 2000 S50(2)

EC TREATY ART 234

PLANNING & DEVELOPMENT ACT 2000 S50(2)

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING & DEVELOPMENT ACT 2000 S37

SWEETMAN v BORD PLEANALA & ORS UNREP CLARKE 26.4.2007 2007/57/12251 2007 IEHC 153

FRIENDS OF THE CURRAGH ENVIRONMENT LTD v BORD PLEANALA UNREP KELLY 14.7.2006 2006/24/5050 2006 IEHC 243

EEC DIR 1985/337 ART 100

EEC DIR 1985/337 ART 235

EEC DIR 2003/35 ART 94

EEC DIR 2003/35 ART 308

EEC DIR 2003/35 ART 174

EEC DIR 2003/35 ART 176

EEC DIR 1997/11

EEC DIR 1985 ART 1(2)

RSC O.84

EEC DIR 1985 ART 1

PLANNING & DEVELOPMENT ACT 2000 PART VI

PLANNING & DEVELOPMENT ACT 2000 PART VII

LANCEFORT v BORD PLEANALA NO2 1999 2 IR 270

PLANNING & DEVELOPMENT ACT 2000 S50(2)(a)

ABENGLEN PROPERTIES v DUBLIN CORPORATION 1984 1 IR 381 1982 ILRM 590 1982/1/1

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

PLANNING & DEVELOPMENT ACT 2000 S50A(3)

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Appeal hearing - Nature and scope - Review procedure - Administrative appeal procedure - Substantial grounds - Legislative characteristics of directives in Community law - Remedy of certiorari discretionary - Whether statutory appeal remedy inadequate and unsuitable to meet complaints raised - Whether substantial grounds raised in support of relief - State (Abenglen Properties Ltd) v Dublin Corporation [1984] 1 IR 381 and McGoldrick v Bord Pleanála [1997] 1IR 497 applied; Lancefort v Bord Pleanála (No 2) [1999] 2 IR 270, Sweetman v Bord Pleanála [2007] IEHC 153 [2008] 2 IR 177 and Friends of the Curragh Environment Ltd v Bord Pleanála [2006] IEHC 243, (Unrep, Kelly J, 14/7/2006) considered - Planning and Development Act 2000 (No 30), ss 37 and 50(2) - Council Directive 85/337/EEC, art 10A - Council Directive 2003/35/EEC, art 3(7) - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Leave refused (2008/1175JR - Cooke J - 6/2/2009) [2009] IEHC 76

Cairde Chill an Disirt Teo v An Bord Pleanála

Facts: The applicants sought leave for judicial review arising from an appeal pending before the respondent in respect of a decision to grant planning permission for the construction of an explosives factory. A preliminary issue was raised as to the nature and scope of the appeal hearing as to the application of Article 10a of Council Directive 85/337/EEC, as inserted by Article 3(7) Directive 2000/35/EC. The issue thus arose as to whether the appeal before the Board was a review procedure for the purposes of Article 10a of the 1985 Directive. The application was made on the basis that the procedure came within the scope of s. 50 Planning and Development Act 2000. The applicant contended that the review procedure was distinct and different from the appeal procedure before the Board.

Held by Cooke J. that Article 10a did not require a Member State to ensure access to a procedure for review in advance or in lieu of a possible review of a decision before an administrative authority whose own decision was amenable for review in a court. Even if Irish law did not satisfy the requirements of Article 10a because of the constraints of s. 50(a)(3) of the Act of 2000, the only consequence of the present case would be that the issue was premature. Thus participation in the pending oral hearing would not exhaust its right to an Article 10a review procedure. The court considered that no substantial ground had been raised and no issue arose for determination as to the possible alteration of the scope, nature or purpose of the hearing still outstanding. The application for leave would be refused.

Reporter: E.F.

1 This application for leave to apply for judicial review arises out of an appeal (Reference No. PL03.228869), currently pending before the first named respondent ("the Board"), which has been brought by the applicant (amongst others) against a decision, (Register Reference No. 06/2401) of the second of the named notice party ("the planning authority") to grant planning permission to the first named notice party ("Shannon Explosives") for the construction of an explosives factory at Kildysart, County Clare.

2 The applicant was represented by solicitor and counsel when an oral hearing on that appeal opened before an inspector on 21 ^st October, 2008. At the outset of that hearing, counsel on behalf of the applicant, together with the representative of An Taisce, the third named notice party which was also a party to the appeal, raised a preliminary enquiry of the inspector as to the nature and scope of the appeal hearing and, in particular, as to whether it was a de novo appeal against the planning authorities' decision, or a review of the substantive and procedural legality of that decision as provided for in Article 10a of Council Directive 85/337/EEC of 27 ^th June, 1985, on the assessment of the effects of certain public and private projects on the environment. (OJ L175, 5.7. 1985 p.40). ("The 1985 Directive") Article 10a is inserted in the 1985 Directive by Article 3(7) of Directive 2003/35/EC of the European Parliament and of the Council of 26 ^th May, 2003, providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC. (OJ L156 25.6. 2003 p. 17) ("The 2003 Directive")

3 Counsel for the applicant called upon the inspector to rule upon, or to have the Board determine that issue before proceeding further with the hearing. After a suspension of the hearing to enable the inspector to consult the Board, the parties were informed that the Board was unable to provide the clarification or determination sought and that it required, in effect, that the hearing proceed.

4 It is in these circumstances that the applicant seeks leave to apply for a series of reliefs, the objective of which is to procure a determination of the issue as to whether the appeal before the Board is or is not a review procedure for the purposes of Article 10a of the 1985 Directive and to stay the further processing of the appeal until that issue has been resolved.

5 Although it might be questionable whether the present proceeding comes within the scope of s. 50(2) of the Planning and Development Act 2000 ("the 2000 Act") in the absence of any specific question raised as to the validity of any particular decision or act of the Board, this application has been brought and the applicant's written legal submissions have been made, on the basis that the conditions applicable to "s. 50 leave" under s. 50A of that Act must be met.

6 The application has thus been brought against the Board as respondent and on notice to the developer and the planning authority concerned. The remaining notice parties are named as having been parties to the appeal before the Board. Ireland and the Attorney General have also been joined as respondents, although, as no relief is claimed against the State and no issue as to the validity of any Act of the Oireachtas is raised, it is not at all apparent why this was considered necessary or appropriate.

7 Apart from the requests for costs and further relief, the reliefs sought in s. (d) of the Statement of Grounds fall under eight headings, although the first four of these appear to be alternative formulations directed towards the same essential issue, namely, the entitlement of the applicant to a determination, prior to...