Clifford & Peter Sweetman v an Bord Pleanala ; O'Connor v an Bord Pleanala

JurisdictionIreland
JudgeHumphreys J.
Judgment Date15 August 2022
Neutral Citation[2022] IEHC 474
CourtHigh Court
Docket Number[2021 No. 20 JR]

In the Matter of Section 50B, Section 214 and Section 215 of the Planning and Development Act 2000 as Amended and Section 51 of the Roads Act 1993 as Amended and Section 10 of the Local Government (No. 2) Act 1960

Between
James Clifford and Peter Sweetman
Applicants
and
An Bord Pleanála, Ireland and The Attorney General
Respondents

and

Kerry County Council
Notice Party

In the Matter of an Application Pursuant to Section 76 of and the Third Schedule to the Housing Act 1986 as Extended by Section 10 of the Local Government (No. 2) Act 1960 and Substituted by Section 86 of the Housing Act 1966 and in the Matter of the Planning and Developments Acts 2000 to 2019 and in the Matter of Section 50B of the Planning and Development Act 2000 and in the Matter of an Application Pursuant to Section 51 of the Roads Act 1993 (As Amended) and in the Matter of an Application

Between
Denis O'Connor, Christy McDonnell, Mary O'Neill McDonnell and The Greenway Information Group
Applicants
and
An Bord Pleanála, Ireland and The Attorney General
Respondents

and

Kerry County Council
Notice Party

[2022] IEHC 474

[2021 No. 20 JR]

[2021 No. 19 JR]

THE HIGH COURT

JUDICIAL REVIEW

Declaratory reliefs – Judicial review – Development – Applicants seeking declaratory relief – Whether the first respondent had complied with its publication obligations

Facts: The High Court (Humphreys J), on 12th July, 2021, in Clifford v An Bord Pleanála (No. 1) [2021] IEHC 459, dismissed an application for certiorari of development consent for the South Kerry Greenway under s. 51 of the Roads Act 1993. On 15th October, 2021, in Clifford v An Bord Pleanala (No. 2) [2021] IEHC 642, Humphreys J refused the applicants, Mr Clifford, Mr Sweetman, Mr O’Connor, Ms McDonnell, Ms O’Neill McDonnell and the Greenway Information Group, leave to appeal under s. 50A(7) of the Planning and Development Act 2000. On 7th February, 2022, in Clifford v An Bord Pleanala [2022] IESCDET 13, the Supreme Court (MacMenamin, Dunne and Woulfe JJ) refused leapfrog leave to appeal. In accordance with Practice Direction HC107, the applicants claimed general declaratory relief with a view to identifying the specific declarations required in the course of submissions. The applicants complained that the first respondent, An Bord Pleanála (the board), had failed to comply with its publication obligations. The applicants’ complaint about lack of publication broke down into two headings: (i) failure to publish materials on the board’s website in the course of the application procedure; and (ii) failure to publish notice of the decision at the end of the procedure.

Held by the High Court (Humphreys J) that there would be a declaration that the board acted in breach of s. 51(4C) of the 1993 Act by failing to make available on its website a submission received on 24th June, 2019 and four errata documents furnished at the oral hearing from 8th to 18th October, 2019 and 12th to 22nd November, 2019 insofar as they affected the EIA report. Humphreys J ordered that there would be a declaration that the board acted in breach of s. 51(6C) of the 1993 Act insofar as information required by that sub-section was placed on its website rather than in the newspaper notice in circumstances where the newspaper notice did not adequately identify the precise link at which such necessary information was to be found.

Humphreys J held that the matter would be listed for mention on 3rd October, 2022 at 2 p.m. to deal with any further or consequential matters.

Relief granted.

(No. 3)

JUDGMENT of Humphreys J. delivered on Monday the 15th day of August, 2022

1

Directive 2014/52/EU amending directive 2011/92/EU (the EIA directive) was adopted on 16 th April, 2014.

2

On 23 rd January, 2017, in contemplation of making a planning application for the South Kerry Greenway, Kerry County Council sought a direction from the board as to whether an Environmental Impact Statement (as an EIA report was then known) was required. The board decided that it was.

3

The deadline for transposition of the 2014 directive expired on 16 th May, 2017 but without timely transposition in the context of an application such as this one, which is governed by s. 51 of the Roads Act 1993.

4

A pre-application consultation with the board took place on 26 th June, 2018.

5

On 27 th August, 2018, the council made a compulsory purchase order in respect of the lands required.

6

On 29 th August, 2018, the council applied for development consent under s. 51 of the 1993 Act for a proposed 31.93 km greenway route.

7

Notice of the application was published in Kerry's Eye newspaper on 30 th August, 2018.

8

On 31 st August, 2018, the council applied to the board to confirm the compulsory purchase order. Submissions were made by a number of the applicants and interested parties: by Mr. Clifford on 13 th October, 2018, Mr. McDonnell on 15 th October, 2018, Mr. Sweetman on 17 th October, 2018, Mr. O'Connor on 18 th October, 2018 and the Greenway Information Group on 19 th October, 2018.

9

On 30 th November, 2018, the board requested further information from the council. The applicants were notified of this on 3 rd December, 2018. The council provided the further information on 8 th April, 2019.

10

On 23 rd April, 2019, the board decided that the information was significant and wrote to Kerry County Council requiring advertisement of the further information. Notice to that effect was published in the Irish Examiner and Kerry's Eye on 9 th May, 2019. Submissions were then made on this further information, including one from Ms. McDonnell on 21 st June, 2019.

11

A crucial development for the purposes of the present case then occurred on 24 th June, 2019 which was the coming into operation of regulations implementing the 2014 directive namely the European Union (Roads Act 1993) (Environmental Impact Assessment) (Amendment) Regulations 2019 ( S.I. No. 279 of 2019).

12

The deadline for close of submissions on the additional information was the same day, 24 th June, 2019. At 16:13 that day, a submission was received from Harrington Solicitors on behalf of Greenway Information Group. This submission was not put on the board's website.

13

Notice of the making of the 2019 regulations was published in Iris Oifigiúil on 28 th June, 2019.

14

Letters were sent by the board in relation to an oral hearing on 15 th August, 2019. Harrington Solicitors replied on 30 th August, 2019 and ultimately an agenda for an oral hearing was sent on 19 th September, 2019.

15

The oral hearing was held by the board's inspector in Tralee from 8 th to 18 th October, 2019 and from 12 th to 22 nd November, 2019. Importantly for present purposes, during the oral hearing additional information was added to the EIA report as well as the CPO process in the form of four errata documents. Again, these documents were not put on the board's website.

16

The inspector prepared a report dated 28 th April, 2020. She proposed omitting two sections of the greenway pending further consideration of environmental impacts, particularly in relation to erosion: firstly, Reenard Point to Cahersiveen (Chainage c. 50 to c. 3,700); and secondly, at Cloghanelinaghan (chainage c. 5,975 to c. 7,100).

17

A first board meeting was held on 17 th June, 2020 and the inspector's original report was before the board at that point. Following certain issues being raised by the board and by the inspector's supervisor, the inspector's report was amended on some date between 17 th and 26 th June, 2020.

18

A second board meeting took place on 7 th October, 2020 and the amended report was before the board on that occasion. The board then made a direction in relation to the grant of permission.

19

The formal decision was made on 10 th November, 2020 to approve the permission and the CPO subject to the omission of the sections recommended for removal by the inspector.

20

The applicants were notified of the decision on 11 th November, 2020 and public notice was published in Seachtain newspaper (which is distributed with the Irish Independent on Wednesdays) on 25 th November, 2020 and in Kerry's Eye on 26 th November, 2020.

21

Leave in the present proceedings challenging the board's decision was granted on 14 th January, 2021 in Clifford and on 21 st January, 2021 in O'Connor.

22

An amended statement of grounds in O'Connor was filed on 20 th January, 2021.

23

In ( [2021] IEHC 459 Clifford v. An Bord Pleanála (No. 1) Unreported, High Court, 12th July, 2021), I refused certiorari of the decision of the board leaving over certain declaratory reliefs for module II.

24

In Clifford v. An Bord Pleanala (No. 2) [2021] IEHC 642, ( [2021] 10 JIC 1502 Unreported, High Court, 15th October, 2021), I refused leave to appeal.

25

In Clifford v. An Bord Pleanala [2022] IESCDET 13 (Unreported, Supreme Court, MacMenamin, Dunne and Woulfe JJ., 7 th February, 2022), the Supreme Court refused leapfrog leave to appeal.

26

I am now dealing with the second module which relates to the declaratory reliefs.

27

As indicated in the No. 1 judgment (at paras. 29 and 30), two matters were left over. The first was the challenge to the validity of para. 10(dd) in Part 2 of Schedule 5 to the Planning and Development Regulations 2001 ( S.I. No 600 of 2001). The applicants decided not to pursue that challenge without prejudice to the right to pursue it in respect of some further development proposal.

28

The second set of issues related to the question of whether the board had complied with its publication obligations.

29

In accordance with Practice Direction HC107, the applicants quite properly claim general declaratory relief with a view to identifying the specific declarations required in the course of submissions. The reason or the desirability of such a general plea have been well rehearsed elsewhere and are essentially practical. It is normally pointless...

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