Concerned residents of Treascon and Clondoolusk v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 10 March 2023 |
| Neutral Citation | [2023] IEHC 112 |
| Court | High Court |
| Docket Number | [2021 No. 1009 JR] |
and
[2023] IEHC 112
[2021 No. 1009 JR]
THE HIGH COURT
JUDICIAL REVIEW
Declaratory relief – Leave to appeal – Costs – Applicant seeking leave to appeal – Whether there was any basis for leave to appeal
Facts: The High Court (Humphreys J), on 16th December, 2022, dismissed the proceedings of the applicant, concerned residents of Treascon and Clondoolusk, which challenged a permission for a solar farm granted by the first respondent, An Bord Pleanála: [2022] IEHC 700. Following the No. 1 judgment, the notice party, Elgin Energy Services Ltd, informed the applicant that it intended to apply to the Minister for Agriculture, Food and the Marine for an environmental impact assessment (EIA) screening decision in relation to the hedgerow removal element of the project. The applicant sought some form of substantive relief on foot of the No. 1 judgment, as well as leave to appeal, a reference to the CJEU and an order for costs. The applicant argued that it should be granted declaratory relief along the following lines: “A Declaration that the development consent given for, and the execution of, solar farm developments and associated works at Treascon and Clondoolusk, Portarlington, Co. Offaly involving land restructuring in excess of 50 hectares and field boundary removal in excess of 500 metres must be preceded by an assessment with regard to their environmental effects, in accordance with Directive 2011/92 EU as amended”. In oral submissions, the applicant went further to ask the Court to revisit the decision to refuse certiorari. The applicant submitted as follows in relation to seeking recourse to Luxembourg: “If it is not acte clair that an Environmental Impact Assessment or screening for same is required for a solar farm in circumstances where its construction both requires and results in the restructuring of rural land holdings and as such the whole project is likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location, then the question should be the subject of a preliminary reference to the CJEU under Article 267 of the TFEU”. The applicant submitted as follows in relation to costs: “In the event that a certificate to appeal is granted, costs should be reserved pending the outcome of the appeal. Further and in the alternative, to the extent that the Applicant has succeeded in its application to prevent the developer from proceeding with the project until such time as an EIA has been completed, costs should be awarded in its favour”.
Held by Humphreys J that there was no need for a declaration that the notice party should apply for EIA screening because it had already stated that it would do so. Humphreys J held that there was no basis for granting a declaration or otherwise revisiting the order proposed in the No. 1 judgment dismissing the proceedings. Humphreys J held that the basic problem with the questions that the applicant sought certified, individually and collectively, was that they went beyond the limited grounds set out in the pleaded case, for the reasons explained in the No. 1 judgment. Humphreys J held that there was no basis for leave to appeal. Humphreys J held that the proposed reference to the CJEU was not appropriate on any view, and both procedurally and in terms of merits was not a basis to make an order other than to dismiss the proceedings and refuse leave to appeal. Humphreys J held that the default position under s. 50B(2) of the Planning and Development Act 2000 of no order as to costs was the obvious and appropriate outcome.
Humphreys J held that the substantive order would be perfected on the basis of a dismissal of the proceedings simpliciter, the application for a reference to the CJEU would be refused, leave to appeal would be refused and there would be no order as to costs.
Application refused.
(No. 2)
JUDGMENT of Humphreys J. delivered on the 10 th day of March, 2023
. In ( [2022] IEHC 700 Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála, Ireland and the Attorney General (No. 1) Unreported, High Court, 16th December, 2022), I dismissed the applicant's proceedings which challenged a permission for a solar farm granted by the board. The principal facts are set out at more length in that judgment. Following the No. 1 judgment, the notice party informed the applicant that it now intends to apply to the Minister for Agriculture, Food and the Marine for an environmental impact assessment (EIA) screening decision in relation to the hedgerow removal element of the project. The applicant has now sought some form of substantive relief on foot of the No. 1 judgment, as well as leave to appeal, a reference to the CJEU and an order for costs. I will deal with each of these in turn.
. Very unusually, after the substantive judgment, the applicant complains about the proposed dismissal of its proceedings and argues that it should be granted declaratory relief along the following lines: “A Declaration that the development consent given for, and the execution of, solar farm developments and associated works at Treascon and Clondoolusk, Portarlington, Co. Offaly involving land restructuring in excess of 50 hectares and field boundary removal in excess of 500 metres must be preceded by an assessment with regard to their environmental effects, in accordance with Directive 2011/92 EU as amended”. In oral submissions, the applicant went further to ask the Court to revisit the decision to refuse certiorari.
. In the statement of grounds, the applicant did not seek an order compelling the developer to apply to the Minister for a declaration that it would be unlawful to remove hedgerows without such a successful application. If the problem were just one of unpleaded reliefs, the court could legitimately draw on the claim for further and other relief, or the general declaratory relief sought in accordance with Practice Direction HC107 applicable in the List, or the wide jurisdiction under O. 84 r. 19 RSC. But the problem goes beyond that — there are no grounds pleaded that would allow such reliefs to be granted. Nor was the Minister ever joined as a party to the proceedings.
. I accept that an applicant can supplement a deficiency in the reliefs, even at a late stage in the proceedings, by reference to the procedures just referred to, but flexibility regarding the court's entitlement to grant reliefs not specifically claimed has to be within the contours of the case as defined by the grounds. A failure to plead the necessary supporting grounds or to join the necessary parties or both precludes the grant of unpleaded relief. I do not see how a declaration as sought by the applicant could properly be granted at this or any stage in these proceedings given the lack of a ground to this effect, and indeed given that the Minister is not a party. The issue of the EIA screening process by the Minister will have to be one for some other set of proceedings.
. To put it another way, the issue is hypothetical for the purposes of these particular proceedings because it is “not in furtherance of the resolution of a dispute” to which the proceedings relate: see Conway v. An Bord Pleanála & Clonres v. An Bord Pleanála [2022] IESCDET 71, Lofinmakin & Ors v. Minister for Justice, Equality and Law Reform & Ors [2013] IESC 49, [2013] 4 I.R. 274, [2013] 11 JIC 2001, E.L.G. v. H.S.E. [2021] IESC 82, [2022] 1 I.L.R.M. 213, [2021] 12 JIC 2001.
. Overall, the applicant's submissions look quite impressive at first reading, but only if you ignore the impermissible recalibration of the pleaded case and the consequent mischaracterisation of the No. 1 judgment. That judgment does not have the sweeping implications alleged and nor does it result from an unprecedented procedure. The points now complained of arose from a fairly basic application of established pleading rules to the particular challenge.
. The applicant dramatically claimed that the statements in the No. 1 judgment about rural land restructuring meant that the court came up with something that none of the parties had argued. That sounds alarming, but the drama is contrived. In every case where a court does not find 100% for one party but identifies something of merit in the losing party's submissions (this happens quite often), it can be said that the court has “come up with something that none of the parties argued for”. But that is only true in the trivial sense that each party argues for 100% success for itself, so anything short of that for the winning side is perhaps just about literally “something nobody argued for”. But each element of the result is something that at least one of the parties argued for. There is nothing to see in that everyday procedure, despite the applicant's overhyped characterisation.
. In any event, even if I am wrong about anything else, there is no need for a declaration that the notice party should apply for EIA screening because it has already stated that it will do so. Subject therefore to what follows below regarding a CJEU reference, there isn't any basis for granting a declaration or otherwise revisiting the order proposed in the No. 1 judgment dismissing the proceedings.
. The applicant seeks certification of the following questions:
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(i). Given that that the principle of primacy of EU law requires not only the courts but all the bodies of the Member States to give full effect to EU rules; and where the EU law requires the competent authority in a consent application process to take account of the effects on the environment at the earliest possible stage in all the technical planning and decision-making processes; and where the EIA...
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