Connelly v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Frank Clarke
• Judgment Date: 17 July 2018
• Neutral Citation: [2018] IESC 31
• Date: 17 July 2018
• Court: Supreme Court
• Docket Number: Appeal No: S:AP:IE:2017:000013,[S.C. No. 13 of 2017]

Between/

Kathleen Connelly

Applicant/Respondent

and

An Bord Pleanála

Respondent/Appellant

And

Clare County Council

McMahon Finn Wind Acquisitions Ltd

Notice Parties

[2018] IESC 31

Clarke C. J.

Clarke C. J.

O'Donnell Donal J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

Appeal No: S:AP:IE:2017:000013

Record No: 2014/488JR

THE SUPREME COURT

Planning permission – Environmental impact assessment – Appropriate assessment – Respondent seeking to challenge the decision of the appellant – Whether adequate reasons were given by the appellant in its decision

Facts: The second notice party, McMahon Finn Wind Acquisitions Ltd (the developer), was the applicant in an application for permission involving a proposed wind farm development consisting of six turbines. The application was turned down by the first notice party, Clare County Council, on the 12th July 2011. The developer appealed against that refusal to the respondent/appellant, An Bord Pleanála. On the 9th May 2014, the Board determined to grant permission with the formal decision of the Board being dated the 29th May 2014. The applicant/respondent, Ms Connelly, brought judicial review proceedings challenging that decision of the Board. The High Court (Barrett J) decided to quash the decision of the Board granting permission. It was in respect of that decision of Barrett J that the Board appealed to the Supreme Court. The central issue with which the High Court and the Supreme Court was concerned related to the question of whether, at least in very general terms, adequate reasons were given by the Board in its decision.

Held by Clarke CJ that the trial judge imposed too exacting a standard on the Board in respect of the obligation under national law to give reasons. Clarke CJ was satisfied that the reasons given were adequate to enable any interested party to know why the decision, insofar as it related to the development consent, went the way it did and to consider whether there was any legitimate basis for seeking to mount a challenge. Therefore, Clarke CJ reversed the judgment of the High Court in that regard. Clarke CJ was also satisfied that the decision and any other materials which were either expressly referred to in it or could be taken by necessary implication to form part of the reasoning, provided adequate information to enable any interested party to assess whether an appropriate environmental impact assessment had been carried out. Therefore, Clarke CJ reversed the judgment of the High Court in relation to those issues. Clarke CJ was satisfied that neither the decision itself nor any other materials which were expressly referred to in the decision or must be taken by necessary implication to form part of the process leading to the ultimate determination of the Board, could be shown to contain the sort of complete, precise and definitive findings which would underpin a conclusion that no reasonable scientific doubt remained as to the absence of any identified potential detrimental effects on a protected site having regard to its conservation objectives; such findings are a necessary pre-condition to the Board having jurisdiction to grant a development consent in a case where it is determined that an appropriate assessment is required. Therefore, Clarke CJ held that the permission granted in this case must be quashed because of the failure to make the sort of findings which the jurisprudence of the Court of Justice of the European Union requires to be made as part of a valid appropriate assessment.

Clarke CJ held that he would dismiss the appeal on much narrower grounds than those identified by the trial judge, confining himself to quashing the decision on the grounds related to an appropriate assessment.

Appeal dismissed in part.

Judgment of Mr. Justice Frank Clarke , Chief Justice delivered the 17th July 2018

1. Introduction

1.1 In very simple terms the application which lies at the heart of these proceedings involved a proposed wind farm development consisting of six turbines in respect of which the second named notice party ('the Developer') was the applicant. The application for permission was turned down by the relevant planning authority, being the first named notice party ('Clare County Council'), on the 12th July 2011. While it will be necessary in due course to say a little more about the process which followed on from an appeal against that refusal to the respondent/appellant ('the Board'), ultimately, on the 9th May 2014, the Board determined to grant permission with the formal decision of the Board being dated the 29th May 2014.

1.2 The applicant/respondent ('Ms. Connelly') brought these judicial review proceedings challenging that decision of the Board. For reasons which it will again be necessary to address in more detail, the High Court (Barrett J.) ( Connelly v. An Bord Pleanála [2016] IEHC 322) decided to quash the decision of the Board granting permission. It is in respect of that decision of Barrett J. that the Board has appealed to this Court.

1.3 I propose to turn initially to the grant of leave, but it is appropriate at this stage to record that the central issue with which the High Court was concerned, and also the central issue with which this Court is concerned on this appeal, relates to the question of whether, at least in very general terms, adequate reasons were given by the Board in its decision.

1.4 There have been significant developments in recent years in the law relating to the reasons required to be given by any decision maker who has the legal power to make determinations which affect legal rights and obligations. It will be necessary to address that evolving jurisprudence in due course. The particular focus of the issues which arise on this appeal concerns the application of those principles to decisions made by the Board when exercising its statutory role in relation to planning permission. However, questions of European law also arise in the context of this appeal, for the project in respect of which the challenged permission was given involved obligations under Union law both to conduct an environmental impact assessment ('EIA') and, having regard to the possibility of there being an effect on a sensitive site, an appropriate assessment ('AA'). It follows that it is also necessary to consider the extent, if any, to which there may be additional obligations placed on the Board when making decisions involving either or both an EIA or an AA.

2. The Grant of Leave

2.1 The Board applied to this Court for leave to bring a leapfrog appeal direct to this Court.

2.2 For the reasons set out in a determination ( Connelly v. An Bord Pleanála & ors [2017] IESCDET 57) this Court granted leave.

2.3 The issues which this Court identified as meeting the constitutional threshold and in respect of which leave to appeal was, therefore, granted were all of the grounds proposed by the Board in its application for leave. These grounds were set out in the following terms:-

1. The High Court erred in law in finding legal fault with the reasons for the Board's Decision by failing to consider the Decision as a whole and focusing only on the conclusions cited at [12] and [25] to the detriment of the clear and express reasoning set forth elsewhere in the Decision. The law requires that the whole of the Board Decision be examined (see e.g. Rathineska v An Bord Pleanála [2015] IEHC 18) which includes the entire of its reasoning and the reasons for the imposition of specific conditions. Further, the adequacy of the Board's reasons fall to be considered in light of the documents and evidence before the Board and from the standpoint of an intelligent person who has participated in the relevant proceedings and is appraised of the broad issues involved (see e.g. O'Keeffe v. An Bord Pleanála [1993] 1 IR 39 and O'Neill v. An Bord Pleanála [2009] IEHC 202). In the premises the High Court applied an inappropriate standard of review to the Board's Decision.

2. The High Court erred in law by concluding that the Board had failed to comply with s.177V(1) of the PDA insofar as the High Court held that a failure to provide proper reasons for a conclusion on AA equates to non-compliance with s.177V(1) and erred in law in concluding that the Board had failed to provide proper reasons for its Decision insofar as AA was concerned. S.177V(1) does not impose any express reasoning obligation on a decision maker apart from the obligation to make a determination under Article 6(3) of the Habitats Directive.

3. The High Court erred in holding that the Board could not refer to and rely on other material in its decision unless the particular observations or conclusions relied upon are identified with specific particularity on the face of the Board's Decision.

4. The High Court erred in law by holding that the Board could not adopt contents of the Inspector's report in circumstances where it did not accept the Inspector's recommendations and where the report was not 'unfailingly positive' as regards the proposed development.. The Board Decision clearly indicates that the Inspector's report was adopted save in respect of issues where the Board disagreed with the Inspector and express reasons were provided by the Board for its conclusions on these issues.

5. The High Court erred in law and in fact in holding that the Board could not rely on the Inspector's report because the proposed development had been redesigned subsequent to the preparation of that report. In so holding the High Court paid no regard to the fact that the redesign had been invited by the Board to meet specific concerns highlighted by the Inspector in her report or that the development remained broadly similar save certain items were omitted (thereby lessening any impact the development might have) that the location of other items of infrastructure were changed to meet the said concerns.

6. The High Court erred in...