Fitzpatrick v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 01 November 2017
• Neutral Citation: [2017] IEHC 644
• Docket Number: [RECORD NO. 2016/754 JR]
• Court: High Court
• Date: 01 November 2017

[2017] IEHC 644

THE HIGH COURT

McDermott J.

[RECORD NO. 2016/754 JR]

IN THE MATTER OF SECTION 50 OF THE PLANNING

AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

SINEAD FITZPATRICK

AND

ALLAN DALY

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

GALWAY COUNTY COUNCIL

AND

APPLE DISTRIBUTION INTERNATIONAL

NOTICE PARTIES

Environment, Construction & Planning – S. 50A(7) of the Planning and Development Act 2000 – Exceptional public importance – Environment Impact Assessment – Leave to appeal to the Court of Appeal

Facts: The applicants sought a certificate from the Court for leave to appeal the judgement pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended). The applicants raised questions of law regarding extent to which interconnectivity or interdependence between various developments needed to be considered in determining whether the development was a stand alone development and scope of Environment Impact Assessment (‘EIA’).

Mr. Justice McDermott refused to grant leave to the applicants. The Court stated that the applicants did not justify the standards for the certification of a point of law of exceptional public importance under s. 50A(7). The Court noted that the questions raised by the applicants had already been dealt with in various judgments of the Court and there was no legal uncertainty that remained to be ascertained.

JUDGMENT of Mr. Justice McDermott delivered on the 1st day of November, 2017

1 The applicant seeks a certificate from the court for leave to appeal the judgment delivered on 12th October, 2017 in the above titled proceedings pursuant to s. 50A(7) of the Planning and Development Act 2000 (as amended) which provides:

‘The determination of the court … of an application for judicial review … shall be final and no appeal shall lie from the decision of the court to the Supreme Court… save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.’

The reference to the Supreme Court is now to be construed as a reference to the Court of Appeal pursuant to ss. 74 and 75 of the Court of Appeal Act 2014 and section 7A(2) of the Courts Act 1961 as inserted by section 8 of the 2014 Act.

2 The principles applicable to the determination of whether a certificate should be granted under the section were considered by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 and summarised as follows:

‘1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. …

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding ‘exceptional public importance’ and ‘desirable in the public interest’ are cumulative requirements which although they may overlap, to some extent require separate consideration by the court ( Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word ‘exceptional’.

8. Normal statutory rules of construction apply which mean inter alia that ‘exceptional’ must be given its normal meaning.

9. ‘Uncertainty’ cannot be ‘imputed’ to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’

These principles have been endorsed and applied in a number of decisions including Arklow Holidays Limited v. An Bord Pleanála [2008] IEHC 2, Ashbourne Holdings Limited v. An Bord Pleanála [2002] IRLM 321, Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704, Ógalas Limited (t/a Homestore and More) v. An Bord Pleanála [2015] IEHC 205, Callaghan v. An Bord Pleanála (No. 3) [2015] IEHC 493 and Dunnes Stores v. An Bord Pleanála [2015] IEHC 387.

3 The proposed points advanced by the applicant for certification are: -

‘(i) To what extent does interconnectivity or interdependence between various developments need to be considered in determining whether or not a development is a stand alone development? In circumstances where a development proposed comprises the construction of a 20 acre grid connection and is expressed to be constructed to power a development of 240 MW, can such development be consented to without considering the effects of the power demand of such development? Similarly, where a development is part of an overall masterplan but can be constructed independently, is this potential independence determinative of its status as a stand alone development?

(ii) When presented with an application for development consent for a ‘stand alone project’ that forms part of a larger envisioned ‘masterplan’ development, is it lawful under the Environmental Impact Assessment (EIA) Directive (2011/92/EU as amended by Directive 2014/52/EU) to assess the ‘masterplan’ for the purposes of Article 5(1) (d) and Annex IV (2), relating to the alternatives assessment (including assessment of alternative locations), while simultaneously only assessing the ‘stand alone project’ for the impact assessment required under Article 5(1)(d) and Annex IV (5).

(iii) What is the legal extent of ‘as far as practicable’ in the context of the scope of an EIA of a development that is the first phase of an overall masterplan? In particular, where the broad parameters of the overall masterplan are known (and are fundamental to the sites location for the development proposal) to what extent can the lack of precise detail prevent the conduct of an assessment?

(iv) In the event of the Board being unable to assess the entire masterplan development what is the Board's obligation to assess the development as a stand alone development, and in particular to assess the impacts and sustainability of the development in terms of site location and consideration of alternatives?

(v) What is the obligation to identify the main effects of the development and the main measures to reduce or off set same under National and EU law? What is the Board's obligation to record such identification, and is it met by the adoption of an inspector's report that itself highlights and identifies deficiencies in the information provided and questions the mitigation proposed (or indeed, concludes negatively in respect of same)?’

4 The applicants were granted leave to apply for judicial review in respect of the Board's decision to grant permission for a project involving the construction of one data hall and ancillary services together with an associated grid connection at Athenry, Co. Galway. A declaration was also sought that the decisions of An Bord Pleanála were in breach of Directive 2011/92/EU of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment and the related jurisprudence. Leave was granted on thirteen grounds which are addressed in the judgment. The applicants submit that the questions set out above constitute points of law that arise from the judgment. The draft points proposed at (i) to (v) above are heavily focused upon the circumstances of the particular overall project contemplated by Apple and a suggested obligation on the Board to carry out an EIA in respect of the company's masterplan to construct eight data halls and ancillary services together with the associated grid connection which will ultimately be the conduit for power to the entire complex if it were fully constructed and operational. It is clear that it is not envisaged that the plant would operate at full capacity in the near future. It is anticipated that full capacity may be reached in 2030 to 2035.

5 The development or project which was the subject of the initial consent or permission application to Galway County Council which was ultimately granted by An Bord Pleanála constituted the first phase of the more extended project. Permission was also granted by An Bord Pleanála in respect of the infrastructural grid connection development through which electricity will be supplied to the data hall in respect of which permission has been granted. The maximum consumption of electricity in respect of the phase one data hall is 30MW of electricity which will not be required until approximately 2023. The applicants submit that because of the enormous potential environmental effect of the production and consumption of this amount of electricity on the climate and on the national grid, the entire masterplan should have been the subject of an Environment Impact Assessment (EIA).

6 This proposition underpins the grounds upon which leave was granted and the judicial review hearing was conducted. In this regard, the court is satisfied, and it is accepted by the applicants, that there is a considerable overlap between the questions set out at (i) to (iv). The court considers that they consist of a critique of the court's determination of the issues set out in its judgment. The court sought to distil from the questions posed at (i) to (iv) a point of law of exceptional public...