Friends of the Irish Environment Ltd v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Clarke C.J.,O'Donnell J.,McKechnie J.,MacMenamin J.,Dunne J.,Charleton J.,O'Malley J. |
| Judgment Date | 06 December 2017 |
| Neutral Citation | [2017] IESCDET 135 |
| Court | Supreme Court |
| Date | 06 December 2017 |
[2017] IESCDET 135
THE SUPREME COURT
DETERMINATION
Clarke C.J.
O'Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
Charleton J.
O'Malley J.
AND
AND
AND
This determination relates to an application for leave to appeal to the Supreme Court from judgments of the High Court (White J.) dated the 9th October, 2015, and the 6th April, 2017, and from the resulting order of that Court made on the 6th April, 2017, and perfected on the 2nd May, 2017.
Friends of the Irish Environment Limited, also referred to in this determination as ‘the applicant’ or ‘FIE’, is an environmental non-governmental organization which seeks leave to appeal to this Court from the said judgments and order of the High Court.
An Bord Pleanála (also referred to in this determination as ‘the first named respondent’ or ‘the Board’) opposes the application for leave. Ireland and the Attorney General also oppose the application and are referred as ‘the State respondents’. All three respondents are collectively referred to as ‘the respondents’. The application is also opposed by Edenderry Power Limited and Bord na Móna, which entities are collectively referred to as ‘the first two notice parties’.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a ‘leap-frog’ appeal directly from the High Court to the Supreme Court. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, a precondition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.
Any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court's consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.
A fuller history of the proceedings can be found in FIE's application for leave document and the respondents' notices, as well as in the judgments of the High Court made during the course of these proceedings. What is presented here is a summary for contextual purposes.
The within proceedings arose from a decision of An Bord Pleanála made on the 19th November, 2013, granting Edenderry Power Limited planning permission for the continued use and operation of a previously permitted peat and biomass co-fired power plant at Clonbullogue, County Offaly. On the 22nd January, 2014, the applicant was granted leave to apply for judicial review seeking, inter alia, an order of certiorari quashing the said decision of the Board. The applicant's various grounds of review related to the first and second named respondents' alleged failure to fulfil certain obligations under Directive 92/43/EC on the conservation of natural habitats of wildlife and flora in special areas of conservation (‘the Habitats Directive’), in that no appropriate assessment of the peat extraction works or the operation of the power plant had ever been carried out. It was also alleged that certain necessary conservation measures had not been established. The applicant's case was that the extraction of peat from the bogs supplying the power plant is likely to have significant effects on i) the River Barrow and River Nore special area of conservation, and ii) the River Boyne special area of conservation.
It should be noted that FIE's application for judicial review was heard together with a second, distinct application for judicial review in respect of the power plant, this other application being brought by another nongovernmental organisation, An Taisce. An Taisce's application related to the Board's alleged failure to comply with Directive 2011/92/EU of the European Parliament and Council of 13th December, 2011, on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment Directive or ‘EIA Directive’).
The substantive decision of the High Court (White J.) on the applications for judicial review was delivered on the 9th October, 2015 ( An Taisce v. An Bord Pleanála [2015] I.E.H.C. 633). The learned judge found for An Taisce in its application and granted an order of certiorari quashing the Board's decision of the 19th November, 2013. The Court noted that there could be possible indirect environmental effects of the use of peat from the bogs in question, and that An Bord Pleanála had excluded the consideration of these indirect effects when considering the planning application for the extension of the life of the power plant. Thus the Board was obliged to ensure the effectiveness of the EIA Directive by subjecting those environmental effects to an environmental impact assessment before granting planning permission for the power plant. However, although quashing the Board's decision on the basis of An Taisce's successful application, White J. refused the judicial review application sought by FIE. He stated that FIE fell substantially short of the standard required to sustain its argument and had failed to put before the Court cogent material, by way of expert analysis on affidavit, of the case it was making concerning the alleged breach of the Habitats Directive. He therefore refused the relief that it sought.
FIE subsequently made an application seeking to have the High Court revisit its substantive judgment. FIE's case was that An Bord Pleanála had failed to consider, at all, the peat extraction associated with the project, and in particular had failed to conduct a screening assessment of this peat extraction.
White J. delivered his judgment on this application on the 14th October, 2016 ( [2016] I.E.H.C. 558). The learned judge set out the principles governing the jurisdiction of a Court to revisit its judgment ( Belville Holdings Limited v. Revenue Commissioners [1994] 1 I.L.R.M. 29; In Re Greendale Developments [2000] 2 I.R. 514; L.P. v. M.P. [2002] 1 I.R. 219; People Over Wind v. An Bord Pleanála [2015] I.E.H.C. 356 (‘ People Over Wind v. An Bord Pleanála’)). He stated that the applicant had not pointed to an error of fact in the original judgment; rather its submission was that the Court had failed to address a specific legal argument in respect of the requirement for a screening assessment.
White J. noted that the issue of the burden of proof had been clearly raised in advance of the initial judgment and at hearing, and repeated his original finding that although the applicant had made assertions about certain environmental effects of the power plant, it had adduced no primary evidence whatsoever. He accepted that the Court had not specifically addressed, in its initial judgment, the screening assessment argument advanced by FIE in the application to revisit the judgment. The learned judge noted that the Board did carry out a preliminary screening assessment for the purposes of the Habitats Directive, and that it accepted that this was for the purposes of assessing the effect of the operation of the power plant, rather than the effect of peat extraction on any area of conservation. He stated that at most what the applicant had asserted was that the Court did not address a particular aspect of its original submissions. White J. stated that a court has discretion whether to grant the reliefs sought on a judicial review application, and that that discretion had been exercised in a fair and reasonable way. He was entitled to have reached the view that the applicant had not satisfied the burden of proof. Accordingly, he held that there were no exceptional circumstances which would require the Court to revisit its judgment of the 9th October, 2015.
By ex tempore judgment delivered on the 3rd February, 2017, the High Court (White J.) refused the applicant's application for a certificate for leave to appeal pursuant to section 50A(7) of the Planning and Development Act 2000, as amended. Moreover, by a further ex tempore judgment delivered on the 6th April, 2017, the High Court (White J.) refused the applicant's application for the costs of i) the substantive proceedings; ii) the application to revisit the main judgment; and iii) the application for a certificate for leave to appeal. The High Court made no order as to costs.
The applicant now seeks leave from this Court to appeal the refusal of the substantive judicial review proceedings and also the substantive costs order.
The applicant requested an extension of time within which to apply for leave, as it filed the document one day outside the prescribed 28-day time...
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