Friends of the Irish Environment Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 07 December 2018
• Neutral Citation: [2018] IEHC 807
• Court: High Court
• Docket Number: [2013 No. 486 J.R.]
• Date: 07 December 2018

[2018] IEHC 807

THE HIGH COURT

JUDICIAL REVIEW

Meenan J.

[2013 No. 486 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

P. PLUNKETT LIMITED, WESTMEATH COUNTY COUNCIL, CAVAN PEAT LIMITED, HART PEAT LIMITED, NANCY HENNESSY, EAMONN CREGGY, MICHAEL BRADY, JOHN PATRICK MURTAGH, JOHN REILLY, PÁDRAIG HILL, CLOVER PEAT

NAMED NOTICE PARTIES

Judicial review – Points of law of exceptional public importance – Development – Applicant seeking to have points of law certified for appeal – To what extent must the respondent take into account the requirements of Article 2(1) of the EIA Directive in exercising its discretion under s. 5 of the Planning and Development Act 2000 and/or its powers under s. 250(1) (d) and/or s. 250(7)?

Facts: The High Court, on 9 March 2018, delivered judgment on an application for certiorari quashing the determination of the respondent, An Bord Pleanála, made on 3 May 2013. The applicant, Friends of the Irish Environment Ltd, had sought a determination from the respondent as to whether certain peat extraction works in the townlands of Lickney/Newcastle, Doon, and Carlanstown, County Westmeath were or were not exempted development. The applicant applied to the High Court seeking to have the following points of law certified for appeal under s. 50A(7) of the 2007 Act: (i) To what extent, if any, must An Bord Pleanála take into account the requirements of Article 2(1) of the EIA Directive in exercising its discretion under s. 5 of the Planning and Development Act 2000 and/or its powers under s. 250(1) (d) and/or s. 250(7)? (ii) By what criteria are matters of “planning judgment” to be identified? In particular do matters of fair procedures come within that concept? (iii) Where the Board decides not to exercise its powers under s. 250(1) (d) and/or s. 250(7) is it obliged to give any reason for not doing so?

Held by Meenan J that: (i) the point of law referred to in this question did not arise in the application before him and thus did not arise out of the decision he gave; (ii) this point did not arise out of his judgment; (iii) the applicant did not obtain leave to argue this point.

Meenan J held that the decision of the Court on the application for judicial review had not involved any point of law of exceptional public importance.

Application refused.

JUDGMENT of Mr. Justice Meenan delivered on the 7th day of December, 2018.

Introduction

1 On 9 March 2018 the Court delivered judgment on an application for certiorari quashing the determination of the respondent made on 3 May 2013 ( Friends of the Irish Environment v An Bord Pleanála [2017] IEHC 136). The applicant had sought a determination from the respondent as to whether certain peat extraction works in the townlands of Lickney/Newcastle, Doon, and Carlanstown, County Westmeath were or were not exempted development.

2 In the course of my judgment I set out the relevant provisions of the Planning and Development Act 2000 (as amended) (the Act of 2000) and reviewed correspondence that passed between the various parties involved.

3 Essentially, I found that as the determination of the respondent would affect the property rights of the owners and occupiers of the lands that such persons were required to be on notice of the application. At para. 30 I stated: -

‘30. In applying the principles set out in the authorities referred to, it is clear to me that I cannot conclude that the decision of the respondent to dismiss the referral was either irrational or unreasonable. Given the absence of information as to who owned and/or occupied the lands in question and the basic legal requirement that such persons be on notice of the referral, I cannot reach any other conclusion.’

4 At the hearing of the action, the applicant submitted that the respondent ought to have utilised the provisions of s. 250(1)(d) of the Act of 2000 whereby notice could be given to the relevant person(s) by affixing it in a conspicuous place on or near the land or the premises. Further, the respondent could dispense with the need to give notice where there are reasonable grounds for doing so and where such ‘will not cause injury or wrong’ as is provided for in s. 250(7).

5 It was submitted by the respondent that had the necessary information been provided by the applicant the respondent could have made a determination and that this still remains the case. Indeed, it was pointed out in other cases that travelled in tandem with the instant case where the respondent had the necessary information it did make a determination (see Bulrush Horticulture Ltd -v- An Bord...