Friends of the Irish Environment v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 14 October 2016 |
| Neutral Citation | [2016] IEHC 558 |
| Docket Number | [2014 No. 43 J.R.] |
| Court | High Court |
| Date | 14 October 2016 |
[2016] IEHC 558
THE HIGH COURT
JUDICIAL REVIEW
White Michael J.
[2014 No. 43 J.R.]
AND
AND
Environment & Planning – Revisiting the judgement – Failure to conduct a screening assessment – Exceptional circumstances – Habitats Directive 92/43/EC – Burden of proof
Facts: Following the grant of leave to the applicant to apply for the second judicial review application, the applicant now sought to revisit the original judgement against which the Court had dismissed the applicant's first application for judicial review. The applicant sought to revisit the judgement on the ground that there had been an error of fact in that judgement. The applicant contended that the first named respondent had failed to conduct the peat extraction associated with the project and had failed to conduct a screening assessment of the peat extraction that was likely to have a significant effect on a European site.
Mr. Justice White refused to alter the original judgement passed in the present case. The Court found that there were no exceptional circumstances for the Court to revisit the judgement. The Court found that the applicant could not point out any error of facts in the original judgement, rather it pointed to a specific legal argument requiring the first named respondent to carry out a screening assessment. The Court found that the first named respondent did carry out a preliminary screening test for the purpose of Habitat Directive 92/43/EC and the first named respondent accepted that the screening was conducted for the purposes of assessing the effect of the operation of the power plant and not the peat extraction on any European site. The Court held that the applicant failed to discharge the onus of proof resting on the applicant.
The Applicant has requested the court to revisit a judgment delivered on 9th October, 2015, when it dismissed it's application for judicial review.
That judicial review application had been heard with another, that of An Taisce, record number [2014 No. 38 J.R.] decided in favour of that Applicant.
The initial court hearing was over a period of five days in July 2015 and a written judgment was delivered on 9th October, 2015.
The Applicant had been granted leave to apply for judicial review on the 22nd January, 2014 on the following grounds.
1. An Order of certiorari by way of application for judicial review quashing the decision of the first named Respondent to grant, to the First Notice Party, planning permission for the continued use and operation of a previously permitted peat and biomass co-fired power plant at Clonbullogue, Co. Offaly under Bord Pleanala reference PL19.242226. Which said decision was purportedly made on the 19th November, 2013.
2. A declaration by way of application for judicial review that the effects of extracting the peat fuel source for the thermal power plant were not properly assessed for the purposes of the Habitats Directive 92/43/EC.
3. A declaration that the first and second named Respondents have failed to fulfil their obligations pursuant to Article 6 of the Habitats Directive to establish necessary conservation measures and to avoid deterioration of natural habitats and disturbance of species in Natura 2000 sites.
4. A declaration by way of application for judicial review that the first named Respondent is obliged to conduct an appropriate assessment pursuant to Article 6 of Habitats Directive in respect of the peat extraction works that will occur directly or indirectly as a result of the proposed development.
5. A declaration by way of application for judicial review that the first named Respondent is required to carry out an appropriate assessment pursuant to Article 6 of the Habitats Directive of the operation of the power plant in combination with the peat extraction works.
6. A declaration that the said development is a plan or project not directly connected with or necessary to the management of a number of Natura 2000 sites but likely to have a significant effect thereon, either individually or in combination with other plans or projects, and therefore should have been subject to appropriate assessment of its implications for the site in view of the site's conservation objectives.
7. A declaration that a screening assessment for an appropriate assessment ought to have been conducted subject to Section 177U of the Planning and Development Act 2000.
Initially, the Applicant sought to revisit the judgment on the basis there had been an error of fact in the judgment. This was refined when by letter of 6th November, 2015, the Applicant's solicitors wrote to the other parties setting out the grounds upon which the Applicant was seeking to have the court revisit the judgment.
In that letter the Applicant stated it had made a more fundamental argument that the first Respondent had failed to consider at all, the peat extraction associated with the project, and in particular failed to conduct a screening assessment of the peat extraction either as part of the project, or in combination with the project.
The letter of 6th November, 2015, to the solicitors for the first respondent went on to state:-
‘It is clear from the above that it is the Board that is under an obligation to consider whether or not the development is likely to have a significant effect on a European site. This inquiry must be undertaken initially by the Board. It is not a matter for the Applicant herein either in the planning process or in the within proceedings to establish what the outcome of such inquiry or screening assessment might be. That is a matter for the Board. The Applicant raised the issue in its submissions to the Board and the Board considered that it was not required to consider the effects of peat extraction as it was a separate and discreet project separately consented. Accordingly it did not consider such effects and did not conduct any screening assessment of such effects.’……. The court has declined all reliefs on the basis of a failure of the applicant to discharge a burden of proof that there were significant effects arising from the peat extraction on the downstream SACs. Having regard to the foregoing, it is the Applicant's position that there is no such burden. Moreover, the issue of any evidential burden did not arise during the submissions in the case and the applicant did not have the opportunity to address same.’
The appropriate starting point is the decision of the Supreme Court in In Re Greendale Developments [2000] 2 I.R. 514. It was Held by the Supreme Court (Hamilton C.J., Denham, Barrington, Lynch and Barron JJ.), in dismissing the application, 1, that the jurisdiction of the Supreme Court was not unfettered and, pursuant to Article 34.4.6 of the Constitution, a decision of the court on a matter raised before it, and in respect of which a final order was made, was final and conclusive.
The Attorney General v. Open Door Counselling Ltd. (No. 2) [1994] 2 I.R. 333 applied. Application of Woods [1970] I.R. 154 and Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 I.L.R.M. 29 distinguished. R. v. Bow Street Magistrate, Ex p. Pinochet (No. 2) [1999] 2 W.L.R. 272 considered.
That where a final order was made and perfected, it could only be interfered with (i) in special or unusual circumstances; (ii) where there had been an accidental slip in the judgment as drawn up; or (iii) where the court itself found that the judgment as drawn up did not correctly state what the court actually decided and intended.
Belville Holdings Ltd. v. Revenue Commissioners [1994] 1 I.L.R.M. 29 applied.
The test laid down by Hamilton C.J. had its origins in the Supreme Court decision of Bellville Holdings Limited v. Revenue Commissioners [1994] 1 ILRM 29:- Finlay CJ stated
‘There is, however, I am satisfied, a wider and more fundamental jurisdiction in a court to amend an order which it has previously made, even though that order is in the form of a final order and has been perfected.
We have not been referred to, nor have I been able to discover, any decision of this Court or of the Irish courts dealing with this question.
The position and principles appear, however, to be accurately stated in the judgment of Romer J in Ainsworth v. Wilding [1896] 1 Ch 673, where, at p. 677, he stated as follows:
So far as I am aware, the only cases in which the court can interfere after the passing and entering of the judgment are these:
(1) Where there has been an accidental slip in the judgment as drawn up, in which case the court has power to rectify it under O. 28, r. 11;
(2) When the court itself finds that the judgment as drawn up does not correctly state what the court actually decided and intended.
Having referred to the decision of the Court of Appeal in In re Swire 30 ChD 239, Romer J quoted from the judgments in that case as follows at p. 678:
Cotton LJ says: “It is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.”
Lindley LJ says: “If it is once made out that...
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Friends of the Irish Environment Ltd v an Bord Pleanála
...a screening assessment of this peat extraction. 11 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. Reve......