Friends of the Irish Environment Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 15 February 2019
• Neutral Citation: [2019] IEHC 80
• Court: High Court
• Docket Number: 2018 No. 734 J.R.
• Date: 15 February 2019

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

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

SHANNON LNG LIMITED

NOTICE PARTY

[2019] IEHC 80

Simons J.

2018 No. 734 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Preliminary ruling – Planning permission – Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora – High Court seeking to refer a number of questions to the CJEU pursuant to Article 267 of the TFEU for preliminary ruling – Whether a decision to extend the duration of a planning permission engaged the Habitats Directive

Facts: The principal issue in these proceedings was whether a decision to extend the duration of a planning permission engaged Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the Habitats Directive). The Directive obliges a competent authority to fulfil certain procedural requirements before agreeing to a project which is likely to have a significant effect on a European conservation site. The dispute between the parties centred on whether these procedural requirements apply only on the occasion of the original grant of a planning permission, or, alternatively, whether they also apply to a subsequent decision which extends the duration of the planning permission but involves no physical change to the project as permitted. The planning permission the subject of these proceedings was to have been implemented within ten years, but the respondent, An Bord Pleanála, had purported to extend this period by an additional five years. An Bord Pleanála and the Developer maintained the position that a mere temporal change, i.e. a change to the period within which the development can be carried out and completed, does not require screening or assessment under the Habitats Directive. On 29 November 2018, Advocate General Kokott delivered an opinion in proceedings pending before the CJEU saying that the extension of duration of a development consent is, in principle, subject to the Habitats Directive (Case C 411/17 Inter Environnement Wallonie). The parties accepted that the outcome of Case C 411/17 could have a significant bearing on these judicial review proceedings.

Held by the High Court (Simons J) that, given the existence of the Advocate General’s opinion, it could not be said that the question of the applicability of the Habitats Directive to an extension of the duration of a development consent is acte clair. In the circumstances, Simons J decided that it was necessary for the court to refer a number of questions to the CJEU pursuant to Article 267 of the TFEU for preliminary ruling.

Judgment approved.

JUDGMENT of Mr Justice Garrett Simons delivered on 15 February 2019

Abbreviations

CJEU Court of Justice of the European Union

PDA 2000 Planning and Development Act 2000

EIA Directive Environmental Impact Assessment Directive

SID Strategic infrastructure development

OVERVIEW

1 The principal issue in these proceedings is whether a decision to extend the duration of a planning permission engages the Habitats Directive. The requirements of the Habitats Directive will be discussed in detail presently, but for introductory purposes it is sufficient to note that the Directive obliges a competent authority to fulfil certain procedural requirements before agreeing to a project which is likely to have a significant effect on a European conservation site.

2 The dispute between the parties in the present case centres on whether these procedural requirements apply only on the occasion of the original grant of a planning permission, or, alternatively, whether they also apply to a subsequent decision which extends the duration of the planning permission but involves no physical change to the project as permitted. The planning permission the subject of these proceedings was to have been implemented within ten years, but An Bord Pleanála has purported to extend this period by an additional five years. It is this decision to extend the duration of the planning permission which is impugned in these proceedings.

3 An Bord Pleanála and the Developer maintain the position that a mere temporal change, i.e. a change to the period within which the development can be carried out and completed, does not require screening or assessment under the Habitats Directive.

4 (As it happens, An Bord Pleanála says that it did, in fact, carry out an ad hoc screening exercise notwithstanding that it contends that there was no legal requirement to do so. For the purposes of this screening exercise, what was assessed was the impact of the change in the time period within which the development could be carried out and completed; the board did not assess the impacts of the entire project).

5 Legal issues similar to those arising in the within proceedings were recently considered by the High Court (Barrett J.) in Merriman v. Fingal County Council [2017] IEHC 695. In a reserved judgment delivered on 21 November 2017, the High Court ruled that the Habitats Directive did not apply to a decision to grant an extension of the duration of a planning permission pursuant to the provisions of section 42 of the Planning and Development Act 2000 (as amended). The High Court subsequently refused leave to appeal to the Court of Appeal ( Merriman v. Fingal County Council [2018] IEHC 65); and, thereafter, the Supreme Court refused leave to appeal to that court by Determination dated 6 July 2018 ( Merriman v. Fingal County Council [2018] IESCDET 102).

6 There has been a significant legal development since the disposal of the litigation in Merriman v. Fingal County Council. Specifically, Advocate General Kokott has delivered an opinion in proceedings pending before the CJEU saying that the extension of duration of a development consent is, in principle, subject to the Habitats Directive. See Case C 411/17 Inter Environnement Wallonie.

7 The opinion of the Advocate General was delivered on 29 November 2018. A date has not yet been fixed for the delivery of judgment in that case. All parties before me accepted that the outcome of Case C 411/17 could have a significant bearing on these judicial review proceedings.

8 Given the existence of the Advocate General's opinion, it cannot be said that the question of the applicability of the Habitats Directive to an extension of the duration of a development consent is acte clair. In the circumstances, I have decided that it is necessary for this court to refer a number of questions to the CJEU pursuant to Article 267 of the TFEU for preliminary ruling. I set out these questions in an annex to this judgment.

9 The parties herein had suggested that I might consider deferring judgment in these proceedings—and deferring any decision on whether to make an Article 267 reference—until after the CJEU delivers its judgment in Case C–411/17. Having carefully considered this submission, I have concluded that—irrespective of the outcome of Case C–411/17—it will be necessary for me to make a reference to the CJEU in any event. I set out my reasons for this decision in full at paragraph 73 below. For introductory purposes, my rationale might be summarised as follows. The facts and legal issues arising in Case C 411/17 are sufficiently different from those arising in the proceedings before me that the judgment in that case is very unlikely to resolve all of the issues which I will have to decide. In particular, there are features peculiar to the Irish planning legislation which may well influence the approach of the CJEU. First, Irish planning legislation imposes a time-limit on the period during which construction works can be carried out, but does not usually impose any time-limit on the subsequent operation of the project. Secondly, the legislative regime under which the planning permission the subject of these proceedings was originally granted did not properly implement the Habitats Directive. See Case C 418/04 Commission v. Ireland.

10 My approach is also influenced by the fact that these proceedings are subject to the imperative under section 50A(10) of the PDA 2000 to act as expeditiously as possible consistent with the administration of justice.

11 I have also given careful consideration to whether—applying the principle of judicial self restraint—it might have been possible to dispose of these judicial review proceedings by reference to national law alone, and thus to avoid the necessity of requesting a preliminary ruling under Article 267. One of the grounds advanced by the Applicant might, at first blush, appear to raise an issue which is exclusively a matter of national law. More specifically, the Applicant contends that an extension of duration cannot be granted in respect of a planning permission which has already expired. As discussed in more detail presently, section 40(1) of the PDA 2000 provides that a planning permission ‘ceases to have effect’ after the expiration of the appropriate period. On the facts of the present case, the ten year period specified under the planning permission had already expired prior to the date of An Bord Pleanála's decision. The Applicant contends that a planning permission which has ceased to have effect cannot be revived by a subsequent decision to extend its duration.

12 If I had been in a position to decide what might be described as the ‘ceases to have effect’ argument in favour of the Applicant as a matter of national law, then the decision to grant an extension of duration could have been set aside on that narrow ground alone. It might not have been necessary therefore to embark upon a consideration of the issues arising under the Habitats Directive. However, for the reasons set out in more detail at paragraph 140 below, I think that the ‘ceases to have effect’ argument cannot be dealt with in...