Friends of the Irish Environment Ltd v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 26 July 2019
• Neutral Citation: [2019] IESC 53
• Court: Supreme Court
• Docket Number: Appeal Number: S:AP:IE:2019:00025

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACTS 2000 TO 2011 AND IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT 2000

BETWEEN/

FRIENDS OF THE IRISH ENVIRONMENT LTD.

APPLICANT/APPELLANT

- AND -

AN BORD PLEANÁLA

RESPONDENT

[2019] IESC 53

Clarke C.J.

O'Malley J.

Irvine J.

Appeal Number: S:AP:IE:2019:00025

High Court Record Number: 2013/486 JR

THE SUPREME COURT

Judicial review – Scope of appeal – EU law – Appellant seeking to appeal against High Court decision – Whether the appellant was entitled to rely upon certain arguments advanced

Facts: The Supreme Court, on the 18th April, 2019, granted the appellant, Friends of the Irish Environment Ltd, leave to appeal against the judgment and order of the High Court (Meenan J) of the 16th January, 2019. For reasons set out in his judgment delivered on the 9th March, 2018, the High Court judge refused the appellant’s application for judicial review of a determination of the respondent, An Bord Pleanála, made on the 3rd May, 2013. This judgment did not deal with the substantive appeal against the decision of the High Court judge but rather the question of the scope of the appeal to the Supreme Court, an issue that became apparent following the delivery of the appellant’s submissions. Having regard to the respondent’s challenge to the entitlement of the appellant to rely upon certain arguments advanced in those submissions, the Supreme Court, in the course of case management, determined that an oral hearing was warranted in order to identify the scope of the appeal. That hearing took place on the 10th July 2019.

Held by Irvine J that the decision in Callaghan v An Bord Pleanála [2017] IESC 60 provided significant support for the approach proposed by the appellant. Irvine J held that, given that the proper construction of s. 5 and/or s. 250 of the Planning and Development Act 2000 properly fell within the scope of the appeal, the deployment of Article 2(1) Environmental Impact Assessment Directive (85/337/EEC) on the interpretive question could therefore properly be regarded as a refinement of the argument which the appellant sought to advance in favour of what he contended were the obligations of the Board, and should thus be permitted in accordance with the jurisprudence discussed. Irvine J held that the appellant should not be excluded from making an argument as to how those provisions are to be construed in light of Article 2(1) of the Directive even if this results in the applicant being afforded some considerable latitude in light of its failure to pursue such an argument in the course of the High Court proceedings. In so deciding, Irvine J was mindful of the supremacy of European Union law and the risk that if the Court was to take an overly restrictive approach to the scope of the appeal, such a restriction could interfere with its obligation to ensure that the relevant statutory provisions are properly construed against the backdrop of EU law. Irvine J held that the Supreme Court, as the final appellate court, could not allow itself to be placed in a position where it might incorrectly construe a statute by reason only of the fact that in the court below the applicant had failed to argue the effect of EU law on that construction.

Irvine J held that the appellant was not being afforded the liberty of making any stand-alone argument or point based upon European law; EU law was only to be deployed as part of an argument as to the proper interpretation of the 2000 Act insofar as such an argument might be categorised as a permissible refinement of the argument made in the court below. Consequent on this judgment, Irvine J proposed that the parties be afforded an opportunity to amend their submissions.

Judgment approved.

JUDGMENT of Ms. Justice Irvine delivered on the 26th day of July 2019

1 On the 18th April, 2019, this Court granted Friends of the Irish Environment Ltd leave to appeal against the judgment and order of the High Court (Meenan J.) of the 16th January, 2019. For reasons set out in his judgment delivered on the 9th March, 2018 and to which I will later refer, the High Court judge refused the appellant's application for judicial review of a determination of the respondent (“the Board”) made on the 3rd May, 2013.

2 This judgment does not deal with the substantive appeal against the decision of the High Court judge but rather the question of the scope of the appeal to this Court, an issue that became apparent following the delivery of the appellant's submissions. Having regard to the respondent's challenge to the entitlement of the appellant to rely upon certain arguments advanced in those submissions, the Court, in the course of case management, determined that an oral hearing was warranted in order to identify the scope of the appeal. That hearing took place on the 10th July 2019.

Principles

3 Before moving to consider the facts and circumstances relevant to the scope of the appeal it is first appropriate to identify the principles to be applied by the court when considering the permissible scope of an appeal to this court.

4 In its decisions in McEnery v. Commissioner of An Garda Síochána [2016] IESC 26, and Grace & Sweetman v. An Bord Pleanála & Others [2017] IESC 10, this Court stated that, subject to very limited exceptions, the only questions which may properly be addressed by this Court on an appeal, having regard to the 33rd Amendment to the Constitution, are those which can fairly be said to come within the ambit of the grounds upon which leave to appeal was granted.

5 It is nonetheless accepted that the Court should not adopt an overly technical approach when asked to rule out as impermissible a particular submission or issue on the basis that it was not raised in the court below. As Clarke J. stated in Callaghan v. An Bord Pleanála, Ireland [2017] IESC 60:-

“An application for leave is necessarily made in a relatively summary form and the Court does not have access to all of the materials which were before the Court below. Because of this the precise boundaries of the arguments which may be properly addressed to the Court should not be regarded as written in stone by reference to the exact language used in the determination of this Court granting leave. Rather, by analogy with the question of whether an issue sought to be relied on was raised in a court or courts below (which issue was addressed in SPV Osus), the Court should consider whether the arguments sought to be put forward can fairly be said to arise within the terms on which leave has been given recognising that arguments will necessarily be refined or adjusted to some extent as the appellate process progresses.”

6 The entitlement of the appellate court to entertain a point not advanced at first instance received further consideration by O’Donnell J. in his decision Lough Swilly Shellfish Growers Co-operative Society Ltd v. Bradley [2013] IESC 16. In his judgment he considered a broad spectrum of cases in which such an application might be entertained. Included amongst those in which a successful application might be anticipated would be an appeal in which the proposed new argument could be said to relate to a point advanced in the court below or where it might be considered a refinement of an argument earlier made. His judgement did not, however, as was observed by counsel for the Board, extend to a consideration of the circumstances in which a new point might be raised in judicial review proceedings where the proposed point was outside of the grounds upon which the applicant had been granted leave to apply for judicial review. Neither does it address the effect of a statutory restriction such as that found in s. 50A(5) of the Planning and Development Act 2000 Act (“the 2000 Act”) on such an application.

Background

7 The impugned determination of the Board relates to a referral sent by the appellant to the Board pursuant to s. 5 of the 2000 Act, seeking a declaration as to whether certain peat extraction works on three different sites in Co Westmeath were “exempted development” within the meaning of the Act. The referral, made on the 21st August, 2010, was initially addressed to Westmeath County Council but was subsequently referred on to the Board. It was the appellant's contention that the works were not exempted development and required an environmental impact assessment pursuant to national and European law, in particular the Environmental Impact Assessment Directive (85/337/EEC) and the Habitats Directive (92/43/EEC).

8 By its determination of the 3rd May, 2013, the Board dismissed that referral pursuant to s. 138(1)(b)(i) of the 2000 Act, stating that the question referred was “not sufficiently particular or detailed”, having regard to the different parcels of land identified and the uncertainty regarding their ownership. Relevant also in the context of the proceedings is the fact that s. 5(1) requires a person making a referral to provide “any information necessary to enable [the planning authority] to make its decision on the matter” and the Board has the power to obtain further information by reason of the provisions of s. 6. Furthermore, under s. 250 the Board is given a range of powers in relation to how it may serve a notice or order required...