Friends of The Irish Environment Ltd v Minister for Communications and ors

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 18 October 2019
• Neutral Citation: [2019] IEHC 685
• Docket Number: 2019 No. 222 J.R.
• Date: 18 October 2019
• Court: High Court

[2019] IEHC 685

THE HIGH COURT

JUDICIAL REVIEW

Garrett Simons

2019 No. 222 J.R.

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT LIMITED

APPLICANT

AND

MINISTER FOR COMMUNICATIONS, CLIMATE ACTION AND ENVIRONMENT

MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Judicial review – Statutory instruments – Form of order – Parties invited to make submissions as to the precise form of the order to be made in the proceedings – Whether the order should be predicated on a finding that two statutory instruments were ultra vires s. 4(4A) of the Planning and Development Act 2000

Facts: The applicant, Friends of the Irish Environment Ltd, in judicial review proceedings, sought to challenge the validity of two statutory instruments, namely (i) the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019 (S.I. No. 4 of 2019), and (ii) the Planning and Development Act (Exempted Development) Regulations 2019 (S.I. No. 12 of 2019) (the Ministerial Regulations). The principal judgment was delivered on 20 September 2019: [2019] IEHC 646. The High Court concluded that the Ministerial Regulations were invalid as they were inconsistent with the requirements of the Environmental Impact Assessment Directive (Directive 2011/92/EU) and the Habitats Directive (Directive 92/43/EC), and the use of secondary legislation to introduce the legislative amendments required to give effect to the new licensing regime was ultra vires. The parties were invited to make submissions as to the precise form of the order. Those submissions were made at a short hearing on 10 October 2019. Whereas there was some measure of agreement between the parties, there was a significant dispute as to the jurisdictional basis upon which the Ministerial Regulations made pursuant to the Planning and Development Act 2000 (the PDA 2000) should be set aside. In particular, there was a dispute as to whether the order should be predicated on a finding that those regulations were ultra vires s. 4(4A) of the PDA 2000. The respondents, the Minister for Communications, Climate Action and Environment, the Minister for Housing, Planning and Local Government, Ireland and the Attorney General, made the objection that a challenge to the validity of the regulations on that basis had not been included as part of the statement of grounds.

Simons J proposed the following orders: (1) an order setting aside the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019 on the basis that same are ultra vires s. 3 of the European Communities Act 1972; (2) a declaration that the Planning and Development Act (Exempted Development)

Regulations 2019 are inconsistent with the Environmental Impact Assessment Directive and the Habitats Directive; (3) an order setting aside the Planning and Development Act (Exempted Development) Regulations 2019 on the basis that same are inconsistent with the Environmental Impact Assessment Directive and the Habitats Directive; and (4) an order directing that the respondents do pay the applicant’s costs of and associated with the proceedings, to include all reserved costs. Simons J held that the costs were also to include the costs of two sets of written legal submissions, i.e. on the application for an interlocutory injunction and on the substantive application for judicial review. He held that the costs were allowed on the basis of two counsel, i.e. senior and junior counsel. He held that costs were to be taxed in default of agreement.

Orders proposed.

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 October 2019.

INTRODUCTION

1 This supplementary judgment addresses the precise form of order to be made in these proceedings. The principal judgment was delivered on 20 September 2019, Friends of the Irish Environment Ltd v. Minister for Communications, Climate Action and the Environment [2019] IEHC 646.

2 The judicial review proceedings had sought to challenge the validity of two statutory instruments, namely (i) the EU (Environmental Impact Assessment) (Peat Extraction) Regulations 2019 ( S.I. No. 4 of 2019), and (ii) the Planning and Development Act (Exempted Development) Regulations 2019 ( S.I. No. 12 of 2019) ( “the Ministerial Regulations”).

3 The conclusions were summarised at paragraph [206] of the principal judgment as follows.

“206. For the reasons set out herein, I have concluded that the Ministerial Regulations are invalid. This conclusion is premised on two principal findings as follows. First, the Ministerial Regulations are inconsistent with the requirements of the EIA Directive and the Habitats Directive. Secondly, even if—contrary to the first finding—the Ministerial Regulations could be said to be consistent with the EIA Directive and the Habitats Directive, the use of secondary legislation to introduce the legislative amendments required to give effect to the new licensing regime is ultra vires. This is because if the EIA Directive and Habitats Directive do, indeed, afford the very broad discretion to Member States contended for on the part of the State Respondents, then the policy choices should have been made by the Oireachtas through the enactment of primary legislation.”

4 Subsequent to delivery of the principal judgment, the parties were invited to make submissions as to the precise form of the order. These submissions were made at a short hearing on 10 October 2019.

5 Whereas there was some measure of agreement between the parties, there is a significant dispute as to the jurisdictional basis upon which the Ministerial Regulations made pursuant to the Planning and Development Act 2000 ( “the PDA 2000”) should be set aside. In particular, there is a dispute as to whether the order should be predicated on a finding that those regulations were ultra vires Section 4(4A) of the PDA 2000. The State respondents make the objection that a challenge to the validity of the regulations on this basis had not been included as part of the Statement of Grounds.

6 I propose to address the less controversial aspects of the order before returning to the central dispute between the parties.

EU (ENVIRONMENTAL IMPACT ASSESSMENT) (PEAT EXTRACTION) REGULATIONS 2019

7 The first set of regulations had been made pursuant to Section 3 of the European Communities Act 1972 (as amended). In circumstances where this court has found that these regulations are inconsistent with the requirements of the EIA Directive and the Habitats Directive, it follows that the regulations were ultra vires the European Communities Act 1972 for the reasons set out at paragraph [157] of the principal judgment.

“157. […] For the reasons set out in...