Friends of the Irish Environment Ltd v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 23 April 2020
• Neutral Citation: [2020] IESC 14
• Docket Number: Record No. 2019/25
• Court: Supreme Court
• Date: 23 April 2020

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

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT LIMITED

APPELLANT

AND

AN BORD PLEANÁLA

RESPONDENT

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

AND

CLOVER PEAT

NOTICE PARTIES

[2020] IESC 14

Clarke C.J.

O'Donnell J.

Dunne J.

O'Malley J.

Irvine J.

Record No. 2019/25

THE SUPREME COURT

Exempted development – Planning and Development Act 2000 – Curial deference – Appellant seeking an order of certiorari quashing the respondent’s determination – Whether Article 2(1) of the Environmental Impact Assessment Directive results in an interpretation or application of the provisions of s. 250 of the Planning and Development Act 2000 which would obviate the necessity to give notice to those who might be affected by a referral under s. 5 of the Act

Facts: The appellant, Friends of the Irish Environment Ltd (FIE), by letter dated 21st August, 2010 referred certain peat extraction works in the townlands of Lickny/Newcastle, Doon, and Carlanstown, County Westmeath, under s. 5 of the Planning and Development Act 2000 to the appropriate planning authority (Westmeath County Council). The purpose of the referral was to seek a determination as to whether such peat extraction activities were or were not indeed “exempted development”. Westmeath County Council considered the referral and in turn referred the matter to the respondent, An Bord Pleanála (the Board), on 24th November, 2010. The respondent issued its decision on 3rd May, 2013, dismissing the referral. FIE thereafter sought an order of certiorari quashing the determination made by the Board. On 9th March, 2018, the High Court (Meenan J) held that the decision of the respondent to dismiss the referral was neither irrational nor unreasonable. FIE applied for leave to appeal directly to the Supreme Court. Irvine J, in a judgment delivered on 26th July, 2019, refined the scope of the appeal to the questions of curial deference and the proper interpretation of s. 5 of the 2000 Act and the other provisions applicable thereto in light of the State’s obligations under Article 2(1) of the Environmental Impact Assessment (EIA) Directive.

Held by Dunne J that, in circumstances where she had concluded that the issue simply did not arise on the facts of this case, it was not appropriate to embark on a full consideration of the extent and scope of the doctrine of curial deference. She noted that there was no dispute between the parties as to the fact that Article 2(1) has a bearing on s. 5 of the 2000 Act. However, it seemed to her that Article 2(1) of the EIA Directive does not result in an interpretation or application of the provisions of s. 250 of the 2000 Act which would obviate the necessity to give notice to those who might be affected by a referral under s. 5 of the Act.

Dunne J held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Ms. Justice Dunne delivered on the 23rd day of April 2020

Background

1 This is a leapfrog appeal from the High Court judgment delivered by Meenan J. on 9th March, 2018. The pertinent facts (as summarised by Meenan J. in his judgment) are that the appellant herein (who is a limited company with objectives including the protection of the Irish environment) (hereinafter referred to as “FIE”) became concerned about peat extraction in Ireland. FIE maintains that under both domestic legislation and European Union law, certain peat extraction works do not constitute “exempted developments” and thus require planning permission. FIE also maintains that certain peat extraction works require an Environmental Impact Assessment (hereinafter “EIA”) and an Appropriate Assessment (hereinafter “AA”), pursuant to the legislation.

2 FIE, by letter dated 21st August, 2010 referred certain peat extraction works in the townlands of Lickny/Newcastle, Doon, and Carlanstown, County Westmeath, under s. 5 of the Planning and Development Act 2000 (hereinafter “the Act of 2000”) to the appropriate planning authority (in this case Westmeath County Council). The purpose of the referral was to seek a determination as to whether such peat extraction activities were or were not indeed “exempted development”.

3 Westmeath County Council considered the referral and in turn referred the matter to An Bord Pleanála (the respondent herein, hereinafter referred to as “the Board”) on 24th November, 2010. The Board sought additional information from Westmeath County Council concerning the “name and address of the owner of the land in question and the name and address of the occupier of the said land, if different”. Westmeath County Council then provided some thirteen Land Registry folios which indicated that some nine parties were involved in the ownership of the lands at issue. An examination of the maps attached to the Land Registry folios showed that the lands contained numerous subdivisions. The Board then wrote to the nine individuals referred to in the various Land Registry folios but the responses did not advance to any extent the Board's knowledge of the relevant owners/occupiers. Indeed in some cases there was no response.

4 It appears that in the course of this process, the Board kept FIE informed of its efforts to identify the relevant owners/occupiers but this did not assist any further in adding to the Board's knowledge of the identity of the relevant owners/occupiers.

5 Following investigations and the preparation of an inspector's report, the respondent issued its decision on 3rd May, 2013, dismissing the referral and (as quoted by Meenan J. at para 23) saying that:

“… Having regard to the different parcels of land identified in this referral, which appear to be in multiple ownership, in varying size of individual holdings with numerous parties involved and in the absence of certainty in regard to ownership of the land or the individual circumstances of the plots (not necessary adjoining), it is considered that the question is (sic) referred is not sufficiently particular or detailed enough to enable the Board to carry out its obligations under s. 129 of the Planning and Development Act, 2000, (as amended). Furthermore, the diversity of circumstances involved militated against a thorough evaluation of the referral question as posed. In light of the forgoing, the Board decided to dismiss this appeal …”

6 FIE thereafter sought an order of certiorari quashing the determination made by the Board. In considering the issues raised by both parties, at paras 28 to 30 of the High Court judgment Meenan J. said:

“28. What is in issue in these proceedings is the determination made by the respondent based on the information it had. The respondent submitted that it was best placed to assess whether it had the information necessary to make a determination and also to comply with its legal obligation to follow fair procedures, in particular, to hear from those who may be affected by the determination.

…

29. The problem facing the respondent in reaching its determination was that, regardless of the fact that the lands could be identified, the relevant owners/occupiers could not to the extent that it would have been unsafe for the respondent to make a determination concerning the property rights of those involved. In previous paragraphs, I have set out the steps taken by the respondent to identify such persons.

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.”

7 At para 37, Meenan J. dealt with the FIE's submission that the Board failed in its statutory duty under s. 138(2) which requires the respondent to “state the main reasons and considerations on which the decision is based” by saying:

“37. It is well established that a body, such as the respondent, in giving reasons is not ‘bound to provide a discursive judgment as a result of its deliberations’. (see the decision of Murphy J. in O'Donoghue v An Bord Pleanála [1991] ILRM 750).”

At para 38, Meenan J. concluded:

“The basis on which the respondent reached its determination is clear to me. I have set out at para. 23 above the ‘reasons and considerations’ for the determination. This refers to, succinctly, problems in identification of the individuals who owned and/or occupied the lands involved. Furthermore, as stated above, the applicant was fully aware of the problems which the respondent encountered in seeking to identify the persons whom it was obliged to put on notice of the referral. Therefore, I cannot conclude that there was any failure on the part of the respondent, in the words of the s. 138(2) of the Act of 2000, to state ‘the main reasons and considerations on which the decision is based’.

8 In a judgment delivered on 7th December, 2018 Meenan J. considered an application to certify for appeal three questions of law. The questions were set out at para 6 of the judgment:

“(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 PDA 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?”

9 In declining to certify the questions, Meenan J. said at para 13 of his judgment...