Friends of the Irish Environment CLG v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 23 April 2021 |
| Neutral Citation | [2021] IEHC 234 |
| Date | 23 April 2021 |
| Court | High Court |
| Docket Number | 2020 No.'s 485 to 491 J.R. 2020 No.'s 539 & 540 J.R. |
[2021] IEHC 234
2020 No.'s 485 to 491 J.R.
2020 No. 418 J.R.
2020 No.'s 539 & 540 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Form of order – Directive 2011/92/EU – Applicants seeking judicial review – Whether the applicants were entitled to an order of certiorari
Facts: Eleven sets of judicial review proceedings were assigned to the High Court (Simons J) for case management. In each instance, the applicant for judicial review sought to challenge a stage-one decision granting leave to apply for development consent retrospectively. The proceedings were all instituted in the interregnum between the delivery of the Supreme Court’s judgment in An Taisce v An Bord Pleanála [2020] IESC 39 on 1 July 2020, and the enactment of the revised planning legislation on 19 December 2020. Simons J granted leave to apply for judicial review in all eleven proceedings on 10 November 2020. Thereafter, he acceded to an application on the part of the State respondents to defer making directions on the filing of opposition papers until January 2021. This was done in circumstances where the enactment of revised legislation was then imminent. He took the view that the enactment of new legislation had the potential to obviate the necessity for a full hearing. All but two of the developers confirmed that they did not intend to avail of the leave to apply for development consent. Those developers would not be relying on the stage-one decisions impugned in the proceedings. The parties were unable to reach agreement as to what the appropriate form of order in the proceedings should be. The disagreement between the parties turned on a nuance between an order setting aside the impugned decisions, and one declaring, in essence, that the impugned decisions have no legal effect.
Held by Simons J that the High Court as a national court is required to give effect to the Environmental Impact Assessment Directive (Directive 2011/92/EU); that is clearly established in the case law of the Court of Justice, commencing with Case C-201/01, Wells. It seemed to Simons J that the only way that this could properly be done in this case was to make an order of certiorari. He held that he would make an order of certiorari in all the proceedings before him, save in relation to the two cases where it was not yet apparent whether or not there would be an application for development consent. Simons J proposed adjourning those two cases generally, with liberty to re-enter. He held that it was open to any party to re-enter those two cases before him. He retained seisin of same, and an appropriate order could be made in relation to those cases. If necessary, he would give leave to amend the pleadings to include a challenge to the new legislation.
Simons J understood that the parties had reached an accommodation whereby the State respondents had agreed to pay the applicants’ costs. He held that if any change to this approach was caused by this ex tempore judgment, then the parties had liberty to apply and he would rule on costs if required. Otherwise, if the original agreement on costs remained good, he would simply make an order in favour of the applicants in each of the cases against the State respondents, with the usual direction for adjudication under Part 10 of the Legal Services Regulation Act 2015.
Orders of certiorari granted.
JUDGMENT of Mr. Justice Garrett Simons delivered ex tempore on 23 April 2021
This is my ruling in relation to eleven applications for judicial review. The only issue outstanding in these proceedings concerns the form of relief to be granted. The disagreement between the parties turns on a nuance between (i) an order setting aside the impugned decisions, and (ii) one declaring, in essence, that the impugned decisions have no legal effect. The subtlety and sophistication of this distinction is one which would be lost on all save the most pedantic of administrative lawyers.
The circumstances giving rise to the dispute can be shortly stated. The impugned decisions are ones which on their face purport to allow an application to be made retrospectively for development consent in respect of projects, all of which are subject to the Environmental Impact Assessment Directive ( Directive 2011/92/EU) (“ EIA Directive”). The impugned decisions find, in essence, that the respective developers had demonstrated “exceptional circumstances” (as defined under the planning legislation) which justified their making a planning application ex post facto to regularise the planning status of the individual project in each instance.
The scheme of the planning legislation, at the relevant time, had been that the question of the entitlement, if any, of a developer to apply for development consent retrospectively had to be dealt with as a threshold issue, in advance of the making of an application for development consent (assuming, of course, that leave to apply was granted). The decisions which are impugned in these proceedings might be described as “stage-one” decisions, i.e. they all address the entitlement of the respective developers to make applications for development consent ex post facto.
The scheme of the planning legislation in force at the time the decisions impugned in these proceedings were made has since been found by the Supreme Court to be inconsistent with the requirements of the EIA Directive in An Taisce v. An Bord Pleanála [2020] IESC 39. This judgment was delivered on 1 July 2020.
It should be explained that the Court of Justice has consistently held that whereas a Member State has discretion to allow the regularisation of development projects carried out in breach of the EIA Directive, such regularisation would have to be subject to the condition that it does not offer the persons concerned the opportunity to circumvent the rules of EU law or to dispense with their application, and that it should remain the exception. (See, for example, Case C-196/16, Comune di Corridonia). This finds expression under the domestic planning legislation in the concept of “exceptional circumstances” (as described under section 177D of the Planning and Development Act 2000).
The Supreme Court held in An Taisce v. An Bord Pleanála that the public participation rights under the EIA Directive extend to a right to participate prior to the making of a final and conclusive determination on the question of whether a developer should be allowed to regularise the planning status of their project. See paragraphs 128 and 132 of the judgment as follows.
“It must be remembered that the underlying purpose of public participation in environmental matters is to facilitate good, fully informed decision making, it being acknowledged that the public as a whole is one of the greatest repositories of environmental information. The EIA Directive recognises that without the opportunity to participate, it will be more difficult for the competent authority to reach the kind of decision as is envisaged. Good decision-making can take place where the decision-maker has the relevant information before it. As the appellants have demonstrated, the matters which fall to be considered at the leave stage are matters in respect of which the public may have highly relevant information. It seems to me that, as a result of the restrictions imposed, Part XA of [the Planning and Development Act 2000] fails to provide for effective participation at a stage when all solutions remain open: quite clearly, the option of refusing to grant leave is off the table by the time the public have any opportunity to make submissions which may be of relevance to that decision.
[…]
Given that the granting of leave cannot be revisited at a later stage, it appears to me that by the time public participation is provided for under [the Planning and Development Act 2000], all options, including refusing the leave, or determining the scope of the leave or of the remedial statements to be provided, are no longer open to the Board. This, in my view, is inconsistent with the requirement that the public be given early and effective opportunities to participation at a time when it is capable of influencing all issues. It seems to me, therefore, that in failing to provide in any meaningful way for public participation on a crucial issue, such as ‘exceptionality and circumvention’, at such time, the State has failed to properly transpose the EIA Directive in this respect.”
The judgment in An Taisce v. An Bord Pleanála is careful to explain that a two-stage process is not necessarily inconsistent with the EIA Directive, and, indeed, might have merit in terms of administrative efficiency. Rather, the fatal flaw in the then planning legislation had been that “once leave has been granted, the decision to grant leave cannot be revisited: that decision is ring-fenced and the option not to grant leave is off the table” (paragraph 131 of the judgment).
The planning legislation has since been amended, in an attempt to address the deficiencies identified in the Supreme Court judgment. The revised legislation was enacted on 19 December 2020.
Eleven sets of judicial review proceedings were assigned to me for case management. In each instance, the applicant for judicial review seeks to challenge a stage-one decision granting leave to apply for development consent retrospectively. Crucially, the proceedings were all instituted in the interregnum between the delivery of the Supreme Court's judgment on 1 July 2020, and the enactment of the revised legislation on 19 December 2020. Had the judicial review proceedings been heard and determined prior to the enactment of the revised...
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