Hands Across the Corrib Ltd v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 09 April 2009
• Neutral Citation: [2009] IEHC 600
• Court: High Court
• Date: 09 April 2009

[2009] IEHC 600

THE HIGH COURT

[45 JR./2009]

Hands Across the Corrib Ltd v Bord Pleanála

HANDS ACROSS THE CORRIB LIMITED

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

GALWAY COUNTY COUNCIL

NOTICE PARTY

SWEETMAN v BORD PLEANALA & ORS UNREP BIRMINGHAM 9.10.2009 2009 IEHC 599

EEC DIR 92/43

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997

EEC DIR 85/337 ART 10A

EEC DIR 2003/35 ART 3(7)

EEC DIR 96/61

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

SWEETMAN v BORD PLEANALA & ORS 2008 1 IR 277 2007/57/12251 2007 IEHC 153

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP MACMENAMIN 8.7.2009 2009 IEHC 346

CAIRDE CHILL AN DISIRT TEORANTA v BORD PLEANALA & ORS 2009 2 ILRM 89 2009 IEHC 76

CMSN v IRELAND 2010 ENV LR 8

PLANNING & DEVELOPMENT ACT 2000 S135(8)

KLOHN v BORD PLEANALA 2009 1 IR 59 2008 2 ILRM 435 2008/34/7322 2008 IEHC 111

EEC DIR 85/337 ART 9

PLANNING & DEVELOPMENT ACT 2000 S145

PLANNING & DEVELOPMENT ACT 2000 S219(1)(B)

PLANNING AND ENVIRONMENTAL LAW

Permission

Environmental impact assessment - Public participation - Interpretation of Directive - Nature and extent of judicial review proceedings - Whether existence of judicial review remedy adequate to comply with Directive - Whether applicant entitled to merits based review of decision - Specialist tribunal with accumulated expertise and experience - Approach to judicial review - Parameters of Irish judicial review - Irish language speakers - Irish language version of environmental impact statement - Whether Irish speakers denied opportunity to participate effectively - Costs - O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Klohn v An Bord Pleanala [2008] IEHC 111, [2009] 1 IR 59 and Commission v Ireland (Case C- 427/07) (Unrep, ECJ, 15/1/2009) considered; Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153, [2008] 1 IR 277, Usk Residents Association v An Bord Pleanála [2009] IEHC 346, (Unrep, MacMenamin J, 8/7/09) and Cairde Chill An Disirt Teo v An Bord Pleanála [2009] IEHC 76, [2009] 2 ILRM 89 approved - Planning and Development Act 2000 (No 30) ss 135(8), 145 and 219(1)(b) - Official Languages Act 2003 (No 32) - Council Directive 92/43/EEC - European Communities (Natural Habitats) Regulations 1997 (SI 94/1997) - Council Directive 85/337/EEC, art 10a - Directive 2003/35/EC, art 3(7) - Leave granted but substantive application refused (2009/45JR - Birmingham J - 9/10/2009) [2009] IEHC 600

Hands Across the Corrib Ltd v Bord Pleanála

Facts: The proceedings related to a challenge to an authorisation by the respondent for the Galway City Outer By-pass and were heard in tandem with the proceedings in Sweetman v. An Bord Pleanala. The applicant also contended that the respondent had misinterpreted the Habitats Directive (Council Directive 92/43/EC on the conservation of natural habitats and wild fauna and flora) and argued that it was not open to the Board to take the view that the integrity of the site was not affected when the National Parks and Wildlife Service had expressed the view that the proposal would indeed affect the integrity of the site. The applicant complained inter alia that the measures put in place to translate the Environmental Impact Statement into Irish were inadequate and inappropriate. The Board protested that the applicant lacked standing. The issue arose as to the extent of the judicial review procedures available and whether the "fruits of the poison tree" arose from the alleged gathering of information for the Environmental Impact Assessment unlawfully.

Held by Birmingham J. The Court would refuse leave as to the adequacy of the reasons given but would grant leave on the question of the interpretation of the Directive by the respondent Board, without quashing the decision reached. The arrangements put in place as to the Irish language were not so inadequate as to obstruct or inhibit public participation in a real and meaningful way. That the applicant had no automatic entitlement to have its costs paid in whole or in part. The "fruits of the poison tree" argument was wholly misconceived and it had no application to the facts of the case and leave would be refused on this ground. While the Court would grant leave as to the misinterpretation point, the Court would refuse to quash the decision. None of the additional grounds were substantial grounds for contending that the decision was invalid. It was not necessary or appropriate to make a preliminary reference request at this point.

Reporter: E.F.

Introduction

1 1. This case, which involves a challenge to the decision of An Bord Pleanála ("the Board") to authorise the Galway City Outer-By-Pass ("GCOB") was, by direction of Mr. Justice Kelly, the judge having charge of the list in the Commercial Court, heard in tandem with the case of Sweetman v. An Bord Pleanála (99 JR/2009). The Sweetman proceedings were heard first and these present proceedings commenced immediately afterwards.

2 2. In the course of my judgment in Sweetman which I have just delivered, I set out the factual background to the challenge and also referred to the principal, relevant, domestic and European legislative provisions at issue. I do not propose to repeat that exercise here and accordingly, this judgment ought not to be read in isolation but rather read in conjunction with the judgment in Sweetman.

3 3. While the Sweetman proceedings were very tightly focussed and centred on two principal grounds of challenge, the same cannot be said in relation to the present proceedings where a far greater number of grounds of challenge have been advanced. However while that is so, so far as those areas which were so fully and ably argued in Sweetman, are concerned, namely the contention that the decision was invalid by reason of a failure to provide adequate reasons and a contention that the Board fundamentally misinterpreted Council Directive 92/43/E.E.C. of 21 May, 1992 on the conservation of natural habitats and wild fauna and flora, O.J. L206/7 22.7.1992 ("the Habitats Directive") as well as the European Communities (Natural Habitats) Regulations 1997 ( S.I. No. 94 of 1997) ("the Habitats Regulations" or "1997 Regulations"). Ms. Barbara Ohlig acting for the applicant in these proceedings was, for the most part, very properly and sensibly disposed to adopt the arguments that were advanced there.

4 4. However, one additional argument of substance which is unique to the present proceedings was put forward by Ms. Ohlig in relation to the misinterpretation point; it was argued that it was not open to the Board to take the view that the integrity of the site was not affected when the National Parks and Wildlife Service (NPWS) through Dr. Fossit had expressed the view that the proposal would indeed affect the integrity of the site. Ms. Ohlig said that the Board was simply not entitled to depart from the view of the NPWS that a project would result in an impact on the integrity of the site. To reject the views of an organisation of that stature was, it was said, to ignore the obligation to apply the precautionary principle as well as the obligation to permit projects to proceed only where no significant scientific doubt remained in relation to them. Ms Ohlig was quick to add that the situation would be otherwise if the NPWS, in a particular case, took the position that there would be no effect on the integrity of a particular site, where she says the Board would be quite free to reject its views.

5 5. The Board protests that this submission amounts to designating the NPWS as the competent authority for decision making in this area, without any statutory basis for doing so whatsoever. For my part, I do not think that it could be seriously suggested that the views of the NPWS were not entitled to be treated with the greatest of respect, indeed so much was acknowledged explicitly by the inspector in this case.

6 6. However, it is important not to lose sight of the context in which the arguments in relation to the role of the NPWS are being advanced. This is not a case where there was any significant disagreement about what the physical effects of the proposed development would be. On the contrary, the experts who expressed views on this. Dr. Julie Fossit and Mr. James McCrory, who was called to give evidence on behalf of Galway County Council were in broad agreement as to what the impact would be. However, where they disagreed was as to how the accepted impact was to be categorised or labelled and in particular, where they disagreed was as to whether the effect that it was agreed would occur should be regarded as having an adverse impact on the integrity of the site. As we have seen in the Sweetman case, Dr. Fossit contended that if the situation was that a severe adverse effect would be caused to a portion of the site that led automatically and without the need for any further consideration to a conclusion that there would be an adverse effect on the integrity of the site.

7 7. If this was a case where there was conflict between the experts as to whether a particular situation would result or whether flora or fauna would or would not be affected in a particular way, the arguments advanced by Ms. Ohlig would have much greater force. If that was the situation, then having regard to the high threshold identified by the European Court of Justice that the project could be authorised only if no reasonable doubt remained, one can readily imagine that the scope for departing from the views of NPWS experts might be quite limited. However, that is very definitely not the case here.

8 8. In summary then, in so far as the grounds that are common to this and the Sweetman proceedings are concerned, the position is that none of the arguments advanced by the applicant in this case persuade me to depart from the view I...