Harrington v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 09 May 2014
• Neutral Citation: [2014] IEHC 232
• Court: High Court
• Date: 09 May 2014

Harrington v Bord Pleanala & Ors

JUDICIAL REVIEW

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN

MAURA HARRINGTON

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

INVER COMMUNITY DEVELOPMENT GROUP

FIRST NOTICE PARTY

AND

MAYO COUNTY COUNCIL

SECOND NOTICE PARTY

[2014] IEHC 232

[No. 276 J.R./2013]

THE HIGH COURT

Judicial Review – Order of Certiorari – Planning Permission – Community – Independence – Practice and Procedure – Habitats – Objections – Conditions – Evidence

Facts: The applicant sought an order of certiorari quashing the decision of the respondent dated 20th February 2013, to grant planning permission to the first named notice party for the development of a sports facility and community hall at Inver, Barnatra, Ballina, County Mayo. Furthermore, an order of mandamus was sought compelling the respondent to conduct or to commission an independent assessment and evaluation to ascertain whether or not the proposed site for the development was an active blanket bog, therefore, a priority natural habitat within the meaning of the Council Directive 92/43/EEC (“the Habitats Directive”). Leave was granted on 15th April 2013. The first named notice party submitted an application to Mayo County Council for planning permission on 22nd September 2011, for the development of a sports hall with numerous facilities. The applicant lodged an objection to this planning application on 25th October 2011, pursuant to which the second named notice party, on 15th November 2011, requested the first notice party to submit a Natura Impact Statement (“NIS”) pursuant to s. 177T of Part XAB of the Planning and Development Act 2000, detailing the potential impact of the proposed development on one or more European sites as defined in s. 177R. The NIS was submitted on 28th February 2012. Having considered the applicant”s objection and the notice party”s response as well as the NIS, planning permission was granted on 23rd March 2012, subject to a number of conditions. The applicant appealed this decision to the respondent Board on 18th April 2012, claiming that the NIS was fundamentally flawed and stating that under Article 11 of the Habitats Directive, priority habitats are protected even if they have not been formally designated as a Special Area of Conservation (SAC), Site of Community Importance (SCI), or Special Protection Area (SPA). On 19th April 2012 the respondent wrote to the first notice party seeking comments on the appeal. A reply was delivered on 15th May 2012. Pursuant to s.131 of the Planning and Development Act 2000, the respondent also sent notices to the Heritage Council, An Taisce, and the National Parks and Wildlife Service (“NPWS”) requesting their submissions or observations. No response was received to these notices. On 5th June 2012, a site inspection was carried out by Ms. Mairéad Kenny who issued an Inspector”s Report on 14th August 2012. A Board meeting was held on 11th February 2013, and a decision to grant planning permission, subject to specified conditions, was issued on 20th February 2013.

Held by Justice O”Neill that the applicant had adopted a simple, straightforward approach in this case, by way of judicial review, to the decision of the respondent to allow permission to the first notice party to proceed with the development in issue. The applicant alleged that the site in question was, by virtue of being active blanket bog, a protected site under the provisions of the Habitat Directive and national implementing legislation; that there was scientific doubt as to the status of the site as such, and as to the impacts of the proposed development on the integrity of the site as a protected site; that the respondent was therefore under a duty to carry out its own independent ecological assessment to consider a matter of scientific doubt, and either establish the applicant”s contentions in fact, or otherwise eliminate the doubt raised. The applicant also challenged, it was noted, the adequacy of the NIS and called into question the s.131 notices to the relevant bodies, firstly challenging the questions posed in these notices as ambiguous, and secondly, citing the issuance of these notices as indicating that the respondent did have a scientific doubt on the questions raised by the applicant. The applicant also challenged the adequacy of the assessment carried out by the respondent before arriving at its decision. The applicant claimed that the site in issue was active blanket bog and was an Annex 1 priority habitat to be protected under the provisions of the Habitats Directive from any development which would mar the integrity of the site. The applicant criticised the respondent for accepting the content of the NIS, inter alia, on the basis that in the first instance, it failed to identify the site as ‘active blanket bog’, and secondly, did not explain how it reached the conclusion that it was ‘wet heath’, and thirdly, did not say whether or not there was on that site two types of heather which, if present, would have altered the status of the site as meriting Annex 1 priority habitat protection. Although not a designated ‘European site’, because of its status as a subject of priority habitat, the applicant submitted that ‘shadow protection’, as described by Charleton J. in the Sandymount and Merrion Residents Association v. An Bord Pleanála case, applied. In making these claims, Justice O”Neill stated that the applicant had not adduced any evidence to support her claims. Justice O”Neill was satisfied that the duty of the respondent to make appropriate enquiries did not go so far as to require them to respond to assertions unsupported by any credible evidence. He further reasoned that the making of a statement without evidence to support it could not be said to give rise to ‘a scientific doubt’ which would require, in the case of a site potentially qualifying as a priority habitat, the respondents to do, by way of enquiry, whatever was necessary to eliminate that doubt. Justice O”Neill acknowledged the applicants submission that the issuance by the respondent of notices under s. 131 of the Act, to the relevant bodies concerned, evidenced a ‘scientific doubt’ on the part of the respondent. He rejected this inference stating that the issuance of such notices did not indicate scientific doubt on the part of the respondent. In applying the cases of O”Keeffe v. An Bord Pleanála, Westin v. An Bord Pleanála and Lancefort Ltd. v. n Bord Pleanála, Justice O”Neill determined that the respondent had not failed in its duty to conduct an appropriate inquiry, as required of them by statute, by failing to carry out their own independent ecological assessment. The applicant failed to adduce any evidence whatsoever to support her contention that the site in question was a priority habitat, warranting, on the basis of the ‘precautionary principle’, the elimination of ‘scientific doubt’ by the carrying out of an independent ecological assessment. In respects of the original ground of complaint in the appeal before the respondent relating to the NIS, namely, that there was not a conclusion that the site was an active blanket bog was regarded as a contention of fact, and in the absence of any evidence to have supported that contention, Justice O”Neill was satisfied that there was nothing to cause the respondent to consider any conclusion other than that contained in the NIS, namely, that the site was wet heath. The applicant further submitted that the respondent had failed to carry out an appropriate assessment, as required under s. 177V(1) of the Act of 2000. The applicant was alleged to have once again failed to adduce any evidence to support this contention, nor did such a contention derive any support from any reasonable inference drawn from the evidenced before the court. Thus, Justice O”Neill was satisfied the applicant had wholly failed to establish this ground. He reached the same conclusion in respects of the applicants complaint that the respondent had failed to make its determination on the proposed development and the notice of the determination available for inspection as soon as may be after the making of the same, as required under s. 177V(6) of the Act of 2000. For all of the above reasons, he concluded that the applicant was not entitled to the relief claimed.

PLANNING & DEVELOPMENT ACT 2000 S177T

PLANNING & DEVELOPMENT ACT 2000 PART XAB

PLANNING & DEVELOPMENT ACT 2000 S177R

EEC DIR 92/43 ART 11

PLANNING & DEVELOPMENT ACT 2000 S131

PLANNING & DEVELOPMENT ACT 2000 S133

EEC DIR 92/43 ANNEX I

EEC DIR 92/43 ART 2

EEC DIR 92/43 ART 3

EEC DIR 92/43 ART 4

EEC DIR 92/43 ART 6

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

EUROPEAN COMMUNITIES (BIRDS & NATURAL HABITATS) REGS 2011 SI 477/2011

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S57

PLANNING & DEVELOPMENT ACT 2000 S177U

AN TAISCE (THE NATIONAL TRUST FOR IRELAND) v IRELAND & ORS UNREP CHARLETON 25.11.2010 2010/2/503 2010 IEHC 415

R v MINISTRY OF AGRICULTURE & ANOR, EX PARTE NATIONAL FARMERS UNION & ORS 1998 ECR I-2211 1998 2 CMLR 1125 1998 AER (D) 182

UNITED KINGDOM v CMSN 1998 ECR I-2265 1998 2 CMLR 1125 1998 AER (D) 183

ARTEGODAN GMBH v CMSN 2002 ECR II-4945 72 BMLR 34 2002 AER (D) 391 (NOV)

LANDELIJKE VERENIGING TOT BEHOUD VAN DE WADDENZEE v STAATSSECRETARIS VAN LANDBOUW NATUURBEHEER EN VISSERIJ 2005 AER (EC) 353 2004 ECR I-7405 2005 2 CMLR 31 2005 ENV LR 14

SWEETMAN v BORD PLEANALA & ORS UNREP HEDIGAN 2.3.2010 2010/49/12200 2010 IEHC 53

CMSN v SPAIN 2011 ENV LR D4 2010 ECR I-4281

BUND NATURSCHUTZ IN BAYERN EV & ORS v FREISTAAT BAYERN 2006 ECR I-8445 2006 AER (D) 76 (SEP)

SANDYMOUNT & MERRION RESIDENTS ASSOCIATION v BORD PLEANALA & ORS UNREP CHARLETON 19.11.2013 2013 IEHC 542

CMSN v FRANCE 2000 ECR I-10799

SWEETMAN & ORS v BORD PLEANALA 2013 3 CMLR 16

PLANNING & DEVELOPMENT ACT 2000 S177S(2)(F)

PLANNING & DEVELOPMENT ACT 2000...