Hoey v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 06 December 2018 |
| Neutral Citation | [2018] IEHC 701 |
| Court | High Court |
| Docket Number | [RECORD NO. 2016 263 JR] |
| Date | 06 December 2018 |
[2018] IEHC 701
THE HIGH COURT
O'Regan J.
[RECORD NO. 2016 263 JR]
IN THE MATTER OF S. 50 OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED
AND
AND
Planning permission – Judicial review – Order of certiorari – Applicant seeking order of certiorari and declaratory relief – Whether An Bord Pleanala gave proper consideration to the spread of slurry when granting planning permission for a number of pig houses
Facts: The applicant sought an order of certiorari quashing two decisions of the respondent granting planning permission for the construction of one pig house and ancillary structures at Graigueafulla, Clonaslee, Co. Laois, and two pig houses and ancillary structures at Corbally, Clonaslee, Co. Laois. The applicant also sought declaratory relief. A detailed statement of grounds was filed by the applicant enumerating eighteen grounds for relief. The applicant’s arguments were focused on the potential impact of the spread of slurry. The applicant contended, inter alia: that the respondent erred by concluding the spread of slurry did not require planning permission and that the issue of slurry spread was extraneous to the planning application; that the Natural Impact Statement (NIS) did not consider the effects of the development on special areas of conservation (SAC); and that the decision of the respondent was contrary to Article 6 of the Habitats Directive which requires that any appropriate assessment cannot have a lacuna. The applicant made further submissions during the course of the hearing.
Held by O’Regan J that the applicant did not discharge the burden of proof required to secure an order of certiorari in respect of either of the decisions of the respondent or to secure the declaratory relief sought. O’Regan J stated that whether or not planning permission would be required by individual land owners for the spread of slurry, that was not the application before the respondent. O’Regan J was satisfied that when making their decision to grant planning permission for the pig houses, the respondent, having relevant evidence available in the Environmental Impact Statement (EIS) and elsewhere, did consider and evaluate the impact of land spreading slurry, and gave consideration to the SACs in the immediate vicinity of the proposed development. O’Regan J also noted that the difference between the respondent’s assessment and Laois County Council’s assessment did not create a “lacuna” contrary to Article 6 of the Habitat’s Directive.
O’Regan J reviewed the applicants further submissions, however she did not wish to consider grounds not contained within the statement of grounds, in particular grounds which could amount to a new cause of action.
Relief refused.
By order of the 25th April 2016 the applicant was afforded leave to maintain the within judicial review proceedings wherein the applicant seeks an order of certiorari quashing two decisions of the respondent both made on the 2nd March 2016, the first of which related to the construction of one pig house together with all ancillary structures at Graigueafulla, Clonaslee, Co. Laois (Board reference No. PL 11. 245607) and the other in relation to two pig houses together with ancillary structures at Corbally, Clonaslee, Co. Laois (Board reference No. PL 11.245605). Ancillary declaratory relief is also claimed.
The grounds upon which reliefs are sought are set out in Para. (e) of the statement of grounds of the 25th April 2016. There are eighteen enumerated grounds.
In respect of Ground 1 it is argued that the respondent erred and acted in breach of Article 6 of Council Directive 92/43/EEC of the 21st May 1992 (‘Habitats Directive’) in the manner in which it conducted the appropriate assessment for both planning applications. However, such alleged errors or breaches have not been amplified in ground 1. This ground is impermissibly vague (See R.O. (an infant) v. Minister for Justice & Equality [2015] 4 IR 200 at p. 208 and J.U. (Bangladesh) v. Minister for Justice and Equality [2018] IEHC 301 at Para. 12. See also, S.I. 691/2011 Regulation 3).
Similarly, in respect of Ground 10, it is argued that the respondent erred and acted in breach of Council Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment and/or s. 171 A of the Planning and Development Act 2000 (presumably intended to refer to s. 171 (1) of the Planning and Development Act 2000). It appears grounds Ground 10 is also impermissibly vague.
Of the remaining grounds within the statement of grounds seeking the relief, the following grounds appear to me to be immaterial, namely: -
(a) Ground 13 refers to Article 5 of the Habitats Directive which in turn deals with the requirement of a developer to submit alternate measures in order to avoid, reduce or possibly remedy an identified significant adverse effect of a proposed development. However, as there was no such adverse effect found to exist, Article 5 is not relevant.
(b) In Ground 14, a complaint is made that there has been a breach, by the first named notice party in its submitted application, of Article 22 (2) (g) of the Planning and Development Regulations 2001, by reason of a failure to include valid letters of consent from landowners whose lands would be subject to the land spreading of slurry. However, the impugned decisions do not involve the grant of permission for land spreading of slurry but rather the construction of certain pig units. Article 22 (2) (g) provides that where the applicant is not the legal owner of the land or structure concerned, the written consent of the owner to make the application must be forthcoming. As the relevant applications for planning permission did not involve an application for land spreading, the consent of the owners of the lands upon which the manure might be spread is not captured by Article 22 (2) (g), aforesaid, in the context of the within proceedings.
(c) In Ground 15, it is complained that the respondent erred in concluding that land spreading of slurry does not require planning permission. Assuming that planning permission is required for the land spreading of slurry, nevertheless as such land spreading was not the subject matter of the applications for planning permission this is not a proper ground to seek to condemn the decisions of the 2nd March 2016. In this regard in Ó Gríanna & Ors. v. An Bord Pleanala [2017] IEHC 7, McGovern J. in an application relevant to a windfarm and grid connection, was satisfied that there is no requirement in law that requires a developer to seek consent for both permissions at the one time – what is required is that the board would carry out an EIA of the proposed development taking into account the cumulative effect of that for which consent is sought.
During the course of rebuttal submissions on behalf of the applicant on the second day of the hearing, the applicant applied to amend his statement of grounds to include further grounds relevant to the failure of the respondent to interact with and agree an outcome with the EPA.
Having regard to the provisions of O. 84, r. 23, the judgment of Fennelly J. in Andrew Keegan v. Garda Siochána Ombudsman Commission [2012] 2 IR 570 at Para. 30 et seq and the fact that the EPA communicated with Laois County Council by letter of the 21st January 2016 to the effect that the agency could not issue a determination relating to the development until a planning decision has been made (without any challenge thereafter being maintained by the applicant in respect of this position adopted by the EPA) the application to amend the grounds of claim was refused.
In Ground no. 2 it is complained that both the board and its inspector concluded that land...
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