John Moore v an Bord Pleanála, Minister for Communications, Climate Action and Environment, Ireland, and The Attorney General
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] IEHC 349 |
| Court | High Court |
| Docket Number | [Record No. 2018/1072 JR] |
| Date | 18 May 2021 |
and
[2021] IEHC 349
[Record No. 2018/1072 JR]
THE HIGH COURT
JUDICIAL REVIEW
Leave to appeal – Substitute consent – Consent for future planning – Applicant seeking a certificate for leave to appeal the principal judgment – Whether it was necessary for the second respondent to make the European Union (Environmental Impact Assessment and Habitats) Regulations 2015 in order to transpose the Environmental Impact Assessment Directive
Facts: The principal judgment was delivered on 4 December 2020 in respect of the claim of the applicant, Mr Moore, for judicial review seeking the relief of certiorari in respect of two decisions, both of 24 October 2018, whereby the notice party, Kilsaran Concrete, was afforded substitute consent and consent for future planning in respect of its quarry at Bellewstown, Co. Meath, by the first respondent, An Bord Pleanála. The applicant applied to the High Court for a certificate for leave to appeal the principal judgment to the Court of Appeal pursuant to the provisions of s. 50A of the Planning and Development Act 2000 as amended (the PDA). The questions raised were as follows: (1) Was it necessary for the second respondent, the Minister for Communications, Climate Action and Environment, to make S.I. No. 301/2015 - European Union (Environmental Impact Assessment and Habitats) Regulations 2015 in order to transpose the Environmental Impact Assessment (EIA) Directive? (2) Is the Minister entitled, by statutory instrument, to direct that applications for development consent should be made directly to the Board, as an exception to the general scheme of the PDA, for certain classes of development (only)? (3) Can the Minister look to Irish legislation to find the principles and policies to guide in making regulations pursuant to s. 3 of the European Communities Act 1972? (4) Having regard to the obligation on all organs of the State to ensure that developments which required an EIA and development consent, but which were commenced and continued without them, may only be retrospectively regularised in exceptional circumstances, must the Board dis-apply or re-examine, at the second stage of a two-stage process, a finding made at the first stage which was incorrectly premised? To what extent is it relevant that the earlier error was attributable to Ministerial guidelines offering an interpretation of the very complex statutory scheme which was subsequently rejected by the Board and the High Court? (5) To what extent is the remedial obligation on the High Court limited or restricted by the pleadings in the case?
Held by O'Regan J that the applicant had not pointed to any uncertainty in the law in or about an assessment of the principles as to whether or not the exercise of the power of the Minister under s. 3 of the 1972 Act was lawful. She held that there was no contemplation in the principal judgment as to whether or not the Minister had a general power to make regulations, and in those circumstances the issue posed by question two did not arise on the judgment, was not considered, and was not the subject matter of submissions to the Court. She held that neither within the Supreme Court judgment, nor within the principal judgment, was Irish legislation relied on to find the principles and policies to guide the Minister in making the regulations pursuant to s. 3 of the 1972 Act, and in those events it could not be said that question three arose from the judgment. She held that the question of annulment did not arise on these pleadings, the issue had been decided by the Supreme Court in An Taisce v An Bord Pleanála [2020] IESC 39 and although certain issues were left over for consideration on another occasion, such issues did not arise on foot of the proceedings. She noted that question five was not pleaded and therefore not before the Court prior to the principal judgment, nor was it dealt with in the principal judgment.
O'Regan J held that the applicant’s application for certification for leave to appeal to the Court of Appeal would be refused in its entirety.
Application refused.
JUDGMENT of Ms. Justice Miriam O'Regan delivered on the 18th day of May, 2021.
Judgment was delivered in the above matter on 4 December 2020 in respect of the applicant's claim for judicial review seeking the relief of certiorari in respect of two decisions, both of 24 October 2018, whereby the notice party was afforded substitute consent and consent for future planning in respect of its quarry at Bellewstown, Co. Meath, by An Bord Pleanála (ABP). This judgment is for the purposes of addressing the applicant's application for a certificate for leave to appeal the principal judgment aforesaid to the Court of Appeal pursuant to the provisions of s.50A of the Planning and Development Act 2000 as amended (the PDA).
The applicant submitted written submissions on 8 March 2021 and supplemental written submissions on 16 April 2021. The Minister's response submissions are dated 26 April 2021, and the response submissions by ABP and separately by the notice party are respectively dated 27 April 2021. The matter was heard by the Court on 5 May 2021.
Section 50A(7) of the PDA provides:
“The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
Section 50A(8) of the PDA provides:
“ Subsection (7) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution”.
Section 75 of the Court of Appeal Act 2014 provides that references to the Supreme Court are to be construed as references to the Court of Appeal unless the context otherwise requires.
In replying oral submissions by the applicant, it was suggested for the first time that question number one might be supplemented, with further submissions being delivered by the parties, and a further hearing by reason of supplementing query number one. This proposal was rejected by the Court on the basis that such a proposal is not in accordance with the applicant's requirement for precision in or about the nature of the question to be posed, and it was entirely inappropriate to seek such an alteration in the questions at such a late stage in the application.
Furthermore, the proposed amendment procedure was resisted both by the Minister and the notice party on the basis that the applicant's proposal amounted to an unsatisfactory process to deal with a point in fact raised in the Minister's submissions, but not addressed in the applicant's opening oral submissions, and it was inappropriate to raise such an amendment by way of applicant's reply.
The applicant has in any event indicated that the first three questions for which certification is sought come within the ambit of s.50A(8) of the PDA and therefore certification is not required.
The questions raised are as follows:
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(1) Was it necessary for the Minister to make S.I. No. 301/2015 — European Union (Environmental Impact Assessment and Habitats) Regulations 2015 (the 2015 regulations) in order to transpose the Environmental Impact Assessment (EIA) Directive?
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(2) Is the Minister entitled, by statutory instrument, to direct that applications for development consent should be made directly to the Board, as an exception to the general scheme of the PDA, for certain classes of development (only)?
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(3) Can the Minister look to Irish legislation to find the principles and policies to guide in making regulations pursuant to s.3 of the 1972 Act?
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(4) Having regard to the obligation on all organs of the State to ensure that developments which required an EIA and development consent, but which were commenced and continued without them, may only be retrospectively regularised in exceptional circumstances, must the Board dis-apply or re-examine, at the second stage of a two-stage process, a finding made at the first stage which was incorrectly premised? To what extent is it relevant that the earlier error was attributable to Ministerial guidelines offering an interpretation of the very complex statutory scheme which was subsequently rejected by the Board and the High Court?
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(5) To what extent is the remedial obligation on the High Court limited or restricted by the pleadings in the case?
The applicant argues that the first three questions come within the ambit of s.50A(8) of the PDA on the basis that it is asserted that the Minister exceeded his powers by trespassing on the legislative competence of the Oireachtas enshrined in Article 15.2.1 of the Constitution, and it is a necessary corollary of the argument that the 2015 regulations were ultra vires the Minister and that the provisions inserted in the 2000 Act are invalid with respect to Article 15.2.1.
It is said that queries four and five relate to the State's remedial obligations under the EIA Directive and subsequent case law of the European Court of Justice.
The parties did not dispute the impact of the decision in Dellway Investment Limited v. National Asset Management Agency (NAMA) [2010] IEHC 375, to the effect that this Court ought to proceed on the basis that s.50A(8) does not apply and the questions raised should be considered on their merits.
The applicant argued that...
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