Krikke v Barranafaddock Sustainability Electricity Ltd

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Ms. Justice Iseult O'Malley
• Judgment Date: 17 July 2020
• Neutral Citation: [2020] IESC 42
• Docket Number: S:AP:IE:2020:000010
• Date: 17 July 2020
• Court: Supreme Court

BETWEEN

RONALD KRIKKE, PIA UMANS, SEAN HARRIS, CATHERINE HARRIS, PATRICK KENEALLY, CAROLINE KENNEALLY, KENNETH GEARY

APPLICANTS/RESPONDENTS

-AND-

BARRANAFADDOCK SUSTAINABILITY ELECTRICTY LTD.

RESPONDENT/APPELLANT

[2020] IESC 42

Clarke C.J.

O'Donnell J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2020:000010

[Supreme Court Appeal No. 10/2020]

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Stay – Planning and Development Act 2000 – Environmental impact assessment – Appellants appealing against the decision of the Court of Appeal to grant a stay on a High Court order – Whether the Court of Appeal ruling erred

Facts: The appellants, Mr Krikke, Ms Umans, Mr Harris, Ms Harris, Mr Keneally, Ms Keneally and Mr Geary, appealed to the Supreme Court against the decision of the Court of Appeal to grant a stay on a High Court order, made pursuant to the provisions of s. 160 of the Planning and Development Act 2000, pending the hearing of the substantive appeal by the respondent developer, Barranafaddock Sustainability Electricity Ltd, against that order. The respondent operated a wind farm in County Waterford, and the High Court order (perfected on the 6th December 2019) related to a number (but not all) of the wind turbines erected there. The issue of law upon which the Supreme Court granted leave to appeal was the proper approach to the question of a stay during an appeal in planning proceedings, where those proceedings concern a development that required an environmental impact assessment (EIA). The merits of the substantive issues in the case remained to be considered by the Court of Appeal in the pending appeal.

Held by O’Malley J that she agreed with certain aspects of the Court of Appeal ruling but it erred in attributing little or no weight to certain matters. On balance, in the circumstances of the case, O’Malley J would not have granted a stay; to that extent, the residents had been successful in their appeal to the Supreme Court. However, the parties had already been informed, in a ruling published on the Courts Service judgments database, that while the Court would allow the appeal in principle it would not interfere with the stay granted by the Court of Appeal ([2020] IESC 33). The principal reasons, as stated in the ruling, were, firstly, that the Court of Appeal had been able to hear the substantive appeal in early course and, secondly, that there had been a significant change of circumstances since the making of the High Court order. This second reason related to the fact that the application for leave for substitute consent could not be progressed in the way that Simons J might have anticipated it would, because of the order made in the related proceedings that it should not be progressed until judgment was given in the pending appeals relating to the substitute consent process. Judgment was delivered in the appeals in question on the 1st July 2020 (An Taisce v An Bord Pleanála & Ors. [2020] IESC 39). The Court had found that certain of the procedures provided for in the Act are inconsistent with the requirements of the EIA Directive. O’Malley J found that it was not possible to be certain what the consequences would be for cases where a developer’s application is in being but has not received leave. In those circumstances, and given that the Court of Appeal would determine the substantive appeal, O’Malley J held that it was in the interests of justice that the status quo should prevail pending that Court’s decision; what, if anything, needed to be done thereafter was also a matter for that Court.

O’Donnell J agreed with O’Malley J that, while the residents had been successful in their appeal in respect of the applicable law, he would not set aside the order of the Court of Appeal; to do so would render the High Court order operative in circumstances not contemplated by the judge making the order. O’Donnell J thought that, in the absence of a viable substitute consent pathway, it would have been necessary to fashion some more nuanced compromise order. Consistent with the approach set out in the judgment, and given that the Court of Appeal had heard the substantive appeal, O’Donnell J would leave the stay in place, and allow that court to come to its own conclusion in respect of the matter in the light of the decision it comes to on the substantive appeal.

Appeal allowed.

Judgment of O'Donnell J. delivered on the 17 ^th day of July, 2020.

1 I agree with the outcome and order to be proposed by O'Malley J., and also with much of the reasoning in her judgment and, in particular, on the important issues of principle addressed by her which are of general importance. In relation to the resolution of this difficult case, I would reach the same conclusion as my colleague, though by a slightly different route.

2 Applications pursuant to s. 160 of the Planning and Development Act 2000 (“the 2000 Act”) present some particular problems of analysis. Section 160 and its statutory predecessor, s. 27 of the Local Government (Planning and Development) Act 1976, created what is described colloquially as the planning injunction. For the first time, it allowed members of the public - and not merely planning authorities - to bring applications to enforce compliance with planning law. That was a statutory recognition of the fact that there is a public interest, and members of the public have an interest in. the proper enforcement of planning law. The enforcement of planning law is something of benefit to those immediately affected by a development, but is also of benefit to the wider community. This, if anything, has become more apparent since the implementation in Irish law of the Environmental Impact Directive 85/337/EEC and its successors. The courts, in applying the law, must seek to find a balance between restraining unauthorised development which might be harmful to the built and natural environment and to the legitimate interests of people affected, and permitting protracted litigation to obstruct and perhaps preclude development where the breach, if one exists, may be minor and where the development is clearly permissible in principle and of benefit to the community and the wider economy.

3 There are a number of points at which a court or other decision-maker must make a decision as to whether or not a development should be halted pending a further decision. First, if an interlocutory application is brought pending the hearing of a s. 160 application, the court must consider whether the development should be restrained or permitted to proceed, pending the hearing of the application. Second, when a court, having heard an application, concludes that a development is not being carried out in accordance with permission, it will often have to consider whether to make an order restraining use of the development, or even requiring its removal, or whether to allow time to the respondent to seek to regularise the planning position. whether by way of an application for retention or substitute consent, or perhaps for an entirely new permission. Third, in those cases where an application is made for substitute consent to An Bord Pleanála (“the Board”), that body has a jurisdiction under s. 177J of the 2000 Act (inserted by the Planning and Development (Amendment) Act 2010), where it has decided to grant leave to seek substitute consent, to give a draft direction in writing requiring a person to cease within the period specified all or part of the activity of the operations at the site of the development the subject of the application where the Board forms the opinion that the continuation of all or part of the activity or operation is likely to cause a significant adverse effect on the environment, or indeed adverse effect on the integrity of the European site. Fourth, and finally, where, as here, a decision has been made by the High Court, which it is sought to appeal, the appellate court must consider whether or not the order should be stayed pending the hearing of the appeal.

4 While in substance these decisions are very similar in that the development is either restrained, permitted to continue, or allowed to continue subject to conditions, the analysis in each case is subtly different. When, for example, the Board considers exercising its jurisdiction under s. 177J of the 2000 Act (as inserted), it will normally have available to it additional information, such as a remedial environmental impact statement, which may assist it in determining whether the continued activity, or any part of it, is likely to cause significant adverse effects on the environment. On the other hand, by contrast, a judge who has concluded that the development is not being carried out in accordance with planning permission is concerned as to whether to restrain the development immediately or to give time for an application for retention or substitute consent to be processed, but has little insight as to whether that development is likely to secure retention or substitute consent. This, in turn, is a different analysis from that which is carried out by an appellate court considering an appeal from the same order. On that application, the appellate court must consider the possibility that the order of the lower court may be overturned on appeal. something which naturally does not figure at all in the trial judge's consideration of the appropriate order to be made on the basis of his or her judgment.

5 An application for an interlocutory injunction pending the hearing in the trial court is perhaps the most similar to the application for a stay pending appeal, since they both involve interlocutory orders in which the court's function is to seek to minimise the risk of injustice pending the trial, or the determination of the appeal, as the case may be, and it is to be expected that similar principles and techniques will be applied, such as those contained in the judgment of this court in ...