O'Leary and Others v an Bord Pleánala and Others
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | McCarthy J. |
| Judgment Date | 18 February 2008 |
| Neutral Citation | [2008] IEHC 34 |
| Date | 18 February 2008 |
[2008] IEHC 34
THE HIGH COURT
BETWEEN
AND
AND
BETWEEN
AND
AND
EEC DIR 97/11
EEC DIR 2003/35
MARTIN v BORD PLEANALA 2007 2 ILRM 401
SRL CILFIT & LANIFICIO DI GAVARDO SPA v MINISTRY OF HEALTH 1982 ECR 3415
EEC DIR 85/337 ART 2(1)
EEC DIR 85/337 ART 3
LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)
WASTE MANAGEMENT ACT 1996 S54(3)
FRIENDS OF THE IRISH ENVIRONMENT LTD & LOWES v MIN FOR ENVIRONMENT & ORS UNREP MURPHY 15.4.2005 2005 26 5400 2005 IEHC 123
TREATY OF ROME ART 10
MASTERFOODS LTD v HB ICE CREAM LTD 2000 ECR I-11369
TREATY OF ROME ART 85
TREATY OF ROME ART 86
TREATY OF ROME ART 85(1)
MERCK & CO INC & ANOR v GD SEARLE & CO & MONSANTO CO 2002 3 IR 614 2001 2 ILRM 363 2001/22/5882
KIMBERLY-CLARKE WORLDWIDE INC v PROCTOR & GAMBLE LTD (NO 1) 2000 FSR 235
UNILEVER PLC v FRISA NV 2000 FSR 708
IRISH TRUST BANK LTD v CENTRAL BANK OF IRELAND 1976-7 ILRM 50
WORLDPORT IRELAND LTD, RE UNREP CLARKE 16.6.2005 2005/58/12287 2005 IEHC 189
INDUSTRIAL SERVICES CO (DUBLIN) LTD, RE 2001 2 IR 118 2001/12/3322
KINGDOM OF BELGIUM v RYANAIR LTD UNREP O'NEILL 30.6.2006 2006/33/6958 2006 IEHC 213
ZUCKERFABRIK SUEDERITHMARSCHEN AG v HAUPTZOLLAMT ITZEHOE 1991 ECR I-415
KAPFERER v SCHLANK & SCHICK GMBH 2006 ECR I-2585
EEC REG 44/2001 ART 15
REWE-ZENTRALFINANZ v LANDWIRTSCHAFTSKAMMER FUR DAS SAARLAND 1976 ECR 1989, 1977 1 CMLR 533
VAN SCHIJNDEL & VAN VEEN v STICHTING PENSIOENFONDS 1995 1 ECR 4705
eec reg 159/66
UNIBET (LONDON) LTD & UNIBET (INTERNATIONAL) LTD v JUSTITIEKANSLERN 2007 ECR I-2271 2007 2 CMLR 30
COMMISSION OF THE EUROPEAN COMMUNITIES v ITALY 1970 ECR 25
COMMISSION OF THE EUROPEAN COMMUNITIES v GERMANY 1995 ECR I-2189
COMMISSION OF THE EUROPEAN COMMUNITIES v UNITED KINGDOM 2006 ECR I-3969
COMMISSION OF THE EUROPEAN COMMUNITIES v ITALY 2004 ECR I-5975
COMMISSION OF THE EUROPEAN COMMUNITIES v IRELAND 1999 ECR I-5901
KOBLER v AUSTRIA 2003 ECR I-10239
PRACTICE AND PROCEDURE
Stay
Reference to European Court of Justice - Whether judicial review proceedings in Ireland should be stayed pending decision of European Court of Justice in proposed proceedings on issue decided by Supreme Court - Judicial review - Planning - Martin v An Bord Pleanála [2007] IESC 23, [2007] 2 ILRM 401 followed; Masterfoods Ltd v HB Ice Cream Ltd (Case C-344/98) [2000] ECR I-11369, Friends of the Irish Environment Ltd v Minister for the Environment [2007] 3 IR and Merck & Co Inc v GD Searle & Co [2002] 3 IR 614 distinguished - Treaty on European Union, Articles 5, 10& 226 - Stay refused (2004/191JR & 2006/69JR - McCarthy J - 18/2/2008) [2008] IEHC 34
O'Leary v An Bord Pleanála
McCarthy J. delivered 18thday of February 2008
1. The first mentioned proceedings were commenced by Originating Notice of Motion of the 19th April, 2004, to seek leave to apply for twenty-five orders, many of which are overlapping. For the purpose of the outcome of the present application, being an order staying or adjourning generally them pending a decision of the European Court of Justice in contemplated or pending proceedings, the relevant leave (and the grounds upon which it is based), turns upon the issue of whether or not our national legislative provisions are compatible with the obligations imposed on the State by Council Directive 85/337/EEC of the 27th June, 1985, on the assessment of the effect of certain public and private projects on the environment, and as amended by Directive 97/11/EC of the 3rd March, 1997 (hereinafter collectively referred to as "The Directive"). The Directive has been further amended by Council Directive 2003/35/EC, but since the applications for the particular permission and licence predated it, (referred to below), I am not concerned with the amendment.
2. By the second mentioned proceedings, commenced by Originating Notice of Motion of the 13th February, 2006, certain substantive relief, similarly hinging upon the issue of whether or not the Directive was incompatible with those obligations, is sought.
3. In the first mentioned proceedings, it is sought to impugn the decision of the first named respondents therein (An Bord Pleanála) to grant planning permission for a development comprising inter alia the construction of a waste management facility (comprising a waste to energy facility, a waste transfer station and a community recycling park) at Ringaskiddy, and in the second mentioned proceedings, it is sought to impugn a decision of first named respondents therein (the Environment Protection Agency, otherwise the EPA) to grant a waste licence for the same development project.
4. The issue of whether or not the national legislative provisions in question are incompatible with the obligations of the relevant respondents (Ireland, otherwise, the State) under the Directive was conclusively disposed of in this State in Martin v. An Bord Pleanála & Ors. [2007] 2 I.L.R.M. 401. In addition to the fact that the Supreme Court held that there was no incompatibility in national law with the State's obligations aforesaid the Court also, however, considered that the meaning of the Directive was "clear", such that the applicant (and the grounds advanced by him) was "clutching at straws in his opposition to the decision" and the learned Chief Justice did not see "any reasonable scope for doubt on these issues" and, further such that having regard to the decision of the Court of Justice in Cilfit v. Minister Della Sanita [1982] E.C.R. 3415 and the criteria which it sets out in that regard there was no necessity to make a reference to the Court of Justice ("the E.C.J.") pursuant to Article 234 of the Treaty.
5. I need not, I think, in the nature of the application before me, consider the decision in Martin in detail in as much as it is common case that the point giving rise to the present proceedings has been determined in it. To put the matter shortly, however, Article 2(1) of the Directive imposes an obligation on the State to:-
"adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment … are made subject to a requirement for development consent and an assessment with regard to their effects."
The phrase "development consent" is defined in Article 1(2) as:-
"the decision of the competent Authority or Authorities which entitles the developer to proceed with the project."
Article 3 requires that the assessment take account of the effects on
"human beings, fauna and flora; soil, water, air, climate and the landscape; material assets and cultural heritage."
and
"the interaction between" those factors."
6. An Bord Pleanála has an obligation to carry out what is known as an environmental impact assessment ("an E.I.A.") in certain cases, pursuant to s. 26(5) (d) of the Local Government (Planning and Development) Act, 1963 but in relation to developments requiring a waste licence from the E.P.A. pursuant to s. 54(3) of the Waste Management Act 1966, the Bord cannot, in its environmental impact assessment, consider the risk of environmental pollution from the particular activity as this is to be assessed by the E.PA. in a separate E.I.A. The matter came before the Supreme Court on a point of law certified by this Court (Smyth J.) after he had dismissed the application therein seeking judicial review inter alia on the issue of the lawfulness of An Bord Pleanála's decision on the basis that the legislative provisions on foot of which that decision was made were incompatible with the Directive, focusing, in particular, on the division of responsibility between An Bord Pleanála and the E.P.A.
7. The first issue of law so certified was whether or not the Directive had been properly transposed onto our law and three issues arose from the point certified namely, whether the grant of permission alone constituted a "development consent" within the meaning of Article 2(1) of the Directive, secondly, whether or not a full E.I.A. should have taken place before the grant of permission and, thirdly, whether or not the division of responsibilities between An Bord Pleanála and the E.P.A. did not allow for an integrated assessment of all factors as required by Article 3 of the Directive.
8. It was held by the Supreme Court (Murray, C.J., Denham and Geoghegan J.J. concurring) that "development consent"...
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