O'Leary and Others v an Bord Pleánala and Others
| Jurisdiction | Ireland |
| Judge | Murray C.J. |
| Judgment Date | 31 July 2008 |
| Neutral Citation | [2008] IESC 55 |
| Court | Supreme Court |
| Docket Number | 103/2008 |
| Date | 31 July 2008 |
BETWEEN
AND
AND
BETWEEN
AND
[2008] IESC 55
THE SUPREME COURT
Planning & Development Law - Environmental law - European Union law -Judicial review - EIA Directive - Proceedings brought by European Commission - Stay on proceedings - Whether proceedings could be further adjourned in interests of justice -Article 234 EC - Council Directive 85/337/EEC
Facts: In the first set of proceedings, the appellants challenged a decision of the first respondent to grant planning permission for a waste incinerator. It was alleged that the grant of planning permission was invalid on the basis that the Board had failed to carry out an integrated assessment of the project as required by the Environmental Impact Assessment (EIA) Directive. In the second set of proceedings, the appellants sought to set aside a decision to grant a waste licence, also in respect of the EIA Directive assessment. Both sets of proceedings had been adjourned pending a Supreme Court decision on the validity of the transposition of the Directive, which it had upheld. The appellants sought a further adjournment of the proceedings since the Commission had instituted proceedings against Ireland pursuant to Article 226 EC in respect of the transposition of the EIA Directive. The issue arose as to whether the proceedings should have been further adjourned so as to avoid conflict between a decision of the Irish court and the Court of Justice or Commission if the Commission proceedings were to be upheld.
Held by the Supreme Court per Murray C.J. (Denham, Hardiman, Geoghegan & Fennelly JJ. concurring) in dismissing the appeal, that to adjourn the proceedings pending the outcome of non-existent proceedings could deprive the respondents and/ or notice parties of any effective protection of their rights. The interests of justice would not be served by the adjournment of the proceedings.
Reporter: E.F.
EEC DIR 85/337/EEC
MARTIN v BORD PLEANÁLA & ORS 2007 2 ILRM 401
TREATY OF EU 1957 (TREATY OF ROME) (CONSOLIDATED) ART 226
TREATY OF EU 1957 (TREATY OF ROME) (CONSOLIDATED) ART 10
MASTERFOODS LTD v HB ICE CREAM LTD 2000 ECR I - 11369
FRIENDS OF THE IRISH ENVIRONMENT LTD & LOWES v MIN FOR ENVIRONMENT & ORS UNREP HIGH MURPHY 15.4.2005 2005/26/5400
KINGDOM OF BELGIUM v RYANAIR LTD UNREP HIGH O'NEILL 30.6.2006 2006/33/6958
31st day of July 2008 by Murray C.J.
This is an appeal by the applicants in the two above mentioned proceedings against an order of the High Court refusing their application for the stay or adjournment of each set of proceedings pending the outcome of potential proceedings being brought by the Commission of the European Union in the Court of Justice of the European Communities against Ireland for an alleged failure to correctly transpose Council Directive 85/337/EEC, as amended. (The EIA Directive).
In the first set of proceedings the appellants challenge the decision of the first respondent ("the Board") of 15 th March 2004 to grant planning permission for a development consisting of a waste incinerator to be operated at Ringaskiddy, Co. Cork, by the notice party, Indaver NV. In that case the appellants were granted leave to challenge that decision on a wide range of grounds by an order of the High Court dated the 24 th January 2005. That order granted the appellants leave to seek judicial review on a total of 41 specified grounds set out in their application. Among those grounds is a claim that the decision to grant planning permission is invalid because the Board failed to carry out an integrated assessment of the project as required by the provisions of the EIA Directive, which failure, it is alleged, stemmed from the State's failure to properly transpose the provisions of the EIA Directive into a domestic law. Apart from those grounds there appears to be at least thirty other grounds which are relied upon by the appellants which are not related to those issues.
In the second set of proceedings the applicant/appellant seeks to set aside a decision of the first respondent ("the EPA") of the 24 th November 2005 to grant a waste licence to Indaver to carry out certain waste activities at the site in Ringaskiddy. Again among the grounds relied upon to challenge that decision is a contention that as a result of the State's failure to properly transpose the provisions of the EIA into national law the decision was invalid. Again the applicants/appellants seek to challenge the validity of the decision on a multiplicity of grounds only some of which relate to the transposition of the Directive into national law.
Apparently the question of fixing a date for the hearing of these proceedings had originally been adjourned on the application of the State, with the support of the Board and the EPA, pending the outcome of an appeal then pending before this Court in proceedings, namely, Martin -v- An Bord Pleanala & Others (Record Nos. 531 and 535/2004). The Board, the State and Indaver were parties to the latter proceedings. The reasons given at the time of the adjournment of these proceedings on the application of the State was that in the Martin case issues had been raised as to whether the State had correctly transposed the EIA Directive and those issues would be determinative of some of the issues in the current proceedings. It is not clear whether the appellants in the two current sets of proceedings acquiesced to that adjournment but in any event, the adjournment having been granted, they did not appeal against the adjournment and they appeared to have been then content to await the determination of the issues, as they arose, in the Martin appeal. On 10 th May 2007 this Court gave its judgment in the Martin case (2007 2 ILRM 401). The Court held that the particular grounds upon which it had been claimed that the EIA Directive had not been properly transposed into Irish law were not well founded and dismissed the challenge to the validity of the planning decision given in that case.
Following the decision of this Court in the Martin case, steps were taken to bring on these cases for hearing, both proceedings being re-entered in the High Court list by Indaver on 23 rd July 2007. The appellants in both sets of proceedings envisaged that they would proceed to hearing on the basis that the decision of this Court in the Martin case would be binding to the extent that it governed issues in this case concerning the transposition of the Directive into national law.
The appellants altered their position and decided to seek the adjournment of these cases on learning, in October 2007, that the Commission had decided to institute proceedings against Ireland pursuant to Article 226 of the Treaty in connection with an alleged inadequate transposition of the Directive into Irish law. The appellants have referred to the relevant portion of a press release issued by the Commission appropos that decision which was as follows: " The Commission considers that because of weaknesses in Irish legislation splitting decision making between Irish planning authorities and Ireland's Environmental Protection Agency, there are risks that outcomes required by the [EIA Directive] will not always be achieved. When decisions are being taken on proposed incinerators and other industrial projects, for example, Irish rules do not guarantee the interaction such as those between controlled measures and the landscape will be adequately assessed and taken into account. In its response to the Commission's June 2007 final written warning, Ireland strongly defends its project approval procedure."
The appellants state that they had become aware that a reasoned opinion had been notified by the Commission to the State on or about the 29 th June 2007 and that the State had responded to same and the Commission, having considered the response, had decided to institute proceedings pursuant to Article 226.
Because the Commission had taken a decision to bring proceedings against the State for alleged inadequate transposition of the EIA Directive into national law the appellants in these proceedings applied to the High Court to have the proceedings adjourned pending the outcome of proceedings brought by the Commission although no proceedings have actually been commenced by the Commission.
The general basis on which the appellants have sought, in the High Court initially and in this Court on appeal, an order adjourning these proceedings is the need to avoid a potential conflict of decisions between our Courts in this case and a decision of the Court of Justice if the Commission were to succeed in its proposed proceedings.
The appellants initially took steps to obtain a copy of the Reasoned Opinion of the Commission of 29 th June 2007 but did not pursue it to a final conclusion when, apparently, Counsel for the State accepted that the issues which were raised in the Reasoned Opinion or Opinions of the Commission included issues which are the same as the transposition issues made by the appellants in these proceedings. It transpired in the course of this appeal that the Reasoned Opinion of 29 th June 2007 was not treated as a stand alone Opinion by the Commission for the purposes...
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