M28 Steering Group v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IEHC 929
• Docket Number: [2018 No. 708 JR]
• Court: High Court
• Date: 20 December 2019

BETWEEN

M28 STEERING GROUP

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CORK COUNTY COUNCIL

NOTICE PARTY

[2019] IEHC 929

MacGrath

[2018 No. 708 JR]

THE HIGH COURT

Environmental Impact Statement – Directive 2011/92/EU – Development – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the respondent had been in breach of its obligations under Directive 2011/92/EU

Facts: The notice party, Cork County Council, on behalf of the Roads Authority, proposed to upgrade 12.5 kilometres of the existing N28 national road. Part of this road development was along the line of the existing N28, but a substantial part of it was offline. The scheme was entitled “The Cork County Council M28 Cork Ringaskiddy Project Motorway Scheme, Protected Road Scheme and Service Area Scheme, 2017”. The scheme was made by the Roads Authority under s. 47 of the Roads Act 1993 (as amended which includes part XAB of the Planning and Development Acts 2000-2016) and it required the approval of the respondent, An Bord Pleanála, under s. 49. By order dated 29th June, 2018, the Board granted approval and in doing so adopted the recommendations of the appointed inspector, Ms Kennelly, including the proposed conditions. The applicant, M28 Steering Group, an unincorporated environmental Non-Governmental Organisation, applied to the High Court seeking the following orders: (1) an order of certiorari quashing the decision of the respondent dated 29th June, 2018; (2) a declaration that the Board erred in national and EU law in failing to assess the environmental impacts of the proposal as a whole, or cumulatively (or in combination with) other projects; (3) a declaration that the Board erred in law in failing to apply Directive 2014/52/EU which amended Directive 2011/92/EU; (4) in the alternative, a declaration that the Board erred in law in accepting the application made in respect of s. 51 of the Act on the 15th May, 2017; (5) in the further alternative, if the application was validly made pursuant to the 2011 Directive, the Board failed to carry out an adequate environmental impact assessment as required by Article 3 and/or Article 8 of that Directive, on the assessment of the effects of certain public and private projects on the environment (The Consolidated Environmental Impact Assessment (EIA Directive)) and/or s. 171A of the Planning and Development Act 2000, as amended; (6) a declaration that the Board erred in law and acted contrary to fair procedures and natural and constitutional justice and acted in breach of EU law and the Aarhus Convention in failing to make available a copy of the planning file pursuant to a request made on the 27th July, 2018 which request was not complied with until the 16th July, 2018. An application to amend the pleadings was sought and granted by Barniville J on 19th September, 2018. In an amended statement of grounds the applicant also claimed a declaration that the Board failed to properly carry out an Appropriate Assessment in respect of the proposed development.

Held by MacGrath J that the Environmental Impact Statement was required to be, and was, conducted in accordance with the requirements of the 2011 Directive. MacGrath J held that the applicant had not established that the respondent had been in breach of its obligations under the 2011 Directive, or that the approval of the scheme or the granting of the consent to carrying out the development were invalid for the reasons advanced. MacGrath J was not satisfied that the applicant had established that the project was not properly assessed or that the combined in combination effects of the road and the quarry were not adequately addressed and assessed.

MacGrath J held that, in the circumstances, the applicant had failed to discharge the onus of proof which lay on it and that the reliefs sought must therefore be refused.

Reliefs refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 20th day of December, 2019.

Introduction

1 The applicant is an unincorporated environmental Non-Governmental Organisation ( “N.G.O.”) and has its office at Rochestown, County Cork.

2 The notice party, Cork County Council ( “the Council”) on behalf of the Roads Authority, proposes to upgrade 12.5 kilometres of the existing N28 national road. Part of this road development is along the line of the existing N28, but a substantial part of it is offline. The scheme is entitled “The Cork County Council M28 Cork Ringaskiddy Project Motorway Scheme, Protected Road Scheme and Service Area Scheme, 2017”. The scheme was made by the Roads Authority under s. 47 of the Roads Act, 1993 (as amended which includes part XAB of the Planning and Development Acts, 2000-2016 and hereinafter referred to as “the Act”) and it requires the approval of An Bord Pleanála (hereinafter “the Board”) under s. 49. Before approving the scheme, a public inquiry must be held and objections and observations considered. By virtue of the provisions of s. 51 of the Act, the consent of the Board must be obtained prior to the carrying out of the scheme. The submission of an Environmental Impact Statement ( “EIS”) is mandatory by virtue of the provisions of s. 50. The Notice Party sought the consent of the respondent for the proposed development. An EIS was prepared and submitted, together with a Natura Impact Statement ( “NIS”) which was contained in the EIS and was prepared for the purposes of Article 6 of the Habitats Directive.

3 The application for the consent was made on 15th May, 2017. The application pursuant to s. 49 was made on the 2nd June, 2017 and included particulars of compulsory purchase requirements, restrictions of access/egress and rights of way to be extinguished. A mapping error was discovered by the notice party in relation to the proposed extinguishment of certain rights of way and a corrected map/plan was submitted, following re-advertisement, on 6th July, 2017.

4 Part of the land being acquired includes a portion of the existing Raffeen Quarry (hereinafter “the quarry”). The quarry enjoys the benefit of a planning permission granted in 2008. It is proposed that material from the quarry will be used in the construction of the road. This is controversial as it is contended by the applicant that it will not be possible to extract materials at the required rate without the terms of the quarry planning permission being contravened, that the extraction of the materials at the rate required has not been the subject of an Appropriate Assessment ( “AA”) and that the environmental impacts of the road and an operational quarry with such levels of extraction require to be considered and assessed as one project, an exercise which has not been carried out. The timing of the application for consent is also controversial, having been made on the eve of the coming into effect of a new 2014 EU Directive, which altered the requirements for such application for consent.

5 The Board appointed an inspector, Ms. Mary Kennelly, to report on the proposed development. Objections were raised by a number of parties, including the applicant. An oral hearing was convened. This took place in November and December, 2017. The Board also appointed a traffic consultant who reported on the 1st May, 2018. The inspector considered the proposed development and recommended that consent be given subject to several conditions. She concluded that subject to the mitigation measures proposed on the conditions attached to the permission, the effects of the proposed road development on the environment would be acceptable.

6 By order dated 29th June, 2018, the Board granted approval and in doing so adopted the recommendations of the inspector, including the proposed conditions. The decision of the Board is challenged in these proceedings.

The Pleadings

7 The applicant, inter alia, seeks the following orders:

(1) An order of certiorari quashing the decision of the respondent dated 29th June, 2018;

(2) A declaration that the Board erred in national and EU law in failing to assess the environmental impacts of the proposal as a whole, or cumulatively (or in combination with) other projects. In particular, it is alleged that the respondent failed to properly or at all consider the full effects of the development in terms of the extraction of materials from the quarry required to give effect to the development.

(3) A declaration that the Board erred in law in failing to apply Directive 2014/52/EU ( “the 2014 Directive”) which amended Directive 2011/92/EU ( “the 2011 Directive”). In the alternative a declaration that the Board erred in law in accepting the application made in respect of s. 51 of the Act on the 15th May, 2017. The application was premature, incomplete and did not meet the requirements of National and European law. As such, the application was invalid and ought to have been rejected by the Board.

(4) In the further alternative, if the application was validly made pursuant to the 2011 Directive, the Board failed to carry out an adequate EIA as required by Article 3 and/or Article 8 of that Directive, on the assessment of the effects of certain public and private projects on the environment ( “The Consolidated Environmental Impact Assessment (EIA Directive)”) and/or s. 171A of the Planning and Development Act 2000, as amended.

(5) A declaration that the Board erred in law and acted contrary to fair procedures and natural and constitutional justice and acted in breach of EU law and the Aarhus Convention in failing to make available a copy of the planning file pursuant to a request made on the 27th July, 2018 which request was not complied with until the 16th July, 2018. This ground was not particularly advanced at hearing.

8 After the Board had made its decision, the applicant sought a copy of the quarry planning file and this was supplied. An application to amend the pleadings was sought and granted by Barniville J. on 19th...