Maher v an Bord Pleanála

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Kelly
Judgment Date07 May 1999
Neutral Citation[1999] IEHC 155
Date07 May 1999

[1999] IEHC 155

THE HIGH COURT

No. 316JR/1997
MAHER v. AN BORD PLEANALA & ORS

BETWEEN

THOMAS MAHER
APPLICANT

AND

AN BORD PLEANALA
RESPONDENT

AND

THOMAS McEVOY AND THE COUNTY COUNCIL OF COUNTY KILKENNY NOTICE PARTIES

Citations:

EEC DIR 85/337 ART 2(1)

EEC DIR 85/337 ART 4(1)

EEC DIR 85/337 ANNEX I

EEC DIR 85/337 ART 4(2)

EEC DIR 85/337 ART 5

EEC DIR 85/337 ART 6

EEC DIR 85/337 ART 7

EEC DIR 85/337 ART 8

EEC DIR 85/337 ART 9

EEC DIR 85/337 ART 10

EEC DIR 85/337 ANNEX II PARA 1(f)

EEC DIR 85/337 ANNEX III

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHED 2 PARA 2

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHED 2 PARA 3

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 32

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)(d)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 24

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 24(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 24

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHED 1 PART I

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHED 1 PART II PARA 1(e)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 56(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 56(1)

PINNER EVERETT 1969 1 WLR 1266

RAHILL V BRADY 1971 IR 69

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

SHANNON REGIONAL FISHERIES BOARD V BORD PLEANALA 1994 3 IR 449

NATHAN V BAILEY GIBSON LTD 1998 2 IR 162

VON COLSON & KAMANN V LORD NORDRAGIN WEST 1984 2 ECR 1891

CRAIES ON STSTUTE LAW 7ED

Synopsis

Environmental Law

Environmental; interpretation of statutory instrument; judicial review; application for order of certiorari to quash decision of respondent whereby notice party was granted planning permission for pig unit; spreading of pig slurry in vulnerable area; habitat for fresh water pearl mussel; spawning ground for brook lampreys; whether the proposed development exceeded the thresholds set for developments of that class in par. 1(e) of Part II of the First Schedule to the E.C. (Environmental Impact Assessment) Regulations, 1989; whether submission of environmental impact statement was mandatory; interpretation of thresholds; whether the term "sow" included progeny; whether a sow's progeny are encompassed within the pig units assigned to a sow under the Regulations; whether court should apply literal or purposive interpretation; E.C. Directive 85/337/EEC; E.C. (Environmental Impact Assessment) Regulations 1989 Held: Respondent had misinterpreted the threshold requirement in par. 1(e) of Part II of the First Schedule to the 1989 Regulations; environmental impact statement was required for the proposed development; order of certiorari granted Maher v. An Bord Pleanála - High Court: Kelly J. - 07/05/1999 [1999] 2 ILRM 198

While the interpretation by the respondent of the threshold requirement in paragraph 1(e) of Part 11 of the First Schedule to the Local Government (Planning and Development) Regulations 1989 was legally incorrect, it followed that an environmental impact statement was required for a proposed development by the first notice party to build a 200 sow integrated pig unit at Ballyconra, Ballyragget, Co. Kilkenny. The proposed development exceeded the threshold for developments of that class. As there was no environmental impact statement and no environmental impact assessment was carried out the planning permission granted by the respondent for the development was fatally flawed. It followed that the applicant was entitled to an order of certiorari directing that the planning permission be quashed. The High Court so held in granting the relief claimed.

1

JUDGMENT of Mr Justice Kelly delivered the 7th day of May 1999.

INTRODUCTION
2

On the 20th June. 1997 the Respondent (the Board) granted the first named Notice Party (Mr McEvoy) planning permission for a 200 sow integrated pig unit at Ballyconra, Ballyragget, Co Kilkenny. It is common case that in making this decision the Board did not require the submission or an Environmental Impact Statement (EIS) by Mr McEvoy. Neither did it conduct an Environmental Impact Assessment (EIA) prior to reaching its decision to grant the planning permission.

3

In these proceedings the Applicant seeks an Order of Certiorari to quash this decision of the Board. He does so on two alternative bases.

4

First, he says that there was a mandatory obligation imposed upon the Board to have an EIS submitted and to conduct an EIA pursuant to the thresholds set by the European Communities (Environmental Impact Assessment) Regulations 1989 SI 349) (the 1989 regulations).

5

If he is incorrect in this assertion he says that in the light of the nature, size and location of the proposed development then pursuant to EC directive 85,337 or in the light of the likely significant effects on the environment of the proposed development then pursuant to Article 56(2) of the Local Government (Planning and Development) Regulations 1994 (SI 86) (the 1994 regulations) both an EIS and EIA should have been conducted.

6

The Applicant contends that a failure on the part of the Board to insist upon the submission of an EIS and a failure to conduct an EIA renders its decision bad in law and that it ought to be quashed.

JUDICIAL REVIEW
7

On the 20th October, 1997 Moriarty J. granted leave to commence these proceedings. The Board did not oppose the application and accepted that a "substantial ground" within the meaning of Section 82(3B)(a) of the Local Government (Planning and Development) Act. 1963exists as to the interpretation and application of the relevant regulatory provisions.

THE APPLICANT
8

The Applicant is a principal teacher in a primary school. He resides together with his family in Ballyragget in the near vicinity of the proposed development.

9

He is a member of a group called the Noreside Environmental Protection Group (the group). The group objected to the second named Notice Party (the Counts-Council) when Mr McEvoy first sought permission for the development. The group was one of the appellants against the grant of the permission by the County Council. The board does not take any issue with the Applicant's locus standi and it accepts that the issues raised in these proceedings are substantially the same as those raised by the group in its appeal to the Board.

MR McEVOY
10

Mr McEvoy made previous applications for planning permission for similar developments in the same locality. These applications were refused. However, these applications related to a different site in a different townland and they also included different spread grounds for the slurry likely to be generated by the proposed development. It does not appear to me that what happened on those occasions or the attitude adopted by the Board in relation to them has any bearing on the legal questions in suit. Neither do I consider to be relevant the fact that Mr McEvoy previously made an application for planning permission for a development on the precise site of the development the subject of these proceedings and withdrew his application before any decision was reached by the County Council.

11

This application falls to be considered on its own merits in the light of the relevant statutory provisions. As the judgment proceeds it will become apparent that the Board has not been consistent in its interpretation and application of the relevant statutory provisions. Again that is not a factor which has a bearing upon this application since it tails to me to decide whether or not in the present case the Board adopted the correct approach or not.

THE LOCALITY
12

The Applicant contends that the proposed development includes spreading sites for pig slurry adjacent to and in the vicinity of the waters of the river More and its tributary the Grange river. He says that these waters are recognised as important spawning grounds for brook lampreys as well as being a habitat for the fresh water pearl mussel. He contends that both of these species are protected under the EU Habitats directive. He says that the site lies in a nature heritage area. The slurry generated by the development will be spread in an area overlying a major aquifer. It is a kirstified aquifer and has been classified as being extremely vulnerable. He says that this classification indicates that the time taken for a pollutant to reach the water table would be less than one week. In an area of low vulnerability the time taken would be in excess of twenty years. He also contends that the development will be sited in an area which was already seriously polluted and it must therefore have a significant effect on the environment posing a threat to the life, health and well-being of the inhabitants of the area and the flora and fauna of the locality.

13

He points out that the group requested the board to conduct an oral hearing prior to giving its decision. That request was refused on the 20th March, 1997.

14

The Applicant contends that in these circumstances (which were more fully outlined in the submissions made to the Board) it must have been clear to the Board that this development was likely to have significant effects on the environment which required further investigation in the form of an EIA prior to the giving of consent to the project.

LEGISLATIVE FRAMEWORK
15

EC Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment imposed a requirement on Member States to implement measures to ensure that an environmental impact assessment is carried out by the appropriate competent authority before...

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