Martin v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 January 2018
• Neutral Citation: [2018] IEHC 4
• Docket Number: 2017 No. 104 JR
• Court: High Court
• Date: 11 January 2018

[2018] IEHC 4

THE HIGH COURT

Barrett J.

2017 No. 104 JR

Between

VAL MARTIN

Applicant

- and -

AN BORD PLEANALA

Respondent

- and -

EIRGRID PLC

Notice Party

Energy - Environment, Transport and Planning - S.182B & s. 50 of the Planning and Development Act ('PDA'), 2000 - Environmental Impact Statement - Directive 2011/92/EU ('EIA Directive') - Public interest

Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent ('Board') for granting permission for the construction of an interconnector to the notice party. The applicant contended that the decision was in breach of various European Regulations and Directives.

Mr. Justice Max Barrett refused to grant the desired relief to the applicant. The Court held that it should not have granted leave under s. 50 of the PDA unless it had been satisfied that there were substantial grounds for contending that the decision or act concerned was invalid or ought to have been quashed. The Court relied on the decision of the Superior Court in the case of McNamara v. An Bord Pleanala [1995] 2 ILRM 125 and others noting that the grounds stated by the applicant were unreasonable and without any substance.

JUDGMENT of Mr Justice Max Barrett delivered on 11th January, 2018.

TABLE OF CONTENTS

(Numbers in square brackets are paragraph numbers)

A. INTRODUCTION [1]

I. Background. [1]

II. Some General Points Arising [2]

(i) Pleadings. [2]

(ii) Government Policy and An Bord Pleanála. [7]

(iii) Strategic Environmental Assessment and An Bord Pleanála. [8]

(iv) PCIs and An Bord Pleanála. [9]

(v) Delay. [11]

(vi) Collateral Attack. [15]

III. Five Themes. [16]

B. THE EVIDENCE BEFORE THE COURT [23]

IV. Implementation Programme [23]

V. Strategic Environmental Assessment [31]

VI. Planning Report [51]

VII. Public and Landowner Consultation Report [54]

VIII. Environmental Impact Statement [62]

(i) Introduction. [62]

(ii) NREAP. [63]

(iii) Alternatives. [68]

IX. Response to Issues Raised in Submissions/Observations [71]

C. APPLICABLE LEGAL PRINCIPLE [76]

X. Burden of Proof [76]

XI. Standard of Proof [77]

XII. Rectification of Perceived Shortcomings in SEA [78]

(i) Introduction. [78]

(ii) Križan v. Slovakia ( Case C-416/10). [79]

(iii) Kavanagh v. Ireland [2007] IEHC 296. [80]

(iv) Ratheniska v. An Bord Pleanála [2015] IEHC 18. [82]

(v) Genovaitè Valèiukiené v. Pakruojo rajono savivaldybè ( Case C-295/10). [84]

D. THE UNECE COMPLIANCE COMMITTEE, ETC. [87]

XIII. The UNECE Compliance Committee. [87]

XIV. Project-Splitting [88]

E. CONCLUSION [89]

A. INTRODUCTION

I. Background

1 Mr Martin is a farmer and environmental campaigner who has, since 2008, been involved in a campaign of opposition against Ireland's National Renewable Energy Action Plan. The within proceedings comprise a so-called "telescoped" application by Mr Martin for leave to bring, and for substantive relief by way of, judicial review of a decision of An Bord Pleanála made on 19th December, 2016, to grant planning approval to EirGrid plc under s.182B of the Planning and Development Act 2000, as amended (the "Act of 2000"), for the proposed North-South 400kV Interconnector Development, a development which has previously been the subject of comprehensive consideration by the court in its decision in North East Pylon Pressure Campaign Ltd & anor v. An Bord Pleanála and ors [2017] IEHC 338 (the " North East Pylon case").

II. Some General Points Arising

(i) Pleadings.

2 Although Mr Martin is a lay-litigant and thus deserving of some indulgence when it comes to the formalities of pleading his case, the court cannot but note that there are some very significant deficiencies in his pleadings.

3 First, the statement of grounds and his written submissions (which are not easy to follow) largely comprise generic statements of law without any particular connection to any legal point. Regrettably, the court must find that his pleadings fall well short of that particularity required under O. 84, r.20(3) of the Rules of the Superior Courts 1986, as amended. The court recalls in this regard the following observations of Murray C.J. in A.P. v Director of Public Prosecutions [2011] 2 ILRM 100,112:

'In the interests of the good administration of justice it is essential that a party applying for relief by way of judicial review set out clearly and precisely each and every ground upon which such relief is sought. The same applies to the various reliefs sought.

It is not uncommon in many such applications that some grounds, and in particular the ultimate ground, upon which leave is sought are expressed in the most general terms as to the alleged frailties of the decision or other act being impugned, rather in the nature of a rolled up plea, and alluding generally to want of legality, fairness or constitutionality. This can prove to be quite an unsatisfactory basis on which to seek leave or for leave to be granted particularly when such a ground is invariably accompanied by a list of more specific grounds.'

4 A.P. was among the decisions recently considered by Cregan J. in Malone v Mayo County Council [2017] IEHC 300, under the heading 'Requirement to plead a judicial review with precision', in deciding to set aside leave to apply for judicial review, after (it is clear from paras.2-4 of his judgment) Cregan J. had tried repeatedly to facilitate the applicant in properly pleading his case.

5 Second, many of the provisions of European Union law to which reference is made by Mr Martin are not applicable in the context of a challenge of a decision to An Bord Pleanála.

6 Third, Mr Martin's complaints go well beyond his pleadings, even extending to decisions of bodies not before the court, e.g., the adoption of the National Renewable Energy Action Plan (NREAP) submitted by Ireland to the European Commission in July 2010 and the adoption of the list of projects of common interest (PCIs) by the European Commission pursuant to the PCI Regulation, i.e. Regulation (EU) No 347/2013 of the European Parliament and of the Council of 17th April, 2013 on guidelines for trans-European energy infrastructure (O.J. L115, 25.4.2013, 39).

(ii) Government Policy and An Bord Pleanála.

7 It is not the function of An Bord Pleanála to review government policy or to consider public submissions in relation to government policy. Indeed the court cannot but recall, in this regard, s.143 of the Act of 2000, and the provision at sub-section (1) of same that 'The Board shall, in performing its functions, have regard to', inter alia, ' (a) the policies and objectives for the time being of the Government, a State authority, the Minister, planning authorities and any other body which is a public authority whose functions have, or may have, a bearing on the proper planning and sustainable development of cities, towns or other areas, whether urban or rural'. The court references the role of An Bord Pleanála, not because of some transgression that it perceives to arise in this regard on the part of An Bord Pleanála, but because, with respect, Mr Martin's application appeared to the court to be informed by a want of understanding of the foregoing.

(iii) Strategic Environmental Assessment and An Bord Pleanála.

8 None of the Strategic Environmental Assessment ("SEA")-related points made by Mr Martin concerning the role of An Bord Pleanála have any legal validity. An Bord Pleanála has no role in SEA and matters relating to SEA have no relevance to an individual planning application. It is not the function of An Bord Pleanála to determine whether a proper SEA has been carried out for the purposes of the SEA Directive, i.e. Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (O.J. L197, 21.07.2001, 30). As is clear from the SEA Directive, and the related national regulations (the European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004), SEA does not take place in the context of a specific development. Much of Mr Martin's application appeared to the court, with respect, to be informed by a want of understanding of the foregoing.

(iv) PCIs and An Bord Pleanála.

9 It is not the function of An Bord Pleanála, whether as a national competent authority or otherwise, to review the decision of the European Council and Parliament to adopt the PCI Regulation or to review (let alone accept public submission concerning) whether a particular project has correctly been adopted for the purposes of the Regulation. As to what is the role of An Bord Pleanála in this regard, the following text from the written submissions of counsel for An Bord Pleanála provides a succinct yet informative explanation, and is respectfully adopted by the court:

[T] he [PCI] Regulation establishes a methodology whereby "Projects of Common Interest" are identified. There is no dispute but that the North South Interconnector has been adopted at the European level as such a PCI.... Article 8 [of the PCI Regulation] provides that "By 16 November 2013, each Member State shall designate one national competent authority which shall be responsible for facilitating and coordinating the permit granting process for projects of common interest." [In Ireland, An Bord Pleanála has properly been so designated.] The function of the competent authority is...to act as a clearing-house or framework coordinator for the development consent process. It is not a role that requires any substantive decisions to be taken regarding the acceptability of a proposed development. The role of the competent authority is totally different from the "project promoter" which is defined in Article 2(6) [of the PCI Regulation] and which, in this case, is EirGrid....[T] he adoption of [a]... PCI [as a PCI] is...