Martin v an Bord Pleanála & Others
| Jurisdiction | Ireland |
| Judgment Date | 24 July 2002 |
| Date | 24 July 2002 |
| Docket Number | [2002 No. 83 JR] |
| Court | High Court |
THE HIGH COURT
[2002 No. 83 JR]
Judicial Review - Interlocutory injunction - Whether stay on appeal hearing should be granted pending determination of judicial review proceedings - Whether serious issue to be tried - Whether damages adequate remedy - Balance of convenience - Planning and environmental law - Transposition of Council Directives - Whether properly transposed into domestic law - Environmental Protection Agency Act, 1992 (No 7), section 98 - Planning and Development Act, 2000 (No 30), section 37 - Council Directives 85/337/EEC and 97/11/EC.
Facts: the applicant was a member of an unincorporated body known as the No Incineration Alliance which body appealed the decision of Meath County Council to grant planning permission to the notice party for the construction of an incinerator to the first respondent. The first respondent then published a notice inviting submissions from the public in relation to the said appeal as part of its environmental impact assessment. The notice requested submissions on matters other than the risk of environmental pollution as this was left to a separate licensing process overseen by the Environmental Protection Agency. The applicant had previously obtained leave, ex parte, to apply by way of judicial review for a number of reliefs against the first respondent on the grounds, inter alia, that the system operated by the first respondent failed to implement the relevant European directives in that all relevant considerations would not be considered before the incinerator was given the go-ahead and that some environmental effects would not be considered at all. He then applied by way of motion on notice for a stay on any further consideration by the first respondent of the appeals pending determination of the judicial review proceedings.
Held by O’Sullivan J in refusing to grant the stay sought that neither the balance of convenience nor the assertion that damages would not be an adequate remedy was made out by the applicant in his application for a stay on the determination of the appeal hearing by the first respondent pending determination of judicial review into the legality of the procedures adopted by the first respondent in relation to an appeal hearing into the development of an incinerator near the applicant's home. In any such application for interlocutory injunctive relief, the procedures to be applied were for the court to examine whether there was a serious issue to be tried then whether damages would be an adequate remedy and finally whether the balance of convenience would favour the granting of relief.
JUDGMENT of O’Sullivan J. delivered 24th of July 2002.
Introduction
The applicant is a resident of Duleek Co. Meath and challenges the validity of the statutory procedures, and in particular the intended holding of an oral hearing by the first named respondent which is the statutory planning appeals authority, whereby it is processing appeals to it by several parties against a decision of Meath County Council as local planning authority to grant, subject to conditions, planning permission for the construction by the notice party of an incinerator near Duleek. In addition to getting planning permission the notice party will also require an integrated pollution licence from the Environmental Protection Agency before commencing the activity of waste processing at the plant. The applicant is a member of an
unincorporated body known as the No Incineration Alliance which body has appealed the planning decision of Meath County Council to the first named respondent. The applicant is not himself an appellant in his own right as an individual apart from being a member of the No Incineration Alliance.
On the 28th of December 2001 the first named respondent published a notice inviting submissions from the public in relation to the said appeal as part of its environmental impact assessment of the proposed development. This assessment is intended to be carried out under domestic statutes and regulations incorporating the relevant European directives to which I will refer in more detail at a later point. At this point it is sufficient to note that the public notice requested submissions or observations from the public to matters other than the risk of environmental pollution from the activity.
The first named respondent has intimated, in addition, an intention to hold an oral hearing into the appeals before it.
By application made to McKechnie J. on 18th of February 2002 the applicant applied, exparte, for leave to apply by way of judicial review for a number of reliefs including an order of certiorari quashing the published notice of the first named respondent, a declaration that the procedures proposed by the first named respondents are in conflict with the relevant environmental impact assessment directives, a declaration that the latter have not been correctly transposed into Irish domestic law and for a stay on any further consideration by the first named respondent of the appeals pending determination of these proceedings.
Liberty was granted on the said date by McKechnie J. to seek the aforesaid reliefs but in relation to the application for a stay he ruled that the same should be made by way of motion on notice to the parties to the action. Accordingly a motion was issued on the 26th of April 2002 and the matter came on for hearing before me and this is my reserved judgment on that application.
The Challenge
The key challenge to the first respondents’ procedures is that by splitting consideration of the effect of a development such as an incinerator between the first respondent (which deals only with planning considerations) and the Environmental Protection Agency (which deals only with environmental/pollution considerations) the system operated by the first named respondent fails to implement the relevant European directives in two key respects namely;
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(1) All relevant considerations are not considered before the go-ahead is given for construction of the incinerator as required by the directives, and
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(2) Some environmental effects - especially those which can arise from the interaction between planning and environmental effects - are not considered at all.
Preliminary points
1. Estoppel
It is submitted that the applicant is a member of an unincorporated body which is itself a full scale appellant to the first named respondent which has, I am informed, requested an oral hearing of that appeal. He cannot, it is said, associate himself by membership with an endorsement of the procedures on the one hand, and on the other challenge them in court. For the applicant it is submitted that there is nothing inconsistent with this, he is entitled to appeal or be associated with an appeal and also entitled to be assured that the appeal will be conducted in accordance with European law. He challenges the publication of the notice and the proposed oral hearing because it is now clear that these procedures will not be so conducted.
I agree. I do not think the applicant is debarred from applying to court on this basis.
Applicable principles
The applicant’s counsel suggested that because there was no application to set aside the leave granted to him to bring judicial review proceedings that therefore the court must treat the
application as comprising automatically, as it were, a serious issue to be tried and move on immediately to consider the balance of convenience given, as submitted, that the question of damages does not really arise. Furthermore the application is one founded on an assertion of European rights which should, therefore, be accorded special weight by the court even on an interlocutory application.
Against this it was submitted that there is in fact a difference between the threshold standard required for the granting of leave to bring judicial review proceedings on the one hand, and on the other the test at interlocutory injunction stage as to whether there is a serious issue to be tried. It was further submitted that an applicant seeking to assert rights which originate in European law who seeks interlocutory relief is to be dealt with on the same basis as any other applicant for interlocutory relief.
With regard to the first point I cannot agree that just because there has been no application to set aside the order granting leave to bring judicial review proceedings that therefore on this application for interlocutory relief, it must be assumed without further examination of the applicant’s case that he has established a serious issue to be tried.
In the first place I note the determination of Fennelly J. delivering the judgment of the Supreme Court in Gordon -v- Director of Public Prosecutions & Anor. Unreported, Supreme Court, Fennelly J., 7th June, 2002, at p. 7 where he says:
“It follows that the applicant for the order to set aside carries a heavier burden than the original applicant for leave. The latter has to show that he has an arguable case. The former has to establish that leave should not have been granted, a negative proposition. It is both logical and convenient to the administration of justice that this should be so. The leave procedure was intended to provide a filtering process, a protection against frivolous or vexatious applications.”
In that case the Supreme Court set aside an order of Kearns J. in tum setting aside an order of Butler J. granting leave to apply for judicial review by way of certiorari. He held that it had not been shown that the order of Butler J. plainly should not have been made.
Furthermore I note and agree with the...
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