MARTIN v Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 24 July 2002
• Neutral Citation: [2002] IEHC 82
• Court: High Court
• Docket Number: No.83 JR/2002
• Date: 24 July 2002

[2002] IEHC 82

THE HIGH COURT

O'Sullivan J.

No.83 JR/2002

MARTIN v. BORD PLEANALA & ORS

BETWEEN

ERIC MARTIN

APPLICANT

AND

AN BORD PLEANÁLA

FIRST NAMED RESPONDENT

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND NAMED RESPONDENTS

AND

INDAVER IRELAND LIMITED

NOTICE PARTY

Citations:

GORDON V DPP & MCGUINNESS UNREP SUPREME 7.6.2002

RYANAIR LTD V AER RIANTA CPT UNREP KELLY 25.1.2001 (EX-TEMPORE)

VON COLSON & ANOR V LAND NORDRHEIN-WESTFALEN 1984 ECR 1891 PARA 26

REWE HANDELSGESELLSCHAFT NORD MBH V HAUPTZOLLAMT KIEL 1981 ECR 1805

O'NEILL V RYAN 1990 2 IR 200

O'NEILL V RYAN 1993 ILRM 557

REWE-ZENTRAL FINANZEG V LANDWIRTSCHAFSKAMMER FUR DAS SAARLAND 1976 ECR 1989

PESCA VALENTIA LTD V MIN FOR FISHERIES 1985 IR 195

CAMPUS OIL LTD V MIN FOR INDUSTRY 1983 IR 82

AMERICAN CYAMANID V ETHICON LTD 1975 AC 396

EEC DIR 97/11

EEC DIR 85/337 ART 2

EEC DIR 85/337 ART 3

EEC DIR 85/337 ART 6(2)

EEC DIR 85/337 ART 1

PLANNING & DEVELOPMENT ACT 2000 S37

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S98

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S19

R V ASSOCIATION OF FUTURES BROKERS & DEALERS LTD & ANOR EX-PARTE MORDENS LTD 1991 3 ADMIN LR 254

R V BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE EX-PARTE NONCYP LTD 1988 3 WLR 827

FISHERIES (AMDT) ACT 1983

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Interlocutory injunction

Judicial Review - Whether stay on appeal hearing should be granted pending determination of judicial review proceedings - Whether serious issue to be tried - Whether damages an adequate remedy - Balance of convenience - Transposition of Council Directives - Whether properly transposed into domestic law - Environmental Protection Agency Act, 1992, section 98 - Planning and Development Act, 2000, section 37 - Council Directives 85/337/EEC and 97/11/EC (2002/83JR - O'Sullivan J - 24/07/2002)

Martin v An Bord Pleanala - [2002] 2 IR 655 - [2003] 1 ILRM 257

INJUNCTION

Interlocutory

Judicial Review - 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 section 98 - Planning and Development Act, 2000 section 37 - Council Directives 85/337/EEC and 97/11/EC ( 2002/83JR - O'Sullivan J - 24/7/2002)

Martin v An Bord Pleaná la - [2002] 2 IR 655 - [2003] 1 ILRM 257

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 normal procedures as set out in Campus Oil should be applied, namely whether there was a serious issue to be tried and then whether damages would be an adequate remedy and whether the balance of convenience would favour the granting of relief.

1 JUDGMENT of O'Sullivan J. delivered 24th of July 2002 .

Introduction

2 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.

3 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.

4 The first named respondent has intimated, in addition, an intention to hold an oral hearing into the appeals before it.

5 By application made to McKechnic J. on 18th of February 2002 the applicant applied, ex parte, 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.

6 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

7 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;

8 2 (1) All relevant considerations are not considered before the go-ahead is given for construction of the incinerator as required by the directives, and

9 3 (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

10 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.

11 I agree. I do not think the applicant is debarred from applying to court on this basis.

Applicable principles

12 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.

13 Against this it was submitted that there is in fact a difference between the threshold standard required for the granting of leave to bring...