Mary Harriet Madden v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 04 May 2022
• Neutral Citation: [2022] IEHC 257
• Court: High Court
• Docket Number: Record No. 2020/373JR

Between:

Mary Harriet Madden

Applicant

and

An Bord Pleanála

Respondent

and

James McCarthy and Martin J Fahy

Notice Parties

[2022] IEHC 257

Record No. 2020/373JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Irrationality – Applicant seeking judicial review – Whether the respondent’s decision refusing planning permission was irrational

Facts: The applicant, Ms Madden, in judicial review proceedings, sought to challenge a decision of the respondent, An Bord Pleanála (the Board), of 27 February 2020 refusing planning permission for the construction of a single dwelling, wastewater treatment system and associated works at Roscam Townland in Galway (the proposed development). The applicant’s statement of grounds advanced six grounds of challenge, of which four could be regarded as irrationality/unreasonableness grounds along with a related ground that the Board failed to have regard to all relevant documentation. The other, self-standing, ground was that the Board made a legal error in carrying out a Stage 2 Appropriate Assessment conducted pursuant to Article 6(3) of the Habitats Directive. The applicant contended that there was a manifestly insufficient evidential basis for the findings of the Board’s Inspector that there were deficiencies in the Natura Impact Statement (NIS) prepared by the applicant’s expert ecologists as part of the Appropriate Assessment and submitted in support of her application. The applicant’s case was that the Inspector’s irrational findings and the separate legal error at stage 2 went to jurisdiction and the refusal decision must accordingly fall.

Held by the High Court (Ferriter J) that there was a rational premise for the conclusion reached by the Inspector as to the baseline data in the NIS being flawed as regards impact on birds and that premise was squarely based on the material before the Board. Ferriter J held that it was clear from the terms of the Inspector’s report that the Inspector considered and engaged with the material tendered to the Board, both on behalf of the applicant (including the applicant’s expert reports from Mr Slevin and Mr Langan and the ecologists’ NIS) and on behalf of the notice parties and third-party observers. Ferriter J held that it was clear that the Inspector had regard to the relevant Special Conservation Interests/Qualifying Interests for the protected sites; this was expressly set out at paragraph 7.8.9 of his report. Ferriter J held that the Board as competent authority acted lawfully in adopting the Inspector’s findings. Ferriter J held that paragraph 7.8.65 simply reflected the Inspector’s view as to the lack of clarity in the applicant’s own NIS, an observation legitimately within the Inspector’s sphere of judgment in light of the material that was before him. Ferriter J held that the Board as competent authority was entitled to adopt the Inspector’s findings. Ferriter J did not see any error of law or irrationality in the circumstances. Ferriter J held that the Inspector did have regard to the reports of Mr Slevin and Mr Langan, including the appeal submission response document, submitted on behalf of the applicant; indeed, he summarised that material in his report and accepted the applicant’s submissions based on that material in relation to other issues addressed in his report (such as the wastewater treatment issue). In Ferriter J’s view, the findings in paragraph 7.8.67 were ones which were grounded in the materials before the Inspector and contained conclusions which were open to him to reach in light of those materials. Ferriter J did not see how it could be said that the Board, in adopting the Inspector’s findings, acted irrationally in the circumstances. Ferriter J held that while paragraph 7.8.66 was incorrect insofar as it appeared in the stage 2 appropriate assessment section of the Inspector’s report, he did not believe that the error was one which was sufficiently material to warrant invalidation of the decision.

Ferriter J refused the applicant’s application for judicial review.

Application refused.

JUDGMENT of Mr Justice Cian Ferriter delivered this 4th day of May 2022

Introduction

1 In these judicial review proceedings, the applicant seeks to challenge a decision of An Bord Pleanála (the “Board”) of 27 February 2020 refusing planning permission for the construction of a single dwelling, wastewater treatment system and associated works at Roscam Townland in Galway (the “proposed development”).

2 The applicant's statement of grounds advance six grounds of challenge, of which four can be regarded as irrationality/unreasonableness grounds along with a related ground that the Board failed to have regard to all relevant documentation. The other, self-standing, ground is that the Board made a legal error in carrying out a Stage 2 Appropriate Assessment conducted pursuant to Article 6(3) of the Habitats Directive.

3 In summary, the applicant contends that there was a manifestly insufficient evidential basis for the findings of the Board's Inspector (the “Inspector”) that there were deficiencies in the Natura Impact Statement (“NIS”) prepared by the applicant's expert ecologists as part of the Appropriate Assessment and submitted in support of her application. The applicant's case is that the Inspector's irrational findings and the separate legal error at stage 2 went to jurisdiction and the refusal decision must accordingly fall.

4 The Board's position is that it is an expert decision-maker (being a designated competent authority under s.177S of the Planning and Development Act 2000 (the “2000 Act”)); that the standard in O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 (“ O'Keeffe”) applies and that the applicant's challenge is classically a merits-based objection and not one which surmounts the very high bar set by O'Keeffe.

5 The second Notice Party Mr. Martin Fahy (for ease, unless the context suggests otherwise, “the notice party”) appeared through counsel at the hearing of this judicial review and made written and oral submissions in support of the Board's opposition. The notice party submitted, in essence, that not only was there material on which the Inspector could validly base his conclusions but that it is clear that the Inspector accepted the detailed submissions which had been made by the notice party on those issues (particularly in relation to the deficiencies in the NIS as regards the absence of a proper bird survey and the potential for the ground works for the proposed development to impact on groundwater and therefore the protected European sites downgradient from the proposed development site).

6 The Board queries the utility of this judicial review in circumstances where it is open to the applicant to simply making a fresh application for permission in light of the matters identified in the Inspector's report. The applicant says that she has taken a judicial review, as opposed to applying for fresh permission, in circumstances where the Board's decision under challenge represented the outcome of a third application for permission for construction of a dwelling on the lands. She maintains that she is entitled to have her application dealt with lawfully by the Board and that, if the Board has fallen into legal error, she is entitled to appropriate relief. If she is successful in this application, she seeks that the matter be remitted for different consideration by the Board from the stage prior to the appointment of the Inspector, i.e. that a different inspector be appointed and a fresh consideration be given to the application and the appeals at that point. She says that this will save her having to ‘run the gauntlet’ in respect of a fresh planning application.

Background

7 This is the applicant's third attempt to get planning permission for the construction of a house on the site.

8 In relation to the decision under challenge, the applicant sought planning permission from Galway City Council (the “Council”) to construct a house on the Roscom peninsula, on the coast of Galway Bay. The application was submitted on 26 March 2019 and included an NIS prepared by MKO consultants which considered the potential pathways to the Galway Bay Complex Special Area of Conservation (“Galway Bay SAC” or “the SAC”) and Inner Galway Bay Special Protection Area (“Inner Galway Bay SPA” or “the SPA”) and concluded that the development would not adversely affect the integrity of these (or any other) European sites within the meaning of the Habitats Directive. In that regard, it is common case that the development would potentially have a significant effect on those European sites i.e. that these sites would not be ‘screened out’ after stage 1 of the appropriate assessment. The site of the proposed development is 243 metres north of the Galway Bay SAC and the Inner Galway Bay SPA.

9 The Council made a decision to grant permission on 17 May 2019, subject to 23 conditions. Both notice parties lodged an appeal against the Council's decision to grant permission and the second named notice party, in particular, made a detailed submission on 6 June 2019 which took issue with the adequacy of the applicant's NIS.

10 The second-named notice party in his lengthy and detailed appeal submission to the Board specifically highlighted the “extreme proximity” of the site to the Galway Bay SAC and the Inner Galway Bay SPA and cited case law which reflected the precautionary principle. He submitted that “the NIS does not meet the habitats directive threshold test”.

11 He submitted that “the relevant CJEU case law has established that Natura impact statements/reports are meant to be scientific assessments which present relevant evidence, data and analysis not just general descriptions and the superficial review of existing data on “nature” within the area” (Commission Notice 2018; and also Case C-304/05 paragraph 69 [ Commission v Italy infringement...