Merriman v Fingal County Council

JurisdictionIreland
JudgeMr Justice Max Barrett
Judgment Date14 February 2018
Neutral Citation[2018] IEHC 65
Docket Number2017 No. 201 JR
CourtHigh Court
Date14 February 2018
Between:
HELENA MERRIMAN, MICHAEL REDMOND, ADRIENNE MCDONNELL, PETER COLGAN, ELIZABETH MCDONNELL, TREVOR REDMOND, PATRICIA DEIGHEN, MARGARET THOMAS, NOEL REILLY, HELEN GILLIGAN, JAMES SCULLY, FERGUS RICE, NOEL DEEGAN, VALERIAN SALAGEAN, SIDNEY RYAN, GREG FARRELL, SHEELAGH MORRIS, JIMMY O'CONNELL, SILE HAND, DECLAN MCDONNELL, ELIZABETH ROONEY & DESMOND O'CONNOR
Applicants
– AND –
FINGAL COUNTY COUNCIL
First Respondent
– AND –
IRELAND

AND

THE ATTORNEY GENERAL
Second and Third Respondents
– AND –
DUBLIN AIRPORT AUTHORITY PLC
First Notice Party
– AND –
RYANAIR DAC
Second Notice Party

[2018] IEHC 65

2017 No. 201 JR

THE HIGH COURT

Environment, Transport and Planning – S.50A (7) of the Planning and Development Act, 2000 – Environment Impact Assessment (EIA) – Art. 11 of EIA Directive – Appropriate Assessment (AA) – Public importance – Leave to appeal to the Court of Appeal

Facts: The applicants sought leave to appeal to the Court of Appeal pursuant to s. 50A (7) of the Planning and Development Act 2000. The applicants contended that the substantive decision contained certain issues, which were of exceptional public importance, and thus, they needed certification from the Court to that effect.

Mr. Justice Max Barrett refused to grant leave to appeal to the applicants. The Court stated that the applicants did not justify the standards required for the certification, which were the existence of a point of law of exceptional public importance in the substantive decision and its desirability in the public interest under s. 50A(7). The Court noted that both the standards needed to be present in order to obtain the certificate for leave to appeal.

JUDGMENT of Mr Justice Max Barrett delivered on 14th February, 2018.
I General

(i) Introduction.

1

Many of us come to love where we live. The applicants are no different from anyone else in this regard. However, the intended expansion of Dublin Airport means that their locality and community is about to be changed irrevocably. Some among the applicants will even be driven to leave their present homes. In its judgment of last November in Merriman & ors v. Fingal County Council & ors [2017] IEHC 695 (“the principal judgment”), the court was compelled as a matter of law, and not without considerable sympathy for the predicament in which the applicants now find themselves, to refuse them the various reliefs that they came seeking, following on a decision made by Fingal County Council, earlier in 2017, to grant an extension to a planning permission of 2007 pursuant to which Dublin Airport Authority has permission to construct a new runway and to do certain related works at Dublin Airport. As a consequence of s.50A(7) of the Planning and Development Act 2000, as amended (“PADA”), the applicants have now returned to court to seek a certificate from the court ‘ that its decision [in the principal judgment] involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken [to the Court of Appeal]’. In fact, though one such point of law would suffice, the applicants contend that no fewer than nine such points of law present. Leave to appeal the court's decision to the Court of Appeal can only be granted under s.50A(7) where such certificate issues; otherwise no appeal lies from the court's decision, save for the possibility of a direct appeal to the Supreme Court.

(ii) A Two-Prong Test.

2

Section 50A(7) clearly establishes, and has repeatedly been accepted by the courts as having established, a two-prong requirement before a certificate may issue: (i) there must be a point of law of exceptional public importance and (ii) it must be desirable in the public interest that an appeal should be taken. It is true, as counsel for the applicants touched upon by reference to Ógalas Limited (trading as Homestore and More) v. An Bord Pleanála and ors [2015] IEHC 205, that a point of law may be of such exceptional public importance that it follows inexorably that it is desirable in the public interest that an appeal should be taken; but even in that circumstance one is still applying a two-prong test. (It can also be, of course, that although a point of law of exceptional public importance is recognised as presenting, a court may conclude that it is not desirable that an appeal should be taken – as evidenced by the decision in Arklow Holidays v. An Bord Pleanála [2008] IEHC 2 in which Clarke J., as he then was, determined that even though one of the points raised before him was of exceptional public importance, it would not be in the public interest to grant leave to appeal because of the delay that would be caused to the construction of a needed waste-water treatment plant). But if there was ever any doubt that s.50A(7) establishes a two-prong test, and in truth there has never been doubt in this regard, this (non-) issue has been hit squarely on the head by the Supreme Court in its decision in Grace & anor v. An Bord Pleanála & ors [2017] IESC 10, para. 3.6, as referred to by Dunne J. in her judgment for the Supreme Court (handed down on the day the within application was heard) in Rowan v. Kerry County Council [2018] IESC 2, in which the Supreme Court actually emphasised in bold text the two-prong dimension of s.50A(7).

(iii) The Law Concerning Applications Pursuant to Section 50A(7).

a. Glancré, et al.

3

The law respecting applications such as that now presenting was the subject of consideration by the court in its decision last month in North East Pylon Pressure Campaign Ltd & anor v. An Bord Pleanála & ors [2018] IEHC 3, in which the court, inter alia, (i) respectfully adopted the principles identified by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, 4-5, as the guiding principles that inform the adjudication of an application such as that now presenting, and (ii) added a few points that seemed to be of note in that application, though they also have a more general resonance. The court proceeds in this judgment by reference to those principles and points and does not propose to revisit the applicable law afresh, beyond noting that although the decision in Glancré, as counsel for the applicants rightly noted in his oral submissions, is not ‘ a piece of legislation’, it is also not just, as he contended, ‘ the view of a judge in a particular case… [to] be read in the context of the issues before him in that case’. That, it seems to the court, with respect, is unduly to diminish the standing and reach of case-law in our legal system. Moreover, while the court accepts that the abundant words of case-law must never obfuscate the clear words of statute, the decision in Glancré does not do anything of the sort; rather, it offers a useful road-map by which to chart the unfamiliar legal terrain into which every judgment to some extent embarks, and it has repeatedly been recognised by the courts so to do.

b. Altrip

4

In Glancré, MacMenamin J., observed as follows of the leave to appeal regime now arising under s.50A(7) of PADA:

‘It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.’

5

In their submissions, the applicants contend that the legislative intention referred to by MacMenamin J. ‘ can no longer be assumed in the light of Article 11 of the EIA Directive and the jurisprudence of the CJEU’, particular emphasis being placed in this regard on the following observations of the Court of Justice in its judgment in Gemeinde Altrip and ors v. Land Rheinland-Pfalz ( Case C-72/12):

‘27 [I] f extending the right of action of the public concerned to challenge acts or omissions relating to such projects is likely to increase the risk that those projects will become the subject of contentious proceedings, that increase of a pre-existing risk cannot be regarded as affecting a situation already established.

28. Although it is true that that extension may have the effect, in practice, of delaying the completion of the projects involved, a disadvantage of that kind is inherent in the review of the legality of decisions, acts or omissions falling within the scope of Directive 85/337 [the initial EIA Directive], a review in which the legislature of the European Union has, in accordance with the objectives of the Århus Convention, sought to involve members of the public concerned having a sufficient interest in bringing proceedings or maintaining the impairment of a right, with a view to contributing to preserving, protecting and improving the quality of the environment and protecting human health.’

6

Two points fall to be made as regards the above-mentioned contentions:

(1) the applicants' contention in respect of Art.11 of the EIA Directive, as amended, in truth enjoys no basis when one looks to the text of that provision. Article 11, in its entirety, provides as follows:

‘ Article 11

1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a) having a sufficient interest, or alternatively;

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition; have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.

3. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States,...

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4 cases
  • Friends of the Irish Environment Ltd v an Bord Pleanála
    • Ireland
    • High Court
    • 15 February 2019
    ...Act 2000 (as amended). The High Court subsequently refused leave to appeal to the Court of Appeal ( Merriman v. Fingal County Council [2018] IEHC 65); and, thereafter, the Supreme Court refused leave to appeal to that court by Determination dated 6 July 2018 ( Merriman v. Fingal County Cou......
  • Barford Holdings Ltd v Fingal County Council
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    • High Court
    • 29 March 2023
    ...(McCoy) v Lackagh Quarries Ltd v. Galway City Council [2010] IEHC 479 (“ Lackagh”); Merriman v. Fingal County Council [2017] IEHC 695; [2018] IEHC 65 (“ Merriman”), been held to preclude the Council from considering the Habitats Directive or the EIA Directive when making a decision on an ex......
  • Rushe v an Bord Pleanála
    • Ireland
    • High Court
    • 31 August 2020
    ...by the Applicants in reliance on Altrip was decisively rejected by the High Court (Barrett J.) in Merriman v. Fingal County Council [2018] IEHC 65 (“ Merriman”). I agree with the conclusions reached by Barrett J. at para. 6 of his judgment in Merriman. In particular, I agree that there is n......
  • M28 steering Group v an Bord Pleanala
    • Ireland
    • High Court
    • 17 November 2020
    ...by the Applicants in reliance on Altrip was decisively rejected by the High Court (Barrett J.) in Merriman v. Fingal County Council [2018] IEHC 65 (“Merriman”). I agree with the conclusions reached by Barrett J. at para. 6 of his judgment in Merriman. In particular, I agree that there is no......

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