Merriman v Fingal County Council
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 21 November 2017 |
| Neutral Citation | [2017] IEHC 695 |
| Date | 21 November 2017 |
| Court | High Court |
| Docket Number | 2017 No. 201 JR |
&
AND
AND
[2017] IEHC 695
Barrett J.
2017 No. 201 JR
2017 No.344 JR
THE HIGH COURT
Environment, Construction & Planning – S. 42 of the Planning and Development Act 2000 – Development Consent – EIA Directive – Extension of planning permission – Public interest – Certiorari – Locus standi
Facts: The applicants in relation to both the proceedings sought an order of certiorari for quashing the decision of the local county council for refusing the applicants' submissions in relation to the proposed extension of the appropriate period of construction of the runaway. The applicants contended that the said extension was in breach of the EIA directive and the applicants' right to participation in the process involving that extension. The respondents alleged that they had complied with their obligations under s. 42 of the Planning and Development Act 2000 ('PADA').
Mr. Justice Max Barrett refused to grant the desired reliefs to the applicants in both the proceedings. The Court found that the discretion under s. 42 of PADA was limited in nature and the planning authority had no choice but to extend the duration of planning permission if the required conditions were complied with by the applicants. The Court further held that in reading the section as a whole, it was clear that the legislature had never intended to make public participation as an element of the permission granted under s. 42. The Court also observed that the applicant, in the second proceeding, did not have a locus standi to challenge the present proceedings as it did not participate in the planning process at all and the said permission was not granted under art. 11 of the EIA as asserted by that applicant.
(Numbers in square brackets are paragraph numbers)
I. The Applications and the Parties [1]
II. The Nature of the Permission Granted [6]
III. Three Preliminary Points [9]
(i) Impermissible Collateral Attack. [9]
(ii) Standing. [13]
(iii) Utterances in the Oireachtas. [18]
(iv) Judgment Notwithstanding. [21]
IV. Standard of Review and Ultra Vires Arguments [22]
(i) Standard of Review. [22]
(ii) Arguments as to Vires. [24]
a. Overview. [24]
b. Considerations of a Commercial, Economic or Technical Nature. [27]
c. The Commencement/Extent of the Works. [29]
V. A Minor Point of Style [34]
VI. The Process that Preceded the New Runway Permission [35]
(i) Overview. [35]
(ii) Mr Byrne's Evidence. [37]
(iii) The Report of An Bord Pleanála's Inspector. [38]
VII. The Substance of Section 42 [47]
VIII. Some General Observations Concerning Section 42 [50]
IX. Section 42(2)-(4) and (6) of PADA [51]
(i) Section 42(2). [52]
(ii) Section 42(3). [55]
(iii) Section 42(4). [57]
(iv) Section 42(6). [58]
X. Extent of Discretion Arising under Section 42 [61]
XI. Some Case-Law on Section 42 [62]
(i) Overview. [62]
a. Coll v. Donegal County Council and anor. [63]
b. McDowell and anor v. Roscommon County Council. [65]
c. State (McCoy) v. The Corporation of Dún Laoghaire. [68]
d. Lackagh Quarries Ltd v. Galway City Council. [73]
XII. Conclusion [81]
XIII. Constitutionality of Section 42 [83]
XIV. The Amended Statement of Grounds [84]
XV. Ms Merriman's Affidavit Evidence [88]
XVI. The Planning Permission [91]
XVII. The Application for Extension of Duration of Permission [92]
XVIII. The Letter of 11th January, 2017 [97]
XIX. Fingal County Council's Consideration of the Extension Application [111]
XX. Ms Merriman's Letter of 27th January, 2017 and the Reply Received [121]
(i) Introduction. [124]
(ii) Overview of Decision and Conclusions. [129]
a. Decision. [129]
b. Conclusions. [131]
(iii) Judgment of Fennelly J. [132]
a. Overview. [132]
b. Effect on Rights and Diminution in Property Values. [133]
(iv) Wexele v. An Bord Pleanála [142]
(v) Klohn v. An Bord Pleanála [144]
(vi) Blinkered Focus on Facts at Hand? [148]
XXII. Is a Decision under Section 42 a "Development Consent"? [150]
XXIII Some General Points [157]
(i) A Ten-Year Permission. [157]
(ii) Transposition. [160]
XXIV. Some Case-Law of Interest [164]
(i) Križan v. Slovakia. [164]
(ii) R. (Wells) v. Secretary of State for Transport, etc. [177]
a. Facts. [177]
b. The Decision of the Court of Justice. [182]
(iii) Some post-Wells Irish case law. [184]
a. Dunne v. Minister for the Environment [184]
b. Lackagh Quarries Ltd v. Galway City Council [186]
XXV. No Requirement as to Further Public Participation [188]
XXVI. Background Facts [191]
XXVII. The Statement of Grounds [192]
(i) Some Aspects of the Statement of Grounds. [192]
(ii) Some Case-Law of Relevance. [198]
XXVIII. Some General Submissions by the Case 2 Applicant [205]
XXIX. Climate Change [206]
(i) Overview. [206]
(ii) The IPCC Report and Professor Bows-Larkin's Observations. [207]
a. The IPCC Report. [207]
b. Professor Bows-Larkin's Observations. [209]
(iii) Climate Action and Low Carbon Development Act 2015. [211]
XXX. The Environmental Impact Assessment Directive [221]
(i) Article 267 TFEU. [221]
(ii) Development Consent and Continuing Process. [224]
(iii) Commission v. Ireland. [226]
(iv) Change or Extension to Project Already Authorised. [228]
a. General. [228]
b. Pro-Baine ASBL and Others. [231]
XXXI. The Habitats Directive [233]
(i) Submission Made. [233]
(ii) No Issue Presents. [235]
(iii) Bald Assertions. [237]
(iv) European Communities (Birds and Natural Habitats) Regulations 2011. [239]
(v) Conclusion. [240]
XXXII. Constitutional Right Contended For [241]
XXXIII. Consensus? [242]
XXXIV. Recognising Expressly a Right Not Previously Recognised Expressly [243]
XXXV. Caution Required [247]
(i) I O'T. v. B. [247]
(ii). T.D. v. Minister for Education. [250]
XXXVI. The Parameters of the Right Contended For. [253]
XXXVII. Who Decides? [256]
XXXVIII. Companies and Personal Rights. [258]
XXXIX. Conclusion as to Constitutional Right Contended For. [261]
XL. The European Convention on Human Rights [265]
XLI. Case 1 Applicants [272]
XLII. Case 2 Applicant [273]
The above-named applications ostensibly concern a decision made by Fingal County Council earlier this year to grant an extension to a planning permission of 2007 pursuant to which Dublin Airport Authority has permission to construct a new runway and do certain related works at Dublin Airport (the "new runway permission").
The individuals named as applicants in the first application (the "Case 1 Applicants") are all householders, so-called "ordinary" people seeking, as their counsel put it at hearing ' to protect their homes from being overwhelmed by a runway or in fact more particularly, being overwhelmed by an administrative process which is trundling down a runway toward them and has been for the last ten years'.
The sole applicant in the second application (the "Case 2 Applicant") is a limited company whose objects include the protection of the Irish environment. It is a member of the Irish Environmental Network and the European Environmental Bureau. In recent years, it has been especially concerned as to the growing impact of human activities on the environment and, in particular, the impact on our climate of the increasing production of greenhouse gases.
As will be seen, the applications brought by the householders and Friends of the Irish Environment are not identical. However, they overlap to such an extent that the two applications were heard in tandem, the arguments of the two sets of applicants greatly overlap, and it is possible to adjudicate on their applications in a single judgment, though some elements of the judgment, as will be seen, are particular to one or other of the applications brought. One point of distinction is that the Case 1 Applicants have not previously been given leave to bring judicial review. What they have received is what is sometimes referred to as a "telescoped hearing" in which application has been made on notice to seek judicial review, with the court to decide (i) whether to grant leave, and, if so, (ii) whether to grant relief? By contrast, the Case 2 Applicant has been given leave to bring judicial review proceedings and the court is therefore, only concerned with whether or not relief should be granted.
The respondents and notice parties are well-known persons and...
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