North East Pylon Pressure Campaign Ltd v an Bord Pleanála (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 490
• Court: High Court
• Docket Number: [2016 No. 150 JR]
• Date: 29 July 2016

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN

NORTH EAST PYLON PRESSURE CAMPAIGN LIMITED

AND

MAURA SHEEHY

APPLICANTS

AND

AN BORD PLEANÁLA

THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

EIRGRID PLC

NOTICE PARTY

(No. 2)

[2016] IEHC 490

Humphreys J.

[2016 No. 150 JR]

THE HIGH COURT

JUDICIAL REVIEW

Environment, Transport & Planning – s. 50B of Planning and Development Act 2000 – s. 3 of Environment (Miscellaneous Provisions) Act 2011 – O. 99 of Rules of Superior Courts – Interpretation of statutory provisions – Stage of proceedings – Frivolous or vexatious challenge.

Facts: Following the refusal of the leave to apply for judicial review by way of prohibition of a planning inquiry, the parties now have sought costs against each other. The primary arguments made at the hearing of the issue related to the application or otherwise, of s. 50B of the Planning and Development Act 2000, s. 3 of the Environment (Miscellaneous Provisions) Act 2011, or, if neither of the provisions applied, the principles applicable under O. 99 of the Rules of the Superior Courts.

Mr. Justice Richard Humphreys held that the applications for costs would be adjourned. The Court stated that the Court would wait for the expedited preliminary ruling of the Court of Justice of the European Union. The Court observed that the arguments addressed of the subject of application for O. 99 of the Rules of the Superior Courts would essentially be the fall-back arguments in the event that neither s. 50B nor the 2011 Act applied to the proceedings. The Court observed that it would be appropriate to postpone a decision on the O. 99 issues until such time as the EU-related issues had been determined.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 In North East Pylon Pressure Campaign Ltd. & Maura Sheehy v. An Bord Pleanála (No. 1) [2016] IEHC 300 (Unreported, High Court, 12th May, 2016), I declined to give the applicants leave to apply for judicial review by way of prohibition of a planning inquiry into the North-South electricity interconnector on the grounds that the application was premature.

2 All of the successful parties are now seeking their costs against the applicants. The applicants, in turn, seek their costs against the other parties. I have had regard to the issues raised by all parties at the hearing and to the written submissions filed.

3 The primary arguments made at the hearing of this issue related to the application, or otherwise, of s. 50B of the Planning and Development Act 2000, s. 3 of the Environment (Miscellaneous Provisions) Act 2011, or, if neither of those provisions applied, the principles applicable under O. 99 of the Rules of the Superior Courts.

4 It seems to me however that the question of the interpretation of the statutory provisions cannot be properly dealt with without first determining the extent to which European law applies to the application, for the simple reason that the provisions in question, insofar as they reflect EU law, must be read purposively in accordance with that law and in particular cannot be read in a manner that would contravene EU law rights.

5 Two potential sources of European law arise, firstly the environmental impact assessment directive ('EIA directive') (Council Directive 97/11/EC of 3rd March, 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment), and secondly the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus on 25th June, 1998 (the 'Aarhus Convention'), as incorporated into EU law for certain purposes by the ratification of that instrument on behalf of the Union itself in May, 2005.

The application of the EIA directive

6 The original Environmental Impact Assessment directive was adopted in 1985 as directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. It was amended by the Public Participation Directive 2003/35/EC, which inserted a new Article 10a which provided for a legal entitlement to ' challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive'. The article went on to provide that ' any such procedure shall be fair, equitable, timely and not prohibitively expensive'.

7 Following the codification of the EIA directive in directive 2011/92/EU, this provision became art. 11 of the 2011 directive.

8 Article 11(1) of the 2011 directive requires that members of the public having a sufficient interest ' 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'.

9 A number of questions arise in the present context. Clearly the present challenge is brought in relation to matters which are subject to the public participation provisions of the directive, given the requirement for environmental impact assessment. However the challenge is broader than an allegation of shortcomings in the environmental impact assessment process.

10 The first question is whether the benefit of art. 11 is obtained by a challenge on any grounds, whether including on grounds of national law, to a decision, act or omission subject to the public participation provisions of the directive.

11 A second question is the meaning of the phrase ' decisions, acts or omissions' in art. 11. As appears from the substantive decision in this case ( North East Pylon (No.1) at paras. 84 to 85 and 109 to 110), I considered that in the context of s. 50 of the Planning Development Act 2000, reference to acts or decisions should not include intermediate or administrative decisions which did not irreversibly determine legal rights. However, in the different context of art. 11(1), does the phrase ' decisions, acts or omissions' include administrative decisions in the course of determining an application for development consent, even if such administrative decisions do not irreversibly determine the legal rights of the parties?

12 Article 11(2) provides that: ' Member States shall determine at what stage the decisions, acts or omissions may be challenged'.

13 In the context of the Irish legal system, no explicit statutory rule has been laid down in relation to this matter. Rather, parties are subject to general common law rules of administrative law as discussed in the substantive judgment in this case. For the reasons explained in that judgment, there are strong grounds in public policy for viewing as premature a challenge to an intermediate administrative decision until such time as it crystallises in a legally binding and normally final outcome. However, it is clear that this is not an absolute rule, because there are counter-instances where the courts have intervened (on my analysis, exceptionally) prior to the making of a definitive decision.

14 However it is also clear that such a common law approach carries some risks of uncertainty for an applicant. For the reasons set out in the substantive judgment in this case, it does not seem to me to be acceptable in terms of legal certainty that an applicant should be left in a position where the determination of whether his or her proceedings are moot or out of time was to fall for decision purely on a case-by-case basis.

15 In the context of a common law system such as ours where the legislature has not expressly stated that a challenger is entitled to wait for the final decision (an express clarification which I consider would be highly desirable for all of the reasons set out in the substantive judgment), a third question arises as to whether the entitlement under art. 11(4) to a ' not prohibitively expensive' procedure applies to the process before national courts whereby it is determined as to whether the application has been brought at the correct stage.

16 Ms. Emily Egan S.C., for the board, submits that a judicial procedure to determine at what stage the process should be challenged does not attract the benefit of art. 11 unless the procedure itself is challenged in the proceedings, which is not the case here. The applicants have not sought to argue that the uncertainty relating to whether a challenge is premature or out of time is itself a breach of the EIA directive.

17 The present case did not get beyond the stage of determining whether it was premature or not, and in view of the answer to that question, the substantive challenge to the legality of the process did not proceed further. Does such a process, in this case as part of a leave application, attract the benefit of art. 11?

The Aarhus Convention as an element of EU law

18 In McCoy v. Shillelagh Quarries Limited [2015] IECA 28 (Unreported, Court of Appeal, 19th February, 2015) at para. 14, Hogan J. noted that the Aarhus Convention had been ratified by the EU itself, and that ' [t]o the extent... that the Aarhus Convention has been subsumed into EU law ... [the]Court would be obliged, in an appropriate case, to give effect to the terms of the Convention as part of these wider EU law obligations'.

19 The Convention is significantly wider than the directive in the sense that Art. 9(3) provides that: ' ...