People Over Wind Environmental Action Alliance Ireland v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Denham C.J.,Laffoy J.,Charleton J.
• Judgment Date: 09 February 2016
• Neutral Citation: [2016] IESCDET 21
• Court: Supreme Court
• Date: 09 February 2016

[2016] IESCDET 21

THE SUPREME COURT

DETERMINATION

Denham C.J.

Laffoy J.

Charleton J.

BETWEEN

PEOPLE OVER WIND, ENVIRONMENTAL ACTION ALLIANCE IRELAND

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

LAOIS COUNTY COUNCIL, COILLTE TEORANTA, THE DEPARTMENT OF ARTS, HERITAGE

AND

THE GAELTACHT

NOTICE PARTIES

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES.

RESULT: The Court refuses leave to the Applicant to appeal to the Supreme Court from the Court of Appeal.

REASONS GIVEN:

The application and the parties to it

1 This is an application by the first named applicant, People Over Wind (hereinafter referred to as ‘the Applicant’) for leave to appeal to this Court from a decision of the Court of Appeal made on 20th November, 2015 outlined at para. 4 below. The other parties to this application are:

(a) the respondent, An Bord Pleanála (hereinafter referred to as ‘the Respondent’); and

(b) the second named notice party, Coillte Teoranta (hereinafter referred to as ‘the Notice Party’).

The factual and procedural background

2 This Court is satisfied that the factual and procedural background to this application is correctly set out in section 4 of the Applicant's application for leave filed on 21st December, 2015 subject to –

(a) the additional matters as outlined in section 3 of the Respondent's notice filed on 15th January, 2016; and

(b) the clarification set out in section 3 of the Notice Party's notice filed on 14th January, 2016.

However, this Court considers it appropriate to summarise the procedural steps which have led to this application.

3 The proceedings in the High Court involved the following procedural steps:

(a) The Applicant, which is described in the judgment of the Court of Appeal as ‘an environmental non-governmental organisation’, instituted judicial review proceedings in the High Court (Record No. 2014 No. 487 JR/2014 No. 127 COM) seeking an order of certiorari quashing the decision dated 13th June, 2014 of the Respondent to grant planning permission to the Notice Party for a development comprising in summary: eighteen wind turbines; the provision of internal roads and the strengthening and widening of existing internal forestry access roads; one permanent meteorological mast; a 38 kv single storey sub-station compound; underground electrical and communications cables linking the turbines with the sub-station compound; widening of two existing entrances for temporary construction access; temporary construction compound and all associated site development and drainage works. The said development covered an area of 594 hectares in various townlands identified situate in County Laois.

(b) Following the hearing of the Applicant's application in the High Court, judgment was delivered in the High Court by Haughton J. (the trial judge) on 1st May, 2015. In the judgment, the trial judge found that the Applicant and the second named applicant to the judicial review proceedings were not entitled to any of the reliefs sought and failed on all grounds advanced.

(c) Subsequent to the judgment of the trial judge, an application was made by the Applicant to the High Court seeking two reliefs: ‘reconsideration’ by the High Court of the judgment to take into account that the third named notice party, Department of Arts, Heritage and the Gaeltacht (hereinafter referred to as ‘the Department’) was not served with the planning appeal lodged to the Respondent and its servants or agents ‘were not on notice of the appeal contrary to National and European Law’; and, if necessary, an order allowing the Applicant to amend its grounds of review to include the failure to notify the Department of the planning appeal lodged with the Respondent. In a judgment delivered on 11th June, 2015 the trial judge refused both reliefs sought by the Applicant.

(d) Both the Applicant and the other applicant to the judicial review proceedings applied to the High Court for certificates of leave to appeal to the Court of Appeal pursuant to s. 50A(7) of the Planning and Development Act 2000 (the Act of 2000) Having heard the applications, the trial judge delivered judgment on the applications on 19th June, 2015. The trial judge granted leave to the Applicant pursuant to s. 50A(7) to appeal from the judgment of the High Court in respect of three points of law, which the High Court certified as being of exceptional public importance and in respect of which it was desirable in the public interest that an appeal should be taken to the Court of Appeal. The application of the second named applicant for leave to appeal was refused.

(e) The order of the High Court made on 22nd June, 2015, as perfected on 26th June, 2015, reflected the decisions of the High Court made in the judgments of the trial judge referred to above which had been delivered on 1st May, 2015, 11th June, 2015 and 19th June, 2015. The points of law certified by the trial judge were set out in the said order and are set out in the Appendix annexed hereto.

(f) By a further order of the High Court made on 29th June, 2015 on the application of the Applicant it was ordered by consent of the Respondent and the Notice Party that the Applicant be at liberty to apply to the Court of Appeal in relation to a further certification of a point of law in relation to costs. The issue to which that order was intended to give rise is not addressed in the judgment of the Court of Appeal dated 20th November, 2015. It does not fall for consideration on this application.

4 Following the hearing of the appeal by the Court of Appeal (Ryan P., Hogan J. and Edwards J.), judgment was delivered on 20th November, 2015 by Hogan J. Each of the certified points of law was addressed in the judgment as follows:

(i) On the first point, in relation to a Special Area of Conservation, it was found (at para. 22):

‘It is sufficient, therefore, that the applicant for permission demonstrates that the proposed development will pose no threat of the integrity of the SAC. It is not unfair that an applicant demonstrate that the proposed development will not impact adversely on a qualifying species protected by a SAC: it would be quite another matter if the applicant was to be required to contribute positively to the restoration of the protected species.’

(ii) In relation to the second point, the ‘best scientific evidence’ point, it was found as follows:

(a) In the light of the judgments of the Court of Justice of the European Union (the Court of Justice) in cases such as Case C – 127/02 Waddenzee [2004] E.C.R. 1 – 7 448, the obligation which is placed on the Respondent is to have access to the best scientific knowledge which is reasonably available. The objective is to ensure that the appropriateness of any assessment meets proper contemporary scientific standards (para. 50).

(b) There was no suggestion at all that the Respondent did not have available to it the best scientific knowledge in the sense earlier described. Further, the Respondent identified the precise hazard posed by the development (the risk of increased sedimentation due to water run-off into the upstream watercourses) and imposed a stringent standard (Condition 17(k)) on the Notice Party in order to ensure that no such contaminated run-off entered the watercourses (para. 52).

(c) It is not strictly necessary to answer question (c), because, even if the Respondent might have been so obliged, it is clear that the admissibility of the affidavit of Dr. Evelyn Moorkens does not affect the validity of the Respondent's decision (para. 54).

(d) The answer to the certified point of law at (d) is in the negative because, for the reasons already stated, the Respondent identified the area of vulnerability of the protected species in the SAC and took appropriate measures to ensure that no risk was posed as a result of the development (para. 56).

(iii) In relation to the third certified point of law in relation to mitigation measures, it was found that in principle mitigation measures are a matter of national law save only that, as indicated by the Court of Justice in cases such as Case C – 258/11 Sweetman v. An Bord Pleanála, the national authorities cannot by reason of the delegation of such issues to local planning authorities permit the obligations imposed by Article 6(3) of the Habitats Directive to be compromised (para. 58). Further, it was found that the delegation of the finalisation of conditions in relation to mitigation measures by the Respondent to the planning authority is within the scope of delegation envisaged in the decision of this Court in Boland v. An Bord Pleanála [1996] 3 I.R. 435.

5 By the order of the Court of Appeal dated 20th November, 2015, following delivery of the judgment of the Court of Appeal, it was ordered that the Applicant's appeal be dismissed.

6 It is recorded in the judgment of the Court of Appeal (at para. 62) that the Court of Appeal had been asked by the Applicant to make a reference to the Court of Justice of the European Union pursuant to Article 267 TFEU. The Court concluded that, as there were no issues or questions of interpretation of EU legislation which properly arose for determination, there was no necessity for such a reference, it having been stated that the EU law issues focused on the interpretation of Article 6(3) of the Habitats Directive, which has already been the subject of extensive guidance from the Court of Justice ‘in cases such as Waddenzee and Sweetman’.

Jurisdiction

7 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.

8 Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2; and sets out the appellate jurisdiction...