Peter Sweetman v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Quinn |
| Judgment Date | 16 June 2023 |
| Neutral Citation | [2023] IEHC 330 |
| Court | High Court |
| Docket Number | Record No. 2019 98 JR |
and
And by Order
[2023] IEHC 330
Record No. 2019 98 JR
THE HIGH COURT
COMMERCIAL
Judgment of Mr. Justice Quinn delivered the 16th day of June 2023
. The applicant has applied for leave to appeal from the decision of this Court to refuse his application for an order quashing a decision of the first named respondent, An Bord Pleanala, made on 18 December 2018 pursuant to section 5 of the Planning Development Act 2000, which determined that the construction of a grid connection servicing a windfarm development located at Ballycumber, Tinahely, Co. Wicklow, was exempted development. The applicant had sought and been refused also a declaration that the Board's determination was in breach of Directive 2011/92 EU on the assessment of the effects of certain public and private projects on the environment as amended by Directive 2014 / 52 EU (“the EIA Directive”) and the jurisprudence of the European Court of Justice, and a declaration that s. 5 of the Act is contrary to the Constitution, European law and the Aarhus Convention.
. Section 50 A (7) of the Act of 2000, provides that no appeal shall lie against such a decision of this court without leave of the court, and that leave shall only be granted where the court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken.
. I have concluded that this case does not meet the criteria for this Court to issue such a certificate, having regard to the principles established in the case law of the Court concerning subs. 7.
. The facts are described in detail in the Principal Judgment delivered on 17 th February 2023 [ 2022 IEHC 89]. It is not always necessary on an application for leave to appeal to repeat the detail of the original proceedings. Nonetheless, it is appropriate in this case to summarise a number of the critical features of the case which inform my decision to refuse a certificate.
. On 13 March 2013 Wicklow County Council decided to grant permission for construction of the Ballycumber windfarm. This was appealed by local residents Gerard and Lena Dunne.
. On 13 August 2013 the Board decided to grant the permission.
. On 17 April 2015, Wicklow County Council issued a declaration in accordance with s. 5 of the Act that the construction of a grid connection between the windfarm and an ESB substation at Kilmagig, Avoca, Co. Wicklow, is development but is exempted development.
. Following these decisions and in reliance thereon, the notice party negotiated the required investment for the construction of the windfarm and the grid connection.
. On 24 April 2017, works commenced on the construction of the windfarm, and on 14 May 2017, works commenced on the construction of the grid connection.
. The windfarm was substantially completed at the end of January 2019. The grid connection was substantially completed in December 2018.
. The grid connection was energised on 21 March 2019.
. On 15 May 2017, Mr. Dunne made an application to Wicklow County Council pursuant to s. 5 of the Act for a declaration as to whether the grid connection in this case was development, and if so, whether it was exempted development. Wicklow County Council issued no determination on foot of that request and on 22 June 2017 Mr. Dunne referred the question to the Board.
. On 11 January 2018, the Board's inspector Mr. Kevin Moore, issued his report.
. The Inspector concluded that in circumstances where the Board had previously determined that mitigation measures proposed and residual effects from the Ballycumber windfarm development were acceptable and where it had been determined that the grid connection would not likely have any significant environmental effects or significant cumulative effects with the windfarm development, it was reasonable to conclude that the overall project was not likely to have any significant impacts on the environment.
. The Inspector then considered recently decided case law, notably the judgment of the High Court in the case of O'Grianna v. An Bord Pleanala & Ors. [2014] IEHC 632, in which Peart J. held that the grid connection formed part of the overall windfarm project for which environmental impact assessment was required and that where no EIA of the grid connection had been performed the EIA Directive had not been complied with. The Inspector concluded that the authorities, notably O'Grianna, precluded consideration of the grid connection in isolation from the overall windfarm project, which requires EIA, and therefore that it could not be declared exempt.
. On 18 December 2018 the Board issued an order overruling the Inspector and declaring the grid connection and associated works to be exempted development.
. During 2017, after commencement of the works, a number of legal proceedings were commenced relating to the grid connection.
. Two separate plenary actions including injunction applications were issued. The Notice Party issued a plenary action, including an application for an injunction against persons who it alleged were interfering with the grid connection works once they commenced. Similarly, an action was issued by a Mr. Timothy Healy against the Notice Party arising from the works themselves. Thirdly, Mr. Healy applied for and was granted leave to commence judicial review proceedings to quash the 2015 Declaration.
. These proceedings were all consolidated by an order of McGovern J. on 9 October 2017. Ultimately, they were settled and by a consent order made in December 2017 the proceedings were struck out.
. Mr. Dunne was not a party to any of these proceedings. Nor has he challenged the Board's decision of 18 December 2018 made on his referral.
. The applicant was not a party to any of the referrals or the proceedings referred to above. He was present in court on 6 September 2017 when the Healy judicial review proceedings and the injunction proceedings were mentioned before the court. He therefore had knowledge from that date at the latest of the windfarm, of the ongoing grid connection works and of the 2015 Declaration in respect of the grid connection. On 25 February 2019, he commenced these proceedings.
. In the judgment delivered by this Court on 17 February 2013, I held as follows:-
(i) That these proceedings were an impermissible collateral challenge to the 2015 Declaration.
(ii) That the Dunne referral was an impermissible collateral challenge to the 2015 Declaration.
(iii) That the Board ought to have exercised its discretion pursuant to s. 138 of the Act to dismiss the Dunne referral for this reason.
(iv) That s. 5 does not contravene the provisions of the Directive.
. The conclusions above were sufficient to dispose of the application. However, in deference to the extensive submissions made regarding the substance of the Board's order, and, importantly, at the request of the parties, and lest I would have fallen into error in the conclusions made above, I considered and stated my conclusion that the decision of the Board was an exercise in impermissible project splitting and that the Board had fallen into error in its interpretation of the case law of this Court on that subject.
. Having found that the proceedings were an impermissible collateral challenge to the 2015 Declaration and were a clear attempt to circumvent the statutory framework and time limits for review of that declaration, I continued in para. 220 as follows:-
“A logical extension of these findings is that it is not the absence of procedures for public notification in the s. 5 referral process which has deprived the applicant of a remedy, but his own conduct in standing by from September 2017 to February 2019 to await the outcome of the Dunne referral, while the construction works continued and opportunistically initiating these proceedings on the ‘back’ of the board's determination”.
. I held that the notice party was entitled to rely on the 2015 Declaration and the original consent to the windfarm development in constructing the wind farm and grid connection, and I refused the reliefs sought.
. Following the delivery of this Court's judgment, the applicant requested that, notwithstanding the findings summarised above, the court should issue a declaration in the terms sought in the originating notice of motion to the effect that the board's s. 5 declaration of 18 December 2018 was in breach of the EIA Directive and the jurisprudence of the European Court of Justice.
. In a judgment delivered ex tempore on 30 March 2023, I refused to make any such declaration and said the following:-
“No authority has been cited to me which requires, even as a matter of recognising the primacy of EU law, that this Court should disregard its own findings that the proceedings were an impermissible collateral challenge and an opportunistic attempt to circumvent the time limit and then reverse, which it has been asked to do, to reverse its decision to refuse relief.
“The applicant has been found to be engaged in opportunistic proceedings. On their face, a timely challenge to the 2018 declaration, in substance a collateral challenge which would undermine the finality and certainty of the 2015 declaration and it seems to me that that of itself warrants refusing a declaration”.
. Section 50 A (7) of the Act provides as follows:-
“The determination of the Court of an application for s. 50 leave or of an application for judicial review on foot of such leave, shall be final and no appeal shall lie from the decision of the court to the Supreme Court (now the Court of Appeal) in either case save with leave of the Court which leave...
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