Pinewood Wind Ltd v The Minister for Housing, Planning and Local Government ; Element Power Ltd v The Minister for Housing, Planning and Local Government

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 07 December 2018
• Neutral Citation: [2018] IEHC 697
• Date: 07 December 2018
• Court: High Court
• Docket Number: [RECORD NO. 2017 999 JR] [RECORD NO 2017 1000 JR]

[2018] IEHC 697

THE HIGH COURT

O'Regan J.

[RECORD NO. 2017 999 JR]

[RECORD NO 2017 1000 JR]

BETWEEN

PINEWOOD WIND LTD.

APPLICANT

AND

THE MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT

RESPONDENT

AND

LAOIS COUNTY COUNCIL

NOTICE PARTY

AND

BETWEEN

ELEMENT POWER LTD

APPLICANT

AND

THE MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT

RESPONDENT

AND

LAOIS COUNTY COUNCIL

NOTICE PARTY

Judicial review – Planning permission – Certiorari – Applicants seeking judicial review – Whether the applicants had discharged the burden required to secure an order for certiorari and other relief

Facts: The applicants, Pinewood Wind Ltd and Element Power Ltd, had identical claims as against the respondent, the Minister for Housing, Planning and Local Government, arising from a direction issued by the Minister on the 28th September 2017 save for the fact that Pinewood had an application pending for planning permission for a wind farm, whereas Element did not. Leave to maintain a judicial review challenge to the Minister’s decision/direction of the 28th of September 2017 was afforded by order of the 18th December 2017. The statement of grounds divided the reliefs claimed therein into the following categories: (i) failure to consider the applicants’ submissions; (ii) failure to afford reasons for the decision; (iii) failure to have any reasons for the decision/irrationality; (iv) failure to carry out a strategic environmental assessment or screening for same; (v) failure to carry out an appropriate assessment or screening for same; (vi) failure to have regard to s. 15 of the Climate Action and Low Carbon Development Act 2015.

Held by the High Court (O’Regan J) that, in the circumstances, she was not satisfied that the applicants had discharged the burden required to secure an order for certiorari and other relief.

O’Regan J held that the relief claimed in the statement of grounds would be refused.

Relief refused.

JUDGMENT of Ms. Justice O'Regan delivered on the 7th day of December 2018

Issues

1 Both of the above mentioned applicants have identical claims as against the Minister arising from a direction issued by the Minister on the 28th September 2017 save for the fact that Pinewood has a current application pending for planning permission for a wind farm, whereas Element does not.

2 Leave to maintain the within judicial review challenge to the Minister's decision / direction of the 28th of September 2017 was afforded by order of the 18th December 2017.

3 The statement of ground is a 21 – page document with the reliefs claimed therein divided into the following categories: -

(i) Failure to consider the applicants” submissions;

(ii) Failure to afford reasons for the decision;

(iii) Failure to have any reasons for the decision / irrationality;

(iv) Failure to carry out a strategic environmental assessment or screening for same;

(v) Failure to carry out an appropriate assessment or screening for same;

(vi) Failure to have regard to s. 15 of the Climate Action and Low Carbon Development Act, 2015.

4 The respondent Minister issued a direction to Laois County Council (which was enclosed with a letter addressed to the Chief Executive of the County Council bearing date the 28th September 2017) pursuant to s. 31 of the Planning and Development Act 2000 as amended (hereinafter ‘P and D Act’) requiring the Planning Authority pursuant to s. 31 (2) to comply with the direction and thereby alter, in accordance with the direction, the Laois County Development Plan 2017 – 2023. The text of the direction was to delete the setback distance of 1.5 km from schools, dwellings, community centres and all public roads in all areas open for consideration for wind farm development. In addition, the development plan was to include the yellow map and to remove the red map.

Submissions

Failure to have regard to the applicants” submissions

5 The applicants” arguments are as follows: -

(a) There is an express statutory obligation on the Minister to provide reasons under s. 31 (7) (c) and s. 31 (7) (11) of the P and D Act.

(b) The wording of the section obliges the Minister to ‘take into consideration’ the applicants” submissions and that equates to a higher standard of obligation than ‘having regard to’.

(c) The applicants rely on the decision of Finlay – Geoghegan J. in North Wall Property Holding Company Ltd. v. Dublin Docklands Development Authority [2008] IEHC 305, where, at Para. 60 she considered that a person who has property rights that could be affected by a decision taken should be given the opportunity of making submissions and having those submissions considered.

(d) The applicants argue that there is nothing in the documents relied upon by the respondent to show the submissions were given reasonable consideration.

6 The respondent's response is as follows: -

(a) Reference in s. 31 (7) (c) of the P and D Act provides that not later than two weeks after receipt of a notice by the Minister of intention to issue a direction, the manager of the relevant planning authority is obliged to publish notice of the draft direction which shall state the reasons for the draft direction, that a copy of the direction may be inspected and that written submissions may be made to the planning authority during the two week period which shall be taken into consideration by the Minister before a direction is made. The respondents suggest that this provision should be read in the light of s. 31 (8) which provides that the manager shall prepare a report on any submission under subs. 7 (c) which report is then to be furnished to the Minister. Further, subs. 9 is relevant in that the report is to summarise the views contained in the submissions. The respondents argue that a very full summary of the submissions was furnished to the minister and no prejudice arose to the applicants by reason of the fact that the full text of the submission had not been furnished and indeed the applicants have not pointed out any specific prejudice. Further, it is for the applicants to establish that the Minister failed to consider the applicants' submissions.

The respondents rely on the following case law: -

(i) In O'Brien v. An Bord Pleanala [2017] IEHC 773, Costello J held that the board was not required to expressly engage with each individual submission and suggests that this applies equally to a s. 31 direction.

(ii) In Langford v. An Board Pleanala 12th March 1998 (McGuinness J.) the court accepted that there was a rebuttable presumption of validity of a decision and act of a public authority exercising statutory powers and duties, and stated that the onus of proof lies squarely on the applicant.

(b) Under s. 31 (11) the Minister is to consider the report furnished and any submissions made to him by the elected members and as the managers” report did include full submissions on the part of the applicants it was not necessary for the Minister to respond to the views expressed in the submissions.

(c) The Minister was fully engaged in the entirety of the process and accordingly would have been aware of the prior submissions made by the within applicants which were similar in substance to the submissions made by them to the Minister in this portion of the process.

(d) In McEvoy v. Meath County Council [2003] 1 IR 208, Quirke J. was discussing the obligation ‘to have regard to’ and expressed himself satisfied that this duty ‘ is to inform itself of and give reasonable consideration to …’ The respondents therefore argue that the wording of ‘have regard to’ is similar to ‘take into consideration’.

Discussion relating to failure to have regard to the applicants” submissions

7 It is noted from the letter of the 28th September 2017 to the chief executive that the Minister indicated that he had carefully considered the report of the chief executive and by definition therefore he indicated that he had considered the summary as contained in that report of the submissions of the applicants.

8 Given that the onus of proof is squarely on the applicants to demonstrate that notwithstanding that there was no reference to the applicants” submissions in the direction or cover letter of the Minister and the given jurisprudence referred to in legal submissions, in particular having regard to the fact that a rebuttable presumption of validity exists, I am satisfied that the applicants” burden of proof has not been discharged.

Failure to give reasons

9 The applicants” arguments are: -

(a) The stated reasons within the Minister's direction relate to the deletion of the red map and the setback requirements but there is no mention whatsoever of the yellow map.

(b) The stated reasons amount to the necessary proof to intervene by issuing the draft direction but do not amount to reasons for adopting the yellow map.

(c) The applicants refer to Connolly v. An Bord Pleanala [2016] IEHC 624 where the court considered the purpose of reasons which was to understand the decision made, to know whether or not grounds existed to challenge same and to enable the court to engage with the judicial review process. The Supreme Court summarised the fact that it was for the decision maker to take into account relevant matters and to disregard irrelevant matters. In considering reasons, it is the view of the reasonable observer on a reasonable inquiry in determining whether or not the reasons requirement of a decision maker was properly observed.

(d) The fact that the Minister may not have had a problem with the yellow map is not a reason according to the applicants to include the yellow map in the direction to the local authority.

(e) The applicants refer to the judgment of Clarke J. in Christian & Ors. v. Dublin City Council (No.1) [2012] 2 IR 506 when the court observed that though there was no general duty to give reasons in respect of general policy the means of implementation of that policy (also referred to as the nuts and bolts of the...