Rushe v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 31 August 2020
• Neutral Citation: [2020] IEHC 429
• Docket Number: [2016 No. 232 JR.]
• Court: High Court
• Date: 31 August 2020

BETWEEN

JOHN RUSHE and MAIRE NI RAGHALLAIGH

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

WESTERN POWER DEVELOPMENTS LIMITED

NOTICE PARTY

AND

GALWAY COUNTY COUNCIL

NOTICE PARTY

AND

MARTIN WALSH, AN TAISCE, IRISH PEATLAND CONSERVATION COUNCIL, AINE NI FHOGARTAIGH

AND

MICHAEL O RAGHALLAIGH, STIOFAN ÓCUALAIN

and

MAIRE NI RAGHALLAIGH ON BEHALF OF OLD TOWN/KNOCKRANNY RESIDENTS FOR ENVIRONMENTAL CONSERVATION AND DEVLOPMENT CONSULTATION

NOTICE PARTIES

[2020] IEHC 429

David Barniville

[2016 No. 232 JR.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

JUDGMENT of Mr. Justice David Barniville delivered on the 31 ^st day of August, 2020

Introduction

1 This is my judgment on an application by the Applicants for leave to appeal to the Court of Appeal pursuant to s. 50A(7) of the Planning and Development Act, 2000 (as amended) (the “2000 Act (as amended)”), from a decision made by me in a judgment delivered on 5 ^th March, 2020 in which I refused the Applicants' application for judicial review in respect of a decision of the respondent, An Bord Pleanála (the “Board”), dated 19 ^th February, 2016 to giant permission to the first notice party, Western Power Developments Limited (the “Developer”), for the development of a windfarm in County Galway (the “principal judgment”). The Applicants have asked me to certify four questions which they assert involve points of law of exceptional public importance and have contended that it is desirable in the public interest that an appeal be taken to the Court of Appeal on those points of law.

2 I have had the benefit of written and oral submissions from the Applicants and from the Board and the Developer, who oppose the Applicants' application for leave to appeal. The Applicants' application is supported by another of the notice parties, Martin Walsh. I heard the Applicants' application on 3 ^rd July, 2020 and reserved judgment. While I had intended that this judgment would be available to the parties on or before 31 ^st July, 2020, that did not prove possible. However, I was in a position to inform the parties on that date of my decision on the Applicants' application. I indicated that my written judgment would be provided as soon as possible during the vacation.

3 I have concluded for the reasons set out in this judgment that the Applicants' application for leave to appeal to the Court of Appeal should be refused. I was not persuaded by the Applicants that the questions put forward by them involved points of law of exceptional public importance. I am satisfied that they do not. Nor was I persuaded that it is in the public interest that the Applicants should be permitted to appeal to the Court of Appeal on the points put forward by them. In those circumstances, I informed the parties that I was refusing the Applicants' application for leave to appeal. I set out the reasons for those conclusions in this judgment.

The Principal Judgment

4 The Applicants challenged the Board's decision on Appropriate Assessment (“AA”) and Environmental Impact Assessment (“EIA”) grounds. It is unnecessary for the purpose of this judgment to consider the EIA part of the Applicants' case as it is not relevant to the questions or points of law on which the Applicants rely in support of their application for leave to appeal. All of the points or questions put forward by the Applicants are directed to the AA part of the case.

5 At para. 6 of the principal judgment. I noted that all of the parties were agreed that the judgment of the Supreme Court in Connelly v. An Bord Pleanála [2018] IESC 31 (“ Connelly”) was the most directly relevant authority for the AA part of the case and that most of the submissions of the parties were directed to the question as to whether the Board had complied with the AA obligations on the Board, as discussed in Connelly. I also noted that the parties also sought to rely on emerging case law from the CJEU, including the opinion of Advocate General Kokott and the subsequent judgment of the CJEU in Case C-461/177 Holohan & ors v. An Bord Pleanála (opinion delivered on 7 ^th August, 2018; judgment delivered on 7 ^th November, 2018) (“ Holohan”).

6 At para. 10 of the principal judgment, I summarised my conclusion that the Board had correctly identified and applied the test for AA set out and discussed by the Supreme Court in Connelly and that there was nothing in the recent judgment of the CJEU in Holohan which would persuade me to reach a different conclusion. In their written submissions in support of the application for leave to appeal, the Applicants asserted that the Board could not have been aware of the test in Connelly when making its decision and could not. therefore, have “identified and applied” the test set out in that judgment. However, that contention was misplaced and misinterpreted the point I was making in my summary at para. 10 of the principal judgment. As was clear from later paragraphs of the judgment (including para. 179), the decision of the Board in this case predated the judgment of the Supreme Court in Connelly. However, Connelly did not set out any new principles or lay down any new obligations on the Board in carrying out an AA under the Habitats Directive and Part XAB of the 2000 Act (as amended). The Supreme Court in Connelly drew together, discussed and applied the principles set out previously by the High Court (Finlay Geoghegan J.) in Eamon (Ted) Kelly v. An Bord Pleanála [2014] IEHC 400 (“ Kelly”) which had in turn drawn together, discussed and applied the principles set out in the case law of the CJEU. The point I was making in the summary at para. 10 of the principal judgment was that it was my conclusion that the Board had correctly identified and applied the test for a valid AA under EU law, on the basis of the pre-existing Irish and European case law, as subsequently set out and discussed by the Supreme Court in Connelly. I also concluded that the Applicants failed in their challenge to the Board's decision on the EIA grounds advanced by them.

7 Before I dealt with the relevant legal principles applicable to AA and considered the Board's decision by reference to those principles, I set out in the principal judgment the principles applicable to pleadings in planning judicial review cases by reference to O. 84 RSC, the case law of the Superior Courts and s. 50A of the 2000 Act (as amended). One of the points or questions put forward by the Applicants in support of their application for leave to appeal concerns that part of the principal judgment which addressed those principles and my conclusions in relation to the pleadings in respect of certain of the arguments which the applicants sought to advance at the hearing. My discussion of the principles applicable to pleadings in planning judicial review proceedings is found at paras. 99 to 116 of the principal judgment. I concluded in the principal judgment that the Applicants had failed to comply with the requirements in relation to pleadings in planning judicial review proceedings in respect of certain of the arguments which they sought to advance. However, notwithstanding my conclusions in relation to those parts of the Applicants' case. I nonetheless proceeded to consider the substance of the arguments which the Applicants sought to advance and found against them on those arguments.

8 At paras. 117 to 142 of the principal judgment, I set out and discussed the legal principles applicable to AA. Those principles were not in dispute between the parties. I considered the relevant legislative provisions. I then considered the judgments in Kelly and Connelly and noted that, in its judgment in Connelly, the Supreme Court had quoted in full the summary of the requirements for a valid AA under EU law, which had been set out in the judgment of Finlay Geoghegan J. in the High Court in Kelly (para. 130). I then referred to other relevant aspects of the judgment in Connelly. I considered the judgment of the CJEU in Holohan. I concluded (at para. 142) that the necessary requirements for a valid AA under EU law were as set out by the High Court in Kelly, as discussed and approved by the Supreme Court in Connelly. I then went on to consider the Applicants' case in relation to the AA carried out by the Board, by reference to the principles set out in those judgments (on which there was no dispute between the parties).

9 I considered the Applicants' case on AA at paras. 143 to 223 of the principal judgment. I first considered the case made by the Applicant that the Board had failed to disclose the “further evaluation and analysis” and the “comprehensive evaluation” referred to in the Board Order and Board Direction (together comprising the Board's decision). I considered the terms of the Board's decision and the documents referred to in it and concluded that, on the basis of the uncontested evidence of the Board, and on the basis of what was expressly stated in the Board's decision, the “farther evaluation and analysis” and the “comprehensive evaluation” referred to was that which was carried out by the Board at the meetings referred to in the Board's affidavit evidence and recorded in the Board's decision. I did not accept that the evaluation had not been provided by the Board (paras. 150 and 151). It is fair to say that my conclusions on this part of the Applicants' AA case featured prominently in the Applicants' application for leave to appeal.

10 I then considered the Applicants' pleaded grounds of challenge to the Board's decision on AA grounds which focused on three issues, namely, (a) the “probably/unlikely” methodology referred to in the NIS and revised NIS (paras. 158 to 162), (b) the potential impacts of the proposed development on the Golden Plover (paras. 163 to 188) and (c) the treatment of the Marsh Fritillary butterfly (paras. 189 to 196). In rejecting the Applicants' claims in relation to these three issues, I applied the principles set out in ...