Sabrina Joyce Kemper v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 27 April 2021
• Neutral Citation: [2021] IEHC 281
• Docket Number: [2020 No. 22 JR]
• Court: High Court
• Date: 27 April 2021

Between

Sabrina Joyce Kemper

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Irish Water Dac

Notice Party

[2021] IEHC 281

[2020 No. 22 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning application – Remittal – Applicant seeking judicial review – Whether the matter might be remitted to the first respondent

Facts: The first respondent, An Bord Pleanála, on 11th November, 2019, decided under s. 37G of the Planning and Development Act, 2000 to grant permission to the notice party, Irish Water, for the development of a large strategic infrastructure project called the Greater Dublin Drainage Project. The applicant, Ms Kemper, sought judicial review of the Board’s decision on a number of grounds which called for an examination of the pre-application consultation between May, 2008, when Fingal County Council published a Strategic Assessment for the Greater Dublin Strategic Drainage Scheme, and 20th June, 2018 when the planning application was made; the appointment of the Inspectors and Board members who dealt with the application; the approach by the Board to the assessment of the proposed development; the public and statutory consultation; and the reasons given for the decision. The applicant sought to make the case that there had been a failure on the part of the State to correctly transpose Article 2 of the EIA Directive into Irish national law. The High Court (Allen J), on 24th November, 2020 ([2020] IEHC 601), found that the applicant had made out her case on one ground, only, which was that the Board had failed to correctly identify and comply with the obligation imposed on it by art. 44 of the Waste Water Discharge (Authorisation) Regulations, 2007 as amended by the Waste Water Discharge (Authorisation) (Environmental Impact Assessment) Regulations, 2016 to seek the observations of the Environmental Protection Agency on the likely impact of the proposed development on waste water discharges. Allen J adjourned the matter for mention to allow the parties an opportunity to consider it. The first question to be addressed was whether any of the parties wished to make an application for leave to appeal. None of them did. The next question was whether, and if so the basis upon which, the matter might be remitted to the Board. The Board and Irish Water submitted that the single flaw in the process identified by the judgment of 24th November, 2020 could be addressed and remedied. The applicant submitted that the decision of the Board should simply be quashed.

Held by Allen J that he rejected the argument made on behalf of the applicant that he should approach the remittal application on the basis that the Regulations were deficient, or that he should obliquely revisit the issue as to whether the Regulations were deficient. He noted that the court has an express power to remit a decision in respect of which an order of certiorari has been made and it has a wide discretion to remit, which discretion must be exercised judicially and judiciously with the overall objective of achieving a just result. He found that the effect of an order of certiorari simply quashing the decision of the Board to grant the planning application would be to put Irish Water back to, at best, the point immediately before the planning application was lodged. He held that it would not be correct to remit the matter to the point at which the Board previously corresponded with the EPA, which was before the public consultation. He was satisfied that the point in the process at which it went wrong was – as the Board and Irish Water had submitted – the point at which the Board could and should have made its assessment: which was when the Inspector’s report was finalised.

Allen J held that there would be an order of certiorari quashing the decision of the first respondent dated 11th November, 2019 and an order remitting the notice party’s application dated 20th June, 2018 for reconsideration from the point at which the Inspector’s report was submitted to the first respondent. He held that, as against the second and third respondents, Ireland and the Attorney General, the application would be dismissed.

Planning application remitted to first respondent for further consideration.

JUDGMENT of Mr. Justice Allen delivered on the 27th day of April, 2021

Introduction

1 For the reasons given in a long judgment delivered on 24th November, 2020 ( [2020] IEHC 601) I concluded that a decision made by An Bord Pleanála (“ the Board”) on 11th November, 2019 under s. 37G of the Planning and Development Act, 2000 to grant permission to Irish Water for the development of a large strategic infrastructure project called the Greater Dublin Drainage Project had been shown by the applicant to have been legally flawed and that it must be quashed.

2 The applicant had sought judicial review of the Board's decision on a very large number of grounds which called for an examination of the pre-application consultation between May, 2008, when Fingal County Council published a Strategic Assessment for the Greater Dublin Strategic Drainage Scheme, and 20th June, 2018 when the planning application was made; the appointment of the Inspectors and Board members who dealt with the application; the approach by the Board to the assessment of the proposed development; the public and statutory consultation; and the reasons given for the decision. Besides, the applicant sought to make the case that there had been a failure on the part of the State to correctly transpose Article 2 of the EIA Directive into Irish national law. Following close case management and the filing of comprehensive written submissions the application for judicial review was heard by way of a telescoped hearing over three weeks in July, 2020.

3 Having carefully considered the evidence, the submissions of counsel, and the very voluminous authorities to which I was referred, I found that the applicant had made out her case on one ground, only, which was that the Board had failed to correctly identify and comply with the obligation imposed on it by art. 44 of the Waste Water Discharge (Authorisation) Regulations, 2007 as amended by the Waste Water Discharge (Authorisation) (Environmental Impact Assessment) Regulations, 2016 to seek the observations of the Environmental Protection Agency on the likely impact of the proposed development on waste water discharges.

4 Following the delivery of my judgment I adjourned the matter for mention to allow the parties an opportunity to consider it. The first question to be addressed was whether any of the parties wished to make an application for leave to appeal. None of them did.

5 The next question was whether, and if so the basis upon which, the matter might be remitted to the Board and it is that issue which is the subject of this judgment. The Board and Irish Water submit that the single flaw in the process identified by the judgment of 24th November, 2020 can be addressed and remedied. The applicant submits that the decision of the Board should simply be quashed.

Legal principles

6 There is no real contest as to the legal principles previously applied by the High Court in dealing with remittal applications, although – as I will come to – it is argued that they are not applicable to this remittal application. They were distilled by Barniville J. in Clonres CLG v. An Bord Pleanála [2018] IEHC 473 from the earlier authorities and have since been applied by him in Fitzgerald v. Dun Laoghaire Rathdown County Council [2019] IEHC 890 and by McDonald J. in Barna Wind Action Group v. An Bord Pleanála [2020] IEHC 177.

7 In Clonres Barniville J. identified the most significant authorities on the question of remittal and the basis upon which the court should exercise its jurisdiction to remit as Usk and District Residents Association Ltd. v. An Bord Pleanála [2007] IEHC 86, Tristor Ltd. v. Minister for the Environment [2010] IEHC 454, Christian v. Dublin City Council [2012] IEHC 309, and O'Grianna v. An Bord Pleanála [2015] IEHC 248 from which – starting at para. 44 – he discerned ten principles.

• “(1) The court has an express power to remit a decision in respect of which an order of certiorari has been made. That power is conferred by O. 84, r. 27(4) of the Rules of the Superior Courts (Usk, p. 12). The court may also have an inherent jurisdiction to remit a decision although it is not necessary to express a concluded view on the existence of such an inherent jurisdiction (Usk, p. 13). Order 84, rule 27(4) RSC states:-

  ‘Where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the Court, tribunal or authority concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.’

• (2) The court has a wide discretion to remit. That discretion ‘must be exercised both judicially and judiciously with the overall objective of achieving a just result’ (Usk, pp. 13 and 15). The court should decide whether or not to remit a decision to a decision-maker in the event of an order of certiorari being made ‘on the basis of fairness and justice’ (O'Grianna, para. 10).

• (3) The ‘overriding principle’ behind any remedy in civil proceedings including in considering whether to remit ‘should be to attempt, in as clinical a way as is possible, to undo the consequences of any wrongful or invalid act but to go no further’ (per Clarke J. in Christian at para. 4.6 referring to his earlier judgment in Tristor Ltd. v. Minister for the Environment and others [2010] IEHC 454 (“ Tristor”)). Further, ‘the sole function of the Court is to fashion an order which puts matters back into a position in which they were immediately before the wrongful exercise of a ministerial discretion...