Save Cork City Community Association CLG v an Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 16 November 2021
• Neutral Citation: [2021] IEHC 700
• Docket Number: [2020 No. 563 JR]

In the Matter of the Planning and Development Act 2000 as Amended

Between

Save Cork City Community Association CLG

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Cork City Council

Notice Party

[2021] IEHC 700

[2020 No. 563 JR]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Judicial review – Planning and development – Applicant seeking leave to appeal – Whether one could do a full environmental impact assessment of the wider works

Facts: The High Court (Humphreys J), on 28th July, 2021, in Save Cork City v An Bord Pleanála (No. 1) [2021] IEHC 509, dismissed an application for certiorari of the decision of the first respondent, An Bord Pleanála, and granted a declaration, while adjourning one relief against the State generally with liberty to re-enter. The applicant, Save Cork City Community Association CLG, sought leave to appeal pursuant to s. 50A(7) of the Planning and Development Act 2000. The applicant’s proposed questions of exceptional public importance were: (1) “Did the Court apply the correct test in concluding that there was no requirement to subject the whole set of works comprised in the LLFRS to EIA?” (2) “Was the Court correct to reach the view that jurisdiction to conduct EIA screening can properly be read in to section 177AE by necessary implication from s. 177AE(15)?” (3) “Is a respondent or notice party entitled to raise during oral submissions an argument not pleaded and not relied on in the Inspector’s report, the decision or even the written submissions? Is this consistent with the Aarhus requirement that legal procedures be fair and equitable? Is this consistent with a right to fair procedures under Article 40.3 and equality before the law under Article 40.1 of the Constitution?”

Held by Humphreys J that: (1) one could not do a full environmental impact assessment (EIA) of the wider works because there was no formal application before the decision-maker so full EIA unmoored from a specific application did not arise, there was a lack of sufficient relationship between the project and the wider works and the applicant’s interpretation would be impractical; (2) the applicant had not explained why Humphreys J’s decision about the applicability of s. 177AE(15) could be incorrect, the applicant’s argument results in a situation whereby an EIA screening assessment could not properly be carried out at all and that would be a breach of EU law, whereas the interpretation Humphreys J adopted was a harmonious one; (3) the proposed question ignored the role of the Court in an exercise of statutory interpretation, issue was joined on this point and the premise was not correct.

Humphreys J held that leave to appeal would be refused.

Leave to appeal refused.

(NO. 2)

JUDGMENT of Humphreys J. delivered on Tuesday the 16th day of November, 2021

1 In Save Cork City v. An Bord Pleanála (No. 1) [2021] IEHC 509, ( [2021] 7 JIC 2802 Unreported, High Court, 28th July, 2021), I dismissed an application for certiorari of the board's decision and granted a declaration, while adjourning one relief against the State generally with liberty to re-enter.

2 The applicant now seeks leave to appeal pursuant to s. 50A(7) of the Planning and Development Act 2000.

3 I have considered the law in relation to leave to appeal including the decisions in Lancefort Ltd. v. An Bord Pleanála [1998] 2 I.R. 511, Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112, Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, [2006] 7 JIC 1302 (Unreported, High Court, MacMenamin J., 13th July, 2006), Harding v. Cork County Council [2006] IEHC 450, [2006] 11 JIC 3001 (Unreported, High Court, Clarke J., 30th November, 2006), ( [2008] IEHC 2 Arklow Holidays Ltd. v. An Bord Pleanála Unreported, High Court, 11th January, 2008), Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, [2015] 6 JIC 1805 (Unreported, High Court, McGovern J., 18th June, 2015), Callaghan v. An Bord Pleanála [2015] IEHC 493, [2015] 7 JIC 2405 (Unreported, High Court, Costello J., 24th July, 2015), Buckley v. An Bord Pleanála [2015] IEHC 590, ( [2015] 9 JIC 1601 Unreported, High Court, 16th September, 2015), S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016), Heather Hill Management Company v. An Bord Pleanála [2019] IEHC 820, [2019] 12 JIC 0502 (Unreported, High Court, Simons J., 5th December, 2019), Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, Simons J., 15th May, 2020), Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, Barniville J., 31st August, 2020), Dublin City Council v. An Bord Pleanála [2021] IEHC 34, ( [2021] 1 JIC 2801 Unreported, High Court, 28th January, 2021), Dublin Cycling Campaign CLG v. An Bord Pleanála [2021] IEHC 146, [2021] 2 JIC 2508 (Unreported, High Court, McDonald J., 25th February, 2021), An Taisce v. An Bord Pleanála (No. 2) [2021] IEHC 422, ( [2021] 7 JIC 0205 Unreported, High Court, 2nd July, 2021), ( [2021] IEHC 636 Hellfire Massy Residents Association v. An Bord Pleanála (No. 2) Unreported, High Court, 13th October, 2021).

4 Insofar as reference is made in the caselaw to it not being appropriate to reargue the case when seeking leave to appeal, that is a valid consideration in some cases (particularly if the losing party does no more than that), but one mustn't make too much of it. An argument made by a would-be appellant seeking to demonstrate uncertainty arising from the judgment is often functionally indistinguishable from an argument that the judgment was wrong, so positing reasons why the judgment was incorrect by reference to objective legal materials or arguments is not in itself a problem at this stage of the procedure. Conversely, if a would-be appellant can't come up with any plausible basis for saying that the judgment was in fact wrong, and has to take refuge in nebulous claims that it is merely novel or wide-ranging, that is normally disqualifying since no real uncertainty can be said to arise.

5 The applicant made an attempt to argue that the Arklow Holidays approach is in tension with the desirability of specificity in the question to be certified as referred to in S.A. v. Minister for Justice and Equality, as if that point was new, but such an argument has previously been made and fully addressed, and reasons have been given as to why a degree of specificity in the question is desirable, in Clifford v. An Bord Pleanála (No. 2) [2021] IEHC 642, ( [2021] 10 JIC 1502 Unreported, High Court, 15th October, 2021) at paras. 3 to 9. The applicant here made no attempt to engage with that analysis.

Applicant's proposed first question of exceptional public importance

6 The applicant's proposed first question is: “Did the Court apply the correct test in concluding that there was no requirement to subject the whole set of works comprised in the LLFRS to EIA?”

7 The vague and discursive nature of the question is a poor start. It does not attempt to assert what the correct test is, leaving the potential appeal free to mutate in any direction. The premise of the question derives from para. 79 of the No. 1 judgment which notes that the works form part of a wider set of possible works which the inspector referred to as a “masterplan”. If my experience is anything to go by, the trial judge normally learns something during the leave to appeal process, when one sees the judgment analysed by all parties, not just the applicant. In the present case, the council in effect suggests that this sentence should have referred to “some of these works” rather than “these works” simpliciter because the public realm element is independent of the flood relief works. I accept that correction, but it doesn't make any difference to the conclusion.

8 Essentially three point are made in paras. 79 and 80 of the No. 1 judgment.

9 Firstly, one cannot do a full environmental impact assessment (EIA) of the wider works because there is no formal application before the decision-maker, so full EIA unmoored from a specific application doesn't arise. Unfortunately, while the applicant disagrees with that, it has not explained why the law is uncertain by reference to some tenable argument for a different approach. This conclusion seems to me to follow from the Supreme Court decision in Fitzpatrick v. An Bord Pleanála [2019] IESC 23, [2019] 3 I.R. 617, and at least in this case, the applicant hasn't shown how EU law may have evolved to require a different conclusion, so there is not really any purpose to further appellate clarification.

10 The second point made was the lack of sufficient relationship between the project here and the wider works. At para. 79 of the No. 1 judgment I said that the present project did not seem to have the sort of necessary interaction with the wider works that would render full EIA mandatory. The applicant says that I did not articulate reasons for that. Strictly speaking, that demand falls into the category described by Munby L.J. in In re A & L (Children) [2011] EWCA Civ 1611, para. 35: “there is no obligation for a judge to go on and give, as it were, reasons for his reasons”; and at para. 43: “[t]he fact that [the] Judge … did not deal in his judgment with every matter to which [counsel] draws attention does not of itself invalidate either his reasoning or his conclusions.” That being said, if the applicant thinks it's unclear, I drew on the fact that the board formed that view as set out in the inspector's report at paras. 11.3.1 and 11.3.2 stating that the development could...