Save Cork City Community Association CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Woulfe
• Judgment Date: 21 December 2022
• Neutral Citation: [2022] IESC 52
• Court: Supreme Court
• Docket Number: Supreme Court Record No. 2022/12

In the Matter of the Planning and Development Act 2000

Between/

Save Cork City Community Association CLG

Applicant/Appellant

and

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

Respondents

and

Cork City Council

Notice Party

[2022] IESC 52

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

Hogan J.

Supreme Court Record No. 2022/12

High Court Record No. 2020/563 JR

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Judicial review – Jurisdiction – Environmental impact assessment – Appellant seeking judicial review – Whether the first respondent has jurisdiction to conduct a screening for EIA in an application made under s. 177AE of the Planning and Development Act 2000

Facts: The appellant, Save Cork City Community Association CLG, appealed to the Supreme Court against the judgment of the High Court (Humphreys J) delivered on the 28th July, 2021 ([2021] IEHC 509), and the order made in consequence thereof on the 10th December, 2021. The High Court decision was to dismiss the appellant’s application for judicial review as to certain reliefs sought, to grant one declaration, and to adjourn one relief against the second, third and fourth respondents, the Minister for Housing, Local Government and Heritage, Ireland and the Attorney General (the State respondents), generally with liberty to re-enter. The case involved a challenge to the validity of a decision dated the 17th June, 2020, made by the first respondent, An Bord Pleanála (the Board), to approve a development to be carried out by the notice party, Cork City Council (the Council), involving flood defence works at an area of Cork known as Morrison’s Island that began as one of the marshes surrounding the city. The appellant submitted that the issue the Supreme Court had to decide was very simple, namely, does the Board has a jurisdiction to conduct an environmental impact assessment (EIA) screening exercise – whether pursuant to s. 177AE(15) of the Planning and Development Act 2000 as was found by the trial judge, or as pursued as an additional ground by the Board in the Supreme Court, by virtue of a conforming interpretation? The appellant stated that the “obvious and correct” answer to this question was “no”, by simply reading the relevant section.

Held by Woulfe J that the following issues arose for decision in the appeal: (a) whether the Board has jurisdiction to conduct a screening for EIA in an application made under s. 177AE of the 2000 Act; and (b) if the answer to (a) is no, whether the Court should grant the discretionary remedy of certiorari in the circumstances of the case. Woulfe J agreed with the trial judge that the Board does have jurisdiction to conduct a screening for EIA in an application made under s. 177AE of the 2000 Act.

Woulfe J dismissed the appeal.

Appeal dismissed.

JUDGMENT of Mr. Justice Woulfe delivered on the 21 ^st day of December, 2022

Introduction

1 . The appellant appeals against the judgment of the High Court (Humphreys J.) delivered on the 28 ^th July, 2021 ( [2021] IEHC 509), and the order made in consequence thereof on the 10 ^th December, 2021. The High Court decision was to dismiss the appellant's application for judicial review as to certain reliefs sought, to grant one declaration, and to adjourn one relief against the second, third and fourth named respondents (the “State respondents”) generally with liberty to re-enter.

2 . This case involves a challenge to the validity of a decision dated the 17 ^th June, 2020, made by the first named respondent, An Bord Pleanála (“the Board”), to approve a development to be carried out by the notice party, Cork City Council (“the Council”), involving flood defence works at an area of Cork known as Morrison's Island that began as one of the marshes surrounding the city. It appears that the area is now a small part of the central island between the two channels of the River Lee that encircle the inner city.

3 . The Council originally intended to carry out the proposed development pursuant to s.179 of the Planning and Development Act 2000 (“the 2000 Act”) and the Regulations implementing that provision, Part 8 of the Planning and Development Regulations 2001 (“the 2001 Regulations”). However, judicial review proceedings were brought in 2018 ( inter alia by the appellant) challenging the validity of that approach. On the 8 ^th January, 2019, an order of certiorari was made by the High Court quashing the Council's decision to carry out the proposed development, the primary ground being that as the proposed development was development in respect of which an appropriate assessment (“AA”) was required, the s.179/Part 8 procedure did not apply by virtue of s.179(6)(e) of the 2000 Act.

4 . Having regard to the outcome of the judicial review, the Council was then required to apply to the Board for approval of the proposed development pursuant to s.177AE of the 2000 Act. The formal application for approval was submitted to the Board on the 13 ^th December, 2018 and was accompanied by a Natura impact statement (“NIS”), and also by an environmental impact assessment (“EIA”) screening report and an environmental report.

5 . On the 10 ^th March, 2020, the Inspector furnished a report which noted that there was no provision under s.177AE of the 2000 Act to require EIA screening for a project under that section. Notwithstanding this, it was noted that a considerable number of submissions from the public had raised the issue of the need for an EIA, and the related issues of project splitting, need to examine alternatives and cumulative effects with other projects. Furthermore, the applicant for approval had submitted an EIA screening report with the application. She therefore considered it appropriate for the Board to address this issue.

6 . As part of her report the Inspector carried out a comprehensive screening for EIA and she concluded as follows (at para. 11.2.4):

“Likely Significant Effects of Project

The proposed scheme does not comprise a mandatory project requiring EIA as specified in either Part 1 or Part 2 of Schedule 5 of the Regulations 2001 (as amended), but does fall within subthreshold development. Although there is no legislative provision to carry out EIA screening for a project submitted under s.177AE of the Planning and Development Act 2000 (as amended), EIA screening has been carried out in light of the concerns raised in third party submissions to the Board. In light of the screening, it is considered that there is no potential for significant impact on the environment and that there is no requirement to undertake an environmental impact assessment.”

7 . As appears from the Board direction dated the 4 ^th June, 2020, at a Board Meeting held on that date the Board decided to grant approval “generally in accordance with the Inspector's recommendation”, for the reasons and considerations set out therein and subject to the conditions set out therein. The decision was then formalised in a formal order of the Board dated the 17 ^th June, 2020, which stated that having regard, inter alia, to the nature, scale and extent of the proposed development, it “would not adversely affect the environment”.

The High Court Proceedings

8 . The appellant obtained leave to challenge the Board's decision by way of an application for judicial review on a number of grounds. The relevant ground for the purposes of the present appeal was an alleged lack of jurisdiction on the part of the Board to carry out EIA screening via s.177AE of the 2000 Act.

9 . In dismissing this ground of challenge Humphreys J. noted that the statement of opposition of the Board, like the Inspector's report, stated that s.177AE did not provide for EIA screening. The trial judge felt that clearly, in context, these references meant that the section did not expressly so provide. He felt the issue was whether EIA screening was implicitly provided for.

10 . Insofar as it was argued that s.177AE(6), which provides for taking into account environmental impacts, provides such a basis, the trial judge felt that that came nowhere near providing transposition of the detailed procedures in the 2011 and 2014 EIA Directive.

11 . Humphreys J. regarded as relevant s.177AE (15), which provides that where a proposed development to which s.177AE applied was also required to be submitted to the Board under s.175 (EIA being required), it shall be sufficient for the applicant to make one application to the Board provided that the applicant complies with both s.177AE and s.175, and in such a case the Board shall issue one decision in relation to the application under s.177AE and s.175. He held that the Board must thus have a necessarily implied jurisdiction to determine whether the application should be dealt with by way of compliance with s.177AE alone, or in conjunction with s.175. That being the case, that necessarily involves a determination as to whether s.175 applies by virtue of Schedule 5 to the 2001 Regulations, and that amounts to a screening decision in all but name. If EIA was required in an application under s.177AE, then the application would have to be the refused or alternatively further information sought to enable s.175 to be complied with (assuming that were a valid procedural option, which Humphreys J. felt he did not have to decide for present purposes).

12 . Despite the fact that he felt the jurisdiction to conduct EIA screening, therefore, arises in the legislation in a highly indirect manner, Humphreys J. was of the view that it could properly be read into the section by necessary implication from s.177AE (15).

13 . The appellant sought leave to appeal to the Court of Appeal under s.50A(7) of the 2000 Act, but this application was dismissed by Humphreys J. in a second judgment delivered by him on the 16 ^th November, 2021 ( [2021] IEHC 700).

Determination

14 . This Court granted the...