Save Roscam Peninsula CLG v an Bord Pleanála (No. 4)
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 14 July 2022 |
| Neutral Citation | [2022] IEHC 426 |
| Court | High Court |
| Docket Number | [2021 No. 1110 JR] |
In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)
and
[2022] IEHC 426
[2021 No. 1110 JR]
THE HIGH COURT
JUDICIAL REVIEW
(No. 4)
JUDGMENT of Humphreys J. delivered on Thursday the 14th day of July, 2022
The primary relief sought by the applicant is an order of certiorari quashing the decision of the first respondent, An Bord Pleanála (the board), dated 28th October, 2021 (file reference 310797) authorising a proposed Strategic Housing Development at Rosshill, Galway involving demolition of existing silage concrete apron and the construction of 102 residential units (35 apartments, 67 houses), a crèche and associated site works.
The applicant, the board and the State made submissions on the questions concerned. The notice party developer and Galway City Council did not take up the opportunity to do so.
The notice party developer applied for permission for the present development and submitted plans and particulars on 9th July 2021.
An appropriate assessment was conducted which concluded that the relevant European sites would not be adversely affected.
An environmental impact assessment was conducted which concluded that adverse effects could be mitigated.
The board concluded that a grant of permission would not materially contravene the Galway City Development Plan in relation to zoning, but would so contravene the plan in relation to plot ratio/ density. The board decided that this contravention could be justified by reference to government policy and ministerial guidelines.
Permission was granted with 33 conditions on 28th October, 2021.
The applicants filed a statement of grounds challenging this decision on 17th December, 2021.
Liberty to file an amended statement of grounds was granted on 20th December, 2021.
The amended statement of grounds was filed on 21st December, 2021. Certain grounds were subsequently adjourned generally, as set out below, while in relation to other grounds there was agreement that there be no order as to costs.
A dispute then arose as to the costs of the proceedings in relation to the remaining grounds, and the applicants filed a motion on 15th February, 2022 seeking pre-emptive orders declaring their entitlement to costs protection prior to the case being progressed substantively.
The board correctly makes the point that the motion regarding protective costs incorrectly covers all the grounds whereas in fact it should only apply to the grounds where there is a dispute.
In Save Roscam Peninsula CLG v. An Bord Pleanála (No. 1) [2022] IEHC 202, ( [2022] 4 JIC 0809 Unreported, High Court, 8th April, 2022), I noted that there was no dispute about the no-order-as-to-costs rule in relation to certain grounds, and in relation to the rest I refused a declaration that the applicants were entitled to costs protection under s. 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011, and adjourned the applicants' points relating to the interpretative application under the Aarhus Convention pending the present reference to the CJEU.
In Save Roscam Peninsula CLG v. An Bord Pleanála (No. 2) [2022] IEHC 328, ( [2022] 6 JIC 0903 Unreported, High Court, 9th June, 2022), I granted leave to appeal under s. 50A(7) of the 2000 Act in relation to the issues under the 2011 Act on the question set out in the judgment. That does not affect the proposed reference, as matters stand.
In ( [2022] IEHC 425 Save Roscam Peninsula CLG v. An Bord Pleanála (No. 3) Unreported, High Court, 14th July, 2022), I dealt with certain procedural matters not necessary for the order for reference, particularly setting out a list of relevant legal material with web links in order to assist the CJEU.
I now make the formal order for reference.
The core grounds of challenge are as follows:
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(i). the board had no jurisdiction to grant permission in respect of a development that materially contravened the development plan in relation to zoning, and it infringed s. 9(6)(b) of the 2016 Act and s. 10(2)(a) of the 2000 Act;
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(ii). the board granted permission in material contravention of the Development Plan for the purposes of s. 9(6) of the 2016 Act without first directing itself correctly as to the meaning of that plan as required by s. 9(2);
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(iii). the board failed to have any or any proper regard to relevant guidelines and policy as required by s. 9(2) of the 2016 Act and s. 28 of the 2000 Act before deciding to grant permission for a material contravention of the Development Plan pursuant to s. 9(6) of the 2016 Act and s. 37(2) of the 2000 Act;
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(iv). the board failed to have any or any proper regard to the National Planning Framework as required by s. 9(2) of the 2016 Act and s. 143 (2000 Act) before deciding to grant permission
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(v). that it was not open to the board to grant permission in material contravention of the Development Plan for the purposes of s. 9(6) of the 2016 Act and s. 37(2)(b)(iii) of the 2000 Act where the Development Plan is already compliant with relevant guidelines and Government policy;
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(vi). the board erred in finding that the Height Guidelines warranted a grant of permission in circumstances where the predominant part of the proposed development would involve a 2-storey, cul-de-sac dominated approach contrary to paragraph 3.7 of those guidelines;
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(vii). the decision is invalid because the Board's Inspector failed to report adequately on the submissions made, or to make recommendations in relation to them, contrary to s. 146 of the 2000 Act as applied by s. 17 of the 2016 Act.
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(viii). [ground 8 has been dropped]
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(ix). that the developer had no interest in the site (lands comprising the L5037 Old Dublin Road) and the council in whose charge that road is has no power to authorise the Developer carry out works on it, or to apply for permission to do so and the purported consent issued by council to the developer to apply for permission in respect of road construction works on or beneath that road is ultra vires the council;
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(x). [ground 10 has been dropped]
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(xi). the board failed to carry out an EIA in accordance with the requirements of ss. 171A and 172 of the 2000 Act as applied by s. 20 of the 2016 Act, and failed to comply with arts. 1(2)(g), 2(1), 3(1), 5 and 8 of the EIA Directive, or with ss. 9(1) and 10(3) of the 2016 Act, in relation to effects on groundwater, protected sites, bats, birds, significance, alternatives, and monitoring [the application of the not-prohibitively-expensive-costs principle to ground 11 is not in dispute although the applicant seeks the no-order-as-to-costs rule];
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(xii). [it is agreed that the no-order-as-to-costs rule will apply to ground 12]
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(xiii). [it is agreed that the no-order-as-to-costs rule will apply to ground 13]
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(xiv). [ground 14 has been adjourned generally];
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(xv). the board failed to exercise its powers and duties under the 2000 and 2016 Acts in accordance with the requirements of the EIA directive, habitats directive and SEA directive where the provisions of s. 5 of the Interpretation Act 2005 require that those Acts be so interpreted [the application of the not-prohibitively-expensive-costs principle to ground 15 is not in dispute; the applicant seeks the no-order-as-to-costs rule which is partly but not wholly conceded];
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(xvi). [ground 16 has been adjourned generally];
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(xvii). [ground 17 has been adjourned generally];
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(xviii). [ground 18 has been adjourned generally].
The most pertinent provisions of EU law are as follows:
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(i). Directive 2001/42/EC of the European Parliament and of the Council of 27th June, 2001 on the assessment of the effects of certain plans and programmes on the environment.
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(ii). Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters.
Also relevant as a result of the foregoing are:
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(i). the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, signed in Aarhus (Denmark) on 25th June, 1998 (‘the Aarhus Convention’) in particular art. 9.
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(ii). The Rio Declaration on Environment and Development adopted by the United Nations Conference on Environment and Development, held at Rio de Janeiro on 3rd-14th June 1992.
The most pertinent provisions of domestic law are as follows:
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(i). Section 50B of the Planning and Development Act 2000, sub-section (2) of which provides a general rule that parties in judicial reviews of decisions under enactments giving effect to EU law public participation rules, or article 6(3) and (4) of the habitats directive, shall bear their own costs. The section provides for limited exceptions as well as for provision in sub-section (2A) for the applicant to obtain costs to the extent that she is successful.
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(ii). Section 3 of the Environment (Miscellaneous Provisions) Act 2011 Act, which provides a similar rule for proceedings to which that section applies, and section 4 of the Act, which applies the section to actions for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or to certain other planning requirements, where the failure to ensure such compliance with, or enforcement of, such...
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