Shannon Regional Fisheries Board v an Bord Pleanála

• Jurisdiction: Ireland
• Judgment Date: 17 November 1994
• Date: 17 November 1994
• Docket Number: [1993 No. 281 J.R.]
• Court: High Court

High Court

[1993 No. 281 J.R.]

Shannon Regional Fisheries Board v. An Bord Pleanála

Shannon Regional Fisheries Board

Applicant

and

An Bord Pleanála

Respondent

Cavan County Council and Patrick Kiernan, Notice Parties

Cases mentioned in this report:—

Howard v. The Commissioners of Public Works [1994] 1 I.R. 101; [1993] I.L.R.M. 665.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

The State (Abenglen Properties Ltd.) v. Dublin Corporation [1984] I.R. 381; [1982] I.L.R.M. 590.

Judicial review - Statutory interpretation - Ambiguity - Whether statutory interpretation is a matter for the courts alone when a meaning is not free from doubt.

Local government - Planning - Planning application - Mandatory environmental impact statement - Local authority deciding application without environmental impact statement - An Bord Pleanála not empowered to require submission of environmental impact statement - Whether An Bord Pleanála having jurisdiction to decide appeal - Whether An Bord Pleanála should have sought opinion of High Court - European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349), First Schedule, Part II, para. 1 (e) - Local Government (Planning and Development) Regulations, 1990 (S.I. No. 25), art. 4 - Local Government (Planning and Development) Act, 1963 (No. 28), s. 82, sub-s. 3.

Words and phrases - "Sow" - "Gilt" - Whether pig pregnant with first litter a "sow" or a"pig" - European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349), First Schedule, Part II, para. 1 (e).

Judicial review.

The facts and the relevant statutory provisions have been summarised in the headnote and fully set out in the judgment of Barr J.,infra.

On the 7th December, 1993, the High Court (Murphy J.) gave leave to the applicant to apply for an order of certiorari of the respondent's decision by way of application for judicial review. A statement of opposition was filed on the 4th February, 1994.

The application was heard by the High Court (Barr J.) on the 21st October and the 3rd and 4th November, 1994.

By virtue of art. 4 of the Local Government (Planning and Development) Regulations, 1990, and art. 24 and First Schedule, Part II, para. 1 (e) of the European Communities (Environmental Impact Assessment) Regulations, 1989, an application for planning permission must be accompanied by an environmental impact statement in the case of:—

"Pig-rearing installations where the capacity would exceed 1,000 units on gley soil or 3,000 units on other soils and where units have the following equivalent:

one pig = one unit

one sow = ten units."

By virtue of art. 56, para. 1 of the Local Government (Planning and Development) Regulations, 1994 (which were not in force at the material times in the instant case) An Bord Pleanála is empowered, when determining an appeal, to require an applicant for planning permission to furnish an environmental impact statement.

Section 82, sub-s. 3 of the Local Government (Planning and Development) Act, 1963, provides inter alia that "where a question of law arises on any . . . appeal . . . the question may be referred to the High Court for decision by it by . . . [the Board]."

The second notice party obtained retention permission from the first notice party for an extension to his pig-rearing installation providing accommodation for 400 pregnant"gilts" together with space for servicing gilts and accommodation for boars. The application had not been accompanied by an environmental impact statement. The grant of permission was upheld by the respondent.

The applicant sought to quash the decision of the respondent on the ground that the development was one which required an environmental impact statement, so that the respondent had had no jurisdiction to determine the appeal without one; that the decision of the planning authority had been ultra vires in the absence of the statement and that the respondent had accordingly had no jurisdiction to hear an appeal from it; and that if the respondent did have jurisdiction to hear the appeal, it had acted ultra vires in determining it in the absence of the statement.

The respondent contended that an environmental impact statement was not required in that a gilt, being a female pig which had not yet had a litter, was not a sow constituting ten units under para. 1 (e); that in any event, the court should not interfere with the decision to grant permission unless the definition of "gilt" adopted by the respondent had been wholly irrational; and that even if the decision of the planning authority had been ultra vires and void, it nevertheless constituted a decision capable of being appealed.

Held by Barr J., in quashing the decision of the respondent and remitting the matter to it, 1, that where a statutory obligation was clear the function of a competent body such as a planning authority was to decide whether the obligation had been complied with; but that where the obligation was not clear, the function of the court to interpret the relevant statute could not be usurped. In the instant case, the meaning to be attached to the word"sow" was not free from doubt, so that it was for the court to interpret the regulation and not to consider whether the respondent had acted reasonably in the interpretation it had adopted.

2. That the intention of the legislature was to be determined by the words used; and that in order to understand those words, it was natural to inquire what was the subject matter with respect to which they were used, and the object in view.

Howard v. The Commissioners of Public Works [1994] 1 I.R. 101 applied.

3. That the regulations of 1989 emanated from a recognition that large scale industrial or agricultural activities might cause substantial damage to the environment and therefore required to be properly regulated in order to minimise that risk; that the logic of the formula provided at para. 1 (e) was to allocate a greater number of units to pregnant pigs because of the potential for generating through their expected offspring a substantially greater amount of slurry than single pigs; that there was no practical distinction to be made between a pregnant...