Suaimhneas Ltd v Kerry County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] IEHC 451 |
| Docket Number | 2019 No. 648 JR |
| Court | High Court |
[2021] IEHC 451
2019 No. 648 JR
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Retention planning permission – Planning and Development Act 2000 s. 34(12) – Applicant seeking judicial review – Whether the respondent acted unlawfully in purporting to serve a request for further information in respect of a planning application, rather than rejecting the application outright and returning it to the notice party
Facts: The notice party, Mr O’Sullivan (the Developer), applied for retention planning permission. The application was pending before the respondent, Kerry County Council (the Planning Authority). The applicant, Suaimhneas Ltd (the Objecting Party), applied to the High Court seeking judicial review. The dispute between the parties centred on whether the Planning Authority acted unlawfully in purporting to serve a request for further information in respect of the planning application, rather than rejecting the application outright and returning it to the Developer, and whether a planning authority is entitled to have regard to revised development proposals in carrying out the notional screening exercise under s. 34(12) of the Planning and Development Act 2000 (as amended) (PDA 2000). The resolution of this dispute required consideration of the correct interpretation of s. 34(12) and consideration of the legal significance of an earlier decision of An Bord Pleanála to the effect that the development concerned could not be screened out for the purposes of the Habitats Directive (Directive 92/43/EEC).
Held by Simons J that the term the “development concerned” under s. 34(12) of the PDA 2000 should be understood as referring to the development as envisaged at the time the unauthorised development commenced; on this interpretation, a planning authority must ask itself whether development of the nature and extent envisaged at that time would have been likely to have a significant effect on any European Site. Simons J held that this notional screening exercise is to be carried out on the counterfactual hypothesis that an application for planning permission had been made prior to the commencement of the development concerned. Simons J held that the evidence before the court established that Kerry County Council had misdirected itself in law and had misunderstood the requirements of s. 34(12) of the PDA 2000. Simons J held that the Planning Authority had failed to make a decision as required under s. 34(12), and had instead purported to embark upon a screening exercise under s. 177U of the PDA 2000; the Planning Authority had, in effect, sought to screen the latest iteration of the development as proposed under the 2019 planning application, rather than to screen the “development concerned”. Simons J held that the emergence of revised proposals subsequently, some three years after the event, could not change the nature and extent of the “development concerned”. Simons J held that the Planning Authority had also misunderstood the legal implications of An Bord Pleanála’s earlier finding that it was precluded from considering a retention application in respect of the development concerned. Simons J was satisfied that the application for judicial review was not premature.
Simons J held that the application for judicial review would be allowed.
Application granted.
Elizabeth Murphy for the applicant instructed by O'Donovan Murphy & Partners (Cork)
David Browne for the respondent instructed by the County Solicitor
No appearance for the notice party
JUDGMENT of Mr. Justice Garrett Simons delivered on 9 July 2021
This judgment addresses the circumstances in which it is lawful to grant retention planning permission. The jurisdiction of a local planning authority to grant retention planning permission is restricted as a result of legislative amendments introduced under the Planning and Development (Amendment) Act 2010. These amendments were necessary in order to comply with a judgment of the Court of Justice of the European Union.
In brief outline, a local planning authority is now precluded from considering an application to retain unauthorised development in circumstances, inter alia, where the development concerned had been carried out in breach of certain requirements of the Habitats Directive (Directive 92/43/EEC).
There is currently an application for retention planning permission pending before Kerry County Council (“ the Planning Authority”). The dispute between the parties centres on whether the Planning Authority acted unlawfully in purporting to serve a request for further information in respect of this planning application, rather than rejecting the application outright and returning it to the developer.
The resolution of this dispute requires consideration of the correct interpretation of section 34(12) of the Planning and Development Act 2000 (as amended) (“ PDA 2000”). It also necessitates consideration of the legal significance of an earlier decision of An Bord Pleanála to the effect that the development concerned could not be screened out for the purposes of the Habitats Directive.
The following shorthand will be used, where convenient, to describe the parties to the proceedings. The applicant for judicial review, Suaimhneas Ltd, will be referred to as “ the Objecting Party”. The applicant for retention planning permission, Emer O'Sullivan, will be referred to as “ the Developer”. (The use of the term “applicant” to describe either of these parties will be avoided as it is apt to lead to confusion between (i) the applicant for judicial review, and (ii) the applicant for planning permission). Kerry County Council will be referred to as “ the Planning Authority”.
The PDA 2000 imposes a general obligation to obtain planning permission prior to the commencement of “development” as defined. Where development has been carried out without planning permission, it is, in principle, open to the developer to apply for planning permission ex post facto to “retain” the unauthorised development. Such a planning permission is referred to as a “retention” permission.
The circumstances in which retention planning permission may be obtained have been restricted as a result of amendments introduced to the PDA 2000 under the Planning and Development (Amendment) Act 2010. Section 34(12) of the PDA 2000 (as amended) now provides as follows.
“(12) A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced the application would have required that one or more than one of the following was carried out—
(a) an environmental impact assessment,
(b) a determination as to whether an environmental impact assessment is required, or
(c) an appropriate assessment.”
The steps to be taken by a planning authority where it refuses to consider an application are prescribed as follows under section 34(12B).
“(12B) Where a planning authority refuses to consider an application for permission under subsection (12) it shall return the application to the applicant, together with any fee received from the applicant in respect of the application, and shall give reasons for its decision to the applicant.”
The effect of these provisions is to preclude the grant of retention planning permission where the unauthorised development had been carried out in breach of certain requirements of the Environmental Impact Assessment Directive (“ EIA Directive”) ( Directive 2011/92/EU) and the Habitats Directive (Directive 92/43/EEC). The present proceedings are concerned only with an alleged breach of the Habitats Directive, so the discussion which follows will be confined to that Directive.
(There is special provision made under section 34(12A) in respect of unauthorised development within the curtilage of a dwelling house, but this is confined to the EIA Directive and thus not relevant to the present proceedings).
The Habitats Directive requires that development projects which are likely to have a significant effect on designated conservation sites (“ European Sites”) must be subject to what is referred to as an “appropriate assessment”. The Directive envisages that applications for development consent will be subject to a “screening” exercise to determine whether it is necessary to carry out an “appropriate assessment”. The screening exercise requires the competent authority to determine whether the development project, either individually or in combination with other plans or projects, is “likely to have a significant effect” on a protected European Site. This is to be determined by reference to best scientific knowledge.
Although the terms do not appear in the Habitats Directive itself, the terms “stage one” and “stage two” are often employed when describing this overall process, i.e. a stage one screening determination and a stage two appropriate assessment.
The case law of the Court of Justice makes it clear that the trigger for an appropriate assessment is a very light one, and that the mere probability or a risk that a project might have a significant effect is sufficient to make an appropriate assessment mandatory. See Case C-127/02, Waddenzee (at paragraphs 41 to 43).
The Court of Justice has recently reaffirmed the nature of the test to be applied in making a screening determination. See Case C-323/17, People Over Wind at paragraph 34 as follows.
“[…] it is settled case-law that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk...
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