Sweetman v an Bord Pleanála and Others (Application for leave to seek judicial review) (No 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 09 October 2009
• Neutral Citation: [2009] IEHC 599
• Court: High Court
• Date: 09 October 2009

Sweetman v Bord Pleanála & Ors

COMMERICAL LIST

JUDICIAL REVIEW

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA AND IRELAND AND THE ATTORNEY GENERAL AND THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT

RESPONDENTS

AND

GALWAY COUNTY COUNCIL AND GALWAY CITY COUNCIL

NOTICE PARTIES

[2009] IEHC 599

[No. 99JR/2009]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Permission

Conservation of natural habitats - Special areas of conservation - Necessary conservation measures - Alleged failure on part of State to properly transpose into Irish law provisions of Directive - Public participation - Duty to give reasons - Adequacy of reasons - Whether reasons given for decision inadequate - Adequacy of reasons provided - Formulation of reasons - Entitlement to look for assistance beyond terms of decision itself - Commission v Ireland (Case C- 427/07) (Unrep, ECJ, 15/1/2009), Buckley v Attorney General [1950] IR 627, Societa Italiana Dragaggi SpA v Ministero delle Infrastructure e-dei Transporti (Case C-117/03) [2005] ECR I - 167, Mulholland v An Bord Pleánala (No 2) [2005] IEHC 306, [2006] 1 IR 453, O'Keeffe v An Bord Pleanála [1993] 1 IR 39, Village Residents Association Ltd v An Bord Pleanála (No 3) [2001] 1 IR 441, NíÉilí v Environmental Protection Agency (Unrep, SC, 30/7/1999), Grealish v An Bord Pleanála [2007] 2 IR 536, O'Neill v An Bord Pleanála [2009] IEHC 202, (Unrep, Hedigan J, 1/5/2009), Deerland Construction Ltd v Aquaculture Licences Appeal Board [2008] IEHC 289, (Unrep, Kelly J, 9/9/2008), Fairyhouse Club Ltd v An Bord Pleanála (Unrep, Finnnegan P, 18/7/2001), South Bucks District Council v Porter [2004] 1 WLR 1953 and Nash v Chelsea College of Art and Design [2001] EWHC Admin 538, (Unrep, CA, 11/7/2001) considered - Parties - Attorney General - Role of Attorney General as guardian of public interest - Change in stance from opposing to supporting grant of relief - Whether State respondents permitted to participate - Whether State effected by outcome of proceedings - TDI Metro Ltd v Delap (No 1) [2000] 4 IR 337 considered; Usk v An Bord Pleanála, [2009] IEHC 346, (Unrep MacMenamin J, 8/7/09) followed - Interpretation - European law - Domestic law - Purpose - Objectives - Ambiguities - Approach - Status of impacted site -- Whether Board fundamentally misinterpreted European and domestic legislation - Whether any significant scientific disagreement as to impact on site - Appropriate assessment - Adverse impact on integrity of site - Presumptions - Two stage procedure - Whether project likely to have significant effect on site - Whether proposal affects integrity of site - Language of directive - Purposive or teleological interpretation - Waddenzee v Staatsecretaris van Landbouw (Case C-127/02) [2004] ECR I -7405 and Monsanto Agricoltura Italia SpA v Presidenza del Consiglio dei Ministri (Case C-236/01) [2003] ECR I -8105 applied; Commission v France (Case C-241/08), (Unrep, ECJ, 4/3/2010) Commission v Portugal (Case C-239/04) [2006] ECR I-10183, Commission v Italy (Case C-304/05) [2007] ECR I-7495 and Bund Naturschutz in Bayern eV v Freistaat Bayern (Case C-244/05) [2006] ECR I-8445 considered - Council Directive 2003/35/EC - Council Directive 85/337/EEC - Council Directive 96/61 EC - Council Directive 1992/43/EEC - Council Directive 97/11/EC - European Communities (Natural Habitats) Regulations 1997 (SI 94/1997) reg 3 and 5(4) - Planning and Development Act 2000 (No 30), ss 34(10), 50(2) and 50(4)(a) - Roads Act 1993 (No 14), s 15(1) - Leave granted but substantive application refused (2009/99JR - Birmingham J - 9/10/2009) [2009] IEHC 599

Sweetman v Bord Pleanála

ROADS ACT 1993 S51

EEC DIR 2003/35 ART 10(A)

EEC DIR 85/337

EEC DIR 96/61

CMS v IRELAND 2009 AER (D) 93 OJ 12.9.2009 (C-472/07 ECJ 16.7.2009)

EEC DIR 92/43 ART 6(3)

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 ART 30

PLANNING & DEV ACT 2000 S50(2)

RSC O.84

PLANNING & DEV ACT 2000 S50(4)(A)

ROADS ACT 1993 S15(1)

CONSTITUTION ART 28.4.2

EEC DIR 92/43 ART 6

BUCKLEY v AG 1950 IR 627

METRO LTD v DELAP (NO.1) 2000 4 IR 337

USK v BORD PLEANALA UNREP MACMENAMIN 8.7.2009 2009 IEHC 346

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 REG 4

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 CHAP 1

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 REG 3

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 ART 4(2)

EEC DIR 92/43 ART 21

SOCIETA ITALIAANA DRAGAGGI SPA v MINISTERO DELLE INFRASTRUCTURE E-DEI TRANSPORTI C117/03 UNREP ECJ 5.12.2003 ECR 2005 I-00167

EEC DIR 92/4 ART 6(2)

EEC DIR 92/4 ART 6(3)

EEC DIR 92/4 ART 6(4)

WILDLIFE (AMDT) ACT 2000 S75

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 REG 30

MULLHOLLAND v BORD PLEANALA (NO.2) 2006 1 IR 453

O'KEEFFE v BORD PLEANALA 1 IR 39

VILLAGE RESIDENTS ASSOCIATION LTD v BORD PLEANALA (NO.3) 2001 IR 441

NI EILLI v ENVIRONMENTAL PROTECTION AGENCY UNREP SUPREME 30.7.1999

PLANNING & DEV ACT 2000 S34(10)

GREALISH v BORD PLEANALA 2007 2 IR 536

O'NEILL v BORD PLEANALA UNREP HEDIGAN 1.5.2009 2009 IEHC 202

EEC DIR 97/11 ART 9

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENSES APPEAL BOARD UNREP KELLY 9.9.2008 2008 IEHC 289

SIMONS PLANNING & DEV LAW 2ED 2007 THOMSON ROUNDHALL

FISHERIES (AMDT) ACT 1997 S40(8)

FISHERIES (AMDT) ACT 2001 S10

FISHERIES (AMDT) ACT 1997 S52

SOUTH BUCKS DISTRICT COUNCIL v PORTER 2004 1 WLR 1953

NASH v CHELSEA COLLEGE OF ART & DESIGN 2001 EWHC 538

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 ART 6(3)

WADDENZEE v STAATSECRETARIS VAN LANDBOUW C127/02 2004 ECR1 -7405 2005 2 CMLR 31

MONSANTO AGRICOLTURA ITALIA SPA & ORS v PRESIDENZA DEL CONSIGLIO DEI MINISTRI & ORS C236/01 2003 ECR I-8105

CMSN v FRANCE C241/08

CMSN v PORTUGAL C239/04 2006 ECR I - 10183

CMSN v ITALY C304/05 ECR I- 07495

BAND NATURSCHUTZ IN BAYERN EV & ORS v FREISTAAT C244/05 2006 ECR I-08445

1 JUDGMENT of Mr. Justice Birmingham delivered the 9th day of October 2009.

2 1. This matter comes before the Court by way of a so-called telescoped application for leave to seek judicial review of a decision of An Bord Pleanála ("the Board") dated the 20 ^th day of November, 2008, whereby the Board authorised the notice parties, Galway County Council and Galway City Council ("Galway"/"the local authorities") to proceed with a proposed road development known as the Galway City Outer By-Pass ("GCOB"). Simultaneously, it is sought to quash the decision in question by way of an order for certiorari.

The Parties

3 2. The parties to the hearing are as follows. The applicant is described in the statement required to ground an application for judicial review as a photographer and a person having an interest in the environment and in promoting the protection of the environment. His grounding affidavit makes clear that he is a veteran environmental activist, having lodged in excess of 500 submissions in relation to hundreds of different developments over the years. He also has been an applicant challenging planning decisions before the High Court by way of judicial review on a number of occasions. When an application was made by Galway County Council on behalf of itself and Galway City Council to the Board for approval of an intended road scheme under s. 51 of the Roads Act 1993, he made a submission to the Board. Subsequently, he was a very active participant in the oral hearing that was held in relation to the proposal which commenced on the 13 ^th November, 2007, and concluded on the 23 ^rd January, 2008, after 21 sitting days.

4 3. The first respondent, the Board, is the statutory body charged with approving or refusing a proposal put before it.

5 4. The second, third and fourth named respondents, Ireland, the Attorney General and the Minister for the Environment, Heritage and Local Government ("the Minister") came to be involved in the proceedings in these circumstances. The applicants originally advanced a great number of grounds of challenge. Quite a number of these were based on a contention that there was a failure on the part of the State to properly or adequately transpose into Irish Law the provisions of Article 10(a) of Council Directive 2003/35/E.C. of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/E.E.C. and 96/61 E.C., O.J. L156/17, 25.06.2003, ("the Public Participation Directive").

6 5. However, while a very large number of challenges were originally formulated, the written submissions filed on behalf of the applicant made it clear that only three remained live. One of these three grounds of challenge has not been pressed at this stage, though one aspect of it remains open as it had been held over until the conclusion of the case when the question of costs comes to be determined. Since argument concluded, the European Court of Justice ("ECJ") has given judgment in the Case of Commission v. Ireland (Case C-427/07), which will have relevance to the question of costs. I will refer to these three grounds of challenge in shorthand as:-

7 (1) a complaint that the reasons given for the decision were inadequate,;

8 (2) a complaint that the Board had misinterpreted in a fundamental way Article 6(3) of Directive 1992/43/E.E.C. of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, O.J. L206/7 22.7.1992 ("the Habitats Directive") and Article 30 of the European Communities (Natural Habitats) Regulations 1997 ( S.I. No. 94 of 1997) ("the Regulations of 1997"/"the Natural Habitats Regulations").

9 (3) a complaint that Article 10(a) of the Public Participation Directive has not been transposed into Irish Law.

10 6. In...