Sweetman v an Bord Pleanála & others (Application for leave to seek judicial review)

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Clarke
Judgment Date26 April 2007
Neutral Citation[2007] IEHC 153
Docket Number[2006 No. 477
Date26 April 2007

[2007] IEHC 153

THE HIGH COURT

[No. 477 J.R./2006]
Sweetman v An Bord Pleanála & Ors
JUDICIAL REVIEW
IN THE MATTER OF SECTION 50 OF THE PLANNING AND
DEVELOPMENT ACT 2000

BETWEEN

PETER SWEETMAN
APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

AND

CLARE COUNTY COUNCIL
NOTICE PARTY

PLANNING & DEVELOPMENT ACT 2000 S50

ROADS ACT 1993 S51

EEC DIR 2003/35

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

EEC DIR 85/337

EEC DIR 96/61

EEC DIR 85/337 ART 10(a)

EEC DIR 2003/35 ART 7

FRIENDS OF CURRAGH ENVIRONMENT LTD v BORD PLEANALA UNREP KELLY 14.7.2006 2006 IEHC 243

BECKER v FINANZAMT MUNSTER-INNENSTADT 1982 1 ECR 53

MARSHALL v SOUTHAMPTON & SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY (TEACHING) 1986 1 ECR 723

NI EILI v ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85(8)

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S50

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S50(4)(a)(ii)

PLANNING & DEVELOPMENT (AMDT) ACT 2002 S12(b)

HARDING v CORK CO COUNCIL & BORD PLEANALA UNREP CLARKE 31/1/2007 2007 IEHC 31

O'KEEFFE v BORD PLEANALA 1993 1 IR 63 1992 ILRM 237 1991/5/1137

GASHI v MIN FOR JUSTICE & ORS UNREP CLARKE 3.12.2004 2004/19/4277

SIAC CONSTRUCTION LTD v MAYO CO COUNCIL 2002 3 IR 148 2002 2 ILRM 401 2002/26/6644

AARHUS CONVENTION ART 9

AARHUS CONVENTION ART 9 PARA 4

AARHUS CONVENTION ART 9 PARA 5

AARHUS CONVENTION ART 9 PARA 3

HARRINGTON v BORD PLEANALA & ORS UNREP MACKEN 11.7.2006 2006 IEHC 223

Abstract:

Planning and environment - Leave to apply for judicial review - Substantial interest - Substantial grounds - Public participation - Whether review through judicial review failed to meet requirements of Directive - Amendment of pleadings - Whether application out of time - Planning and Development Act 2000, s. 50(4)(b) - Directive 2003/35/EC

The applicant sought to challenge the validity of the approval by An Bord Pleanala to a road scheme pursuant to s. 50(4)(b) of the Planning and Development Act 2000. The applicant further contended that Ireland had failed to comply with its obligations under Council Directive 2003/35/EC. The Directive required that a person who wished to challenge certain environmental decisions have access to a judicial review of such decisions at a cost that was not prohibitively expensive.

Held by Clarke J. in refusing to grant leave that the applicant had met the substantial interests test in the unusual circumstances of the case but failed to establish substantial grounds for contending that the decision ought to be overturned. There were not substantial grounds for the contention that there had been a failure to properly transpose the Directive and the Directive did not require that there be an immunity from exposure to the sort of costs which arise in judicial review proceedings.

Reporter: R.W.

1. Introduction
2

2 1.1 In this case the applicant ("Mr. Sweetman") seeks to challenge a decision made by the first named respondent ("An Bord Pleanála") on 14th February, 2006 under s. 51 of the Roads Act 1993 (as amended) which had the effect of approving a road scheme designed to link the N18 Gort Road to the Ennis Information Age Park. The application for approval had been made by the notice party ("Clare Council"). Therefore the underlying challenge is to the validity of the approval by An Bord Pleanála of that road scheme.

3

3 1.2 However further significant issues arise in these proceedings by virtue of the case made on behalf of Mr. Sweetman to the effect that Ireland has, in certain respects material to these proceedings, failed to comply with its obligations under Council Directive 2003/35/EC ("the Directive"). The Directive requires that a person, such as Mr. Sweetman, who wishes to challenge certain environmental decisions, have access to a judicial review of such decisions, at a cost that is not prohibitively expensive. Mr. Sweetman seeks declaratory orders in that context, including a declaration that the State has failed to properly implement the provisions of the Directive. In that context it was necessary that the second and third named respondents ("the State") be joined for the purposes of dealing with the question of whether Irish law adequately implements the requirements of those Directives.

4

4 1.3 It is common case that a challenge such as that brought by Mr. Sweetman to the road scheme in question comes within the ambit of s. 50(4)(b) of the Planning and Development Act, 2000 ("the 2000 Act") and that an application for leave to seek judicial review must, therefore, be brought on notice. It further follows that in order that leave to seek judicial review be given, Mr. Sweetman has to establish a substantial connection with the proceedings and to establish substantial grounds for his contention. The respondents and notice party have put in issue the question of whether Mr. Sweetman has established a substantial connection with the proceedings. Furthermore it is contended that there are not substantial grounds for the challenge. Both of these questions are, potentially, complicated by the issues which arise concerning the proper transposition of the Directive into Irish law. In addition certain procedural and pleading issues have been raised by the respondents and the notice party to which it will be necessary to refer in due course. However, in all the circumstances, it seems to me to be appropriate to start with a consideration of the factual basis for Mr. Sweetman's initial challenge to the road scheme in the first place.

2. The Challenge
2

2 2.1 Clare Council applied to An Bord Pleanála for approval of its scheme to link the N18 Gort Road to the Ennis Information Age Park. In its original application Clare Council enclosed an environmental impact statement ("EIS"). Certain procedural issues were raised by An Bord Pleanála which are not material to these proceedings. A new application was made on 29th August, 2005 which was followed by the publication of statutory notices in various newspapers.

3

3 2.2 The road scheme comprises approximately 450 metres of 7.5 metre single carriageway road together with footpaths and cycle paths. It would appear to have been accepted that, in the ordinary way, the scale of the road scheme proposed would not have required the preparation of an EIS. However because of the environmental sensitivity of the area concerned an EIS was, in fact, prepared. The proposed road development is immediately south of Lough Girroga which forms part of the Ballyallia Lake candidate Special Area of Conservation ("cSAC"). It is, therefore, the proximity of the road to that area and its consequent proximity to the Burren that makes the development a sensitive one.

4

4 2.3 Notwithstanding this, it would appear on the evidence currently available, that the only person who made observations in relation to the development was Mr. Sweetman.

This was done by letter dated 24th October 2005 and as it is in very brief terms I propose setting it out in full. It reads as follows:-

"Ref: Ennis Inner Relief Rd. Phase I Environmental Impact Statement

Dear Sir,

I wish to make submission on this environmental impact statement.

Information is required as to what long term monitoring and enforcement mechanism is proposed by applications (sic) to ensure that there is no adverse impact on adjacent SAC."

2

2 2.4 In accordance with normal practice An Bord Pleanála appointed an inspector who considered the matter and reported to the Board. It is clear from the report of the inspector that he gave detailed consideration to the many matters dealt with in the EIS and came to the view that the road scheme should be approved. He had specific regard to the submission of Mr. Sweetman at para. 6.8 of his report in the following terms:-

"Regarding the submission of Mr. Sweetman, it is considered that, as the road is largely on embankment and more importantly, the drainage system is split with one discharge to the east (EIAP system) and one to the west (N18 Gort Road) the proposed condition regarding ground water monitoring would be sufficient to ensure potential impact on the cSAC are dealt with. It is also of note that there are attenuation/interceptor arrangements proposed for the surface water system."

3

3 2.5 At an overall level the inspector went on, at para. 6.9, to conclude that:-

"Overall the impacts or potential impacts are considered to be adequately assessed and addressed in the EIS and mitigation measures as proposed are considered satisfactory."

4

4 2.6 While recommending approval of the road scheme the inspector did, as the passage from his report referred to above (para. 6.8) imply, also recommend the imposition of a modification in the following terms:-

"Prior to the commencement of the proposed development groundwater monitoring shall be carried out along the route of the proposed road to establish groundwater levels and quality in groundwater flow patterns. The monitoring shall continue for a period of three years following the post completion of the proposed road. The results of the monitoring shall be made available at the offices of Ennis Town Council on a monthly basis."

5

5 2.7 The stated reason for that modification was to ensure adequate monitoring of "potential impacts on Lough Girroga candidate Special Area of Conservation".

A central plank of Mr. Sweetman's challenge to the approval by An Bord Pleanála of the road scheme is that that requirement for monitoring is of little value in the absence of an additional provision providing for what is to occur in the event that the monitoring reveals an unexpected effect on the cSAC.

2

2 2.8 In that context Mr. Sweetman draws attention to a passage from para. 3.8 of the Inspector's report...

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