Sweetman v an Bord Pleanála & others (Discovery)

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 03 April 2009
• Neutral Citation: [2009] IEHC 174
• Court: High Court
• Date: 03 April 2009

[2009] IEHC 174

THE HIGH COURT

[No. 99 J.R./2009]

Sweetman v Bord Pleanala & Ors

JUDICIAL REVIEW

COMMERCIAL

BETWEEN

PETER SWEETMAN

APPLICANT

AND

AN BORD PLEANÁLA 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

PLANNING & DEVELOPMENT ACT 2000 S50

EEC DIR 85/337 ART 10A

EEC DIR 2003/35

EEC DIR 96/61

RSC O.31 r12

PLANNING & DEVELOPMENT ACT 2000 S50A

SWEETMAN v BORD PLEANALA UNREP CLARKE 9.3.2007 (EX TEMPORE)

TREATY OF ROME ART 226

WORLD WIDE FUND FOR NATURE v EUROPEAN CMSN 1997 AER (EC) 300 1997 ECR II-313 1997 2 CMLR 55 1997 ENV LR 242

PETRIE v EUROPEAN CMSN 2001 ECR II-3677 2002 1 CMLR 18

PRACTICE AND PROCEDURE

Discovery

Documents - Relevance - Privilege - Transposition of European directive - Public interest confidentiality - Whether public interest in preserving confidentiality of communications with European Commission - Sweetman v An Bord Pleanála (Unrep, Clarke J, 9/3/2007); World Wide Fund for Nature v European Commission C-105/95 and Petrie v European Commission ECR II-3677 considered - Planning and Development Act 2000 (No. 30), s. 50 - Council Directive 2003/35/E.C. - Council Directive 85/337/E.C. art. 10a - Application dismissed (2009/99JR - Kelly J - 3/4/2009) [2009] IEHC 174

Sweetman v An Bord Pleanála

EUROPEAN LAW

Infringement proceedings

Confidentiality - Whether applicant in judicial review proceedings entitled to discovery of communications with European Commission - World Wide Fund for Nature v European Commission C-105/95 and Petrie v European Commission ECR II-3677 considered - E.C. Treaty, Article 226 - Application dismissed (2009/99JR - Kelly J - 3/4/2009) [2009] IEHC 174

Sweetman v An Bord Pleanála

1 Mr. Justice Kelly delivered on the 3rd day of April, 2009

These proceedings

2 On 28 ^th November, 2008 the first named respondent (the Board) granted approval for the construction of the Galway City outer bypass scheme. That is a multimillion euro development which seeks to address the chronic traffic congestion in Galway City and its environs.

3 On 30 ^th January, 2009 the applicant issued a notice of motion which seeks leave pursuant to s. 50 of the Planning and Development Act 2000, (as amended) to apply for judicial review of that decision of the Board.

4 If granted leave to apply for judicial review, the primary relief sought against the Board is an order of certiorari quashing its decision of 28 ^th November, 2008.

5 The applicant also seeks leave to judicially review the remaining respondents (the State respondents) concerning Ireland's alleged failure to give proper effect to Article 10a of Council Directive 2003/35/EC.

6 This judgment deals with the applicant's claim to be entitled to discovery of certain documents as against the State respondents.

Article 10a

7 This Article was inserted in Council Directives 85/337/EEC and 96/61/EC by Directive 2003/35/EC. The Article reads as follows:-

"Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:"

(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,

8 have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

9 Member States shall determine at what stage the decisions, acts or omissions may be challenged.

10 What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.

11 The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

12 Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

13 In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures."

The Reliefs Claimed

14 Six reliefs pertinent to Article 10a are claimed by the applicant. I set them out hereunder. I use the same numbering for them as is used in the statement required to ground the application for judicial review.

15 i "(II) A declaration by way of an application for judicial review that the applicant has sufficient standing to maintain these proceedings under Irish Law including the provisions of section 50 of the Planning and Development Act, 2000 (as amended) and/or Article 10a of Council Directive 2003/35/EC.

16 (III) In the alternative, a declaration that the second named respondent has failed to implement the provisions of Article 10a of Council Directive 2003/35/EC in relation to the standing requirement required to maintain proceedings of an environmental law nature.

17 (IV) A declaration that the standard of review applied by the Irish High Court of the substantive legality and/or merits of a decision taken by An Bord Pleanála in relation to a priority natural habitat is to be in the nature of a heightened or anxious scrutiny.

18 (V) In the alternative, a declaration that the second named respondent has failed to implement the provisions of Council Directive 85/337/EEC, as amended, in relation to the standard of review required by the Irish Courts of decisions of an environmental law nature.

19 (VI) A declaration by way of application for judicial review that the applicant is entitled under Irish Law and/or the provisions of Council Directive 2003/35/EC including Article 10a to bring the within proceedings at a cost that is not prohibitive.

20 (VII) In the alternative, a declaration that the second named respondent has failed to implement the provisions of Council Directive 2003/35/EC in accordance with requirements (sic) of such Directive."

The Grounds

21 Four grounds in all are relied upon by the applicant in support of his claim against the State respondents. I set them out using the same system of numbering as he uses in his statement grounding the application.

22 i "(X) Article 10a 2003/35/EC sets out a number of matters that are required to ensure public participation in environmental decision making. These provisions include certain preconditions including, inter alia, that an individual show 'sufficient interest'. Section 50 PDA 2000 (as amended) states that an applicant must have 'substantial interest'. The Supreme Court in Harding v. An Bord Pleanála [2008] IEHC 27 has indicated that an applicant must show, inter alia, a 'personal and peculiar interest' in the matter. This is much (sic) higher threshold that is required by the Directive. The second named respondent has in those circumstances failed to ensure the full and proper implementation of the Directive in circumstances where the an (sic) applicant must meet a much higher threshold in the Irish Courts than is required by the Directive and is failing to ensure full public participation in environmental decision making.

23 (XI) In providing a merits review mechanism in the High Court which applies a very onerous standard the second named respondent has failed to properly implement 2003/35/EC. The applicant herein can only challenge the decision by way of an application for judicial review. The said application can only be taken in the High Court. The standard for a review of the merits of the decision means the applicant must be in a position to prove that the decision maker has gone temporarily and inexplicably mad. The standard applicable in practical terms and in law does not allow the High Court intervene with the decision except in the most extraordinary circumstances. Article 10a provides for a review of the substantive legality of the decision. The test applied by the High Court effectively rules out the type of review required by the Directive. Moreover, in order to appeal a decision of the High Court the applicant must be in a position to prove that the case raises a question of exceptional public importance. The cumulative effect of these obstacles is to preclude any meaningful review of the merits of the decision and in this case, in circumstances where there is no statutory appeal and/or review mechanism.

24 (XII) Whereas the standard of review in the High Court is primarily procedural in nature and given the absence of a statutory merits based appeal mechanism, the second named respondent has failed to ensure, in accordance with the Directive 2003/35/EC that the decision can be reviewed both on its substantive merits and procedural legality.

25 (XIII) Article 10a/2003/35/EC sets out a number of matters that are required to ensure public participation in environmental decision making. These provisions include provision of a review of environmental decision making that is not prohibitively expensive. The Directive does not limit these costs to administrative costs. One of the Directive's primary aims...