Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 31 January 2020
• Neutral Citation: [2020] IEHC 39
• Docket Number: [2019 No. 33 J.R.]
• Court: High Court
• Date: 31 January 2020

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

IGP SOLAR 8 LIMITED

NOTICE PARTY

[2020] IEHC 39

Denis McDonald J.

[2019 No. 33 J.R.]

THE HIGH COURT

COMMERCIAL

JUDICIAL REVIEW

Judicial review – Planning permission – Development – Applicant seeking judicial review – Whether the decision of the respondent was ultra vires and in breach of its obligations under Council Directive 92/43/EC

Facts: The applicant, Mr Sweetman, applied to the High Court seeking to quash the decision of the first respondent, An Bord Pleanála, dated 15th November, 2018, to grant planning permission for a development of a 67.8 hectare solar farm at Fiddane, Ballyhea, County Cork. The decision of the Board arose following an appeal by a third party of a decision by Cork County Council to grant permission for the development. The applicant’s case as against the Board was argued on the basis of three distinct grounds: (a) the Board acted ultra vires and in breach of the Planning and Development Regulations 2001 by failing to include notice of the receipt of the appeal of the decision of the Council in the weekly Board list not later than the third working day following the week ending 23rd February, 2018; (b) the decision of the Board is ultra vires and not in compliance with the obligations that arise under Directive 2011/92/EU (the EIA Directive) in circumstances where there was an absence of a proper screening for Environmental Impact Assessment (EIA); (c) the decision of the Board was ultra vires and in breach of its obligations under Council Directive 92/43/EC (the Habitats Directive) in circumstances where there was a failure to carry out an appropriate assessment or a proper screening for an appropriate assessment. The case was made that, if the Board made the decision of 15th November, 2018 in accordance with Irish law, then it must follow that the second and third respondents, Ireland and the Attorney General (the State respondents), had failed to adequately transpose the Habitats Directive and the EIA Directive.

Held by McDonald J that there was no basis upon which he could properly conclude that the failure by the Board to comply with its obligations under Regulation 72 (1) of the 2001 Regulations was insubstantial or trivial. McDonald J held that the Board was not entitled to take into account the measures described in the preliminary construction environmental management plan in carrying out the screening exercise for appropriate assessment in this case. McDonald J held that, as a consequence of the decision of the CJEU in Case C-323/17 People over Wind v Coillte Teo, the Board was not entitled to proceed in this way. McDonald J held that that error goes to the jurisdiction of the Board. McDonald J held that, in the circumstances, the decision of the Board of 15th November, 2018 appeared to be invalid and that the applicant must be entitled to an order of certiorari quashing the decision to grant planning permission for the solar farm development. McDonald J held that the applicant had failed to make out any case that the proposed solar farm required to be assessed under the EIA Directive. McDonald J held that the claim against the State respondents must be dismissed as the statement of grounds failed to properly plead a case against the State as required by O. 84 r. 20 (3) of the Rules of the Superior Courts.

McDonald J held that the decision of the Board of the 15th of November, 2018 was invalid and that it should be quashed.

Application granted.

JUDGMENT of Mr. Justice Denis McDonald delivered on 31 January, 2020

Introduction

1 In these judicial review proceedings, the applicant seeks to quash the decision of the first named respondent (“the Board”) dated 15th November, 2018 to grant planning permission for a development of a 67.8 hectare solar farm at Fiddane, Ballyhea, County Cork. The decision of the Board in this case arose following an appeal by a third party of a decision by Cork County Council (“the Council”) to grant permission for the development.

2 The applicant's case as against the respondent was argued on the basis of three distinct grounds:-

(a) In the first place, it was argued that the Board acted ultra vires and in breach of the Planning and Development Regulations, 2001 (as amended) ( “the 2001 Regulations”) by failing to include notice of the receipt of the appeal of the decision of the Council in the weekly Board list not later than the third working day following the week ending 23rd February, 2018;

(b) Secondly, the applicant contends that the decision of the Board is ultra vires and not in compliance with the obligations that arise under Directive 2011/92/EU (as amended) (“the EIA Directive”) in circumstances where (so the applicant alleges) there was an absence of a proper screening for Environmental Impact Assessment (“EIA”). The debate in relation to this issue largely centres on whether a development of the kind proposed here falls within Annex II to the EIA Directive;

(c) Thirdly, it is the applicant's case that the decision of the Board was ultra vires and in breach of its obligations under Council Directive 92/43/EC (“the Habitats Directive”) in circumstances where there was a failure to carry out an appropriate assessment or a proper screening for an appropriate assessment. The debate in relation to this issue was focused on whether, contrary to the decision of the CJEU in Case C-323/17 People over Wind v. Coillte Teo, the Board had taken mitigation measures into account at the screening stage.

3 The Board is not, however, the only respondent to these proceedings. Ireland and the Attorney General (“the State respondents”) have also been named as respondents to the proceedings. The basis on which the State respondents have been joined is far from clear. The case is made that, if the Board made the decision of 15th November, 2018 in accordance with Irish law, then it must follow that the State has failed to adequately transpose the Habitats Directive and the EIA Directive. However, no provision of Irish law is identified in the statement of grounds which it is alleged fails to properly transpose the provisions of either the Habitats Directive or the EIA Directive. Remarkably, this element of the applicant's case occupied no more than one paragraph in the written submissions delivered on behalf of the applicant. There were, however, some submissions made in the course of the very helpful oral presentation of the applicant's case by counsel. As I understand it, the case which the applicant makes against the State respondents only arises in the event that the court concludes that, in the context of its approach to the EIA and Habitats Directive issues, the Board acted lawfully in accordance with Irish law. It is therefore appropriate that I should defer dealing further with the case against the State respondents until after I have addressed each of the issues that arise as between the applicant and the Board (as summarised in para. 2 above). I deal with those issues, in turn, below. It should be noted that the notice party, IGP Solar 8 Ltd, the notice party, did not participate in the hearing.

The weekly list

4 In order to explain the issue which arises in relation to the weekly lists, it is necessary to bear in mind that Mr. Sweetman was not a party to the planning application process that took place before the Council. He did not make any submissions or observations in the course of the process which led to the grant of planning permission. However, under s. 130 (1) (a) of the 2000 Act, any person other than a party to the proceedings before the planning authority may make submissions or observations in writing to the Board in relation to an appeal. Under s. 130 (1) (b) submissions or observations must be made within the period specified in s. 130 (3). That subsection also provides that any submissions or observations received by the Board after the expiration of that period “shall not be considered by the Board”.

5 In turn, s. 130 (3) lays down a number of different time periods depending on the nature of the process before the Board. In the case of an appeal of the kind in issue here, s. 130 (3) (c) provides that the period for making submissions is:-

“… the period of 4 weeks beginning on the day of receipt of the appeal by the Board or, where there is more than one appeal against the decision of the planning authority, on the day on which the Board last receives an appeal”.

6 The Board is not empowered under the 2000 Act to extend the period prescribed by s. 130 (3). Furthermore, under s. 130 (4), a person who makes submissions or observations to the Board is not entitled to elaborate upon the submissions or observations or to make further submissions or observations in writing in relation to the appeal and the subsection provides that any such subsequent submissions or observations that are received by the Board from such a person “shall not be considered by it”. The combined effect of s. 130 (3) and s. 130 (4) is that it is crucial for a person to whom s. 130 applies (such as the applicant) to ensure that submissions and observations are furnished to the Board within the relevant four-week period and that the submissions are as comprehensive and cogent as possible. Once the relevant four-week period has expired, there is no opportunity to supplement the case made by filing additional written observations or submissions.

7 It is important to keep in mind that the relevant four-week time period runs from the date of receipt of the appeal by the Board. However, a person (such as the applicant here) who was not a party to the process before the planning authority will obviously not be immediately aware of the lodgement of the appeal with the Board. Equally, the Board will be unaware of the existence...