Swords v Minister for Communications, Energy and Natural Resources
|Mr Justice Keane
|12 August 2016
| IEHC 503
|[2013 No. 4122P]
|12 August 2016
 IEHC 503
[2013 No. 4122P]
THE HIGH COURT
Planning & Development – Practice & Procedures – Dismissal of proceedings – Protective costs order – Time-limit – S.50B of the Planning and Development Act 2000
Facts: The defendants had filed an application for dismissal of the plaintiff's claim on the ground of delay while the plaintiff had filed an application seeking a protective costs order. The plaintiff contended that an objection of time-limit as raised by the defendants under o.84, r. 21 of the Rules of the Superior Courts was impermissible under EU law with respect to the plaintiff's main claim wherein he sought various declarations against the defendants to the effect of the contravention of Aarhus Convention. The defendants argued that the judicial review proceedings brought earlier by the plaintiff and then the plenary proceedings brought by the plaintiff were out of time.
Mr. Justice Keane granted an order for striking out the plaintiff's plenary proceedings on the ground of delay. The Court, however, refused to make any protective costs order. The Court held that the plaintiff had made no application for an extension of time-limit in the present case. The Court found that the plaintiff had failed to provide a good and sufficient reason to bring his challenges against the relevant action plan within the prescribed limit. The Court observed that the imposition of time limits mentioned under national law to a claim arising under EU law was permissible by virtue of principle of legal certainty. The Court held that since the defendants had expressly agreed to apply the provisions of s. 50B of the Planning and Development Act, 2000, and s. 3 and s. 7 of the Environmental (Miscellaneous Provisions) Act, 2011, it was imperative that the defendants would not seek its costs of proceedings from the plaintiff, and thus, there was no basis to make any protective costs order in the present case.
There are two applications before the Court. The first is the defendant's motion to dismiss the plaintiff's claim on grounds of delay. The second is the plaintiff's motion seeking either a protective costs order, pursuant to the inherent jurisdiction of the Court, or an order pursuant to s. 7 of the Environmental ( Miscellaneous Provisions) Act 2011 that s. 3 of that Act applies to these proceedings.
The plaintiff is a chemical engineer.
The first defendant is sued in his capacity as the Minister responsible for determining national policy on energy matters. The second defendant is the State and the third defendant is the law officer of the State, so designated by the Constitution of Ireland. For the purposes of the present application, I will refer to the defendants collectively as the State.
In the underlying proceedings, the plaintiff claims a number of declarations of right as against the State comprising: various declarations that the State has acted in contravention of the Aarhaus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Aarhus Convention'); various declarations that the State has acted in breach of EU law; a declaration that the national renewable energy action plan ('NREAP') submitted by the State to the Commission of the European Union pursuant to Article 4 of Directive 2009/28/EC on the promotion of the use of energy from renewable sources ('the 2009 Directive') was adopted by the State in contravention of the Aarhus Convention and in breach of both EU law and the law of the State: an injunction restraining the State from relying upon the present NREAP for any practical purpose; and a mandatory injunction directing the State to comply with the requirements of the Aarhus Convention in the adoption or implementation of any future plan or programme equivalent to the present NREAP.
In seeking those reliefs, the plaintiff relies on two principal contentions. The first is that the State, in its development of the NREAP, has failed to properly comply with the provisions of the Aarhus Convention and, in particular, Articles 6 and 7 of that Convention, requiring signatory states to make provision for members of the public to participate in the development of their environmental policies.
The plaintiff's second principal contention is that the State failed to carry out a strategic environmental assessment or an environmental impact assessment in respect of the NREAP, as required by the provisions of Directive 2001/42/EC ('the SEA Directive') on the assessment of the effects of certain plans and programmes on the environment and of Directive 85/337/EEC, as amended by, in particular, Directive 2003/35/EC ('the EIA Directive'), as amended, on the assessment of the effects of certain public and private projects on the environment.
The State raises three significant preliminary pleas in response to the plaintiff's claims. Those pleas are: first, that the plaintiff's claims are out of time (hence, the present motion to dismiss the proceedings on grounds of delay); second, that, insofar as they relate to the Aarhus Convention, those claims are non-justiciable before the Courts of Ireland because, although Ireland has ratified the Convention, the particular provisions of the Convention at issue in these proceedings do not form part of the domestic law of the State; and third, that, insofar as they relate to State policy in the field of renewable energy, the plaintiff's claims are not amenable to review by the Courts under the principle of the separation of powers.
On the merits of the plaintiff's case and in response to the first of the two principal arguments advanced by him, the State pleads that the adoption of the State's NREAP is not covered by Articles 6 or 7 of the Aarhus Convention or that, if it is, the public participation requirements of the Convention were met in the course of the adoption process.
In reply to the plaintiff's second principal argument, the State acknowledges that it did not carry out a strategic environmental assessment or an environmental impact assessment in adopting the NREAP but contends, in essence, that the SEA Directive did not apply to the NREAP because the NREAP is a statement (or restatement) of existing State policy and, thus, was unlikely to have any new significant environmental effects, and that the EIA Directive did not apply to the NREAP because the NREAP does not set the framework for future development consents bringing it within the relevant annexes to that Directive; does not have likely effects on sites that would require it to be assessed under Directive 92/43/EEC; and is not in a category that would require an environmental impact assessment to be carried out under the EIA Directive.
The Aarhus Convention was concluded between members of the United Nations Economic Commission for Europe (UNECE) on the 25th of June 1998. There are sixteen signatories to the Convention, including both Ireland and the European Union ('EU'), of which Ireland is a member.
The Convention entered into force on the 30th of October 2001. It was approved by the EU on the 17th of February 2005 and ratified by Ireland on the 20th of June 2012.
The 2009 Directive on the promotion of the use of energy from renewable sources was adopted by the European Parliament and Council on the 23rd of April 2009, which set a target for Ireland of meeting 16% of the her energy requirements from renewable sources by 2020.
Article 4(1) of the 2009 Directive requires national authorities to develop what is described as a national renewable energy action plan ('NREAP') and Article 4(2) required member states to notify their NREAP to the Commission by the 30th of June 2010. Ireland notified its NREAP to the Commission in July 2010. Slight modifications were made to it and it was re-submitted in October 2010.
Article 6 of the Aarhus Convention deals with public participation in the environmental decision making procedure on specific activities. In material part, it provides as follows:
3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public ...and for the public to prepare and participate effectively during the environmental decision making.
4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.
8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation."
Article 7 of the Aarhus Convention requires signatory states to provide for public participation concerning plans, programmes and policies relating to the environment. It provides:
"Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within a transparent and fair framework, having provided the necessary information to the public. Within this framework, article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment."
In preparing its NREAP, the State consulted the public in two ways: first, it conducted a targeted consultation process, in which a large number of bodies, including government departments, regulatory authorities, public utility...
To continue readingRequest your trial
Martin v an Bord Pleanála
...court has been referred in the context of delay is that of Swords v. Minister for Communications, Energy and Natural Resources and ors  IEHC 503. In his judgment in Swords, Keane J. described the substance of the proceedings before him in the following terms, at paras.4-9: '4.... [T]......