Thomas Reid v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 06 October 2021
• Neutral Citation: [2021] IEHC 593
• Court: High Court
• Docket Number: [2020 No. 54 JR]

In the Matter of Section 50 of the Planning and Development Act 2000 as Amended

Between

Thomas Reid

Applicant

and

An Bord Pleanála

Respondent

and

Intel Ireland Limited

Notice Party

[2021] IEHC 593

[2020 No. 54 JR]

THE HIGH COURT

JUDICIAL REVIEW

Leave to appeal – Public interest – Costs – Applicant seeking leave to appeal – Whether it was in the public interest that there be an appeal to the Court of Appeal

Facts: The High Court (Humphreys J), in Reid v An Bord Pleanála (No. 1) [2021] IEHC 230, determined a motion regarding the exclusion of certain evidence prior to the trial. In Reid v An Bord Pleanála (No. 2) [2021] IEHC 362, Humphreys J dismissed the proceedings of the applicant, Mr Reid. The applicant sought leave to appeal pursuant to s. 50A(7) of the Planning and Development Act 2000. The applicant’s proposed questions of exceptional public importance were drafted as follows: (1) “What is the nature of the obligation on a developer when preparing a Natura Impact Statement in the light of Article 6(3) Habitats Directive and s177T PDA 2000? What are the consequences of failure to comply? Is the obligation met by an NIS where the information is incomplete? Were those principles correctly applied here?” (2) “[i]s the court’s formulation of the decision-maker’s autonomous obligation – the board can accept the developer’s material for AA purposes if there is nothing on the face of the material, as it appears to a reasonable person with sufficient expertise, that would create scientific doubt – correct? How is the question of whether the material creates scientific doubt to be resolved? Were those principles correctly applied here?” (3) “[i]n what circumstances is it appropriate for the Court to decline to consider material which was before the Board when making its decision? Were those principles applied correctly here?” The applicant sought costs against the notice party, Intel Ireland Ltd (Intel), under s. 50B(3)(b) of the 2000 Act and against the respondent, An Bord Pleanála (the Board) under s. 50B(4).

Held by Humphreys J that the issue of whether principles were correctly applied in a specific case is not normally a question of law of exceptional public importance and is not a pure question of law at all. He held that the point about the correct application of principles is not normally a question of exceptional public importance and not a question of pure law anyway. He held that the nature of the third question invites an appellate court to roam away from the actual case and such a process is rarely a proper basis for leave to appeal. While he did not think that the questions as drafted passed the necessary tests, he reconsidered whether there might not be some other, broader, question that could be certified in relation to the Habitats Directive, following the Supreme Court determination in An Taisce v An Bord Pleanála [2021] IESCDET 109. He was not convinced that it was in the public interest that there be an appeal to the Court of Appeal, because that court would be in the position of having to await the Supreme Court decision for any clarification. He dismissed the application for leave to appeal.

Humphreys J held that Intel were entitled to object to the last-minute introduction of a document in evidence without there being a reasonable opportunity to contextualise or reply before the hearing date that had already been fixed. In circumstances where he upheld that objection, he did not see how there could be any reasonable basis to then suggest that the objection was inappropriate either at all or in some way as to warrant an order for costs against Intel. He held that in environmental litigation such as this, the applicant is not exposed to costs for losing, so in general terms fairness leans against the award of costs to a losing applicant except in truly limited circumstances, because otherwise that would make the process even more one-sided than it already is. He thought this case was insufficiently close to the top end to warrant the categorisation of “special circumstances”. He held that there would be no order as to costs and since the costs decision itself was subject to the leave to appeal procedure, he directed that the order not be perfected for a further period of 7 days from the date of delivery of this judgment, or, if the applicant reverted to the court within that period if he intended to make any such application, until the determination of such an application.

Application for leave to appeal dismissed. No order as to costs.

(NO. 3)

JUDGMENT of Humphreys J. delivered on Wednesday the 6th day of October, 2021

1 In ( [2021] IEHC 230 Reid v. An Bord Pleanála (No. 1) Unreported, High Court, 12th April, 2021), I determined a motion regarding the exclusion of certain evidence prior to the trial.

2 In ( [2021] IEHC 362 Reid v. An Bord Pleanála (No. 2) Unreported, High Court, 27th May, 2021), I dismissed the applicant's proceedings.

3 I am now dealing with leave to appeal and costs.

Leave to appeal

4 The applicant seeks leave to appeal pursuant to s. 50A(7) of the Planning and Development Act 2000 and I have considered the law in that regard, including Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112, Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, [2006] 7 JIC 1302 (Unreported, High Court, MacMenamin J., 13th July, 2006), Dunnes Stores v. An Bord Pleanála [2015] IEHC 387, [2015] 6 JIC 1805 (Unreported, High Court, McGovern J., 18th June, 2015), S.A. v. Minister for Justice and Equality (No.2) [2016] IEHC 646 at para. 2, Conway v. An Bord Pleanála [2020] IEHC 4, [2020] 1 JIC 1404 (Unreported, High Court, Barniville J., 14th January, 2020), Dublin Cycling Campaign CLG v. An Bord Pleanála (No. 2) [2021] IEHC 146, [2021] 2 JIC 2508 (Unreported, High Court, McDonald J., 25th February, 2021). I will first address the applicant's questions as drafted and leave aside until later in the judgment any more general issues raised by the Supreme Court's determination in An Taisce v. An Bord Pleanála [2021] IESCDET 109.

Applicant's first question – obligations on a developer in preparing a Natura Impact Statement

5 The applicant's first proposed question of exceptional public importance is as follows: “What is the nature of the obligation on a developer when preparing a Natura Impact Statement in the light of Article 6(3) Habitats Directive and s177T PDA 2000? What are the consequences of failure to comply? Is the obligation met by an NIS where the information is incomplete? Were those principles correctly applied here?”

6 The essayistic nature of this question is a poor start: see S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016). A question of this form invites the sort of discursive roving response that almost inevitably takes us well away from the actual context of the case. That is demonstrated, if demonstration be needed, by the fact that the factual premise of the question is incorrect. One cannot ask what are the consequences of failure to comply with the obligations on the developer when preparing a Natura Impact Statement unless that has been an issue in the case and there has been a pre-existing finding of fact of such failure. That is not the case here.

7 In addition, the issue of whether principles were correctly applied in a specific case is not normally a question of law of exceptional public importance and indeed is not a pure question of law at all.

8 A further major problem for the applicant is that s. 177T of the 2000 Act, which features prominently in the question, is not referred to in the statement of grounds at any point. Consequently, it is implausible to now make it the centrepiece of the first question on the basis of which leave to appeal is sought. That is characteristic of the evolving nature of the case, as noted in the No. 2 judgment; a case that mutated significantly from that made to the board insofar as layers of scientific and legal expertise were brought to bear on the judicial review that were not availed of in the administrative process.

9 The applicant takes particular objection to the statement at para. 76 of the No. 2 judgment that the developer's material can be filed under the heading of “correct insofar as it goes”. However, as correctly pointed out by the board at para. 23 of its submissions, “[t]his argument, again, entirely ignores the different decision-making roles played by the Board and the Court in the context of the raising of objections to a proposed development.” That really gets to the heart of what is wrong with the applicant's complaint under this heading. The concept of the material being correct insofar as it goes is not an absolution to the board from the requirement to apply best scientific knowledge and remove scientific doubt. It is a description of the forensic situation where an applicant has not displaced the developer's material or pointed to a way in which evidentially it can be demonstrated to be inadequate on its face.

10 The applicant's interpretation is that a developer can now put in material that is incomplete as long as it is not positively incorrect and will, therefore, “get away with it” because “it is correct insofar as it goes”. But that is not the sense in which I meant “correct insofar as it goes”. What I meant by that is that the developer's submission can be accepted in the absence of it being demonstrated that the board should have autonomously interrogated the material and in the absence of contrary material brought forward by somebody (not necessarily the applicant, but even including the developer themselves) which would require such interrogation. That approach does not, as submitted, “predetermine” any or all future cases because, at the risk of stating the obvious, in future cases, anyone opposing a...