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Judgment
Title: | Sweetman -v- An Bord Pleanála & Ors |
Neutral Citation: | [2016] IECA 123 |
Court of Appeal Record Number: | 2015 286 |
Date of Delivery: | 25/04/2016 |
Court: | Court of Appeal |
Composition of Court: | Ryan P., Irvine J., Mahon J. |
Judgment by: | Mahon J. |
Status: | Approved |
Result: | Dismiss |
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Ryan P.
Irvine J.
Mahon J.Appeal No.: 2015/286 Peter Sweetman Applicant/Respondent to Appeal - and -
An Bord Pleanála, Ireland and the Attorney General Respondents/Appellants Notice Party
Judgment of Mr. Justice Mahon delivered on the 25th day of April 2016
1. Leave to apply by way of application for judicial review was granted by Order of the High Court (Noonan J.) on 12th January 2015 to Mr. Sweetman, (the Respondent in this appeal), for:-
1. An order of certiorari by way of application for a judicial review quashing the decision of the respondent to grant a substituted consent in respect of a development comprising a quarry of lands at Croaghonagh, Ballybofey, Co. Donegal (APB ref. SU05E.SU0027) which said decision was made on 4th November 2014.
2. A declaration that s. 261A and/or part XA of the Planning and Development Acts 2000/2010 is/are contrary to European Law. The involvement of the appellants (Ireland and the Attorney General) in these proceedings arises because of the relief claimed at no. 2 above, namely:
A declaration that s. 261A and/are part XA of the Planning and Development Acts 2000/2010 is/are contrary to European Law.
2. The grounds upon which the relief was sought numbered twenty in total. Those particularly relevant to this appeal are:-
(1) The respondent (An Bord Pleanála) has purported to grant substituted consent, being development consent for the purposes of the environmental impact assessment (EIA) Directive 85/337/EC as amended, in respect of a development that required EIA but which was carried out without such assessment having been conducted. This consent has been given without any assessment as to the existence of special circumstances or as to whether community law has been circumvented, contrary to the decision of the European Court of Justice in the case of The Commission v. Ireland (Case 215/06). It is incumbent on the respondent to correct breaches of community law and it has failed to discharge this duty in the decision herein. Accordingly the said decision is contrary to law. There are no exceptional circumstances, and community law has been circumvented by the within grant of consent.
(2) In the alternative section 261A and/or part XA of the Planning and Development Act 2000 (PDA 2000) is contrary to European Law in that the said provisions provide for the granting of substituted consent without mandating any enquiry into the existence of special circumstances, or the circumvention of community law.
(3) The application for substituted consent is in respect of an operating quarry, no direction was given that the quarry cease operations and as such, the quarry was an ongoing development at the time of the within application. This is impermissible as a matter of National and European law. It is not possible to properly describe a development that is continuing as the base line environmental information keeps changing. Moreover, it is unclear what development is being permitted by the within consent. It is also entirely unclear what was being assessed by the board in its decision. The language in this regard is uncertain, and the board uses past, present and future tenses in the context of its assessment. This is contrary to law. No retention is sought for the continuing use and works, and it is unclear what development on the site is governed by the consent. This gives rise to significant uncertainty and the decision is void as a consequence.
(4 to 14) Criticisms of what was being assessed by An Bord Pleanála in relation to the grant of substituted consent, the manner in which it has been granted and the effect of such grant.
(5 to 20) Factual background information.
3. A Statement of Opposition on behalf of the second and third named respondents (Ireland and the Attorney General/The State), was filed on 19th March 2015. Essentially, their opposition is set out in para. 1 of their Preliminary Objection. It states:-
“The within proceedings are inadmissible insofar as same seek to challenge the validity of the provisions of either s. 261(A) or part XA of the Planning and Developments Act 2000 (as amended). The decision which allowed the notice party to apply for “substitute consent” was made by Dublin County Council in or about 29th June 2012. The applicant failed to institute judicial review proceedings seeking to challenge that decision within either the statutory time limit prescribed under s. 50 and 50A of the PDA 2000 (as amended) or within the three month time limit prescribed under O. 84 of the Rules of the Superior Courts. If and insofar as the applicant wished to challenge the underlying legislation pursuant to which that decision was made, than judicial review proceedings should have been instituted within the prescribed time limits. Any such challenge is now time barred. The applicant is not entitled to rely on a decision of An Bord Pleanála made more than twenty nine months later, to launch a collateral attack on the earlier decision of Donegal County Council. The question of the notice party’s entitlement to make an application for “substitute consent” was determined conclusively by Dublin County Council, and is not re-visited as part of the application of “substitute consent”.
4. The appellants, (the State), by notice of motion dated 19th March 2015, applied to the High Court for the following reliefs:-
5. The Notice of Motion was accompanied by an affidavit of Fiona Woodyatt, Solicitor, sworn on 19th March 2015, and came on for hearing in the High Court (Hedigan J.) on 15th May 2015. A replying affidavit of the respondent, Mr. Sweetman, was sworn on 24th April 2015. Hedigan J. gave his judgment on 15th May 2015, and the State have appealed the orders made thereunder.
The decision of Hedigan J.
6. In the course of his judgment the learned High Court judge noted that Mr. Sweetman had no interest in challenging the decision of Donegal County Council (of 29th June 2012) and that, in fact, he agreed with it. He noted that the subject of Mr. Sweetman’s challenge was the “substitute consent” granted by An Bord Pleanála on 4th November 2014. He summarised Mr. Sweetman’s challenge in the following terms:-
“He wishes to argue that if the Board is required by Irish law to ascertain whether the case is exceptional and the developer is not trying to circumvent EU law, then it did not do so. In that case, its decision to grant the substituted consent is unlawful. In the alternative, if the Board is not under such a legal obligation then he will argue that Irish law is not in conformity with EU law as expounded by the Courts of Justice in Commission v. Ireland (case 215/06) where it is stated at para. 57 of its judgment:-
While community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of community law, such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the community rules or to dispense with applying them and that it should remain the exception.”
7. Hedigan J. found that the application for judicial review was not a collateral attack on the decision of Donegal County Council (of June 2012). It was, he found, a direct challenge to the decision of An Bord Pleanála dated 4th November 2014 in which it granted substitute consent to the third party developer. He made that finding on the basis that An Bord Pleanála was the body which grants or withholds substituted consent. He found that the role of Donegal County Council was in effect, a box ticking role, namely its obligation was to identify, having regard to specific criteria, quarries which were required to apply to An Bord Pleanála for substitute consent. The decision to grant or refuse substitute consent and the procedures adopted by the board in reaching that determination, were part of the decision process of An Bord Pleanála. It was not a process directed in any way by Donegal County Council.
8. The learned High Court judge concluded his judgment in the following terms:-
“Thus in my judgment, the applicants case is properly first against An Bord Pleanála and in the alternative against the State. It is not a collateral attack on the decision of Donegal County Council and so the issue of delay does not arise. The relief sought in the motion will be refused.”
The grounds of appeal
9. The appellants, (Ireland and the Attorney General/the State), seek to appeal the order of the High Court refusing their application to strike out the proceedings insofar as relief is sought against them. The State’s grounds of appeal include the following:-
(1) The within judicial review proceedings include a claim in the alternative that certain provisions of the Planning and Development Act 2000 (as amended) (“PDA”) are contrary to EU law, and in particular, the EIA Directive. Section 50 of the PDA 2000 provides that a party shall not “question the validity” of “any decision made or other act done by a planning authority or a local authority in the performance or purported performance of a function under the act other than by way of an application for judicial review, and prescribes an eight week time limit.
(2) The State applied by Notice of Motion to have the claim against it struck out on the basis of delay. The High Court refused that application. The State contend that the challenge to the underlying legislation involves “questioning the validity of” an administrative measure taken pursuant to those legislative provisions, and that the proceedings are therefore subject to the provisions of s. 50 and 50(A) of the PDA 2000.
(3) The entitlement, if any, of a developer to apply for development consent retrospectively, i.e. subsequent to the commencement of development works, is determined as a threshold issue in advance of the making and determination of the substantive application for development consent. In the case of certain quarrying activities, the threshold issue is determined pursuant to s. 261(A) of the PDA 2000. On the facts of the present case, the determination pursuant to s. 261(A) was made by Donegal County Council in June 2012. The State maintains that the eight week statutory time limit runs from the date of that “decision or Act”. The within judicial review proceedings were not instituted until 6th January 2015. Mr. Sweetman, conversely, relies on the date of An Bord Pleanála’s subsequent decision to grant development consent (November 2014), and contends that the proceedings were brought in time.
10. Essentially, and in straightforward terms, the State maintains that Mr. Sweetman is using the occasion of An Bord Pleanála’s decision to grant development consent (being substitute consent) in November 2014 as a means of launching a collateral attack on the decision of Donegal County Council on 29th June 2012 and, more especially, the underlying legislation. It is contended that a challenge to the underlying legislation pursuant to which an administrative measure, must, of necessity, involve questioning the validity of that administrative measure, and that if the underlying legislation was to be struck down, then it must follow that the administrative measure is invalid.
11. It is contended by the State that if, (and which they argue is indeed the case), Mr. Sweetman’s proceedings constitute a collateral attack on the relevant legislative provisions (namely s. 261(A) and part (XA) of the PDA 2000 as amended), such is impermissible by virtue of ss. 50 and 50(A) of the PDA 2000, as amended. Section 50 provides for a time limit of eight weeks in which to challenge the validity of any act done by a planning authority in the performance or purported performance of a function under the PDA Act 2000 (as amended), and s. 50(A) provides that the determination by the court of an application for s. 50 leave or of an application for a judicial review on foot of such leave “shall be final and no appeal shall lie from the decision of the court to the Supreme Court.. save with leave of the court which leave shall only be granted where this Court certifies that its decision involves a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.” By virtue of s. 75 of the Court of Appeal Act 2014, references to the Supreme Court must now be construed as a reference to the Court of Appeal, unless the context otherwise requires.
“Substitute consent” and the regularisation of developments
12. In consequence of the ECJ decision in the case of the Commission v. Ireland [2008] (C-215/06) it was necessary to remove the facility to apply for retention permission of developments which require environmental impact assessment under the EIA Directive, except in exceptional circumstances. Section 23(c) of the Planning and Development (Amendment) Act 2010 amended s. 34(12) of the PDA 2000 to provide that a retention application cannot be accepted by a planning authority for development which would have required an EIA, a determination as to whether an EIA was required i.e. screening for EIA, (or an appropriate assessment under the Habitats Directive) since such an assessment was also required prior to permission for a proposed development. If none of these is required a retention application may be submitted as previously. Section 23(c) of the 2010 Act was commenced on 31st March 2011.
13. The ECJ ruling however allowed E.U. member States to provide for the regularisation of developments requiring EIA in exceptional circumstances. Accordingly, s. 57 of the Planning and Development (Amendment) Act 2010, in inserting a new part (XA) into the 2000 Act, made provision for a substitute consent process for the regularisation of certain developments coming within the scope of the EIA or Habitats Directives in situations where a court has found that there was a procedural error in the original consent or where An Bord Pleanála grants leave to a developer to apply for substituted consent in other exceptional circumstances. In deciding whether to grant leave to apply for substitute consent, An Bord Pleanála must consider a number of matters, including whether regularisation of the development would circumvent the EIA Directive or the Habitats Directive and whether the applicant could reasonably had had a belief that the development was not authorised. In this case, on 29th June 2012 Donegal County Council made its decision pursuant to s. 261(A) and part (XA) of the PDA 2000 (as amended) enabling the Notice Party to apply to An Bord Pleanála for “substitute consent” in respect of his quarry operation.
14. Substitute consent was in this case granted by An Bord Pleanála on 4th November 2014.
15. If ss. 50 and 50(A) of the PDA 2000 (as amended) are applicable the relevant eight week time limit in which to challenge the validity of the Donegal County Council decision in question falls well outside the relevant eight week period.
16. The position of Mr. Sweetman in relation to this appeal, can perhaps be best summarised by reference to the following extracts from his written submissions to this court.
(Para. 12)
“..the respondent continues to object to the within motion on the grounds of prematurity. Reliefs in the substantive case is only sought against the State in the alternative. It remains the respondent’s case that (An Bord Pleanála) was precluded from granting a development consent in respect of a development that had already been carried out without considering whether or not there existed exceptional circumstances, or whether or not Community Law had been circumvented in the granting of such a retrospective consent. It is submitted that the issue against the State, (the subject of the within appeal ) in relation to the obligation on the first named respondent to comply with (and remedy breaches of) Community Law ought to be decided only after it is determined that the board was under no such remedial obligation.
(Para. 13)
More fundamentally however, the relief sought against the State is declaratory relief in respect of the compliance of legislation with European law. Accordingly, the case against the State is not a case within the ambit of s.50 of the Planning and Development Acts and any time limits contained therein. The challenge brought against the State transcends the particular decision of An Bord Pleanála and indeed that of Donegal County Council and cannot be frustrated by any alleged failure to challenge one decision, and not the other.
(Para 19)
It is not accepted that the challenge to certain provisions of the legislation is “questioning the validity of” an act of An Bord Pleanála, or any Planning Authority. The proceedings against the State constitute a challenge to the legislation itself and not to the determinations made thereunder. It is therefore not the case that the challenge to the legislation comes within the scope of s. 50 of the Act.”
17. Particular emphasis is placed by the State on the decision in the case of Nawaz v. The Minister for Justice, Equality and Law Reform [2013] 1 IR 142, as authority for the proposition that the challenge to the legislation is in effect a collateral attack on the administrative decision itself.
18. The Nawaz case concerns s. 5 of the Illegal Immigrants (Trafficking) Act 2000. In the course of his judgment (at p. 160), Clarke J. stated:-
“It seems to me to follow from that case law that the question of whether a provision such as that contained in s. 5 of the Act of 2000 is engaged is one to be looked at as a matter of substance rather than as a matter of form. As Kelly J. pointed out in Goonery v. Meath County Council (Unreported, High Court, Kelly J. 15th July 1999), the relief sought in that case (which were declaratory in nature) “would undoubtedly mean in practical terms that the decision of Meath County Council was invalid”. It seems to me that the approach of Kelly J. in that case was correct. The question to be asked is whether, if the relief is granted it will amount to a determination to the effect that a particular type of measure specified in the section is invalid or, to use the words of s. 5 itself, has had its validity successful questioned.”
19. The Goonery case concerned a grant of planning permission by Meath County Council in respect of a cement and quarry works. As so found by Kelly J. the case involved the seeking of a declaration that Meath County Council did not properly determine the application for planning permission for the installation in question because it failed to have any adequate regard to the EIA Statement accompanying the planning application. It was therefore a direct challenge to the appropriateness of the decision to grant planning permission.
20. In this case, and at the risk of being repetitive, the Donegal County Council decision of June 2012 is not being challenged. Mr. Sweetman’s case is much more straightforward. Primarily, it seeks to challenge the November 2014 decision of An Bord Pleanála, and the basis on which An Bord Pleanála made that decision. It does so, on a number of grounds, and these are articulated in some detail in the respondent’s statement of grounds. It appears that the main opposition to the decision of An Bord Pleanála, is that it failed to carry out an adequate EIA, and that an EIA could not lawfully have been carried out by it on the basis of information at its disposal.
21. Specifically, in relation to s. 261(A) and/or part (XA) of the PDA 2000 (as amended) it is contended (in the alternative to the challenge to the An Bord Pleanála decision) that they are deficient, and contrary to European Law if their effect is to provide ultimately for the granting of substituted consent without mandating an enquiry into the existence of special circumstances, or the circumvention of Community Law. The relief sought will only come into play in the event that An Bord Pleanála successfully defends Mr. Sweetman’s challenge to grant substitute consent on the basis that the legislative provisions governing the direction to the Notice Party to apply to An Bord Pleanála are deficient and contravene European Law. That is quite different to claiming that the decision of Donegal County Council was defective to the extent that it was made in contravention to the provisions of s. 261(A) and/or part (XA) of the PDA 2000, as drafted and passed into law by the legislature.
22. Mr. Sweetman’s position is distinctly explained in the final paragraph of the judgment of Hedigan J., when he states as follows:-
“If Irish legislation does not require An Bord Pleanála to consider these issues then the applicant will argue that Irish law in not in accord with the EU law as cited above.”
23. The learned High Court judge then went on to state that in his judgment Mr. Sweetman’s case is properly first against An Bord Pleanála, and in the alternative against the State. In his view it was not a collateral attack on the June 2012 decision of Donegal County Council. No issue therefore arises in relation to the eight week (or any other) time limit. Nor does any issue arise in relation to s. 50 of the PDA 2000 (as amended) concerning the necessity to obtain leave of the High Court in particular circumstances.
24. I agree with the judgment of Hedigan J., and his rationale for his decision.
25. I would therefore dismiss the appeal.
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