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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Klohn -v- An Bord Pleanala [2007] IEHC 244 (31 July 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H244.html Cite as: [2007] IEHC 244 |
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Judgment Title: Klohn -v- An Bord Pleanala Composition of Court: deValera J. Judgment by: deValera J. Status of Judgment: Approved |
NeutralCitation Number: [2007] IEHC 244 THE HIGH COURT [2004 No. 544 JR] BETWEEN VOLKMAR KLOHN APPLICANT AND AN BORD PLEANÁLA RESPONDENT AND SLIGO COUNTY COUNCIL AND MALONEY AND MATTHEWS ANIMAL COLLECTION LIMITED NOTICE PARTIES JUDMENT of Mr. Justice de Valera delivered the 31st day of July, 2007.This is an application for leave to apply by way of Judicial Review for reliefs sought at paragraph (d) of the statement required to ground an application for judicial review herein in relation to a decision of An Bord Pleanála dated 30th April, 200, to grant, subject to conditions, planning permission for a development consisting of a collection centre for dead/fallen animals and ancillary facilities, at Anchonry, Tubbercurry, County Sligo and which application bears the ref. no. 03/717. Paragraph (d) of the Statement required to ground an application for judicial review states the reliefs sought as follows: (i) An Order of Certiorari quashing the decision of the respondent on planning application ref. no. 03/717; An Bord Pleanála ref. no. PL21.205540, to grant planning permission for a proposed development described as a fallen animal collection and processing facility at Anchonry, Tubbercurry, County Sligo. (ii) Further and other relief. (iii) Interim and/or interlocutory relief. (iv) A stay on the implementation of the permission ref. no. 03/717 pending the determination of these proceedings. (v) Further and other relief. (vi) The costs of these proceedings.
(ii) The said EIS does not contain information specified in paragraph 1 of Schedule 6 of the Planning and Development Regulations, 2001 (S.I. No. 600 of 2001) as required by Article 94 of the said Regulations in so far as –
(iv) The consequence of the failure of the said EIS to comply with the requirements of Article 94 of the said Regulations of 2001 in one or more of the respects as set out above, the respondent did not have power to determine the subject planning application pursuant to Section 3 % and/or Section 34 of the Planning and Development Act, 2000, the relevant provisions whereof provide that An Bord Pleanála may only decide to grant a permission in circumstances where all requirements of the Regulations are complied with. The applicant will rely specifically on the provisions of Section 34(1) of the Plan and Development Act, 2000 in this regard. (v) The said decision of the respondent is invalid by reason of the failure of the respondent to carry out an environmental impact assessment in accordance with the requirements of the Planning and Development Act, 2000 and Regulations made thereunder. In particular and without prejudice to the generality of the foregoing Article 13 of the Planning and Development Regulations, 2001 provides that where an appeal involves an EIS and the Board considers any submission, observation, document, particulars or other information submitted to it in response to a request or, a requirement of the Board contains significant additional information on the effects on the environment of a proposed development, the Board shall publish in at least one approved newspaper, a notice stating that; (a) significant additional information on the effects on the environment of the proposed development has been furnished to the board, and (b) that the further information will be available for inspection or for purchase, at a fee not exceeding the reasonable cost of making a copy, during office hours at the offices of the Board or such other place as the Board may specify and that a submission or observation on the further information may be made in writing to the Board within a specified period on payment of the appropriate fee. By implication and when considered in the light of the objectives of Council Directive 85/337/EEC and Council Directive 97/11/EC, the said Article requires the respondent to address the question as to whether any such submission, observation, document, particulars or other information contained in the significant additional information on the effects on the environment of the proposed development. In so far as such information was contained in the submissions of the notice party received by the respondent on the 16th February, 2004, and the 25th March, 2004, respectively, the respondent was obliged to consider this question, but failed to do so and as a consequence failed to publish a notice in the form required by Article 113 of the said Regulations of 2001. (vi) The respondent Planning Appeals Board failed to consider the said planning application in accordance with fair procedures and in the light of the principle of audi alteram partem. The second named notice party lodged an application for planning permission grounded upon plans and other documents which set out the nature and extent of the proposed development. This application was refused permission by Sligo County Council and on the basis of those plans and documentation, the unincorporated association of which the Applicant is a member made their submissions to the respondent Planning Appeals Board. On the 16th February, 2004, and the 25th March, 2004, the second named notice party materially modified their proposal and these modifications were expressly incorporated into condition no. 1 of the said permission which condition refers to the documentation amending the application lodged with the planning authority. The applicant and/or his group were never circulated with these submissions, were not afforded any opportunity to make submissions or representations in respect of the modifications contained therein and were not afforded an opportunity to properly participate in the appeal process. Specifically, these matters, which were crucial to the determination of the said decision of the respondent to grant permission, notwithstanding the recommendation by refusal of the inspector, were on the basis of no upholding arguments on behalf of the applicant/the applicant’s group, and in those circumstances the decision offends against the principle of fair procedures, natural and constitutional justice and audi alteram partem. (vii) The respondent erred in law in accepting significant additional information without any corresponding amendment/analysis of the submitted documentation in the EIS. Accordingly, the respondent could not have properly cared out an environmental impact assessment as the EIS lodged with the planning application did not adequately or accurately reflect the nature of the proposal determined by the respondent Planning Appeals Board nor was the public, and neither the applicant nor the said Anchory Development Group of which the applicant is a member were allowed to participate in the environmental impact assessment procedures in circumstances where significant additional information was submitted, which was not the subject matter of comment under the statutory public consultation procedures enshrined in the Planning and Development Act, 2000 and the Regulations made thereunder, and under the statutory scheme arising from Council Directives 85/357/EEC and 92/11/EC. (viii) The said decision is invalid in regard to the absence of any record or any adequate record of compliance with the relevant procedures required to be observed by the respondent in respect of its function relating to environmental impact assessment pursuant to Articles 111 and 113 of the Planning and Development Regulations, 2001 (ix) In the premises and or having regard to the matters set out above the decision is unreasonable and contrary to plain reason and common sense. In his written submissions the applicant states that the grounds he intends to rely on may be summarised as follows: 1. The EIS on foot of which the permission was granted did not contain any or any adequate outline of the main alternatives studied by the developer and/or any adequate indication of the main reasons for its choice, taking into account the effects on the environment as required by Article 94 and Schedule 6, paragraph 1.(d) of Planning and Development Regulations, 2001 (S.1. No. 600 of 2001) ( "the 2001 Regulations "). 2. The EIS did not contain information relating to the project proposed describing the inter-relationship between the factors listed in the first three indents in paragraph 2(b) of Schedule 6 of the 2001 Regulations. 3. The respondent failed to carry out an environmental impact assessment (EIA) in relation to the revisions to the project or proposed development submitted in the context of the appeal. This resulted from the developer's failure to provide the information required pursuant to Article 94 and Schedule 6 of the 2001 Regulations in relation to the revised project. 4. As a consequence of the failure to comply with the requirements of Article 94 of the 2001 Regulations, An Bord Pleanála did not have jurisdiction to determine the application. 5. The decision of the respondent was made in breach of fair procedures in so far as Condition No. 1 of the respondent's decision requires the development to be carried out in accordance with plans and particulars lodged with the application, as amended by further plans and particulars received by An Bord Pleanála on the 22nd December, 2003, the 16th February, 2004, and the 25th March, 2004. The latter two submissions of the 16th February, 2004, and the 25th March, 2004, were never furnished to the applicant or any of the third parties involved in the appeal process so as to enable them to make submissions in relation thereto. As this is an application for leave to seek judicial review I must be satisfied that the applicant has established substantial grounds. Section 50 of the Planning and Development Act, 2000 at subsection 4(b) requires that the applicant must establish that he has (a) Substantial grounds for contending that the decision of the Planning Authority is invalid and (b) That he has a substantial interest in the matter.
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