Judgment
Title: | Derrybrien Development Society Limited -v- Saorgus Energy Limited & ors |
Neutral Citation: | [2015] IESC 77 |
Supreme Court Record Number: | 51/2009 |
High Court Record Number: | 2005 4 MCA |
Date of Delivery: | 10/16/2015 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., O'Donnell Donal J., McKechnie J., Clarke J., Laffoy J. |
Judgment by: | Denham C.J. |
Status: | Approved |
Result: | Appeal dismissed |
 | |
THE SUPREME COURTAppeal No. 51/2009
Denham C.J.
O’Donnell J.
McKechnie J.
Clarke J.
Laffoy J.In the matter of the Planning and Development Act 2000 as amended and in the matter of s. 160 of the Planning and Development Act 2000
Derrybrien Development Society Limited
and
Saorgus Energy Limited, Coillte Teoranta, and
Gort Windfarms Limited
Judgment of the Court delivered on the 16th day of October, 2015, by Denham C.J.
1. This is an appeal by Derrybrien Development Society Limited, the applicant/appellant, referred to as “the appellant” from the judgment and order of the High Court (Dunne J.) dated the 3rd June, 2005 and the 10th June, 2005, respectively, wherein the learned High Court judge refused to restrain the respondents, their servants and agents, from deforesting lands owned by Coillte Teoranta.
Motion
2. The appellant had brought a motion to the High Court seeking an order:-
(i) Pursuant to inter alia s. 160(1)(a) of the Planning and Development Act, 2000, restraining the respondents their servants or agents from continuing the aforesaid unauthorised development.
(ii) A final order pursuant to s. 160(1)(b) and s. 160(2) of the Planning and Development Act, 2000, directing restoration of the respondent’s lands to their condition prior to the commencement of the unauthorised development inclusive of the re-planting of trees in the affected areas and the restoration of the pre-existing drainage channels.
The motion was refused by the High Court but stayed for twenty one days in the event of a notice of appeal within that time, and it was stated that if there was an appeal that execution of the costs order be stayed pending the determination of an appeal.
3. The first named respondent is referred to as “Saorgus”, the second named respondent is referred to as “Coillte”, and the third named respondent is referred to as “the wind farm”. The three respondents are referred to collectively as ”the respondents”.
The High Court
4. The High Court recorded that the appellant sought an interlocutory and/or final order, pursuant to the Planning and Development Act, 2000, and in particular s. 160 of the said Act, restraining the respondents from commencing and/or continuing the unauthorised development, namely the programme of de-forestation, on their lands in the ownership of Coillte, comprised within folio 27229, folio 17176F, folio 34119, folio 52971 and folio 54074F, situate on Cashlaundrumlahan Mountain, Derrybrien, Co. Galway, and directing the restoration of the said lands to their condition prior to the commencement of the said unauthorised development, inclusive of the replanting of trees in affected areas and the restoration of the pre-existing drainage channels.
5. Saorgus is the owner of the lands at Cashlaundrumlahan Mountain, in the said folios, which is referred to as “Derrybrien”. Coillte is the former owner of the said lands, and had been contracted to carry out the removal of the trees on the site. The wind farm is the owner and developer of a wind farm scheme at Derrybrien.
6. Saorgus applied for and obtained planning permission for the erection of 71 wind turbines on the site.
7. The learned High Court judge described the planning permission as follows:-
“97/3470 This application was for a wind farm of 23 wind turbines. The application was approved by Galway County Council on 12th March, 1998. Following an appeal to An Bord Pleanála permission was granted subject to conditions on 12th October, 1998. The third named respondent herein (hereinafter referred to as Gort Wind Farms) obtained an extension of the period of the same planning permission until the 31st March, 2005.
97/3652 This was an application by Saorgus for a wind farm of 23 wind turbines. It was also approved by Galway County Council on 12th March, 1998. The decision was again appealed to An Bord Pleanála which granted permission subject to conditions on 12th October, 1998. An extension of the period of the planning permission until 31st March, 2005, was applied for and was granted.
99/2377 This application by Saorgus was for amongst other things a 110 kv electricity transmission line. Application in regard to this matter was made on 11th June, 1999 and it was approved on 20th September, 1999 by Galway County Council. An extension was obtained by Gort Wind Farms in respect of this permission.
00/4581 Saorgus applied for a wind farm of 25 turbines in this application. Permission was refused by Galway County Council on the 1st December, 2000. On appeal An Bord Pleanála granted permission subject to conditions on 15th November, 2001.
02/3560 Saorgus applied to Galway County Council for a change in turbine type. This was approved by Galway County Council on 6th January, 2003.”
8. In January, 2003, Saorgus applied for a felling licence in respect of some 263 hectares of the lands at Derrybrien pursuant to the provisions of the Forestry Act, 1946.
9. A felling licence was granted by the Minister for Communications, Marine Natural Resources on the 20th May, 2003, to Coillte, subject to several conditions.
10. In June, 2003, the lands at Derrybrien were transferred by Coillte to Saorgus, and the wind farm obtained a 21 year lease of the wind farm site from Saorgus.
11. On the 2nd July, 2003, work, including the removal of the trees, commenced on the site.
12. The learned High Court judge described relevant events as follows:-
“On 16th October, 2003, a massive bog burst/land slide at the Derrybrien site occurred causing significant damage to surrounding areas. The initial slide stopped on 19th October, 2003, two and a half kilometres down stream approximately but on 28th October, 2003, following heavy rain the slide continued causing a significant environmental disaster. Construction on the site ceased at that stage. As a result of the landslide/bog burst, work on site stopped and a number of reports were commissioned into the cause of the landslide. I think it is fair to say at this stage that it is acknowledged by Gort Wind Farms that as a result of the report commissioned, it was concluded that there were several contributing factors towards the land slide but that the immediate cause was most probably the ongoing construction works. Tree felling recommenced at Derrybrien in July of 2004 and construction work resumed in November 2004.”
13. The learned High Court judge identified the question to be decided by her as being whether a separate planning permission was needed by the respondents in order to embark on de-forestation/removal of trees on the site. Further, that if planning permission was required, that it then followed that further Environmental Impact Assessments would be required in order to comply with the requirements of the relevant E.C. Directive.
14. The European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999 came into force on the 1st May, 1999. These regulations added the following as subject to an Environmental Impact Assessment:-
These regulations came into force on the 1st May, 1999. It is referred to as “the regulation”.
15. It was common case that if a project involved de-forestation of an area greater than 70 HA of conifer forest, then an Environmental Impact Assessment must be provided for such a project.
16. It was argued in the High Court that the regulation applied retrospectively, or within a time when a planning permission was extended. The High Court held that the effect of the regulation was not such as to require the submission of an Environmental Impact Assessment, referred to as “an EIA”, for the purpose of obtaining an extension of the time within which the permission could be relied upon.
17. It was argued that two permissions, 99/2377 and 02/3560, did not have the necessary EIA having been lodged after the date when the regulation came into force. The High Court did not accept that any EIA under the 1999 Regulation was required. Thus, the issue before the High Court related to the permissions 97/3470, 97/3652 and 00/4581.
18. In the High Court it was accepted in argument that 97/3470 and 00/4581 related to part of the lands in Derrybrien covered in forest.
19. As to 97/3652, that land area is covered by bog and not forested and so it was considered that the same principles do not apply to that planning permission.
20. The High Court stated that the requirement for an EIA in respect of de-forestation did not come into effect until 1st May, 1999. The learned High Court judge held:-
“Accordingly it is my view that an E.I.A. dealing with de-forestation was not required for the first application for planning permission. Insofar as the second application in 1997 is concerned I have already said that it related to lands on which there was no forestry and again, the issue of an E.I.A. dealing with de-forestation does not arise. The final planning permission which is of relevance is that in relation to 00/4581. An Environmental Assessment (so-called) was furnished with that application.”
21. The High Court considered the affidavit evidence before the Court. It had been pointed out by Mr. William Murray, in his affidavit, that while an EIS was not required with application 97/3470, it was best practice as recommended under the Department of Environment Wind Farm Development Guidelines issued to planning authorities. Further, he had stated in his affidavit that the point made on the forestry concerning the adequacy of the EIS constitutes a retrospective objection to planning permission.
22. The High Court held:-
“Having considered this particular point it seems to me that there is force in the argument made by Mr. Murray in his affidavit. If there was a deficiency either in the earlier Environmental Impact Assessment or the Environmental Statement prepared in respect of the later application for planning permission it would have been open to the [appellant’s] predecessor and indeed to any of the local residents to object to the planning permissions sought on that ground. If, notwithstanding any objection that could have been made, planning permission had been granted then it would have been open to the [appellant] or its predecessors or any of the residents to judicially review the decision by which planning permission was granted. This did not happen. I have come to the conclusion that in questioning the validity of the Environmental Impact Statement and Environmental Assessment as it is referred to in respect of the 00/4581 planning permission that the [appellant] herein is in effect attempting to retrospectively object to the planning permission or, perhaps more accurately, seeking to challenge the validity of the permissions granted. Clearly this cannot be done now. The time for making such a challenge to the validity of the permissions has long since passed.”
23. The second argument advanced in the High Court by the appellant was that the removal of trees was not covered by the grant of planning permissions in respect of the three relevant permissions. In essence, this issue was whether planning permission was required for the removal of the trees.
24. The High Court determined that the removal of the trees was de-forestation. Further, that the regulation did not impose retrospectively an obligation to furnish a further EIS to deal specifically with the impact of de-forestation by the development at Derrybrien save in the last three relevant permissions. As to the last permission, the High Court re-iterated that any challenge to that permission based on an alleged inadequacy of the EIS was not permissible, as to hold otherwise would amount to an attack on the permissions notwithstanding that the time to challenge these permissions by judicial review had passed.
25. The High Court identified the crux of the case as being whether or not the permissions made it clear, from an objective point of view, that the scope of the permissions included the removal of the trees and the change of use of the land from forestry to wind farm.
26. The High Court held that the permissions granted were granted “in accordance with the documents lodged”, and the documents lodged included the Environmental Impact Statements. Thus, they were considered by the High Court to see if they made it clear that the proposed development involved the removal of all the forestry at the Derrybrien site in respect of the relevant applications.
27. The learned High Court judge concluded:-
“Having considered the matter carefully and in particular in the light of the matters set out in the Environmental Impact Statements I have come to the conclusion that on a reading of the Environmental Impact Statements attached to the various permissions it was quite clear that the proposed development envisaged the removal of the forestry thereon and the change of use on the lands from forestry to use as a wind farm. I can come to no other conclusion.
In the circumstances I am not satisfied that the [appellants] have made out the case that the de-forestation of the lands at Derrybrien is an unauthorised development. I have no doubt that but for the catastrophic events of the 16th October 2003, these proceedings would not have commenced. The concerns of the [appellant] are understandable but it is to be expected that the steps taken by the Respondents will ensure that there will not be a recurrence. ˮ
Notice of Appeal
28. The appellant has appealed the said judgment to this Court. The Notice of Appeal is dated the 19th February, 2009. While the High Court judgment was delivered on the 3rd June, 2005, the High Court order was not perfected until the 16th February, 2009. The appellant seeks an order setting aside the judgment and order of the High Court:
(i) Refusing the reliefs sought restraining the respondents from commencing or continuing the unauthorised development, namely the de-forestation, on Derrybrien;
(ii) refusing final orders restraining the respondents from continuing the unauthorised development;
(iii) refusing a final order directing the restoration of the lands to their condition prior to the commencement of the unauthorised development, inclusive of re-planting trees and the restoration of pre-existing drainage channels; and appealing the costs order.
29. The grounds on which the appellant appealed were stated to be:-
(i) That the High Court erred in holding that an Environmental Impact Assessment dealing with de-forestation was not required insofar as it involved development consents and/or planning permissions obtained after the commencement of the regulation on the 1st May, 1999;
(ii) that the High Court erred in holding that proceedings brought pursuant to s. 160 in respect of a development on the basis that it amounted to an ongoing breach of the regulation could or should not be upheld on the basis that the said development had been open to challenge at an earlier stage by way of judicial review of the decision to grant planning permission;
(iii) that the High Court erred in law and in fact in holding that the de-forestation of the site was covered by the grants of planning permission in respect of the three relevant permissions;
(iv) that the High Court erred in failing to give due and proper consideration to the relevant EC environmental legislation, namely Council Directive 85/337/EEC of the 27th June, 1985, on the assessment of the effects of certain public and private projects on the environment either before or after its amendment by Council Directive 97/11/EC of the 3rd March, 1997, in respect of the development;
(v) that the High Court erred in law and in fact in that, notwithstanding acknowledgement of the relevance of the EC Environmental Directives, the decision was confined to consideration of the regulation;
(vi) the High Court erred in law and in fact in holding that no Environmental Impact Assessment was required for development consent/planning permission No. 97/3652 on the sole grounds that no issue of de-forestation arose and by ignoring other criteria such as safety, human health, soil and landscape;
(vii) that the High Court erred in law and in fact in making a decision which was not in accordance with Irish and Community law.
Submissions
30. Submissions were advanced to the Court on behalf of the appellant and the respondents.
Events since the High Court decision of 2005
European Court of Justice
31. Proceedings were brought by the European Commission which resulted in a judgment of the European Court of Justice in Commission v. Ireland Case C- 215/06 [2008] E.C.R. 1-4911, which held that the development of the wind farm had not been preceded by an environmental impact assessment as required by the EIA Directive.
It was stated:-
“104. The purpose of carrying out an environmental impact assessment in conformity with the requirements of Directive 85/337 is to identify, describe and assess in an appropriate manner the direct and indirect effects of a project on factors such as fauna and flora, soil and water and the interaction of those factors. In the present case, the environmental impact statements supplied by the developer had certain deficiencies and did not examine, in particular, the question of soil stability, although that is fundamental when excavation is intended.
105. Consequently, by failing to take all measures necessary to ensure that the grant of development consents relating to the first two phases of construction of the wind farm was preceded by an environmental impact assessment in conformity with Articles 5 to 10 of Directive 85/337 and by merely attaching to the applications for consent environmental impact statements which did not satisfy those requirements, Ireland has failed to fulfil its obligations under that directive.”
32. The European Court of Justice declared that, by failing to adopt all measures necessary to ensure that:-
“
- the projects which are within the scope of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment … either before or after amendment by Council Directive 97/11/EC of 3 March 1997 … are, before they are executed in whole or in part, first, considered with regard to the need for an environmental impact assessment and, secondly, where those projects are likely to have significant effects on the environment by virtue of their nature, size or location, that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337, and
- the development consents given for, and the execution of, wind farm developments and associated works at Derrybrien, County Galway, were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of Directive 85/337 either before or after amendment by Directive 97/11, Ireland has failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive;”
Ireland was ordered to pay the costs.
Additional Evidence
33. Additional evidence was before this Court. This additional evidence related to events after the delivery of the High Court judgment on the 3rd June, 2005, when the appellant’s motion was refused.
34. The wind farm has been built and has been fully operational since January, 2006.
35. The respondents acted bona fide in accordance with planning permission, at all times.
36. The wind farm has no responsibility for any defect that may exist in the planning permission.
37. While the judgment and decision of the High Court was given on the 3rd June, 2005, the appellant did not file a notice of appeal until four years later in February, 2009.
38. Other proceedings were brought by the appellants on or about the 29th June, 2005 (i.e. just weeks after the refusal of the injunction by the High Court in these proceedings).
39. In those other proceedings the appellant challenged by way of judicial review the decision of Galway County Council to grant extensions of the appropriate period for the planning permissions 05/316 and 05/317. Those proceedings were heard by Budd J. in July, 2007. A reserved judgment was delivered on the 14th March, 2008, in which Budd J. found for the appellants.
40. However, no final orders were made in those judicial review proceedings as they were settled by the parties. A settlement was reached and inter alia it was agreed that €265,000 be paid to the appellant by the windfarm. While the terms of the settlement were to be kept confidential, it appears to have been agreed that no orders would be sought on foot of the judgment of Budd J..
41. Also, it appears that a joint statement was issued to the media, which concluded:-
“We trust that the operation of the windfarm will serve not just the interests of the country’s renewable energy needs but the people of Derrybrien.”
42. No application was made to the Supreme Court in relation to an appeal in this matter in 2005, seeking a priority hearing or otherwise, nor was an application for priority made after the appeal was filed in 2009. This was a “backlog appeal” first listed in one of the Supreme Court backlog lists on the 27th November, 2013.
Law
43. This is an appeal from a motion refusing relief under s. 160(1)(a) of the Planning and Development Act, 2000.
44. Section 160 makes statutory provision for an injunction in relation to unauthorised development. It provides:-
“(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
[… ]
(3) (a) An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order (if any) as it considers appropriate.
[…]
(6) (a) An application to the High Court or Circuit Court for an order under this section shall not be made—
(i) in respect of a development where no permission has been granted, after the expiration of a period of 7 years from the date of the commencement of the development, or
(ii) in respect of a development for which permission has been granted under Part III, after the expiration of a period of 7 years beginning on the expiration, as respects the permission authorising the development, of the appropriate period (within the meaning of section 40 ) or, as the case may be, of the appropriate period as extended under section 42 .
(b) Notwithstanding paragraph (a), an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land.”
45. This section of statutory law has been the subject of case law.
46. In Leen v. Aer Rianta c.p.t [2003] 4 I.R. 394, McKechnie J. considered s. 160. He referred to Morris v. Garvey [1983] I.R. 319 and to p. 324, where Henchy J., speaking for the Supreme Court, considered the correct approach a court should take under the provisions of s. 27(2) of the Local Government Planning and Development Act, 1976, of which McKechnie J. noted: “Which provisions are for present purposes almost identical to the corresponding words in the opening part of s. 160.”
47. In Leen McKechnie J. held:-
“Though the contextual circumstances in which Henchy J. made the above mentioned remarks must be noted, nonetheless there is no doubt but that this quoted part of his judgment has been repeatedly followed in later cases both in this court and in the Supreme Court and, in many respects has been treated as constituting principles of general application. Even within such principles, however, it is quite clear that the Supreme Court was endorsing the existence of a discretion under s. 27, or as of now s. 160, as it illustrated certain examples which, if existing, would justify the court in refusing relief, even though it was satisfied that an unauthorised development or use was in being. Henchy J. included in these examples a situation where an order would cause gross and disproportionate hardship. In addition, where ‘suchlike extenuating or excusing factors’ existed, similar considerations would apply. It seems, therefore, quite clear that the learned Judge did not intend these illustrations to be exhaustive, as every court must decide each case on the individual facts and circumstances surrounding it.”
48. In Leen McKechnie J. referred to the judgment in Stafford v. Roadstone Ltd [1980] I.L.R.M. 1 at p. 19, where Barrington J. concluded that the word “may” in s. 27(1) of the Act of 1976, and which appears in s. 160(1) of the Act of 2000, is not used in a mandatory sense but rather in a sense which confers a discretion on the Court. Further, Barrington J. stated that the discretion was similar to that in a court of equity or an injunction application. Barrington J. pointed to the fact that an injunction might be sought by a private individual “whether or not that person has an interest in the land.” Barrington J. pointed out that where a person who is not a Planning Authority and has no interest in the lands can apply for such an injunction, it was important that a court should have a wide discretion as to whether or not to issue an injunction.
49. In Leen, McKechnie J. makes reference to other cases where the discretionary nature of s. 27 (and so s. 160 today) were either discussed or implemented by the Court. These cases, which are part of the legal analysis of McKechnie J., clearly lay a further foundation for the discretionary nature of s. 160, which were not circumvented by Mahon v. Butler [1997] 3 I.R. 369.
50. The Court agrees with McKechnie J.’s analysis and with the generality of the discretion, which he described as:-
“Finally, on the generality of the discretion point it seems to me that, subsequent to Morris v. Garvey [1983] I.R. 319, the courts have tended to individualise each case and decide it accordingly, rather than to inquire as to whether the resulting circumstances fell within any of the illustrations mentioned in that judgment. For example, in some cases where there was no question of bad faith or lack of candour, injunctions issued, whereas in others relief was refused, even though the facts did not comfortably sit with the exceptions identified by Henchy J. in Morris v. Garvey.”
51. In Leen, McKechnie J. identified certain matters to which particular attention should be paid. They were: (a) the conduct, position and personal circumstances of the applicant; (b) the question of delay and acquiescence; (c) the conduct, position and personal circumstances of the respondent; (d) the public interest.
52. In Leen, McKechnie J. applied the principles set out in his judgment as to the matters to which a court should have regard, noting that the court had a discretion to refuse even if there was an unauthorised development or use in being, and that the court must look at the individual facts and circumstances of each case, and he refused the relief sought.
53. The Court approaches the appeal in this case through the prism of Leen and considers the individual facts and circumstances of the case.
Decision
54. While issues as to the planning law, the law on forestry, the law of the European Union, and the relationship between European law and national administrative law, amongst others, were raised, this is an appeal from a motion where an injunction pursuant to s. 160 was sought and refused. Consequently, the underpinning of the entire appeal is the s. 160 motion and the circumstances and facts of the case.
55. The facts of the case commence with the fact that this is an appeal from a decision of the 3rd June, 2005, refusing an injunction. Quite apart from any issue as to delay or acquiescence, the fact of this time passing since the refusal of the High Court is a relevant factor.
56. In relation to the issue of an application to cease de-forestation, the fact that the appellant did not file an appeal until 2009 is a relevant factor.
57. Also relevant is the fact that that since 2006 the wind farm has been operating at Derrybrien.
58. The appellant made no application prior to 2009, or since, to the Supreme Court for the case to be heard as a priority.
59. On the 3rd July, 2008, the Court of Justice of the European Union delivered its decision in Commission v. Ireland Case C – 215/06, [2008] E.C.R. 1-4911 in which the Court found that Ireland had failed to fulfil its obligations under Council Directive 85/337/EEC.
60. On about the 29th June, 2005, the appellant sought judicial review of the decisions of Galway County Council to grant extensions of the planning permissions, 05/316 and 05/317, as set out in more detail earlier in this judgment. Included in the settlement was a payment of €265,000 to the appellant by the windfarm. While that judicial review is not a bar to this appeal, it illustrates that the appellants were in active litigation, from which they benefitted, from the 29th June, 2005, on related matters, while taking no steps on this appeal. This raises a query as to the bona fides of the appellant in this appeal.
61. There is no doubt of the respondents’ bona fides. They acted at all times in the belief that they were in accordance with planning permissions granted by Galway County Council.
62. The wind farm has no responsibility for any inadequacy in any planning permissions which might be held to exist if the issue were to be decided on this appeal.
63. The forest has been cleared, and the wind farm has been operating since 2006.
64. There is a public interest in the finality of planning permissions, and in a locality which, since 2006, has had the input of a wind farm.
65. This is the context within which to consider the motion in relation to deforestation and restoration, including re-planting.
66. There is an element of futility in seeking an order to restrain the deforestation, in the circumstances. The Court does not make futile orders.
67. In fact, while members of the Court pressed counsel for the appellant as to whether re-afforestation was sought, no clear response was received.
68. For clarity, it should be noted that the Court is prepared to approach this appeal on the assumption that the planning permissions did not cover or extend fully to the deforestation.
69. It also should be noted that, while the papers in this appeal are extensive, they do not provide a clear picture of the situation under appeal.
70. A decision is required on the appellant’s appeal, which has been brought by the appellant after the decision of the European Court of Justice in The Commission v. Ireland Case C- 215/06 E.C.R. 1-4911.
71. In the context of this appeal, in all the circumstances of the appeal, the Court is satisfied that it is appropriate to exercise its discretion under s. 160 and to refuse the remedy sought in the motion.
72. Consequently, for the reasons set out in this judgment, in all the circumstances, the Court exercises a discretion under s. 160 and would refuse the motion, and dismiss the appeal.