Supporting Documents:
114-18 AFL.doc114-18 Rspndts Notice An Bord Pleanala.docx114-18 Rspndts Notice.pdf

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN

RESULT: The Court does not grant leave to the Applicants to appeal to this Court directly from the High Court.

COURT: High Court

DATE OF JUDGMENT OR RULING: 19th December, 2017 and 27th June, 2018

DATE OF ORDER: 29th June, 2018

DATE OF PERFECTION OF ORDER: 2nd July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON: 30th July, 2018 AND WAS IN TIME.

Application

1. The applicants, Mr. O’Brien and Ms. O’Brien, seek leave to appeal to this Court from the Order of the High Court (Costello J.) made on 29 June 2018 (and perfected on 2 July 2018) refusing judicial review of a decision of An Board Pleanála (“the Board”), for the reasons set out in a written judgment delivered on 19 December 2017.

General Considerations

2. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are “exceptional circumstances” warranting a direct appeal to this Court.

3. The general principles applied by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Cooper (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

4. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background and Procedural History

5. The underlying proceedings involved an application for judicial review of a decision made by the Board on 2 March 2017 granting the notice party substitute consent for the Kilvinane wind farm in County Cork. By order of the High Court dated 24 April 2017, Noonan J. granted the applicants leave to seek judicial review of the said decision of the Board. The applicants sought an order of certiorari on the basis of a number of arguments, but that which is relevant for the purposes of this decision is the contention that the Board failed to carry out a proper Environmental Impact Assessment (EIA) in accordance with s. 172 of the Planning and Development Act 2000 (“the Act of 2000”) as amended, as interpreted in accordance with the obligations imposed by Article 3 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (“the EIA Directive”).

6. Specifically, the applicants contended that there must be an examination, analysis and evaluation of the submissions of the public concerned and in particular of their submissions to the Board in relation to the noise impact of the wind farm. They alleged that the report submitted by an applicant’s acoustic expert regarding the noise generated by the development project (“the Bowdler Report”) was not engaged with by the Board or the Inspector. Further, they suggested that should a conflict between the views expressed by experts exist, then the Board must resolve that conflict.

7. The reasons for the decision of the High Court in refusing to grant an order of certiorari quashing the decision of the respondent are set out in the written judgment of the Court delivered on 19 December 2017 by Costello J.: [2017] IEHC 773. The submissions of the applicant regarding the adequacy of the EIA carried out by the Board were considered in some detail and rejected by the Court in paras. 31 to 45. It is not proposed to repeat this in full in this determination, as the judgment is published.

8. Relevant for the purposes of this decision is the holding that there is a distinction to be made between the obligation imposed by s. 171A in relation to the assessment, including examination, analysis and evaluation of the direct and indirect effects of the proposed development upon the environmental matters specified in that section, and the obligation pursuant to s. 172(1G)(c) to consider any submissions or observations validly made in relation to the environmental effects of the proposed development when carrying out an EIA. Considering the facts of the application, the Court then proceeded to find that it was clear that the Inspector and Board did take the Bowdler Report and the other submissions of the applicants into consideration.

9. The High Court rejected the contention that the Board must examine, analyse and evaluate each of the submissions or observations validly made to the Board as not required by either the EIA Directive or the Act of 2000, as amended (paras. 44 and 45).

10. The applicants subsequently applied to the High Court for a certificate for leave to appeal to the Court of Appeal pursuant to s. 50A(7) of the Act of 2000, as amended. The reasons for the decision of the High Court in refusing to grant a certificate for leave to appeal are set out in written judgment of the Court delivered on 27 June 2018 by Costello J.: [2018] IEHC 389.

11. The point of law identified in that application was:-

“Does the requirement to carry out environmental impact assessment include an obligation to examine, analyse and evaluate the substance of the information submitted by the public concerned?”

12. In the judgment delivered on the application for a certificate, Costello J. determined that the point of law identified above “does not arise from the judgment as a matter of fact or of legal conclusion”. Her explanation for that conclusion is set out at para. 18 of that judgment:-

“18. In order to advance his proposed ground of appeal, the point must arise out of the judgment. The argument is based on an allegation that as a matter of fact there was an unlawful distinction in the assessment conducted by the Board of the information submitted by the applicants, on the one hand, and the developer on the other and a failure to examine the substance of the information gathered. The judgment does not hold that the Board is not required to assess the substance of the information submitted by the public concerned. Therefore, this point does not arise from the judgment. Nor does it suggest that the Board should- or may - make a distinction in its assessment of the information provided by the applicant for planning permission and that submitted by the public concerned. In the judgment, I found that the Inspector and the Board considered the information validly provided, as they were required, and then went on to outline how the Inspector and the Board assessed the direct and indirect noise impact of the development on the environment, the Article 3 obligation. It seems to me that there was no finding of fact that there was any distinction between the assessment of the information provided by the developer and the applicants by either the Inspector or the Board, but merely an inference by the applicants that this was so because there was no express reference to the submissions and criticisms of Mr Bowdler of the information provided by the developer. From this inference, it was then inferred that the court in effect endorsed a difference in treatment of information provided by the developer and the public concerned which was not authorised by law. But this was not so. Simply put, the point does not arise from the judgment as a matter of fact or of legal conclusion.”

13. The application for leave and the respondent’s notice is published with this determination and it is therefore only necessary to set out in summary the application and opposition to it in the respondent’s notice. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

14. As appears from the application, it is contended that a decision on the point of law identified above and which formed the basis of the application for a certificate in the High Court gives rise to a matter of general public importance. However, that contention is based upon an assertion that the decision of the High Court distinguished between the obligation of the Board and the Inspector to assess information provided by the developer and that provided by the applicants as the “public concerned”.

15. Both the respondent, the Board, and the notice party, Mr. Draper, oppose the application for leave. They submit inter alia that the obligation of the Board to examine the substance of the information gathered from the developer and the public is not in dispute. They rely upon the findings of fact made by the High Court that the submissions of the applicants including the Bowdler Report were considered. They also submit that the applicants are in reality seeking a more expansive textual explication of the reasons for the Board’s decision. As a result, they propose that this application turns on its facts, and insofar as it relates to reasons, the decision of this Court in its recent judgment in Connelly v. An Bord Pleanála [2018] IESC 31 regarding the adequacy of reasons provided by the Board, is applicable.

Determination

16. The Court does not consider that the applicants have established that the decision of the High Court sought to be appealed against involves a matter of general public importance or that it is in the interest of justice that an appeal be allowed. The reasons for its conclusion are as follows.

17. First, as appears from the application for leave, the issue of law, the resolution of which is submitted to be a matter of general public importance, is based upon a contention that the High Court made a distinction between the obligations of the Board in relation to the assessment of information furnished by the developer and the applicants as public concerned. In the second of the three grounds of appeal to be relied upon if leave to appeal were granted, the applicants contend that the Board can only comply with its obligation under the EIA Directive and the Planning Acts where its assessment “is not limited to the information furnished by the developer but also encompasses the information that has been supplied by the public concerned”.

18. The Court does not consider that the High Court judgment made any such distinction in reaching its decision. The trial judge herself took a similar view in the judgment delivered on the application for a certificate for leave to appeal as set out above. That appears to the Court to be a correct view of the substantive judgment delivered and sought to be appealed against. Accordingly, the applicant has not satisfied the Court that the issue of law identified properly arises from the judgment of the High Court.

19. The Court recognises that the High Court judgment distinguishes between the obligation of the Board pursuant to s. 171A of the Act of 2000, as amended, to assess, in the sense of examine, analyse and evaluate, the direct and indirect effects of a proposed development on the environment as specified in that section and the obligation of the Board (or the Inspector) when conducting the environmental impact assessment to consider, in accordance with s.172(1G)(c) of the Act of 2000, as amended, submissions or observations validly made in relation to the environmental effects of the proposed development. The applicants have not, however, in the proposed grounds of appeal set out any basis for a contention that such distinction made by the High Court was wrong in law. Insofar as the identification of the issue of law sought to be resolved implies that it is so contended, that is not sufficient to merit the grant of leave to appeal. As has been pointed out in a number of determinations (see, in particular, Price Waterhouse Cooper v. Quinn Insurance [2017] IESC 73) a ground of appeal sought to be raised must in the first place be stateable. The applicants have not satisfied the Court of any relevant stateable ground of appeal to this part of the High Court judgment.

20. The Court also considers that the respondent and notice party are correct in their submission that the appeal in respect of which leave is sought is fact-specific rather than raising a matter of general public importance.

21. The Court does not consider it necessary in the interest of justice that there be an appeal. The Court has taken into account that the applicants have been refused a certificate to the Court of Appeal. Undoubtedly this means in accordance with s. 50A(7) of the Act of 2000, as amended, if leave is not granted the decision of the High Court is final. That position forms part of the policy of the Act of 2000, as amended. The applicants have however, had a full hearing of their application for judicial review and a detailed reserved judgment from the High Court. They have also had consideration as to whether or not the decision of the High Court involves a point of law of exceptional public importance and whether it is desirable in the public interest that an appeal should be taken. In circumstances where they have failed to satisfy this Court that the decision of the High Court involves a matter of general public importance and in particular where the Court is not satisfied that its application includes a relevant stateable ground of appeal, the Court does not consider it to be necessary in the interests of justice that an appeal be allowed.

22. In these circumstances, it is unnecessary to consider whether the additional criteria for a direct appeal from the High Court has been met.

And it is hereby so ordered accordingly.