Supporting Documents:
84-17 AFL.pdf84-17 Rspndt Notce 1NP.pdf84-17 Rspndt Notce ABP.docx84-17 Rspndt Notce stste.pdf

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the applicant to appeal to this Court from the judgment and order of the High Court

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from judgments of the High Court (White J.) dated the 9th October, 2015, and the 6th April, 2017, and from the resulting order of that Court made on the 6th April, 2017, and perfected on the 2nd May, 2017.

2. Friends of the Irish Environment Limited, also referred to in this determination as “the applicant” or “FIE”, is an environmental non-governmental organization which seeks leave to appeal to this Court from the said judgments and order of the High Court.

3. An Bord Pleanála (also referred to in this determination as “the first named respondent” or “the Board”) opposes the application for leave. Ireland and the Attorney General also oppose the application and are referred as “the State respondents”. All three respondents are collectively referred to as “the respondents”. The application is also opposed by Edenderry Power Limited and Bord na Móna, which entities are collectively referred to as “the first two notice parties”.

Jurisdiction

4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. What is sought in this application is what is colloquially known as a “leap-frog” appeal directly from the High Court to the Supreme Court. The threshold for such an appeal is higher than that in respect of an appeal from the Court of Appeal. As is clear from the terms of Article 34.5.4° of the Constitution, it is necessary, in order for this Court to grant leave to appeal directly from a decision of the High Court, that the Court is satisfied that there are exceptional circumstances warranting a direct appeal, a precondition to which is the presence of either or both of the following factors: i) that the decision sought to be appealed involves a matter of general public importance, or ii) the interests of justice.

5. Any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.

Background and Procedural History

6. A fuller history of the proceedings can be found in FIE’s application for leave document and the respondents’ notices, as well as in the judgments of the High Court made during the course of these proceedings. What is presented here is a summary for contextual purposes.

7. The within proceedings arose from a decision of An Bord Pleanála made on the 19th November, 2013, granting Edenderry Power Limited planning permission for the continued use and operation of a previously permitted peat and biomass co-fired power plant at Clonbullogue, County Offaly. On the 22nd January, 2014, the applicant was granted leave to apply for judicial review seeking, inter alia, an order of certiorari quashing the said decision of the Board. The applicant’s various grounds of review related to the first and second named respondents’ alleged failure to fulfil certain obligations under Directive 92/43/EC on the conservation of natural habitats of wildlife and flora in special areas of conservation (“the Habitats Directive”), in that no appropriate assessment of the peat extraction works or the operation of the power plant had ever been carried out. It was also alleged that certain necessary conservation measures had not been established. The applicant’s case was that the extraction of peat from the bogs supplying the power plant is likely to have significant effects on i) the River Barrow and River Nore special area of conservation, and ii) the River Boyne special area of conservation.

8. It should be noted that FIE’s application for judicial review was heard together with a second, distinct application for judicial review in respect of the power plant, this other application being brought by another nongovernmental organisation, An Taisce. An Taisce’s application related to the Board’s alleged failure to comply with Directive 2011/92/EU of the European Parliament and Council of 13th December, 2011, on the assessment of the effects of certain public and private projects on the environment (the Environmental Impact Assessment Directive or “EIA Directive”).

9. The substantive decision of the High Court (White J.) on the applications for judicial review was delivered on the 9th October, 2015 (An Taisce v. An Bord Pleanála [2015] I.E.H.C. 633). The learned judge found for An Taisce in its application and granted an order of certiorari quashing the Board’s decision of the 19th November, 2013. The Court noted that there could be possible indirect environmental effects of the use of peat from the bogs in question, and that An Bord Pleanála had excluded the consideration of these indirect effects when considering the planning application for the extension of the life of the power plant. Thus the Board was obliged to ensure the effectiveness of the EIA Directive by subjecting those environmental effects to an environmental impact assessment before granting planning permission for the power plant. However, although quashing the Board’s decision on the basis of An Taisce’s successful application, White J. refused the judicial review application sought by FIE. He stated that FIE fell substantially short of the standard required to sustain its argument and had failed to put before the Court cogent material, by way of expert analysis on affidavit, of the case it was making concerning the alleged breach of the Habitats Directive. He therefore refused the relief that it sought.

10. FIE subsequently made an application seeking to have the High Court revisit its substantive judgment. FIE’s case was that An Bord Pleanála had failed to consider, at all, the peat extraction associated with the project, and in particular had failed to conduct a screening assessment of this peat extraction.

11. White J. delivered his judgment on this application on the 14th October, 2016 ([2016] I.E.H.C. 558). The learned judge set out the principles governing the jurisdiction of a Court to revisit its judgment (Belville Holdings Limited v. Revenue Commissioners [1994] 1 I.L.R.M. 29; In Re Greendale Developments [2000] 2 I.R. 514; L.P. v. M.P. [2002] 1 I.R. 219; People Over Wind v. An Bord Pleanála [2015] I.E.H.C. 356 (“People Over Wind v. An Bord Pleanála”)). He stated that the applicant had not pointed to an error of fact in the original judgment; rather its submission was that the Court had failed to address a specific legal argument in respect of the requirement for a screening assessment.

12. White J. noted that the issue of the burden of proof had been clearly raised in advance of the initial judgment and at hearing, and repeated his original finding that although the applicant had made assertions about certain environmental effects of the power plant, it had adduced no primary evidence whatsoever. He accepted that the Court had not specifically addressed, in its initial judgment, the screening assessment argument advanced by FIE in the application to revisit the judgment. The learned judge noted that the Board did carry out a preliminary screening assessment for the purposes of the Habitats Directive, and that it accepted that this was for the purposes of assessing the effect of the operation of the power plant, rather than the effect of peat extraction on any area of conservation. He stated that at most what the applicant had asserted was that the Court did not address a particular aspect of its original submissions. White J. stated that a court has discretion whether to grant the reliefs sought on a judicial review application, and that that discretion had been exercised in a fair and reasonable way. He was entitled to have reached the view that the applicant had not satisfied the burden of proof. Accordingly, he held that there were no exceptional circumstances which would require the Court to revisit its judgment of the 9th October, 2015.

13. By ex tempore judgment delivered on the 3rd February, 2017, the High Court (White J.) refused the applicant’s application for a certificate for leave to appeal pursuant to section 50A(7) of the Planning and Development Act 2000, as amended. Moreover, by a further ex tempore judgment delivered on the 6th April, 2017, the High Court (White J.) refused the applicant’s application for the costs of i) the substantive proceedings; ii) the application to revisit the main judgment; and iii) the application for a certificate for leave to appeal. The High Court made no order as to costs.

14. The applicant now seeks leave from this Court to appeal the refusal of the substantive judicial review proceedings and also the substantive costs order.

Appeal to this Court

15. The applicant requested an extension of time within which to apply for leave, as it filed the document one day outside the prescribed 28-day time period from the perfecting of the High Court order. The applicant explained in a handwritten annotation to its application that it had difficulties filing the document in the Supreme Court Office on the day that it was due. In the circumstances, none of the respondents opposed the application for an extension of time.

16. The applicant seeks leave to appeal against the said judgments and order of the High Court. It seeks to have the order of the High Court set aside. The respondents and the first two notice parties oppose the application for leave and will ask this Court to dismiss the appeal if leave is granted. The applicant does not seek to have a provision of any Act of the Oireachtas declared unconstitutional or incompatible with the European Convention on Human Rights, nor does any party seek to ask this Court to depart from or distinguish one of its own decisions or to make a reference to the Court of Justice of the European Union. None of the parties intend to request a priority hearing of the appeal.

17. The reasons submitted by the applicant in support of its application are set out in detail in its Application for Leave and Notice of Appeal. The respondents’ reasons for opposing the granting of leave are likewise set out in their respective replying documents. The first two notices parties have also submitted a respondent’s notice. These documents are available together with this determination on the Courts Service website; accordingly, the parties’ reasons are set out here in summary form only.

Application for Leave and Notice of Appeal

18. The applicant states that the decision sought to be appealed involves a matter of general public importance and submits that it is in the interests of justice that it be granted leave. It submits that the High Court did not consider at all the applicant’s case that a screening assessment was required. The learned judge determined that the applicant had not proved that a Stage 2 Appropriate Assessment (AA) was required, but the same arises only after a positive determination at a Stage 1 screening assessment. The learned judge accepted in the judgment of the 14th October, 2016, that he did not address the screening argument in the substantive judgment. Thus the applicant sought declaratory relief and the issue was not determined by the Court. The applicant has been refused relief and refused costs. It refers to the Aarhus Convention and states that the High Court proceedings were unfair, inequitable and costly. It is in the interests of justice that leave be granted in order to rectify this situation.

19. The applicant notes that it put forward uncontroverted affidavit evidence concerning the effects of the peat extraction. The Board did not address this issue; this was wrong as a matter of law. It was not for the applicant to establish what the outcome of a screening assessment might be, nor was it possible for it to lead evidence of the actual effects of the peat extraction. The notice party made a subsequent application for permission for the same development, including a screening assessment for AA which supported the case being made by the applicant concerning the Habitats Directive. Although the applicant filed an affidavit exhibiting same, the trial judge held that the evidence was not admissible. The applicant submits that it is unclear why the evidence was ruled inadmissible and suggests that the Court’s reasoning was unconvincing. The evidence was relevant or it was not. The applicant suggests that an applicant could produce no better evidence than a professional screening assessment compiled by the developer itself. It is in the interests of justice, and the public interest, that the applicable evidential burden, and how it is discharged, be resolved by this Court.

20. The question of scientific evidence in Habitats cases continues to arise (see People Over Wind v. An Bord Pleanála) and remains a problem in cases where an applicant must discharge the burden of proof, but cannot do so as the information required is not available or inadequate, or the information which needs to be tendered is inadmissible because it was not before the Board when it made its decision. This leads to a “Catch 22”: applicants are required to tender evidence, whilst being prevented from doing so. It is submitted that it is of general public importance that these matters are resolved and in the interests of justice that leave be granted.

21. Finally, the applicant submits that its application is not moot. The issues remain live notwithstanding the outcome of the An Taisce proceedings. The two cases were heard simultaneously and the result in one case could not have the effect of rendering the other case moot such as to deprive the applicant of its entitlement to relief and/or costs. Such an outcome would be inherently unjust and unfair.

Respondents’ Notices

22. An Board Pleanála makes three general points at the outset: first, the proceedings are moot, as the decision in question has already been quashed; second, although the applicant has asserted that it is relying on the “general public importance” ground, no matter meeting that threshold has been identified, and thus it is clear that the application concerns the “interests of justice” ground only; and, third, the interests of justice do not require that there be an appeal in respect of the decision to refuse FIE’s application for judicial review in circumstances where the substantive relief sought has already been granted in other proceedings. The only argument that FIE can advance in the interests of justice is that it should be permitted an opportunity to recover its costs. However, no general point of law in relation to costs arises, and if the applicant were successful in its application based solely on its argument that it should have succeeded on the merits in the High Court and thus should be permitted to seek its costs on appeal, the same could be said for an unsuccessful party in the High Court or the Court of Appeal.

23. The Board notes that FIE’s sole evidence to support its case in the High Court was an averment to the effect that “it is well known that the run-off from large-scale peat extraction is likely to have significant impacts on downstream aquatic ecosystems.” The High Court concluded by reference to case law that such an averment is insufficient to prove a case on the balance of probabilities. This finding was within the jurisdiction and discretion of the High Court to make, and turned on the facts and evidence of this case. Moreover it is not “unclear” why the Court ruled the applicant’s later affidavit evidence inadmissible: the reason was that it formed part of a conditional application for planning permission, made after the judicial review proceedings had been initiated, to cater for the possibility of the permission of the 19th November, 2013 being quashed.

24. The Board further submits that the applicant is not in a “Catch 22” – it was incumbent on FIE to put evidence before the High Court, and nothing prevented it from doing so. The An Taisce decision turned on the evidence in that case. Moreover, the applicant in People Over Wind v. An Bord Pleanála in fact sought to put its own expert evidence before the High Court, albeit that evidence was not fully accepted by the Court. The within case was decided on the adequacy of the evidence and there is no uncertainty regarding the standard or onus of proof on an applicant in judicial review proceedings. Finally, the question of the nature and extent of the evidence required cannot be said to have arisen here given that no evidence was actually adduced.

25. The State respondents also oppose the granting of leave, if and insofar as any relief is being sought against the State. The appeal is moot. The original planning permission was quashed in the An Taisce proceedings and the developer has subsequently secured a fresh grant of planning permission, which has not been challenged. Thus there is no public interest in the appeal, nor is it in the interests of justice that leave be granted. The applicant’s grounds of appeal are fact-specific, in that the appeal is directed to the trial judge’s ruling on whether the applicant had discharged the onus of proof, which centres on the content of the grounding affidavit. In the alternative, insofar as a leapfrog appeal is sought on the refusal of an order for costs, the State respondents note that it appears that the applicant has not sought leave from the High Court to appeal the costs order to the Court of Appeal. The judgment in Grace v. An Bord Pleanála [2017] I.E.S.C. 10 indicates that a certificate for leave to appeal to the Court of Appeal should first be sought unless there are truly grounds for suggesting that the appeal should go directly to this Court. Finally, the State respondents note that the claim against the State was not substantiated and was dismissed by the High Court in the decision of the 9th October, 2015 ([2015] I.E.H.C. 633). No relief is being sought against the State respondents and they were released from subsequent applications. A belated attempt to rejoin the State was refused by the High Court.

26. Finally, the first two notice parties also oppose the application for leave to appeal. They contend that the appeal is moot as the Board’s decision of the 19th November, 2013 has already been quashed. This is one of the main reasons why the High Court refused to grant the applicant a certificate to appeal. There has since been a fresh planning permission granted in respect of the plant, which the Board upheld on appeal. This decision of the Board was not subject to judicial review and the power plant is now operating under that planning permission. The granting of leave to appeal could not affect the continued operation of the power plant, which is operating under a valid grant of planning permission which was never challenged by way of judicial review. As the appeal is moot, neither of the constitutional prerequisites for leave to appeal contained in Article 34.5.4° can be satisfied.

27. The first two notice parties allege that the sole basis for of the application is to allow the applicant to overturn the substantive costs order made in the High Court. They point out that no order for costs was made in respect of these proceedings. There is no authority to support the proposition that an applicant is entitled to their costs under the Aarhus Convention, and in fact the Court of Justice of the European Union has held that that convention does not preclude an order for costs from being made against an unsuccessful applicant. They moreover echo the Board’s explanation of why certain evidence was deemed inadmissible. In relation to People Over Wind v. An Bord Pleanála, they note that this Court refused leave to appeal in that case ([2016] IESC DET. 21). Finally, in relation to the burden of proof, it is submitted that the High Court dealt with the case in accordance with well-established principles concerning the burden of proof in planning judicial review cases, and that it is not in the interests of justice that this issue be the subject of an appeal to this Court.

Decision

28. This application must be refused. In the first instance, it is clear that the appeal in respect of the substantive judicial review application is moot. The general principle that this Court will decline to entertain an appeal which is moot is well-known (see, e.g., Lofinmakin (a minor) & Ors v. Minister for Justice & Ors [2013] 4 I.R. 274). As is clear from other determinations on applications for leave to appeal made by this Court since the establishment of the new constitutional appellate regime, leave to appeal will not be granted where the issue is moot (see, e.g., Irish Life and Permanent t/a Permanent TSB v. Hanrahan [2016] IESC DET. 109). Here, the underlying decision of An Bord Pleanála which the applicant seeks to challenge was quashed by the High Court in the An Taisce proceedings heard alongside this case. Edenderry power plant is now operating under a fresh planning permission which was not the subject of any challenge by way of judicial review. It is thus clear that granting leave to appeal could not affect the continued operation of the plant. Accordingly, as the application is moot on this point, it must fail insofar as it concerns the substantive judicial review decision.

29. In any event, the applicant has failed to reach the constitutional threshold for leave to appeal to this Court. In accordance with Article 34.5.4° of the Constitution, leave to appeal directly to this Court from the High Court can only be granted in exceptional circumstances, a precondition to which is that i) the decision involves a matter of general public importance or ii) it is in the interests of justice that this Court hears the appeal. It is worth pointing out that under the appellate scheme as existed prior to the establishment of the Court of Appeal, the decision of the High Court not to grant a certificate permitting leave to appeal in a planning case would have been the end of the matter. No appeal was allowed from such a refusal. However, an applicant whose application for a certificate is unsuccessful now has the fall-back option of applying, pursuant to Article 34.5.4° of the Constitution, for a leap-frog appeal to this Court from the substantive decision of the High Court. This Court noted in Grace v. An Bord Pleanála [2017] I.E.S.C. 10 that a certificate for leave to appeal to the Court of Appeal must still be pursued before any leapfrog application can be made (see the paragraph 3.8 of the joint judgment of Clarke and O’Malley JJ.), but also made the point that the threshold for a certificate to appeal to the Court of Appeal is undoubtedly higher than the constitutional threshold for a leap-frog appeal to this Court (paragraph 3.6), which is an unusual quirk of the new appellate system.

30. Whilst an applicant on a leapfrog appeal must normally establish “exceptional circumstances” justifying an appeal directly to this Court, this requirement may be satisfied by the fact that no appeal otherwise lies from the decision of the High Court without a certificate. As this Court stated in granting leave in the Grace v. An Bord Pleanála case ([2016] IESC DET. 29):

“If the general public importance/interests of justice aspect of that threshold is reached, the very fact that the law, certainly as currently interpreted, might be said to exclude an appeal to the Court of Appeal, could very well provide the exceptional circumstances justifying a direct appeal to this Court.”

Of course, whilst that particular requirement may be satisfied, it nonetheless remains for the applicant to demonstrate that there is an issue of general public importance, or that it is in the interests of justice that leave be granted.

31. Turning to the instant application, although the applicant has invoked both constitutional grounds, it is immediately clear that no point of general public importance arises on this application. The applicant’s case was determined entirely on the inadequacy of the evidence presented by it. Such an outcome was inherently specific to the facts and evidence in this particular case and is of no wider application or import. The learned trial judge determined the judicial review application in accordance with long-established and well understood principles concerning the onus and burden of proof. Contrary to the applicant’s submissions, no point of general public importance arises on these issues, nor is a judgment of this Court required to bring clarity to this area of the law.

32. Moreover, although the applicant seeks to rely also on the learned judge’s failure to admit certain affidavit evidence, this point cannot satisfy the threshold for leave to appeal. The trial judge acted within the permissible limits of his discretion in refusing to admit the evidence and this Court will not grant leave merely to second-guess that exercise of discretion. No point of public importance arises from a routine decision not to admit a particular affidavit. Similarly, the “interests of justice” ground cannot avail the applicant on this point; merely claiming that there might have been a different outcome had the evidence been admitted will rarely, if ever, be sufficient on its own to merit a grant of leave from this Court, as otherwise virtually every such admissibility ruling could give rise to a successful application for leave to appeal.

33. In essence, what then remains of the application relates to FIE’s attempted appeal in respect of costs. No order as to costs was made in the High Court, with the result that FIE must pay its own costs in respect of the substantive proceedings, its application to revisit the substantive judgment, and its application for a certificate for leave to appeal. Its argument flows from the fact that it is an NGO, it is not well funded, and it is unjust and unfair that it should be exposed in terms of costs, particularly in light of the requirement in the Aarhus Convention that access to justice in environmental matters should not be prohibitively expensive. From the papers lodged with this application, it is not clear whether the applicant applied for a certificate to appeal the High Court’s ex tempore decision on costs (the 6th April, 2017) to the Court of Appeal. If such course was not pursued, it is uncertain why this was so. In any event, the costs issue raised by the applicant cannot satisfy the constitutional threshold for leave to appeal to this Court. It is clear that no general point concerning costs orders arises on this application. Instead the applicant relies on the “interests of justice” limb. Costs are, of course, at the discretion of the Court. The exercise of this discretion on the facts of a particular case will seldom be an appropriate ground for this Court to grant leave to appeal. Once again, if mere dissatisfaction with the costs order made in the Court below was a basis for granting leave, the same avenue would be open to virtually all unsuccessful parties. An unsuccessful applicant in a planning case will naturally be dissatisfied with having to bear its costs but that alone is no reason to suggest that it is in the interests of justice that this Court should hear the appeal.

34. In conclusion, for the reasons recited above, this Court will refuse leave to appeal under Article 34.5.4° of the Constitution.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.