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Cite as: [2007] 4 IR 112, [2006] IEHC 102, [2007] 1 ILRM 125

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Judgment Title: Arklow Holidays Ltd -v- An Bord Pleanala

Neutral Citation: [2006]IEHC 102

High Court Record Number: 2005 291 JR

Date of Delivery: 29 March 2006

Court: High Court

Composition of Court: Clarke J.

Judgment by: Clarke J.

Status of Judgment: Approved

Neutral Citation Number: [2006] IEHC 102

THE HIGH COURT

COMMERCIAL
[2005 No. 291 J.R./ No. 52 COM]

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

AND

AN BORD PLEANÁLA IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND
WICKLOW COUNTY COUNCIL, ARKLOW URBAN DISTRICT COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION, ARKLOW ACTION GROUP, WICKLOW PLANNING ALLIANCE, AN TAISCE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION, COAST WATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

JUDGMENT of Mr. Justice Clarke delivered 29th March, 2006.
1. Introduction
1.1 On 18th January, 2006 I delivered judgment in an application in these proceedings for leave to apply for judicial review under the provisions of s. 50 of the Planning and Development Act, 2000 (“The 2000 Act”). In this judgment I will refer to the parties in the same manner as in that judgment (“my previous judgment”). As is clear from my previous judgment Arklow had sought leave to apply for judicial review of a decision made by the Board granting permission for a waste water plant on six separate groups of grounds as set out in that judgment. As is also clear from my previous judgment leave was granted in respect of three of those groups of grounds but refused in relation to the three others. It is in respect of certain aspects of the refusal of leave that Arklow now seeks a certificate from this court to enable it to appeal to the Supreme Court.
1.2 Each of the parties who were represented at the leave application also appeared on the hearing of this certification application.
2. The Statutory Basis for Appeal
Under s. 50(4)(f) of the Planning and Development Act, 2000, the determination of this Court of an application for judicial review is final and no appeal lies from such a decision save with the leave of this Court, which leave is only to be granted where this Court certifies that the 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.
2.2 It is clear from the decisions of the Supreme Court in KSK v. An Bord Pleanála [1994] 2 I.R. 128, Irish Asphalt v. An Bord Pleanála [1996] 2 I.R. 179, and Irish Hardware Association v. South Dublin County Council and Others [2001] 2 ILRM 291, together with numerous decisions of this Court, that the policy behind the section is that there should be a greater degree of certainty and expedition in the determination of planning judicial reviews.
2.3 In a number of decisions of this court the requirements of the section have been analysed in some detail and it is clear that a number of tests must be met:-
(i) There must be an uncertainty as to the law in respect of a point which has to be of exceptional importance; see for example Lancefort v. An Bord Pleanála [1998] 2 IR 511.
(ii) The importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case. Kenny v. An Bord Pleanála (No. 2) [2001] 2 I.R. 704. It is the case that every point of law arising in every case is a point of law of importance. Fallon v. An Bord Pleanála [1992] 2 I.R. 308. That, of itself, is insufficient for the point of law concerned to be properly described as of “exceptional public importance”.
(iii) The requirement that the court be satisfied “that it is desirable in the public interest that an appeal should be taken to the Supreme Court” is a separate and independent requirement from the requirement that the point of law be one of exceptional public importance. See Kenny (No. 2). On that basis, even if it can argued that the law in a particular area is uncertain, the court may not, on the basis, inter alia, of time or costs, consider that it is appropriate to certify the case for the Supreme Court. Arklow Holidays Limited v. Wicklow County Council and Others (Unreported, High Court, Murphy J., 4th February, 2004).
2.4 This latter case involved a judgment in an application in proceedings relating to the same development as that with which I am concerned and involved an application for a certificate in respect of a refusal to give leave to seek judicial review in relation to the original decision of the planning authority in respect of this development. The proceedings with which I am concerned relate to the decision of the Board in the same planning process.
2.5 It is also clear that the point of law concerned must arise from the decision: see Ashbourne Holdings Ltd v. An Bord Pleanála (Unreported, High Court, Kearns J. 19th June, 2001), Kenny (No. 2) and Begley and Clarke v. An Bord Pleanála (Unreported, High Court, O Caoimh J., 23rd May, 2003).
2.6 I did not understand there to be any significant controversy between any of the parties to the certificate application in relation to the appropriate principles to be applied.
I therefore will proceed to consider the various points in respect of which a certificate is sought applying those principles.
3. Failure to Assess
3.1 As pointed out at paragraph 5.17 of my previous judgment, Arklow argued at the leave hearing that there were substantial grounds for contending that there had not been an adequate assessment of the environmental impact of the project sufficient to satisfy the requirements of directive 85/337 as interpreted by the Court of Justice in particular in Wells v. Secretary of State (Case C – 210/02 1st January, 2004) (2004) 1 CHLR 31. As set out in my previous judgment, that argument was the second leg of contentions made on behalf of Arklow which concerned conditions 9 and 13 of the planning permission ultimately granted by the Board. Under the first leg of the argument it was contended that the relevant conditions conferred an impermissibly wide discretion on the planning authority in relation to matters which were to be the subject of further agreement, contrary to the principles set out in Boland v. An Bord Pleanála [1996] 3 I.R. 435. At paragraph 5.11 of my previous judgment I concluded that the criteria set out for the agreement to be reached between the Urban District Council (as developer) and the County Council (as planning authority) were sufficiently precise to meet the Boland test and further concluded that there did not seem to me to be substantial grounds to the contrary. No certificate is sought in respect of that finding.
3.2 However at paragraph 5.19 of my previous judgment I went on to determine that where the Board imposes a condition which complies with the Boland principles there could be no breach of the directive as a result of the relevant condition. It is that finding which Arklow contends gives rise to a point of law of exceptional public importance. In substance the issue which Arklow wishes to raise before the Supreme Court is as to whether I was correct in my conclusion as set out in paragraph 5.19 and referred to above.
3.3 Arklow suggests that the following points of law, which it asserts are of exceptional public interest, arise as a result of that aspect of my previous decision:-

1) In light of the requirement set out in

Wells v. Secretary of State for

Transport

Case C-201/02 (2004) 1 CMLR 31 that the environmental impact assessment must be carried out as soon as it is possible to identify and assess all the effects which a project may have on the environment, where a planning authority (or An Bord Pleanála on appeal) imposes a condition on a planning permission that leaves certain matters for agreement with the planning authority and such matters may, are likely to, or will have significant effects on the environment, is it sufficient that the planning authority (or An Bord Pleanála on appeal) only meet the criteria set out in

Boland

and

Houlihan

or are the planning authority (or An Bord Pleanála on appeal) further obliged to assess all significant effects of the project on the environment and in particular those effects that may, are likely to, or will result from the matters that have been left for agreement with the planning authority before such a condition can be imposed, where those effects are identifiable at the time the planning authority (or An Bord Pleanála on appeal) is making its decision on the planning permission.

2) If a condition complies with the criteria set down in

Boland

and

Houlihan

, does it necessarily follow that their has been an adequate environmental impact assessment in accordance with the provisions of 85/337/EEC or must a Court go on to examine whether all of the possible environmental impacts of the proposed development have been assessed prior to the grant of development.

3.4 In addressing this question it is necessary to set out the logic behind the finding to which I have earlier referred. It is, of course, correct to state, as argued by counsel for Arklow, that the decision of the Supreme Court in Boland was concerned with purely domestic law, involving the circumstances in which there might or not be an improper delegation by the Board of its powers back to a planning authority in circumstances where certain matters were left over for further agreement between that authority and the developer concerned. The decision in Boland was not concerned with the Directive or, indeed, any other areas of European Law. However it is important to set out the requirements of the Directive and also the consequences of a finding of compliance with the Boland principles. The Directive requires that there be a proper scrutiny of a project of the type to which it relates in accordance with the broad process specified in the Directive. It is, however, the case that the detailed procedural rules applicable to such scrutiny are left to the determination of the domestic legal order of each member state provided that they are not less favourable than those governing similar domestic situations. See Wells.
3.5 Where a condition of a planning permission granted by the Board refers a matter back to the planning authority for further agreement there will be no breach of the requirement that the final planning permission be subject to proper scrutiny in that the planning authority (which is after all a competent authority in respect of planning matters) will have to be satisfied as to the appropriateness of agreeing to whatever matters are left over.
3.6 The argument in respect of leave in this case turned on the contention that the public would not be involved in such latter process. It is, of course, correct to state that the public has no direct involvement in the process whereby the developer and the planning authority reach agreement in accordance with a matter left to such agreement by virtue of a condition contained in the Board’s planning permission. However the full context needs to be taken into account. Firstly, as pointed out by counsel for the Board, it is important to note that in order to meet the Boland criteria, the matter left over for agreement must amount to a technical matter of detail which is within the proper responsibility of the planning authority and which may require re-design in the light of practical experience. Therefore in order that the public not have an involvement in the agreement process, the matter which is to be the subject of agreement must be a matter amounting to a technical question of detail.
3.7 Furthermore, as pointed out in the course of my previous judgment, it is open to any member of the public to challenge an agreement reached on the basis that it does not conform with the criteria specified in the decision of the Board (see paragraph 5.18).
3.8 I came to the view in dealing with the application for leave that there could be no circumstances in which the limited exclusion of members of the public from a second round of consultation, in respect of matters of technical detail left over for agreement, could amount to a breach of the undoubted obligation of public consultation set out in the directive. Even if I am wrong in that view it seems to me that the circumstances in which it would be possible to argue that leaving over for further agreement issues of technical detail could amount to a breach of the directive, would be wholly exceptional. In those circumstances it does not seem to me that the issue involves such a wide ranging issue applicable to a variety of circumstances as would render it of the type of exceptional public importance required in order to grant a certificate under the section.
3.9 The first issue proposed for certification is predicated on the matters left over for agreement being at a minimum “likely to” have significant effects on the environment. It would require wholly exceptional circumstances, if any, for any such effect to flow from a matter of technical detail.
The second issue proposed ignores the fact that, in this case, the only failure of proper assessment asserted was the leaving over of certain matters for further agreement between the parties. No wider failure was advanced in argument. My previous judgment was, therefore, directed solely to that issue and must be seen and read in that context. The second issue, as formulated, does not arise from the judgment.
4. Transposition
4.1 The second issue in respect of which a certificate is sought concerns the question that arose at the leave application involving a contention on the part of Arklow that Ireland had failed to properly transpose Council Directive 75/442/EEC (as amended by 91/156/EEC and 91/689/EEC). As is clear from my previous judgment the issues which arose under that heading were analogous to those which arose under a further ground advanced on behalf of Arklow to the effect that the provisions of the Waste Management Act, 1996 applied to the project under consideration so that, it was contended, in accordance with the provisions of that Act, issues of environmental impact arising out of the project were a matter for the Environmental Protection Agency rather than the planning authorities. In those circumstances it was said that the permission was, as a consequence, and by virtue of the fact that such environmental issues were addressed by the Board in the grant of the permission, invalid. For the reasons set out in my previous judgment I was satisfied there were substantial grounds for that contention.
4.2 However, having come to that view, I indicated that it seemed to me that it logically followed from that conclusion that the Waste Management Act 1996 was capable of being construed (if necessary) in the manner contended for by Arklow. If it was not capable of being so construed then there could not have been substantial grounds for contending to the contrary. In the light of well settled jurisprudence of the courts both in this jurisdiction and in the EU to the effect that, where it is at all possible, a domestic implementing measure should be construed so as to bring it into conformity with the requirements of the directive which it is designed to implement, it seemed to me that, if there were substantial grounds for arguing that the Waste Management Act 1996 could be construed in the manner contended for by Arklow, it logically followed that there could not be substantial grounds for contending that Ireland had been in breach of its obligation to transpose in that if it were necessary to give the Waste Management Act 1996 the construction contended for by Arklow, so as to bring it into conformity with the Directive, such a construction could be placed upon it.
4.3 The point of law contended to be of exceptional public importance in respect of which a certificate is sought on this issue is put by the applicants in the following terms:-

“Where a party raises an alternative plea, at leave stage, that if legislation is not interpreted as contended for, there is a failure to transpose provisions of EU law, should leave be granted for both grounds, thereby leaving it open for the trial judge to find that, while the legislation cannot be interpreted so as to be compatible with EU legislation, there has been a failure to transpose same into domestic law”.

The second issue sought to be raised concerns whether there has in fact been a failure to transpose.
4.4 It seems to me that the issue proposed does not arise. Either there are substantial grounds for arguing that Ireland has been in breach of its obligations to transpose the directive correctly or there are not. There is nothing in the scheme of the legislation which allows leave to be granted in respect of an issue “just in case”. There may, of course, be cases where there is a dispute between parties as to the proper interpretation of relevant EU legislation and where there may be substantial grounds for the contention put forward by the applicant. In such cases it is possible that, if the contention raised on behalf of the applicant concerned is correct, there may be no basis in domestic law which would allow the court to conclude that there has been proper transposition. However this is not such a case. In my view counsel for Ireland was correct when he submitted that the issue sought to be raised is essentially procedural (i.e. should the issue be allowed to go to a substantive hearing “just in case”). In those circumstances I am not satisfied that it amounts to a point of law of exceptional public importance.
5. Standing
5.1 The third issue in respect of which a certificate for leave to appeal is sought concerns a question raised on behalf of Arklow in respect of which leave was originally sought relating to the delineation of the site of the proposed development on the maps attached to the planning application. It was contended that the delineation (being confined to the site of the waste water treatment plant itself) was inaccurate and in breach of the relevant regulations by virtue of not including on the map as so delineated other aspects of the project. As is clear from my previous judgment I took the view that the applicants did not have standing to raise such an issue because they had not, in any respect, been misled by the map. Arklow fully participated in the hearing and addressed each of the issues which arose at the hearing including those which related to those aspects of the project which were outside the site as delineated. In respect of this aspect of the case Arklow argues that it raises a point of law of exceptional public importance, that is to say whether a person who has not been misled by any failure to comply with the mapping requirements of the regulations governing planning applications can be said to lack standing to challenge a permission granted on foot of such an application.
5.2 Counsel for Arklow makes the point that there does not appear to be any prior authority for the proposition that a party requires to establish that they were misled in respect of a failure to comply with the technical requirements of the Planning Regulations in order to mount a challenge on the basis of such failure. None of the opposing parties were able to point to an authority directly to that effect. The proposition that a party is excluded from raising points of a technical nature which did not, in fact, mislead or effect them is one which, it seems to me, derives from the policy of the planning acts as a whole. However the issue does seem to me to be one of exceptional public importance. The broad question of whether a person is excluded from an ability to challenge a planning permission on the basis of a potentially significant failure to comply with the requirements of the planning regulations, on the basis of not having been misled, is an issue which could arise in a great number of cases and has the potential to be of significance both to those seeking planning permissions (who, if my decision is correct, may be entitled to exclude challenges in a significant number of cases) or to those who might oppose planning permissions (who, if my decision is incorrect might be wrongly excluded from mounting a challenge which would otherwise be successful). In those circumstances I am satisfied that the point raised on behalf of Arklow is a point of law of exceptional public importance.
5.3 However, in the light of the authorities to which I have been referred, it seems to me that I must ask a further question which is as to whether it is, nonetheless, in the public interest to grant the certificate sought. I have come to the view that it is not. The public interest, in an issue such as this, needs to take into account the nature of the development proposed and the potential consequences of a significant further delay in the matter being finally disposed of before the courts. While it is undoubtedly the case that issues and questions concerning the public nature of the project involved are not necessarily decisive (it would be wrong to say that the public importance of the project concerned must necessarily outweigh all other considerations in the case), such factors are, nonetheless, in my view, matters which have to be taken into account by the court in assessing whether it is in the public interest to grant the certificate. Having regard, on the one hand, to the importance of the issue raised by counsel on behalf of Arklow and, on the other hand, to the importance of the project and the consequences of the likely delay that would be incurred, I have come to the view that it would not be in the public interest to grant a certificate notwithstanding my finding that the point of law raised by counsel on behalf of Arklow is a point of law of exceptional public importance.
6. Conclusion
In all those circumstances I have come to the view that I should refuse the certificate sought on all the grounds advanced.