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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Arklow Holidays Limited v An Bord Pleanala & Ors [2006] IEHC 15 (18 January 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H15.html
Cite as: [2006] IEHC 15
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Judgment Title: Arklow Holidays Limited v An Bord Pleanala
& Ors Composition of Court: Clarke J. Judgment by: Clarke J. Status of Judgment: Approved |
[2006] IEHC
15
THE HIGH
COURT
COMMERCIAL [2005 No.
291 J.R./2005 No. 52 COM] IN THE MATTER OF THE LOCAL GOVERNMENT
(PLANNING AND DEVELOPMENT) ACTS 1963–95 BETWEEN ARKLOW
HOLIDAYS LIMITED
APPLICANT
AND
AN BORD PLEANALA, 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 the 18th January,
2006.1. Introduction 1.1 In these proceedings the applicant Arklow Holidays Limited (“Arklow”) seeks leave to challenge a decision of the first named respondent, An Bord Pleanála (“The Board”) granting planning permission to the second named notice party, Arklow Urban District Council (“the Urban District Council”) for the development of a waste water treatment works together with associated sewers, roads and an outfall pipe at Seabank, Arklow, Co. Wicklow. The second and third named respondents, Ireland and the Attorney General (“the State”) are joined by virtue of the fact that certain questions relating to whether Ireland has properly transposed relevant EU directives into domestic law arise in the course of these proceedings. The first named notice party, Wicklow County Council, (“the County Council”) is made a notice party by virtue of the fact that the development sought to be carried out by the Urban District Council is, in large measure, outside the functional area of the Urban District Council and is within the functional area of the County Council. The County Council is, therefore, the planning authority to whom the original application for planning permission was made. The remaining notice parties were put on notice by virtue of the fact that they had an involvement in the planning process now sought to be challenged. However none of those parties have taken an active part in the application before me. 2. Background 2.1 Arklow is the occupier of lands adjoining the site of the proposed development and owns and operates a large mobile home park which attracts approximately 1,300 visitors annually. It would appear that those visitors used the lands, including those comprised in the proposed development and the beach and dunes through which it is proposed to construct the outfall pipe in relation to the proposed development, for recreational activities. 2.2 On the 13th July, 1999 planning permission was granted by the County Council as the relevant planning authority in application reference no: 23/99. Arklow challenged that original grant of planning permission (“the first challenge”). Neither the Urban District Council (as developer) nor the County Council (as the planning authority) resisted the leave application in the first challenge. However by virtue of the existence of that challenge the appeal which had been lodged by Arklow to the grant of the planning permission to the Board was delayed. It would appear that there were protracted disputes between the parties regarding discovery in respect of the first challenge. As a result the matter did not come on for hearing until 2003 and was the subject of separate judgments of Murphy J. on respectively 15th May, 2003 (in respect of the substantive leave application) and 15th October, 2003 (in respect of an Appeal Certificate). 2.3 It will be necessary to return to the first proceedings to some extent later in the course of this judgment. However at this stage it is sufficient to note that the proceedings were unsuccessful and, for the reasons set out in the second judgment referred to above, Murphy J. declined to certify any issues as being suitable, in accordance with the provisions of the Planning Acts, as a basis for an appeal to the Supreme Court. The first challenge therefore terminated with that final determination by Murphy J. on 15th October, 2003. 2.4 The appeal on the merits to the Board followed. That appeal was unsuccessful in substance in that the Board confirmed the decision of the County Council to grant planning permission although certain additional or different conditions were imposed by the Board. Certain of those conditions arise in the context of these proceedings and it will be necessary to refer in more detail to them later in the course of this judgment. 3. Substantial Grounds 3.1 Arklow’s current leave application is made pursuant to s. 50 of the Planning and Development Act 2000 (“the 2000 Act”). Under this section Arklow must establish that it has substantial grounds for contending that the decision of the Board is invalid in order that it may be granted leave to challenge that decision. 3.2 The criterion of “substantial grounds” was originally imposed by s. 82(3B) of the Local Government (Planning and Development) Act 1963 as amended by s. 19 of the Local Government (Planning and Development) Act 1992. The test has been the subject of significant judicial interpretation and may now be said to be well settled. 3.3 In McNamara v. An Bord Pleanála [1995] 2 ILRM 125 Carroll J. held that “substantial grounds” in the context of s. 82(3B) has the following meaning:-
3.5 Of perhaps even greater importance is the fact that the Supreme Court, in the Illegal Immigrants (Trafficking) Bill 1999 (2000) 2 IR 360, endorsed the McNamara test as the appropriate test applicable to the regime then under consideration that is to say the largely identical statutory regime in respect of challenges in the immigration sphere. 3.6 The test set out in McNamara is, therefore, well established as the appropriate basis for a consideration of whether there are substantial grounds in any statutory regime where the Oireachtas has determined that such grounds require to be established before leave to challenge can be given. There can be little doubt, as McKechnie J. pointed out in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565, that the threshold of “substantial grounds” was intended to result in a different and higher threshold than that normally applicable to an application for judicial review under the Rules of the Superior Courts. As McKechnie J. pointed out certain of the phraseology in the McNamara test would, in any event, apply in any leave application even at the lower or ordinary threshold. As he, correctly in my view, pointed out perhaps the greatest guidance as to the distinction between the test applicable in “substantial grounds” cases as opposed to ordinary cases can be gleaned from the word “weighty”. 3.7 However there is another important aspect of the process which applies in those cases where substantial grounds are required by statute. Applications for leave in such cases are, invariably, required to be on notice to other relevant parties. It is, therefore, the case that the court on the hearing of the leave application in such cases has the benefit of argument and, in some cases, evidence, not only from the applicant but also from those who might wish to resist the application. 3.8 While the parties did not differ as to the test to be applied – it was agreed on all sides that the McNamara test as approved by the Supreme Court in Illegal Immigrants (Trafficking) Bill was the test – there was what might euphemistically be described as a difference in emphasis as to the extent to which it is necessary for the court to analyse in considerable detail the evidence and arguments put forward on both sides at such a leave application. Counsel for Arklow drew attention to the comments of Carroll J. in McNamara to which I have referred and which make it clear that, while the court is required to be satisfied that each ground advanced is a substantial ground, the court is not required to deal in detail with each argument put forward in respect of each ground and to comment in detail on each such argument. Counsel for the Board drew attention to the detailed analysis of the argument conducted by McKechnie J. in Kenny as suggesting that there should, perhaps, be a more rigorous analysis of the case than might be suggested from the interpretation on McNamara urged on behalf of Arklow. 3.9 It seems to me, however, that any distinction between the approach of Carroll J. in McNamara and McKechnie J. in Kenny is more apparent than real. The realities of a contested leave application are that the court will necessarily have before it argument on behalf of those resisting the leave and in many cases additional evidence put before the court by those parties. It is frequently the case that an argument which sounds superficially attractive on first presentation may become insubstantial (and thus not sufficient to allow leave on that ground) when it is critically analysed with the benefit of argument by an opposing party. Furthermore opposing parties may draw attention to other relevant aspects of the factual situation which may place all of the facts in context and which may lead to a conclusion that certain grounds are insubstantial. In that way the very process of conducting a contested leave application may lead to certain grounds, as it were, “falling away”. 3.10 Nonetheless, notwithstanding such process, there will always be cases where some, or indeed all, of the grounds advanced remain ones upon which substantial argument can be advanced on either side. There is, in my view, no basis to be found in any of the authorities for suggesting that the court should attempt to weigh the strength of such competing arguments. The process envisaged is that, with the assistance of argument from all sides, the court has to form a judgment as to whether notwithstanding the points raised by those opposing leave there remains substantial or weighty arguments in favour of the challenge. 3.11 Where the arguments relate to legal issues only, it is appropriate to note that McKechnie J. in Kenny indicated that “whilst obviously I should not attempt to resolve conflicts of fact or express any concluded view on complex questions of law or indeed anticipate the long term results, nonetheless within existing limitations I should, I feel, make some evaluation of the factual matrix and should, where with certainty I can form some view of the appropriate statutory provisions and the relevant and material case law”. Thus where, even after having had the benefit of argument on both sides, the court remains of the view that there are substantial or weighty arguments either way, the court should not express any view on the relative strengths of those arguments. Rather leave should be granted and it is for the court dealing with the substantive application to weigh the strengths of the relevant arguments. 3.12 I should not leave this point without commenting that the current practice in relation to leave applications in planning matters points to a potential duplication in the work of courts which are required to hear such applications. 3.13 There can be little doubt but that the statutory requirement that leave can only be granted after an application on notice, and where a higher standard has been established, was introduced as a means of attempting to streamline challenges to planning permissions. Thus, it was hoped, insubstantial cases would be disposed of in early course. While that end has, in part, been achieved, the fact is that leave applications have now come to take on a life of their own. It is interesting to note that it is common practice for respondents and notice parties in planning leave applications to file detailed replying affidavits even though it is rare for the respondent Minister or respondent statutory bodies charged with making decisions in the immigration sphere to file any replying affidavits in the almost identical process that applies to such cases. There may, of course, be good reasons for the filing of affidavits in some cases. However the reality is that leave applications have now turned into substantial hearings themselves. On the initial date the hearing has to be adjourned from time to time to allow for the filing of further affidavits. Furthermore, in many cases, the leave application takes, as here, a number of days at hearing and thus requires to wait for a suitable place in the court list. Where leave is granted, whether on some or all grounds, a second substantive hearing then follows. 3.14 It is difficult to avoid the conclusion that, at least in a not insignificant number of cases, the process leads to a longer rather than a shorter challenge period. A particularly significant aspect of the current process was identified and commented on by Kelly J. in Mulholland v. An Bord Pleanála (Unreported, High Court, Kelly J, 4th October, 2005). In many challenges to planning permissions a significant number (and in some cases all) of the grounds put forward are either wholly or substantially legal grounds. This is hardly surprising given the judicial review jurisprudence. However it is frequently the case that the judge dealing with the leave application will have had the benefit of as full an argument in relation to such legal grounds as any judge hearing a substantive application would have. In relation to the case before him in Mulholland Kelly J. commented as follows:-
3.15 In summary it seems to me, therefore, that I should apply the McNamara test. I should engage in an analysis of the arguments put forward on behalf of Arklow in respect of each of the grounds advanced taking into account the arguments put forward by those opposed to leave. I should do so, however, solely for the purposes of determining whether the ground advanced (as opposed to each and every argument that may have been mentioned in the course of the hearing) is one in respect of which I am satisfied there can be said to be a substantial or weighty basis. In respect of any ground where I am so satisfied I should refrain from passing any comment on the strength or weakness of the ground, that being properly a matter for the judge who would (if leave is granted) ultimately have to determine the substantive case. 4. The Grounds Advanced 4.1 While a large number of grounds appear in the statement filed on behalf of the applicant they were conveniently grouped by counsel for Arklow into six areas. This involved the abandonment of some grounds. I did not understand Arklow to pursue any of the grounds set out in the statement beyond those which I will now set out. I would therefore propose dealing with each of those six matters. In summary the grounds are as follows:- 1. That there was an improper abdication by the Board of its role under the Planning Acts in accordance with domestic law, or alternatively no proper assessment by the Board under EU law, in relation to the manner in which the Board determined that the outfall pipe from the plant to the sea was to be situated. 2. That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have regard, as it is said it did, to environmental questions, those matters being properly ones for the Environmental Protection Agency (“EPA”). 3. That the Board failed to carry out a proper environmental impact assessment (“EIA”) in relation to the whole of the project. 4. As an alternative to point 2 it is said that if the Waste Management Act, 1996 does not apply to the circumstances of this case then Ireland has failed to properly transpose council directive 75/442/EC (as amended by council directive 91/156/EC). 5. That the Urban District Council did not have a sufficient interest in the property which was the subject of the planning application to entitle them to make the application. 6. That the grant of planning permission is invalid by virtue of the fact that part of the works encompassed within the project are to be carried out on the foreshore in respect of which, it is said, the Board has no jurisdiction. It is contended that works on the foreshore are within the exclusive jurisdiction of the relevant Minister, that is the Minister for the Marine. 4.2 Before going on to consider each of those grounds I should also note that those opposed (and in particular in this context the Urban District Council), place reliance on a contention that Arklow are precluded from raising most of the grounds now sought to be relied upon by virtue of the fact that those grounds, it is said, could have been, but were not, raised in the first challenge mounted by Arklow to the grant of planning permission by the County Council. 4.3 I propose to deal initially with the each of the grounds on its own merits. In so doing I will deal with such grounds in the order in which they appear above save that I will leave grounds 2 and 4 (which I will deal with together) until last. I will then turn to a consideration of whether any of those grounds can properly be said to be excluded on the basis of the argument to which I have just referred. I now turn to the first ground. 5. Improper Abdication 5.1 Under this ground Arklow complains that the manner in which the Board dealt with the grant of permission in respect of the outfall pipe, which would lead from the waste treatment plant itself to the sea, amounts either to an improper abdication of its role as a matter of Irish law or shows a failure to conduct the process required in accordance with EU Law. Issues were raised before the Board as to the adequacy of the manner in which the original proposal dealt with that outfall pipe. In that regard it would appear that the Board was, at least in part, persuaded by the arguments put forward by Arklow (including the evidence placed before the Board by experts engaged by Arklow). As a result the Board imposed condition 9 in the following terms:-
Reason: to ensure that the proposed outfall pipe does not damage the integrity of the sand dunes.”
(b) Employ a suitably qualified archaeologist prior to the commencement of development.
ii. The impact of the proposed development on such archaeological material.
Reason: in order to conserve any potential archaeological heritage of the site and to secure the preservation of any remains which may exist on the site.” 5.4 The principles applicable are to be found in Boland v. An Bord Pleanála [1996] 3 I.R. 435. In that case the Supreme Court was asked, upon an appeal certified to be on a point of law of exception of public importance, to determine the principles applicable to the imposition of such conditions. Hamilton C.J. (at p. 466-467) said the following:-
3. Whether or not the imposition of such a provision in a condition imposed by the Board is an abdication of the decision making powers of the Board depends on the nature of the “other matter” which is to be the subject matter of the agreement between the developer and the planning authority. 4. The “matter” which is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and circumstances of each particular application and the development. 5. In imposing a condition a matter left to be agreed between the developer and the planning authority the Board is entitled to have regard to:-
(b) The desirability of leaving technical matters of detail to be agreed between the developer and the planning authority particularly when such matters or such details are within the responsibility of the planning authority and may require redesign in the light of practical experience; (c) The impracticability of imposing detailed conditions having regard to the nature of the development;
(f) Whether the enforcement of such conditions requires monitoring or supervision.
5.7 Boland also needs to read in conjunction with the earlier decision of Murphy J. in this court in Holohan v. An Bord Pleanála (Unreported, High Court, Murphy J., 4th October, 1993). In Holohan a condition concerning the route of an outfall pipe was found to be unlawful in circumstances where the local authority was left at large as to the route that would be followed. 5.8 I have also had regard to the careful analysis of the authorities on this issue carried out by McKechnie J. in Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565 and to the further authorities referred to therein. 5.9 Having considered the evidence concerning the debate which took place between the parties to the appeal before the Board and the manner in which the Board considered and determined the issues which arise under this heading, I have come to the conclusion that the conditions sought to be impugned are consistent with the Boland test. As was pointed out by counsel for the Board, condition 9 sets out precise parameters in relation to the manner in which the outfall pipe is to be constructed. It is required to be drilled through the rock for the duration of the sand dunes to ensure that the pipe does not damage the integrity of those dunes. The condition, in my view, sets out precise parameters in relation to that requirement and provides that the precise route in terms of the depth of the pipe is only to be determined by agreement between the Urban District Council, as developer, and the County Council, as planning authority, after an appropriate survey. 5.10 It may well be that Arklow does not agree with the views expressed by the Board’s inspector to the effect that he was satisfied that such an exercise could lead to an appropriate outfall pipe which would adequately safeguard the dunes involved. However it is clear that the Board came to that view. There are not, in my view, substantial grounds for arguing that it was not open to the Board to so conclude. Furthermore it should be noted that if it proves impossible to construct a suitable pipe which is entirely drilled through the rock it will, in substance, be impossible to rely on the planning permission as it currently stands. In addition it seems to me that an interested party would be entitled to challenge an agreement reached on foot of such a condition between a developer and a planning authority on the grounds that the agreement did not comply with the criteria specified in the condition imposed by the Board. Development can only, therefore, take place in circumstances where it proves possible for the developer and the planning authority to reach an agreement which is within those criteria. If that should not prove possible then it would be necessary for the developer to make application for a revised planning permission which would, in turn, confer all appropriate rights of objection on Arklow. 5.11 It seems to me, therefore, that the criteria set out for the agreement to be reached between the Urban District Council and the County Council are sufficiently precise to meet the Boland test and there do not seem to me to be substantial grounds to the contrary. 5.12 I have come to a similar view in relation to condition 13. Conditions of this type are quite common in planning permissions granted by the Board. They do, in my view, provide an appropriate mechanism for ascertaining whether there may be any archaeological material present and for dealing with any such materials as might be found to be present. It is clear from the Boland criteria that an important aspect of the assessment of the latitude given by a condition which provides for further agreement is an assessment of the importance of the issue to which the condition relates in the overall context of the development. It was in that context that the Supreme Court came to the view that a condition providing for subsequent agreement in relation to a significant number of matters relating to traffic management arising out of the redevelopment of Dun Laoghaire Port was permissible having regard to the Boland criteria. In a case where there is no obvious pre-existing or anticipated significant archaeological difficulties, a condition of the type set out in condition 13 seems to me to meet that criteria. A different situation might well arise in circumstances where it was clear, or at least established to be probable, that there would be significant archaeological material which needed to be provided for in the course of the development under consideration. 5.13 In those circumstances I am not satisfied that there are substantial grounds for arguing that condition 13 breaches the Boland principles. 5.14 Finally, before leaving this aspect of the case, I should advert to the additional argument made under this heading on behalf of Arklow which stems from the fact that under section 145 of the Local Government Act 2001 the manager of the County Council is also the manager of the Urban District Council. In those circumstances it is contended that the Board has left the matter for agreement between two bodies who have the same manager. It should be made clear that it was not argued on behalf of Arklow that the fact that the same manager held office in both the entity which is, in the context of this case, the developer and also the planning authority, was, in itself, a matter that gave rise to any difficulty. It was, however, contended that, in the context of the additional criteria specified by Blayney J. in Boland, the alleged conflict of interest gave rise to a situation where a member of the public could have reasonable grounds for objecting to the work to be carried out “having regard to the precise nature of the instructions in regard to it laid down by the Board and having regard to the fact that the details of the work have to be agreed by the planning authority”. 5.15 I am not satisfied that there are substantial grounds for this proposition. It is well settled that the same entity may, in substance, carry out different roles under different statutory regimes. This is particularly so within the realm of local government where a local authority is frequently given different roles as, for example, planning authority, sanitary authority and the like. The underlying assumption, as applies in respect of all legislation, must be that an authority will properly carry out its functions under legislation. In the circumstances it must be assumed that the County Council, as planning authority, will comply with its obligations in respect of agreement under conditions 9 and 13 and will only enter into appropriate agreements under both of those conditions in circumstances where it is proper for it so to do. As I indicated above, if it could be established that an agreement had been reached which was outside the parameters laid down by the Board, then same would be open to challenge by any party legitimately interested. 5.16 In all those circumstances it does not appear to me that Arklow has established substantial grounds under this heading. 5.17 The second leg of Arklow’s argument under this heading was that the same facts and the same conditions disclose a situation where there has not been an adequate assessment of the environmental impacts of the project necessary to satisfy the requirements of Directive 85/337. In Wells v. Secretary of State for Transport the Court of Justice determined, in the context of Council Directive 85/337/EEC, that, in consent procedures comprising several stages, the assessment by the competent authorities of the Member State concerned required by that directive must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment. However the court went on to determine that:-
5.18 In those circumstances it is important to note that, insofar as any matters are left over for agreement as a result of the imposition of conditions such as those contained in condition 9 and condition 13, there remains a variety of ways in which the development consent concerned may not become practically operative. Clearly such conditions impose a requirement that the agreement of the planning authority is a pre-requisite to the commencement of development. Therefore, while there is a sense in which the developer has secured a planning consent, there is also a sense in which it is a conditional consent in that it is conditional upon an appropriate agreement being reached. Furthermore, as I have indicated above, it is open to any party to challenge an agreement reached on the basis that it does not conform with the criteria specified in the decision of the Board. It is thus open to revocation in practice in the event that an impermissible agreement is reached. Finally it may be that, as a result of the further enquiries carried out in accordance with such a condition, it may prove impossible to develop in accordance with the consent already granted. In that sense also the consent must be taken to be conditional. 5.19 In all the circumstances it does not seem to me, therefore, that there is any breach of the directive, as interpreted by the Court of Justice in Wells, where the Board imposes a condition which complies with the Boland principles. In those circumstances any interested member of the public will have had the opportunity to engage in the process and to influence the criteria which the Board specifies. Clearly if those criteria are impermissibly wide, so as not to meet the Boland test, then it might well be arguable that the public was excluded from appropriate consultation, as required by the directive, in relation to the final determination of the matters subject to the condition. Where, as I am satisfied is the case here, the Board has imposed sufficiently detailed criteria as a result of a process involving public engagement, I am not satisfied that there is any breach of the requirements to carry out the necessary assessment under the directive. 6. Assessment of whole of project 6.1 This ground was sometimes referred to in the course of the hearing, and in the papers before the Board, as the “project splitting” ground. However it was accepted by counsel for Arklow that that term was somewhat inaccurate. The term project splitting is more properly applied to allegations raised by objectors who contend that a developer has divided a single overall project into two or more separate (and by definition smaller) projects so that each of the subdivisions fall below thresholds set out in both European and domestic legislation over which a higher levels of environmental assessment are required. There is an established jurisprudence for determining whether project splitting in that sense has occurred. However no such allegation is made in this case. What is, however, said, is that the environmental impact statement (“EIS”) submitted by the Urban District Council in support of its application for planning permission omitted from its considerations any potential impact on the environment of all aspects of the project other than those directly connected with the wastewater treatment plant itself. 6.2 It is, of course, necessary to note that there is a distinction between the EIS (which is a document prepared by the developer and submitted to the planning authority) and the environmental impact assessment (“EIA”) which is the process required, as a matter of EU law, of the competent authority (in this case the planning authority) prior to the grant of development consent. It is clear that, as a matter of EU law, it is open to the competent authority to supplement any information submitted on behalf of the developer with its own enquiries. In that context the focus under this ground must be on the manner in which the Board assessed the environmental impact of the project as a whole and in particular the manner in which it assessed the environmental impact of those aspect of the project which were not specifically dealt with in the EIS. 6.3 At paragraph 13.2.5 of the Inspector’s report he said the following:-
It is argued that the proposed development is split into a number of separate parts mainly (b) that part of the rising main that is located within the jurisdiction of Wicklow County Council but is located outside the site demarcated for the proposed treatment works; (c) the proposed treatment works within the confines of the site boundary; and (d) the outfall pipe which runs under the beach area and into the Irish sea
My comments in relation to the above arguments are as follows. The EIS directive and SI 349 of 1989 are not clear as to what constitutes the totality of the project in question. The regulation state that an EIS must be compiled in the case of: Waste water treatment plant with a capacity greater than 10,000 p.e.” 6.5 It is therefore clear that the Inspector, and by inference the Board, would appear to have taken the view that it was unnecessary to conduct any further assessment of the environmental impact of those aspects of the project which were outside the waste water treatment plant itself. The question which I must answer at this stage is as to whether that fact provides substantial grounds for challenging the decision of the Board. 6.6 In Kenny v. An Bord Pleanála (No. 1) [2001] I.R. 567 a challenge to the adequacy of an EIS was dismissed by McKechnie J. as not constituting a substantial ground. In so doing he stated as follows (at p .578):-
6.8 It may well have been within the competence of the Board to take the view that the potential environmental impacts of those aspects of the project outside the wastewater treatment plant itself were much less significant than those from the plant. It may well also have been within the competence of the Board to take the view that the impacts that might be associated with those aspects outside the wastewater treatment plant itself were not, of themselves, significant. However what is required to be assessed is the totality of the impact of the project taken as a whole. It is, therefore, at least arguable sufficient for the purposes of leave, that aspects of a project which might not have impacts which would be significant in themselves might, when taken on a cumulative basis, and when added to the impacts of other aspects of the same project, give rise to an overall view that the environmental impacts taken as a whole were such as should lead to a refusal of development consent or, indeed, the imposition of more stringent conditions. On that basis I am satisfied that there are arguable grounds, sufficient for the purposes of leave, for the proposition that the process engaged in by the Board in assessing the environmental impact of this project taken as a whole was flawed by reason of the failure to adequately identify the impact of those aspects of the project excluded from the EIS and in particular, notwithstanding the finding that the environmental impact of those aspects taken by themselves might not be significant, to consider the cumulative effect of all impacts. 7. Sufficient Interest 7.1 Under this ground Arklow contends that the Urban District Council did not have a sufficient interest in the property the subject matter of the application for planning permission. There does not appear to be any dispute about the factual position. As has been pointed out earlier the project consisted of a number of elements including the pumping station and rising main which would bring waste water to the treatment plant, the treatment plant itself, and the outfall from treatment plant through the dunes and foreshore into the sea. The question of the entitlement of the Board to deal with the foreshore arises under the next ground. Insofar as the remainder of the project is concerned it would appear that the lands upon which the waste water treatment plant itself was to be constructed were the subject of a compulsory purchase order which had, at the relevant time, reached the stage where the compulsory purchase order had been confirmed and a notice to treat served. The remainder of the project (with the exclusion of the foreshore) consisted of certain works within the administrative jurisdiction of the Urban District Council, certain other works in relation to the rising main which are within the functional area of the County Council and the outfall pipe as far as the high water mark which was also within the functional area of the County Council. It would appear that no compulsory purchase process had been commenced in respect of any of those works. 7.2 This issue arose as part of the process before the Board. In that context the Inspector commented as follows:-
Finally reference is made to the small parcel of land to the south of the site, which is to used as a temporary working area. This appears not to be in the ownership of the planning authority. If these lands could not be made available to the planning authority by way of CPO procedures there is nothing to suggest that another temporary working area could not be made available within the confines of the site”. In an often quoted passage from Frascatti Henchy J. (speaking for the court) said the following:-
7.6 However it is clear that much of the passage from Keane to which I have referred is itself obiter in that, on the facts then before the Supreme Court, that court was satisfied that even the full rigours of Frascatti would not avail the applicant. The position therefore remains that the precise extent of the exclusion is one which requires a definitive decision. It may, on the one hand, be that, as was suggested in Keane, the true position is one which requires the court to exclude only cases where the applicant for planning permission is engaged in a vexatious or spoiling exercise. It may, on the other hand, be that the clear wording of the judgment in Frascatti will prevail. Between those two poles there are a number of intermediate positions which might also find favour. For example on the facts of this case it might be arguable that a party such as the Urban District Council who has the benefit of a confirmed compulsory purchase order and who has served a notice to treat (and who has thus put themselves in a position where they are entitled, as a matter of law, with certainty to acquire the lands concerned) might be regarded as having a sufficient interest for the purposes of Frascatti but that the same Urban District Council might not be regarded as having such an interest in respect of those other portions of the project where no compulsory purchase order process was in being and where the entitlements remained contingent on the successful conclusion of such a process. 7.7 In the light of the clear wording of Frascatti it seems to me that I could not conclude that there are not substantial grounds under this aspect of the case. I should not leave this ground without commenting that it seems to me that this issue is one of those where a relatively net, though important, point of law arises upon which it might well be the case that a judge hearing a leave application on notice and having had full argument on both sides is in as good a position to determine the issue as a judge at a substantive hearing. However as was pointed out by Kelly J. in Mulholland I am notwithstanding those circumstances precluded from deciding the case. “Such is the scheme of the Act”. 7.8 A further argument is raised by Arklow which stems from much of the same factual matrix as the “sufficient interest” ground but is based on the fact that the site of the purposed development, as delineated on the map required to be lodged as part of the planning process, was confined to the site of the wastewater treatment plant itself and did not extend to those areas where the additional works were to be carried out. The purpose of the requirement for a map, with the site of the proposed development delineated on it, is clearly to draw the attention of the public to the location of the proposed works. If the site is incorrectly marked, in a material respect, the public might be misled and, thus, not involve themselves in a process which they would have been interested in had the site been correctly described. However it seems to me that, in order to have standing to raise such an argument, an applicant for judicial review would need to satisfy the court that it had been misled. Arklow were clearly not misled as they were fully aware of the extent of the proposal and fully participated in the planning process. I am not satisfied, therefore, that there are substantial grounds for arguing that Arklow has standing to advance any argument under this head. 8. Foreshore 8.1 It would appear that the last 10 metres of the proposed outfall pipe run beneath the foreshore. In those circumstances Arklow argues that the Board has no jurisdiction to impose a condition relating to that part of the development. It is suggested that the competent authority in respect of applications relating to developments on the foreshore is the Minister for the Marine (“the Minister”). The procedures in respect of developments on the foreshore would appear to be governed by ss. 2 and 3 of the Foreshore Act 1933 as amended. Those sections (as amended by the European Communities (Environmental Impact Assessment) Regulations 1989) provide that when an application is made to the Minister under the Foreshore Act for a foreshore licence which is for a class of project which requires an EIA, then such EIA is carried out in conjunction with the appropriate application for a lease or licence pursuant to the Foreshore Act. 8.2 In the course of the hearing attention was drawn to s. 225 of the Planning and Development Act 2000 which makes express provision for the grant of planning permission in respect of development on the foreshore which is, for the purposes of that section, treated as being within the functional area of the adjoining planning authority. However in the course of the hearing it was accepted on behalf of the opposing parties that s. 225 was not in force at the material time for the purposes of these proceedings. Therefore it seems clear that, as a matter of law, the grant of permission in respect of development to be carried out on the foreshore requires the permission of the Minister for the Marine rather than the planning authority. 8.3 In those circumstances it is necessary to consider whether it may be said that a planning permission which imposes conditions in respect of the foreshore is invalid. Furthermore it is necessary to consider the fact that Arklow’s submissions to the Board on the planning appeal sought to eliminate any environmental damage which might be caused by the outfall pipe from the proposed development. In those circumstances it is argued that Arklow lacks standing to contest the Board’s jurisdiction. It is clear that no works can be carried out on the foreshore without going through all of the necessary process established under the Foreshore Act. That does not, however, mean that the Board is restricted in considering the effect on the foreshore in the grant of its planning consent. Indeed for the very reasons advanced on behalf of Arklow in respect of ground 3 above, it is necessary, as a matter of EU law, that an overall assessment of the project as a whole is carried out by some person or body. 8.4 If the planning acts and the foreshore acts were construed in a manner that required entirely separate considerations to be given by the planning authority (and on appeal by the Board) to those aspects of a project which was on land and by the Minister in respect of those aspects of the project which were on the foreshore then there would be no single overall assessment of all of the environmental impacts of the project as a whole. Such a construction of the relevant legislation would be inconsistent with EU law. In those circumstances, and in accordance with the established jurisprudence of the courts in this jurisdiction and the EU, such an interpretation should only be placed on the legislation in circumstances where it was not possible to construe the relevant provisions in a manner consistent with EU law. There is nothing in the planning acts which, in my view, expressly excludes the entitlement of An Bord Pleanála to take into account the environmental impact on the foreshore of any project which is under consideration and to impose, where it thinks it appropriate so to do, conditions designed to protect the foreshore. In the circumstances I am not satisfied that Arklow has made out substantial grounds under this heading. 9. Waste Management 9.1 I now return to the two grounds concerning the respective domestic and EU legislation in relation to waste management. At its simplest the contention of Arklow can be put in this way. It is said that while there are separate domestic regulatory regimes in relation to wastewater on the one hand and the management of waste generally on the other hand it is contended that certain aspects of wastewater treatment (including dealing with sludge) come within the ambit of the regime applicable to waste management generally. On that basis it is suggested that a waste licence is required and, as a consequence, and by reason of s. 54(1) of the Waste Management Act 1996, that the Board is precluded from granting a permission subject to conditions which are for the purposes of “prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity “and that the Board is further precluded from considering” any appeal submission or observation which relates to the risk of environmental pollution.” It is clear that this issue arose before the Board and that the Board was satisfied that the provisions of the Waste Management Act requiring a waste licence did not apply to the project. The Board therefore proceeded to consider the matter on that basis. It is contended by Arklow that the Board was wrong in so doing. 9.2 As an alternative Arklow argues that, if a proper construction of the Waste Management Act 1996 leads to the conclusion that projects such as the one under consideration do not require a waste management licence, then, it is said, the State has failed to properly transpose Council Directive 75/442/ EEC (as amended by Council Directive 91/156/EEC) into Irish law. 9.3 Before considering the questions of construction of both domestic and European legislation which arise under this heading it seems to me necessary to address the way in which the transposition issue should be dealt with in a leave application such as this. Counsel for the state drew attention to the now established jurisprudence to the effect that a court should only go on to consider whether there has been a failure to transpose in circumstances where such a determination is necessary for the purposes of resolving the litigation. In that regard similar principles have evolved in respect of transposition challenges as had already been determined in respect of challenges to Irish legislation on the grounds of inconsistency with the provisions of the Constitution. On that basis it was suggested that the transposition issue should only be dealt with in the event that it became necessary so to do. I fully accept the principles applicable. 9.4 However it seems to me that a somewhat different position pertains on a leave application. As pointed out by counsel for Arklow, the only issues which can be dealt with at a substantive hearing subsequent to leave being granted are those in respect of which leave has been given. If, therefore, there are circumstances in which a transposition issue might arise at a substantive hearing and if there are substantial grounds in favour of the argument on transposition then leave should be granted to preserve the position that the transposition can be dealt with if, in the light of the views which the judge hearing the substantive case takes on other issues, it becomes necessary so to do. 9.5 However there is another aspect of the interaction between the construction issue and the transposition issue that needs to be dealt with at this leave stage. As pointed out above it is well established that this court should, where possible, construe Irish legislation in a manner which is consistent with EU law. Therefore if it is necessary to construe the waste management legislation in a particular manner so as to bring same into conformity with the directives then such a construction should be placed upon the Irish legislation if it is at all possible so to do. That brings into relief the interaction of the construction and transposition issues with the principles applicable to the grant of leave on substantial grounds. 9.6 If there are substantial grounds for arguing that the waste management legislation can be construed in the manner contended for by Arklow then it is difficult to see how the transposition issue could arise. Even if the contentions put forward on behalf of Arklow as to the proper construction of EU law are correct, then the transposition issue could only arise if it were impossible to construe the waste management legislation in a manner consistent with the directives. Therefore in order for there to be substantial grounds for arguing that there has been a failure of proper transposition it would be necessary for Arklow to satisfy me that there were substantial grounds for believing that there was no construction that could properly be placed on the Waste Management Act 1996 consistent with Arklow’s contention as to the proper meaning of the directives. If that was the case then it would be difficult to see how there could, at the same time, be substantial grounds for believing that the waste management legislation had to be construed in the way for which Arklow contends. 9.7 For those reasons it seems to me that there cannot, in principle, be substantial grounds for both of the propositions. If the argument in favour of Arklow’s construction for the waste management legislation is sufficiently strong to afford substantial grounds for the proposition that the legislation should be construed as Arklow suggests then it is difficult to envisage circumstances where the legislation could not, if necessary, be construed in that fashion in circumstances where the court was required so to do so as to bring the legislation into conformity with EU law. 9.8 In that context I now approach the question of the proper construction of the waste management legislation. I have come to the view that there are substantial grounds for Arklow’s contention as to the proper construction of the waste management legislation. For the reasons set out above I do not feel that I should, in those circumstances, do more than set out in brief outline my reason for so concluding given that it will be for the judge having carriage of the substantive issues in this case to determine the proper construction. 9.9 It is clear on the evidence currently before the court that EPA (which is, of course, the agency charged with dealing with waste management), took the view that the project did require a waste management licence. That fact is not, of course, decisive. The EPA could be wrong. However having considered the basis upon which the EPA came to that conclusion, as set out in relevant correspondence, I have come to the view that it would not be possible to describe the contention as tenuous or insubstantial. In those circumstances I am satisfied that substantial grounds exist for Arklow’s contention that a waste management licence was required as a matter of domestic law. 9.10 The point at issue stems, substantially, from the proper interpretation of s. 3 of the Waste Management Act 1996. In material part that section provides:-
(b) sewage and sewage effluent (other than sludge from a facility for the treatment of sewage); (c) the treatment of effluent or the discharge thereof to waters other than the treatment of effluent at, or its discharge from, a facility for the holding recovery or disposal of waste;” 9.11 I have also considered whether that interpretation does, of itself, even if established to be correct, necessarily lead to the planning permission granted being invalid. On one view it may be open to consider that even if the Board was wrong in the view which it took as to the necessity for a waste management licence same would not necessarily invalidate a planning permission given. If the project does require a waste management licence then nothing which the Board decided alters that fact. The project would still require a waste management licence. However having regard to the clear imperative set out in s. 54 of the Waste Management Act, 1996 which purports to prevent the Board from giving any consideration to such environmental matters in cases which are properly within the remit of the EPA, it seems to me that there are substantial grounds for arguing that a planning permission which results from a consideration by the planning authority, or the Board on appeal, of environmental issues, which the relevant authorities are precluded from taking into account under that section, may be invalid. 9.12 In all those circumstances it seems to me that leave should be granted on the ground advanced in respect of the proper interpretation of the Waste Management Act, 1996. 9.13 In the light of that view and for the reasons set out at para 9.7 above it does not seem to me that there are substantial grounds on the transposition issue. 10. Grounds that could have been argued 10.1 As indicated earlier in the course of this judgment reliance was placed in opposition to the grant of leave on the fact that many of the grounds now sought to be relied upon are, it is said, grounds which could also have been relied upon when Arklow challenged the original grant of planning permission by the County Council. In particular counsel for the Urban District Council places reliance on the established jurisprudence of the courts (see for example AA v. Medical Council [2003] 4 IR 302) to the effect that a party is precluded from raising in subsequent litigation not only issues which have already been raised and deposed of in previous litigation but also issues which could have and should have been raised in such litigation. 10.2 However the precise application of such principles in the field of public law challenges to the validity of decisions (and in particular decisions made in what can and often is a two part process) remains, in my view, open to argument. There can be little doubt but that, to a significant extent, the three issues upon which I am satisfied substantial grounds have been made out would have been available to Arklow at the stage of their original challenge to the grant of permission by the County Council. 10.3 The fact that the EIS did not extend to the entirety of the project applied equally at that stage. It is possible that there may be some distinction between the additional consideration given by the County Council to the assessment of the environmental impact of those aspects of the project not encompassed within the EIS in comparison compared with the consideration given by the Board to the same matters. However there would appear to be a significant overlap. The issues concerning the sufficiency of the interest of the Urban District Council in the lands and the proper interpretation of the Waste Management Act, 1996 would appear to apply equally to the earlier application. In those circumstances it seems to me that it will be necessary for Arklow to establish that a distinction can and should be made between the types of cases in which the principles to which I have referred were established and public law challenges of the type with which the court is concerned in this case. However in the absence of any clear authority as to the proper approach which the court should take in a challenge of this type, where a contention is made that the applicant is precluded from raising the issue because he could have raised the same issue in a previous challenge to another aspect of the same process, I am not prepared, at this stage, to hold that Arklow has not established substantial grounds. |