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Cite as: [2007] IEHC 244

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Judgment Title: Klohn -v- An Bord Pleanala

Neutral Citation: [2007] IEHC 244

High Court Record Number: 2004 544 JR

Date of Delivery: 31 July 2007

Court: High Court

Composition of Court: deValera J.

Judgment by: deValera J.

Status of Judgment: Approved

NeutralCitation Number: [2007] IEHC 244

THE HIGH COURT

[2004 No. 544 JR]

BETWEEN

VOLKMAR KLOHN

APPLICANT

AND
AN BORD PLEANÁLA

RESPONDENT

AND
SLIGO COUNTY COUNCIL
AND
MALONEY AND MATTHEWS ANIMAL COLLECTION LIMITED

NOTICE PARTIES

JUDMENT of Mr. Justice de Valera delivered the 31st day of July, 2007.
This is an application for leave to apply by way of Judicial Review for reliefs sought at paragraph (d) of the statement required to ground an application for judicial review herein in relation to a decision of An Bord Pleanála dated 30th April, 200, to grant, subject to conditions, planning permission for a development consisting of a collection centre for dead/fallen animals and ancillary facilities, at Anchonry, Tubbercurry, County Sligo and which application bears the ref. no. 03/717.
Paragraph (d) of the Statement required to ground an application for judicial review states the reliefs sought as follows:
(i) An Order of Certiorari quashing the decision of the respondent on planning application ref. no. 03/717; An Bord Pleanála ref. no. PL21.205540, to grant planning permission for a proposed development described as a fallen animal collection and processing facility at Anchonry, Tubbercurry, County Sligo.
(ii) Further and other relief.
(iii) Interim and/or interlocutory relief.
(iv) A stay on the implementation of the permission ref. no. 03/717 pending the determination of these proceedings.
(v) Further and other relief.
(vi) The costs of these proceedings.

The grounds on which the application is being made are:-

(i) The proposed development was of such nature and extent as to require the submission of an Environmental Impact Statement (“EIS”) and to be the subject matter of an environmental impact assessment by the respondent. Arising from the aforesaid requirement, the application was required to be accompanied by an EIS which was required to comply with the requirements under Council Directive 85/337/EEC and 97/11/EC and with the European Communities (Environmental Impact Assessment) Regulations 1989 – 2000 and/or the Planning and Development Act, 2000 and Regulations made thereunder, and in particular the provisions of the Planning and Development Regulations, 2001 (S.I. No. 600 of 2001). The EIS submitted with the application failed to comply with the mandatory requirements contained in the statutory scheme and the said Directives, and in those circumstances was not capable of meeting the requirements of the aforesaid provisions and could not be the subject matter of a proper, environmental impact assessment by the respondent.
(ii) The said EIS does not contain information specified in paragraph 1 of Schedule 6 of the Planning and Development Regulations, 2001 (S.I. No. 600 of 2001) as required by Article 94 of the said Regulations in so far as –

(a) The EIS did not contain any or any adequate outline of the main alternatives studied by the developer and/or any or any adequate indication of the main reasons for the developer's choice of project.

(iii) The said EIS did not contain information relating to the inter-relationship between the factors referred to in the first three indents in sub-paragraph (b) of paragraph 2 of Schedule 6 of the said Regulations of 2001, as required by Article 94 thereof. The said information was relevant to the consent procedure and to the specific characteristics of the development project or to the environmental features likely to be affected. The developer could reasonably have been required to compile such information having regard, among other things, to current knowledge and methods of assessment. Whilst a short paragraph appeared at the end of the non-technical summary of the EIS which purported to address the inter-relationship between the factors referred to, the information contained therein was totally uninformative and non-site specific and did not comply with the requirements of Article 94 in that regard, or the relevant provisions of the new Directives on Environmental Assessment.
(iv) The consequence of the failure of the said EIS to comply with the requirements of Article 94 of the said Regulations of 2001 in one or more of the respects as set out above, the respondent did not have power to determine the subject planning application pursuant to Section 3 % and/or Section 34 of the Planning and Development Act, 2000, the relevant provisions whereof provide that An Bord Pleanála may only decide to grant a permission in circumstances where all requirements of the Regulations are complied with. The applicant will rely specifically on the provisions of Section 34(1) of the Plan and Development Act, 2000 in this regard.
(v) The said decision of the respondent is invalid by reason of the failure of the respondent to carry out an environmental impact assessment in accordance with the requirements of the Planning and Development Act, 2000 and Regulations made thereunder. In particular and without prejudice to the generality of the foregoing Article 13 of the Planning and Development Regulations, 2001 provides that where an appeal involves an EIS and the Board considers any submission, observation, document, particulars or other information submitted to it in response to a request or, a requirement of the Board contains significant additional information on the effects on the environment of a proposed development, the Board shall publish in at least one approved newspaper, a notice stating that; (a) significant additional information on the effects on the environment of the proposed development has been furnished to the board, and (b) that the further information will be available for inspection or for purchase, at a fee not exceeding the reasonable cost of making a copy, during office hours at the offices of the Board or such other place as the Board may specify and that a submission or observation on the further information may be made in writing to the Board within a specified period on payment of the appropriate fee. By implication and when considered in the light of the objectives of Council Directive 85/337/EEC and Council Directive 97/11/EC, the said Article requires the respondent to address the question as to whether any such submission, observation, document, particulars or other information contained in the significant additional information on the effects on the environment of the proposed development. In so far as such information was contained in the submissions of the notice party received by the respondent on the 16th February, 2004, and the 25th March, 2004, respectively, the respondent was obliged to consider this question, but failed to do so and as a consequence failed to publish a notice in the form required by Article 113 of the said Regulations of 2001.
(vi) The respondent Planning Appeals Board failed to consider the said planning application in accordance with fair procedures and in the light of the principle of audi alteram partem. The second named notice party lodged an application for planning permission grounded upon plans and other documents which set out the nature and extent of the proposed development. This application was refused permission by Sligo County Council and on the basis of those plans and documentation, the unincorporated association of which the Applicant is a member made their submissions to the respondent Planning Appeals Board. On the 16th February, 2004, and the 25th March, 2004, the second named notice party materially modified their proposal and these modifications were expressly incorporated into condition no. 1 of the said permission which condition refers to the documentation amending the application lodged with the planning authority. The applicant and/or his group were never circulated with these submissions, were not afforded any opportunity to make submissions or representations in respect of the modifications contained therein and were not afforded an opportunity to properly participate in the appeal process. Specifically, these matters, which were crucial to the determination of the said decision of the respondent to grant permission, notwithstanding the recommendation by refusal of the inspector, were on the basis of no upholding arguments on behalf of the applicant/the applicant’s group, and in those circumstances the decision offends against the principle of fair procedures, natural and constitutional justice and audi alteram partem.
(vii) The respondent erred in law in accepting significant additional information without any corresponding amendment/analysis of the submitted documentation in the EIS. Accordingly, the respondent could not have properly cared out an environmental impact assessment as the EIS lodged with the planning application did not adequately or accurately reflect the nature of the proposal determined by the respondent Planning Appeals Board nor was the public, and neither the applicant nor the said Anchory Development Group of which the applicant is a member were allowed to participate in the environmental impact assessment procedures in circumstances where significant additional information was submitted, which was not the subject matter of comment under the statutory public consultation procedures enshrined in the Planning and Development Act, 2000 and the Regulations made thereunder, and under the statutory scheme arising from Council Directives 85/357/EEC and 92/11/EC.
(viii) The said decision is invalid in regard to the absence of any record or any adequate record of compliance with the relevant procedures required to be observed by the respondent in respect of its function relating to environmental impact assessment pursuant to Articles 111 and 113 of the Planning and Development Regulations, 2001
(ix) In the premises and or having regard to the matters set out above the decision is unreasonable and contrary to plain reason and common sense.
In his written submissions the applicant states that the grounds he intends to rely on may be summarised as follows:
1. The EIS on foot of which the permission was granted did not contain any or any adequate outline of the main alternatives studied by the developer and/or any adequate indication of the main reasons for its choice, taking into account the effects on the environment as required by Article 94 and Schedule 6, paragraph 1.(d) of Planning and Development Regulations, 2001 (S.1. No. 600 of 2001) ( "the 2001 Regulations ").
2. The EIS did not contain information relating to the project proposed describing the inter-relationship between the factors listed in the first three indents in paragraph 2(b) of Schedule 6 of the 2001 Regulations.
3. The respondent failed to carry out an environmental impact assessment (EIA) in relation to the revisions to the project or proposed development submitted in the context of the appeal. This resulted from the developer's failure to provide the information required pursuant to Article 94 and Schedule 6 of the 2001 Regulations in relation to the revised project.
4. As a consequence of the failure to comply with the requirements of Article 94 of the 2001 Regulations, An Bord Pleanála did not have jurisdiction to determine the application.
5. The decision of the respondent was made in breach of fair procedures in so far as Condition No. 1 of the respondent's decision requires the development to be carried out in accordance with plans and particulars lodged with the application, as amended by further plans and particulars received by An Bord Pleanála on the 22nd December, 2003, the 16th February, 2004, and the 25th March, 2004. The latter two submissions of the 16th February, 2004, and the 25th March, 2004, were never furnished to the applicant or any of the third parties involved in the appeal process so as to enable them to make submissions in relation thereto.

As this is an application for leave to seek judicial review I must be satisfied that the applicant has established substantial grounds. Section 50 of the Planning and Development Act, 2000 at subsection 4(b) requires that the applicant must establish that he has
(a) Substantial grounds for contending that the decision of the Planning Authority is invalid and
(b) That he has a substantial interest in the matter.

McNamara v. An Bord Pleanála

[1995] 2. I.L.R.M. Carroll J. held:-

“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are ‘substantial’. A ground that does not stand any chance of being sustained (for example, where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. In fact if I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit.”

In Jackson Way Properties Limited v. The Minister for the Environment (Unreported, High Court, 2nd July, 1999) Geoghegan J. refined the definition of “substantial grounds” by stating “once a court has decided that the points at issue ….are not trivial or tenuous, the [c]ourt must assess whether there is real substance in the argument and not merely that it is just about open to argument.”

It is not appropriate that, after the leave stage, the arguments should be examined and dissected beyond what is necessary to establish the substantial grounds (or lack thereof) described above. The outcome of the argument cannot be decided – only that there is “substance in the argument”. In addition to the submissions and arguments made in court I have received written submissions from the applicant, respondent and notice parties which have been of considerable assistance to me in reaching my decision in this matter. The very fact of the extent of these submissions which in each example amounts to many pages of finely reasoned argument adds weight to my conclusion that there are substantial grounds (but not conclusive grounds) for contending that the decision is or may be invalid.
Having carefully considered the submissions and arguments referred to above, both oral and written and bearing in mind the conclusion of Carroll J. referred to above, i.e. “I do not think I should evaluate each argument and say whether I consider it is sound or not”. I am satisfied that the applicant in respect of grounds (i) to (viii) inclusive has established the required standard of being substantial (and again I reiterate that I do not have to consider the ultimate strength of each particular contention) and I will grant leave to seek judicial review on these grounds.
I am not satisfied that ground (ix) been established to be sufficiently substantial and I will not grant leave in respect of this ground.
No submissions of any substance were made to me, by any party, on the ground of “substantial interest” as stated in s. 50 of the Planning and Development Act as aforesaid and I therefore assume this is not a matter of contention. For the avoidance of doubt however, I believe I should state I am satisfied from the facts referred to by the applicant in his affidavit on 24th June, 2004, and by Jack O’Sullivan in his affidavit on behalf of the applicant of 24th June, 2004, that the applicant has the required and sufficient “substantial interest” as required by s. 50(4)(b) of the Planning and Development Act, 2000.