Judgment Title: O'Leary & Ors -v- An Bord Pleanala & Ors Composition of Court: McCarthy J. Judgment by: McCarthy J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 34 THE HIGH COURT BETWEENJUDICIAL REVIEW 2004 No. 191 J.R. MARY O’LEARY, KATE CORCORAN, MARY HURLEY, RINGASKIDDY APPLICANTSAND DISTRICT RESIDENTS ASSOCIATION LIMITED, ANN DALY, OLIVIA O’SULLIVAN, SUSAN GIBSON, NICHOLAS LOUGHNAN, AILÍS NÍ BHROIN, PAULA DONNACHIE, NATASHA HARTY AND KEVIN BARRY AND RESPONDENTSAN BORD PLEANÁLA, IRELAND, AND THE ATTORNEY GENERAL AND NOTICE PARTIESINDAVER N.V. TRADING AS INDAVER IRELAND, CORK COUNTY COUNCIL, CARRIGALINE IFA, CORK ENVIRONMENT ALLIANCE, COBH ACTION FOR CLEAN AIR, CHASE, CHASE (BISHOPSTOWN), MONKSTOWN/PASSAGE/GLENBROOK/RATHEEN GROUP OF CHASE, MYRTLE ALLEN, DARINA ALLEN, GROWING AWARENESS, IRISH DOCTORS ENVIRONMENTAL ASSOCIATION, CARRIGALINE COMMUNITY FOR A SAFE ENVIRONMENT, CROSSHAVEN FOR A SAFE ENVIRONMENT, KINSALE ENVIRONMENT WATCH, AN TAÍSCE, THE OYSTER HAVEN CENTRE, THE HOPE PROJECT, WEST CORK GREEN PARTY, ALLAN NAVRATIL, BERTIE CRONIN, JOHN MASSON, JOAN MASSON, DAN BOYLE, T.D., SUE HACKETT, MICHAEL HARTY, ANNE MARIA RUSSELL, AND EAST CORK FOR A SAFE ENVIRONMENT JUDICIAL REVIEW [2006 No. 69 J.R.] RINGASKIDDY AND DISTRICT RESIDENTS ASSOCIATION LIMITED APPLICANTS AND ENVIRONMENTAL PROTECTION AGENCY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS AND INDAVIR N.V. TRADING AS INDAVIR IRELAND NOTICE PARTIES JUDGMENT of The Honourable Mr Justice McCarthy delivered on the 18th day of February, 2008 1. The first mentioned proceedings were commenced by Originating Notice of Motion of the 19th April, 2004, to seek leave to apply for twenty-five orders, many of which are overlapping. For the purpose of the outcome of the present application, being an order staying or adjourning generally them pending a decision of the European Court of Justice in contemplated or pending proceedings, the relevant leave (and the grounds upon which it is based), turns upon the issue of whether or not our national legislative provisions are compatible with the obligations imposed on the State by Council Directive 85/337/EEC of the 27th June, 1985, on the assessment of the effect of certain public and private projects on the environment, and as amended by Directive 97/11/EC of the 3rd March, 1997 (hereinafter collectively referred to as “The Directive”). The Directive has been further amended by Council Directive 2003/35/EC, but since the applications for the particular permission and licence pre-dated it, (referred to below), I am not concerned with the amendment. 2. By the second mentioned proceedings, commenced by Originating Notice of Motion of the 13th February, 2006, certain substantive relief, similarly hinging upon the issue of whether or not the Directive was incompatible with those obligations, is sought. 3. In the first mentioned proceedings, it is sought to impugn the decision of the first named respondents therein (An Bord Pleanála) to grant planning permission for a development comprising inter alia the construction of a waste management facility (comprising a waste to energy facility, a waste transfer station and a community recycling park) at Ringaskiddy, and in the second mentioned proceedings, it is sought to impugn a decision of first named respondents therein (the Environment Protection Agency, otherwise the EPA) to grant a waste licence for the same development project. 4. The issue of whether or not the national legislative provisions in question are incompatible with the obligations of the relevant respondents (Ireland, otherwise, the State) under the Directive was conclusively disposed of in this State in Martin v. An Bord Pleanála & Ors. [2007] 2 ILRM 401. In addition to the fact that the Supreme Court held that there was no incompatibility in national law with the State’s obligations aforesaid the Court also, however, considered that the meaning of the Directive was “clear”, such that the applicant (and the grounds advanced by him) was “clutching at straws in his opposition to the decision” and the learned Chief Justice did not see “any reasonable scope for doubt on these issues” and, further such that having regard to the decision of the Court of Justice in Cilfit v. Minister Della Sanita [1982] ECR 3415 and the criteria which it sets out in that regard there was no necessity to make a reference to the Court of Justice (“the E.C.J.”) pursuant to Article 234 of the Treaty. 5. I need not, I think, in the nature of the application before me, need to consider the decision in Martin in detail in as much as it is common case that the point giving rise to the present proceedings has been determined in it. To put the matter shortly, however, Article 2(1) of the Directive imposes an obligation on the State to:-
“the interaction between” those factors.” 6. An Bord Pleanála has an obligation to carry out what is known as an environmental impact assessment (“an E.I.A.”) in certain cases, pursuant to s. 26(5) (d) of the Local Government (Planning and Development) Act, 1963 but in relation to developments requiring a waste licence from the E.P.A. pursuant to s. 54(3) of the Waste Management Act 1966, the Bord cannot, in its environmental impact assessment, consider the risk of environmental pollution from the particular activity as this is to be assessed by the E.P.A. in a separate E.I.A. The matter came before the Supreme Court on a point of law certified by this Court (Smyth J.) after he had dismissed the application therein seeking judicial review inter alia on the issue of the lawfulness of An Bord Pleanála’s decision on the basis that the legislative provisions on foot of which that decision was made were incompatible with the Directive, focusing, in particular, on the division of responsibility between An Bord Pleanála and the E.P.A. 7. The first issue of law so certified was whether or not the Directive had been properly transposed onto our law and three issues arose from the point certified namely, whether the grant of permission alone constituted a “development consent” within the meaning of Article 2(1) of the Directive, secondly, whether or not a full E.I.A. should have taken place before the grant of permission and, thirdly, whether or not the division of responsibilities between An Bord Pleanála and the E.P.A. did not allow for an integrated assessment of all factors as required by Article 3 of the Directive. 8. It was held by the Supreme Court (Murray, C.J., Denham and Geoghegan J.J. concurring) that “development consent” on the meaning of Article 2(1) of the Directive was comprised of both decisions since both a permission and a licence were necessary to permit a developer to proceed, that there was no rational basis for separating the development scheme into two projects consisting of the construction of (in that case) a certain plant and its operation, that once the competent authorities carried out their assessment before development consent had been given the terms of Article 2(1) of the Directive were complied with, that the Directive allowed for successive stages of decisions in the process leading to development consent whereby the competent authorities were able to take into account environmental effects at the earliest stage, that all of the relevant factors referred to in Article 3 of the Directive and the interaction between them were examined as required by the Directive at each stage of the consent process by the competent authorities and that An Bord Pleanála carried out an “integrated assessment” insofar as the construction of the project was concerned and the E.P.A. carried out an “integrated assessment” in relation to the operation of the plant. Further, it was held that that Directive did not envisage that the integrated assessment could only be carried out by one competent authority with global responsibility for it – two or more authorities might be competent for the purpose of fulfilling its requirements. In Cilfit it was held that a national Court of final instance is required to interpret a question of community law raised before it but is not necessarily required under community law to refer it to the E.C.J.
11. It is accordingly in circumstances where as a matter of domestic law there is no reasonable doubt as to whether or not the Supreme Court’s interpretation is correct, that I must consider these applications. For my purposes, accordingly, the decision, is an “acte clair”. I am bound for every purpose in domestic law by the Supreme Court decision, as otherwise I would be in breach of a fundamental principle of our law namely to act, in accordance with the rule of stare decisis, and, as an inferior court, to follow and apply decisions of the Supreme Court. 12. Counsel for the applicants both orally and in writing have referred me to certain fundamental propositions pertaining to the primacy of community law in the light of alleged confusion, at least by the State respondents, in relation to that issue, in particular that community law has primacy over the domestic legal order of the Member State, that such primacy extends to national constitutional law, that national Courts are under an obligation to give effect to the primacy of community law and that decisions of the Courts of the Union and, in particular, the E.C.J., take precedence over decisions of the Courts of the Member States; it was helpful to draw my attention to these principles but I do not accept that anything said by or on behalf of the State respondents imply any confusion in that regard. I do not accept that it is relevant for the State, if it be so, to adopt, in this case a position which “flatly contradicts” the position “evidently” adopted by the State in Friends of the Irish Environment Limited v. Ireland [2005] IEHC 123 having regard to the fact of the application of the “acte clair” principle here, so far as this inferior domestic Court is concerned; Martin, of course, had not been decided at that time. 13. No one would doubt the proposition that Article 10 of the Treaty establishes the principle of “loyal co-operation” between Member States including a duty to abstain from any measure which could “jeopardise the attainment of the objectives of the Treaty”. Obviously Cilfit is in no way at variance with these fundamental principles and that duty under Article 10, of the Treaty, since the approach to be adopted in the case of an “acte clair” forms an intrinsic part of the jurisprudence of the E.C.J. 14. The applicants rely inter alia on Masterfoods Limited v. H.B. Ice Cream Limited and H.B. Ice Cream Limited v. Masterfoods Limited, trading as “Mars Ireland” (Case C – 344/98) [2002] E.C.R. I. 11415 (the opinion of the advocate general, delivered on the 16th May, 2000 being reported at I – 11371). In that case H.B. supplied ice cream to retailers and provided freezer cabinets free of charge or at a nominal rent provided that they were used exclusively for their products; subsequently Masterfoods sought to enter the market for ice cream in Ireland and certain retailers began to stock and display their products in H.B.’s freezer cabinets. Masterfoods sued in this jurisdiction inter alia for a declaration that the exclusivity clause was null and void in domestic law and under Articles 85 and 86 of the Treaty and, H.B., in their turn, sued for an injunction to restrain Masterfoods from inducing retailers to breach the exclusivity clause. Ultimately Masterfoods claim was dismissed in the High Court and a permanent injunction restraining them from inducing retailers to store their products in freezers belonging to H.B. was granted. On the 4th September, 1992 Masterfoods appealed to the Supreme Court but in parallel to those proceedings, on the 18th September, 1991, Masterfoods lodged with the Commission a complaint under a certain Council regulation implementing Articles 85 and 86 of the Treaty on the same grounds as those as that pursued in their domestic proceedings. Ultimately, on the 11th March, 1998 the Commission made a Decision in a proceeding under Articles 85 and 86 of the Treaty (in effect) condemning the exclusivity agreement. H.B. sued in the Court of First Instance on the 21st April, 1998 for the annulment of the decision (including an application to stay the decision) 15. In due course the Supreme Court decided to stay the Irish proceedings for the purpose of seeking a preliminary ruling inter alia:-
17. In Merck v. Serle [2002] 3 I.R. 614 this Court stayed proceedings to revoke a patent in circumstances where proceedings pertaining to the same patent were pending before the European Patent Office. McCracken J., in the course of his judgment said that:-
20. Furthermore it seems to me that McCracken J.’s reference to the public interest is of assistance for a number of reasons. Firstly it is obviously not in the public interest to occasion, by a stay or adjournment, an effective postponement of a major infrastructural projects of the present kind, and a stay or adjournment here would give rise, presumably, to a similar application in any other proceedings commenced in respect of an alleged breach in the case of any other such projects throwing all into uncertainty. Thirdly, of course, one would have thought that the application of the duty of an inferior court to follow a decision of the Supreme Court when the law has been conclusively settled by it, is similarly in accord with it. Thus, if the matter was discretionary in accordance with the principles in that case I would have little hesitation refusing the application in this case. 21. I am also referred to Friends of the Irish Environment Limited v. Minister for the Environment & Ors. (Unreported, High Court, Murphy J., 15th April, 2005). That was a case which similarly concerned the directive, but in another aspect and the Commission, at the time of the application, had given notice that it intended to issue Article 226 proceedings against the State before the E.C.J., following a reasoned opinion. Ireland had not, at the date of hearing been formally notified of the institution of the proceedings. Murphy J. quite rightly pointed out that:-
23. I have been referred to Irish Trust Bank Limited v. Central Bank of Ireland [1976/7] I.L.R.M. 50 and Re: Worldport Ireland Limited. In the former case Parke J. held that:-
24. In In the matter of Worldport Ireland Limited (in Liquidation) (Unreported, High Court, Clarke J., 16th June, 2005) it was sought before him to re-visit a decision of Kearns J. in Re: Industrial Services Limited [2001] 2 IR 118, which he declined to do but the reasons for which refusal are substantially the same as those of Parke J. and one has no difficulty with these principles since no question of departure from a prior decision of this court arises but rather the following of the Supreme Court. 25. The applicants also refer me to Kingdom of Belgium v. Ryanair Limited (Unreported, High Court, O’Neill J., 30th June, 2006). That case, of course, was what might shortly be described, as a case emanating from a decision of the Commission pertaining to certain State aids given by the plaintiff to the defendant which were held incompatible with Article 87(1) of the Treaty. I have already dealt with the status of such a Decision. The defendants sought to stay proceedings by the plaintiff for the recovery of sums which ought not to have been forewent (including discounts), marketing contributions, so called one shot incentives and other payments under the terms of the Anti Competitive State Aids Scheme condemned by the Commission. The defendant had instituted proceedings in the Court of first instance seeking an annulment of the decision in question and it was common case that if the defendants were successful there would be no basis for recovery of the sums claimed. O’Neill J. took the view that the principles for a stay on the proceedings were those elaborated by the E.C.J. in Zuckerfabrik Suederdithmarschen A.G. Hauptzllamt Itzehoe (1991) E.C.R. 415 applied in this jurisdiction and on the basis of which a stay was refused. No risk of conflicting decisions arose since the defendant could not impugn the Commission decision in a domestic Court whether collaterally in the proceedings to recover the money or directly and the continuance of the proceedings to judgment or the discharge of any judgment, something which it was sought to arrest by a stay, was, effectively, a different matter and, by definition, accordingly there is no want of comity on my part in omitting application of it, even absent any other factor. 26. Zuckerfabrik dealt with the principles applied by the E.C.J. to applications for stays on Commission decisions (which had binding legal/effects) I am of the view however that this is authority which supports the respondent’s positions. This grant of a stay is under that decision a discretionary matter. Even if there would have been no direct potential conflict one might argue that even though the amount of any judgment recovered could be repaid and the defendants could bear what I might term the interim loss it would nevertheless be the case that judgement might be recovered on the basis of a decision held bad. If the principles confirming a discretion were applicable to the applications before me, the factors relevant in Merck & Co. might be relevant. 27. In any event, as a minimum I consider that my duty to consider this matter on the basis of the decision of the Supreme Court is not diluted or undermined by it. 28. I turn now to the submissions made on behalf of the first named notice party in each of the proceedings, namely, Indaver N. V. trading as Indaver Ireland (hereinafter referred to as “Indaver”). In Kapferer v. Schlank where an Austrian Court sought a preliminary ruling concerning the interpretation of Article 10 E.C. and Article 15 of Council Regulation (E.C.) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters the respondents were domiciled in Germany and the applicants sought an order requiring them to award her a certain prize and the case turned on a question of jurisdiction, in respect of which a final and conclusive judgment on international jurisdiction had been rendered where the judgment was ultimately held to be contrary to community law. The reference pertained in the issue of whether, and, where relevant, in what conditions, the principle of co-operation arising from Article 10 E.C. imposes on a national court an obligation to review and set aside a final judicial decision if that decision should infringe community law and the Court held that:-
30. I am referred also to Rewe-Zentralfinanz & Oths. v. Landwrtschaftskammer [1976] ECR 1989 and Van Schijndel & Another v. Stichting (joined cases C-430/93 and C-431/93) which have only a narrow application and add little to the proceedings. The former case pertained to a regulation (regulation No. 159/66/EEC) which had direct effect and conferred on citizens rights which the national courts were required to protect and it was held that it was for the domestic legal system of each Member State to designate the Courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have in the case of direct effect and the plaintiffs relied upon the question of the compatibility of a certain compulsory pension fund with higher ranking rules of community law: primarily, the plaintiffs relied upon certain Articles of the Treaty which were of direct effect. The Court inter alia held that in the context of the procedural issues raised in the case:-
32. The questions referred by the Dutch Court to the E.C.J. pertained to the issue of whether or not a domestic court, even when the party with an interest in the directly applicable community law provisions in question had not relied upon them, has an obligation to raise them where domestic law allows such application by the national court. It was held that community law does not require national courts to raise of their own motion an issue concerning such a breach where such examination would oblige them to abandon the passive role assigned to them by going beyond the ambit of the dispute defined by the parties themselves and relying on facts and circumstances other than those on which the party with an interest in (the application) of those provisions base his claim:-
35. Counsel for the applicants has elaborated upon the differentiation between proceedings under Article 226 of the Treaty by the Commission before the E.C.J. as to whether or not a State is in breach of its obligations under a Directive, namely, Commission v. Italy [1970] E.C.R. 32, Commission v. Germany [1995] E.C.R., I-2189 Commission v. United Kingdom [C-508/03], Commission v. Italy [C-87/02] and Commission v. Ireland [C-392/96] . I appreciate that the reason why I have been asked to consider these decisions is for the purpose of showing such a distinction between infringement proceedings and proceedings of the present class before a national court and that the national court ought not, because of their different nature, adjourn generally the proceedings before it where a similar issue falls to be determined. I do not think these are of particular assistance: the cases of greater direct relevance have been cited sufficiently elaborating these various principles in debate. I am referred, also, to Commission v. Germany [1995] ECR I-2189 where, of course, it was held that the issue of whether or not a Directive is to be construed as imposing an obligation on a Member State is a different question to that of whether or not it has direct effect: this is an unexceptional statement of principle. A remedy in damages can be afforded to the applicants by virtue of Kobler v. Austria [C-224/01]. Of course that decision is supportive of the concept of the procedural autonomy of Member States. Damages would arise only in the case of a directive having direct effects. 36. I summarise my conclusions as follows:-
(2) By virtue of that decision the court is bound by the principle of stare decisis as an inferior Court to apply it with the consequence that for every purpose connected with this application there is no breach by the State of its obligations under the Directive and no reason to believe that any contrary decision will be reached by the E.C.J. (3) The doctrine of the “acte clair” is an intrinsic part of community law and its application in no sense detracts from duties of loyal co-operation a rising pursuant to Articles 5 and 10 or otherwise. (4) The autonomy of national procedural law does not, under community law, extend to a case where such a law would mean that judicial protection of community rights would be lacking but in a case where a Court of final instance, as with the core substantive issue here, has made a final determination there is no basis under our law for a court of first instance to fear that and in as much as the applicants contentions are inadmissible as that term is understood in community law. |