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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hoey -v- An Bord Pleanála & Ors [2012] IEHC 520 (05 December 2012)
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Cite as: [2012] IEHC 520
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Judgment Title: Hoey -v- An Bord Pleanála & Ors Neutral Citation: 2012 IEHC 520 High Court Record Number: 2012 619 JR Date of Delivery: 12/05/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 520 THE HIGH COURT [2012 No. 619 J.R.] BETWEEN Michael Hoey Applicant v.
An Bord Pleanála, Ireland, Attorney General, The Minister for the Environment, Heritage and Local Government Respondents Judgment of Mr. Justice Hedigan delivered on the 5th of day of December, 2012. Application Parties Factual background 3.2 The decisions in relation to abstraction were all taken in 2003 apart from one in 2006 relating to an application by Offaly County Council and another decision taken in 2007 which the applicant referred to but did not exhibit in these proceedings. 3.3 The case arises from the fact that the applicant argues that his business depended on the navigation of the river Barrow being maintained and that since November 2002 his business activities in this regard have stopped as the water level of the river is too low to allow for navigation due to the abstraction of waters. 3.4 The Environmental Impact Assessment (EIA) Directive (Directive 85/337/EEC) requires the board to conduct an assessment before granting planning permission for a project. In order to meet this requirement the local authority under s.175 of the Planning and Development Act 2000 submits an Environmental Impact Statement (EIS) to the board for its consideration. It determines if planning permission should be granted based upon this EIS. The function of the assessment is to identify impacts on the environment. The EIS is to provide sufficient information to enable those impacts to be identified. 3.5 It is argued by the applicant that because the state did not transpose Article 3 of the EIA Directive the board is precluded from granting authorisation for any project requiring an EIA and therefore any project (such as 11.JA0026 and 11.JA0027) that fails to comply with the directive ceases to have any legal status and is without legal protection. 3.6 The board argues that it conducted an EIA and granted planning permission on that basis. The applicant however disagrees and says that no proper EIA was conducted and even if it had been the board had no authority to do so and therefore any project that fails to comply with the directive ceases to have any legal status and is without legal protection. 3.7 The applicant argues that the EIS submitted is inadequate as it did not take into account the water assimilation capacity of the river Barrow, or the cumulative effects of the proposed development with regard to earlier decisions. He also submits that when the first named respondent decided the 2012 projects it did not consider the decisions that had already been made in 2003 and that the two recent decisions would have a cumulative effect with the 2003 decisions and cause an adverse environmental effect. He challenges the decisions in relation to abstraction which were made in 2003 and is similarly challenging the two decisions made in May of 2012 in relation to waste water treatment plants. He argues all decisions are related. He maintains he is a navigation authority and so under s.21(4) of the Water Supplies Act (1942) the interference notices he issued to Laois and Kildare County Councils in 2002 and 2003 should not have been treated as objections and the respondent did not have the power to treat them as such. Section 21(4) of the act empowers a navigation authority, where it has been given notice of a project by a sanitary authority, to give a written notice (known as an interference notice) to the sanitary authority within 21 days of receipt of the sanitary authority's notice, if it is of the opinion that the abstraction of water will make navigation impossible or unreasonably difficult, and shall include a statement of its reasons for being of that opinion. He states that he did so but that they were treated as objections. The respondent contends that the decisions are not related and the applicant is out of time to challenge the 2003 decisions as under s.50 of the Planning and Development Act 2000 he has eight weeks from the date of the decision to do so. The first named respondent submits that the 2012 decisions are about waste water treatment plants and provide for the discharge as opposed to the abstraction of water with which the earlier decisions in 2003 dealt. They are thus, they claim, unrelated to the low water levels of which he complains. Relief Sought 1. An Order of Certiorari quashing the Orders of the first named respondent made on the, 14th May, 2012, to grant development consent for applications reference numbers 11.JA0026 and 11.JA0027. 2.An Order granting a stay on the aforesaid orders of the first named respondent pursuant to Order 84 Rule 20(7) of the Rules of the Superior Courts. 3. A declaration that any project of a type that requires the EIA Directive to be applied before development commences, found not to comply with the EIA Directive, ceases to have any positive legal status for the purposes of the EIA Directive and is without any legal protection, subsequently the polluter pays principle can be relied on by those who are concerned or affected by the project. 4.A declaration that for the purposes of s.21 of the Water Supplies Act (1942) the applicant is to be considered a navigation authority and the interference notices issued have the force of law. 5. An order stating that for the purposes of Article 6 of Directive 85/337/EEC the third named respondent designate the applicant as an authority to be consulted in each case when the request for consent is made regarding the abstraction of water the source of which is from within or connected to the catchment of a navigation or the discharge of waste water to the catchment. 6. An order to restore the draft of the Barrow Navigation to 1.2 metres (with an additional 500m clearance for drawdown) in compliance with that defined in Article 14(1) and (3) of S.I. 247 of 1998- the Canals Act Bye-Laws. 7. Damages (including criminal) arising from any matter to which the application relates. 8. A declaration that the third named respondent has a duty under Directive 2004/35/EC to ensure the remedy for the damage caused to the Grand Canal and Barrow Navigation which should be carried out by the operators who in this case are local authorities and should bear the costs relating to preventative measures when those measures should have been taken as a matter of course in order to comply with the legislative, regulatory and administrative provisions regulating their activities or the terms of any permit or authorisation. 9. Such interim or interlocutory relief as to this Honourable court shall seem meet. 10. Such further or other relief as to this Honourable court shall seem meet. 11. The costs and expenses of and ancillary to this application. Applicants Submissions (a) Human beings, fauna and flora; (b) Soil, water, air, climate and the landscape; (c) Material assets and the cultural heritage (d) The interaction between the factors referred to in points (a) (b) and (c). The applicant submits that the deficiencies identified in Irish implementing legislation in the ECJ case 50/09 have not been corrected or complied with and therefore Ireland is still in breach of ruling C50/09.He relies on the decision of Kelly J. in Friends of the Curragh Environment Limited v. An Bord Pleanála (2006) IEHC 243 to argue that, as there is no legislation in place enabling the respondent to give effect to directive 85/337/EEC, the respondent in making the decisions in relation to the projects was acting in excess of jurisdiction as it is not a designated competent authority for the purposes of Article 12(2) of the EIA Directive and therefore is not empowered to make decisions in relation to EIAs. Therefore, until such time as Article 3 has been transposed correctly, he submits, no valid consent for a project can be granted and that the consents granted by the first named respondent are without any legal stature, being void and ultra vires the powers of the first named respondent and the third named respondent is responsible in damages for everything that is not in compliance with the directive. The applicant further argues that until Article 3 of the EIA Directive is transposed correctly the court is not empowered to reject or refuse the relief he seeks, as to do so would in effect be to approve the contested decisions. It is submitted by the applicant that s.50 of the Planning and Development Act 2000 as drafted is inoperable until s.3 of the EIA Directive has been transposed and the first named respondent is designated as a planning authority. The applicant maintains that any EIA that the first named respondent did conduct was inadequate and that its assessments (including its assessment of the applicant's submission) and subsequent decisions failed to cover the entire development and means that the overall EIA is legally flawed. He maintains he not been provided with a copy of the EIS that should have been produced as a result of completing an EIA. He says that the only copy he has been able to access is a draft of the final EIS, that this is a breach of the EIA Directive and that the EIS provided is inadequate. He argues that the EIA simply did not include the minimum amount required to establish a valid Environmental Impact Statement (EIS). And as a result the EIS provided in decisions 11.JA0026 and 11.JA0027 failed to contain the minimum amount of information required to enable a decision to be made. The information provided for in Article 5(2) of Directive 85/337/EEC is the minimum that a developer must provide. 5.2 Environment He argues the respondents did not properly address the environmental risks attached to the execution of the said projects and failed to assess the risk of environmental pollution due to low water. 5.3 Access to justice and damages The applicant argues that the restriction placed on the limits of the discretion of the court by s.50 of the Planning and Development Act 2000 is unconstitutional and does not comply with Directive 2003/35/EC which, as per the Aarhus Convention, is to provide for access to judicial or other procedures for challenging the substantive or procedural legality of decisions, acts or omissions. He argues that this restriction places an unfair burden on him and is in breach of his constitutional rights and is causing him damage. He argues that the European Commission has sued Ireland before the ECJ for failure to transpose Directive 2003/35/EC including Article 10(a) in case C-427/07(Commission v. Ireland). The applicant therefore argues that the process requiring him to apply for leave to initiate Judicial Review proceedings is an abuse of process as liberty to apply is already guaranteed by Directive 2003/35 EC and that this directive was to be transposed into Irish law by the 25th June, 2005, at the latest but still has not been and thus he is being denied full participation in the decision making process. The applicant argues that he is a lay litigant as he cannot afford legal representation and should not be "persecuted" in any way for his involvement in the case. In this he refers to the opinion of advocate General Kokott in C- 427/07(Commission v. Ireland) where he noted "as regards the fourth argument concerning the costs of proceedings, it is clear from Article 10a of Directive 85/337,inserted by Article 3(7) of Directive 2003/35,and Article 15a of Directive 96/91,inserted by Article 4(4) of Directive 2003/35,that the procedures established in the context of those provisions must not be prohibitively expensive". The applicant argues that the state is not in a position to determine that costs could not or should not be claimed against him and this is an infringement of his property rights. He says the costs associated with recovering the damages caused by the direct and/or indirect effects of either a public or private project may be such as to deny his right to vindicate his property rights. 5.4 Water Supplies Act The applicant refers to s.2 of the Water Supplies Act (1942) which provides for the power of a sanitary authority to make a proposal, whenever they desire, to take water from a source of water for the purpose of increasing, extending or providing a supply of water and he argues the Sanitary Authority is obliged to make a proposal when it wishes to do so. He refers to s.21 (2) of the Water Supplies Act which states "nothing in this act shall be construed as entitling a sanitary authority to take water in such manner or from such source of water, or of such amount as to make the navigation of any navigable water impossible or unreasonably difficult". He refers to the interference notices issued to both Laois and Kildare County Councils by him which included the concerned opinion of Waterways Ireland and says that the first named respondent was negligent by not taking into account his status as a navigation authority. He argues that the consultants on the project Nicholas O'Dwyer & Co. as well as Kildare County Council misled the first named respondent as to the applicant's status as a navigation authority and identified his interference notice as an objection when they passed his notice to the first named respondent. He submits that as a result his interference notice was treated as invalid being instead treated as an objection. He argues that the first named respondent acted outside its jurisdiction by accepting the interference notices as objections and has caused him damage. The applicant argues that on the 15th May, 2012, the first named respondent notified him of its consent for projects 11.JA0026 and 11.JA0027.He argues that because of past failures to consider the cumulative effects in making the decisions of 2003 those decisions should now be considered in the present case but are not being. He argues that he filed a claim in time under the act with Kildare County Council but the council ignored his claim and proceeded to activate all of the abstractions in the Kildare Water Strategy. Respondents Submissions The applicant objects to the inadequacy of the EIS submitted and argues that the waste assimilation of the main channel of the river Barrow is in a critical state. He argues that the board had approved abstraction without assessing cumulative effects. While the applicant submits he is concerned with water assimilation capacity, his main argument relates to navigable depth and abstractions and does not show how assimilation is going to have a particular adverse effect on the quality of the water and what that effect would be. 6.2 The applicant further argues that an EIS is impossible as the Board was not designated as a planning authority to give effect to Article 12(2) of Directive 85/337/EEC that empowered it to make an EIA. However, the respondent submits the board's power is derived from s.175 of the Planning and Development Act 2000.Under this provision the board is required to consider local authority developments requiring an EIA or is required to conduct an EIA of those developments. 6.3 The first named respondent states that it considered the EIS submitted with the planning application as well as the information submitted by the applicant, the observations on file, the oral hearing and the inspector's assessment of environmental impacts. It also took into account the legislative and administrative framework and the existing loading of the site. It completed its EIA on that basis and concluded that the proposal would be in accordance with proper planning and sustainable development and would not give rise to significant adverse effects on the environment. Therefore planning permission was granted. The first named respondent laid down maximum treated effluent values which the developer had to comply with, considered the carrying capacity of the water at the outflow pipe and imposed a condition on the local authority requiring it to ensure that it did not discharge excessive polluting matter into the waters. Therefore the applicant's submission in relation to carrying capacity was looked at and the respondent imposed appropriate conditions to prevent any environmental effect. This shows that the first named respondent conducted the assessment which it was required by the EIA Directive to conduct 6.4 The first named respondent points out that the decision in relation to the second project 11.JA0027 only differs slightly from 11.JA0026 in that the maximum effluent levels allowed are different. It argues that this proves that it was conscious of the different location of the discharge point, the different character of the waters in the area and that it imposed conditions which it considered were appropriate for the particular discharge point. Therefore it refutes the applicant's allegation that it did not consider the assimilative capacity of the waters. 6.5 The first named respondent further submits that it is aware of its obligations under EU law, being one of the authorities of the state and applies legislation consistently with the EIA Directive. It says in making its decision it carried out an EIA. If the applicant wishes to advance a substantial ground to challenge the first named respondent's decisions he needs to establish some factual point that he says the board failed to consider and the applicant herein has not done that. The respondent submits that Irish law can be interpreted and applied consistently with EU law in a way which affords the applicant and other interested parties all of their rights, even if the provision itself does not explicitly reiterate what the directive says. 6.6 The applicant argues that an EIA is impossible as there has been, he says, an unauthorised development which has taken place between the original water abstraction authorisation and the current waste water treatment plant application. However, he has not adduced evidence to the board to support this. At paragraphs 23 and 24 of the applicant's affidavit he alleges that there have been changes which are unauthorised and which were not subject to an EIS and he further argues that as a result of these changes the entire plant is unauthorised and cannot be extended because the previous extension happened without an EIA. However he must put this to the first named respondent on the basis of firm evidence which he has not done. If the applicant wishes to seek judicial review on the basis of an alleged error by the first named respondent he needs to adduce some substantial evidence that the first named respondent has failed in some particular way. 6.7 In relation to the EIS the applicant alleges that the first named respondent has not looked at the cumulative effect of the 2012 projects along with the 2003 projects which relate to water abstraction. He is however out of time to challenge the 2003 decisions. Section 50 (2) of the Planning and Development Act 2000 states that "A person shall not question the validity of (a) a decision of a planning authority...a decision of the Board ...otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts". The time limit for so making an application is eight weeks. 6.8 The applicant maintains that the obligation to carry out an EIA is not written into Irish legislation and relies on the ECJ decision 50/09 EC in this regard. In that case the ECJ held that the state had failed to give explicit effect to Article 3 of the EIA Directive which requires that an assessment be carried out. The applicant argues from this that the board is precluded from granting an authorisation for any project requiring an EIA. However, the ECJ also accepted that this did not necessarily mean that the assessments which were in fact carried out in various cases were invalid and it referred to the Supreme Court decisions in Martin v. An Bord Pleanála [2007] IESC 23 and O'Connell v. the Environmental Protection Agency [2003] IESC 14 in this regard. Therefore the obligation to carry out the assessment is implicit in Irish law, as the Board is required to consider the EIS and the submissions from members of the public and from other state authorities. The applicant has done nothing to disprove the board's statement that it carried out an EIA. 6.9 The Water Supplies Act 1942 The applicant alleges that the board is not in compliance with the Water Supplies Act (1942). Everything under that act is however related to abstraction of water rather than the addition of material with which the contested decision is concerned. This is evident from s.2 of the act which states, "Whenever a sanitary authority desire to take from a source of water (whether within or without their sanitary district) a supply of water for the purpose of increasing, extending, or providing a supply of water under the Public Health Acts, 1878 to 1931, they may make, under and in accordance with this Act, a proposal for so taking such supply of water from such source of water". In this regard the applicant is attempting to reopen earlier abstraction issues which he is precluded by time limits from doing. The applicant's point in relation to the Water Supplies Act (1942) is based on s.21 of the Act and s.21 (1) says "the expression "navigable water" means any river or canal on which any person is, by virtue of an enactment, entitled to navigate or in respect of the navigation on which any person is, by virtue of any enactment, entitled to receive tolls or dues and the expression "navigation authority" means, in relation to any navigable water, the person entitled to navigate thereon or to receive tolls or dues in respect of navigation thereon." The applicant claims to be a navigation authority himself as he navigates on the canals .This however is irrelevant to the proceedings as s.21 (2) says "nothing in this act shall be construed as entitling a sanitary authority to take water in such manner, or from such source of water, or such amount as to make the navigation on any navigable water impossible or unreasonably difficult". The section then goes on to lay down the procedure by which the navigation authority and the local authority can resolve their differences in relation to abstraction issues. It is a separate procedure with no bearing on the decision to authorise an abstraction and in any event all abstractions are 2003-2007 and out of time and therefore the applicant has no grounds to challenge the decision. 6.10 Neither the board not the County Council is engaged in project splitting as alleged by the applicant as there were projects back in 2003 for an abstraction and two waste water treatment plants in two different towns, the subject of two different applications 6.11 The Habitats Directive The applicant argues that the Barrow was not designated a Special Area of Conservation (SAC) but was merely a candidate SAC. The river however is entitled to the same protection in Irish law whether it is actually designated a SAC or only in the process of being so designated. The developer, Laois County council split its consideration of environmental matters between matters for the EIA and matters for the Habitats Directive and it submitted a separate report which it calls "a report submitted to inform an appropriate assessment". The first named respondent says it carried out an appropriate assessment of the potential impact of the projects on the river Barrow and the River Nore and it was satisfied the proposed development would not adversely affect the integrity of the site either individually or in combination with other plans or projects. Section 6.3 of the Directive says "any plan or project likely to have a significant effect on Natura 2000 either individually or in combination with other plans or projects shall undergo an appropriate assessment to determine its implications for the site in view of the site concerned". This means the board must do an assessment of the project and the board recites in its decision that it did carry out an appropriate assessment on the basis of the report prepared by the county council. The board must refuse permission if there will be an adverse effect on the integrity of the site and the board cites in its decision that it considered this question and decided there would not be an adverse effect. 6.12 Judicial review The applicant argues that the form of review available under Irish Judicial Review law is inadequate to meet the requirements of the EIA Directive and that the requirement to apply for leave for judicial review amounts to a barrier to the entitlement to judicial review. He claims that this article gives him a right to some new procedure. The respondent argues however that in Sweetman v. An Bord Pleanála [2007] IEHC 153 the Supreme Court held that the formal review of decisions provided by judicial review is adequate to comply with the directive. Therefore the applicant is arguing by reference to case C-127/02/EC that he should have a right to a wider judicial review under the EIA Directive than the Sweetman case holds that he has. 6.13 The applicant claims that the costs of this action may be prohibitive. He relies upon the provisions of the Planning and Development Act 2010.That act however was amended by the Environment (Miscellaneous Provisions) Act 2011.Under that provision the normal rules for Judicial Review of a decision of the board i.e. "the no order as to costs rule" is modified by the 2011 act to provide that the court may award costs to the applicant insofar as he is successful in the case. Thus, his argument is based on a legal provision which has been superseded by new costs rules. 6.14 Substantial grounds The onus is on the applicant to establish that his grounds are substantial in order to be granted leave to apply for Judicial Review. In Mc Namara v. An Bord Pleanála [1995] 2 I.L.R.M 125 at p.130 dealing with the meaning of substantial Carroll J. said that:-
Consequently the respondent argues that the applicant's grounds are not substantial. Further, he has restricted his claim to the impact of water abstraction and he does not express any concern in relation to the assimilative capacity of the waters in the area of the discharge of the waste water treatment plant. He complains of the environmental effect of a reduction in the water level but that is caused entirely by the abstraction and not the discharge and it is the authorisation of the waste water treatment plants that are addressed by the 2012 authorisation decisions of the board. Those are the only decisions which the applicant is in time to challenge. These 2012 decisions refer to putting waste water into the river which would have an environmental effect but would not reduce the navigable depth of the river but actually increase it. The applicant complains of a reduction in the water level but this was caused entirely by the abstractions and not by the discharge .These decisions were all taken in 2003 and the applicant is now out of time to challenge them. 7.1 Decision of the Court The applicant has confused his case very considerably by his attempts to raise decisions made in relation to abstraction of waters from the river Barrow. All but two of these decisions were made in 2003.The exceptions were made in 2006 and 2007.Those decisions are long ago rendered unchallengeable in Judicial Review by virtue of the delay involved. It is difficult to disentangle these inadmissible challenges from the challenges made by the applicant to the two decisions made in 2012 on the 14th May. The court will confine its consideration solely to the 2012 decisions. 7.2. In relation to the claims made concerning Article 12(2) of Directive 85/337/EEC, that An Bord Pleanála is not a designated planning authority, it is difficult to see where this fits in to any complaint of the applicant since firstly it is in fact authorised by s.175 of the Planning and Development Act 2000 as a planning authority. Secondly, it is under that provision that the board is required to consider local authority developments requiring an EIA and is required to conduct one. It considered the EIS submitted with the planning application and the submissions of the applicant herein. It considered the observations on file, the details of the oral hearing and the inspector's assessment of the environmental impact of the proposals. It states, and I accept, that it completed its EIA and concluded that the proposals would be in accord with proper planning and sustainable development and it would not adversely affect the environment. The board therefore granted planning permission subject to stringent conditions. The two projects were subject to slightly different maximum effluent levels thereby taking account of the different assimilation capacity of the waters. 7.3. The applicant's claim that unauthorised changes have occurred in the projects is entirely unsupported by evidence. It is simply a bare assertion made by the applicant and cannot support a claim for judicial review. 7.4. The applicant's complaint in relation to the Water Supplies Act 1942 is equally unsustainable. This act relates entirely to the abstraction of waters. The only abstraction of which the applicant complains occurred in 2003,2006, and 2007.Any decisions made then, as noted above, are long beyond challenge in judicial review. The decisions made in 2012 involve the introduction of waters to the river system. 7.5.The applicant's complaint that the Barrow was not designated as a Special Area of Conservation (SAC) but was merely a candidate SAC was not pursued as he seemed to accept the respondent's argument that a candidate SAC enjoys equal protection in Irish law. 7.6. The developers, Laois County Council, submitted two reports for the purpose of dealing with environmental matters in relation to the EIA and the Habitats Directive requirements. The board states that it carried out an appropriate assessment of the two projects and their impact on the rivers Barrow and Nore. It concluded the development would not adversely affect the sites in question. No evidence has been produced to the court to suggest they did not do so, nor to challenge the methodology of the decision making process. 7.7. For all of the above reasons it seems to me that the applicant has failed to meet the standard described by Carroll J. in Mc Namara v. An Bord Pleanála [1995] 2 I.L.R.M.l25 where she stated at p.130 that:- "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...a ground that does not stand any chance of being sustained (for example where the point has already been decided in another case) could not be said to be substantial." The onus is on the applicant to prove his case at this stage to that level of substantiality. He has not done so. He has provided little in the way of substance relying almost entirely on bare assertion. |