Neutral Citation: [2016] IEHC 226
THE HIGH COURT
JUDICIAL REVIEW
[2014 No. 685 J.R.]
[2014 No. 179 COM.]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50 AND 50A OF THE PLANNING AND DEVELOPMENT ACT 2000
AND IN THE MATTER OF AN APPLICATION
BETWEEN
DUNNES STORES
APPLICANT
RESPONDENT
FIRST NAMED NOTICE PARTY
AND
SOUTH DUBLIN COUNTY COUNCIL
SECOND NAMED NOTICE PARTY
JUDGMENT of Mr. Justice Hedigan delivered on the 4th day of May, 2016.
1 INTRODUCTION
1.1. The present proceedings are a judicial review of a determination of An Bord Pleanála (“the Board”) pursuant to s. 50 and 50A of the Planning and Development Act 2000, as amended (“the Act of 2000”). By order of 18th November, 2014, Noonan J. granted leave to the applicant to apply for judicial review for the following reliefs:
“1. An Order of Certiorari quashing the decision of the Respondent to grant planning permission in respect of the phased construction of two independent extensions (north and south) to the existing shopping centre (The Square) with a total gross floor area of 21, 490 sq. m. (including floor area of car-parking of 22,861 sq. m.; the total development area being 44, 351 sq. m.. The proposed development involves an extension to the existing shopping centre to the north (plot A) and to the south (plot B) which decision was made under Planning Application Register Reference SD13A\0192 An Bord Pleanála reference PL PL06S.243280 on the 23rd day of September, 2014;
2. A Declaration that in making the decision the Respondent failed to carry out an Environmental Impact Assessment (EIA) in accordance with the requirements of Section 172 of the Planning and Development Act, 2000, as amended, as interpreted in accordance with the obligations imposed under Article 3 of Council Directive 85\33\EEC, as amended by Council Directive 97\11\EC and 2003\55\EU and as codified by Council Directive 2011\92\EU;
3. A declaration that the Environmental Impact Statement (EIS) submitted by the first named Notice Party (together with the further information submitted by it in relation to the planning application) failed to comply with the requirements of Article 94 and Schedule 6 of the Planning and Development Regulations 2001 (“the 2001 Regulations”);
4. A declaration that conditions 2, 3 and 6 of the Respondent’s Decision under reference 06S.234280 are ultra vires and invalid;
5. A declaration that Conditions 2, 3 and 6 of the said Grant of planning permission and each of them are ultra vires and invalid and are not severable from the remainder of the permission;
6. Further and other relief;
7. Interim and Interlocutory relief.
8. The costs of these proceedings.”
The reliefs sought in respect of condition 2 are no longer being pursued by the applicant. By order of McGovern J. dated 8th December, 2014, the proceedings entered the Commercial List pursuant to O. 63A, r. 4 of the Rules of the Superior Courts as amended.
2 THE PARTIES
2.1. The applicant (Dunnes Stores) is a private unlimited company registered in the State having its registered offices at 46-50 South Great George’s Street, Dublin 2. It carries on a retail activity as one of the anchor tenants in The Square Shopping Centre, Tallaght, the proposed redevelopment of which is the subject matter of the decision under challenge.
2.2. The first respondent (The Board) is an independent appellate authority, established pursuant to the Local Government (Planning and Development) Act 1976, charged with the determination of certain matters arising under the Planning and Development Acts 2000 to 2015.
2.3. The first-named notice party (Indego) is the applicant for the proposed development.
2.4. The second-named notice party (South Dublin County Council) is the relevant planning authority. The second-named notice party was not legally represented, nor did it make submissions, during the course of the hearing.
3 FACTUAL BACKGROUND
3.1. On 27th September, 2013, Indego applied to South Dublin County Council for planning permission (Ref. SD13A/0192) for the phased construction of two independent extensions, one to the north (Plot A) and one to the south (Plot B) to The Square. The extensions compromise a gross total floor area of 21,490 sq. m. and a car park area of 22,861 sq. m., the total development being 44, 351 sq. m. An environmental impact statement (“EIS”) accompanied the planning application.
3.2. Plot A (North) is an extension to the existing shopping centre with a total gross floor area of 15,806 sq. m. and comprising an anchor retail unit (6,032 sq. m.) and eight number retail units (ranging from 136 sq. m. to 2,735 sq. m. and totalling 7,456 sq. m.) and associated ancillary accommodation and circulation areas over two levels accessed from a single level mall extending from the existing northern entrance (at Level 2) into the existing surface car park (removing 289 existing spaces). The northern extension ranges in height from 13.3 metres to 15.5 metres along the proposed new northern elevation. Plot A includes a six level multi-storey car park with 832 car spaces (22,861 sq. m.) and ancillary accommodation ranging in height from 14.8 metres to 16.6 metres to the east of the site with access/egress from/to Belgard Square East with a revised road layout and circulation. The development on Plot A involves new and upgraded hard and soft landscaping which integrates with the existing public realm in the vicinity and which facilitates future proposals for a transport interchange by South Dublin County Council. Service yards are proposed on the western portion of the site with access from a realigned access road from Belgard Square West and on the eastern portion of the site with access from the entrance road which accesses the new multi-storey car park.
3.3. Plot B (South) is an extension to the existing shopping centre at Level 3 with a total gross floor area of 5,684 sq. m. and comprising a retail unit and associated ancillary accommodation. The proposed new retail unit will incorporate the existing units (U307 and U307A) totalling 415 sq. m. to gain access to the existing mall at Level 3. The southern extension will result in the removal of 111 parking spaces and will have a parapet height of 12.3 metres to 13.5 metres above existing ground level at the southern elevation. Permission is also sought for all associated site and development works associated with the above developments including revisions to public realm, revisions to roads layout and footpaths, hard and soft landscaping, ESB substation and building mounted signage. The development proposed results in a net increase in parking associated with The Square of 432 spaces, all on a 3.5 hectare site at The Square Shopping Centre, Belgard Road, Tallaght, Dublin.
3.4. Dunnes Stores operates out of a retail unit of approximately 11,000 sq. m. and is one of the main anchor tenants in the centre. Its unit is located on the north-east corner of level two which is currently accessed from the northern car park via the northern entrance.
3.5. By a decision dated 24th March, 2014, the South Dublin County Council granted planning permission for the proposed development subject to 24 conditions. On 22nd April, 2014, the applicant appealed the decision to the Board. The Board appointed an Inspector to prepare a report on the appeal. By a decision dated 23rd September, 2014, the Board granted planning permission for the proposed development subject to 21 conditions.
3.6. In the “Reasons and Considerations” for its decision, the Board had regard to various matters to which it was obliged to have regard, and then went on to conclude why the proposed development was in accordance with proper planning and development, as follows:
“…It is considered that the proposed development, subject to compliance with the conditions set out below, would not impact negatively on the management of traffic within the town centre area, would not materially impact on existing development within the area, would contribute to the vitality and viability of the existing centre and would be an acceptable urban design intervention. It is considered, therefore, that the proposed development would be in accordance with the proper planning and sustainable development of the area.
The Board completed an Environmental Impact Assessment of the proposed scheme which considered the environmental impact statement submitted with the application and the report, assessment and conclusions of the Inspector in relation to the environmental impacts of the scheme, the conclusions of which were broadly accepted by the Board.
The Board considered that the environmental impacts of the proposal are acceptable and subject to compliance with the mitigation measures set out in the Environmental Impact Statement, the scheme would not have unacceptable adverse effects on the environment.”
3.7. Conditions 3 and 6 are at issue in these proceedings. Condition 3 provides:
“The construction of the development shall be managed in accordance with a Construction Management Plan, which shall be submitted to, and agreed in writing with, the planning authority prior to commencement of development. This plan shall provide details of intended construction practice for the development, including:
(a) A phasing programme which shall provide for the development of Plot A (northern extension) prior to the development of Plot B. Plot B may be commenced at the same time as Plot A but shall not be commenced before the commencement of Plot A.
(b) A traffic circulation plan which shall provide directional signage for customers at all of the principal junctions providing access to the centre.
(c) A parking plan for the duration of the construction phase and which shall take account of all customers accessing the centre and including temporary directional signage for same and which shall include details of on-site car parking facilities for site workers during the course of construction.
(d) Location of the site and materials compound(s) including area(s) identified for the storage of construction refuse.
(e) Location of areas for construction site offices and staff facilities.
(f) Details of site security fencing and hoardings.
(g) Details of the timing and routing of construction traffic to and from the construction site and associated directional signage, to include proposals to facilitate the delivery of abnormal loads to the site.
(h) Measures to obviate queuing of construction traffic on the adjoining road network.
(i) Measures to prevent the spillage or deposit of clay, rubble or other debris on the public road network.
(j) Alternative arrangements to be put in place for pedestrians and vehicles in the case of the closure of any public road or footpath during the course of site development works.
(k) Details of appropriate mitigation measures for noise, dust and vibration, and monitoring of such levels.
(l) Containment of all construction-related fuel and oil within specially constructed bunds to ensure that fuel spillages are fully contained. Such bunds shall be roofed to exclude rainwater.
(m) Off-site disposal of construction/demolition waste and details of how it is proposed to manage excavated soil.
(n) Means to ensure that surface water run-off is controlled such that no silt or other pollutants enter local surface water sewers or drains.
(o) Hours of operation during construction and site development. A record of daily checks that the works are being undertaken in accordance with the Construction Management Plan shall be kept for inspection by the planning authority.
Reason: In the interest of amenities, public health and safety.”
The challenge to conditions 3(i), (j), (l), (m) and (n) is no longer being pursued. In condition 3(k), the challenge is no longer being made in regard to details of mitigation measures for dust and the monitoring of such levels.
3.8. Condition 6 provides:
“The north-western vehicular entrance to the application site, to and from Belgard Square West, shall be closed to general vehicular traffic and restricted to service/delivery traffic only, no later than completion of the northern extension (Plot A) of the proposed development and prior to its opening or no later than completion of the planned transport interchange, whichever is delivered sooner. Prior to commencement of development, the developer shall enter into an enforceable written agreement with the planning authority which shall make available to the planning authority that part of the subject site to the west of the northern extension and to the north of the north-west car park for the development of a transport interchange. This shall facilitate a revised road alignment on this part of the site for service vehicle access if required as part of the interchange design and make provision for the closure of the general vehicular access to and from the north-western car park (that is, the car park access road immediately to the north and west of the northwest car park). Reason: In the interest of clarity, improving the amenities of the area, the provision of enhanced public transport facilities and the proper planning and sustainable development of the area.”
4 SUMMARY OF THE APPLICATION
4.1. The first main argument concerns the allegation that the Board has inadequately carried out the EIA of the proposed development. Several sub-points are raised in this respect as follows:
(1) It is contended that the EIS submitted by the developer was inadequate.
(2) It is contended that the information regarding environmental effects before the Board was insufficient.
(3) The applicant argues that the Board did not actually carry out an EIA. The main focus of this argument is that the Board did not properly record its determinations in this respect or provide reasons for its conclusions in respect of the EIA.
(4) It is argued that the matters which the conditions leave over for agreement have not been subject to EIA.
(5) The applicant and the public have been deprived of participation rights.
4.2. The second area of complaint focuses on the conditions attached to the grant of planning permission. Several complaints are made as follows:
(1) Conditions 3 and 6 are ultra vires the powers of the Board and are not appropriate subject matter for conditions.
(2) As regards condition 6, it is contended that it amounts to an unlawful transfer of land to a local authority which pre-empts a decision regarding the location of a mooted transport interchange, being an item of public infrastructure which it appears the relevant local authority have an interest in pursuing.
5 SUBMISSIONS OF THE APPLICANT
With regard to the inadequacy of the EIA Carried Out by the Board
5.1. Article 94 of the Planning and Development Regulations 2001 (S.I. 600 of 2001) (“the 2001 Regulations”) provides as follows:
“An EIS shall contain—
(a) the information specified in paragraph 1 of Schedule 6,
(b) the information specified in paragraph 2 of Schedule 6 to the extent that -
(i) such information is relevant to a given stage of the consent procedure and to the specific characteristics of the development or type of development concerned and of the environmental features likely to be affected, and
(ii) the person or persons preparing the EIS may reasonably be required to compile such information having regard, among other things, to current knowledge and methods of assessment, and
(c) a summary in non-technical language of the information required under paragraphs (a) and (b).”
Schedule 6 to the 2001 Regulations provides that the following information should be contained in an EIS:
“1. (a) A description of the proposed development comprising information on the site, design and size of the proposed development.
(b) A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects.
(c) The data required to identify and assess the main effects which the proposed development is likely to have on the environment.
(d) An outline of the main alternatives studied by the developer and an indication of the main reasons for his or her choice, taking into account the effects on the environment.
2. Further information, by way of explanation or amplification of the information referred to in paragraph 1, on the following matters:-
(a) (i) a description of the physical characteristics of the whole proposed development and the land-use requirements during the construction and operational phases;
(ii) a description of the main characteristics of the production processes, for instance, nature and quantity of the materials used;
(iii) an estimate, by type and quantity, of expected residues and emissions (including water, air and soil pollution, noise, vibration, light, heat and radiation) resulting from the operation of the proposed development;
(b) a description of the aspects of the environment likely to be significantly affected by the proposed development, including in particular:
- human beings, fauna and flora,
- soil, water, air, climatic factors and the landscape,
- material assets, including the architectural and archaeological heritage, and the cultural heritage,
- the inter-relationship between the above factors;
(c) a description of the likely significant effects (including direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative) of the proposed development on the environment resulting from:
- the existence of the proposed development,
- the use of natural resources,
- the emission of pollutants, the creation of nuisances and the elimination of waste,
and a description of the forecasting methods used to assess the effects on the environment;
(d) an indication of any difficulties (technical deficiencies or lack of know-how) encountered by the developer in compiling the required information.”
5.2. The applicant contends that the EIS submitted by the first-named notice party, together with further information submitted to the Council, failed to comply with the requirements of Article 94 and Schedule 6 of the 2001 Regulations, as amended, relating to the category of information to be included in an EIS. Information relating to the likely significant environmental effects of the project, mitigation measures and land use requirements during the construction phase was not submitted to the Council with the EIS or otherwise, or to the Board, in the context of the planning application and/or appeal so as to enable the Board to discharge its duties to carry out an EIA. The public and the applicant should have been afforded an opportunity prior to development consent being granted to make submissions in the light of this information in the context of the mandatory consultation procedure required for projects subject to a requirement for EIA.
5.3. The applicant submits that the question as to compliance with statutory requirements is a question of law to be determined by the Court and is not merely a question for expert judgment as per the O’Keeffe test (see Kenny v. An Bord Pleanála (No. 1) [2001] 1 IR 565). Article 111 of the 2001 Regulations makes provision for the Board to request further information to remedy non-compliance with the information required to be furnished in an EIS. The applicant submits that the Board did not have the jurisdiction to determine the application as the Board failed to exercise the power to request further information where that provided in the EIS was inadequate.
5.4. Furthermore, the applicant argues that the Board failed to carry out an EIA in accordance with the requirements of s. 172 of the Act of 2000. Section 172 provides:
“(1) An environmental impact assessment shall be carried out by the planning authority or the Board, as the case may be, in respect of an application for consent for proposed development where either—
(a) the proposed development would be of a class specified in—
(i) Part 1 of Schedule 5 of the Planning and Development Regulations 2001, and either—
(I) such development would exceed any relevant quantity, area or other limit specified in that Part, or
(II) no quantity, area or other limit is specified in that Part in respect of the development concerned,
or
(ii) Part 2 of Schedule 5 of the Planning and Development Regulations 2001 and either—
(I) such development would exceed any relevant quantity, area or other limit specified in that Part, or
(II) no quantity, area or other limit is specified in that Part in respect of the development concerned,
or
(b)(i) the proposed development would be of a class specified in Part 2 of Schedule 5 of the Planning and Development Regulations 2001 but does not exceed the relevant quantity, area or other limit specified in that Part, and
(ii) the planning authority or the Board, as the case may be, determines that the proposed development would be likely to have significant effects on the environment.”.
(1A) In subsection (1)—
(a) ‘proposed development’ means—
(i) a proposal to carry out one of the following:
(I) development to which Part III applies;
(II) development that may be carried out under Part IX;
(III) development that may be carried out by a local authority under Part X or development that may be carried out under Part XI;
(IV) development on the foreshore under Part XV;
(V) development under section 43 of the Act of 2001;
(VI) development under section 51 of the Roads Act 1993; and
(ii) notwithstanding that development has been carried out, development in relation to which an application for substitute consent is required under Part XA;
(b) ‘consent for proposed development’ means, as appropriate—
(i) grant of permission;
(ii) a decision of the Board to grant permission on application or on appeal; (iii) consent to development under Part IX;
(iv) consent to development that may be carried out by a local authority under Part X or development that may be carried out under Part XI;
(v) consent to development on the foreshore under Part XV;
(vi) consent to development under section 43 of the Act of 2001;
(vii) consent to development under section 51 of the Roads Act 1993; or
(viii) substitute consent under Part XA.
…
(1H) In carrying out an environmental impact assessment under this section the planning authority or the Board, as the case may be, may have regard to and adopt in whole or in part any reports prepared by its officials or by consultants, experts or other advisers.
…
(1J) When the planning authority or the Board, as the case may be, has decided whether to grant or to refuse consent for the proposed development, it shall inform the applicant for consent and the public of the decision and shall make the following information available to the applicant for consent and the public:
(a) the content of the decision and any conditions attached thereto;
(b) an evaluation of the direct and indirect effects of the proposed development on the matters set out in section 171A;
(c) having examined any submission or observation validly made,
(i) the main reasons and considerations on which the decision is based, and
(ii) the main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions or observations made by a member of the public;
(d) where relevant, a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects;
(e) any report referred to in subsection (1H);
(f) information for the public on the procedures available to review the substantive and procedural legality of the decision, and
(g) the views, if any, furnished by other Member States of the European Union pursuant to section 174.”
5.5. The applicant argues that the Board failed to make information available to the public concerning any evaluation of the direct and indirect effects of the proposed development of the matters set out in s. 171A of the Act of 2000 as required under s. 172(1J) of the Act. The Board did not give any adequate reasons for its apparent conclusion that the environmental impacts for the proposed development were acceptable. The Board failed to provide any adequate record of the EIA that it purports to have carried out. In addition, in carrying out an EIA, the Board has power to adopt part of an Inspector’s report under s. 172(1H). The Board is obliged to identify the precise portion of the Inspector’s report being adopted for the purpose of discharging its EIA obligations. The Board failed to do so in circumstances where the Board broadly accepted the conclusions of the Inspector in relation to the environmental impacts of the scheme and did not indicate that it was adopting any portion of the Inspector’s report. In making this argument, the applicant acknowledged that there was no Irish authority to support the contention. However, the applicant contends that the failure to identify the relevant portions of the Inspector’s Report did not satisfy “the need for legal certainty” referred to by the CJEU in Commission v. Ireland (Case C-50/09) [2011] ECR I-00873 so as to protect the rights of individuals to enforce the Directive.
Conditions 3 and 6 of the Grant of Planning Permission are Ultra Vires the Powers of the Board
5.6. Condition 3 of the planning permission is ultra vires and invalid on the basis that the information to be made available pursuant to this condition will only be given in the context of compliance submissions to be made by or on behalf of the developer, and therefore will be the subject of private agreement between the developer and the Council, which is inconsistent with fair procedures and with EIS and EIA requirements. Condition 6 is invalid insofar as it requires the developer to enter into an enforceable agreement for the ceding or transfer of land to the Council and is a type of condition that is specifically advised against under Ministerial Guidelines. Conditions 3 and 6 being ultra vires and invalid are not severable from the remainder of the permission.
6 SUBMISSIONS OF THE RESPONDENT
Inadequacy of the EIA Carried Out by the Board
6.1. The respondent submits that an EIA concerns the assessment of likely significant effects on the environment. This involves a process, which is assigned to the Board, to determine what effects are significant or not and the effects that are likely or not. The EIA is not for the purpose of gathering information on any and all conceivable possible effects of a proposed development. Schedule 6(1)(b) of the 2001 Regulations requires the inclusion of mitigation measures which are measures required to avoid, reduce or remedy “significant adverse effects” on the environment. There is no evidence that construction impact is anything other than (a) temporary and (b) of a limited nature or has any environmental impact whatsoever. In any event, information for the purposes of schedule 6(2) is required to the extent to which it is relevant to environmental effect.
6.2. Insofar as the applicant complains that the information before the Board was insufficient to enable it to carry out an EIA, it is well-established that it is for the Board to determine whether it has sufficient information to enable it to carry out an EIA (see People Over Wind v. An Bord Pleanála [2015] IEHC 271). It was submitted that the applicable standard of review is that the applicant must establish that the Board had no evidence before it on which to conclude that the proposed development would not have a significant adverse effect on the environment (see O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; Craig v. An Bord Pleanála [2013] IEHC 402).
6.3. On the adequacy of the EIS in respect of its consideration of the effects on material assets, the respondent contended that the EIS is not deficient on this point. The EIS dealt with the likely significant effects on transportation networks and traffic and the physical effect of the proposed development on the applicant’s retail store and other existing businesses. With respect to the consideration of the economic interests of the applicant, the respondent submits that the Board did not have to consider such interests where the effects are not likely to have an impact on the environment (see Jutta Leth v. Republik Österreich and Land Niederösterreich (Case C-420/11)). In relation to land-use during the construction phase, the respondent submits that insofar as the Board did not expressly require the developer to re-do an EIS to include details of routine matters, this was clearly as the Board had determined that such matters are not likely to have significant effects on the environment subject to the controls imposed by the conditions. There is no evidence that temporary, limited construction operations will have a significant environmental effect.
6.4. As regards the contention that the Board failed to carry out an EIA in accordance with the requirements of s. 172 of the Act of 2000, the respondent submits that the Board carried out a full EIA. It made publicly available the information being the “evaluation of the direct and indirect effects of the proposed development on the matters set out on section 171A”. Also, the Board generally adopted the Inspector’s Report and set out clearly the issues on which it did not agree with the Inspector. The evaluation of the direct and indirect impacts of the development is clearly seen in the Board’s Decision and the Inspector’s Report. The respondent submits that the Board fulfilled its obligation to record an EIA pursuant to s. 172(1J) of the Act of 2000. In regard to the argument about reasons, it was contended that the Board’s reasons are sufficiently stated in its decision.
6.5. In relation to the contention that the Board cannot have properly assessed the likely significant environmental effects because the imposition of the conditions indicates that there may be effects which are only going to be managed by the construction management plan (“the CMP”), the respondent argues as follows. First, the Board specifically determined that it had sufficient information to carry out an EIA and carried out an EIA. The Board provided proper reasons for its decision and there is full compliance with s. 172(1J). Secondly, taking condition 3 as an example, the fact that condition 3 imposes a need for further protection through requiring the developer to specifically set out a construction management plan does not take away from the fact that the likely significant environmental effects of the proposed development have been set out and assessed. In addition, the applicant has not demonstrated what if any significant effect on the environment is likely by reason of the matters set out in condition 3. The case-law has also clearly held that some degree of flexibility is desirable in a complex enterprise. Similarly, where technical matters within the responsibility of the planning authority are involved, a condition is permissible and positively envisages the possibility of re-design (see Boland v. An Bord Pleanála [1996] 3 I.R. 435; Arklow Holidays v. An Bord Pleanála [2006] IEHC 15; People Over Wind v. An Bord Pleanála).
6.6. In relation to the argument that matters which mitigate against environmental impact cannot be dealt with by condition, the respondent submits that there is no authority for this submission. Furthermore, recent authorities considered conditions that did precisely this and held same to be lawful (Arklow Holidays v. An Bord Pleanála; Keane v. An Bord Pleanála [2012] IEHC 324; McCallig v. An Bord Pleanála (No. 1) [2013] IEHC 60; People Over Wind v. An Bord Pleanála [2015] IEHC 271 and [2015] IECA 272 (Court of Appeal)).
Conditions 3 and 6 of the Grant of Planning Permission are Ultra Vires the Powers of the Board
6.7. The respondent rejects the assertion that the conditions imposed are ultra vires. It rejects the argument that the conditions leave over too much detail for agreement with the planning authority. The conditions are appropriate in the circumstances having regard to the nature of the proposed development and do not involve any abdication of function by the Board.
6.8. Condition 6 does not grant permission for the development of a transport interchange nor does it pre-determine the location of the transport exchange. The public will not be excluded from the process that will be attendant upon such a development. Insofar as the land has been identified as a potential location for the interchange, the condition ensures that the necessary lands to do so will be available. This is not a transfer of land. It is merely a requirement that the land is to be made available. Finally, the respondent submits that the applicant does not have standing to raise any challenge to Condition 6, having no sufficient interest as required pursuant to s. 50A(3)(b)(i).
7 SUBMISSIONS OF THE FIRST-NAMED NOTICE PARTY
Inadequacy of the EIA Carried Out by the Board
7.1. The notice party argues that the matters raised by the applicant are concerned with their commercial interests, rather than planning considerations. No genuine planning concerns have been raised by the applicant. The purpose of the EIA is not to protect perceived commercial or economic interests but rather to protect against environmental impact (see Jutta Leth v. Republik Österreich and Land Niederösterreich (Case C-420/11). The notice party submits that there is a strong line of authority that provides that the adequacy of the information in the EIS is a matter for the Board subject to the O’Keeffe principles (see O’Keeffe v. An Bord Pleanála; Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 407; Craig v. An Bord Pleanála & Anor. [2013] IEHC 402; People Over Wind v. An Bord Pleanála; McCallig v. An Bord Pleanála (No.1)).
7.2. In relation to the applicant’s argument that certain criteria are mandatory for an EIS pursuant to Article 94 and Schedule 6 of the 2001 Regulations, the notice party argues that there is a significant element of discretion afforded to the Board under Article 94 in assessing the adequacy of the information contained in the EIS. Such information is required to the extent that it is relevant to the specific characteristics of the development or type of development concerned and of the environmental features likely to be affected. Furthermore, land-use is not a mandatory information requirement under Schedule 6. For such information to be necessary in an EIS, it must meet the threshold of being of significant adverse effect. The notice party submits that there was no direct consequence between the complaints of the applicant and environmental impact and the complaints do not cross the required threshold of severity. The notice party adopted the respondent’s submissions regarding the Inspector’s Report. It was submitted that the fact that the word “adopt” is not present in the decision is of no legal significance where it is clear that the substance of what the Board has done is to adopt the Inspector’s Report (see Buckley & Grace v. An Bord Pleanála [2015] IEHC 572).
7.3. The notice party submits that construction management is a matter of detail which should be left over to be dealt with by way of condition. In this regard, the notice party relied on Boland v. An Bord Pleanála and the recent decision of Haughton J. in People Over Wind v. An Bord Pleanála. Planning permission is intended to operate at the level of principle. Thereafter, matters of detail can properly and lawfully be left over to the planning authority. Section 34(5) of the Act of 2000 expressly allows for the leaving over of points of detail for subsequent agreement between the developer and the planning authority. In respect of the argument that the conditions are inconsistent with the EIA Directive, EU law does not require the level of detail being contended for by the applicant. Furthermore, the notice party argues that effective public participation would be hampered by overwhelming the public with a massive amount of material.
Conditions 3 and 6 of the Grant of Planning Permission are Ultra Vires the Powers of the Board
7.4. A preliminary locus standi argument was made by the notice party. The notice party submits that the only complaint raised by the applicant before the Board was that condition 6 pre-empted a decision on the location of the proposed transport interchange that may have to be made in the context of an application of consent for the interchange. That argument is not raised before this Court. The notice party relied on the decision in Lancefort Ltd. v. An Bord Pleanála & Ors. [1998] IESC 14, [1999] 2 IR 270, to the effect that a point must be raised before the decision-maker or is otherwise unjust. Thus, the notice party argues that the applicant should not be entitled to make the complaints before this Court, in respect of Condition 6, that are outlined in the Statement of Grounds.
7.5. In any event, the applicant contends that if the complaints had been made before the Board, the applicant is seeking to rely on ius tertii to challenge condition 6. Section 50A(3)(b)(i) of the Act of 2000 requires that the applicant has a “sufficient interest” in the matter which is the subject of the judicial review application. Any complaint as to the unfairness of the condition is solely a matter for the notice party. The notice party submits that the applicant’s position is analogous to that of the applicant in North Wall Property Holding Co. Ltd. & Anor. v. Dublin Docklands Development Authority [2008] IEHC 305.
7.6. The notice party submits that the applicant’s challenge is based on asserted restrictions under s. 34 and underlying arguments based on constitutional property rights. There is no element of an EIA argument and the matter does not fall within Article 11 of the Directive. Thus, the decision of Commission v. Germany (Case C-431/92) [1995] ECR I-2189, relied upon by the applicant, is irrelevant.
7.7. In relation to the substantive arguments regarding condition 6, the notice party submits that the argument made by the applicant that there is no right under statute or constitutionally protected property rights to require the free transfer of land. The notice party argued that this complaint was not pleaded by the applicant. The applicant submits that, in any event, there was nothing in the terms of condition 6 that requires the transfer of land at all. The obligation is to make the land available to the planning authority if required in the future as part of the interchange. Insofar as payment of compensation is necessary to the validity of the condition, the condition is sufficiently broad to allow compensation to be paid.
7.8. Furthermore, the notice party submits that even if it is determined that condition 6 is invalid, it is possible to sever the condition from the planning permission.
7.9. The notice party argues that the applicant’s reliance on Ashbourne Holdings Ltd. v. An Bord Pleanála [2003] IESC 18, [2003] 2 I.R. 14, was misplaced. There was no quid pro quo for the development in contrast to the facts of the present case.
8 DECISION
8.1. The issues that arise in this case are as follows:
(i) Is the EIS non-compliant with statutory requirements under Article 94 and Schedule 6 of the 2001 Regulations?
(ii) Did the Board have sufficient information before it in order to carry out an EIA?
(iii) Did the Board fulfil its obligation to record the EIA pursuant to s. 172 of the Act of 2000?
(iv) Are conditions 3 and 6 ultra vires the powers of the Board? Is the subject matter of the conditions appropriate for conditions?
(v) Does condition 6 amount to an unlawful transfer of land to a local authority which pre-empts a decision regarding the location of a mooted transport interchange?
The Nature of Judicial Review
8.2. Judicial review is not available as a remedy to correct errors or to review decisions so as to render the High Court a Court of Appeal from the decisions complained of (see State (Abenglen Properties) v. Dublin Corporation [1984] I.R. 381). The system of judicial review is radically different from the system of appeals. When hearing an appeal, the Court is concerned with the merits of the decision under appeal. When subjecting some administrative act or order to judicial review, the Court is concerned with its legality. On an appeal, the question is “right or wrong?” On review, the question is “lawful or unlawful?” (see Dunne v. The Minister for Fisheries and Forestry [1984] 1 I.R. 230, at p. 237). The nature of judicial review of expert bodies was addressed in Henry Denny & Sons (Ireland) Ltd. v. The Minister for Social Welfare [1998] 1 IR 34, where Hamilton C.J. stated at pp. 37 & 38 that:
“It would be desirable to take this opportunity of expressing the view that the courts should be slow to interfere with the decisions of expert administrative tribunals. Where conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by way of appeal or judicial review.”
There is, moreover, a presumption that the decisions of a body such as An Bord Pleanála are valid until the contrary is shown. One must assume, in the absence of any evidence to the contrary, that statutory bodies, such as the Board in this case, exercise their powers and discharge their functions in a lawful and proper manner (see Lancefort Ltd. v. An Bord Pleanála [1998] IEHC 199). The burden of proof of establishing any error of law or fundamental question of fact leading to an excess of jurisdiction, or of demonstrating such unreasonableness as flies in the face of fundamental reason and commonsense, rests on the applicant in proceedings such as these. Once there is any reasonable basis upon which the planning authority or the Board can make a decision in favour of or against a planning application or appeal, or can attach a condition thereto, the Court has no jurisdiction to interfere (see Weston Ltd. v. An Bord Pleanála & Anor. [2010] IEHC 255). An applicant may only challenge the Board’s decision on irrationality grounds if there was no material before it capable of supporting its view (see Harrington v. An Bord Pleanála [2010] IEHC 428). Thus, the nature and scope of judicial review is a limited one. The courts should exercise considerable judicial restraint in the application of review principles. If judges overreach or overcontrol, they commit an error which review has been designed to prevent. They usurp the jurisdiction of those to whom the specific power has been granted.
The Adequacy of the EIA
8.3 The applicant argues the inadequacy on the basis firstly that the EIS submitted was inadequate itself. He contends that information in respect to likely significant environmental effect was not submitted so as to allow the Board properly carry out an EIA. As noted above, the EIA is a process whereby the Board gathers information which enables it to identify and assess the likely significant effects a proposed development would have on the environment as set forth in s. 171A of the Act of 2000. This enables it to decide whether to permit the development and how to condition it so as to deal with such effect as may be necessary. The EIS is an important part of that information gathering process. This process, however, is informed by many different sources including the Board’s own expertise which will in many cases fill information deficits in the documents submitted to it. It is very important to observe that the process involves assessment of “likely significant effects on the environment” (see Klohn v. An Bord Pleanála [2008] IEHC 111, [2009] 1 IR 59).
What Should an EIS Contain?
8.4 The contents are provided for by a combination of Article 94 of the 2001 Regulations and Schedule 6 thereof. Article 94 provides:
“An EIS shall contain—
(a) the information specified in paragraph 1 of Schedule 6,
(b) the information specified in paragraph 2 of Schedule 6 to the extent that -
(i) such information is relevant to a given stage of the consent procedure and to the specific characteristics of the development or type of development concerned and of the environmental features likely to be affected, and
(ii) the person or persons preparing the EIS may reasonably be required to compile such information having regard, among other things, to current knowledge and methods of assessment, and
(c) a summary in non-technical language of the information required under paragraphs (a) and (b).”
8.5 Thus, it is clear that the land-use requirements that concern the applicant are only those that are relevant to environmental features that are likely to be significantly affected. Moreover, if the Board considers that it needs more information, then it can require the developer to provide it. The main thrust of the applicant’s case seems to focus on the construction phase of the development concerned. Clearly this aspect of the development is going to be temporary. It is difficult to identify any aspect of it that will have any or any significant effect on the environment. However, this whole part of the applicant’s case is difficult to balance with the well-established principle that it is for the Board to determine whether it has sufficient information to enable it to carry out an EIA (see People Over Wind v. An Bord Pleanála [2015] IEHC 271). In making such a determination, the Board is judged on O’Keeffe principles. In Kenny v. An Bord Pleanála [2001] 1 IR 565, the applicant sought to impugn a decision of the Board on the ground, inter alia, that the EIS was so defective that it did not comply with the statutory requirements. McKechnie J. stated at p. 578:
“Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the Environmental Impact Study or the debate on it had before the inspector. These are not matters of concern to this court. The [planning authority] and the respondent, as these bodies must [be]under the regulations, were satisfied as to the Environmental Impact Statement, with the inspector and the respondent also being satisfied with the evidence, both documentary and oral, produced at the oral hearing. That in my view, concludes the matter.”
Later in Klohn v. An Bord Pleanála, McMahon J. stated at p. 64:
“...the content of the environmental impact statement is primarily determined by the wording of the relevant regulations (art. 94 and sch. 6 of Planning and Development Regulations 2001) whereas its adequacy is determined by the decision maker (art. 111 of the Regulations of 2001). Failure to supply the minimum contents as mandated by the Regulations may threaten the process, for example, where clear mandatory provisions are ignored. The adequacy of the information supplied in the environmental impact statement, however, is primarily a matter for the decision maker and is thus much more difficult to challenge.”
Thus, it seems clearly established that it is for the Board to determine the adequacy of the EIS submitted. If there is some information deficit perceived, it is open to the Board to seek further information or it may rely on its own expertise to fill any gap. No basis has been laid that could support the proposition that the Board’s decision in this regard was so irrational as to require the court to intervene.
8.6 The second ground of challenge to the EIA is that the information regarding environmental effects that was submitted to the Board was insufficient. In the light of the principle set out above, it is for the Board to decide if this is in fact so and for these same reasons this ground also fails.
8.7 The obligation on the Board to record the EIA that it carried out is provided by s. 34 (10) and s. 172 (1J) of the Act of 2000. Section 34 (10A) provides that:
“(10)(a) A decision given under this section or section 37 and the notification of the decision shall state the main reasons and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which of the condition is described shall be sufficient to meet the requirements of this subsection.”
The other subsections are not relevant to this case. Section 172 (1J) of the Act of 2000 was introduced into the planning code by S.I. 419 of 2012. It provides as follows:
“When the planning authority or the Board, as the case may be, has decided whether to grant or to refuse consent for the proposed development, it shall inform the applicant for consent and the public of the decision and shall make the following information available to the applicant for consent and the public:
(a) the content of the decision and any conditions attached thereto;
(b) an evaluation of the direct and indirect effects of the proposed development on the matters set out in section 171A;
(c) having examined any submission or observation validly made,
(i) the main reasons and considerations on which the decision is based, and
(ii) the main reasons and considerations for the attachment of any conditions, including reasons and considerations arising from or related to submissions or observations made by a member of the public;
(d) where relevant, a description of the main measures to avoid, reduce and, if possible, offset the major adverse effects;
(e) any report referred to in subsection (1H);
(f) information for the public on the procedures available to review the substantive and procedural legality of the decision, and
(g) the views, if any, furnished by other Member States of the European Union pursuant to section 174.”.
The issue raised here was also raised in Aherne v. An Bord Pleanála [2015] IEHC 606 at paras. 21 to 23 where Noonan J. stated as follows:
“21. In the present case, the applicants contend that no EIA was carried out by the Board. However, the decision of the Board clearly records that it did carry out an EIA and the onus of proving otherwise rests upon the applicants. No evidence has been adduced to contradict the assertion of the Board contained in its decision. The applicant's secondary position is that if the Board did carry out an EIA, it was obliged to record same in writing and this it failed to do.
22. However, there is no requirement in the PDA that the Board must state in writing within its own decision what the EIA comprises and it seems to me that once it is clear from the terms of the decision and the documents therein referred to how the EIA was arrived at that this satisfies the Board's obligations under s. 172. Subsection (1D) and (1E) mandate the Board to consider whether the EIS identifies and describes adequately the direct and indirect effects on the environment of the proposed development and if it does not, to obtain from the applicant such further information as it requires to enable it to carry out an EIA.
23. Subsection (1H) expressly permits the Board to adopt in whole or in part any reports prepared by its own officials, such as the Inspector here, or by consultants, experts or other advisors such as Messrs. Fehily Timoney and Company, in carrying out its EIA. The Board is not required to separately identify, describe and assess the direct and indirect effects of the proposed development within its decision where these matters are contained within an EIS which the Board considers is sufficient to enable it to carry out an EIA. In the present case, CDL provided a comprehensive EIS which the Board were entitled to adopt, as did its Inspector, particularly in the absence of any contrary evidence on the traffic issue.”
I gratefully adopt this passage and find in it the answer to the applicant’s complaint under this heading. The Board has stated it carried out an EIA and no evidence to the contrary has been produced. It is quite clear from the terms of the Board’s decision that it took into account the inspector’s report and broadly accepted it. That means it accepted there would be no significant impact on the environment. It also had regard to the submissions and observations made. It completed a screening exercise taking account of the screening report submitted and the inspector’s report and submissions on file in relation to potential impacts on the site having regard to the nature and scale of the proposed development. It decided that no appropriate assessment issues arose and concluded that the application would not be likely to have a significant effect on a European site.
Is Condition 3 Ultra Vires?
8.8 This condition provides that the construction of the development shall be managed in accordance with a construction management plan to be submitted to and agreed in writing with, the planning authority prior to the commencement of the development. This CMP must provide for phased development, for traffic circulation, parking, location of compounds for building materials, location of site offices, security fencing, timing and routing, rubbish accretion and noise and dust. The applicant argues that this condition precludes public participation in determining these important aspects of the development. The power to leave by conditions certain matters to be agreed between the developer and the planning authority was considered by the Supreme Court in Boland v. An Bord Pleanala [1996] 3 I.R. 435 at p. 466 where Hamilton C.J. set out the following criteria:
“1. The Board is entitled to grant a permission subject to conditions.
2. The Board is entitled, in certain circumstances, to impose a condition on the grant of a planning permission in regard to a contribution or other matter and to provide that such contribution or other matter be agreed between the planning authority and the person to whom the permission or approval is granted.
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 upon the nature of the ‘other matter’ which is to be the subject matter of 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 the circumstances of each particular application and development.
5. In imposing a condition that a matter be left to be agreed between the developer and the planning authority, the Board is entitled to have regard to:
(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;
(b) the desirability of leaving technical matters or 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 re-design in the light of the practical experience;
(c) the impracticability of imposing detailed conditions having regard to the nature of the development;
(d) the functions and responsibilities of the planning authority;
(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands;
(f) whether the enforcement of such conditions require monitoring or supervision.
6. In imposing conditions of this nature, the Board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement, to state clearly the reasons therefore and to lay down criteria by which the developer and the planning authority can reach agreement.”
8.9 Dealing with the issue of public engagement which might be precluded by such conditioning, Clarke J. in Arklow Holidays v. An Bord Pleanála [2006] IEHC 15 stated as follows at para. 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.”
Is the Boland Test met in this Case?
8.10 The matters that the CMP is to deal with are set out at 8.8 above. It seems to me that they are clearly in the nature of the technical details of construction which cannot be practically dealt with by way of individual conditions. In such a development as herein, a considerable degree of flexibility in the course of construction will inevitably be required. As referred to by Clarke J., the public have had the opportunity to engage in the process and influence the criteria which the Board specifies. Herein, it may be noted that the Board has found that no appropriate assessment issues arise and the project is not likely to have a significant effect on a European site. In my judgment condition 3, is the appropriate way to deal with the construction details and falls well within the Boland test.
8.11 The only part of condition 6 that is challenged is that which requires the developer to enter into an enforceable written agreement with the planning authority to make available to it certain specified land for the purposes of the development of a transport interchange. In my judgment, the applicant clearly has no locus standi to make this complaint because it has no significant interest as required by s. 50A(3)(b)(i). Even were this is not so, the condition does not amount to a transfer of property as was argued by the applicant. The availability of land may be made by way of, for instance, a licence.
8.12 For the reasons set out above, the reliefs sought are refused.
