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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Protect East Meath Ltd v An Bord Pleanala & ors (Approved) (Rev 1) [2020] IEHC 294 (19 June 2020)
URL: http://www.bailii.org/ie/cases/IEHC/2020/2020IEHC294.html
Cite as: [2020] IEHC 294
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THE HIGH COURT
JUDICIAL REVIEW
[ 2020 No. 44 JR]
IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND
DEVELOPMENT ACT, 2000
AND IN THE MATTER OF THE PLANNING AND DEVELOPMENT
(HOUSING) AND RESIDENTIAL TENANCIES ACT, 2016
BETWEEN
PROTECT EAST MEATH LIMITED
APPLICANT
AND
AN BORD PLEANÁLA, THE MINISTER FOR HOUSING, PLANNING &
LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
RAVALA LIMITED AND LOUTH COUNTY COUNCIL
NOTICE PARTIES
JUDGMENT of Mr. Justice Denis McDonald delivered on 19th June, 2020
The issue before the court
1. The issue which I am required to determine at this stage of the proceedings is
whether the first named notice party (“Ravala”) should be entitled to continue to
defend these proceedings notwithstanding that the first named respondent (“the
Board”) is prepared to consent to an order of certiorari quashing its decision of 27th
November, 2019 by which planning permission was granted for the construction of
450 dwelling units and associated office space, crèche and associated site works on
lands south of Marsh Road, Drogheda, County Louth. The development in question
constitutes a strategic housing development under the Planning and Development
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2
(Housing) and Residential Tenancies Act, 2016 (“the 2016 Act”). Under the 2016
Act, applications for permission in respect of strategic housing developments are
made directly to the Board.
Relevant facts
2. By an order made by Simons J. on 23rd January, 2020, the applicant was given
leave pursuant to O.84 r.20 of the Rules of the Superior Courts and s. 50 of the
Planning and Development Act, 2000 (“the 2000 Act”) to apply, by way of an
application for judicial review, for an order of certiorari of the Board’s decision of
27th November, 2019 granting permission for the development described in para. 1
above together with the balance of the relief claimed in Part D of the applicant’s
statement of grounds.
3. The proceedings were subsequently served on the respondents and the notice
parties. By letter dated 18th February, 2020 the solicitors acting on behalf of the
Board wrote to all parties to confirm that the Board would consent to an order of
certiorari on the following grounds:-
“The Board accepts that in light of the recent decision of the Board dated 11th
February, 2020 in case ABP-305703-19, and in particular the treatment of the
impact of that proposed development on Boyne Estuary SPA, the Board erred
in law in this case by screening out significant effects on the Boyne Estuary
SPA and that there was not sufficient evidence before the Board to reach such
a conclusion”.
4. This concession on the part of the Board must be read against the backdrop of
the case made in the statement of grounds with regard to the Boyne Estuary SPA
(“the SPA”). The qualifying interests of the SPA include Lapwing. Because of the
proximity of the development site to the SPA (and to a number of other Natura sites)
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3
Ravala had submitted a screening report for appropriate assessment to the Board in
July 2019. The report referred to a site visit conducted on 24th May, 2018. In its
statement of grounds, the applicant complained that the report did not contain any
consideration of ex-situ impacts on birds and the applicant also complained that no
survey effort of any sort was undertaken to establish if the qualifying interests in the
SPA utilised the development site for foraging purposes. This was raised by the
applicant in its submission to the Board in response to the application for development
consent. The submission also noted that potential impacts from increased
anthropogenic disturbance had not been assessed. As I understand it, the reference to
anthropogenic disturbance relates to disturbance of the environment resulting from
human activity. In its submission, the applicant also referred to the fact that the Board
had refused permission (ref 302948) for a nearby proposal for the change of use of a
golf driving range to a tourist campsite in Mornington, County Meath on 23rd April,
2019 on the basis, inter alia, that the developer had failed to assess the ex-situ impacts
on the SPA. It should be noted that the Board’s decision to refuse permission in
respect of that development (namely decision ref. 302948) relates to a different
development to that described in the Board’s solicitor’s letter of 18th February, 2020
(quoted in para. 3 above) namely the decision of 11th February, 2020 in case ABP-
305703-19. The latter decision post-dates the commencement of these proceedings
and it does not, therefore, feature in the applicant’s case.
5. In its statement of grounds, the applicant made the case that the Board was not
entitled to screen out the possibility of significant effects on the SPA in circumstances
where (on the case made by the applicant) no survey work had been undertaken to
establish whether, when and to what intensity the development site is utilised by the
qualifying interests of the SPA, in particular Lapwing. The applicant also referred to
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surveys carried out by the National Parks and Wildlife Service (“NPWS”) which the
applicant claimed showed significant concentrations of Lapwing foraging in the area
of the SPA closest to the development site. In its statement of grounds, the applicant
referred to the note prepared by the in-house ecologist which referenced the
possibility of anthropogenic disturbance and ex-situ impacts. In relation to that issue,
the ecologist had noted that the introduction of 450 units could result in increased
numbers of people seeking safe areas for recreational walking including dog walking
but that the area of the SPA in closest proximity to the proposed development had not
been identified as subject to disturbance pressures. The ecologist noted that the area
was therefore “unlikely to be used by numbers of recreational walkers or new
residents walking dogs that could have any measurable effect on the adjacent SPA”.
In paras. 25 and 26 of the statement of grounds, the applicant criticised the approach
taken by the ecologist (and subsequently by the inspector and the Board itself). The
applicant contended that the Board was not entitled to screen out the possibility of
significant effects via anthropogenic disturbance or ex-situ effects in circumstances
where (inter alia) there was no assessment as to whether and to what extent the
proposed development will lead to increased disturbance from walkers, dogs and
cyclists. The applicant complained that the ecologist had no survey information and
therefore no scientific evidence upon which she could possibly have determined the
magnitude of any such disturbance. It was claimed that this was all the more
significant in circumstances when this type of disturbance and loss of ex-situ feeding
sites had been specifically identified by the NPWS. In addition, it was contended that
the ecologist had conducted no qualitative analysis of the alternative alleged available
sites to assess their suitability in terms of size, level of anthropogenic disturbance,
fragmentation, food resource and ecological resource. The applicant contended that
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the conclusions were no more than expressions of hope on the part of the ecologist
and that they could provide no basis upon which the Board could have been satisfied,
at the screening stage, that any displaced avifauna would have equivalent foraging
capacity available to them and would not be subject to anthropogenic interference and
would suffer no significant adverse effect from disturbance response relocation.
6. Subsequent to the letter of 19th February, 2020, the matter was listed before
me in the Strategic Infrastructure Development Infrastructure list on 20th February,
2020 when Ravala requested time to consider the concession made by the Board. On
26th February, 2020, Arthur Cox, the solicitors then acting on behalf of Ravala wrote
to the Board in the following terms:-
“We confirm that we are instructed to apply to the Court for an order
remitting the matter to the Board. We note that the basis of concession relates
to issues arising under the Habitats Directive and, in particular, to an
insufficiency of information to allow the Board to screen out the likelihood of
significant effects on … the Boyne Estuary SPA. You will be aware that under
sections 177U and 177V of the Planning and Development Act, 2000 … your
client has a power to request … such further information as it considers
necessary to carry out screening for appropriate assessment and appropriate
assessment respectively, and there is no statutory preclusion on the exercise of
such power in the context of applications for planning permission for Strategic
Housing Development. Accordingly, our client is seeking remittal with a view
to allowing the Board an opportunity to make such request for further
information as it considers appropriate and/or necessary for the purposes of
carrying out its functions pursuant to Article 6 (3) of the Habitats Directive”.
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6
7. On 27th February, 2020, the matter was listed before me again in the Strategic
Infrastructure Development list when the matter was adjourned, again at Ravala’s
behest, to 12th March, 2020. In the meantime, on 6th March, 2020, the Board
responded to Arthur Cox stating that if the matter were remitted, it would not exercise
its discretion to seek additional information. The Board noted that the 2016 Act did
not contain a provision similar to ss. 131 to 133 of the Planning and Development
Act, 2000 (“the 2000 Act”) thus giving rise to concern about the ability of the Board
to fairly and effectively manage the submission of additional information and its
consequences. On 10th March, 2020 the applicant wrote to the Board and to Ravala
indicating its view that remittal was not an appropriate option. Thereafter on 11th
March, 2020, Arthur Cox wrote to the parties indicating that it was seeking to adjourn
the matter for three additional weeks to allow Ravala to consider its position. The
applicant’s solicitors responded on 12th March, 2020 to suggest that it was
inappropriate that the matter should be adjourned for such a lengthy period given that
proceedings in the Strategic Infrastructure Development list were intended to be fast-
tracked.
8. Subsequently, the matter was listed before me in the Strategic Infrastructure
Development list on 12th March, 2020 when a new firm of solicitors acting on behalf
of Ravala, McCann Fitzgerald, sought time to make submissions in support of an
application to continue to defend the proceedings notwithstanding the approach
proposed by the Board. I directed that written submissions should be exchanged.
The case made by Ravala
9. Short written submissions were delivered on behalf of the applicant on 17th
March, 2020. In those submissions, Ravala drew attention to the significant body of
case law which has recognised the right of the holder of a planning permission to be
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heard in opposition to a judicial review challenge to that permission. Among the
authorities cited by Ravala is the decision of the Supreme Court in O’Keeffe v. An
Bord Pleanala [1993] 1 I.R. 39 where the Supreme Court joined the beneficiary of the
planning permission as a party to the judicial review proceedings in that case. Ravala
also referred to the long line of authority (which includes McIlwraith v. Judge Fawsitt
[1990] 1 I.R. 343) where the courts have accepted that, in certain circumstances, the
legitimus contradictor in judicial review proceedings may be someone other than the
respondent decision-maker.
10. Ravala also referred to a number of decisions where a notice party has been
allowed to defend a decision notwithstanding that the decision-making body had
either conceded the case or had not defended the case. These include Pearce v.
Westmeath County Council [2016] IEHC 477 where the owner of a quarry was
allowed to defend a decision notwithstanding that the respondent County Council did
not file any statement of opposition; Hunter v. Environmental Protection Agency
[2013] IEHC 591 where, according to Ravala, a holder of a waste licence was
permitted to defend a decision of the EPA notwithstanding that the EPA had conceded
according to Ravala, the Commissioner of Valuation was allowed, as a notice party, to
defend a decision that the respondent tribunal did not seek “to stand over”. Ravala
made the case that it would suffer an injustice if it was not allowed to defend the
proceedings. In the first place, it argued that the concession made by the Board
relates to the sufficiency of the evidence (in particular the bird survey work) put
before the Board by Ravala. It was submitted that the concession therefore comprises
“an indirect criticism of the Developer and the work done by ecologists and other
professionals that contributed to the application made. Those professionals have not
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been heard”. In addition, Ravala argued that the burden of proof is on the applicant
and that Ravala should be entitled to an opportunity to persuade the court to form a
different view of the applicant’s case to that formed by the Board.
The response of the other parties
11. The solicitors acting on behalf of the Board and on behalf of the applicant
responded to the effect that the court could not properly reach a conclusion in relation
to the application of Ravala without sight of Ravala’s intended opposition papers. In
addition, very helpful written submissions of counsel were made available to the court
by the solicitors acting on behalf of Louth County Council (“the Council”) which
identified a number of relevant authorities and also took issue with the way in which
Ravala had characterised the decisions cited in para. 10 above.
12. In light of the observations made on behalf of the Board and the applicant, by
order made by me on 19th March, 2020 I directed Ravala to serve a draft notice of
opposition and supporting affidavits and I gave liberty to all parties to thereafter file
written submissions by email. In giving those directions, I explained that, in order to
resolve the issue as to whether Ravala should be allowed to continue to defend these
proceedings notwithstanding the concession by the Board that its decision should be
quashed, it was essential that Ravala should set out the factual basis on which it
contends that the claim made by the applicant can be defended. For reasons which it is
unnecessary to record here, there was some delay on the part of the solicitors for
Ravala in preparing the draft statement of opposition and affidavits but ultimately
those documents were circulated to all parties by email of 21st April, 2020. It should
also be noted, for completeness, that, in light of the restrictions arising as a result of
the ongoing Covid-19 pandemic, each of the parties agreed that this issue could be
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determined by the court solely on the basis of the written observations submitted by
the parties.
The grounds on which Ravala seeks to defend the screening decision of the
Board
13. In the draft statement of opposition circulated in April 2020, Ravala confined
itself to the issue which arises in relation to the screening assessment in the context of
the SPA. For completeness, it should be noted that Ravala opposes the balance of the
grounds on which the applicant seeks relief in these proceedings but, for the purposes
of the present application, it confines itself to the screening issue. In its statement of
opposition (and in the supporting affidavits) Ravala took issue with the
characterisation of the survey completed on 24th May, 2018. Ravala contended that
the survey was carried out in accordance with best practice methodology and was
undertaken during the optimal season for such surveys. In addition, Ravala contended
that the SPA is not adjacent to the development site and that any possible ecological
connection between the SPA and the site is interrupted by “highly modified land use,
comprising industrial development (namely … the Drogheda Port Company Murflo
jetty and the FloGas Drogheda Marine Terminal), a wastewater treatment plant,
roads … and tall trees that interrupt any direct line to the estuary”.
14. Ravala also made the case that the site survey found nothing of value or
interest to the bird species which are listed as qualifying interests for the purposes of
the SPA. Furthermore, Ravala contended that no evidence has been provided by the
applicant to suggest that any bird species of special conservation interest has been
observed at the development site. In para. 16 of the statement of opposition, Ravala
denied that there is any prospect of indirect disturbance. In the same paragraph,
attention is drawn to the Screening Report for appropriate assessment prepared by
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Openfield Ecological services which was submitted by Ravala to the Board.
Paragraph 16 of the statement of opposition records that the report stated that indirect
disturbance is unlikely to occur and the point is made in the same paragraph that the
language used in the report is consistent with a determination that the proposed
development is not likely to have a significant effect on any European site. This is
reiterated in para. 31 of the statement of opposition (which addresses the complaint
made by the applicant in respect of anthropogenic disturbance). In para. 32 of the
statement of opposition, it is accepted that, in other material before the Board, it was
stated that areas of the SPA are exposed to moderate or high disturbance from human
activity including dog walking and horse riding. However, it is contended that the
locations of such activity are remote from the development site. It is also contended
that relevant areas of the SPA are not easily accessed from the development site.
15. With regard to the decision of the Board in respect of the campsite (ref
302948) to which specific reference was made in para. 20 of Part E of the applicant’s
statement of grounds, Ravala made the case that this is materially different from the
development site, being located within 30 metres and 120 metres of the SPA and
separated from it only by a 1.5 metres to 3.0 metres high berm of soil dominated by
grassland. Ravala also highlights that the decision mentioned in the Board’s
solicitor’s letter of February, 2020 does not relate to the campsite but to a
development by Shannon Homes Ltd which post-dates the commencement of these
proceedings and therefore does not form part of the grounds on which relief has been
sought in these proceedings. In addition, without prejudice to that contention, Ravala
maintains that there are significant differences between the Shannon Homes site and
the development site the subject matter of these proceedings. In particular, Ravala
contends that the Shannon Homes site is located further from Drogheda town centre,
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is separated from the SPA only by agricultural lands and is designed within link roads
that would facilitate user access to the SPA. Ravala also highlighted that, in the
Shannon Homes case, the planning authority, the inspector appointed by the Board
and the Board itself all agreed that there was insufficient information available to
conclude that appropriate assessment of the site was not required. In contrast, Ravala
suggested that, in the present case, the planning authority, the in-house ecologist
assisting the Board, the inspector appointed by the Board and the Board itself all
agreed that there was sufficient information available to conclude that appropriate
assessment was not required.
16. In circumstances where the decision of the Board in the Shannon Homes case
postdates the decision under challenge and also postdates the order granting leave to
commence these proceedings, the case is made in the statement of opposition that, if
the applicant had wished to rely on the Shannon Homes decision as a ground to
question the validity of the permission granted in respect of the Ravala development,
leave of the court would be required under s. 50(8) of the 2000 Act. In addition, it is
argued that, if the Board had wished to rely on a matter as a basis to refuse permission
(other than an issue raised by one of the parties in the proceedings before it), the
applicant for permission would be entitled, whether as a matter of natural justice or in
accordance with s. 137 of the 2000 Act, to advance notice and to an appropriate
opportunity to make submissions or observations. It is, therefore, argued that Ravala
should not be prejudiced or put at a disadvantage by reason of an event which arose
after the planning process in this case has concluded.
17. Complaint is also made in the statement of opposition that the explanation
given in the letter of 18th February, 2020 sent by the solicitors for the Board (quoted
in para. 3 above) does not identify the “frailty” in the decision of the Board made in
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this case on 27th November, 2019. In addition, it is argued that no attempt has been
made to describe the relevant similarities or differences between the Shannon Homes
matter and the present matter.
18. With regard to the use of the subject site by bird species, Ravala draws
attention to the report of the Board’s inspector in this case which recorded that:-
“No evidence of wintering birds using the proposed development site has been
presented, however, it’s unclear if this was considered at all in the screening
or biodiversity assessment. The majority of the special conservation interest
species listed for this SPA favour intertidal muds and sand flats for feeding
with species such as Golden Plover and Lapwing using alternative habitats
adjacent to the site such as grasslands occasionally. An examination of the
wider area shows that there are extensive agricultural grasslands available to
wintering birds east of the proposed development and it is unlikely that the
loss of this area of… land could affect the ex-situ movements and feeding
areas for bird species associated with the SPA.”
19. In the statement of opposition, it is admitted that the low tide count for 1st
February, 2012 records Lapwing observed within the SPA but it is contended that no
inference can be drawn that, upon high tide, those Lapwing would be displaced to the
site of the proposed development. In this context, the statement of opposition refers to
the analysis carried out by the in-house ecologist employed by the Board and by the
inspector who recorded that there are extensive agricultural grasslands available to
wintering birds east of the proposed development and that it is unlikely that the loss of
this area of land could affect the ex-situ movements and feeding areas for bird species
associated with the SPA.
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20. The statement of opposition also contains what is described as a “general
objection” in which Ravala objects to weight being given to any of the opinions
expressed in the affidavit sworn by Mr. Fred Logue on 20th January, 2020 grounding
the application for leave to bring judicial review proceedings. The statement of
opposition contends that Mr. Logue was, at the time leave was granted, one of two
shareholders and one of two directors of the applicant but that he was also the solicitor
for the applicant. At para. 64 of the statement of opposition, the following contention
is made:-
“More generally, the parties and the Court must remain vigilant to the risk,
even if entirely inadvertent, of conflict between the respective interests and
duties of client, expert and solicitor on record, where the same person inhabits
all three roles.”
21. The intended statement of opposition is supported by an affidavit of Michael
Murphy, a director of Ravala, and also an affidavit of Pádraic Fogarty, ecologist, who
prepared the screening report, the Natura Impact Statement and other documents in
support of the application made by Ravala for permission for the proposed strategic
housing development. I do not propose, however, to rehearse everything stated in
those affidavits. The case which Ravala intends to make is outlined in sufficient detail
in the intended statement of opposition (which I have attempted to summarise above).
It is sufficient to note that Mr. Murphy, in his affidavit, reiterates the points made in
the statement of opposition. In addition, he seeks to call into question the weight to
be given to averments made by Mr. Logue on behalf of the applicant in the affidavit
verifying the applicant’s statement of grounds. I am not, however, persuaded that the
material on which Mr. Murphy relies provides any sufficient basis to take that course.
Insofar as Mr. Fogarty’s affidavit is concerned, he provides evidence consistent with
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the points made in the statement of opposition. With regard to the potential for
anthropogenic disturbance, Mr. Fogarty, in his affidavit, quoted from the inspector’s
report as follows:-
“…Human activities can cause disturbance to birds and thereby affect their
distribution and use of the area. The potential for anthropogenic disturbance
to wintering birds for which the SPA is designated is examined in this
screening for AA as follows and as referred to in the internal support note
from the An Bord Pleanála Ecologist:
• The development of 450 housing units could result in increased
numbers of people seeking safe areas for recreational walking
including dog walking. In an examination of disturbance (MPWS,
2013) the most common activity recorded was walking, including with
dogs with greatest levels of disturbance from these activities recorded
in Baltray and at Lady’s Finger, which are not located in proximity to
the proposed housing development.
• The sub areas of the SPA in closest proximity to the proposed
development and which may be vulnerable to disturbance include
areas known as The Arp and Port Beaulieu are located to the north of
the R150 and along the mouth/Estuary area of the River Boyne. These
areas were not characterised with such disturbance issues including
walking with dogs in the 2011/2012 assessments. This may be due in
part to the fact that the road does not have a pedestrian footpath and
there is no direct access to the wetlands area. Due to road safety
issues, the area is unlikely to be used by numbers of recreational
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walkers or new residents walking dogs that could have any measurable
effect on the adjacent SPA”.
The position taken by the Board
22. In the written submissions delivered on behalf of the Board, counsel for the
Board very properly accept that, as a matter of law, a notice party may be allowed to
continue to defend proceedings. In those circumstances, the submissions do not
address the points raised by Ravala or by the applicant in response. This is subject to
the concern of the Board (as expressed in the submissions), in relation to any potential
costs liability in circumstances where the Board has, at an early stage in the
proceedings, conceded the issue in relation to screening for appropriate assessment. It
is also explained in the Board’s submissions that the Board is conscious of the need
for scientific certainty in the context of appropriate assessment both as a matter of
national law and EU law. The submission explains that the Board considered the
proceedings and the decision to grant permission in light of the report of the Board’s
inspector and the Board’s own decision in the Shannon Homes case. The stated
reason for refusal in the Shannon Homes case was:-
“Having regard to the proximity of the subject site to the Boyne Estuary
SPA…, the factors that can adversely affect the achievement of the
conservation objective to maintain favourable conservation conditions of the
non-breeding waterbird special conservation interest species listed for the
designated site, namely anthropogenic disturbance and ex-situ factors, and the
absence of a Stage 2 assessment on the potential for likely significant effects
in relation to these factors, on the basis of the information provided with the
application and appeal, including the Natura Impact Statement, and in light of
the assessment carried out, the Board, cannot be satisfied, beyond reasonable
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scientific doubt, that the proposed development, either individually or in
combination with other plans and projects, would not adversely affect the
integrity of Boyne Estuary SPA, in view of the site’s conservation objectives
and qualifying interests. The Board is, therefore, precluded from granting
planning permission for the proposed development”.
23. At para. 2.5 of the submissions, it is explained that the Board considered that,
on reflection and in light of the decision of 11th February, 2020 to refuse permission
for the Shannon Homes Development, it could not continue to defend these
proceedings. Importantly, the submissions continue in the following terms in para.
2.6:-
“Insofar as [Ravala] … states at para. .45 of its intended Statement of
Opposition that it relies on the entire of the note prepared by the Board’s in-
house ecologist … as well as the entire of the Inspector’s Report, including in
particular s. ’11.0 Appropriate Assessment’ (at pages 0629-43), the position
of the Board is that it is not standing over the ecologist’s note, the Inspector’s
Report (insofar as it addressed the ex-situ impacts on the Boyne Estuary SPA
only) and its own decision of 27th November, 2019 (again insofar as it
addressed the ex-situ impacts on the Boyne Estuary SPA) for the … reasons
[stated in paras. 2.7 to 2.9]…”
24. At paras. 2.7 to 2.9 of the submissions, the following reasons are given in
support of the passage quoted in para. 23 above:-
(a) In the first place, it is explained that the Board was conscious of the location
of the Boyne Valley SPA in relation to both development sites as well as the
proximity of the proposed development sites both to the SPA and to each
other;
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(b) Secondly, the Board was conscious that the same ecologist, Openfield
Ecological Services, had prepared the appropriate assessment screening
documentation and Natura Impact Statement (“NIS”) for the application for
the proposed development in issue in these proceedings and also for the
purposes of the Shannon Homes case;
(c) Attention is also drawn to the fact that the inspector’s report in the Shannon
Homes case was completed on 23rd January, 2020 which is the same date as
the applicant instituted these proceedings. In those circumstances, the
inspector made her recommendation on that application for permission
independently of the fact that the applicant had instituted these proceedings
and in circumstances where the Board did not yet have knowledge of the case
made by the applicant in these proceedings.
(d) At para. 2.9 it is stated that the Board is now satisfied that the correct approach
to the issue of the anthropogenic disturbance and ex-situ factors in relation to
sites proximate to the Boyne SPA is as set out in the Shannon Homes decision
and not the decision which is challenged in these proceedings.
25. The Board suggests that, if the court is prepared to permit Ravala to defend
the proceedings, Ravala should be made liable for costs or, in the alternative, Ravala
should indemnify the Board for any costs exposure over and above the costs which
the Board accepts flow from its acknowledgement that it would concede an order in
certiorari on 18th February, 2020. The Board submits that, if the case is to proceed, it
should be dealt with in a modular way with the screening issue being dealt with as a
preliminary issue and where the transcripts of the hearing are circulated to all parties
(including the Board). The submissions make clear that the Board does not propose to
participate in the trial of such a preliminary issue nor to attend the trial unless directed
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to do so by the trial judge. The submissions also made clear that the Board reserves
its position in relation to the balance of the case pleaded in the applicant’s statement
of grounds.
The position taken by the applicant
26. In the submissions of counsel for the applicant, attention is drawn to the
change of position adopted by Ravala in these proceedings. In the immediate
aftermath of the letter of 18th February, 2020 from the solicitors for the Board, Ravala
made no suggestion that it proposed to seek leave to defend the proceedings
notwithstanding the concession made by the Board. On the contrary, as noted in para.
6 above, its then solicitors wrote to the Board confirming that they were instructed to
apply to the court for an order remitting the matter to the Board on the basis that
further information could then be sought by the Board. The submissions highlight
that it was not until the morning of 12th March, 2020 (when the matter appeared in the
list) that the first intimation was given that Ravala might seek to defend the
proceedings.
27. While the submissions make clear that the applicant does not propose to
engage on the merits of the draft statement of opposition submitted by Ravala, the
submissions identify the considerations which the applicant suggests should inform
the decision of the court as to how to proceed. In summary, these are:-
(a) In the first place, the applicant submits that the concession of the Board is of
“the utmost significance in a case of this sort”. The reason advanced by the
Board for its concession corresponds to the grounds raised by the applicant (in
particular at para. 27 of its statement of grounds where it is contended by the
applicant that screening out the possibility of significant impacts on water-
birds using the SPA were not conclusions that could be reached beyond
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reasonable scientific doubt as required by the decision of the CJEU in Case C-
127/02 Waddenzee). Counsel stress that the Board is an expert body and its
concession is of particular importance in the context of the Waddenzee test.
(b) The applicant also submits that the attempt by Ravala to rely on the
McIlwraith line of jurisprudence is misplaced. The essence of those cases is
that there are certain types of decision makers (such as judges) for whom it
would be inappropriate to participate in judicial review proceedings. In such
circumstances, another party to the proceedings or process before the relevant
decision-maker will act as legitimus contradictor.
(c) The applicant also suggests that it is particularly relevant that the Board is a
disinterested party. That said the applicant submits that the significance of the
concession made by the Board goes beyond any concept of disinterested party.
The applicant refers, in this context, to the observations of Barrett J. in
Bord Pleanala [2019] IEHC 85 both of whom stressed that, in the context of
discussion about the duty of candour owed by a public authority in judicial
review proceedings, the object of the public body should be not to win the
litigation at all costs but to assist the court in reaching the correct result.
(d) The applicant also submits that the Board’s concession must be considered in
the context of the decision of the CJEU in Case C-378/17 Minister for Justice
and Equality v. Workplace Relations Commission ECLI:EU:C:2018:979. In
that case, the CJEU, at para. 39, made clear that the principle of primacy of
EU law requires not only the courts but all bodies of the Member States to
give effect to EU law. The applicant submits that the effect of that principle
operates both at the level of the Board concession and at the level of the
Page 20 ⇓
20
court’s own obligations in these proceedings to give full effect to EU law.
Insofar as the Board’s concession is concerned, the applicant draws attention
to fact that the Board is not a body which ordinarily stands aside from the
judicial review arena. The Board actively defends its decisions. By its
concession in this case, it has recognised that the screening decision here
should not be defended. Insofar as the court is concerned, the question is
asked rhetorically as to how a court could uphold a decision notwithstanding
the acknowledgement of the decision-maker that it is in breach of the
requirements of EU law in a manner which deprives it of jurisdiction. The
applicant submits that, if the court were to uphold the decision in the face of
the Board’s concession, this would raise significant issues of European law
which would require a reference to the CJEU.
28. Insofar as the issue in relation to EU law is concerned, the applicant submits
that Article 6 (3) of the Habitats Directive (as interpreted by the CJEU) requires the
competent authority to exclude the possibility of significant effects on the relevant
qualifying interest. In circumstances where the Board, as the competent authority, has
accepted that there was not sufficient evidence for its original screening decision, the
applicant submits that it is not clear how the court could come to an alternative
decision. In this context, the applicant draws attention to s. 177 S (2) of the 2000 Act
which makes the Board a competent authority for the purposes of Article 6 of the
Habitats Directive. Section 177 S (2) provides:-
“The competent authority in the State for the purposes of this Part and
Articles 6 and 7 of the Habitats Directive, shall be …
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21
(f) in relation to a proposed development (other than development referred to
in paragraph (g) or (h)), the planning authority to whom an application for
permission is made or … the Board, as the case may be,
… “.
29. While the applicant accepts that a notice party may often have valid points to
make in opposition to judicial review proceedings against a decision-maker (who has
made a decision in that party’s favour), the present case raises very different
considerations in circumstances where the designated competent authority has
explicitly accepted that the decision-making process was not valid.
30. As a separate point, the applicant submits that any presumption of validity
which ordinarily would attach to a decision of the Board cannot apply where the
Board has conceded that its own decision is not valid.
31. With regard to the authorities cited by Ravala (namely those mentioned in
para. 10 above) the applicant submits that these cases do not address a situation where
a notice party is seeking to uphold a decision where the decision-maker in question
has decided that it did not have jurisdiction to make the decision. In this context, it is
important to bear in mind that it is now well established that a decision made in
breach of Article 6 (3) of the Habitats Directive is a decision made in excess of
jurisdiction.
32. The applicant also suggests that Ravala is essentially seeking to attack the
decision of the Board to make the concession outlined in the letter of 18th February,
2020 such as to attract the application of s. 50 (2) (a) of the 2000 Act. Under s.50 (2)
(a), the validity of any decision made by the Board in performance of a function under
the 2000 Act cannot be challenged otherwise than by way of an application for
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22
judicial review under O.84. It is also suggested that Ravala is out of time to initiate
any judicial review proceedings in relation to the concession.
The position taken by the State Respondents
33. In para. 14 of the written submissions of counsel on behalf of the State
respondents, it is acknowledged that the screening issue does not directly affect those
respondents. Nonetheless, the State respondents, on principle, oppose the application
by Ravala to defend these proceedings. They submit that the matter has effectively
been determined by the Board’s concession of certiorari. They suggest that, in these
circumstances, the doctrine of judicial restraint should apply. In this context, they
refer to the observations of Kelly J. (as he then was) in Usk v. An Bord Pleanala
[2007] IEHC 86 where he said at para. 23:-
“I will grant certiorari solely on the ground conceded by the Board. Whilst the
applicant raises other questions which might arguably provide additional
grounds for granting certiorari, it is not in anybody's interest that the public
time of the court or the expensive time of the litigants and their advisers be
expended on such an exercise. Judicial restraint dictates that the court should
confine itself to facts and findings necessary to support the order
of certiorari. It should not go beyond them”.
34. Although Usk concerned an attempt by an applicant to pursue further relief
against the Board notwithstanding the concession made by the Board in that case in
respect of a single ground, the State Respondents submit that the logic underlying the
decision applies mutatis mutandis to the present case. As with the applicant in Usk,
the State Respondents suggest that Ravala here is seeking to vindicate its rights
through engaging in costly litigation in circumstances where the validity of the
underlying decision has already been conceded.
Page 23 ⇓
23
35. In their submissions, counsel for the State Respondents also suggest that the
only proper legitimus contradictor in relation to the screening issue is the Board itself.
They argue that the present case can be distinguished from a situation where a notice
party may be entitled to defend a decision of a public body in circumstances where the
decision-maker has elected to remain neutral and does not oppose the relief sought
and where the interests of the notice party are likely to be significantly affected by the
outcome of the proceedings. In such cases, the decision-maker has elected not to
participate in the proceedings and thus not to exercise its role as legitimus
contradictor. By expressly consenting to an order of certiorari, the State
Respondents argue that the Board has exercised its function as the primary respondent
to the proceedings such that the court is effectively functus officio save as to the
making of final orders.
36. Like the applicant, the State Respondents also submit that, if Ravala were
permitted to defend the decision which the Board has already conceded, this would be
tantamount to permitting a judicial review of the Board’s decision to concede that the
relevant evidence was not sufficient. The State Respondents also make a similar
argument to the applicant to the effect that the Board is the competent authority in the
State for the purposes of Article 6 of the Habitats Directive.
The position taken by the Council
37. On behalf of the Council, very helpful written submissions were made
available to the court at an early stage by its counsel. In those submissions, counsel
drew attention to the decision of Barniville J. in Fitzgerald v. Dun Laoghaire
Rathdown County Council [2019] IEHC 890 in which the court strongly reiterated and
adopted the approach taken by Kelly J. in Usk. In that case, the applicant had sought
to argue additional grounds of challenge to a decision of the respondent Council not
Page 24 ⇓
24
withstanding that the Council had conceded the case on a single ground. At para. 76
of his judgment, having previously referred to Usk, Barniville J. said:-
“… I am satisfied that while the applicant in the present case has advanced
grounds of challenge which might arguably provide additional grounds for an
order of certiorari in respect of the Council's decision, it is not in the interests
of the applicant or of the notice party or of the Council that the resources of
the court or of the parties themselves or others should be expended on hearing
and determining those other grounds of challenge. This is a case in which, in
my view, it is appropriate to exercise judicial restraint. Court time is valuable
and precious and should not be taken up in the hearing of issues which it is
unnecessary to determine in light of a concession made by one or more of the
parties to proceedings”.
38. In paras. 11 and 12 of the written submissions, counsel highlighted an issue
which, in my view, is particularly significant for present purposes. He said:-
“11…. the ground that the Board has conceded is one that is based on there
not being sufficient evidence before the Board to reach its conclusion that
significant effects on the Boyne Estuary SPA should be screened out. Thus, the
Developer will have to show that …, contrary to the Board’s view, the
evidence that was before the Board established that the Development was not
‘likely to have a significant effect [on the Boyne Estuary SPA] either
individually or in combination with other plans or projects’ (see Article 6 (3)
of the Habitats Directive).
12. In this regard, the Developer cannot truly be described as a legitimus
contradictor, it is not competent to tell this Honourable Court how the Board
Page 25 ⇓
25
arrived at its decision, only the Board can do that; and, the Board has
conceded that it was a legal error in how it made its decision”.
39. In the same submissions, counsel also distinguished each of the authorities on
which Ravala had relied in its submission (namely the authorities mentioned in para.
counsel highlighted that, in that case, the decision-maker did not oppose the
application for judicial review but did not consent to it either. With regard to Hunter
v. Environmental Protection Agency [2013] IEHC 591, counsel identified that the
judgment of Hedigan J. in that case was concerned solely with the costs of the
proceedings. In that case, an application for costs by the applicant was made as
against a notice party that delayed (for more than one year) before conceding the case
notwithstanding that the decision-maker itself had conceded the case at an earlier
stage. Counsel stressed that the judgment does not deal with whether or not the notice
party ought to have been permitted, in the first place, to defend the decision-maker’s
decision notwithstanding the concession made by the decision-maker itself.
suggested that, there, Murphy J. did no more than note that the task of standing over
the respondent tribunal’s decision had been left to the notice party but that she neither
endorsed nor condemned that approach. The task of acting as legitimus contradictor
in that case was left to the Commissioner of Valuation. In my experience, that is not
unusual. It must be kept in mind that the Valuation Tribunal is an adjudicative body
and it would not ordinarily get involved in defending judicial review proceedings
taken against it. When a decision of that tribunal is challenged in judicial review
proceedings by one of the parties appearing before it, the opposing party to the dispute
will act as legitimus contradictor. In Boland, it was the rate payer who challenged the
Page 26 ⇓
26
decision of the Tribunal. Thus, it was the Commissioner who acted as legitimus
contradictor. However, there have also been cases where the Commissioner has
taken judicial review proceedings against the Tribunal. In such cases the relevant rate
payer will be the relevant legitimus contradictor (albeit named as a notice party). An
example is to be found in the recent decision of Simons J. in Commissioner of
Valuation v. The Valuation Tribunal [2019] IEHC 23.
41. In his submissions, counsel very properly accepted that there may well be
circumstances where it would be appropriate to grant leave to a notice party to defend
proceedings notwithstanding a concession made by the decision-maker concerned but
he submitted that this is not such a case. At para. 23 of the written submissions,
counsel said:-
“23. It is … submitted, the issue of whether a notice may defend a decision
when the decision-maker does not, is a matter that this Honourable Court
ought to decide on a case by case basis in light of the concession given by the
decision-maker and the circumstances of the case. For example, if the
decision-maker is conceding the case as a matter of convenience or for an
improper reason without having a legally sound reason to concede; or, if the
decision-maker is relying on an interpretation of the law and/or facts and the
notice party wishes to posit a bona fide alternative interpretation”.
Final observations of Ravala
42. In the written observations dated 15th May, 2020 submitted by the solicitors
for Ravala, it is noted that no party has yet engaged with the substance of the intended
defence of Ravala. It is accordingly suggested that the court should determine the
application on the basis that the intended defence is not contradicted. In my view, that
is not an approach which I can properly take. In this context, it must be borne in mind
Page 27 ⇓
27
that, as noted in para. 11 above, the reason why Ravala’s intended opposition papers
in relation to the screening issue were directed to be furnished was simply that the
court could not properly reach a conclusion in relation to Ravala’s application without
knowing the case which Ravala would intend to make in relation to this issue in the
event that it was given leave to defend the proceedings notwithstanding the
concession made by the Board. It was never suggested or intended that any of the
other parties would respond by way of evidence to the intended opposition papers.
The purpose of the direction given by me on 19th March, 2020 was simply to enable
everyone to understand the nature of the case which Ravala proposes to make so that
each of the parties could address the issue as to whether Ravala should be given leave
to defend in an informed and targeted way. It is true that Mr. Logue, the solicitor
acting on behalf of the applicant swore an additional affidavit. However, that was
merely for the purposes of exhibiting the correspondence which was discussed in
certain of the submissions delivered by the parties. In the same affidavit, Mr. Logue,
for understandable reasons, also addressed the issue raised in para. 64 of the statement
of opposition (quoted in para. 20 above) and in the affidavit of Mr. Murphy sworn on
behalf of the applicant. In para. 2 of his affidavit Mr. Logue stated:-
“2. I say that the Developer … makes a number of allegations and innuendos
as to my role in these proceedings. These allegations have not grounded any
application by the Developer and the legal purpose of including them is
entirely unclear. There is therefore no need for me to address them further at
this juncture except to record that I have conducted myself in this (and, insofar
as relevant, any other proceedings) entirely in accordance with my
professional obligations and my obligations as an Officer of this Honourable
Page 28 ⇓
28
Court. If the Developer’s application is granted and any legal issue arises
from those allegations I will respond in full as required”.
43. In their final observations, the solicitors for Ravala submit that the weight to
be given to the concession by the Board is a matter for the substantive hearing of the
application for judicial review. They raise a significant number of other questions
but, having done so, they then suggest that it is neither necessary nor appropriate for
the court to resolve them at this interlocutory stage. These questions are set out in
para. 3 of the final observations and they include the following:-
(a) In the first place, Ravala raises a question as to how the concession made
by the Board in this case affects the ordinary burden of proof on the applicant.
They question the applicant’s suggestion that the burden of proof is reversed
in such circumstances. Even if the burden of proof is reversed (which Ravala
does not accept) the question is asked whether it is sufficiently clear that he
grounds for intended opposition by Ravala are doomed to fail? The solicitors
submit that it would be inappropriate to form any view that those grounds are
doomed to fail where no one has contradicted the only expert evidence on
affidavit before the court namely the affidavit of Mr. Fogarty sworn on behalf
of Ravala;
(b) The next question raised is whether the concession by the Board affects the
normal presumption of validity. Is the presumption entirely lost? Can it be
said that the concession carries greater weight than the original decision?
(c) Ravala also raises a question as to whether the concession comprises a
decision to which s. 50 of the 2000 Act applies. The solicitors for Ravala
expressly reserve all rights in relation to questioning the validity of the
concession and they suggest that any application for leave to apply for judicial
Page 29 ⇓
29
review of (or any other remedy in connection with) the concession would be
premature pending the outcome of the present application.
(d) With regard to the usual approach of the court to treat the Board as a
disinterested party, Ravala raises a question as to whether this approach should
be taken in the present case. In this context, the observations state:-
“There must be many factors relevant to whether a party is interested
to defend legal proceedings? It is clear from the submissions made (by
all parties) that there is sensitivity in relation to legal costs,
particularly for authorities whose expenditure is scrutinised in the
public domain. There is a particular sensitivity regarding an entirely
separate decision to refuse permission to a third party: certainly, that
third party, if disgruntled, might be encouraged to question the validity
of that refusal if the Board was to defend the developer’s permission.
More generally, the Board might choose to prioritise its scarce
resources and seek respite from the volume of legal proceedings and
eliminate any prospect of an unfavourable outcome. It would be
inappropriate to assume too much, of course, in circumstances where
the position of the Board is recorded only in correspondence and
submissions, not in any formal order or attested on affidavit”;
(e) The next question raised by Ravala relates to the extent of the evidence and/or
record of the concession which should be available to the court, before
deciding on the weight to allocate to that concession. While the solicitors for
Ravala make no criticism of the Board for the fact that the Board’s position is
noted only in correspondence from its solicitor and submissions from its
counsel, Ravala submits that greater formality should be required. Ravala
Page 30 ⇓
30
submits that it is relevant to know whether the members of the Board who
made the original decision to grant permission have made the concession after
a change of mind on their part or whether a differently constituted Board
(which disagreed with the original decision to grant permission) has decided to
make the concession.
44. The submissions also highlight that the planning permission in issue is for a
strategic housing development comprising 450 homes adjacent to Drogheda train
station and that the State has identified the lands as a key development site in an urban
area of high demand for housing and for accelerated delivery of that housing. This is
evidenced by the commitment of funding to provide public infrastructure under the
Local Infrastructure Housing Activation Fund in accordance with Pillar 3 of
“Rebuilding Ireland: An Action Plan for Housing & Homelessness”. The solicitors
for Ravala submit that “this public interest should slow the Court from denying the
Developer an opportunity to defend that permission”.
The final observations on behalf of the applicant
45. In their final observations, counsel for the applicant note that Ravala has not
provided any substantive response to the points made in their previous submissions
regarding the significance of the concession made by the Board and in particular in
relation to the position of the Board as the competent authority for the purposes of the
Habitats Directive.
46. Counsel for the applicant also submit that, in effect, the court is being invited
by Ravala to embark on its own screening assessment (in lieu of the screening
assessment which the Board has conceded was incorrect) on the basis of material not
before the Board and on which the public will have no opportunity to comment. It is
submitted that such an approach would involve the court assuming the role of
Page 31 ⇓
31
competent authority conferred by statute on the Board and breaching the requirements
of public participation.
47. With regard to the questions raised by the solicitors for Ravala, counsel for the
applicant submit that the notice party cannot properly obtain a substantive hearing by
saying that it will address some or all of these issues at such a hearing.
48. With regard to the suggestion made by Ravala about the importance of the
proposed development, counsel for the applicant submit that this is not a relevant
consideration and that it “cannot excuse the … continued failure to properly address
the significance of the Board’s concession despite being afforded numerous
opportunities to do so. The fact that the fast-track procedure available is not fast
enough for the Notice Party’s liking is no reason to prolong these proceedings once
the decision-maker has conceded that its decision was unlawful on a ground which
deprived it of jurisdiction”.
Discussion and analysis
49. There can be no doubt but that, as a general rule, a party in the position of
Ravala has a legitimate interest in upholding a decision of a planning authority in its
favour where that decision is challenged in judicial review proceedings. That right is
now firmly established in the law as evidenced by the authorities on which Ravala
relies namely O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, TDI Metro v. District
Judge Sean Delap [2000] 4 I.R. 337, Spin Communications v. Independent Radio and
201. While some of those authorities were not decided in a planning context, the
underlying principle is nonetheless applicable.
Page 32 ⇓
32
50. Equally, there can be doubt that, where, in judicial review proceedings, a
decision-maker chooses not to defend the proceedings, the relevant notice party with a
direct interest in upholding the decision under challenge, will ordinarily be entitled to
act as the principal legitimus contradictor in order to defend the decision under
challenge. It is therefore unsurprising that, in both Pearce v. Westmeath County
notice party in question defended the proceedings in place of the respondent decision-
maker.
51. However, neither Ravala nor any other party has identified any authority
where a notice party has defended a decision of a decision-maker under challenge in
judicial review proceedings in circumstances where the decision-maker in question
has gone further than simply choosing not to defend the proceedings and, instead, has
positively consented to an order of certiorari quashing the decision in question. The
cases on which Ravala purports to rely (as recorded in para. 10 above) plainly do not
constitute authority for this proposition. The observations made by counsel for the
Council (summarised in paras. 39-40 above) are clearly correct and, understandably,
Ravala has not made any attempt to respond to those observations.
52. Quite apart from authority, I cannot recall any instance, in the course of my
experience as a judge or in my previous practice at the Bar, where a notice party has
defended proceedings to trial in circumstances where the respondent decision-maker
has consented to an order of certiorari quashing the decision in question. Thus, for
example, very recently, in proceedings 2020 No. 309 JR O’Toole v. Minister of State,
Department of Housing Planning and Local Government, the applicant challenged a
decision of the respondent minister to grant a foreshore licence to the relevant notice
party to install a subsea fibre optic cable on the foreshore off Old Head, Louisburgh,
Page 33 ⇓
33
County Mayo. This related to an Irish spur of a trans-Atlantic fibre optic cable
extending from the United States to Denmark with branches to Ireland and Norway.
In the course of an application by the applicant for a stay on the licence pending the
determination of the proceedings, the respondent minister conceded that an order of
certiorari should be made in circumstances where, it appeared, the respondent minister
may have taken into account mitigation measures in a decision to screen out the
potential impact of the laying of the cable on a number of protected species including
cetaceans. As a consequence of the decision of the CJEU in Case C-323/17 People
over Wind v. Coillte ECLI:EU:C:2018:244, it is impermissible under Article 6 (3) of
the Habitats Directive to take mitigation measures into account at the screening stage.
In that case, the notice party, at approximately the same time the proceedings were
commenced, had already retained specialised vessels (which, on the evidence, were
extremely difficult to procure) for the purposes of laying the cable. Against that
backdrop, the notice party was intent on vigorously contesting the application for a
stay on the licence. The notice party had filed affidavits which suggested that, if a
stay were granted, costs of approximately $*redacted* would be incurred in respect of
the aborted cable laying process and that if, after conclusion of the proceedings, the
project were to resume, it would require 52 days of ship hire at $*redacted* per day
amounting in total to $*redacted* approximately. Nonetheless, when the Minister, on
the eve of the date scheduled for the hearing of the application for a stay, indicated
that he would consent to an order of certiorari quashing the decision to grant the
licence, the notice party, notwithstanding the very significant losses to which it
claimed to be exposed, accepted that the concession brought the proceedings to an
end.
Page 34 ⇓
34
53. Like the present case, the ground on which the Minister conceded certiorari in
the O’Toole case, related to Article 6 (3) of the Habitats Directive and in particular to
a decision reached, at the screening stage, that it was unnecessary to carry out a full
appropriate assessment. As the decision of the CJEU in Case C-127/02 Waddenzee
[2004] ECR I-07405 demonstrates, it is now well-established that appropriate
assessment must be carried out by a competent authority unless it is possible, on the
basis of objective information, to conclude, at the screening stage, that no risk exists
that the proposed development will have a significant effect on a protected site. This
is clear from paras. 43-44 of the judgment of the CJEU in that case:-
“43. It follows that the first sentence of Article 6(3) of the Habitats Directive
subordinates the requirement for an appropriate assessment of the
implications of a plan or project to the condition that there be a probability or
a risk that the latter will have significant effects on the site concerned.
44. In the light, in particular, of the precautionary principle, which is one of
the foundations of the high level of protection pursued by Community policy
on the environment, … and by reference to which the Habitats Directive must
be interpreted, such a risk exists if it cannot be excluded on the basis of
objective information that the plan or project will have significant effects on
the site concerned …. Such an interpretation of the condition to which the
assessment of the implications of a plan or project for a specific site is subject,
which implies that in case of doubt as to the absence of significant effects such
an assessment must be carried out, makes it possible to ensure effectively that
plans or projects which adversely affect the integrity of the site concerned are
not authorised, and thereby contributes to achieving, in accordance with the
third recital in the preamble to the Habitats Directive and Article 2(1) thereof,
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35
its main aim, namely, ensuring biodiversity through the conservation of
natural habitats and of wild fauna and flora”.
54. It is clear from that extract that, in carrying out a screening test, the
precautionary principle applies such that, in any case of doubt as to the absence of
significant effects, a full appropriate assessment must be carried out. This is so
notwithstanding that the words “likely to have a significant effect” are found in
Article 6 (3) of the Habitats Directive.
despite the use of the word “likely”, the threshold requiring full appropriate
assessment is a very low one. In that case, at paras. 53-57, Barniville J referred to the
very useful guidance given by Advocate General Sharpston in Case C-258/11
Sweetman v. An Bord Pleanála ECLI:EU:C:2012:743. As Barniville J. noted in
Kelly, the Advocate General referred, in para. 46 of her opinion, to the different
language versions of the words “likely to have a significant effect” in Article 6 (3)
which suggest that the test is “simply whether the plan or project concerned is
capable of having an effect” and that it is in that sense that the words “likely to” in the
English language version of Article 6 (3) should be understood. At para. 47 of her
opinion in Sweetman, the Advocate General continued:-
“47. It follows that the possibility of there being a significant effect on the
site will generate the need for an appropriate assessment for the purposes of
Article 6(3). The requirement at this stage that the plan or project be likely to
have a significant effect is thus a trigger for the obligation to carry out an
appropriate assessment. There is no need to establish such an effect; it is, as
Ireland observes, merely necessary to determine that there may be such an
effect”. (emphasis added)
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36
56. Later, as Barniville J. noted at para. 57 of Kelly, the Advocate General
suggested, at para. 49 of her opinion, that the threshold at the stage 1 screening stage
is a “very low one” which operates “merely as a trigger, in order to determine
whether an appropriate assessment must be undertaken of the implications of the plan
or project for the conservation objectives of the site”.
57. The fact that the threshold is such a low one must be borne in mind in
considering the present case. It follows from Waddenzee, at para. 44, that once a
doubt exists, at the screening stage, as to the absence of significant effects, a full
appropriate assessment must be carried out. That is the test which the court would
have to apply if these proceedings were to go to trial.
58. It is equally important to keep in mind that, as noted in para. 28 above, the
Board is the competent authority under the 2000 Act for the purposes of carrying out
both screening for appropriate assessment and, in the case of doubt, carrying out a full
appropriate assessment.
59. In my view the concession made by the Board in its solicitors’ letter of 18
February is highly significant in the context of the Waddenzee test. Subject to what I
say below, it seems to me that the effect of that concession made by the Board is to
raise a prima facie doubt as to the absence of risk of significant effects on the SPA. In
this context, it must be borne in mind that the Board is an expert body well
accustomed to carrying out both screening exercises and also full appropriate
assessments. While Ravala has sought to make the case that the only scientific
evidence before the court is the affidavit of Mr. Fogarty, the fact remains that the
Board itself is a body with vast experience of the appropriate assessment process and
a long history of involvement in cases before both the Irish courts and the CJEU in
relation to Article 6 (3). For a body of that kind to make a concession of that nature is
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37
not something that a court can lightly ignore. If such an expert body is expressing
itself in that way in the context of Article 6 (3), it would be difficult for a court, in the
absence of strong countervailing factors, to reach a conclusion that no doubt exists as
to the absence of significant effects.
60. I do not suggest that a concession made by the Board will always be
determinative. Each case would have to be considered in its own context. Nor do I
suggest that a notice party should never be entitled to defend proceedings where a
competent planning authority has, subsequent to the commencement of the
proceedings, conceded that its decision is infirm on grounds relating to the adequacy
of a screening test. However, in my view, in cases which turn on the adequacy of
screening, a court will be slow to look behind a concession made by a competent
planning authority unless the notice party is in a position to place sufficient objective
evidence before the court to demonstrate very clearly that, notwithstanding the
concession made by the competent authority, there is a sound basis to suggest that, at
trial, the Waddenzee test can be met (i.e. that there is no risk that the proposed
development may have a significant effect on the protected site or its conservation
objectives).
61. Likewise, there may be circumstances where, as counsel for the Council has
suggested, a decision-maker concedes a case as a matter of convenience or without
putting forward a proper reason for doing so. In such cases, the court would, very
likely, be prepared to allow the notice party concerned to defend the proceedings.
However, the present case is plainly not in that category. Notwithstanding the
suggestion made by Ravala in its final observations in relation to costs concerns, there
is nothing in this case to suggest that the Board, in making the concession set out in
the letter of 18th February, is motivated solely by a desire to avoid the costs of
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defending the proceedings. As noted previously, the Board has a long and well-
established tradition of actively defending its decisions. That is not to say that the
Board does not, from time to time concede that its decisions must be quashed. It is
entirely correct that such concessions should be made in cases where a public
authority such as the Board concludes that the decision under challenge is legally
infirm. There is an obvious public interest in public authorities acting in that way. In
some respects, this public interest is a facet of the duty of candour discussed by
v. An Bord Pleanala [2019] IEHC 85 respectively. As noted in the submissions made
by counsel for the applicant, it was emphasised in both of those cases, that the object
of the public body in judicial review proceedings should be not to win the litigation at
all costs but to assist the court in reaching the correct result.
62. Furthermore, by taking a decision at an early stage to concede the challenge to
the validity of its decision, the public authority will not only save the very significant
costs that would otherwise arise, but it will also ensure that valuable court time is not
spent on litigating an issue which should properly have been conceded in the first
place. Thus, the approach taken, for example, in O’Toole v. Minister for State for
Housing, Planning and Local Government, is to be encouraged. The legal advisors
and the decision-maker in such cases are to be commended for taking that approach.
63. In the present case, the Board, in the legal submissions prepared by counsel on
its behalf, has explained the basis for the decision taken by it to consent to an order of
certiorari. While Ravala has suggested that any such explanation should be put on
affidavit, I do not believe that it is necessary to do so in the present case given that the
Board’s decision is based on the approach taken by it in the Shannon Homes case and
given that the documents in that case are publicly available on the Board’s website.
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There is accordingly a perfectly logical basis for the Board’s decision and therefore it
cannot be suggested, in my view, that the decision was motivated by considerations of
cost. Nor could it be said that it was motivated by any of the other considerations
outlined in para. 41 above.
64. As noted in para. 60 above, I believe that the correct approach to take is to
consider whether there is sufficient objective evidence available to demonstrate very
clearly that, notwithstanding the concession proposed by the Board, there is a sound
basis to suggest that, at trial the Waddenzee test can be met. In this context, I do not
suggest that it is necessary that the court needs to be persuaded that Ravala will
definitely succeed at trial on this issue. It would be sufficient, in my view, that Ravala
could point to some objective material that could be relied upon at trial to make a
strong case to the effect that no doubt exists as to the absence of significant effects on
the SPA or the bird species for which the SPA has been designated.
65. It is clear from the statement of opposition and the affidavit of Mr. Fogarty
that Ravala places significant reliance on the note by the Board’s in-house ecologist
and the report of the Inspector appointed by the Board. However, unusually, in the
present case, the Board has indicated that it will not stand over the ecologist’s note,
the inspector’s report (insofar as it addressed the ex-situ impacts on the SPA only) and
its own decision of 27th November, 2019 (again insofar as it addressed the ex-situ
impacts on the SPA). As outlined in para. 59 above, where the competent authority is
not prepared to stand over its own material in the specific context of the screening
exercise, it seems to me to follow that this, in itself, is sufficient to raise, at least on a
prima facie basis, a doubt as to the adequacy of the exercise. In these circumstances,
if Ravala is to successfully persuade the court that, notwithstanding this stance on the
part of the Board, it should be permitted to defend the proceedings, it would need to
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place some other evidence before the court sufficient to demonstrate that, by reference
to objective material, there is a sustainable case to make that there is no doubt that the
proposed development will have no significant effects on the SPA or the bird species
in issue.
66. For this purpose, I have considered the statement of opposition and the
affidavits of Mr. Murphy and Mr. Fogarty. I have come to the conclusion that they fail
to demonstrate that the necessary objective material is available. While there are
undoubtedly arguments to be made that the development will not have any significant
adverse effect on the SPA, I do not believe that these arguments (as flagged in the
statement of opposition and affidavits) are sufficient to demonstrate that a strong case
can be made as to the absence of doubt. In this context, I note that the Board’s
ecologist (on whose views Ravala seeks to rely) noted that the development of 450
housing units could result in increased numbers of people seeking safe areas for
recreational walking, including dog walking. This identifies a potential risk arising
from anthropogenic disturbance. The ecologist referred, in this context, to evidence
within NPWS documents published in 2013 which showed that, at that time, the
greatest levels of disturbance from such activities were recorded in Baltray and at
Lady’s Finger which are not located in proximity to the proposed housing
developments. The ecologist also noted that the sub areas of the SPA in closest
proximity to the proposed development which might be vulnerable to disturbance
include areas north of the R150 and along the mouth/estuary area of the River Boyne.
The ecologist noted that those areas were not characterised with such disturbance
issues (including walking with dogs) in an assessment carried out in 2011/2012. The
ecologist then continued:-
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“This may be due in part to the fact that the road does not have a pedestrian
footpath and there is no direct access to the wetlands area. Due to road safety
issues, the area is unlikely to be used by numbers of recreational walkers or
new residents walking dogs that could have any measurable effect on the
adjacent SPA”. (emphasis added).
67. It is clear from the note of the ecologist that a significant housing development
comprising 450 units could result in increased numbers of people seeking safe areas
for walking (including dog walking). That accordingly has the potential (or risk to
use the language in Waddenzee) that, through human activities carried on in the
vicinity of the SPA, there could be ex-situ disturbance of bird species for which the
SPA has been designated. Having regard to the Waddenzee test, if that risk is to be
discounted at the screening stage, there should be some objective material available to
support a conclusion that such a risk can be safely excluded. There is, in fact, very
little evidence available within the statement of grounds and the affidavit of Mr.
Fogarty which addresses the risk created by human activity in the context of ex-situ
foraging (or other activities) of the bird species in question. Reliance has been placed
on the NPWS Conservation Objectives Supporting Document (“the Supporting
Document”) which suggests that ex-situ activity by the relevant bird species will
usually be in the immediate hinterland of the SPA or in lands which are ecologically
connected to the SPA. Ravala has also made a persuasive argument that the
development site is not ecologically connected to the SPA. However, that does not
address the issue as to the potential impact of increased anthropogenic effects outside
the development site arising from the activities of the occupants of 450 new homes.
The Supporting Document identifies that there are areas of the SPA itself - and also
areas adjacent to the SPA - which were subject to such amenity pressure at the time of
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preparation of the Supporting Document in December 2012. There was no suggestion
in that document that the area of the SPA closest to the development site was subject
to such pressures and the Board’s ecologist took the view (as set out in para. 21
above) that, due to road safety issues the area was unlikely to be used by numbers of
recreational walkers or new residents walking dogs that “could have any measurable
effect on the adjacent SPA”.
68. However, I cannot see any objective material in the papers before the court
which supports the conclusion reached by the ecologist in 2019 in relation to the
potential risk arising from anthropogenic pressures created by the activities of the
occupants of the 450 units in the proposed development . The ecologist does not
identify any objective material that supports her view. More importantly, Ravala has
not pointed to the existence of any material that could arguably be said to remove any
doubt as to whether the view expressed by the ecologist is correct. Nor has Ravala
pointed to any more proximate material (in terms of time) than the information
contained in the studies referenced by the Board’s ecologist which address the
position as of 2012. In the absence of such material, I do not believe that Ravala can
be said, at this point, to have established a sufficient case to persuade the court that it
should be allowed to defend the proceedings notwithstanding that the Board proposes
to consent to an order of certiorari. Bearing in mind, mutatis mutandis, the principle
of judicial restraint discussed in Usk and in Fitzgerald v. Dun Laoghaire Rathdown
County Council, it seems to that there is no sufficient basis established to justify why
the order of certiorari signalled in the Board’s solicitors’ letter of 18 February, should
not be made.
69. In taking this approach, I wish to make very clear that I do not rule out the
possibility that Ravala, in any future application, may be able to produce the
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necessary information to exclude the existence of risk. Likewise, it may well be the
case that, even if a full appropriate assessment has to be carried out, that it will show
that there is no risk of significant effects on the SPA or the relevant bird species.
70. I should also make clear that I have not lost sight of the fact that, as Ravala has
highlighted, the view reached by the Board in the Shannon Homes case post-dates the
decision made in this case. I equally appreciate that the decision in the Shannon
Homes case was not relied upon by the applicant in its statement of grounds. Nor
could it have been relied upon by the applicant since it post-dates the commencement
of these proceedings. However, given the very important duty cast on the Board as a
competent authority for the purposes of Article 6 (3) of the Habitats Directive, it
seems to me that, in any proceedings in which an issue arises under Article 6 (3), it is
entirely permissible that, following receipt of a judicial review challenge to its
decision, the Board may carry out an assessment as to the validity of its own decision.
Such an assessment is particularly appropriate in the context of Article 6 (3) of the
Habitats Directive given that a decision reached in breach of the requirements of
Article 6 (3) will be treated by the courts as a decision made without jurisdiction; (see
and the subsequent decision of the Supreme Court in Connelly v. An Bord Pleanála
[2018] IESC 31). As noted by counsel for the applicant in their submissions (as
summarised in para. 27 (c) above), there is a duty of candour owed by a public
authority in judicial review proceedings. Both Barrett J. in Murtagh v. Judge Kilrane
and Barniville J. in CHASE v. An Bord Pleanála have stressed that the object of the
public body in such proceedings should be not to win the litigation at all costs but to
assist the court in reaching the correct result. In light of that principle, it seems to me
that the Board cannot be criticised for taking the approach which it has.
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71. In light of the view which I have formed (as set out above) I do not believe
that it is necessary to consider whether the decision of the Board to consent to an
order of certiorari attracts the application of s. 50 of the 2000 Act or any of the other
issues discussed in the written observations of the parties.
Conclusion
72. There will, accordingly, be an order of certiorari made on the grounds set out
in the letter of 18 February, 2020 (quoted in para. 3 above).
73. In so far as costs are concerned, the Board has accepted that it has some
liability for costs up to the date of the letter of 18 February but the precise extent of
that liability does not appear to me to have been worked out as yet. I will therefore
give the parties a period of 14 days from the date of delivery of this judgment in
which to attempt to agree the terms of an order to be made in respect of the costs of
the proceedings up to an including 18 February, 2020.
74. With regard to the costs which have been incurred since that time, I will give
the parties a period of 14 days from today in which to attempt to agree the form of an
order with respect to such costs. If agreement is reached in relation to costs, the
parties are to notify the registrar to that effect by email.
75. If any element of costs has not been agreed within 14 days as aforesaid, the
parties will have a further period of 7 days thereafter in which to make observations
by email (addressed to the registrar) in relation to costs following which I will issue a
written ruling.