THE SUPREME COURT
CLARE COUNTY COUNCIL
MCMAHON FINN WIND ACQUISITIONS LIMITED
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
RESULT: The Court grants an order allowing an appeal to this Court under Article 34.5.4 of the Constitution, from the judgment of the High Court delivered on the 8th November, 2016.
1. This determination concerns a decision of the High Court delivered on the 8th November, 2016 by Barrett J., wherein he quashed a decision made by the applicant herein (“the Board”), granting permission for a wind-farm development to the second named notice party. The court held that the Board, having carried out an appropriate assessment (“AA”) or environmental impact assessment (“EIA”) in relation to the project, and had not provided sufficient reasons for granting permission for the project.
2. As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary that for this Court to grant leave, it be established that the decision sought to be appealed against, either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court. This is an application for a leapfrog appeal, in circumstances where an appeal to the Court of Appeal was not certified in the High Court.
3. The Court considers it desirable to point out that a determination of this Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue, or issues, in respect of which leave has been granted will, in due course, be disposed of in a substantive decision of the Court.
The High Court Proceedings
4. Save where otherwise appears, all statutory references hereafter are to the Planning & Development Act, 2000, (“P.D.A. 2000”) as amended, unless otherwise stated.
5. The applicant, Kathleen Connelly, is a householder in County Clare. She was opposed to the development of a wind-farm close to her home. The development was to consist of six turbines and associated works. Clare County Council refused permission for this development on the 12th July, 2011.
6. The Council’s decision was appealed to An Bord Pleanala by the second notice party on the 8th August, 2011. During the appeal process the Board appointed an inspector to prepare a report. This report issued on the 30th November, 2011. It was negative in effect. On 25th January, 2011 a meeting of the Board was held at which the appeal was considered. The Board had concerns regarding habitat protection, the risk of water pollution, as well as issues concerning the assessment of noise and environmental effect. The Board, therefore, required the developer (who is the second notice party) to provide specific information and revisions to address these questions. A statutory notice to this effect, issued under s.132 PDA 2000, was served on the developer, and those who had made submissions or observations to the Board. These concerns reflected the observations in the Inspector’s report.
7. On 9th August, 2013, the developer submitted its response to the s.132 notice. This included a requested “Natura Impact Statement” dealing specifically with the matters which the Board had asked to be considered. The Board considered that this additional information was sufficient. The Board issued its decision on 6th June, 2014. It recorded that it was satisfied that the information, which was by then before it, was adequate to undertake an “A.A.”, and an “E.I.A.”, in respect of the proposed development. The Board concluded that an “A.A.” had been carried out on potential impacts of the proposed developments on certain conservation and other sites, and subject to the implementation of identified mitigation measures, it was satisfied that the proposed development by itself, or in combination with other plans or projects, would not adversely affect the integrity of same. The Board noted the developer had completed an E.I.S. The Board noted and generally adopted the Inspector’s assessment of environmental impacts, with the exception of the matters set out in the decision, and concluded that the proposed development would not have unacceptable effects on the environment. The Board decision dealt with issues such as residential amenity, visual impact, perceived risks to the Hen Harrier, water pollution and ground instability.
The High Court Judgment
8. The High Court quashed the Board’s decision, holding, first, that, in requiring the submission of an Natura Impact Study, in the s.132 Notice, the Board had failed to provide reasons for its determination that an “A.A.” was required, pursuant to s.177 U(6) P.D.A., as amended; second, that the Board had failed to comply with s.177 V(1) P.D.A. 2000, as amended, in the manner in which it carried out and recorded its AA; that the Board’s decision amounted to nothing more than an assertion that it had considered all the material put before it; and that it was not entitled to “generically incorporate” into its Decisions separate materials such as the Inspector’s report; that the law required that complete, precise and definitive findings which, in turn, required that a non-involved person reading the decision could turn readily to the particular observations, reasoning or conclusions in a particular report or text to which reference was made. The High Court concluded, therefore, that the Board decision was deficient in terms of its reasons, in the absence of such linkage.
9. The High Court also considered that similar considerations applied to the EIA, holding that the Board’s decision failed to comply with the requirements of s.172 (1J) P.D.A. 2000, as amended; that the Board’s conclusion in that regard was also generically worded, and that it was an oddity that the Board generally adopted the Inspector’s report which was not “unfailingly positive”, in circumstances which might preclude reliance on the Inspector’s report where the development proposal was redesigned subsequent to that report, albeit in circumstances where the redesign was in response to a specific request made by the Board in light of the Inspector’s express concerns. The High Court did not consider one could bring “the Court through” the material before the Board, much of which, in this case, was generated by the Board itself in the course of its decision-making. The High Court took the view that it was not appropriate to incorporate separate material into the Board’s decision simply by reference, unless the reasons and conclusions contained in that material were specifically cited or referred to with “adequate particularity”. Such a process of “linkage” should, in the court’s view, have been unnecessary.
10. The Board submits that the issues raised in this matter involve matters of general public importance. As the decision under challenge falls within s.50 of the PDA 2000, it was one which could not be appealed to the Court of Appeal without a certificate of leave to appeal being granted by the trial judge, pursuant to s.50(7). An application for such certificate was made, but the trial judge refused to certify his decision as involving a point of law of exceptional public importance. In light of the fact that the law precludes an appeal to the Court of Appeal, and in the circumstances of this case, the applicant submits that it is appropriate that there should be a “leapfrog appeal”.
11. The Board submits that the judgment the subject of this application sets a very high threshold as to the reasoning requirement on a planning decision-maker, when the decision involves either an EIA, or an AA. In so doing, the Board contends, its reasoning is in contra-distinction to other existing and well settled lines of authority, in a number of important respects. It is also said that the High Court judgment interprets the legislation cited above as requiring a level of detail which has not heretofore been applied, and which other High Court judges had not previously required. If this approach is correct, it is said that this would have serious consequences for how the Board, and other planning decision-makers, approach decision-making.
12. The Board sets out statistics wherein it has adopted a similar approach in a number of its decisions. In 2014, 15.4% of inspectors’ recommendations were “not generally accepted” by the Board, that is, 229 out of 1,509 reports. The Board points out that a significant proportion of the Board’s case load involves development requiring either an EIA or an AA. Further, a significant number of the decisions which are subject to judicial review are disproportionately likely to involve either an EIA or AA. It is said that, the approach of the High Court curtails the extent to which reference may be made in the course of defending a planning permission to the material before the decision-maker, and which was expressly referred to in the decision under challenge. The Board submits that the High Court approach adopted here departs from the applicable norm in other cases. It is said that the decision is publicly available. It is said that the format of the decision is not unusual, and the level of detailed analysis is consistent with other such decisions.
13. The Board cites a range of authorities concerning reasons generally (See O’Keeffe v. An Bord Pleanala  1 I.R. 39; O’Neill v. An Bord Pleanala  IEHC 2002; McGrath Limestone v. An Bord Pleanala  IEHC 382), and decisions, where it was held an EIA/AA is required (See Ratheniska v. An Bord Pleanála  IEHC 18; People Over Wind v. An Bord. Pleanala  IEHC 271; Aherne v. An Bord Pleanala  IEHC 606; McEntee v. An Bord Pleanala (Unreported, High Court, Moriarty J., 10th July, 2015)), and the decisions where there was incorporation of other material in the Board’s decision (See Ratheniska, People Over Wind, Buckley v. An Bord Pleanala  IEHC 572). This is said to be the case, in contrast with a decision to the contrary effect of the High Court in Balz v. An Bord Pleanala  IEHC 134, which, the Board submits, highlights the fact that there is now an inconsistency in the jurisprudence as to the proper approach.
14. Separately, the Board raises an issue under s.177 U(6) of the Act. It is said the Board “screened in” the proposed development for an AA. The applicant contended that this statutory provision (s.177 U(6)) required the Board to separately record reasons for “screening in”, despite the fact that the matter proceeded to AA. The Board contended that the request for a Natura Impact Study indicated the reasons as to why the Board was not satisfied to let the matter stand without an Appropriate Assessment. The High Court rejected this submission. No prior case has considered the obligation on the Board to provide reasons for “screening in” a proposed development, nor whether the failure to provide such reasons can constitute a ground for quashing the ultimate decision when, in fact, a full AA is carried out.
Submissions on behalf of the Respondent
15. In response, the respondent accepts that the issue of the obligations of a competent authority to record its determinations under EIA and AA are matters of general public importance. However, it is said that the issues and legal principles to be applied are well settled; that the requirements of EIA and AA are well established under the Directives themselves, and the jurisprudence established thereunder; and that the national statutory provisions, and national authorities, are clear in their transposition and interpretation of the obligations under E.U. law.
16. In the respondent’s submission, the kernel of the application seems to be the judgment in Kelly v. An Bord Pleanala  IEHC 400, and the authorities therein referred to. The respondent states that this is universally regarded as the ‘seminal’ case in the obligations to carry out and record AA, and is not limited to any factual circumstances. It is said the principles of universal application, and the uncertainty which the Board rely on in the appeal, result from its refusal to consider and apply the principles in Kelly. The respondent contends that, far from being of no relevance, the within appeal would constitute a collateral attack on Kelly.
17. The respondent criticises the alleged failure of the Board to make reference to Kelly in the context of “A.A.”, stating that it is only referred to in the context of EIA. It is said that it has been uniformly followed by the High Court, and cited with approval by the Court of Appeal. Consequently, in applying Kelly, the respondent contends, the High Court did nothing more than apply the established principles as enunciated in that decision.
18. Insofar as it is said there is a degree of deviation in respect of the authorities in the context of “E.I.A.”, the respondent accepts that when the authorities are examined there are factual distinctions which can be drawn. In the instant case, what is said is that the development was entirely redesigned after the report from the Inspector; that no further, or other, “E.I.A.” was conducted or recorded by the Board, and that no Inspector’s report was produced on the revised development. It is said that the Board has characterised the instant case as being an “outlier”, and consequently it does not transcend its own facts. It is further said that the Board has continued to make decisions on these cases in the same fashion, subsequent upon the decision of the High Court herein. The respondent contends that similar issues were raised in at least one other case, and the Board resisted an application for adjournment of those proceedings, which was prompted by this appeal, on the basis that the proceedings were an outlier, and easily distinguishable on its facts. The High Court adjourned the proceedings pending the within appeal.
19. The respondent also submits that the Board was not restricted or inhibited from making submissions to the court below; that counsel for the Board took the court through all of the material before the Board in the course of submissions, and the High Court found that, as a matter of national and E.U. law, it was not appropriate to expect an applicant to have to consider all of the material before the Board to discern the Board’s reasoning.
20. Neither notice party opposes the application for leave.
21. It is self-evident from the description of the issues and background circumstances that this is a matter of general public importance which warrants a leapfrog appeal to this Court. The issues in question concern not only this decision of the Board, but many other decisions of the Board. The question, simply put, is as to the degree of particularity and specificity necessary in the Board’s decision.
22. The Court would grant leave on all the grounds proposed.
23. In the light of the fact that the Board considers that the matter is of urgency, the Board should submit its submissions within 7 days, and the respondent within 7 days. A case management hearing will be listed for in our about 21 days after the date of issuing of this determination. In the meantime, it will be expected that both parties will prepare a joint Book of Authorities, which should be ready for the case management hearing.
And it is hereby so ordered accordingly.