High Court refused certificate for leave to appeal on environmental impact assessment point of law.

[2018] IEHC 389

THE HIGH COURT

JUDICIAL REVIEW

[2017 336 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000, AS AMENDED

BETWEEN

CLAIRE O’BRIEN AND PATRICK O’BRIEN

APPLICANTS

AND

AN BORD PLEANALA

RESPONDENTS

AND

LEONARD DRAPER

NOTICE PARTY

JUDGMENT of Ms. Justice Costello delivered on the 27th day of June 2018

1. The applicants have requested a certificate for leave to appeal the decision in this case of the 18th December, 2017 to the Court

of Appeal pursuant to s. 50A (7) of the Planning and Development Act, 2000 as amended. The section provides:

“(7) The determination of the Court of an application for section 50 leave or of an application for judicial review on foot

of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case

save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point

of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to

the Supreme Court.”

By virtue of s. 75 of the Court of Appeal Act, 2014 references to the Supreme Court in s. 50A (7) of the Act of 2000 are to be

construed as a reference to the Court of Appeal.

2. In this case the court has been asked to certify that its decision involves one point of law which the applicants say is of

exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal. The

point of law is:

“Does the requirement to carry out an environmental impact assessment include an obligation to examine, analyse and

evaluate the substance of the information submitted by the public concerned.”

3. The parties are agreed that the law applicable to the grant of a certificate is as set out in the decision of McMenamin J. in Glancre

Teoranta v. Mayo County Council [2006] IEHC 250. This provides:

“1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of

exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to

enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not

been established a question may arise as to whether, logically, the same material can constitute a point of law of

exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny ).

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point

of law during the hearing.

6. The requirements regarding "exceptional public importance" and "desirable in the public interest" are cumulative

requirements which although they may overlap, to some extent require separate consideration by the court (Raiu ).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an

interpretation would not take into account the use of the word "exceptional".

8. Normal statutory rules of construction apply which mean inter alia that "exceptional" must be given its normal

meaning.

9. "Uncertainty" cannot be "imputed" to the law by an applicant simply by raising a question as to the point of law.

Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily

operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to

be certified be such that it is likely to resolve other cases.”

4. Clarke J. distilled the ten principles down to four main principles in Arklow Holidays Ltd v. An Bord Pleanala [2006] IEHC 102 as

follows:

“(a) The decision must involve a point of law of exceptional public importance.

(c) It must be desirable in the public interest that an appeal should be taken to the Supreme Court.

(d) There must be uncertainty as to the law and

(e) The importance of the point must be public in nature and, transcend the individual facts and parties of a given

case.”

5. The point of law must not only be of public importance, it must be of exceptional public importance. This point must be emphasised

because, in planning terms, all points of law regarding the operation of the Planning and Development Act affect the public and

therefore could be said to be of public importance. Separately, it must be in the public interest that an appeal should be brought. This

should be assessed in the context of the clear legislative intention that planning cases should generally be confined to the High Court.

The jurisdiction is to be exercised “sparingly” (Glancre and Harding v. Cork County Council [2006] IEHC 450). An applicant does not

establish uncertainty in the law simply by raising a question as to the point of law. The fact that the position is arguable is therefore

not sufficient to satisfy the requirement that there be uncertainty in the law. Finally, of course, the point of law concerned must arise

out of the decision of the High Court.

The applicant’s case for a certificate for leave to appeal

6. The applicants start from the requirements of Directive 85/337 and the requirement to conduct an Environmental Impact

Assessment (“EIA”) in appropriate cases. In the decision of case C-50/09 Commission v. Ireland [2011] I-00873 the CJEU held:

“37. In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine

itself to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in

an appropriate manner, in the light of each individual case.

38. That assessment obligation is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of Directive 85/337,

which are, essentially, obligations to collect and exchange information, consult, publicise and guarantee the possibility of

challenge before the courts. They are procedural provisions which do not concern the implementation of the substantial

obligation laid down in Article 3 of that directive.

39 Admittedly, Article 8 of Directive 85/337 provides that the results of the consultations and the information gathered

pursuant to Articles 5 to 7 must be taken into consideration in the development consent procedure.

40 However, that obligation to take into consideration, at the conclusion of the decision-making process, information

gathered by the competent environmental authority must not be confused with the assessment obligation laid down in

Article 3 of Directive 85/337. Indeed, that assessment, which must be carried out before the decision-making process

(Case C-508/03 Commission v United Kingdom [2006] ECR I 3969, paragraph 103), involves an examination of the

substance of the information gathered as well as a consideration of the expediency of supplementing it, if appropriate,

with additional data. That competent environmental authority must thus undertake both an investigation and an analysis

to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on the

factors set out in the first three indents of Article 3 and the interaction between those factors.”

7. The applicants argue that the obligation to assess the information gathered includes an obligation to assess the information

furnished by the public concerned. The assessment is not limited to the information provided by the applicant for planning permission.

The applicants submit that the assessment means that all of the information must be subjected to examination analysis and

evaluation by the competent environmental authority. The consideration of the information gathered is part of the EIA process and

therefore attracts the requirement to examine analyse and evaluate all of the information.

8. The applicants accept that it is not necessary to deal with the detail of every point made in every individual submission and the

Board is not required to record an evaluation of every argument made point by point. They say that the exercise of considering the

information must be capable of review by a court and accordingly there must be a record of the evaluation of the substance of the

information gathered by the Board. The applicants submit that the assessment could be carried out on an issue by issue basis once

the competent environmental authority identified the relevant issues in the submissions of the public concerned.

9. The applicants submit that this arguable interpretation of Commission v. Ireland is the basis of the point of law they ask the court

to certify. They say the judgment in this case concluded that there was no obligation on the Board in carrying out its EIA to examine,

analyse and evaluate the information gathered from the public concerned or to record the Board’s evaluation of that information. They

submitted that the court “in effect held that the examination analysis and evaluation does not extend to environmental information

submitted to the Board by the applicants, in particular, the Bowdler report”. It is implicit in their submissions that the assessment of

the Board was limited to the information furnished by the developer to the exclusion of information supplied by the public concerned

and that the judgment indorsed this exclusion.

Relevant findings in the judgment

10. Following the analysis in Commission v. Ireland at para. 31 the judgment identifies two distinct obligations of the Board:

(1) The obligation to assess the direct, indirect, secondary and cumulative effects of the proposed development on the

environment in relation to certain factors specified in the Planning and Development Act, 2000 as amended (PDA), where

an assessment involves an examination analysis and evaluation of the potential effects of the proposed development upon

the environment, and

(2) The Board is required to consider any submissions or observations validly made in relation to the environmental effects

of the proposed development. Consideration of the submissions or observations is part of the process whereby the Board

examines, analyses and evaluates the potential effects of the proposed development upon the environment.

11. I held that the applicants had not established that the Board did not consider their submission as required both by s. 172 (1G) (c)

of the PDA and by Directive 85/337. (paras. 32 and 33). At paras. 44 and 45 I held as follows:

“44. The implications of the submissions of the applicants in this case are that the Inspector and the Board must

examine, analyse and evaluate each of the submissions or observations validly made to the Board. This is not what is

required by either the EIA Directive or the Act of 2000, which simply requires that the direct and indirect effects of a

proposed development be so assessed, not the submissions or observations. The arguments advanced by the applicants

leads to a result which would render the provision of s. 172(1J)(c) effectively otiose. Why would the Oireachtas stipulate

that the planning authority or the Board had an obligation to consider the submissions and observations submitted by

third parties before the planning authority or the Board informed the public of the main reasons and considerations for

their decision, if they were already obliged to examine, analyse and evaluate the individual submissions and observations

and make that assessment available to the public under the provisions of s. 172(1J)(b)?

45. In my judgment it was not necessary for the Board (or the Inspector) to examine, analyse or evaluate the Bowdler

Report or the points made in the report or the experience of the applicants (or their neighbours) in relation to noise in

order to carry out a lawful EIA. It is sufficient that there is an examination, analysis and evaluation of the direct and

indirect effects (including the noise implications) of the proposed development on the environment as set out in pages

22 to 23 of the Inspector's report.”

12. I earlier noted that the Inspector referred to the noise modelling set out in the rEIS without specifically referring to the criticisms

set out in Mr. Bowdler’s report. The applicants said that this amounted to a failure to examine, analyse and evaluate all the evidence

before the board. At paras. 39 I said:

“39. In this case Mr. Bowdler criticised the noise impact assessment included in the rEIS. He criticised the methodology

adopted in the noise impact assessment and complained of a lack of salient information. Both the Inspector and the

Board concluded that they had sufficient information to carry out an EIA of the Kilvinane wind farm. Not only is there no

challenge to the adequacy of the information before the Board, the applicants' counsel expressly stated that there was

no challenge to the adequacy of the information. It follows that the substance of the complaint (that there was no

examination, analysis or evaluation of Mr. Bowdler's report) amounts to a complaint that there was no explanation why

the Inspector and the Board concluded that there was sufficient information before them in order to carry out an EIA,

notwithstanding Mr. Bowdler's complaints to the contrary.”

Discussion

13. The error of law identified by the applicants in the judgment is the finding that it was not necessary to examine, analyse and

evaluate the Bowdler report or the points made in the report or the experience of the applicants (or their neighbours) in relation to

noise in order to carry out a lawful EIA, and the failure to record the examination, analysis and evaluation of the report.

14. Obviously, any appeal must arise from the judgment delivered. At the original hearing one of the issues was whether the Board

had complied with its obligations to give its reasons for its decision and I concluded that this ground for judicial review failed. At para.

82 of the judgment I held:

“The first obligation is to consider any submission or observation validly made and the second requirement is to inform

the public of the main reasons and considerations on which its decision is based or for the attachment of any conditions.

There is no obligation to engage in a point by point refutation of the submissions and observations validly made.”

The single point of law in respect of which the applicants seek a certificate from the court is not based upon the reasons for the

decision or the recording of the reasons. Counsel expressly disavowed this and accepted that it would not be necessary to deal with

the detail of every point made in every submission. However, in written submissions the applicants argued that it was necessary that

there be a record of the evaluation results in order that an individual who is affected by the decision may have access to a review

procedure which allows the decision to be properly reviewed by the court. It was said that if there is no record of the evaluation of

the substance of the information gathered by the Board, this cannot be achieved.

15. This point is a separate point from that identified as the point of law upon which the applicants seek a certificate granting them

leave to appeal. That being so, it is not a matter which I propose to consider in this judgment as it is not a ground of appeal upon

which the applicants sought a certificate granting them leave to appeal.

16. It is clear from the judgment that the Inspector’s report deals with all the submissions and observations validly made on an

individual basis and on an issue by issue basis. The Bowdler report was accurately summarised and considered, but was not referred

to in the section of the report where the Inspector discussed the issue of noise effects on the receiving environment. As a fact, the

report was considered by the Inspector and the Board.

17. Counsel accepts that there is a distinction between the obligation to consider the information submitted by the public concerned

and the obligation to assess the direct and indirect effects of the proposed development on the environment (the Article 3

obligation). He says the obligation includes an obligation to examine the substance of the information submitted by the public

concerned.

18. In order to advance his proposed ground of appeal, the point must arise out of the judgment. The argument is based on an

allegation that as a matter of fact there was an unlawful distinction in the assessment conducted by the Board of the information

submitted by the applicants, on the one hand, and the developer on the other and a failure to examine the substance of the

information gathered. The judgment does not hold that the Board is not required to assess the substance of the information submitted

by the public concerned. Therefore, this point does not arise from the judgment. Nor does it suggest that the Board should- or may -

make a distinction in its assessment of the information provided by the applicant for planning permission and that submitted by the

public concerned. In the judgment, I found that the Inspector and the Board considered the information validly provided, as they were

required, and then went on to outline how the Inspector and the Board assessed the direct and indirect noise impact of the

development on the environment, the Article 3 obligation. It seems to me that there was no finding of fact that there was any

distinction between the assessment of the information provided by the developer and the applicants by either the Inspector or the

Board, but merely an inference by the applicants that this was so because there was no express reference to the submissions and

criticisms of Mr Bowdler of the information provided by the developer. From this inference, it was then inferred that the court in effect

endorsed a difference in treatment of information provided by the developer and the public concerned which was not authorised by

law. But this was not so. Simply put, the point does not arise from the judgment as a matter of fact or of legal conclusion.

19. In debating the Article 3 assessment obligation, counsel for the applicants was asked to identify which information received from

the public concerned he said required to be subjected to examination, analysis and evaluation, in circumstances where he accepted

that the Board was not required to set out a point by point refutation of every point raised. He was unable to give a clear exposition

of what was required, other than to rely upon the requirement that the substance of the information gathered be examined. He

suggested that the submissions could be dealt with by issues raised rather than by individual submissions.

20. In response to this submission counsel for the Board said that, in effect, the argument of the applicants was that an EIA must

contain a rebuttal of any submission that was not accepted and this was not what is required by EU law. She submitted that it was

not necessary to subject the Bowdler report to an examination, analysis and evaluation in circumstances where, as a matter of fact,

the report was accurately summarised and considered. She said that the argument involved conflating the two separate steps:

consideration of the evidence and assessment of the impacts of the project on the environment, which involved an examination,

analysis and evaluation of the information gathered.

21. In assessing an application for a certificate for leave to appeal the High Court judge must approach the application on the basis

that he or she may have been wrong in their decision and may be overturned on appeal. But they also do so on the basis that the

jurisdiction is to be applied sparingly and the point raised must be of exceptional public importance and, separately, that it must be in

the public interest that there be an appeal and that the law on the point is uncertain.

22. The difficulty the applicants had in identifying the information which they said must be subjected to an examination, analysis and

evaluation, while accepting that there is no obligation to deal with each point individually, underscores that this is very much a facts

specific appeal. As a matter of fact, all of the information validly submitted was considered by the Inspector and the Board. It was

not necessary to rebut each individual point. In Commission v Ireland, the CJEU said the obligation is to assess the direct and indirect

effects of the project on the environment “in an appropriate manner, in light of each individual case” and this requires that the

substance of the information be examined. This is not a prescriptive test but a qualitative one. It recognises that the assessment of

the substance of the information is not to be equated to the assessment of individual submissions or observations. I conclude that

the issue raised is not a point which transcends the individual facts and parties. It is not therefore a point of exceptional public

importance.

23. Furthermore, no separate case was advanced with any force that an appeal was desirable in the public interest. This is

significant, given the fact that this is a separate distinct statutory requirement an intending appellant must satisfy. I am not satisfied

that the applicants have met this statutory requirement.

24. The appellants say that they have raised an arguable point that there is an alternative view of the law than that taken in the

judgment of the 18th December, 2017. I accept that this is so, but, as was pointed out in Dunnes Stores v. An Bord Pleanala [2015]

IEHC 387 by McGovern J.:

“Merely raising a question as a point of law does not point to its uncertainty. The decision of this court on the judicial

review applies the legislative scheme in an unexceptional fashion and was stated to be clear and unambiguous…”

The law in relation to the assessment obligations of a competent environmental authority is not uncertain. There are no conflicting

decisions or ambiguous statutory provisions requiring clarification highlighted by the applicants, merely an argument they advanced at

trial and which did not succeed.

25. In all the circumstances, for the reasons I have given and in view of the fact that the jurisdiction is to be exercised sparingly I

refuse the applicants a certificate to appeal on the point of law identified in paragraph 2 above.