High Court refuses certificate for leave to appeal on scientific doubt grounds due to lack of evidence.

THE HIGH COURT

JUDICIAL REVIEW

[2024] IEHC 634

[Record No. 2021/1062JR]

BETWEEN

FRIENDS OF ARDEE BOG

APPLICANTS

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

LOUTH COUNTY COUNCIL

NOTICE PARTY

JUDGMENT of Ms Justice Miriam O’Regan delivered on 5 November 2024.

Issues

1. The application for judicial review was heard by this Court between the 9th and 11th April 2024 and subsequently judgment was delivered on 14 May 2024, refusing the relief claimed.

The current matter is an application of the applicant for leave to appeal the decision of 14 May 2024 pursuant to the provisions of s.50A(7) of the Planning and Development Act 2000 as amended. The applicant seeks a certificate under the provisions of the legislation aforesaid in respect of three identified points of law which will be dealt with separately hereunder.

Applicable Principles

2. Section 50A(7) aforesaid provides: -

“…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.”

3. Reference to the Supreme Court is now reference to the Court of Appeal.

4. The principles to be applied in dealing with the instant type application have been summarised in various cases including Glancré Teoranta v An Bord Pleanála and Mayo County Council [2006] IEHC 250 (McMenamin J), in an updated summary afforded by Barniville J in Cork Harbour Alliance for Safe Environment v An Bord Pleanála [2022] IEHC 231, and in a recent comprehensive summary given by Holland J in Monkstown Residents Association v An Bord Pleanála [2023] IEHC 9.

The following principles apply in the instant matter: -

(1) The requirement for exceptional public importance and desirable in the public interest are cumulative requirements.

(2) The wording of the section is such that it is clear that a certificate should be granted sparingly.

(3) It is evident that it is intended that generally the High Court decision is to be final.

(4) The word “exceptional” must be given its normal meaning namely being of unusual or untypical importance.

(5) An affirmative public benefit must be identified.

(6) The point of law identified must transcend the individual facts of the case.

(7) The state of the law involved should be considered uncertain or lacking in clarity.

(8) If the point of law involved is novel and the law is evolving then it is likely that the Court will find exceptional public importance.

(9) The application should not be an attempt to merely reargue the merits of the matter which was initially before the Court.

(10) The question or questions raised should not invite a discursive or roving response from the appellate court.

(11) The point or points raised must be determinative of the proceedings-capable of reversal or variation of the High Court order.

(12) The point of law raised must reflect a correct understanding of the High Court

decision read as a whole.

(13) The point of law raised must arise out of the decision of the High Court.

(14) The application for certification should be made promptly and ideally within the normal appeal period.

(15) Generally, the point of law must be a point which has been properly pleaded before the High Court.

(16) The grant of leave should provide some added value to any matters already before the Court of Appeal.

(17) The uncertainty in the law must involve more than merely the High Court having rejected the applicant’s argument.

5. Insofar as properly pleaded is concerned: -

a. Noonan J in Ross v An Bord Pleanála (No. 2) [2015] IEHC 484 at para. 9 identified the basis for such a requirement as follows: - “9. Accordingly, it would appear that the applicants now seek to appeal on a ground in respect of which no leave to apply for judicial review was granted. I cannot conceive how an appeal could lie in such circumstances. It would be an unusual state of affairs, to say the least, if an appellate court were asked to determine an appeal on the basis of a point that was never even pleaded, less still the subject matter of a grant of leave.” b. In the event of the existence of “exceptional circumstances” it would be possible to agitate in the Court of Appeal a point which leave was never granted in the High Court (see KD v MC [1985] IR 697 the judgment of Finlay CJ at p.701 and McGreal v Office of the Information Commissioner [2024] IECA 208 (Noonan J at para. 23). c. As was stated by the Supreme Court in Movie News Limited v Galway County Council (an unreported judgment delivered by Henchy J on 15 July 1977) if the Court was to accede to a last minute and informal application for leave to rely on a new ground the Court would be unjustifiably turning its back on everything that had happened so far in the case. It would in effect be deciding this new point as of first instance. It should not except for exceptional reasons in the guise of an appeal enter on the trial of a matter as of first instance which might deprive an aggrieved party of a constitutional right of appeal.

d. In a recent Supreme Court decision of 4 July 2024, Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors. [2024] IESC 28 Murray J at para. 43 identified that the purpose of proceedings in judicial review was to enable a party who had identified a legal error or of a process undertaken to seek to challenge same. The grant of leave is the extension of a permission to pursue that ground of challenge. At para. 59 the Court reminded counsel when seeking leave to appeal that they should not seek leave in respect of issues that were neither pleaded nor decided by the Court whose decision it is sought to appeal.

6. The applicant has posed three separate points for certification to the Court of Appeal.

Legal Point A

7. “(1) Are valid conservation objectives for a special protection area a prerequisite to the Board’s jurisdiction to carry out a valid appropriate assessment under Article s.6(3) of the Habitat’s Directive and thus grant planning permission?

(2) If the answer to the above question is no, practically, how can an assessment of the affects of the development on an SPA be conducted in the light of unknown objectives”.

8. Insofar as this point has been pleaded the applicant directed the Court to para. 29 of the statement of grounds of 13 December 2021. The applicant also refers to para. 83 of the Court’s decision.

9. Paragraph 8 to 11 of the statement of grounds set out the basis for impugning this

decision. In para. 8 it is said that ABP had no jurisdiction to issue any such determination in the absence of an application for development consent. In para. 9 it is said that ABP knew or ought to have known that there would have been likely significant affects and therefore the threshold on an Article 6(3) first stage assessment being very low, had been exceeded. In para. 10 it was said that ABP failed to have regard to its duty as a public authority. At para.

11 it is said that the decision is unlawful as it was not made in view of best scientific knowledge and in view of the conservation objectives of the site and no regard was had to in combination affects.

10. Paragraphs 26 to 29 of the statement of grounds contain more detailed particulars of the basis for impugning the decision of 19 October 2021 of ABP directing that an NIS not be prepared by the local authority. Paragraph 26 had further detail on the jurisdictional point raised being that ABP had no jurisdiction to make the decision absent an application for the development proposed. Paragraph 27 deals with the claim that a stage 2 AA should have been conducted; Paragraph 28 deals with the assertion of the Board’s function to adequately protect the birds and failure to protect the habitat; Paragraph 29 deals with the failure to consider best scientific knowledge which incorporates the absence of management plans and detailed conservation objectives for the SPAs.

11. It is clear from the foregoing that the jurisdictional point raised by the applicant in respect of this decision as against ABP is confined to a claim that ABP had no jurisdiction absent an application for development consent. The reference to absent site-specific conservation objectives was relative to best scientific knowledge, and was not framed as a jurisdictional objection.

12. Insofar as para. 53 of the judgment is concerned this records the fact that the complaints against the State respondent were effectively resolved on the basis of the Court making a declaration that prior to the publication of the Stabannan and Bagenalstown Conservation Objectives the second and third named respondents failed to have in place site specific conservation objectives for the Stabannan-Bagenalstown SPA, contrary to its obligation under EU law. In an email of 16 April 2024 from the applicant’s solicitors to the respondents it was said that the applicant was no longer pursuing D4 and D5 of the statement of grounds. In these circumstances it is clear that any complaint as against the State respondents concluded by virtue of the agreed declaration without the necessity of the Court entertaining in the judgment the complaints made in the statement of grounds as against the State respondents.

13. In submissions the applicant has relied on the judgment of Holland J in respect of a leave application made in Power v ABP & Ors. [2024] IEHC 247 (delivered on 1 May 2024). In that matter the State had conceded a declaration similar to that recorded at para. 83 of the within judgment. At para. 4 of the Power judgment it is indicated that the Court rejected the arguments for certiorari including those based on a jurisdictional precondition to carry out an AA, being the site-specific conservations objectives. The Court did grant leave on the grounds identified in legal point A(1) above in Power. The applicant argues on this basis given that it is asserted that the claims in the instant matter mirror the claims made in the Power matter, although suggesting that the within applicant has a stronger case to make, accordingly leave should be afforded. Insofar as the suggestion that the applicant has a better argument to be made reference is made to para. 169 of the original judgment of the Court in Power [2024] IEHC 108 of 28 February 2024 where it was noted that there was no suggestion that the development posed a danger to the whooper swan whereas in this matter there is a suggestion that the proposed development would pose a danger to the greylag geese/curlew.

14. In my view there is however a significant difference in the pleadings as between Power and the within matter in that grounds 5 and 6 of Power (as was noted in para. 16 of the initial judgment) raised a jurisdictional point that ABP could not conduct a valid AA in the absence of conservation objectives. The Court was satisfied in Power that following the concession made by the State (a declaration in similar terms to that recorded in para. 83 of the within judgment): “That, in turn, has the consequence that Grounds 5 and 6, which assert the absence of conservation objectives for the SPA as undermining the AA, which by Article 6.3 of the Habitats Directive must be done “in view of” those conservation objectives, are reduced to a jurisdictional point. The Applicants say that, absent conservation objectives, the Board has no jurisdiction to embark on AA as to the risk of effect on the SPA and at trial accepted that their challenge is limited to that jurisdictional point.”

15. Remarkable differences between the pleadings against the State in Power and the instant matter are: - a. no jurisdictional point was raised in the instant matter to the effect that absent conservation objectives ABP had no jurisdiction whereas such a jurisdictional point was specifically raised by the applicant in Power;

b. it was abundantly clear that the jurisdictional point aforesaid survived the conceded declaration by the State in Power and the Court made a decision on such a point.

16. Accordingly, therefore: -

a. although there is an absence of pleadings in Power produced to this Court, it is clear from para. 16 of the original judgment in Power, is insofar as legal point A is concerned there is a substantial pleading difference between the two cases. b. The declaration recorded at para. 83 of the judgment does not in fact engage in the jurisdictional issue mentioned in legal point A. c. The statement of grounds does not incorporate the jurisdictional point sought to be certified nor indeed has it been dealt with in the judgment. d. In any event, as the question has already been certified in Power there is no added value to matters already before the Court of Appeal. e. Given the content of para. 10 above, it seems to me it would be an abuse of process to afford certification.

17. In these circumstances legal point A is not an appropriate point of law to be raised or certified.

Legal Point B

18. “(1) In making a determination under s.50(1)(b) of the Roads Act 1993 as to whether or not an EIA is required, is An Bord Pleanála limited to only considering classes of development and aspects thereof which it ultimately has jurisdiction to consent, or does it need to consider all aspects of the development in determining whether or not an EIA is required?

(2) Is the Board excluded from considering developments comprising the land restructuring solely on the basis that such development would be consented by a different competent authority?

(3) Can an EIA be adequately or lawfully carried out by An Bord Pleanála for a development within which a land restructuring element has already been carried out without any planning permission or ministerial screening/EIA or ministerial consent under the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011?”

19. In raising these points the applicant refers to para. 45 of the judgment and paras. 22 and 23 of the statement of grounds. In para. 45 of the instant judgment this Court identified that that portion of the application which involves alleged retrospective consent had not been identified and in any event, ABP had no authority in respect of rural restructuring (a point since dealt with by the Supreme Court in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors). In para. 22 of the statement of grounds it is said that ABP’s decision was unlawful as it failed to consider the prior removal of field boundaries and hedgerows and knew or ought to have known that no EIA or EIA screening had been conducted for such works and any such works were said to exceed the threshold for an EIA or EIA screening. It is stated that this ground relates to the failure of the Board to remedy the removal of the hedgerow and restructuring of lands without an EIA or EIA screening.

It appears that there are two paragraphs 23 in the statement of grounds, the first states that ABP failed to consider impacts on species or of flooding and no assessment of displacement of the species. In the second para. 23 it said that there was no information at all provided by the local authority in relation to the hedgerow and field boundary removal or the restructuring of more than 50 hectares of land holdings.

20. It is clear from the foregoing that the question now sought to be certified in legal point B neither arose on the pleadings nor in the judgment.

21. The applicant argued that the applicant should not be precluded from being afforded leave to appeal because there was no pleading on the issue and it was clearly discussed during the course of the hearing. It is also argued that as there is no authority on the points sought to be certified, the law is in a state of uncertainty and therefore leave should be afforded. However, as aforesaid a point of law must arise out of the decision of the Court and not merely from discussion or consideration of a point of law during the hearing. Further, it appears accepted that the point was not pleaded and the Supreme Court decision in Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors has addressed the validity of vesting in the Minister the necessary authority to deal with matters of rural restructuring.

22. In all of the circumstances legal point B is not an appropriate point of law to certify for appeal.

Legal Point C

23. “(1) In the context of appropriate assessment, particularly where there has been no public consultation, to what extent is it necessary for the applicant to adduce expert evidence in respect of lacuna identified by the Board itself.”

24. In raising this point the applicant acknowledges that the point is not to be found in the statement of grounds and insofar as it is found in the Court’s decision reference is made to paragraphs 78, 81 and 82 of the decision. In para. 79 the argument considered was said to be a merits-based argument without engagement with the local authority or ABP screening and without particulars in the statement of grounds. It is said that as it is merits based it is inappropriate for a judicial review application in the absence of scientific evidence adduced by the applicant to support the proposition. At para. 81 it is said that there is no evidence of disturbance of the birds or of mitigation measures complained of put before the Court. The pleadings were said to be vague, hypothetical, and failed to comply with O.84, r.20 of the Rules of the Superior Courts with the lack of scientific evidence being relevant. In para. 82 this Court was satisfied that the applicant had not discharged the onus on it to identify evidence upon which the decision was flawed. No manifest error was properly particularised and identified. No scientific evidence had been adduced by the applicant and the statement of grounds did not comply with the necessary specificity required by the rules of court. ABP did have sufficient information before it to make the finding it did. In those circumstances relief was refused. The asserted lacuna identified by ABP was said to be obvious as ABP only undertook an assessment in respect of the road construction and no one was empowered to look at the hedgerows (notwithstanding the removal of the hedgerows in the past was a matter for the Minister for Agriculture under the 2011 Regulations and there was no evidence of any complaint made in accordance with the provisions of those regulations by the applicant or any other party in respect of the removal of the hedgerow). The applicant also argues that ABP identified a collision risk for the greylag goose. The applicant complains that the disposal of such potential on the basis that the birds have to cross the M1 is entirely unsatisfactory.

25. In fact the potential for a collision risk was discounted by ABP on five factors identified in para. 27 of the judgment including that the birds successfully avoid other bridges and have to cross the M1 to reach Dundalk Bay for roosting. No lacuna was therefore identified by ABP.

26. In Reid v An Bord Pleanála & Ors. [2021] IEHC 593 a judgment of Humphreys J delivered on 6 October 2021 concerned a leave to appeal application. At para. 19 it was stated: - “…An applicant in judicial review still has to overcome an onus in order to have a

decision declared invalid. The onus must be to show evidentially that best scientific knowledge was not brought to bear, or that there was material to the contrary that required to be dealt with, or that the material on its face indicated otherwise.”

27. In the matter of An Taisce v An Bord Pleanála [2021] IEHC 422 Humphreys J was dealing with a proposed question for leave to appeal: - “Whether, in the absence of scientific evidence placed before the Board to contradict the NIS submitted by the developer, the applicant was precluded from contending that the Board's assessment under Article 6(3) of the Habitats Directive failed to remove all reasonable scientific doubt as to the effects of the proposed development on the protected sites concerned.”

At para. 7 Humphreys J stated that: -

“The requirement, if an applicant wants to make a point about scientific doubt, is to do any one of three things:

(i) bring forward something raising doubt within the process itself;

(ii) point to something raising doubt that was brought forward by somebody else; or

(iii) establish evidentially in the judicial review that the developer's material even if uncontradicted would on its face have created doubt in the mind of a reasonable expert.” Subsequently the Court stated that if an applicant fails to do any one of those things the complaint is not established. It is not unfair for an applicant to have to point to evidence for its complaint. Placing the burden on an applicant to demonstrate a problem (as opposed to proving same by its own evidence) is placing it in line with existing jurisprudence.

28. The evidence on behalf of the applicant put before the Court comprised an affidavit of Ms Lennon of 13 December 2021 wherein there was no contradiction of the Board’s finding as mentioned at para. 27 of the judgment in respect of the greylag goose. Accordingly, none of the three options available to an applicant absent scientific evidence is present in the within matter. In paras. 79, 81 and 82 of the judgment aside from a lack of scientific evidence it was said at para. 79 that the argument then being considered was a merits-based argument without engagement in either screening of the local authority or ABP with insufficient particulars in the statement of grounds. It was said that because it is a merits-based argument it is inappropriate for judicial review in the absence of scientific evidence to support the proposition advanced. In para. 81 it is recorded that there was no evidence of bird disturbances or the mitigation measures, pleadings were vague, hypothetical and failing to comply with O.84, r.20. The lack of scientific evidence was also considered relevant. In para.

82 aside from a lack of scientific evidence it was stated that there was no manifest error or flaw in the determination.

29. In the circumstances therefore given the lack of lacuna as identified by ABP and the content of paras. 79, 81 and 82 of the judgment it is not clear how Legal Point C arises on foot of the within judgment or would be dispositive of the within proceedings. It is accepted by the applicant that the point was not pleaded.

30. Accordingly, the question is not an appropriate point of law to certify.

31. The entirety of the application for a certificate for leave to appeal is refused.

32. As this judgment is being delivered electronically, with regards to the issue of costs, it is my provisional view that there should be no order as to costs. As the parties have not had an opportunity to make submissions, I shall allow the parties the opportunity to make written submissions of not more than 1,000 words within 14 days of this judgment being delivered. should they disagree with the order proposed. In default of such submissions being filed, the proposed order will be made.