High Court refuses certificate of leave to appeal on planning law points lacking exceptional public importance.

[2017] IEHC 250

THE HIGH COURT

COMMERCIAL

[2016 No. 728 J.R.]

BETWEEN

NORTH KERRY WIND TURBINE AWARENESS GROUP

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

KERRY COUNTY COUNCIL, IRELAND, ATTORNEY GENERAL AND STACKS MOUNTAIN WINDFARM LIMITED

NOTICE PARTIES

JUDGMENT of Mr. Justice Brian J. McGovern delivered on the 2nd day of May, 2017.

1. In a judgment delivered on 9th March, 2017, this Court refused the applicant’s claim for an order of certiorari quashing a decision of

the respondent (“the Board”) made on 25th July, 2016, granting the notice party planning permission (appeal reference PL08.244066)

in respect of the construction of a wind farm consisting of ten wind turbines and ancillary works at Ballyhorgan South, Lixnaw;

Ballyhorgan East, Lixnaw; Irramore, Listowel; Lissahane, Listowel; and, Muckenagh, Lixnaw in the County of Kerry. The applicant

seeks a certificate for leave to appeal against that judgment.

2. The requirement for leave to appeal is set out in s. 50A(7) of the Planning and Development Act 2000 (as amended) (“the Act of

2000”). The principles applicable in applications brought under s. 50A(7) of the Act of 2000 are set out in a judgment of Mac Menamin

J. in the High Court in the case of Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250. In that case it was held that the decision

must involve a point of law of exceptional importance and it must be desirable in the public interest that an appeal should be taken.

The principles enumerated in the Glancré case were followed by Clarke J. in Arklow Holidays Limited v. An Bord Pleanála [2008] IEHC 2

where Clarke J. added that there must be some uncertainty as to the law and that the importance of the point to be certified must

be public in nature and transcend the individual facts and parties of a given case.

3. The requirements of s. 50A(7) are cumulative. In other words, the point in respect of which a certificate is sought must be both of

exceptional public importance, and separately, it must be in the public interest that an appeal should be brought. The certificate must

demonstrate that the point of law upon which it is sought to appeal arises out of the judgment of the High Court. In Gritto v. Minister

for Justice, Equality and Law Reform [2005] IEHC 75 Laffoy J. observed that the requirement that the decision involved “a point of

law of exceptional public importance” imposes a higher threshold than if the requirement merely related to a “point of law of public

importance”. All the parties to this application accept these statements of the law as being applicable to the present application. I

adopt those principles and apply them in determining the application in this case.

4. The applicant seeks to have the following points of law certified as points of law of exceptional public importance:-

(i) Can the Board conduct a lawful Environmental Impact Assessment (“E.I.A.”) in respect of a project comprising a wind

farm development and associated grid connection in circumstances where the grid connection route was expressed to be

indicative only, and was not the subject of any consent application?

(ii) Having regard to Article 6(3) of the Habitats Directive and Part XAB of the Planning and Development Act 2000 (and in

particular the separate ss. 177U and 117V) is it lawful for the Board to adopt a stage 1 screening assessment conducted

by its inspector as its own stage 2 full appropriate assessment and for its assessment and determination to be recorded in

this manner?

(iii) Is the standard for the recording of Environmental Impact Assessment that to be found in the line of authority relied

on by the High Court namely Ahern [2015] IEHC 606; Ratheniska [2015] IEHC 18; and People Over Wind [2015] IEHC 271,

or is the standard that to be found in Balz [2016] IEHC 134; and Connelly [2016] IEHC 322 .

(iv) In what circumstances may the Board grant permission for a development that materially contravenes the

development plan in force in respect of the area of the development and what, if any obligations exist on the Board to

give reasons for granting such a permission?

(v) Do the E.I.A. authorities such as Boxus Case C-128/09 and Berkley [2001] 2 A.C. 603 have application to the

obligations to carry out and record an Appropriate Assessment (“A.A.”)?

Point (i)

5. The issue raised by the applicant is not one which was argued to any great extent at the hearing. While the applicant argues that

the grid connection was “indicative”, there was no substantial debate during the hearing as to what that actually meant in terms of

the carrying out of a lawful E.I.A.. The applicant’s assertion that its primary point in relation to the grid connection was that it was

uncertain and indicative only in nature is not borne out by the arguments made at the hearing or the statement of grounds and in

particular E5. The real question raised by the applicant was whether the grid connection needed to be assessed as part of the overall

project and this Court held that that point was determined in Ó Gríanna (No. 2). The extent of the Board’s legal obligation to assess a

project under the E.I.A. Directive has been the subject of a number of decisions of the C.J.E.U. and is not in a state of “considerably

uncertainty” as claimed by the applicant. Point (i) does not meet the criteria set out in Glancré Teoranta and the other jurisprudence

referred to above; therefore, I decline to issue a certificate in respect of that point.

Point (ii)

6. This issue is postulated on a misinterpretation of the court’s finding. In effect, the applicant asserts that as a matter of fact, the

Board adopted the inspector’s screening as a full A.A.. This is not what happened and the judgment of this Court makes that clear.

The court held that the Board accepted the substantive conclusions of the inspector in terms of the actual impact and the effects of

the proposed development and its associated mitigation measures on the environment. But the court went on to hold that the Board

then proceeded to conduct its own A.A.. The applicant seeks to revisit this argument and the court’s decision in a way which might

be permissible if the ordinary rules concerning appeals applied. But the ordinary rules concerning appeals do not apply as this is an

application under s.50A(7). The court held that the Board proceeded to conduct a stage 2 A.A.; therefore, no issue arises as to the

consideration of mitigation measures at the screening stage for A.A.. This point is neither of exceptional public importance nor is it in

the public interest that an appeal should be brought on this point. Accordingly, it fails the test required for a certificate. I decline to

issue a certificate in respect of that point.

Point (iii)

7. The applicant seeks to have certified a question as to the standard of recording of an E.I.A. contrasting the Ahern and Ratheniska

decisions on the one hand with the Balz and Connelly decisions on the other hand. In its judgment of the case of Ahern & Ors v. An

Bord Pleanála & Ors [2016] IEHC 536 at para. 9 of his judgment, Noonan J. stated:-

“Further, in my view, there is no uncertainty in the law relating to the recording of E.I.A’s. (See Ratheniska Timahoe and

Spink (R.T.S.) Substation Action Group & Anor v. An Bord Pleanála & Anor [2015] IEHC 18 and Buckley v. An Bord Pleanála

[2015] IEHC 572). The applicants place reliance on the recent judgment of Barton J. in Balz v. An Bord Pleanála

(Unreported, High Court, 25th February, 2016) where it was held that it was not possible to determine from the decision if

the Board complied with its obligation to carry out and complete an E.I.A.. They suggest that this gives rise to

uncertainty in the light of my findings but I am satisfied that the conclusion of Barton J. was arrived at by the application

of settled principles to the particular facts of that case and thus no uncertainty arises.”

8. So far as the Connelly case is concerned, I referred to it in my judgment in this case delivered on 9th March, 2017. That case is

the subject of a petition to the Supreme Court by An Bord Pleanála on the basis that the Board contends that it is not in conformity

with a substantial body of current jurisprudence and sets an unreasonably high standard on the Board. For that reason, I did not take

it into account as being relevant to the court’s deliberations in this case. In any event, there was no real engagement by the

applicant as to how the Connelly case would assist the applicant in this case. While the applicant argued that there was no record of

an E.I.A., the court found that this was simply not the case. Furthermore, this Court held that there was no dispute between the

parties that current jurisprudence confirmed that the perspective from which a planning decision must be looked at is that of an

intelligent person who has taken part in the appeal or had been apprised of the issues which had arisen before the Board. There is no

uncertainty in the law on the issue of the standard for recording E.I.A.. It must be remembered that, in para. [1] of their written

submissions before the main hearing, the applicant argued that there was no record of an E.I.A. and the court rejected that

argument. Point (iii) sought to be certified by the applicant does not meet the relevant criteria in the Glancré case. Accordingly, I

decline to issue a certificate in respect of that point.

Point (iv)

9. The applicant contends that there is some element of uncertainty surrounding the extent to which (and in what circumstances)

the Board can decide to grant permission in material contravention of a development. It suggests that there is a lacuna in the

legislation in that regard.

10. Section 37(2)(a) of the Act of 2000, provides:-

“Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if

the proposed development contravenes materially the development plan relating to the area of the planning authority to

whose decision the appeal relates.”

It is hard to see how that section could be any clearer in its terms. There is no uncertainty as to what it means nor is there any

lacuna in the legislation on this issue.

11. Section 37(2)(b) of the Act of 2000 states:-

“Where a planning authority has decided to refuse permission on the grounds that a proposed development materially

contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it

considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the

proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to regional spatial and economic strategy

for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local

authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or

(iv) permission for the proposed development should be granted having regard to the pattern of development, and

permissions granted, in the area since the making of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the

requirements of section 34(10), indicate in its decision the main reasons and considerations for contravening materially

the development plan.”

12. This section offers complete clarity as to the extent to which (and in what circumstances) the Board can decide to grant

permission in material contravention of a development. In the court’s judgment it applied the provisions of s. 37 to the facts in issue

and concluded that the decision of the Board was clear in its meaning and that the decision set out quite clearly why it granted

permission notwithstanding that it would involve a material contravention of the development plan. But in any event, s. 37(2) does

not deal with the circumstances which arise in this case because the planning authority did not refuse planning permission on the

basis of a material contravention of the development plan nor could it have done so because the development plan was not in place

at the time it made its decision. In this case the Board did consider the development plan which was in place by the time the appeal

came before it and set out its decision in a way which was clear and understandable and did so by reference to documents identified

in the decision.

13. There is no uncertainty or ambiguity in the meaning of s. 37(2) of the Act of 2000 nor is there any lacuna. In my view, there is no

basis for granting a certificate on this point and I decline to do so.

Point (v)

14. The applicants contend that “there is significant uncertainty arising from the Court’s judgment to the effect that requiring the

application of the standards set out in Kelly to A.A. is unduly formulaic and, that the lesser standard applied in the context of E.I.A.

ought to be preferred”. The applicant’s arguments on this point are based on a misconstruction and misunderstanding of the judgment

of this Court. Nothing in the court’s judgment was at odds with the decision of Finlay Geoghegan J. in Kelly v. An Bord Pleanála [2014]

IEHC 400. Indeed, in the conclusions of this Court in the judgment delivered on 9th March, 2017, I held that the decision of the Board

meets the test set out in Kelly and other case law referred to in that judgment. I also concluded that there was no conflict between

the Kelly case and the other cases which I referred to in that judgment; rather, they were complementary. I do not understand the

contention of the applicant that the judgment suggests that requiring the application of the standards set out in the Kelly case to

A.A. is unduly formulaic and that the lesser standard applied in the context of E.I.A. ought to be preferred. No such finding or even

suggestion has been made in the judgment of this Court. The contention is based on a complete misunderstanding of the judgment in

that regard. The Boxus case and the Berkley case contained references to E.I.A. and not A.A. and in the course of the court’s

judgment, I stated: “[i]n my view the comments of Advocate General Sharpston are a useful guide for our courts in reviewing planning

decisions involving the E.I.A. Directive and I adopt them”. The observations expressed in the judgment of the Court where illustrative

of the manner in which the court should approach the review of planning decisions generally and not to any other effect. There is, in

my view, no uncertainty as to the application of the standards set out in the Kelly case in respect of A.A. and this Court has adopted

the principles of that judgment elsewhere. The question raised at point (iv) cannot be said to involve a point of law of exceptional

public importance nor has the applicant established to the degree required that it is in the public interest that an appeal on that issue

should be allowed. I refuse a certificate on that point.

Decision

15. The application for a certificate on each of the grounds is refused.