High Court quashes An Bord Pleanála decisions and remits appeals for Habitats Directive assessment with procedural directions.

Neutral Citation: [2014] IEHC 422

THE HIGH COURT

[2013 No. 802 J.R.]

BETWEEN

EAMON (TED) KELLY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

ROSCOMMON COUNTY COUNCIL, GALETECH ENERGY DEVELOPMENTS LIMITED, SKY VALLEY CONCERNED RESIDENTS GROUP,

WIND TURBINE ACTION GROUP SOUTH ROSCOMMON, THE DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT, SKY

VALLEY WIND COMPANY, THE HERITAGE COUNCIL AND THE COMMISSION FOR ENERGY REGULATION, PAUL DONOHUE, JAMES

FRANCIS FALLON, THOMAS BURKE, MARIA DONNELLY, TOM AND FIONA FARRELL, LIAM KILDEA SKY VALLEY CONCERNED

RESIDENTS GROUP, THE HERITAGE COUNCIL AND THE COMMISSION FOR ENERGY REGULATION

NOTICE PARTIES

SUPPLEMENTAL JUDGMENT of Ms. Justice Finlay Geoghegan delivered on the 18th day of September 2014

1. This judgment is supplemental to a judgment delivered by me on 25th July 2014 (“the principal judgment”). Parties and defined

terms are referred to and used in the same way as in that judgment.

2. In the principal judgment, I determined that the applicant was entitled to orders of certiorari of each of the challenged decisions

set out in para. 1 of the judgment. Each decision is a decision of the Board to grant permission for a development of wind turbines in

County Roscommon.

3. On 28th July 2014, there was a further short hearing relating to the precise form of the order to be made and the question of

costs.

4. The only application for costs was an order in favour of the applicant against the Board to include all reserved and discovery costs,

such costs to be taxed in default of agreement. I determined the applicant was entitled to such an order.

5. Galetech sought, in addition to the orders of certiorari indicated in the judgment orders, pursuant to O. 84, r. 27(4) of the Rules of

the Superior Courts, remitting each appeal to the Board for determination in accordance with law.

6. The other parties represented did not oppose an order remitting each appeal to the Board for determination in accordance with

law. However, the Department, supported by the applicant, submitted that the Court should give further directions as part of any

order for remittal in accordance with the judgment of Clarke J. in the High Court in Christian v. Dublin City Council (No. 2) [2012] IEHC

309. It was submitted that the Board should give additional directions in order to avoid the risk of a further judicial review application.

Reference was made to the approach taken by Kelly J. in Usk and District Residents Association v. An Bord Pleanála [2007] IEHC 86.

In that judgment, Kelly J., having quashed a decision of An Bord Pleanála and agreeing to remit the matter to the Board, did not give

directions, but rather, made recommendations to the Board as to certain procedures to be followed in taking the further decision. The

Board did not follow the recommendations set out in the judgment and the further procedure adopted by the Board gave rise to a

further application for judicial review, and ultimately, an order of certiorari quashing the subsequent decision (Usk and District

Residents Association v. An Bord Pleanála, MacMenamin J. [2009] IEHC 346).

7. Counsel for the Board did not dispute the jurisdiction of the Court to give directions in an order remitting the appeals to the Board

for determination but submitted that the procedure to be followed should be left to the Board in accordance with its statutory

powers. Similarly, Galetech did not dispute the jurisdiction of the Court to give directions, and suggested that the Court should now

give liberty to apply in the event that there were any dispute subsequent to the remittal as to the procedure to be followed.

8. In the course of this hearing, I indicated that it would not be appropriate to give liberty to apply as submitted by Galetech. In the

event that there were to be any future dispute between the parties, that would be a new and fresh dispute requiring separate

proceedings. The order now to be made by the Court, pursuant to the judgment of 25th July 2014, must be the final order in these

proceedings.

9. In the course of the hearing on 28th July 2014, the Board, through its counsel, also indicated that it was seeking a stay on any

order of certiorari and order for remittal that might be made on that day so as to enable it consider, with the benefit of legal advice,

whether it wished to apply for a certificate pursuant to s. 50A(7) of the PDA to permit it appeal.

10. At the end of the hearing on 28th July 2014, I decided that no orders would be drawn on that day and that the matter would be

put in for mention before the Court on 1st September 2014 for the purpose, primarily, of the Board informing the Court whether it

wished to make an application pursuant to s. 50A(7) of the PDA. I also indicated that if the Board wished to set out before the Court

the procedure it proposed following, that it could do so. Counsel, on its behalf, indicated that it was improbable that it would do so as

it could only consider what was required to be done after the order quashing its decisions and remitting the matter to it had been

made by the Court.

11. On 1st September 2014, counsel for the Board informed the Court that it had decided not to make an application for a certificate

pursuant to s. 50A(7) of the PDA and was not making any further submissions to the Court. I indicated that I would issue a short

decision on the precise form of the order which the Court would make pursuant to the principal judgment and having regard to the

application for the order for remittal and directions and the submissions made on 28th July 2014 to the Court.

12. Order 84, r. 27(4) of the Rules of the Superior Courts provides:

“Where the relief sought is certiorari and the Court is satisfied that there are grounds for quashing the decision to which

the application relates, the Court may, in addition to quashing it, remit the matter to the Court, Tribunal or authority

concerned with a direction to reconsider it and reach a decision in accordance with the findings of the Court.”

13. It is not in dispute that the discretion of the Court to remit, in accordance with the above rule, is a wide discretion, as observed

by Kelly J. in Usk and District Residents Association v. An Bord Pleanála. No party objects to the Court remitting the matter to the

Board following the principal judgment. The facts are such that it is just in the interests of all the parties concerned that the two

appeals in question be remitted to the Board for reconsideration and determination, in accordance with principal judgment.

14. The issue in dispute between the parties is whether the Court should, in addition to giving such a general direction, give additional

directions as to any part of the procedure by which the Board should now reconsider and determine the appeals.

15. In Christian v. Dublin City Council, Clarke J., in the High Court in a supplemental judgment [2012] IEHC 209, stated at para. 4.17:

“4.17 It seems to me that where a matter is referred back to a decision-maker, the inherent jurisdiction of the court

entitles the court to give directions as to the process to be followed by that decision-maker in reconsidering the matter.

However, the court should, in giving such directions, attempt to replicate, insofar as it may be practicable, the legal

requirements that would apply, whether under statute, rules or the like, to the making of decisions of that type. It will not

always be possible to ensure exact compliance with the relevant regime, for it is in the nature of a decision having already

been made and having been subsequently quashed, that some variation on the normal procedure may be necessitated . .

.”

16. I would respectfully agree that the Court has such an inherent jurisdiction, but accept that it should also exercise restraint in

doing so, and in particular, be careful not to unnecessarily interfere with a discretion conferred by statute or otherwise on the

decision making authority. The necessity to give directions will depend upon the issues in dispute between the parties and the

grounds upon which the orders of certiorari were made, and the extent to which there is any lack of clarity as to the procedure

which may be followed following the order of the Court remitting the matter to the decision making authority.

17. The primary direction sought by the Department and the applicant is a direction that all parties be given an opportunity to make

one further round of submissions in each of the appeals prior to the Board reaching its new decision. The applicant also sought a

direction that in the event that the Board sought any further information from any party, that it would be given an opportunity of

submitting observations or comments on same.

18. The Department also drew attention to the fact that the Board, in the quashed decision on Phase 2, appeared to take into

account further information requested in the appeal procedure in Phase 1, and submitted that, as a matter of fair procedures, the

parties should be entitled to make further submissions in both sets of appeals.

19. The primary objections to the Court giving any detailed direction as part of the order for remittal are the wide powers given to the

Board in Chapter III of the PDA in relation to the conduct of appeals. It was submitted that the Court should not interfere with the

discretion given to the Board as to how it should determine an appeal, even after an order quashing its initial decision and remitting

same for further consideration and determination by the Board. In particular, reliance was placed on the powers of the Board under

ss. 131 and 137 of the PDA.

Conclusion

20. The decisions which were the subject matter of the principal judgment are the final decisions taken by the Board in each of the

two appeals referenced at para. 1 of the principal judgment. Whilst they have been termed decisions to grant planning permission,

which was the ultimate decision taken, those decisions include also a purported appropriate assessment conducted by the Board, a

purported determination in each appropriate assessment and the reason for that determination. As appears from the principal

judgment, the main ground upon which the Court determined that orders of certiorari should be granted was that the Board failed to

conduct, in each appeal, an appropriate assessment which met the requirements of Article 6(3) of the Habitats Directive, as explained

by the CJEU; further, that the determination made by the Board in each appeal that the proposed development, individually or in

combination with other plans or projects, would not adversely affect the integrity of any European site in view of the conservation of

those sites, was not lawful as it was not made as part of an appropriate assessment lawfully conducted, and in the absence of such

a lawful determination, the Board did not have jurisdiction to grant planning permission for the proposed development. The Court also

concluded that the Board failed to give reasons for its determination in the appropriate assessment which met the requirements of

law.

21. It follows from the principal judgment that the orders of certiorari are of the entire decisions made by the Board in each of the

appeals on 9th September 2013 and 13th September 2013, respectively including the purported determinations in each purported

appropriate assessment.

22. Further, it follows from the judgment, that following the remittal the Board is now required to conduct, in advance of making any

planning decision, an appropriate assessment in each appeal in accordance with the law, reach a determination therein and give

reasons therefore as set out in the principal judgment.

23. On those facts, it is not clear the precise point reached in the statutory scheme of the PDA following the proposed remittal by the

High Court. I recognise that the Board may wish to be in a position to consider whether it wishes to exercise the discretion given it, in

particular, by ss. 131 and 137 of the PDA and seek further information or submissions and appears entitled to do so. In those

circumstances, it does not appear to me that the directions which I might now give should be prescriptive as to the precise procedure

to be followed by the Board.

24. Nevertheless, I have also concluded that following an order remitting the matter to the Board for the purpose of, inter alia,

conducting a lawful appropriate assessment, that all parties to the appeal should, as a matter of fair procedures, be entitled, at

minimum, to make a further submission to the Board prior to its conducting the appropriate assessment now required, and reaching its

determination and decision. Accordingly, I propose, in the order for remission, giving a direction that:

the Board should, at minimum, invite all parties to each appeal to make a further submission prior to conducting the

appropriate assessment pursuant to Article 6(3) of the Habitats Directive and determining the appeal.

This is only intended as a minimum prescription. It should remain a matter for the Board to decide whether they wish to obtain further

information or submissions in accordance with their statutory powers.

25. The other relevant matter which was in dispute between the parties in these proceedings was whether or not the Board had

taken into account certain additional information by way of a bird survey furnished to the Board in the Phase 1 appeal in the Phase 2

appeal. It is undesirable and risks giving rise to future proceedings if there is uncertainty as to what matters are proposed to be taken

into account by the Board in determining each appeal. Accordingly, I propose giving one further direction in the order remitting the

appeals to the Board, namely:

in the event that the Board seeks further information in either appeal, it shall make clear whether the requested

information is to be considered by it in that appeal only, or in the two appeals, and give any appropriate notice required

by the Planning and Development Act 2000.

Relief

26. The substantive terms of the order to be made pursuant to the principal judgment and this judgment is:

(i) An order of certiorari of the determination and decisions of An Bord Pleanála made on 9th September 2013 in appeal

reference PL20.239759 Planning Register Ref. 10/541.

(ii) An order of certiorari of the determination and decisions of An Bord Pleanála made on 13th September 2013 in appeal

reference PL20.241069 Planning Register Ref. 11/273.

(iii) An order remitting each of the said appeals to An Bord Pleanála with a direction that it carry out an appropriate

assessment which meets the requirements of Article 6(3) of the Habitats Directive and reach a determination therein and

give reasons therfor in accordance with the judgment delivered by the High Court on 25th July 2014.

(iv) A direction that the Board should, at minimum, invite all parties to each appeal to make a further submission prior to

conducting the appropriate assessment pursuant to Article 6(3) of the Habitats Directive and determining the appeal.

(v) A direction that in the event that the Board seeks further information in either appeal, it shall make clear whether the

requested information is to be considered by it in that appeal only, or in the two appeals, and give any appropriate notice

required by the Planning and Development Act 2000.