Supreme Court defers deemed planning permission due to missing Environmental Impact Statement assessment. Default permission invalid without proper EIS. Case remitted to High Court. An Taisce allowed to intervene.

THE SUPREME COURT

[S.C. No. 91 of 2008]

Kearns, P.

Denham, J.

Hardiman, J.

Geoghegan, J.

Fennelly, J.

BETWEEN:

ABBEYDRIVE DEVELOPMENTS LTD

APPLICANTS/APPELLANTS

AND

KILDARE COUNTY COUNCIL

RESPONDENT

JUDGMENT of Kearns, P. delivered on the 18th day of February 2010.

This judgment addresses certain issues which have arisen following delivery of judgment by the Court in this matter on

22nd July 2009. In that judgment, Fennelly, J., with whom the other members of the Court agreed, upheld the applicant’s

appeal from the judgment of the High Court (Murphy, J.) dated 29th November 2005 and held that the applicant was

entitled to a declaration pursuant to 34(8) of the Planning and Development Act, 2000, to the effect that the respondent

Planning Authority, having failed to make a decision on the applicant’s application for planning permission within the

prescribed period, be deemed to have given such a decision on the last day of that period.

The background is set out fully in the judgment of Fennelly J and need only be briefly stated here. The applicant applied

for planning permission to build houses on a site in Ballymore Eustace on 3rd December 2002. That application was

accompanied by an Environmental Impact Statement. A site notice was duly erected and notification published in a

national newspaper. Each notification stated that an Environmental Impact Statement had been submitted with the

application for planning permission. An Taisce, as a prescribed body under the Planning and Development Act 2000, was

notified of the planning application by the respondent by letter dated 12th December 2002. A submission was made by An

Taisce to the respondent on 3rd January 2003 and receipt of same was acknowledged by the respondent on 7th January

2003. Thereafter An Taisce received no further correspondence from the respondent until 3rd January 2007 when it was

informed that the planning application had been deemed withdrawn. An Taisce received a similar letter to the same effect

from the respondent dated 26th June 2008. Those letters were totally misleading because the application had not in fact

been withdrawn.

An Taisce was thus unaware of the present proceedings until the judgment of this Court was reported in a national

newspaper in July, 2009. In other words, An Taisce not only had not been notified of the default permission, but was

never made aware of the existence of the proceedings in either the High Court or the Supreme Court.

In those circumstances on 18th August 2009 An Taisce sought to appeal the grant of planning permission to An Bord

Pleanála. That appeal was deemed invalid by An Bord Pleanála on 18th August 2009 because of it was outside the period

permitted for the making of an appeal.

An Taisce is strongly of the view that the grant of default planning permission in respect of a proposed development

which was accompanied by an Environmental Impact Statement as required by Council Directive 85/337/EEC as amended

(hereinafter “the EIA Directive”) is contrary to European law. For that reason, An Taisce has sought to be heard prior to

the making of any final orders in the proceedings. While counsel on behalf of An Taisce expressly disavowed any intention

to reopen the judgment, it seeks now to be heard with a view to trying to persuade the court that the issue it has raised

is of such importance that it should be adjudicated upon and/or that an appeal by An Taisce to Bord Pleanála should be

permitted as part of the Court’s order. The application is brought pursuant to Order 84, Rule 26 of the Rules of the

Superior Courts which provides:-

“On the hearing of any motion or summons under Rule 22, any person who desires to be heard in opposition to the

motion or summons, and appears to the court to be a proper person to be heard, shall be heard, notwithstanding

that he has not been served with notice of the motion or the summons.”

Rule 22 (2) of the Rules of the Superior Courts provides that the notice of motion in respect of an application for judicial

review “must be served on all persons directly affected”. Counsel contends that An Taisce has locus standi as a person

“affected” by the proposed development and as a “prescribed body” for the purpose of the Act of 2000.

Counsel on behalf of An Taisce pointed out that the European Court of Justice had ruled by its decision in Commission v

Belgium [2001] ECR 1-4605 that developments that are subject to the requirements of the EIA directive cannot be

authorised by way of tacit permission or refusal. Given that the applicant had submitted an Environmental Impact

Statement with its application for planning permission, the respondent did not have the vires to make the grant of

permission without engaging in the assessment requirements established by the EIA Directive. Neither this Court nor the

High Court had been made aware that the proposed development was subject to the provisions of the EIA Directive.

Counsel argued that there were “special and unusual circumstances” in this case which justified a further consideration of

this case by the Court. In this regard counsel relied on decisions of this Court in Re Greendale Developments Ltd (No. 3)

[2000] 2 I.R. 514 and the further decision of this Court in P. v P. (Supreme Court, unreported, 31st July 2001).

Counsel submitted that An Taisce had been deprived of its right to participate in the planning process or to appeal the

decision deemed to have been made by the planning authority in this case. This was due to no fault on the part of An

Taisce.

The application was strenuously resisted by Michael Collins, senior counsel on behalf of the applicants, who argued that

the matter was now res judicata and that, in effect, An Taisce was seeking to revisit the judgment and disapply its

conclusions by holding that a valid permission could not have been given by virtue of the failure to assess the EIS in this

case. He argued that An Taisce was not a party “affected” by the decision in the sense that they were neither an

applicant nor a body or party living in immediate proximity to the proposed development. He further argued that the point

in question could, if it was a good point, have been taken by the respondent, Kildare County Council, but was not. In

those circumstances, particularly when Kildare County Council itself could not raise the point in an appeal in

circumstances where it had failed to take the point in the High Court, it was scarcely open to An Taisce, who had not

participated at all in the proceedings, to make the point for the first time now in this Court.

Counsel on behalf of Kildare County Council frankly conceded and acknowledged that no consideration had been given by

his clients to the EIS issue when defending the proceedings in the High Court. He argued that by application of what he

described as ‘the doctrine of prohibition on inverse direct effect’ as that concept is understood in European law, it was

not open to the respondent in any event to make such a case, it was open only to an objector or third party to do so. To

that extent and for that reason he was ‘neutral’ as regards the application being made by An Taisce.

DISCUSSION AND DECISION

While in the ordinary course a decision of this Court on a matter raised before it is final and conclusive, the Court has

made it clear that where special or unusual circumstances are demonstrated the Court will nonetheless intervene to

interfere with its own order. This power derives from the special role assigned under the Constitution to this Court to

protect constitutional rights and justice. As Denham J. stated in Re Greendale Developments Ltd. (No. 3) [2000] I.R.

514:-

“The Supreme Court has jurisdiction and a duty to protect Constitutional rights. This jurisdiction may arise even if

there has been what appears to have been a final order. However, it will only arise in exceptional circumstances.

The burden on the applicants to establish that exceptional circumstances exist is heavy.”

I would immediately observe that the instant case is distinguishable from Greendale in that no final order has been made

by this court. This case has not reached the stage where the Court has made a decision which, in terms of Article 34,

section 4.6 of the Constitution, is “final and conclusive”. Nonetheless Greendale provides a useful guide as to the

principles which should apply when trying to resolve the kind of difficulty which has arisen here. It undoubtedly involves

the invocation of a special jurisdiction. In considering whether or not the threshold has been reached for the invocation of

this special jurisdiction, it is necessary to consider the overall importance of the point sought to be raised. Clearly it must

be a point which, if valid, would as a matter of probability have affected the outcome of the case. It is also important for

the Court to consider whether or not the particular point could have been raised in the High Court by a party who had the

opportunity to argue the point in that Court. This might be described as an application or example of the doctrine in

Henderson v. Henderson (1843) Hare 100 which requires the parties to litigation to bring forward their entire case at time

of trial. While this latter consideration does not apply to An Taisce, which was unaware of the proceedings, it would, in

my view, greatly weaken the strength of its application in the present instance if the point in question could have been

raised by Kildare County Council. I say so because it must be assumed that the planning interests of the planning

authority and those of An Taisce are similar if not identical insofar as protection of the planning process is concerned.

It is indisputable that a planning permission in default cannot be given for a development which the respondent authority

had no vires to give. It was submitted before the Court that a planning permission in default cannot be given for a

development that does not comply with the requirements of the Directive 85/337/EEC. In Commission v. Belgium (Case

C/230/00) [2001] ECR 1- 4591 the European Court of Justice expressly held that:-

“As was pointed out at para. 52 of the judgment in Case C/287/98 Linster [2000] ECR 1/6917, the essential aim of

Directive 85/337 ‘is that, before consent is given, projects likely to have significant effects on the environment by

virtue, inter alia, of their nature, size or location should be made subject to an assessment with regard to their

effects’.

It follows from that case law that tacit authorisation cannot be compatible with the requirements of the Directives

referred to in this action because they prescribe…in the case of Directive 85/337 assessment procedure preceding

the grant of authorisation. The national authorities are therefore required under each of those directives to

examine individually every request for authorisation.”

This is in no way a novel proposition or a development of such recent origin that the respondent council should not have

been well aware of it. It is expressly flagged and referred to in the seminal authority on Irish environmental law

“Environmental and Land Use Law” by Professor Yvonne Scannell (Thompson Round Hall, 2006 at p. 183).

In “Planning and Development Law” by Garrett Simons (Thompson Round Hall, 2nd Ed. 2007) the author states (at p.

160):-

“A default planning permission is not available where the proposed development is subject to the EIA Directive. The

essence of environmental impact assessment is that an informed decision, subject to mitigation measures where

appropriate, is made following a pubic consultation process. A default decision is the antithesis of this. Just as a

planning authority is precluded from making a decision to grant planning permission for EIA development without

carrying out the requisite assessment, it cannot produce the same result by its inactivity.”

While, as the author notes, the purpose of the default mechanism is to compel, as far as possible, a planning authority to

consider and decide an application within the appropriate period, he nonetheless states (at p. 155):-

“The existence of this default mechanism is indefensible. There is nothing to be said in its favour: it is inherently

unfair; unpopular with judges; disproportionate to the mischief which it is intended to remedy; and inconsistent

with other aspects of the Planning and Development Act, 2000.”

It is, in those circumstances, noteworthy that the point was neither argued nor adverted to in any way in the court

below. It will be recalled that the arguments there focused exclusively on the issue as to whether or not a planning

application which was “open for consideration” by the planning authority by reference to its own development plan could

be the subject matter of a default permission. The point in relation to the EIS was never canvassed at any stage.

In this context, it must be emphasised that the Court, be it the High Court or this Court can adjudicate only on matters

which are placed before it for that purpose. The Court does not perform an inquisitorial or prosecutorial function. The

Court offers itself by way of tabula rasa and leaves it to the parties to advance the points on which they rely and

requires the parties to raise and argue all relevant points at the same time.

However, notwithstanding that counsel for Kildare County Council frankly acknowledges that no consideration was given

to the EIS point in the High Court because of the particular line of defence adopted, he now contends before this Court

that in any event it was not open to him to raise the point. His contention in that regard relies upon a number of

authorities which hold that an emanation of the State may not rely upon its own default in aid of its defence. He

described this as the doctrine of “non applicability of inverse direct effect”.

The contention advanced by counsel on behalf of Kildare County Council finds support in the decision of the European

Court of Justice in Marshall v. Southampton and South West Hampshire Area Health Authority (Teaching) [1986] E.C.R.

723.

In that case, in the context of a Council Directive (76/207/E.E.C.) which provided that men and woman were guaranteed

the same conditions of employment without discrimination on grounds of sex, the court held that the terms of the

relevant article (5(1)) of the Directive were unconditional and sufficiently precise and could thus be relied upon by an

individual in an action against the State, but not against another individual. In the course of argument before the

European Court of Justice, the respondent authority and the United Kingdom conceded and admitted that a Directive,

having direct effect as against a member state does not permit reliance by the state upon its failure to perform its

obligations under the Directive.

In that case the court recalled, in accordance with a long line of decisions of the court, in particular its judgment in

Becker v. Finanzamt Munster-Innenstadt (Case 8/81) [1982] E.C.R. 53, that whenever the provisions of a Directive

appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may be

relied upon by an individual against the State where that State fails to implement the Directive in national law by the end

of the period prescribed or where it fails to implement the Directive correctly.

Such a view is based on the consideration that it is incompatible with the binding nature which the Treaty confers on a

Directive to hold as a matter of principle that the obligation imposed thereby cannot be relied upon by those concerned.

Thus in the Becker case the court deduced that a member state which has not adopted the implementing measures

required by the Directive within the prescribed period may not plead, as against individuals, its own failure to perform the

obligations which the Directive entails. Transposing that point to the instant case it would mean that An Taisce could

invoke the requirement for the EIS to challenge the deemed decision to grant a default permission but the respondent

council could not rely on any non-transposition of the requirements of the Directive to defend the case.

The Court of Appeal in the United Kingdom was faced with a similar difficulty in R. v. Durham County Council and Others,

Ex parte Huddleston [2000] 1 W.L.R. 1484. This was a planning case and it is thus particularly relevant to the instant

case because it also concerned a default permission. A company applied to revive a dormant old mining permission by

registering it with the council under the provisions of the Planning and Compensation Act, 1991. The company submitted a

scheme of conditions but did not provide an environmental impact assessment. Since the council were unable to

determine appropriate conditions for development within three months of the application, they considered that they were

deemed to have granted permission on the company’s conditions by virtue of paragraph 2(6)(b) of Schedule 2 to the Act

of 1991. The applicant, Mr. Huddleston, who lived near the quarry, applied for judicial review of the council’s decision,

seeking a declaration that paragraph 2(6)(b) failed to give effect to council Directive (85/337/E.E.C.) on the assessment

of the effects of certain public and private projects on the environment, which required member states to ensure that an

assessment was made of any significant environmental effects before giving development consent for development of the

kind proposed, and should be suspended. While the court at first instance refused the application an appeal from that

decision was successful. The Court of Appeal held that, under European law, the court could give direct effect to an

unimplemented Directive unless to do so would alter the legal relations between individuals, impose legal obligations on an

individual which limited his freedom of action vis-à-vis other individuals or create criminal sanctions.

Of particular relevance and importance in the present context, however, were the comments of Sedley L.J. who in the

course of his judgment stated as follows (at p. 1497):-

“As the European Court of Justice cases show, the failure of the state to transpose a Directive inevitably renders

the state itself impotent to implement it; but, for an individual with a recognised interest in proper

implementation, it is precisely the state’s failure which disables it from taking refuge in its own wrongdoing; and it

is this which in turn entitles the citizen, as Advocate General Sir Gordon Slynn explained in Marshall v. Southampton

and South West Hampshire Area Health Authority (Teaching) (Case 152/84) [1986] Q.B. 401, to assert rights

conferred by the Directive either as a sword or as a shield against the state, though not directly against another

individual. So what followed from Durham’s undoubted inability to treat Sherburn as if the Directive had been

implemented was not that Mr. Huddleston was rendered equally powerless but, on the contrary, that he was

entitled to insist that the state should act as Durham of its own motion could not act, in conformity with the

Directive. In doing so he was neither having Sherburn criminalised nor securing some change in his own relationship

with them: he was seeking, in the commentators’ jargon, to give the Directive a vertical effect which would clothe

Durham with the powers it ought to have had. This would of course subject Sherburn to more onerous conditions

for the grant of permission (though by their counsel they have disavowed any desire to on regardless of the effect

on the environment, and although they have in fact now produced an environmental impact assessment); but to

do this is not, in my judgment, to impose an obligation in the objectionable sense identified in the court’s

jurisprudence – that is to say, to interpose a new obligation in the relations between individuals or retrospectively

to criminalise the activity of one of them. It is to prevent the state, when asked by a citizen to give effect to the

unambiguous requirements of a Directive, from taking refuge in its own neglect to transpose them into national

law.” (Emphasis added)

I am satisfied that these authorities suggest clearly that the point raised by An Taisce, namely, that the failure to carry

out an assessment of the EIS is a point going to the very heart of a decision to grant permission, be it on a ‘deemed’

basis or otherwise, and, further, is one of substance which would, if upheld, have affected the outcome of the

proceedings herein. Whatever about the respondent council, An Taisce would not have been precluded from asserting, in

accordance with the provisions of Council Directive 85/337/E.E.C., that a tacit approval could not be granted without

appropriate assessment of the EIS in this case. I am further of the view that An Taisce is in this context to be regarded

as an ‘affected’ party.

Further, I am not satisfied that the authorities cited above necessarily preclude the respondent council from arguing that

a decision to grant permission by default should not be deemed to have been made. The rule that a Member State or its

emanations is precluded from relying on its own failure to implement a directive has been applied only in circumstances

where an individual (such as in Becker or in Marshall) seeks to rely on his or her own Community law rights against the

State. The rationale of that principle is that effect should be given to the directive even where it has not been

implemented. That principle is not applicable where it is the respondent council which seeks to argue for the effectiveness

of Community law. I would prefer, however, to leave any decision on that point for consideration by the High Court.

While obviously one is always reluctant to revisit a judgment which in ordinary circumstances would be regarded as

bringing matters to a conclusion, the exceptional and unusual circumstances of this case really leave the Court with no

alternative if it is to do justice. All of the adverse consequences which flow from a default planning permission have been

fully adumbrated in the passage from Mr. Simon’s book to which I have referred. I believe the only proper course for the

Court to adopt in the circumstances which have arisen is to defer making any final order until the issue in relation to the

EIS is determined by the High Court. I would favour remitting that issue, and that issue alone, to the High Court for that

purpose. I would also accede to An Taisce’s request to be heard at any hearing which may take place there.

It follows that the judgment which this Court has previously delivered herein must be construed as meaning that its

declaration that a permission is deemed to have been granted is nonetheless subject to any determination made either by

the High Court or this Court as to whether a default permission can in law be deemed to have been given in the absence

of any assessment required by the Directive