High Court dismisses judicial review as a time-barred collateral attack on a Board of Planning decision.

Neutral Citation: [2015] IEHC 604

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 14 J.R.]

BETWEEN

AN TAISCE

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

KERRY COUNTY COUNCIL

FIRST NOTICE PARTY

IAN & RACHEL SMITH, BARBIE ORBIS, GAVIN SINGFIELD, MESSANINE LOGISTICS LIMITED, TOM MORIARTY, COVEN

DEVELOPMENTS LIMITED, LISA MORIARTY, TED & CARMEL BROWNE, CYCLIST.IE AND MEITHEAL FHORBHAIRT INBHUNAITHE

CORCA DHUIBHNE

SECOND TO ELEVENTH NOTICE PARTIES

JUDGMENT of Mr. Justice Haughton delivered on the 7th day of October, 2015

Index:

Introduction

The Facts

Summary of Grounds

Roads Act, 1993 – the 28km Scheme

Part XI PDA 2000/Part 8 Planning and Development Regulations, 2001 – the 4.2km Scheme

Direction of the Board of 16th November, 2011 – A preliminary issue raised by Kerry County Council

Kerry County Council’s Argument

An Taisce’s Response

Discussion

Introduction

1. In this application for judicial review An Taisce (“An Taisce”) seeks an order of certiorari, among other reliefs, quashing the

decision dated 10th November, 2014 of the respondent, An Bord Pleanála (“the Board” or “the respondent”) to grant the first notice

party, Kerry County Council (“Kerry County Council”), planning permission for the construction and/or rebuilding of the N86 Dingle to

Annascaul and Gortbreagoge to Camp Road Improvement Scheme (Board reference PL08.HA0048) (“the 28km Scheme”).

2. An Taisce is the National Trust for Ireland and was founded as a charity in 1948. It is one of Ireland’s oldest and largest Non-

Governmental Organisations, and is a prescribed consultee for a number of different consent processes in Ireland. The organisation’s

objectives include the protection of Ireland’s built and natural environment.

3. The application was brought by way of an ex parte motion on 13th January, 2015 for leave to apply for judicial review, and such

leave was granted for all reliefs sought by way of a court order dated 15th January, 2015. The proceedings were transferred to the

Commercial List on 16th February, 2015 and set down for hearing on 14th July, 2015.

The Facts

4. In a letter dated 13th October, 2010, Kerry County Council made a request to the Board for a direction in accordance with s. 50(1)

(c) of the Roads Act, 1993, as amended, to confirm that the local authority was required to prepare an environmental impact

statement (“EIS”) in relation to a proposed N86 Tralee to An Daingean Road Improvement Scheme (“the 32km Scheme”). The scheme

involved widening and improving an approximately 32km stretch of road, including some off line works, and extended from the junction

of the N86 with the R560, passing through the villages of Camp Annascaul and Lios Poil, to the town of An Daingean.

5. On 28th March, 2011 the Board received correspondence dated 23rd March, 2011 from Kerry County Council to the effect that it

received funding from the National Roads Authority to progress the redevelopment of 4.2km of the road, and that Kerry County

Council were operating with a view to beginning construction in late 2011. It indicated that it intended to progress the 4.2km section

under Part XI of the Planning and Development Act, 2000, as amended (“PDA 2000”). This section of road extends from Annascaul

village in the west to Gortbreagoge in the east, referred to as the N86 Annascaul to Gortbreagoge Road Improvement Scheme (“the

4.2km Scheme”). Kerry County Council also indicated that it had commissioned an EIS for the 4.2km stretch of road, and that the EIS

concluded that the 4.2km Scheme did not require an environmental impact assessment (“EIA”).

6. Kerry County Council note in the letter that “[a]s the timing of the planning consent process for the overall scheme…would not

facilitate the commencement of construction of this section of the scheme in 2011, the possibility of progressing the N86 Annascaul

to Gortbreagoge Road Improvement Scheme through a separate planning consent process was assessed.” The correspondence stated

that a screening exercise for the purposes of an EIA and an appropriate assessment (“AA”) had been conducted and that a natura

impact statement (“NIS”) had been completed in relation to two sites near the development. Kerry County Council also indicated its

intention to withdraw the request of 13th October, 2010 on the 32km Scheme should the new proposals be acceptable, and that an

EIS would be carried out on the remaining 28kms in due course.

7. The Board wrote to Kerry County Council on 20th April, 2011 outlining its acceptance of the proposals that the local authority had

outlined in its letter dated 23rd March, 2011. On 6th May, 2011 Kerry County Council wrote to the Board formally withdrawing the

application relating to the entire 32km Scheme which was received by the Board on 11th May.

8. On 20th June, 2011 Kerry County Council approved construction of the 4.2km Scheme under Part XI of the PDA 2000 and Part 8 of

the Planning and Development Regulations 2001 (S.I. No. 600/2001 as amended) (“PDR 2001”). This decision became effective six

weeks later. The court was informed that the construction work was completed in July, 2013.

9. On 29th June, 2011 the Board received a request from Kerry County Council dated 27th June, 2011 (ref.PL08.HD0024) requesting

the Board issue a direction in accordance with s. 50(1)(c) of the Roads Act, 1993, as amended, to confirm that an EIS was required

on the 28km section of road left to be completed between An Daingean and the junction of the N86 and R560, known as the N86 An

Daingean to Annascaul and Gortbreagoge to Camp Road Improvement Scheme (“the 28km Scheme”). This development consisted of

two sections of road separated by the 4.2km Scheme, being 11.5km to the east and 16.5km to the west of the 4.2km Scheme.

10. Pursuant to that request and having considered its Inspectors Report dated 15th November, 2011 the Board on 16th November,

2011 issued a direction and a decision under s. 50(1)(b) of the Roads Act, 1993 directing Kerry County Council to prepare an EIS in

relation to the 28km Scheme.

11. The Board then received an application for approval on 22nd December, 2011 for the 28km Scheme which included an EIS and NIS

for the 28km stretch of road. The EIS was not conducted on the stretch of road under the 4.2km Scheme save to the extent that it

took it into account in assessing the cumulative effect on the environment of other projects. Copies of the application for approval

and the accompanying EIS were electronically furnished to An Taisce as a statutory consultee on or about 21st December, 2011.

12. The Board subsequently appointed an inspector and an oral hearing was held in 15th-17th May, 2012. The inspector reported to

the Board in August, 2012, and recommended that permission for the project be refused on the grounds that, inter alia, no cumulative

EIA of the entire project was possible as the environmental effects from the 4.2km Scheme had not been considered along with those

from the 28km Scheme.

13. The Board then issued a letter on 7th November, 2012 refusing the application as proposed and made requests for further

information and variation of the 28km Scheme. This requested inter alia a re-submission of the project providing for a smaller footprint

for the road, removal of a cycleway that was to run alongside the improved road, and re-examination of alignment in order to minimise

interference with hedgerows and visual impacts.

14. Kerry County Council then, following extensions from the Board, reverted with the further information requested by letter dated

17th June, 2013. This included proposals for a number of changes to the scheme. The Board refused the permission sought for the

28km Scheme in its decision dated 13th September, 2013 and associated direction dated 6th September, 2013, noting that Kerry

County Council had not satisfactorily addressed the Board’s concerns.

15. Kerry County Council sought judicial review of this decision, and the matter was brought before the Commercial Court in early

2014. Judgment was delivered by Charleton J. on 11th April, 2014 in which he quashed the Board’s decision on the ground inter alia

that the Board had not shown the requisite regard for the needs of cyclists as required by the Roads Act, 1993.

16. The project was remitted by the High Court to the Board and the case was reactivated on 27th July, 2014 by the Board. By

direction dated 3rd November, 2014 and decision dated 10th November, 2014, the Board reversed its earlier decision, granting

permission for the 28km Scheme.

Summary of Grounds

17. The essence of An Taisce’s case is that the 4.2km Scheme together with the 28 km Scheme constitute a single project for the

purposes of Council Directive 85/337/EEC, as amended in 1997 and 2003, and as codified in Council Directive 2011/92/EU (“the EIA

Directive”). An Taisce assert that the 32km Scheme is the “project” for the purposes of Article 1.2 of the EIA Directive, and that an

EIS, and the consequent EIA were required. It relies on Article 2 of the EIA Directive which requires that:-

“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have

significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a

requirement for development consent and an assessment with regard to their effects.”

18. An Taisce points to Annex IV of the EIA Directive which requires that an EIA conducted by a consent authority, in this case the

Board, should include, inter alia, a physical description of the “whole project”, a description of the reasonable alternatives considered

by the developer and an assessment of the impacts, including cumulative impacts, of the project on the environment.

19. It was common case that the Roads Act, 1993 (as amended) applied to this proposed road development, and that s. 51(1)

applied:-

“51.—(1) A proposed road development shall not be carried out unless An Bord Pleanála has approved it or approved it

with modifications.”

An Taisce asserted that in carrying out its function the Board was obliged to ensure the effectiveness of the EIA Directive, and that

this obligation persisted where “the Directive has been rendered ineffective at a previous consent stage” i.e. at the stage when the

4.2km Scheme was approved by Kerry County Council without an EIA (Ground 20). In Ground 21 An Taisce pleads that:-

“The essence of [An Taisce’s] case is that the entire 32km length of the road is a single project for the purposes of the

EIA Directive. The 4.2km section is simply placed in the middle of, and is contiguous with, the 28km sections. The extent

of upgrading and widening of the 28km sections is fundamentally identical to that which has already been completed in

respect of the 4.2km section. While split into two phases, namely a 4.2 km and a 28 km phase, by [Kerry County Council]

solely because of the apparent availability of funding, the physical reality is that the two separate upgrading schemes

represent the same extent of modification on the same road albeit carried out in a staggered fashion.”

20. It is pleaded that Kerry County Council originally regarded the project as constituting the entire 32km of road, and that the

Board’s inspector was of the same view. An Taisce therefore asserts that when permission for the 28km Scheme was being sought

there was an obligation on the Board to conduct EIA on the whole 32kms, and not just the 28kms which were the subject of the EIS

and NIS submitted on 22nd December, 2011. It is therefore argued that there is no EIS, and consequently no EIA, covering “the

whole project before [the Board], or subject to full public consultation as required by the [EIA] Directive”. An Taisce argues in effect

that there is a project splitting that is not permitted under EU or domestic law. It is argued that this is the case even if Kerry County

Council factored in environmental considerations related to the 4.2km Scheme in its decision to grant permission for that stretch of

road. Although the Board had before it an EIS and a NIS in respect of the 28km Scheme, which considered the cumulative effects

with the 4.2km Scheme in terms primarily of temporal or construction overlap, neither the EIS nor the NIS considered the substantive

environmental impacts over the 32km Scheme. The Board did have before it in relation to the 4.2km Scheme the EIS, and an

Appropriate Assessment (“AA”) screening report, and a NIS, but no information on the impacts from the 4.2km Scheme in terms of

substantial environmental effects such as effects on flora and fauna, or matters such as traffic, accumulated visual impact, hedgerow

and arboreal habitat loss and impacts on sensitive water courses (Ground 28).

21. An Taisce also pleads that the Board erred in law in failing to give adequate reasons for departing from the Inspector’s conclusions

as to the inadequacy of the EIS, and that it erred in law in its conclusion that:-

“The Board did not consider that any “project splitting” arose in relation to the consideration and assessment of the environmental

impacts of the N86 road improvement scheme that would allow for the avoidance of comprehensive Environmental Impact Assessment

of the scheme or run contrary to the requirements of the EU Environmental Impact Directive (85/337/EEC)”

22. The issue raised by An Taisce was most starkly identified in the Board’s Inspector’s report of August, 2012 in the following terms:-

“It is considered that the development of An Daingean to Annascaul and Gortbreagoge to Camp road improvement scheme

constitutes project splitting by permitting separation of the Annascaul to Gortbreagoge section of the scheme from the

approval assessment process and, as a consequence, by failing to provide for a complete, thorough, and independent

environmental impact assessment of the totality of the road improvement scheme. In addition, it is considered that the

two sections of the road improvement scheme are wholly integrated, inter-related and, inter-dependent parts of a single

overall scheme and one which is accepted by [Kerry County Council] as such. The division of the overall proposal into two

parts for planning assessment purposes, utilising two separate planning application and assessment procedures and

assessment processes, fails to allow for proper assessment of routing for the overall project, route design, and

consideration of cumulative, direct, indirect, short, medium, long term, secondary, permanent, temporary, positive and

negative impacts.”

23. In submissions An Taisce emphasises the second element of the case namely that the Board has a remedial obligation to address

at the approval stage prior deficiencies in the environmental assessment history, and to carry out an EIA of the entire 32km length of

roadway. They argue, based on the judgement of the European Court in Brussels Airport Case C-275/09 that:-

“If no assessment of the environmental effects of such works or interventions was carried out at the earlier stage of the

consent procedure, it would be for the national court to ensure that the directive was effective by satisfying itself that

such an assessment was carried out at the very least at the stage at which the operating permit was to be granted.”

24. It is necessary at this point to refer to the legislative planning processes applicable to different types of road developments, and

the process under which the 28km and 4.2km Schemes proceeded.

Roads Act, 1993 – the 28km Scheme

25. Section 51(1) of the Roads Act, 1993 as amended requires that a “proposed road development shall not be carried out unless An

Bord Pleanála has approved it or approved it with modifications.” Under s. 2(1) “proposed road development” is defined to mean “any

proposed road development in respect of which an environmental impact statement is required to be prepared under section 50”.

Under s. 50(1)(a) an EIS is mandatory in respect of a motorway, a busway, a service area or “any prescribed type of proposed road

development”. This last category includes, under Article 8 of the Roads Regulations, 1994 (S.I. No. 119/1994), “the construction of a

new road of four or more lanes, or the realignment or widening of an existing road so as to provide four or more lanes, where such

new, realigned or widened road would be eight kilometres or more in length in a rural area, or 500 metres or more in length in an urban

area”.

26. Under s. 50(1)(b) where the Board considers that any proposed road development other than one for which an EIS is mandatory

“would be likely to have significant effects on the environment, [it] shall direct the road authority to prepare an environmental impact

statement”. Under s. 50(1)(c) where a road authority considers that the proposed road development would be “likely to have

significant effects on the environment, it shall inform [The Board] in writing and where [the Board] concurs with the road authority

[it] shall give a direction to the road authority under paragraph (b)”. Under s. 50(1)(e) in making the decision on whether a proposed

road development “would or would not be likely to have significant effects on the environment” [the Board] or the road authority

concerned…shall have regard to the criteria specified for the purposes of Article 27 of the European Communities (Environmental

Impact Assessment) Regulations, 1989.” Under s. 50(1)(f) where the road authority makes a decision on whether a proposed road

development would or would not be likely to have significant effects on the environment “it shall make the said decision available for

inspection by members of the public”.

27. Proposed road developments to which s. 51(1) and s. 50(1)(b) or (c) apply are commonly described as ‘sub-threshold’ in that

while an EIS is not mandatory it is required by statute because of the potential that it may have for “significant effects on the

environment”. These provisions applied to the 28km Scheme, and a fortiori would have applied to the entire 32km had it been carried

out under one approval.

Part XI PDA 2000/Part 8 Planning and Development Regulations, 2001 – the 4.2km Scheme

28. Where the Board’s approval is not required under s. 51(1) (because the “proposed road development” does not come within the

provisions of s. 50(1) and an EIS is not required), the proposed development may nevertheless require planning permission under Part

XI of the PDA 2000. Under s. 179(1)(a) the Minister may prescribe a development for the purposes of the section, and under s.

179(1)(b) where a local authority that is a planning authority proposes to carry out a “prescribed” development under s. 179(1)(a)

then it must comply with s. 179 and regulations made thereunder. Regulation 80 in Part 8 of the PDR 2001 prescribes “proposed

development” for the purposes of s. 179, and in regulation 80(1)(b) this includes “the construction of a new road or the widening or

realignment of an existing road, where the length of the new road or of the widened or realigned portion of the existing road, as the

case may be, would be–…(ii) in the case of a road in any other area, 1 kilometre or more…”. Part 8 also sets out the process of

notification, publication and decision making that the local planning authority must follow to approve a “proposed development”.

29. By virtue of these provisions Kerry County Council was obliged to seek planning permission in accordance with the provisions of s.

179, following the procedure mandated in Part 8, in respect of the 4.2km Scheme, but it was not obliged to carry out an EIS or EIA

because the EIS screening excluded the possibility of any significant effect on the environment. Part 8 required Kerry County Council

to publish notice in an approved newspaper and by notice erected on site, and to send notification to prescribed consultees –

including An Taisce (PDR 2001 Reg.82(3)) –and to make the documents and plans available for public inspection during a consultation

period. The manager then had to prepare a report on the submissions and observations, and that report and the proposed

development were then considered by the elected members of the local authority to whom fell the decision to approve or reject the

proposal.

30. It is this Part 8 process that Kerry County Council chose to follow in respect of the 4.2km Scheme, and which was the subject of

its notification to the Board in its letter dated 23rd March, 2011 whereby it withdrew its application for a direction under s. 50(1)(c)

of the Roads Act, 1993 in respect of the 32km Scheme indicating instead that it intended to progress the 4.2km Scheme under Part

XI of the PDA 2000. In so doing Kerry County Council indicated that it had commissioned EIS screening for the 4.2km stretch of road

and that this concluded that this limited stretch did not require an EIA. However because of two sites near the development a NIS

was required and this had been completed. Accordingly, and with the Board’s approval Kerry County Council by letter dated 6th May,

2011 formally withdrew its application for a direction relating to the entire 32km Scheme, and it consequently proceeded under Part XI

PDA 2000/Part 8 PDR 2001 in respect of the 4.2km Scheme. It was not in dispute that An Taisce received notification of the proposal

for the 4.2km Scheme, and all relevant documentation. An Taisce did not make any submission in respect of the proposal.

31. Kerry County Council as planning authority duly granted permission in respect of the 4.2km Scheme on 20th June, 2011 which

became effective six weeks later. The court was informed that thereafter construction of the 4.2km stretch of roadway proceeded in

2012 and was completed in mid-2013.

32. It is important to observe that Kerry County Council’s decision to grant permission in respect of the 4.2km Scheme is not the

subject of any direct challenge in these proceedings. The fact of that permission is mentioned in several places in the Statement of

Grounds, but this is in the context of the planning history and the background to An Taisce’s submissions as to what properly

constitutes the “whole project” for the purposes of EIS and EIA. In their written submissions and in argument counsel for the Board

addressed the question of whether An Taisce’s claim amounted to a collateral or indirect challenge to the validity of Kerry County

Council’s approval of the 4.2km Scheme. It was submitted that insofar as this was a collateral or indirect challenge it had not been

made within time, and the decision could not now be impugned. In response submissions counsel for An Taisce addressed the

suggestion that the “real target” of the challenge was the decision on the 4.2km Scheme on the basis that the “project splitting”

commenced at that point in time. Counsel emphasised that the application never pleaded that the decision of Kerry County Council in

respect of the 4.2km Scheme was unlawful, and asserted that this had never been argued and had only been mentioned in the

Statement of Grounds by way of recitation of relevant information. He emphasised that the decision of Kerry County Council in

respect of the 4.2km Scheme, and the construction work that took place pursuant to that permission, remained unchallenged and

undisturbed, and this is repeated in written “Rebuttal” submissions.

33. Section 50 of the PDA 2000 governs challenges to decisions of planning authorities, and mandates that they be made by way of

application to the High Court, and under subs. (6) an application for leave must be made “within the period of 8 weeks beginning on

the date of the decision”. While time can be extended by the court under subs. (8), this can only be done where the court is satisfied

that “(a) there is good and sufficient reason for doing so, and (b) the circumstances that resulted in the failure to make the

application for leave within the period so provided were outside the control of the applicant for the extension.”

34. In my judgement there is no challenge in these proceedings to the validity of Kerry County Council’s Part 8 permission in respect

of the 4.2km Scheme, and it is hard to discern any collateral challenge in the Statement of Grounds, in grounding affidavits and

written submissions. Insofar as there was any ambiguity, counsel for An Taisce made it clear that there was no such challenge.

Insofar as this was a concession it was one that had to be made in the light of s. 50 of the PDA 2000, and I note in passing that no

application was made for any extension of time to challenge that decision. The consequence of this is that Kerry County Council’s

decision to grant permission in respect of the 4.2km Scheme is unimpeachable.

35. It follows that An Taisce cannot now suggest that an EIS or EIA was or ought have been required in relation to that stretch of

roadway, or that that decision amounted to unlawful “project-splitting”.

Direction of the Board of 16th November, 2011 – A preliminary issue raised by Kerry County Council

36. The central issue raised in these proceedings is therefore whether the Board was entitled to approve the 28km Scheme in the

absence of EIS and EIA of the entire 32kms, 4.2km of which had been developed pursuant to Kerry County Council’s planning

permission at the time of the Board’s impugned decision. However, Kerry County Council in its oral submissions raised a preliminary

issue:-

If, which they denied, there was any unlawful “project splitting”, this did not arise from the impugned decision of the

Board granting approval dated 10th November, 2014 and notified on 14th November, 2014, but in fact arose from the

Direction of the Board dated 16th November, 2011 (“the Direction”) directing Kerry County Council to submit an EIS –

which Kerry County Council assert was a direction to submit an EIS in respect of the 28km Scheme.

37. Kerry County Council argued that time for seeking leave to seek judicial review of the Direction ran from 16th November, 2011, or

at any rate from the time it became available for public inspection (or was put up on its website), or alternatively from 21st

December, 2011 when the application for approval of the 28km Scheme and the accompanying EIS were furnished electronically to,

inter alia, An Taisce. It was argued that it was incumbent on An Taisce if raising a challenge on that ground to have commenced

judicial review proceedings within eight weeks of the date of the Direction or at any rate within eight weeks of the date upon which

that decision ought to have come to their knowledge. As the eight week period ran over the Christmas period an additional 10 days

fell to be added, so that this period expired on 5th February, 2012, or (if time ran from 21st December) the end of February, 2012.

38. An Taisce raised strong objection to the court entertaining this as a preliminary issue as it had not been raised in the Statement

of Opposition filed on behalf of Kerry County Council, or indeed that filed on behalf of the Board, nor was it raised in Kerry County

Council’s written legal submissions. With some justification they claimed to be surprised, and in order to give them some time to deal

with the issue and the question of whether the court should entertain it I granted them a brief adjournment, and the case resumed

the following afternoon. Accordingly, I heard legal argument in relation to the substance of the preliminary issue de bene esse and

subject to my decision on whether the notice party was entitled to pursue this point.

39. Counsel for Kerry County Council argued that they should be entitled to raise this preliminary issue for a number of reasons. They

pointed out that the Statement of Grounds pleads the statutory provision under which the Direction was made (s. 50(1)(c) of the

Roads Act, 1993 is recited in para. 19) but oddly the Direction itself is not referred to, and no challenge is made in the Statement of

Grounds to the validity of the Direction. On this basis it was not necessary to plead to any claim of invalidity of the Direction, or that

such a claim was out of time. They argued that no Statement of Opposition is required of the Rules of the Superior Courts (“RSC”)

from a notice party, but in any case it was suggested that the Statement of Opposition that they filed on 1st May, 2015 covered the

facts relevant to this issue sufficient for them to be allowed to argue the legal implications of a failure to challenge the validity of the

direction of the Board dated 16th November, 2011. In para. 3 of the Statement of Opposition, in taking issue with the accuracy of the

“Background and Narrative” set out in An Taisce’s Statement of Grounds, at sub-para. (iii) they pleaded that:-

“In the present case, the Applicant is one such prescribed body and was notified of the 28 km road improvement scheme

by the Council letter dated 21 December 2011 and furnished with an EIS and NIS. The Applicant’s consequent submission

to An Bord Pleanála did not suggest any allegation of project splitting, which is implicit in the Applicant’s challenge herein

and which could and ought to have been raised by the Applicant at that time if considered by it to exist. Furthermore, the

Applicant had previously been consulted in respect of the Part [XI] planning consent process in respect of the 4.2 km

road improvement scheme and had raised no issue in relation to alleged project splitting.”

40. Then in para. 5 of their Statement of Opposition Kerry County Council plead, inter alia:-

“In the present case, the “whole project” which was the subject of the application to the Board for approval was the 28

km road improvement scheme, which was considered in the environment impact assessment.”

41. In para. 9 of their Statement of Opposition Kerry County Council refer to An Taisce being represented at and making submissions

to the Inspector appointed by the Board, and in relation to that they state that:-

“The Applicant’s submissions did not suggest or raise the matters which it now seeks to ventilate in these proceedings.”

42. And then in para. 20 of their Statement of Opposition Kerry County Council rely on the following:-

“(i) The Applicant was a body whom the Council was statutorily obliged to consult and did so consult in relation to the 28

km road improvement scheme (and the 4.2 km scheme) and participated at the oral hearing and did not at any time raise

the question of project splitting and/or alleged breaches of the EIA Directive as a result of same…”

43. Finally, at para. 21 Kerry County Council pleads that the relief sought by An Taisce should be refused:-

“…in circumstances where the Applicant failed to raise the issues herein despite having had the opportunity to do so if it

had thought same had merit, at the time of its submissions on the development herein or in relation to the earlier approval

process for the 4.2 km section.”

44. On no fair or reasonable reading of Kerry County Council’s Statement of Opposition can I find any plea that An Taisce’s challenge

is a direct or collateral challenge to the Direction, or that this is out of time, not having been brought within the period stipulated in s.

50(6) of the PDA 2000. However, the pleadings cited do make it reasonably clear that Kerry County Council opposed the granting of

any relief to An Taisce on the basis that the decision to direct submission of an EIS relating only to the 28km of roadway should have

been brought at an earlier point in time, particularly having regard to the fact that An Taisce was notified of the 28km Scheme by

Council letter of 21st December, 2011, and furnished with the EIS (and NIS) at that time. In particular, para. 3 of the Statement of

Opposition, quoted above, gave An Taisce some notice that Kerry County Council would argue that the “project splitting” argument

should have been raised by An Taisce in its submission to the Board/ the Board’s Inspector in late 2011 or early 2012.

45. However the failure to raise this point more directly and in particular to raise the argument that An Taisce’s challenge is statute

barred because it should be to the earlier direction of the Board, deserves criticism, particularly as the result of that was that the

issue was only raised for the first time on the fourth day of the hearing. This is a fundamental issue that ought to have been pleaded

fully and prominently, and the fact that no express challenge was made to the Direction in the Statement of Grounds does not excuse

this. The suggestion that Kerry County Council was justified in some way in keeping its “powder dry” is rejected; the whole point of

pleadings is to put the other party on notice of the real points of opposition. In any case it is hard to see how a full plea could have

caused Kerry County Council any prejudice as by the time it filed its Statement of Opposition the time for challenging the Direction

had long expired. Furthermore, even if it was not a point that had to be pleaded (because the Direction and its validity were not the

subject of any specific plea in the Statement of Grounds) it should certainly have been the subject of specific written submissions,

yet it does not feature at all in Kerry County Council’s written legal submission. Such submissions are a well established feature of

Commercial Court litigation and should cover all topics that a party seeks to canvass precisely so that no party is taken by surprise

and is in a position to respond.

46. Counsel for Kerry County Council argued that the eight week period allowed for by s. 50(6) is not a matter that must be pleaded,

unlike a statutory time bar under the Statute of Limitations. I accept this proposition. It does seem to me that there is a fundamental

distinction between such a statutory bar, which acts inter partes and is therefore a matter for one party to raise if they wish to rely

upon it, and a time limit such as that contained in s. 50(6) which is essentially procedural, and arises for the consideration of the

court generally at the leave stage. The eight week time bar fundamentally goes to jurisdiction, and can only be extended by the court

for good and sufficient reason, and where the circumstances resulting in the delay were outside of the control of An Taisce. No

authority was cited to the court by An Taisce to suggest that it is mandatory that such a time bar be expressly pleaded by a

respondent or notice party before it can be relied upon.

47. I have come to the conclusion that once a point of this nature is raised by a respondent or notice party it must be considered by

the court because it concerns the jurisdiction of the court to determine the validity of a critical decision underlying the impugned

decision – such that if the underlying decision is beyond challenge the impugned decision may be unimpeachable.

48. In coming to this conclusion I am conscious that s. 50A of the PDA places considerable restrictions on applicants seeking judicial

review in relation to planning decisions. Thus, under s. 50A(3)(a) an applicant must show “substantial grounds for contending that the

decision or act concerned is invalid or ought to be quashed” at the leave stage, and they must show “sufficient interest” (subs. (3)

(b)), and subs. (5) stipulates that “no grounds shall be relied upon in the application for judicial review under the Order other than

those determined by the Court to be substantial under subsection. (3)(a).” Moreover, under Order 84 rule 23 of the RSC (as amended

and inserted by S.I. No. 691/2011) the court can allow An Taisce or the Board to “amend his statement, whether by specifying

different or additional grounds of relief or opposition or otherwise, on such terms, if any, as it thinks fit”. Order 84 does not place any

requirement on a notice party who intends to actively oppose an application for judicial review to file a Statement of Opposition, and

does not include notice parties in the rule relating to amendment, which also requires that an applicant for amendment should give

notice of intention of any proposed amendment to the other party. So far as applicants and notice parties are concerned there is not,

on the face of it, a level playing field. However, the Oireachtas has made it clear in s. 50 and s. 50(A) of the PDA 2000 that

applicants for judicial review in planning matters must comply with a strict temporal and procedural regime. This would seem to reflect

the public interest in the finality of planning decisions, such that the planning process should not be unduly burdened by legal

challenges that are delayed or insubstantial.

49. Counsel for Kerry County Council suggested that there was in fact “no equity in planning matters”. In response, counsel for An

Taisce drew my attention to the wording of Article 11 of the EIA Directive, which mandates that Member States must ensure that

there is access to judicial review, and in particular he cited Article 11(4):-

“The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative

authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to

judicial review procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive.”

50. It was argued that this imports fairness and equity into planning decision review procedures. However, sub-article 4 clearly applies

to review processes prior to any judicial review. The minimum requirement for judicial review is set out in Article 11(1) and this is that

the there be “…access to a review procedure before a court of law or another independent and impartial body established by law to

challenge the substantive or procedural legality of decisions…”. The EIA Directive does not prescribe absolute equality of arms in

terms of the procedures adopted for challenges before the courts. Moreover Article 11(2) emphasises the power reserved to Member

States in regulating court review procedures in stating:-

“Member States shall determine at what stage the decisions, acts or omissions may be challenged.”

51. For these reasons, and because the issue is to some extent pleaded in Kerry County Council’s Statement of Opposition, I am

satisfied that the court should entertain and determine the preliminary issue thus raised. In particular, with the benefit of the

adjournment in my view An Taisce has not been prejudiced insofar as it had and used the opportunity thus afforded to consider Kerry

County Council’s oral submissions on the point, and to raise counter arguments.

Kerry County Council’s Argument

52. As we have seen “proposed road development” is defined in s. 2(1) of the Roads Act, 1993 (as amended) to mean “proposed road

development in respect of which an environmental impact statement is required to be prepared under section 50”. Section 50(1)(a)

sets out the circumstances in which an EIS is mandatory, but as the 28km Scheme did not involve a four lane or more road

development it did not come within that subs. Section 50(1)(b) then states that:-

“(b) Where [the Board] considers that any proposed road development (other than development to which paragraph (a)

applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be

likely to have significant effects on the environment, [it] shall direct the road authority to prepare an environmental

impact statement in respect of such proposed road development and the authority shall comply with such direction.”

53. As previously outlined, sub-para. (c) is in similar terms and applies where a road authority considers that the proposed road

development would be likely to have significant effects on the environment and the obligation is then on that authority to “inform [the

Board] in writing, and where [the Board] concurs with the road authority [it] shall give a direction to the road authority under

paragraph (b)”.

54. In my view sub-para. (c) applied in the instant case, and this led to the Direction being actually given under sub-para. (b).

55. It is in respect of the Direction that is given by the Board, whether under sub-para. (b) and/or (c) of s. 50(1), that Kerry County

Council argued a discreet and stand alone decision of the Board was made which had the effect of determining that an EIS was

required for “the proposed road development”, which they argued was the 28km Scheme. The relevant documents are the following:-

i). The letter dated 27th June, 2011 from Kerry County Council to the Board, notifying the Board of its intention to

undertake the 28km Scheme entitled “N86 An Daingean to Annascaul and Gortbreagoge to Camp Road Improvement

Scheme”. It was cogently argued that this letter made it very clear that the 28km Scheme involved two sections of

roadway separated by the 4.2km stretch. Enclosed with that letter was an EIS Screening Report prepared by RPS Group,

the overall conclusion of which was that a full EIA was required in respect of the 28km Scheme. The letter informed that

Kerry County Council’s Planning Department had been copied with the EIA Screening Report and was in agreement with

the proposal to proceed with an EIS for the 28km Scheme, and the letter then stated that “[h]aving regard to the above,

Kerry County Council hereby informs An Bord Pleanála that it considers that an EIS is required for the N86 An Daingean to

Annascaul and Gortbreagoge to Camp Road Improvement Scheme.”

ii). Following receipt of that application the Board appointed an Inspector who duly reported in writing dated 15th

November, 2011, after a site inspection on 3rd November. The Inspector, Des Johnson, Director of Planning, describes the

“proposed development” using the same wording as in Kerry County Council’s letter. In light of the location, designated

sites in the area, the Kerry County Council Development Plan and the characteristics of the proposed development the

Inspector was of the view that there were a number of potential impacts, some of which could be permanent and/or

significant. The Inspector specifically noted at para. 7.1 that the proposal was for improvement of the N86 for two

separate stretches which together had a total length of 28kms. He referred at para. 7.4 of his report to the criteria for

deciding whether or not a proposed development is likely to have significant effects on the environment as set out in the

EIA (Amendment) Regulations 1999 (S.I. No. 93/1999)) and Schedule 7 of the PDR 2001. In assessing the proposed road

development in the context of these criteria he concluded that:-

“8.1 Having regard to the nature and scale of the proposed road improvement scheme, including widening and areas of

side-fill and side-cut earthworks, the nature of the receiving environment which includes a suite of designated

conservation sites and areas of Primary Special Amenity and Secondary Special Amenity adjacent to or in close proximity

to the route of the N86 and a range of cultural, heritage and archaeological sites adjacent to the existing road, and to

the extent, characteristics and likely duration of potential impacts, it is considered that the proposed development would

be likely to have significant effects on the environment requiring an environmental impact assessment, and that the

submission of an EIS is required.”

iii). Having considered that report the Board issued its “Board Direction” dated 16th November, 2011 stating:-

“Ref: 08.HD0024

The submissions on this file and the report of the Director of Planning were considered at a Board meeting held on 15th

November 2011.

The Board decided, as recommended by the Director of Planning, to direct the road authority to submit an Environmental

Impact Statement for the reasons and considerations recommended by the Director of Planning.”

iv). The Decision of the Board issued pursuant to the Direction. This recites the description of the application as

contained in Kerry County Council’s letter i.e. by reference to the 28km Scheme and “Direct[s] the road authority to

prepare an environmental impact statement in respect of the above proposed road development based on the reasons and

considerations set out below.”

56. Kerry County Council submitted that the EIS required by this direction related only to the 28km Scheme, and although the EIS and

EIA consequent on that would necessarily take into account the cumulative effect of other developments including the 4.2km

Scheme, the Board’s direction did not require that an EIS (or EIA) be carried out on the entire 32km of roadway. Kerry County Council

went further and submitted that the Board had no authority to direct or require the carrying out of an EIS or EIA on the greater

length of road because “the proposed road development” the subject matter of the application for a direction (and the subject matter

of the later application for approval) was limited to the 28km of roadway.

57. It was submitted that the Direction of 16th November, 2011 came within the phrase “any decision” of the Board in s. 50(2) of the

PDA 2000:-

“A person shall not question the validity of any decision made or other act done by –

(a) a planning authority, a local authority or the Board in the performance or purported performance of a function under

this Act,

(b) the Board in the performance or purported performance of a function transferred under Part XIV, or

(c) …,

otherwise than by way of an application for judicial review under Order 84…”. [Emphasis added]

Accordingly, it was submitted that in order to assert and challenge “project splitting” An Taisce should have challenged this Direction

as, following on from the earlier decision to approve the 4.2km Scheme, that was what gave rise to the division of the two parts of

the 32km of road development.

58. It was submitted that An Taisce, as a statutory consultee, was already aware of the application under Part 8 for permission to

develop the 4.2km Scheme. Although An Taisce was not on notice of the application for a direction under s. 50(1)(b)/(c) in relation to

the 28km Scheme, and was not individually notified of the Direction on 16th November, 2011, the Direction was put up on the Board’s

website shortly after the decision was taken. Further, on 21st December, 2011 An Taisce was furnished with the EIS for the 28km

Scheme, which on its face shows that it is limited to the 28km Scheme: see for example the Summary at para. 2.1 (Vol.1) and in

Volume 2 the Project Description at para. 1.2.2 where the progression of the 4.2km Scheme through the Part 8 process is described,

and the conclusion on ‘Cumulative Impacts’ from the 4.2km Scheme in para. 1.7.4; see also section 7.8 of the EIS which addresses

the cumulative impact on the 28km Scheme of the 4.2km Scheme more fully and mentions that construction of the 4.2km “is due to

commence in December 2011”.

In fact counsel for An Taisce in Rebuttal submissions accepted that on or about 21st December, 2011 An Taisce was in receipt of

notice of the Direction when it received a copy of Kerry County Council’s application for approval of the 28km Scheme together with

the EIS.

59. Accordingly, it was submitted that the eight weeks for seeking judicial review of the Direction ran from 16th November, 2011, or

from 21st December, 2011 from receipt of the EIS, at the latest, and that An Taisce was out of time. Further, insofar as An Taisce

now challenges the decision of the Board to approve the 28km Scheme, it was asserted that this was a collateral challenge to the

Board’s Direction of 21st December, 2011, and should not be allowed because it was out of time. As the Direction could not now be

challenged the impugned decision which was correctly and lawfully based on the EIS on the 28km Scheme was unimpeachable.

An Taisce’s Response

60. Counsel for An Taisce argued that the direction under s. 50(1)(b)/(c) of the Roads Act, 1993, of a type that was previously given

by the Minister, merely confirmed that the EIA process was engaged and established in principle that EIA was required, but did not

stipulate what was to go into the EIS or the nature of the EIA. The section implemented the EEC requirement of EIA in projects of

this nature, now contained in the EIA Directive, and the stipulation in Article 5(1) that Member States “ensure that the developer

supplies in an appropriate form the information specified in Annex IV inasmuch as: (a) the Member States consider that the

information is relevant to a given stage of the consent procedure…”. It was argued that this gave the Board a degree of discretion in

carrying out the EIA and as to the information that it required in the EIS. It would therefore be impermissible for this Direction to

confine the course of the EIA, as this would be an abdication of the Board’s duty to carry out an EIA. The Direction was merely the

start of the process, and the commencement of a stage. It did not confine the scope of the EIS/EIA which had to be “as complete as

possible”. Also, it was argued that to treat the Direction as confining the scope of the EIS/EIA would preclude the Board from fulfilling

its “remedial obligation” to ensure that it carried out a full EIA.

61. In support of this it was argued that to limit the EIS/EIA by reference to the Direction of 16th November, 2011 would be contrary

to the scheme of the EIA Directives and implementing legislation, as amended. Section 50(3) of the Roads Act, 1993, implementing

Article 5(3) and Annex IV of the EIA Directive, governs the form of the EIS and what information should go into it. Counsel relied upon

a number of provisions that allow scoping or variation of the EIS which, he submitted, show that the Direction is “non binding” and is

not “set in stone”:-

(i). Article 5(2) of the EIA Directive requiring Member States to take necessary measures to allow a competent authority on the

request of a developer to give an opinion on the information to be supplied in an EIS, and to ensure that such opinion does not

preclude it from subsequently requiring the developer to submit further information.

(ii). Section 50(4)(a) of the Roads Act, 19931 authorising the Board to give a road authority a written opinion on the information to

be contained in the EIS; and s. 50(4)(b) which provides that such opinion does not prejudice the Board’s power under s. 51(4) to

request additional information as to the likely effects on the environment “of the proposed road development”. This additional

information and any submissions thereon must be considered by the Board in carrying out its EIA (s. 51(5)).

(iii). Section 51(4) of the Roads Act, 1993 under which the Board may require the road authority to furnish “…specified additional

information in relation to the likely effects on the environment of the proposed road development…”.

(iv). Section 51(4A) of the Roads Act, 1993 under which, if the Board considers the additional information furnished under s. 51(4)

“contains significant additional data in relation to the effects on the environment of the proposed road development”, a notice of this

fact and the availability of the additional information must be published by the Board and it must be furnished to the statutory

consultees, and further submissions/observations can be made.

(v). Sub-sections 172(1D) and (1E) of the PDA 2000, inserted by S.I. No. 419/2012, and effective from 31st October, 2012. These

applied at the time of the Board’s impugned decision, but did not apply under domestic law, at the time of the Direction. Section 172

applies to the EIS required for specified developments, including2 a development under s. 51 of the Roads Act, 1993. The sub-

sections provide:-

“(1D) The planning authority or the Board, as the case may be, shall consider whether an environmental impact statement

submitted under this section identifies and describes adequately the direct and indirect effects on the environment of the

proposed development and, where it considers that the environmental impact statement does not identify or adequately

describe such effects, the planning authority or the Board shall require [An Taisce] for consent to furnish, within a

specified period, such further information as the planning authority or the Board considers necessary to remedy such

defect.

(1E) In addition to any requirement arising under subsection (1D), the planning authority or the Board, as the case may

be, shall require an applicant for consent to furnish, within a specified period, any further information that the planning

authority or the Board considers necessary to enable it to carry out an environmental impact assessment under this

section.”

Such additional information must be considered by the Board in carrying out its EIA (s. 172(1G)).

Section 172(1D) is also a statutory provision setting out the Boards “remedial obligation” in that it must consider the adequacy of the

EIS and if necessary seek more information to fill in any gaps before completing the EIA.

(vi). Section 217B(4) of the PDA 20003 which provides:-

“The Board, may –

(a) if it considers it necessary to do so, require a road authority that has submitted a scheme under section 49 of the Roads

Act 1993 or made an application for approval under section 51 of that Act to furnish to the Board such further information in

relation to –

(i) the effects on the environment of the proposed scheme or road development, or

(ii) the consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the

said scheme or road development of such scheme or road development, as the Board may specify, or

(b) if it is provisionally of the view that it would be appropriate to approve the scheme or proposed road development were

certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of it, notify the road

authority that it is of that view and invite the authority to make to the terms of the scheme or proposed road development

alterations specified in the notification and, if the authority makes those alterations, to furnish to it such information (if any) as

it may specify in relation to the scheme or road development, in the terms as so altered, or, where necessary, a revised

environmental impact statement in respect of it.”

62. In further developing these arguments counsel suggested that a challenge to the Direction in early 2012 would have been met by

the objection that it was premature, and that An Taisce should first explore alternative remedies, such as making submissions to the

Board on the inadequacy of the EIS and protesting its inadequacy before the Inspector appointed by the Board, or awaiting the final

decision of the Board.

Discussion

63. The start of the process for a sub-threshold road development would seem to be the making of an application by the road

authority to the Board for a direction under s. 50(1)(b) and/or (c) of the Roads Act, 1993, rather than the direction of the Board.

64. The question that next arises is whether the Board’s direction under the subsection should then be regarded as “any decision or

other act done” within the meaning of s. 50(2) of the PDA, 2000, such that it can only be challenged by judicial review. That

subsection applies to “any decision” of the Board “in the performance or purported performance of a function under this Act”. This is

very wide terminology, and there does not seem to be any good reason to cut done the ambit of “any”. Moreover the reference to

“purported performance” makes clear the drafter’s intention that the subsection was to apply to an invalid decision of the Board. The

fact that s. 50(1)(b) and (c) of the Roads Act, 1993 refer to a “direction” of the Board also makes no difference as such a direction is

either a “decision made” or “other act done” by the Board as part of its statutory function. Indeed the Board itself describes its

direction as a “decision” in the Decision documentation dated 16th November, 2011. Ultimately counsel for An Taisce accepted that

the Direction was a “decision” of the Board within s. 50(2) of the PDA 2000. Interestingly, this view was also taken at the outset by

the Board when notifying Kerry County Council of the Direction: with its covering letter also dated 16th November, 2011 the Board

enclosed “…information in relation to challenges to the validity of a decision of An Bord Pleanála under the provisions of the [PDA

2000]”. In the enclosure the reader is referred to sections 50, 50A and 50B of the PDA 2000, and in summarising these the information

note states that “The validity of a decision taken by the Board may only be questioned by making an application for judicial review

under Order 84…”.

65. The jurisprudence of this court supports this conclusion. In Kinsella v. Dundalk Town Council [2004] IEHC 373 Kelly J. considered

that substantial grounds had not been shown in respect of an application for leave to seek certiorari of a grant of planning permission

dated 3rd August, 2004. Leave was also sought in respect of a decision of 25th June, 2004 whereby, in the course of the same

planning process, the Town Council determined that further information submitted by the developer did not contain significant

additional data, with the result that Mr. Kinsella was not entitled to make or have considered any further submission/observation. The

applicant argued that in order to be granted leave to challenge the earlier decision he did not have to show “substantial grounds” on

the basis that s. 50(2) of the PDA 2000 did not apply. Kelly J. did not agree, holding that s. 50 did apply and that “…if the applicant

were correct in his submission in this regard an absurd result could be achieved which would be entirely contrary to the letter and

intent of s. 50”.

66. In Linehan v. Cork County Council [2008] IEHC 76 Finlay Geoghegan J. refused leave to seek judicial review of a decision dated

2nd May, 2007 by the respondent to grant planning permission. She noted at pp.30-31 of her judgment that:-

“…the applicants were also, in the proceedings, questioning the validity of the decision communicated by the senior

planner to Mr. Linehan on 17th January to proceed to consider and determine the planning application in the absence of

submissions from the applicants. It was this procedure of the respondent which was alleged to constitute the breach of

fair procedures. The submission of the notice party was that the validity of the decision of 17th January could only be

questioned in an application for judicial review commenced within 8 weeks of that date (subject to an extension under

s.50(8) which did not apply).

Whilst counsel for the applicants disputed this submission and the contention that s. 50(2)(a) (as amended) should be so

construed it appears appropriate to draw attention to the submission made by the notice party and to indicate that it

appears to be at least arguable. I do this without making any final determination, as this is not necessary on the facts

herein. However, I draw attention to the issue to indicate that it may no longer be safe for an applicant to await a final

planning decision to which s. 50 of the Act of 2000, as inserted by the Act of 2006, applies before making an application

for judicial review, if the grounds include questioning the validity of an earlier procedural decision or act done by the

planning authority. Such decisions or acts may now have to be challenged as they occur.”

67. Addressing this question and the meaning to be given to “a decision or other act” in MacMahon v. An Bord Pleanala [2010] IEHC

431, Charleton J. referred to the obiter dictum in Linehan and stated:-

“The view as expressed by Finlay Geoghegan J. is correct. In passing s. 50, and then amending it so as to extend its

strictures to administrative steps, the Oireachtas clearly intended to impose strict time limits for the challenging of

decisions in the planning process by way of judicial review.”

I respectfully agree with these decisions.

68. Can An Taisce then side-step s. 50(2) on the basis that the Direction was “non-binding” and might have been varied by the Board

by seeking additional information in relation to adverse effects on the environment, or invoking s. 217B(4)(b) (the “alterations”

provision)? In deciding this it is helpful to look at the nature of the decision taken in the Direction given in this case. The application

under s. 50(1) was accompanied by an EIS Screening Report on the 28km Scheme. As has been mentioned this was considered and

reported on by the Board’s Inspector Mr. Johnson. His nine page report shows that he also considered the Kerry County Council

Development Plan. He then assessed the application under the criteria set out in the planning regulations4 grouped under the

headings “Characteristics of the proposed development”, “Location of the proposed development” and “Characteristics of potential

impacts”, before coming to his conclusion. Of significance is that, as his report makes clear5, the Inspector was fully aware of the

existing Part 8 permission for the 4.2km Scheme and expressed his agreement with the EIS Screening report that “…there are not

likely to be significant cumulative effects arising through the combination of these projects.” These are the materials that the Board

considered before reaching its decision. The Board could (theoretically) have disagreed with the Inspector and determined that an EIS

was not required, which would have enabled Kerry County Council to pursue the road development under the Part 8 process.

69. I find that in every sense of the word the Direction was a “decision” of the Board that was binding on the roads authority. The

fact that the Direction could under the Board’s statutory powers have been added to by a scoping decision or a request for additional

information does not render it any the less binding on the road authority. The fact that, at one level, it might be characterised as an

administrative step in a longer planning approval process is also irrelevant as the judgments cited above show. Moreover although the

Direction did not arise from public consultation, it has the characteristics of a public law decision in that it was made by a public

administrative body and preceded and governed the process that immediately ensued and which involved publication of the Direction

and public consultation. In this sense it was precisely the sort of decision the validity of which the Oireachtas intended should only be

“challenged” by judicial review. It was a binding decision, albeit one that was subject to the possibility of elaboration or alteration by

further interlocutory decision of the Board. An Taisce would clearly have had locus standi to have instituted a challenge.

70. Moreover, the fact that the Board could at any subsequent stage in the consent process give its opinion on the information to be

included in the EIS, or seek additional information, simply cannot alter the binding nature of the Direction because s. 50(1)(b)

expressly mandates that “…the [roads] authority shall comply with such direction”.

71. The Direction in my view has an important role in the process, even though it may later be supplemented by additional

information. It not only establishes or confirms the principle that an EIS is required, but it also sets the initial parameters for the EIS. I

accept the submission of Kerry County Council that the EIS which the Board directed be prepared related to “the proposed road

development” i.e. the 28km Scheme. This is the term used consistently in s. 50 and s. 51 of the Roads Act, 1993. It was therefore

incumbent on Kerry County Council to prepare and furnish an EIS relating to the 28km Scheme, as that was the scheme in respect of

which application was made and the Direction was given. It was not directed or authorised to furnish an EIS relating to the larger

stretch of road improvement works.

72. This view tends to be confirmed by the “alterations” provision in s. 217B(4)(b) of the PDA 2000, quoted earlier. This provision

expressly allows the Board to suggest specified alterations to “the proposed road development”, and if so doing to seek further

information “…or, where necessary, a revised environmental impact statement in respect of it.” This is the only provision that

expressly contemplates the Board requesting a revised EIS i.e. an EIS revised from that furnished under the initial direction. In my

view, in circumstances such as the present where a direction of the Board is required, it is that direction that is the primary decision

as to the parameters of the EIS. The other provisions cited by An Taisce enable refinement of the position by further direction of the

Board as to scoping, requesting additional information, or seeking a revised EIS for a revised proposal, but if the original direction is

not challenged by judicial review and these other provisions are not invoked then it is the original direction that governs the basic

parameters of the EIS.

73. The argument that a direction under s. 50(1)(b) or (c) of the Roads Act, 1993 is in some way to be downgraded from a “decision”

susceptible to judicial review, if taken to its logical conclusion, would mean not only that no direction of the Board under that section

is reviewable, but also that it would be inappropriate to challenge by judicial review invalid decisions of the Board on scoping or

seeking additional information as these could be the subject of further Board direction. This is the absurd result that Kelly J. was

referring to in Kinsella. This cannot have been the intention of the legislature. It would seem to fly in the face of two provisions of the

EU and national legislative framework. First, Article 11(2) of the EIA Directive provides that “Member States shall determine at what

stage the decisions, acts or omissions may be challenged”. This clearly devolved to Ireland the power to legislate on when, and within

what time period, decisions, acts or omissions of the Board involving EIS could be challenged before a court of law in the State – and

hence to stipulate when a challenge is out of time. Secondly, in enacting s. 50 of the PDA 2000 the Oireachtas expressly made it

clear that all decisions “or other act done” must be challenged within a short time frame of eight weeks beginning on the date of the

decision or the act or such extended period as the court might allow.

74. It is no answer to this to assert that had a judicial review been commenced immediately after the Direction came to An Taisce’s

notice it would have been regarded as premature on the basis that An Taisce should have pursued alternative remedies. It is of

course the case that An Taisce would have needed to send a preliminary letter to the Board, threatening judicial review proceedings

unless the Board accepted that its Direction was flawed because of project-splitting. However, subject to that requirement (which

could have been accomplished within a short time frame), it is hard to see how An Taisce could have been required to do any more.

This was not a decision in respect of which it enjoyed any right of appeal. To await the Inspector’s hearing would have been pointless

because the Inspector was bound in his investigation by the Direction and the EIS presented by Kerry County Council, and was not

empowered to do anything other than report to the Board.

In any case this argument is unattractive because An Taisce did not in fact protest “project-splitting”, either to the

Board or the Inspector (or indeed Kerry County Council).

75. The nub of the problem with An Taisce’s claim is that if there was “project-splitting” from an EIS perspective this arose from the

Direction, and An Taisce had all the knowledge and standing that it needed to challenge the validity of the Direction when it received

the EIS. It is like calling back 400 metre runners after they have finished their race to rerun it because of a false start; the time to

rectify the false start is immediately after it happens. An Taisce’s challenge to the Direction should have been made in 2012, not in

2015. This conclusion accords better with the elements of the statutory scheme that I have emphasised, and this case shows in a

very practical way why this is so. If An Taisce’s submission that there was unlawful “project-splitting” was accepted at this point in

time it would render at nought everything that has taken place over the three years of the unhappy history of this 28km road project.

Arguably Kerry County Council would have to start afresh by applying to the Board for a new direction under s. 50(1)(b)/(c) on the

basis of a 32km scheme (notwithstanding that 4.2km has been completed since 2013), or perhaps this would happen through a s.

217B(4) alterations notification process.

76. The argument is made that the Board (and the court) has a continuing remedial obligation, and indeed s. 172(1D) requires the

Board to consider whether the EIS is adequate, and where it considers that it is inadequate the Board is mandated to require an

applicant to furnish further information within a specified period such as the Board considers necessary to remedy such defect. As this

provision came into force on 31st October, 2012 it applied to the impugned decision.

77. The Board did consider the EIS and in completing the EIA concluded that subject to mitigation measures proposed in the EIS the

28km Scheme “would not have unacceptable direct or indirect effects on the environment”. Thus, in the Board’s view the question of

remedy for inadequacy in the EIS never arose. In specific comment in the section on EIA on the development of one section of road

before another the decision states:-

“…the Board was satisfied that no deficit in relation to the ability of the Board to examine environmental impacts

associated with the proposed road scheme arises.”

The Board also considered ‘project splitting’ had not arisen, and differed from the Inspector’s conclusion.

78. From a fair reading of the decision is it clear that the Board considered the EIS based on 28km of roadway (taking into account

the cumulative effects of other projects including the 4.2km Scheme) was adequate. Equally, at the time of its Direction the Board

was expressly of the view that an EIS on the two stretches of roadway comprising in total 28km was all that was required. It is

impossible to see how the impugned decision can be attacked without challenging the validity of the underlying Direction. Assuming

for the sake of the argument that the Direction was flawed and that in late 2011/2012 the Board had a remedial obligation arising

under the EIA Directive to correct the Direction, the obligation to remedy arose at that time. The failure of An Taisce to raise this as

an issue, write a letter or seek judicial review meant the remedial obligation (if any) to direct a different EIS arising at that time

became spent. To rely on a continuing obligation at this point in time is just another ground for attacking the validity of the Board’s

Direction, which should have been part of a challenge in early 2012. As the court is constrained in granting reliefs by the time limits

for seeking leave in s. 50 PDA 2000 it also does not have jurisdiction to address the alleged wrong or provide any remedy.

79. Further there can be no doubt that An Taisce’s challenge is based on one fundamental ground, namely that the EIS was

unlawfully limited to the 28km of road, and did not encompass the entire 32km of road. In that the EIA is challenged this is predicated

on the inadequacy of the EIS, and hence has its source in the Direction that delimited the parameters of the EIS. An Taisce was

unable to identify any other identifiable flaw in the EIA undertaken by the Board; it was limited to suggesting that had an EIS been

carried out on the full 32km it might have disclosed significant adverse effects on the environment within or related to the 4.2km

which were not shown by the EIS on the 28km. In order to succeed An Taisce was therefore obliged to demonstrate that the limiting

of the EIS to just the 28km of road was unlawful, and this could only be achieved by challenging the validity of the Direction.

80. For these reasons it must be concluded that these proceedings are a collateral attack on the Direction of the Board dated 16th

November, 2011. As that Direction was a planning decision that could only be challenged by judicial review proceedings commenced

within the period fixed by s. 50(6) of the PDA 2000, or any extension thereof by the court, and the period having long expired and

there being no application for an extension, it follows that these proceedings must be dismissed. In these circumstances it is not

necessary or appropriate for the court to express a view on whether the facts of this case demonstrate “project-splitting” contrary

to EU or national law.

81. It is appropriate to add a footnote, lest the reader be left with the impression that the 4.2km Scheme was approved and

proceeded without any consideration of its environmental effect. First, an EIA Screening Report was carried out, and the report

concluded that it would not have any significant effect on the environment. Secondly, a screening exercise under the Habitats

Directive was carried out and this determined that AA was required because of the proximity of the Castlemaine Harbour candidate

Special Area of Conservation and Special Protection Area. This resulted, thirdly, in a NIS on the two Castlemaine ‘sites’, which

concluded that with mitigation measures primarily related to protecting watercourses within the Owenacaul River catchment the

integrity of the sites would not be affected. This was considered by Kerry County Council as part of the AA undertaken before it

permitted the 4.2km Scheme to proceed. Fourthly, an extensive “Environmental Report” on the effects on the environment of the

4.2km Scheme and detailing proposed mitigation measures was obtained by Kerry County Council from RPS Group, and informed the

decision to permit the 4.2km Scheme. Fifthly, the EIS prepared for the 28km Scheme considered and reported in section 1.7.4 and

section 7.8 on the likely cumulative effects on that scheme of the 4.2km road improvement (and also some water mains rehabilitation

works) and concluded that “significant cumulative impacts as a result of the construction and operational phases of the [28km

Scheme] were not expected…”.

______________________________________________

1. The Roads Act, 1993 has been am ended by prim ary and secondary legislation on num erous occasions and I am grateful to Counsel for providing an agreed

tex t updated to 21st Septem ber, 2011 when the last am endm ent becam e effective. The provisions referred to/sum m arised are therefore as they stood

st

effective from 21 Septem ber, 2011

2. By virtue of s. 172 (1A)(a)(i)(VI)

3. As inserted by Planning and Developm ent (Strategic Infrastructure) Act, 2006, s. 38, and com m enced by S.I. No. 684/2006 on 31st January , 2007

4. Regulation 27 of the EC (EIA) Regulations, 1989, as inserted by Regulation 7 of the EC EIA (Am endm ent) Regulations 1999 (S.I. No. 93/1999) in which the

criteria are set out in the Third Schedule. These are also required criteria under Article 120 of the PDR 2001, and set out in Schedule 7 thereof

5. In particular in para. 2.2, 6.1, and 7.5