High Court must consider issue of EIS assessment

Abbeydrive Development Ltd -v- Kildare County Council. Supreme Court Judgment was delivered by Mr Justice Nicholas Kearns on February 18th, 2010; Ms Justice Susan Denham, Mr Justice Adrian Hardiman, Mr Justice Geoghegan and Mr Justice Nial Fennelly concurring.

Judgment

A previous Supreme Court judgment, that a planning permission was deemed to have been granted by Kildare County Council, which had failed to give a decision within the prescribed period, should be remitted to the High Court to consider the issue of an Environmental Impact Assessment, which should have been considered under an EU directive.

The Supreme Court also ruled that An Taisce should be heard at any hearing that might take place.

Background

The case concerned a “default” planning permission which was deemed to have been obtained by the appellants on appeal of a decision of the High Court.

The Supreme Court had ruled the applicant was entitled to a declaration under the 2000 Planning and Development Act that the planning authority, the county council, having failed to make a decision on the applicant’s application within the prescribed period, be deemed to have given such decision on the last day of that period.

The original planning application in 2002 was accompanied by an environment impact statement (EIS).

An Taisce, as a prescribed body under the 2000 Act, was notified of the application and made a submission. It received no further correspondence until January 2007 when it was informed that the planning application had been deemed withdrawn. In fact, this was not so and the letters stating this were totally misleading.

Therefore An Taisce was totally unaware of the proceedings relating to the default permission in either the High Court or the Supreme Court until it was reported in a newspaper in July 2009.

It sought to appeal to An Bord Pleanála but the appeal was deemed invalid because it was outside the permitted period for making an appeal.

An Taisce was strongly of the view that the grant of default planning permission, where there was an EIS as required by council directive 85/337/EEC (the EIA directive), was contrary to European law. It therefore sought to be heard before any final orders were made.

While not seeking to reopen the judgment, it sought to be heard on the grounds that the issue raised was of such importance that it should be adjudicated upon and/or that an appeal by An Taisce should be permitted as part of the court’s order.

Counsel for An Taisce cited European Court of Justice jurisprudence in support of its contention that developments that are subject to the requirements of the EIA directive could not be authorised by way of tacit permission or refusal and that the planning authority therefore did not have the authority to make the decision.

Neither the High Court nor the Supreme Court had been made aware of the environment impact statement. Counsel for the applicant argued that the matter was now res judicia and could not be reopened. Counsel for the respondents frankly conceded that no consideration had been given by the council to the EIS issue.

Decision

Mr Justice Kearns first stressed that ordinarily, a decision of the court was final and conclusive, except in the most exceptional circumstances. In this case, no final order had been made. It would greatly weaken the case of An Taisce if its point could have been raised by the county council.

He pointed to ECJ case-law stating that tacit approval could not be compatible with the requirements of a directive requiring an assessment procedure preceding the grant of authorisation.

The council should have been aware of it, as it was spelled out in the seminal authority on planning law by Prof Yvonne Scannell, and by Garrett Simons’s book on planning and development law, he said. The latter was also highly critical of the default mechanism.

Mr Justice Kearns said that the point raised by An Taisce – that the failure to carry out an assessment of the EIS went to the very heart of the decision to grant permission – was one of substance.

He said he would leave to the High Court the issue of whether the council could argue that a decision to grant permission by default should not be deemed to have been made, where it was arguing for the effectiveness of community law.

He said that despite a reluctance 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 left the court with no alternative if it was to do justice.

The only proper course for the court to adopt was to defer making any final order until the issue in relation to the EIS was determined by the High Court, to which the case was remitted on that issue alone. He also acceded to An Taisce’s request that it be heard any hearing there.

The full judgment is on www.courts.ie

Michael Collins SC and Garret Simons BL, instructed by A L Goodbody, for the applicant; John Lylmer and Deirdre Hughes BL, for the respondent; Colm Mac hEochaidh BL, for An Taisce.

Irish Times

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