The loss by the RTS Substation Group in their recent application for judicial review against An Bord Pleanala (ABP) was a massive blow to that community and I write this blog with some trepidation, as I know that hearts are still sore and emotions are high.
In her heartfelt letter to me the member of the RTS Substation Action Group could not understand why the judge had not dealt with a number of points they had raised at the review hearing:
“The 70 page judgment was devastating to us. Not least because many elements of our case were simply not dealt with as they were interpreted as being outside of the original grounds (e.g. see section 19 of the judgment). It seems to us that an incredibly narrow interpretation of the grounds was taken and we have the impression that this in some way related to being in the commercial court (see section 20). This resulted from ABP arguing in court that it would be terribly unfair to the ABP to allow our arguments to be raised – a strange argument to make at the last minute since they had been aware of the developing nature of our arguments through the necessary exchange of legal submissions throughout the months of preparation. As a result, many of the issues we brought to court remain unanswered.”
The passage in the judgment that is referred to is the following:
“Grounds of Challenge for which Leave was not Granted
19. In their legal submissions, both written and oral, the applicants sought to broaden their challenge on a number of grounds which had not been raised previously and were not the subject of the grant of leave. These included:-
• That it was not lawful for the Board to require an EIS by way of request for “further information”, pursuant to s. 182A(5) of the PDA, 2000.
• That a complaint had been submitted to the Board and at oral hearing that the public were not allowed early and effective public participation contrary to Article 6 of the Aarhus Convention.
• That the Non Technical Summary in the EIS failed to contain certain information required under para. 7 of Annex IV of the Environmental Impact Assessment (EIA) Directive 2011/92/EU.
• That the Board failed on request to furnish a copy of its original negative screening determination that an EIS was not required.
• That there were no consultations after it was established an EIS was mandatory and required.
• That the respondent in carrying out the EIA should have had regard to the Environmental Report for the Grid 25 Implementation Programme 2011-2016, the AA Report for the SEA for Grid 25, the Laois-Kilkenny reinforcement project and the Inspector’s Report.
• That the proposed Development, a ‘lower tier’ project, started before the SEA Grid 25 Implementation Programme, a ‘higher tier’ project.
• Failure to set time frames for public participation procedures within the decision making process.
• That the respondent wrongly delegated its EIA function to its Inspector by relying overly on the Inspector’s Report.
• A discrete issue, raised for the first time late in the day by the applicant’s counsel in his reply submission, to the effect that there had not been proper screening under the Habitat’s Directive at stage one in respect of a “petrifying springs with tufa formation (Cratoneurion)” situated just outside the confines of the proposed new substation at Coolnabacky. Consequently, the Inspector had come to an incorrect conclusion in reporting that a screening for an AA was not required.
20. Both the respondent and EirGrid argued that the applicants should not be permitted to pursue these additional arguments because leave had not been granted and the complaints/arguments were raised very late in the day. Furthermore, they were not dealt with properly on affidavit and the respondent and EirGrid had not had an opportunity to consider filing further affidavits in dealing with such matters and hence were not in a position to deal with same. They also pointed to the fact that this matter had been admitted to the Commercial List on the application of EirGrid, without opposition from the applicants and that this made it all the more important that applicants should adhere to procedures and time limits and facilitate the disposal of the case during the period listed for hearing by the court.
21. For the most part these additional grounds could be described as technical in nature and not supported by any evidence that the applicants or any of them had been adversely affected or that they were genuinely concerned by the complaint made. Their counsel indicated at the outset that no application would be made for any amendment of the Statement of Grounds and none was in fact made.
22. The court indicated at the hearing that it was not disposed to allow the applicants to broaden the grounds of challenge beyond those permitted by the Order granting leave. In this respect, the court accepted the respondent and EirGrid’s arguments and for the further reasons just given confirms its decision.”
This is a very technical matter and I will do my best to explain what happened. It is also an extremely important issue and it is crucial that community groups get it right if they intend to successfully challenge a finding of An Bord Pleanala.
The first thing to realise is that you cannot appeal an ABP finding. You must take it on review.
It is necessary to explain what is meant by a review, as opposed to an appeal, as the two are often confused and it is important to realise that they are fundamentally different.
When you appeal a decision, in essence you are saying that the decision maker got it wrong and you are seeking to reverse that decision. In other words, you are challenging the decision itself, or the merits of that decision. So for example, if a criminal court finds me guilty, I can appeal that verdict to a higher court and ask that higher court to find me ‘not guilty’.
On the other hand, a review does not challenge the decision itself but rather the procedure followed in reaching that decision. In this review RTS were arguing that ABP did not follow the correct procedures in confirming the grant of planning permission to EirGrid.
When a body like the ABP makes a decision it must obey three primary principles:
Legality: it must be within the power of the body or individual to make that decision. The decision made must not be “outside the scope of your powers”. Therefore it is very important that the ABP know exactly what the extent and limits of their powers are when making a decision.
Fairness: the decision making process must follow fair procedures. Procedures that are established / codified must be followed. Those procedures must comply with principles of natural justice:
nemo iudex in causa sua – you cannot decide on a matter or issue in which you have an interest (financial, political, personal etc.). See my blog on the ABP.
audi alteram partem – If an administrative body like the ABP intends to make a decision that will impact you, then they must ensure that you have an opportunity to make representations, present evidence, and challenge evidence, before it can rely on that evidence when coming to that decision.
Rationality: the decision must be rational in the sense that the ABP must consider all the factors it is duty-bound to consider and disregard any factors it must not consider.
As the High Court on review looks at the procedure and not the decision as such, if it finds against the ABP it will send that decision back and order the ABP to do it again. It will not substitute its own decision like an appeal court does.
Application for leave to review
Before you can take the ABP on review, you must apply for ‘leave’, which essentially means that you must convince the court that you have grounds on which to challenge the decision by the ABP. This is a process used to weed out frivolous applications or applications that don’t stand a chance.
The documents used in this application for leave are called the Verifying Affidavit and the Statement of Grounds.
The Verifying Affidavit (a sworn statement made by the applicant) must set out the factual basis for the grounds upon which the decision by the ABP is being challenged.
The Statement of Grounds should set out concisely and exactly what the applicant is trying to achieve with the review and the legal grounds upon which the applicant is relying in its review. It must contain sufficient detail to provide the respondent (ABP) and the High Court with sufficient information to identify the precise illegality or flaw in the decision being challenged.
Granting of leave to review
If Leave to Review is granted, the applicant may then bring judicial review proceedings. A Notice of Motion (the document that “kicks-off” proceedings) should be prepared and, along with the court order granting leave to proceed with the judicial review and both the Statement of Grounds and the Affidavit prepared for the earlier stage, served on all persons directly affected by the application. This is so that the opposition know exactly what it is that you are complaining about and saying that they got wrong.
And this is the critical part. The leave to review is based on what was told to the court by the applicant in the Statement of Grounds. The court has now given you permission to bring a review based on those grounds. You are limited to those grounds. It would be unfair to add more grounds on later as the opponent, in this case the ABP, are going to say in court that you have caught them by surprise by raising issues that were not mentioned in your original Statement of Grounds.
It would seem that this was the mistake made by RTS.
In its reply to the application for review, the ABP raised the objection that the applicant had added on further grounds which were not covered by the original Leave to Review:
“2. As preliminary point, the Applicants’ written submissions go far beyond the scope of the grant of leave. These difficulties are further compounded by the non-specific nature of the submissions including very general allegations regarding alleged non-compliance with the Aarhus Convention which is not even part of domestic law. This arises at multiple points in the submissions and will be addressed below but the Board expressly notes this at the outset as it indicates the manner in which the Applicants seek to conduct these proceedings and insofar as issues regarding costs may arise under s.50B of the Planning and Development Act 2000 (as amended) (“the PDA”). Also, in this regard, the Board refers to what Charleton J said in Kerry County Council v An Bord Pleanála  IEHC 238:-
“In respect of this point, the issues of reasonableness, of proportionality, of the standard of judicial review for environmental decisions and availability of appeal remedies under the Aarhus Convention were all cast into the mix. This is unsatisfactory. But it is also usual in every major planning case. Such confusion by multiplication of tenuous argument goes nowhere. There is either a point here or there is not. Too often major planning judicial reviews are confused by taking every insubstantial issue into the mix: this is yet another such case.”
3. The Board observes that the length and detail of these submissions are a function of the manner in which the Applicants are approaching this case with not simply every possible issue “in the mix” but issues on which no leave has been granted. It is further noted that this case was called on by the Applicants for 2-3 days on, it is presumed, the basis of the case pleaded. The Board reserves its position with regard to costs insofar as the Applicants attempt to argue points not pleaded and thus unnecessarily prolong this litigation.”
Community groups must learn that when you go to the ABP hearing (if there is one) you need to be already clear at that stage what it is that you are complaining about. You need to think of everything at that stage and set out very clearly what your grounds of opposition are. This is good practice for when you take the decision on review as it will mean that your Statement of Grounds is complete and contains everything that you want to challenge as being wrong with the decision.
It is important to get this right at that stage as, as you can see, it is not permitted to simply add things on as you go along.
This is why so many issues that the RTS group thought they had raised were not mentioned in the judgment. They were not “properly before the Court”, as they were not covered by the original Leave to Review (and the Statement of Grounds) which means that the Court could not, and would not, consider them.
It is also important to get it right in the Commercial Court. Although it is the High Court, and is subject to exactly the same law as any other High Court, the Commercial Court is a ‘fast-track’ court where time limits are enforced and any thing that might be seen as time-wasting is frowned upon. Adding on arguments as you go along would be seen as time-wasting as it means your opponent will need more time to deal with these new arguments. Added to this is the fact that the Planning and Development Act sets very short time limits (8 weeks) to bring the application for review so it is all a bit of a mad rush which is why you have to have your ducks in a row as soon as is possible.
This probably also explains why the ABP were determined to go for costs. As far as they were concerned, the applicant had wasted their time and money by adding on all these additional grounds, apparently at the last minute.
This will not be a popular blog with many people, as it is pointing out what appears (on the face of it as I was not there) to be an expensive mistake. However, it is important to talk about these things so that we learn from our mistakes moving forward.
I look forward to comments, discussions and debate – particularly by people in the RTS community who might want to comment or just vent their frustration.