When the Boot is on the other Foot

 

 

Section 50 of the Planning and Development Act of 2000 (PDA 2000) is possibly one of the most unpopular sections when it comes to community organisations who battle big business, particularly wind farm developers. This is due to the fact that Section 50 limits their rights of redress against bad planning decisions to judicial review only.

 

As explained in previous blogs, the grounds of review are necessarily more limited and narrow than the grounds of appeal. With a judicial review, one is not able to challenge the decision itself (the merits) – in other words, “I think you are wrong”. The applicant is limited to challenging the procedure followed in reaching that decision, as opposed to the decision itself. The only challenge that is allowed against the decision itself is on the grounds of unreasonableness or irrationality, where essentially you have to show that the decision made is so crazy that only a lunatic could have made it (the so-called “Wednesbury Test”).

 

What however is good for the goose is good for the gander. If the planning authority is successfully overturned on review, they are expected to live with that decision. Accordingly, the planning authority’s scope of appeal is extremely limited:

Section 50(f)(i) of the PDA 2000 says that the decision of the review court is final, with only an extremely limited ground for appeal:

“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”

In other words, where a decision of An Bord Pleanala (ABP) is successfully challenged on review, ABP can only appeal that judgment to the Supreme Court if the High Court allows it to appeal. The High Court will only do that if it considers that its appeal raises points of law of “exceptional public importance”.

 

 

The facts

In the original case of Kathleen Connolly v An Bord Pleanála [2016] IEHC 322 (14 June 2016) a wind farm developer made a planning application to Clare County Council for a wind farm consisting of a number of turbines and associated works. The application was refused by the Council, and the wind farm developer appealed to ABP.

 

As is its usual procedure, the ABP appointed an inspector to prepare a report. The Clare County Council (following Kathleen Connolly’s submissions) had expressed concern about issues regarding habitat protection, the risk of water pollution, as well as issues concerning the assessment of noise and environmental effect, and the inspector was briefed accordingly.

 

The ABP also called on the developer to submit further specific information and revisions. This was by a notice issued in terms of Section 132 of the PDA 2000, which allows the ABP, in its absolute discretion, to request documents of any party to an appeal against a planning decision.

 

The wind farm developer supplied this additional information to ABP. Without giving proper reasons for its decision, and without giving the person who had successfully prevented the planning permission a proper chance to inspect these documents and formulate a reply, the ABP reversed the refusal and granted planning permission for the wind farm.

 

Judge Barrett of the High Court found against the ABP on review. The judge held that when making a decision, the ABP must provide

complete, precise and definitive findings and conclusions of a degree of specificity sufficient that a party minded to seek judicial review of such determination can turn readily to the particular observations, reasoning and conclusions contained in its decisions”.

In other words, the ABP must explain its decision and the reasons therefor in clear detail so that if a person wants to challenge that decision, they know and understand exactly what reasons they need to challenge and why. Similarly, if the ABP rely on any “particular report or text”, that report or text must be identified properly so that a challenger can read it and familiarise themselves with its contents. The ABP did not do so in this case and therefore the ABP was in contravention of ss.177V(1) and 172(1J) of the PDA 2000.

 

The ABP were clearly not happy campers, as this meant that a potentially huge wind farm was going down the drain, and so they appealed Judge Barrett’s decision. However, –  and this is where the fun starts  –  in order to be allowed to appeal, they had to convince Judge Barrett that their points of appeal raised points of law of “exceptional public importance.

 

Needless to say, they failed miserably.

 

Judge Barrett was ruthless as he destroyed ABP’s groundless arguments with surgical precision.

 

He opened his attack with a left-right combination which must have left ABP bleeding from the nose:

 

“That a point of law may relate to a matter of some private significance does not suffice to convert it into “ a point of law of exceptional public importance ”, even where the party claiming such a point to arise is a public body. Moreover, a point of law of exceptional public importance is, by its nature, not just a point of law of public importance (itself a difficult enough hurdle to jump) but of a degree of public importance that is exceptional (a still higher hurdle to be vaulted). In this last regard, the court cannot but note that in the within case it is claimed that the court’s judgment of 14th June last raises up to seven points of law of exceptional public importance; in Aherne & ors v. An Bord Pleanála & ors [2016] IEHC 536, a very recent s.50 judgment that issued while the text of the within judgment was being finalised, some six points of law of exceptional public importance were claimed to arise (all of which were rejected by the court in that case). That two judgments would be contended to raise, between them, some thirteen points of law of exceptional public importance suggests, at the very least, that there is something of a yawning chasm growing between bar and bench as to the true nature of exceptionality.”

 

Ouch!  Real meaning: “Just because it’s important to you , doesn’t necessarily make it important to anybody else. ABP, stop wasting our time”.

 

The ABP argued that Judge Barrett’s decision in Connolly contradicted a number of previous findings of the High Court. The judge dispatched that attack with a backhand slap:

 

“Far from presenting some divergence in case-law, the court expressly concluded, at para. 29 of its judgment of 14th June, that it saw nothing in, inter alia, the decision in Balz, “that would cause it to depart from or vary the reasoning applied, or conclusions reached, in this judgment” . The court remains of that view.”

 

Oooh!  Real meaning: “Did you even read those cases?

 

The ABP then asked what procedure needed to be followed when it did not agree with all or part of its Inspector’s report (which seems to be happening with increasing frequency):

“It is not entirely clear to the court that these are truly points of law; the questions seem to involve the An Bord Pleanála seeking direction as to its practices and procedures. But insofar as these questions do raise points of law as to the applicable obligations, those have been answered clearly in the court’s judgment of 14th June last. Section 172(1J) is plain in its meaning and effect; no cause for certification arises. The court will, therefore, decline to certify Questions [1] and [2].”

 

Oooff!  Real meaning: “Why are you asking me how to do your job?”

 

The ABP then asked the judge what would be the legal consequences of it carrying out an inadequate screening assessment in terms of Section 177U(6) of the PDA 2000?

“Section 177U(6) is clear in meaning and purport. It requires that An Bord Pleanála record and give notice of a positive screening for appropriate assessment. An appropriate assessment done without recording and notifying the screening determination is not done in accordance with law. Thus it does not seem to the court that there is any point of law arising: the statutory duty arising is clear, and there is an abundance of case-law on the consequences of breach of statutory duty. The court will therefore decline to certify Question [3].”

 

Ow!  Real meaning: Can you read?

 

Clearly desperate at this stage, the ABP then put forward a number of very confusing and contradictory questions, and the judge, clearly at the end of his tether, dealt with them all in one fell swoop:

 

“There is nothing uncertain about the obligations presenting for An Bord Pleanála in this regard: they are clearly set out in European law and in the decisions of Sweetman and Kelly, which were applied by the court in its judgment of 14th June. Indeed, to the extent that there is any issue arising in this regard, and the court does not consider that there is, it would arise (if it arose, and it does not) from those earlier decisions, not from the court’s decision of 14th June.”.

 

Ugh!!  Real meaning: “Now you’re just taking the piss!”

 

For too long now ABP have been making decisions without clear explanations as to what they considered in coming to their decision, and their deductive reasoning employed in reaching that decision, particularly when it appoints an inspector and then ignores his report. This judgment is a clear message from the High Court that this type of carry-on will no longer be tolerated.

 

Well done Judge Barrett. Respect!

 

 

“And it’s a left hook, a right hook, another left / right uppercut combination, and ABP is down, it’s down!”

 

“It’s all over, the ref has stopped the fight.”

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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3 Responses to When the Boot is on the other Foot

  1. fclauson says:

    Neil
    I found this “Time for O’Keefe to Go”
    http://www.claruspress.ie/ILR_Final%20proof_Web.pdf

    remembering that the reasonable test reads

    To be reviewable [as] irrational, it is not sufficient that a decision-maker goes wrong or even hopelessly and fundamentally wrong: he must have gone completely and inexplicably mad.

    I think the High Court has now found that much of what ABP is pushing out has reached that threshold – they are not just wrong but it could now be considered they have gone “completely and inexplicably mad”

    One has to remember that ABP are a “competent authority” in the eyes of EIA and Aarhaus but they have now totally undermined their position asking the court “how should we do our job?”

    I think ABP should take a leaf out of the book of the artists formally known as Prince (RIP) and rename themselves with just a symbol – they have a choice ! or ?

    • Thanks Francis, that looks very good. I always use that ‘completely and inexplicably mad’ quote in my lectures, as it shows just how how the bar is set. The ‘manifest error’ test favoured by the European Court might be a little more accomodating. section 50 needs to be challenged as not allowing a fair opportunity to challenge fundamentally ‘bad’ decisions.

  2. Pingback: When the Boot is on the other Foot | ajmarciniak

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