This is a case report on the Supreme Court judgment of:
Kathleen Connelly v. An Bord Pleanala
(Clare County Council and McMahon Finn Wind Acquisitions Ltd – Notice Parties)
Full judgment here: Kathleen Connolly v ABP Supreme Court
Kathleen Connolly was originally the applicant. She was successful in overturning the decision of An Bord Pleanala (ABP) to reverse the refusal of planning permission by Clare County Council and grant planning permission to McMahon Finn Wind Acquisitions Limited (the developer).
ABP appealed this decision of the High Court (Barrett J.) and because of its extreme public importance, the decision “leapfrogged” to the Supreme Court, without having to first go through the Court of Appeal.
The developer applied for planning permission for six wind turbines at Coor West, Shanvogh, County Clare. Clare County Council refused permission, and the developer appealed this refusal to the ABP. As it seems to do with alarming frequency, the ABP rejected its inspector’s recommendation to refuse permission and dismissed a number of the inspector’s concerns, particularly his concern over the significant impact that the wind farm would have on Carrowmore Point to Spanish Point and Islands Special Area of Conservation and on the Mid Clare Coast Special Protection Area.
The ABP issued the developer with a Section 132 Notice, which essentially calls for a Natura Impact Statement (NIS). The developer complied with this, and the ABP thereafter concluded that it had sufficient information before it to conduct an Environmental Impact Assessment (EIA) and an Appropriate Assessment (AA), that it had done so, and that it was satisfied that it could grant planning permission.
In essence the High Court had found against the ABP for providing inadequate reasons for its decision. The High Court agreed with Ms Connelly that although the ABP had carried out an AA and an EIA, it had had not provided sufficient reasons for its decision granting permission.
The High Court said the following:
” … what is required of An Bord Pleanala are 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 or conclusions in, say, a particular report or text to which reference is made, rather than simply being told that somewhere in an ocean of documentation is some stream of logic that An Bord Pleanala favours. And if it is all of a particular report or text that is being relied upon by An Bord Pleanala, so be it, but let it be identified properly, so that the findings and conclusions reached in its determination are sufficiently complete, precise and definitive as to enable
(i) an interested party meaningfully to assess the lawfulness of that determination and
(ii) a court to undertake a ready and comprehensive judicial review of same.“
Judge Barrett was not satisfied that the decision of the ABP met this standard and concluded that Ms. Connelly could not readily satisfy herself as to whether or not to bring a challenge against the ABP’s decision to grant consent to the developer.
The ABP argued that the High Court had set the bar too high when it came to the adequacy of reasons. In its appeal, the Board argued that if the High Court judgment was upheld, that this would have “serious consequences” for how the ABP would in future have to deal with making its decisions. In other words, the ABP was horrified at the thought of having to provide clear and precise reasons for its decisions, particularly as this would involve scientifically verifiable facts and conclusions.
It is important to point out that the High Court did not consider the Kelly judgment regarding the specific requirements which must be satisfied when it carries out an AA in order to give the Board jurisdiction to grant a permission. Judge Barrett was focused on the general duty to provide reasons:
“…when it comes to providing, again pursuant to s.l72(1J) “the main reasons and considerations on which the decision is based”, the court considers that the summary form of the text of An Bord Pleanala’s decision in this regardimparts next to no information to an affected party-here [Ms. Connelly]. She is not given a proper understanding of why the decision has been reached- and if she wants to seek a judicial review of the decision within the tight time constraints applicable, the generic form of the reasoning employed by An Bord Pleanala has the effect that she cannot properly assess matters without a detailed consideration of the underlying documentation and/or costly expert assistance.”
Whilst it is true that the ABP lost its appeal, it actually lost on a very narrow point of law. The Supreme Court rejected most of the High Court’s findings. However, having said that, it was mostly on findings of fact that the High Court was reversed. The Supreme Court echoed Judge Barrett’s pronouncements on the reasons for giving reasons. It simply disagreed with his application of the law on the facts before him. This is very important, because it is the principle of law that is the precedent going forward, and now this is a Supreme Court precedent.
Giving the court’s judgment, the Chief Justice, Mr Justice Frank Clarke, said the High Court had imposed “too exacting a standard” on the Board in respect of the obligation under national law to give reasons.
The law on reasons does not require that one agree with the reasons given but only entitles an interested part to know what the reasons were. The Supreme Court was satisfied that the reasons given by the ABP were adequate to enable any interested party know why the Board had made its decision, and also to decide whether there were any grounds to challenge the decision. The Supreme Court also held that there was sufficient detail to allow any interested party to trace the materials that ABP had considered in coming to its decision.
In other words, as previously mentioned, the Supreme Court is agreeing with Judge Barrett’s (i) and (ii) quoted above, but on the facts, and disagreeing with Judge Barrett, it is saying that the ABP satisfied the requirements of (i) and (ii).
This is not great news on a factual basis as the Supreme Court is saying that the quagmire of impenetrable levels that poses as the ABP website is sufficient for the average person to find information. In truth you need a B.Sc in Computer Science to make any sense of that infuriating site.
“Any materials can be relied on as being a source for relevant reasons subject to the important caveat that it must be reasonably clear to any interested party that the materials sought to be relied on actually provide the reasons which led to the decision concerned. In that regard, it seems to me that the trial judge has, put the matter much too far. The trial judge was· clearly correct to state that a party cannot be expected to trawl through a vast amount of documentation to attempt to discern the reasons for a decision. However, it is not necessary that all of the reasons must be found in the decision itself or in other documents expressly referred to in the decision. The reasons may be found anywhere, provided that it is sufficiently clear to a reasonable observer carrying out a reasonable enquiry that the matters contended actually formed part of the reasoning. If the search required were to be excessive then the reasons could not be said to be reasonably clear.
But it must also be noted that, in at least certain types of applications for planning consent, the issues involved may themselves be complex. The reasons put forward either in favour or against a proposed project may involve detailed scientific argument or complex calculation. If such issues arise then it will inevitably be the case that the reasons themselves may be complex and scientific. Where a party wishes to engage with the planning process in a case which raises complex issues of that type (whether at the stage of the application for permission or in the context of mounting a court challenge to a permission granted) then it is inevitable that the party concerned will also have to engage with such matters if any part of their opposition or challenge derives from such complex or scientific questions. It could form no part of a legitimate complaint, based on an argument as to reasons or the lack thereof, to suggest that the reasoning was unduly complicated or scientific if the issues which arose in the context of the grant or refusal of permission required engagement with such issues.”
What Clarke CJ seems to be saying is that if an issue is very complex in its nature, and that requires a high level of expertise or knowledge in that area, the layperson applicant cannot complain that the reasons provided by the ABP are too complicated to understand, as that is the nature of the beast. However, when the ABP relies on documentation or outside sources of reference, these must be reasonably accessible to the concerned citizen who is considering whether to challenge the ABP’s decision.
It might be argued that the Supreme Court has put too high a premium on the average person’s computer skills, and has ignored the practice of government departments in hiding documentation under multiple layers of electronic camouflage. It also says that once you find these camouflaged documents, you have to pay an expert a fortune to decipher them for you. This is hardly the scenario that was contemplated by the Aarhus Convention and I would suggest that the Supreme Court missed a golden opportunity to lay down a benchmark concerning the type and accessibility of information that should be provided to citizens seeking to exercise their legal rights.
The Supreme Court was satisfied, on the facts, that the ABP’s decision, and materials referred to in that decision, provided adequate information for any interested party to assess whether an appropriate EIA was carried out. Chief Justice Clarke reversed the High Court findings that the reasons were not adequate to demonstrate an EIA had been carried out:
“The law on reasons does not require that one agrees with the reasons given. In a challenge based on allegedly inadequate reasoning, the law only entitles an interested party to know what the reasons were. Someone reading the Decision is informed as to why the Board ultimately came to be satisfied in respect of each of the aspects of the Inspector’s report which were negative. It is no part of the function of this Court in this case to review whether there was a sustainable basis for any of the views expressed by the Board in that regard let alone to second guess the judgment of the Board as to whether it reached the correct conclusions. However, any interested party knows why the Board came to a different view from the Inspector and has attention drawn, where appropriate, to any specific materials which played an important part in persuading the Board to come to that view.
In my view, an interested party would, as a result of reading the Decision in conjunction with the Inspector’s report, together with documents (such as, for example, the Noise and Shadow Flicker Monitoring Report referred to earlier) which are either expressly referred to or by necessary inference must be taken to form part of the reasoning, have sufficient information both to inform themselves as to why the Board ultimately came to the conclusions which it did and also to consider whether there was any basis for challenging the conclusions which the Board reached. In my view, the trial judge imposed too exacting a standard in respect of reasons. Just as, at one extreme, the modern law on reasons does not permit a decision maker to engage in a simple box ticking exercise so also, at the other extreme, the law does not require a level of reasoning which goes beyond that required to afford an interested party reasonable information as to why the Decision was made and whether it can be challenged. In those circumstances I would hold that the reasoning of the Board in this case was adequate. Insofar as the High Court judgment held otherwise I would reverse the judgment.”
However, the Chief Justice noted that “different considerations” applied to the complaints about the AA which had been carried out by the Board.
Here the requirements on the ABP were far more exact and demanding. Before looking at those, the Supreme Court agreed with the High Court that no reasons could be found anywhere in the materials to suggest why the Board decided that a full AA was required. However, the High Court had also correctly held that, provided the AA met the necessary requirements, the failure to give adequate reasons for requiring a full AA was not itself sufficient to render a permission invalid.
But an AA itself goes much further than that. A key requirement of a sustainable AA must involve identifying all aspects of the development project which might affect a protected site and must identify “complete, precise and definitive” findings and conclusions that “no reasonable scientific doubt remains” about the absence of identified potential detrimental effects.
This went far beyond the issue of merely giving adequate reasons:
“As noted earlier this is not, strictly speaking, a reasons issue. The issue concerns the validity of an AA decision which gives jurisdiction to the Board to grant permission. It may involve reasons, and when it does those reasons must be given in accordance with the established jurisprudence. But there must also be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. It is against that backdrop that it is necessary to assess the Decision to determine whether it can be said to contain the sort of scientific findings which the CJEU jurisprudence requires.
In that context it is important to note that there are, in reality, two different stages to the process which must take place in an appropriate sequence. First there must be an AA and an appropriate decision must be made as a result of the AA in order that the Board have jurisdiction to grant a consent. Thereafter, assuming the Board has jurisdiction, the Board may go on to consider whether it should, in all the circumstances, actually grant permission and, if so, on what conditions.
There is no reason why the analysis and conclusion of the Board in respect of both of those matters cannot be contained in the one document. That is, of course, what happened here. The Decision sets out the analysis and conclusion both in respect of the AA and also in respect of the general planning process including the EIA. Once a single document dealing with both matters contains all appropriate information (including reasons) then the fact that all matters are dealt with in a single document even though relating to what are, technically, two different decisions, creates no difficulty. I would, however, recommend that the Board take care in ensuring that there is reasonable clarity as to which parts of such a document relate to an AA and which parts relate to more general planning considerations. This is not a formal requirement and a decision of a planning authority (including the Board) will not be invalid provided that the reasonable observer would be able to understand with reasonable clarity what the Board was deciding and why. However, it might well make the task of all concerned a lot easier if the Board were to clearly distinguish, in any document recording its decision, those aspects of the document which are concerned with an AA from those which are concerned with more general planning considerations.
In any event there is no doubt but that the Decision reaches the appropriate conclusion in respect of the AA. But as already noted that is not sufficient. There must be found either in the decision itself or in other materials which clearly must be taken by express reference or by necessary inference to identify the reasons for the ultimate determination, the sort of complete, precise and definitive findings which justify that conclusion.”
On the facts the Supreme Court found that neither the ABP’s decision, nor any materials forming part of the process leading to the decision, contained the sort of “complete, precise and definitive findings” to underpin its conclusion that no reasonable scientific doubt remained concerning the absence of any identified potential detrimental effects on a protected site.
As these findings were a necessary pre-condition to the Board having jurisdiction to grant planning permission, the decision of the ABP to grant consent was invalid.
This is not new law. I wrote about this stringent requirement over three years ago. There must be complete, precise and definitive findings and conclusions which sustain the ultimate conclusion. In other words, you cannot fudge the picture and portray your opinions as fact. No, here you must have scientifically verifiable facts which ultimately can only lead to the one conclusion, which is the one you must accept, even where it does not tally with the wishes of your political masters.
The fact of the matter is that this requirement has been routinely ignored by the ABP and now it has been caught out. Hopefully it has learnt its lesson. But this is too late to reverse the multitude of very questionable decisions that the ABP has made on the back of an AA that it supposedly carried out.