Grace & Sweetman v An Bórd Pleanála: Court will refer question to ECJ on Environmental Impact Assessment for wind farm

Here, the Supreme Court held:

(1) that the Court need not review its jurisprudence on the right to appeal from the High Court under s 50A (3)(b) of the Planning and Development Act 2000 in light of developments in EU law, as the 33rd Amendment to the Constitution provided for an appeal direct to the Supreme Court where an appeal to the Court of Appeal is not available;

(2) that Grace (& Sweetman) does have standing to challenge An Bórd Pleanála’s decision to grant planning permission for a wind farm in County Tipperary even though she did not take part in the planning application process: her standing stems from the fact that she has sufficient proximity to and could be adversely affected by the development; and,

(3) that the Court will make a reference to the European Court of Justice on the substantive issue in the case: whether the Environmental Impact Assessment carried out on the effects of the development was adequate.

Background

In July 2014, An Bórd Pleanála granted planning permission for a wind farm on Keeper Hill in County Tipperary. Grace (& Sweetman) applied to the High Court for an order of certiorari quashing that decision on grounds that the Bórd failed to carry out an adequate Environmental Impact Assessment as required by the Habitats Directive and the Planning and Development Act 2000. They also sought a declaration that, although they did not take part in the planning process, they had sufficient interest to challenge that decision, subject to s 50A (3)(b) of the 2000 Act.

On review of the case law, the High Court, Fullam J (here), held that Grace did not have standing to challenge the Bórd’s decisionand that the Environmental Impact Assessment was adequate. Grace then applied to the High Court for a certificate to appeal the decision on standing to the Court of Appeal and to make a reference to the European Court of Justice on whether the assessment was adequate. The High Court refused both applications. Grace applied for leave to appeal to the Supreme Court.

The Supreme Court granted leave on three questions:

(a) Whether the jurisprudence of this Court on the question of standing in environmental matters requires to be revised in the light of recent judgments of the Court of Justice and, if so, the application of any such revised jurisprudence to the facts of this case;

(b) Whether the jurisprudence of this Court concerning the absence of an entitlement to appeal against a refusal of leave to appeal by the High Court in environmental matters requires to be revised in the light of the new constitutional architecture consequent on the adoption of the 33rd Amendment and the jurisprudence of the ECJ and, if so, the application of such revised jurisprudence to the facts of this case; and

(c) Should it prove both appropriate and necessary in the light of the finding of the Court on issues (a) and (b) whether a substantive appeal against the decision of the High Court should be allowed by this Court on either or both of the grounds in respect of which the applicants sought leave to appeal before the High Court.

Supreme Court

Clarke J and O’Malley J wrote a joint judgment with which the other five judges concurred, O’Donnell, MacMenemin, Dunne, Laffoy and Charleton JJ. The judgment set out three issues: whether it was necessary to review the jurisprudence on the right to appeal; Grace’s standing to take an appeal; and the substantive issue of whether the EIA was adequate.

The Appeal Issue

On this issue, the Court held that, as the test for a leapfrog appeal from the High Court to the Supreme Court is of a lower threshold that the test for an appeal to the Court of Appeal under s 50 of the 2000 Act, there is no need for the Court to review its jurisprudence. However, the Court advised that an appeal to the Court of Appeal should remain the normal route and that the High Court should have regard to the new constitutional architecture when assessing a leave to appeal applications.

The Standing Issue

On review of the jurisprudence on standing in judicial review proceedings in planning matters, the Court stated:

8.5 For the reasons already addressed it is clear that, as a matter of national law, a failure to participate in the permission granting process does not of itself exclude a person from having standing but that it may be a factor which can, in an appropriate case, be taken into account. That may be especially so where the person concerned does not have a reasonably close physical proximity to the development in question or an established connection with a particular amenity value which might arguably be impaired by the proposed development. In that context it is important to emphasise that participation in the process will undoubtedly confer standing. A failure to participate may, (or may be likely to) leave the question of standing open to doubt particularly in the case of persons who cannot show either a physical proximity or a more general established interest in an amenity value of the site of the proposed development which may potentially be impaired.

The Court held that, although she did not take part in the planning process, Grace did have standing to take judicial review proceedings as: she lived within one kilometer of the proposed development site; she chose to live in the area because of its unspoilt nature, biodiversity and wildlife; and because she was involved in groups promoting tourism in the area.

Substantive Issue

The Court concluded that the substantive issue required the resolution of an unclear matter of EU law: the proper interpretation of Articles 6(3) and 6(4) of Directive 92/43 EEC (Habitats Directive). Therefore the Court will make a reference to the European Court of Justice on that issue.

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