New Appeal: On An Bord Pleanala’s duty to give reasons for its decisions

In this determination, Connolly v An Bord Pleanala, the Supreme Court granted the Bord leave for a leapfrog appeal from a decision of the High Court. In November 2016, Barrett J quashed a decision of the Bord to grant planning permission for a wind farm in County Clare for not providing sufficient reasons for its decision. Later, the High Court refused to grant the Bord certification to appeal that decision to the Court of Appeal.

 

Background

In 2011, Clare County Council refused McMahon Finn (notice party) permission for the development of a wind farm. McMahon Finn appealed that decision to An Bord Pleanala. After considering the appeal at a number of meetings, and after receiving additional information from the developer, the Bord granted permission for the development.

Kathleen Connelly, a homeowner close to the proposed development applied to the High Court for any order of certiorari quashing the Bord’s decision. She argued that the Bord did not provide adequate reasons for its decision to allow an objective observer to establish whether the decision met the requirements of law.

The High Court, Barrett J (here) reviewed the case law, determining that the applicable authorities are:

– the Court of Justice in Mellor, para. 59, “[I]nterested parties must…have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts”,

– Clarke J. in Christian, para. 78, “In order to assess whether a relevant decision is lawful, a party considering a challenge…must have access to a sufficient amount of information to enable an assessment as to lawfulness to be made”, and

– Finlay Geoghegan J. in Kelly, para.48, “[T]he essential principle is that the reasons must be such as to enable an interested party assess the lawfulness of the decision…”.

21. These obligations appear heightened in importance when one has regard to the tight time constraints that apply to seeking judicial review.

 

Quashing the Bord’s decision, Barrett J held that the Bord had not provided sufficient reasons in compliance with the quoted authorities.

 

Supreme Court

The Bord applied for leave for a leapfrog appeal to the Supreme Court arguing that the standard for leave to the Supreme Court of “general public importance” is lower than the “exceptional public importance” standard necessary for an appeal to the Court of Appeal under s 50 of the Planning and Development Act 2000.

The Bord argued that the High Court decision sets a new, higher threshold of reasoning for decision-makers, contrary to long-settled lines of authority.

Granting leave, the Court stated:

21. It is self-evident from the description of the issues and background circumstances that this is a matter of general public importance which warrants a leapfrog appeal to this Court. The issues in question concern not only this decision of the Board, but many other decisions of the Board. The question, simply put, is as to the degree of particularity and specificity necessary in the Board’s decision.

Meath Co Co v Murray: Article 40.5 does not preclude demolition order for illegally constructed private dwelling

Here, The County Council of Meath v Murray & Another, the Supreme Court held that Article 40.5 of the Constitution does not preclude a court from granting an order (under s 160, Planning and Development Act 2000) for the demolition of a private dwelling, where there had been two conflicting High Court decisions on that issue.

Background

In June 2006, Meath County Council refused Murray planning permission to build a residence on land in County Meath which was zoned for agricultural purposes. Within six months of refusal, Murray completed the construction of a residence approximately twice the size of the proposed development for which the Council had refused permission. Murray had moved into the property by December 2006 and still lives there with his wife and young children.

The Council became aware of the development and wrote to Murray seeking an assurance that the development would be demolished and threatening enforcement proceedings if that request was not complied with.

In 2007 the Council and An Bord Pleanála both refused applications for retention of the development. In 2008 and 2009, respectively, the Council and the Bord both refused permission for retention of a scaled down development.

In June 2009, the High Court (Edwards J) granted the Council an enforcement order under s 160 of the Planning and Development Act 2000 requiring the demolition of the development and the restoration of the land to its previous condition. Edwards J allowed 24 months for compliance with the order. Murray appealed to the Supreme Court (pre Court of Appeal).

Between the High Court decision and the appeal hearing, the High Court delivered two conflicting judgments concerning how the High Court should exercise its discretion under s 160 of the Planning and Development Act 2000 with reference to the protections provided by Article 40.5 of the Constitution: Wicklow County Council v Fortune, (No 1) & (No 2) (Hogan J); and Wicklow County Council v Kinsella (Kearns P).

Article 40.5:

The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

S 106 of the Planning and Development Act 2000:

(1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:

(a) that the unauthorised development is not carried out or continued;

(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;

(2) In making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.

Previous jurisprudence established how the courts should act in s 160 applications:

  1. Granting an enforcement order is a discretionary power, Stafford v Roadstone [1980] ILRM 71. [74].
  2.  The High Court should exercise that discretion as would a court of equity, Avenue Properties Limited v Farrell Homes Limited [1982] ILRM 21.
  3. Any discretionary powers must be found within the parameters of s 160 itself, Mahon v Butler [1997] 3 I.R. 369.
  4. “whilst the court has power to make both interim and interlocutory orders, that power is not intended to absorb within the section general equitable principles” [78].

In Morris v Garvey [1983] IR 319, Henchy J stated:

It would require exceptional circumstances (such as genuine mistake, acquiescence over a long period, the triviality or mere technicality of the infraction, gross or disproportionate hardship, or suchlike extenuating or excusing factors) before the court should refrain from making whatever order (including an order of attachment for contempt in default of compliance) as is ‘necessary to ensure that the development is carried out in conformity with the permission.

In Fortune, Hogan J determined that the recent Supreme Court jurisprudence in Damache v DPP [2012] 2 IR 266 necessitated a reassessment of the test from Morris v Garvey:

Of course, the proportionality at issue here is not simply proportionality in the narrow sense understood by Henchy J in Morris v Garvey of whether the breach of the planning laws is so insignificant that the demolition of the property would represent an excessive response to such a technical infraction, but rather proportionality in a broader sense of that term, namely, whether, in the circumstances of any given case, the policy objectives of legislative compliance and environmental protection can be said to justify such a far-reaching interference with property rights and the inviolability of the dwelling. Hogan J, Fortune.

In that case, Hogan J overturned a Circuit Court order for the demolition of a wooden chalet that Fortune had constructed without planning permission close to a special conservation area.

In Kinsella, Kearns P took an opposing view to Hogan J, stating:

I see no basis at all for adapting or transposing observations made in the context of Damache into the completely different legal and factual matrix of unauthorised planning developments. Still less do I see any basis for introducing a new test, based on some ‘free-standing’ obligation under Article 40.5, to effectively set aside the considerable body of jurisprudence which already exists in relation to the discretionary application by the courts of enforcement procedures under Part VIII of the Act.

Appeal

Murray appealed on a number of grounds, but McKechnie J (writing for a unanimous five judge panel) identified the significant issue as Murray’s reliance on the Fortune decision and the conflict between the High Court decisions in Fortune and Kinsella.

Addressing the Fortune judgment, McKechnie J stated, “I am readily prepared to accept that Article 40.5 of the Constitution is not confined to criminal law or its procedural surrounds. It must, at the level of principle, have an application in civil law” [118]. But he believed that Hogan J had read too much importance into Damache and recalibrated the test from Morris v Garvey in a way which gave too much weight to the development being a dwelling. Such considerations, however phrased, are part of every appeal against demolition, but cannot, however forceful, preclude a court from granting a demolition order [130]. That a structure is a dwelling is but one factor that a court must consider. And a court must also consider if a dwelling has been constructed in flagrant breach of planning law [129]. And where such is the case, the authorities show that a demolition order is within the range of available remedies [128].

The Court upheld the High Court order allowing 12 months for full compliance.

New Appeal: Must Bord Pleanála consult public before designating a proposed development as strategic infrastructure?

In this determination, Callaghan v An Bord Pleanála & Ors, the Supreme Court granted Callaghan leave to appeal on whether members of the public are entitled to be consulted before the Bord designates a proposed development as a strategic infrastructure development.

Background

Element Power Ireland (EPI) proposed to develop a wind farm in County Meath, five kilometers from Callaghan’s home. After an inspector’s report, the Bord determined that the proposed development would be a strategic infrastructural development for the purposes of 37A(2) of the Planning and Development Act 2000. That means that the application for planning permission should be submitted to the Bord instead of to Meath County Council. EPI submitted its planning application to the Bord. Callaghan applied to the High Court for judicial review of the Bord’s determination on grounds that he was entitled to be heard prior to the determination.

In the High Court, Costello J refused Callaghan’s application. But she certified a point of law of exceptional public importance for appeal to the Court of Appeal:

Is the Statutory Scheme contained in the Planning and Development (Strategic Infrastructure) Act 2006 when construed in the light of Sections 50(2) and 143 of the [Act of 2000] such that it is necessary to read into the Scheme a right for interested members of the public to be heard prior to [the Board] reaching an opinion pursuant to Section 37A of the [Act of 2000]?

The Court of Appeal answered that question in the negative. Callaghan applied for leave to appeal that decision to the Supreme Court.

Supreme Court

In his application, Callaghan argued that he met the constitutional threshold for leave to appeal: the issue was of general public importance.

The Bord argued that the fact that the High Court certified the question cannot inevitably mean that there is a right of a second appeal to the Supreme Court in all such cases.

The State opposed Callaghan’s application on grounds that he is not challenging the constitutionality of the underlying legislation or asking the Court to depart from or distinguish one of its previous decisions, and he has already had two full hearings.

Granting leave, the Court determined that the respondents had not shown that the question is not one of general public importance. And the fact that the CoA had already addressed the question did not change that it is.

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.

New Appeal: EU law, environmental protection and costs for judicial review of planning decisions

In this determination, Sweetman v An Bórd Pleanála & Eirgrid, the Supreme Court granted Sweetman leave to appeal directly from the High Court against that court’s order that he pay the Bórd’s and Eirgrid’s costs for his failed judicial review action. The Court limited the appeal to consider two issues:

(a) That the trial judge was incorrect to hold that these proceedings were not governed by s 50B of the Planning and Development Act 2000 as amended (which would mean no order for costs); and

(b) That, even if the trial judge was correct to so hold, applicable measures of European Union law required the trial judge to exercise his discretion in respect of costs in a manner other than the way in which that discretion was actually exercised.

 

Background

In October 2016, Sweetman brought judicial review proceedings challenging the Bórd’s decision to grant Eirgrid permission for certain works of overhead power lines in County Mayo. The High Court (Hedigan J) dismissed those proceedings and awarded the Bórd and Eirgrid orders to recover their costs from Sweetman. Hedigan refused Sweetman certification to appeal the costs orders to the Court of Appeal.

Sweetman applied to the Supreme Court for leave to appeal to that court. Article34 of the Constitution provides for an appeal directly from the High Court to the Supreme Court where: (1) the case involves an issue of general public importance; and (2) there are exceptional circumstances which warrant such an appeal.

Granting Sweetman leave to appeal, the Court determined that, firstly, the case did raise an issue of general public importance: whether it is necessary to interpret s 50B in a manner compatible with EU law (including the Aarhus Convention) or whether certain relevant provisions of EU law have direct effect. And secondly, as an appeal to the Court of Appeal was not available, that provided the exceptional circumstances to warrant an appeal directly to the Supreme Court.

Supreme Court orders that Peter Sweetman must pay Shell’s costs in challenge to Corrib planning

Bellanaboy-Bridge-Gas-Terminal-Overview-900x556Here (Sweetman v Shell), the Supreme Court held that Part 2 of the Environmental (Miscellaneous Provisions) Act 2011 (Costs of Certain Proceedings to be Borne by Each Party in Certain Circumstances) (link) does not act retrospectively. Charleton J stated: This is because the award of costs is not essentially procedural. An expectation as to the recovery of costs affects both the decision to commence a case and the necessary and legitimate prediction that it would be funded if successfully prosecuted or successfully defended by the party required to answer a legal action. Laffoy J and Dunne J concurred.

 

Background

The background case to this application for costs is outlined in a previous post (here). In 2005, the High Court refused Sweetman an order under s 160 of the Planning and Development Act 2000 prohibiting Shell from completing works on the Corrib Gas Terminal. Sweetman lodged an appeal of that decision in the Supreme Court. But he allowed that appeal to remain dormant until 2014. In 2016, the Supreme Court dismissed that appeal as moot.

Shell applied for a costs order against Sweetman. Sweetman argued that the Environmental (Miscellaneous Provisions) Act 2011 applied retrospectively to his case.

For reasons set out in the judgment, Charleton J rejected Sweetman’s argument:

23. The relevant section as to costs of the Environmental (Miscellaneous Provisions) Act 2011 is not retrospective. It does not apply to litigation already issued prior to the commencement of the Act. It applies to all future litigation started after the commencement date of the Act of 2011. This is because the award of costs is not essentially procedural. An expectation as to the recovery of costs affects both the decision to commence a case and the necessary and legitimate prediction that it would be funded if successfully prosecuted or successfully defended by the party required to answer a legal action.

24. Even if the Act of 2011 applied retrospectively, the legislative provisions providing for an exception to the neutral rule as to costs in environmental protection cases requires this Court leave in place the order of the High Court as to costs. On this appeal, this Court cannot but award costs against the appellant Peter Sweetman in circumstances where an action has languished on appeal for 10 years and was effectively rendered moot by that delay. The costs of this appeal are awarded to Shell as against the appellant Peter Sweetman.

Lanigan v Barry: enforcement of planning permission not an appropriate remedy for nuisance

175-640x336Here, the Supreme Court held that a statement of intended use in a planning application could not be implied to be a condition of a grant of planning permission; and that an injunctive remedy for nuisance should not be based on the conditions of a planning permission, but on finding the appropriate remedy for the nuisance established.

Background

In 1980, Tipperary County Council granted planning permission for a tarmacadam motor race track at Tullamaine, subject to certain conditions, including:

(1) The proposed development shall be carried out in accordance in with the applicant’s submitted drawings and outline specification save where these are modified by the following conditions.

(7) In the event that the operation of the racetrack gives rise to justifiable complaints by local residents the applicant will be required to take whatever steps are deemed necessary by the Planning Authority to remedy the situation.

The application for planning permission stated:

  1. It would be intended to operate the race track on Saturday or Sunday evenings from April to October, if a motoring organisation wished to practise or use the track during weekday evenings under the proprietors supervision and control, it would be proposed to utilise the track for such purposes.

4.    The duration of each race track operation would approximate three hours maximum.

In 1981, Lanigan bought Tullamaine Castle Stud, a 200 stud farm which at times accommodates up to 100 hundred thoroughbred horses. The race track operated on an infrequent basis between 1981 and 1991. In 1991, Barry purchased the race track, and he reopened it in 1992. In 1997, intensive go-karting began on a year round basis. And in 2002 drifting competitions began at the track.

In 2006, Lanigan (and others living close to the race track) issued High Court proceedings claiming injunctive relief under s 160 of the Planning and Development Act 2000 and an action in nuisance. In 2008, Charleton J (here) granted orders that:

(i)    The plaintiffs have been subjected to a persistent and invasive nuisance due to noise emanating from the premises of the defendants, the nature of this being such as to require this court to restrain it through an injunction.

(ii)    The plaintiffs are reasonable persons who have held off the issue of proceedings in a reasonable manner and are not, therefore, to be faulted due to delay. There is no prescriptive right in favour of the defendants.

(iii)    The defendants are bound by the terms of the planning permission of 1981 to operate their motor raceway so that a car race occurs only on either a Saturday or a Sunday and for a maximum duration of three hours during the months of April to October only. In addition, the defendants may be allowed up to two hours of practice during the week of a race, but no more than that. They are now injuncted to comply with these terms.

(iv)    Where the defendants wish to have a race, they are required by the terms of this injunction to put a notice to that effect on the gateway to their premises seven days before such event so that all the neighbours can take evasive action and re-plan their lives around the expected noise.

(v)    On the basis of nuisance, I equally impose the restraints set out in paragraphs (iii) and (iv) by way of injunction. …

Lanigan appealed to the Supreme Court.

Supreme Court

Both counsel agreed that the issue on the planning aspect of the case was whether the proper construction of the planning grant contained conditions as to the scale and timing of operations at the track. That is, whether condition (1) in the planning grant imposed a limitation on use in line with the statement made in the planning application of the intended use. Or more specifically, was it a condition that races would only be held on a Saturday or Sunday evening, from April to October, for a maximum period of three to four hours? Clarke J held that, under the “text in context” approach, the grant could not be interpreted in that way [4.4]. However, he agreed with the trial judge’s finding that the current use is significantly intensified over that contemplated in the permission [4.5].

In relation to the High Court injunction, Barry argued that the trial judge had failed to take account of the seven year statute of limitations on enforcement of conditions of planning permission introduced in the 2000 Planning Act (as amended). Barry argued that the trial judge should have established material changes of use which pre-date the seven year period prior to Lanigan’s issue of proceedings, and he should not have issued an injunction against the continuation of those uses of the track.

Given the findings of fact made by the trial judge, Barry accepted that it was not open to him to argue the finding of nuisance was impermissible. However, he argued that the trial judge erred in his finding of the appropriate injunctive relief. The trial judge should have considered the appropriate form of injunctive relief to remedy the nuisance now established, instead of looking to a 30 year old planning permission.

Clarke J accepted Barry’s argument that the High Court injunction could not be sustained in light of the seven year limitation period and as the trial judge had made no analysis of the level of intensification prior to seven years. Similarly, Clarke accepted that the injunction for nuisance could not be based on the conditions of planning. He did, however, accept that some form of injunction would likely be appropriate, specifically against the drifting competitions. He ordered that the case be returned to the High Court for an appropriate remedy to be applied. He granted an interim injunction against drifting at the track.

Denham CJ and Dunne J concurred.

Supreme Court grants five new appeals: privacy, garda sick pay, extradition and planning

CRH v Competition and Consumer Protection Commission

In this determination (here) the Supreme Court granted the State leave for a leapfrog appeal of the High Court decision by Barratt J that the Commission acted ultra vires s 37 of the Competition and Consumer Protection Act 2014 and in breach of a CRH employee’s constitutional and EU Charter rights to privacy. The case relates to the Commission’s seizure of a CRH employee’s business email account, in its investigation of anti-competitive practices in the sale of bagged cement products.

 

Garda Representative Association v Minister for Public Expenditure and Reform

In this determination (here), the Supreme Court granted the Garda Representative Association (GRA) leave to appeal the Court of Appeal’s decision that the Minister was not obliged to consult with the GRA before exercising his delegated power to introduce a statutory instrument regulating the terms of sick pay for all public servants.

Background

Prior to 2012, garda sick pay was the responsibility of the Minister for Justice. In 2012, the Department of Public Expenditure and Reform initiated a process to reform the payment for sick leave for all public servants. The GRA sought to have garda sick pay regulated on different terms from other public servants, on grounds that gardai faced a higher likelihood of injury in their daily work routine. Initially, the Minister agreed to that request and set up a working group to make a recommendation. But the Minister decided against treating gardai separately after objections from other public servants.

The GRA issued judicial review proceedings seeking a declaration that the Public Service Management (Sick Leave) Regulations 2014 should not apply to members of An Garda Síochána. The High Court dismissed those proceedings (here); as did the Court of Appeal (here).

The Supreme Court determined that the GRA raised three questions of general public importance which warranted a further appeal:

(a) Whether decisions of Government which impact on existing entitlements of workers in the public service require, prior to being changed to the detriment of such workers, either consultation with those so affected or any other form of procedure, such as procedural fairness?

(b) Where a representation is made which gives rise to a legitimate expectation that Government will be bound to a particular course of action, may this be resiled from or withdrawn without legal consequence?

(c) Whether the conditions for liability for legitimate expectation also require that the party or parties, to which such a representation is held out, change their position to their detriment, or otherwise act on same so that it would be inequitable for the Government to go back on that representation?

 

Attorney General v Lee

The US wants to extradite Lee for fraud offences committed in the US. Lee argues, firstly, that the State, through a number of statutes, has asserted extraterritorial jurisdiction over such offences; and secondly, that s 15 of the Extradition Act 1965 prohibits his extradition. S 15 states:

Extradition shall not be granted where the offence for which it is requested is regarded under the law of the State as having been committed in the State.

The Attorney General argued that, although the State has asserted extraterritorial jurisdiction over those type of offences, the offences in question were not committed within the State. The Court of Appeal accepted that argument.

Here, the Supreme Court granted Lee leave on:

whether the Court of Appeal erred in deciding that:

(a)    there was a distinction to be made between an offence which was regarded as having been committed within the State, and an offence committed in another state, over which extraterritorial jurisdiction is claimed under Irish Law?

(b) in determining that, in the latter case, such an offence could not be said to be an offence which “is regarded under the law of the State as having been committed in the State”, for the purposes of s.15 of the Extradition Act, 1965?

This Court will also consider whether:

(c) the judgment of this Court in Attorney General v. Pocevicius [2015] IESC was correctly decided?

 

Minister for Justice & Equality v Lipinski

The Republic of Poland issued a European Arrest Warrant for Lipinski’s return from Ireland to Poland to serve the remainder of a suspended sentence reactivated in his absence. In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision. Aside from the issue of the interpretation of s 45, Lipinski raised the argument that Article 38.1 of the Constitution guarantees the right to appeal against a decision to reactivate a suspended sentence, and his surrender would breach that right.

In its determination (here), the Court granted leave on two issues:

(a) That the Court of Appeal erred in deciding that s 45 of the 2003 Act, substituted by s 23 of the 2012 Act, was not engaged where a person, such as the applicant, was present for the hearing concerning his guilt or innocence, and the imposing of his sentence, but was not present for, or notified of, the application to activate the suspended sentence?

(b) In the circumstances set out in para (a), would an order for the surrender of the applicant violate the applicant’s rights under Article 38.1 of the Constitution of Ireland; Article 47, 48 and 53 of the Charter of Fundamental Rights & Freedom, and Article 6 ECHR?

 

Sweetman v An Bord Pleanála

In 2012, Donegal County Council identified a quarry operated by Heuston (the notice party) as one which fell under the criteria of s 216A of the Planning and Development Act 2ooo, as a development requiring regularisation. The Council directed Heuston to apply to An Bord Pleanála for substituted consent for the development. In 2014, the Board granted the Heuston substituted consent without considering whether there were exceptional circumstances which warrant the grant of substituted consent in circumvention of EU law requiring an Environmental Impact Statement. Sweetman instigated judicial review proceedings in the High Court seeking an order quashing the Board’s decision, or a declaration that s 216A is contrary to EU law, as it allowed the circumvention of the requirement of an EIS. The State made an application to have Sweetman’s proceedings struck out on grounds that the proceedings are a collateral attack on the Council’s decision, taken out of time.

In the High Court (here), Hedigan J dismissed the State’s application. And the Court of Appeal (here) dismissed the State’s appeal. The State sought leave of the Supreme Court for a further appeal on grounds that the case raised an issue of general public importance.

In this determination (here), the Supreme Court granted leave to appeal on whether:

(a) having regard to the provisions of the Planning and Development Acts, 2000-2010, and having regard to the events and circumstances involved in this case, it can properly be said that the challenge brought on behalf of Mr. Sweetman to the decision of the Board amounted to a collateral challenge to the earlier decision of Donegal County Council; and (b) whether, in the light of the determination on issue (a), the decision of the Court of Appeal to refuse to dismiss Mr. Sweetman’s application as against the State should be overturned.

New Appeal: When does a deviation from planning permission render a development unauthorised?

WindFarm_largeIn this determination (Bailey v Kilvinane Wind Farm), the Supreme Court granted Kilvinane leave to appeal from the Court of Appeal’s order restraining the use of three wind turbines (which Kilvinane constructed in deviation from its planning permission) and an order to dismantle the turbines, which the COA stayed pending the decision in an application before An Bord Pleanala for substituted permission.

Background

In July 2000, Cork County Council granted Kilvinane planning permission for four wind turbines with rotor diameters of 57 metres. Kilvane later corresponded with the Council, in which the Council agreemeed to deviations from the details in the planning permission. In 2005 -2006, Kilvinane constructed three turbines, each of which was 20 meters from the position for which permission was granted and with rotor diameters of 58, 80 and 80 metres.

In 2013, the High Court refused Bailey’s application under s 160 of the Planning and Development Act 2000 for three orders: (1) restraining Kilvinane from operating the turbines; (2) that Kilvinane take down and remove the turbines; and (3) that Kilvinane return the land to its original condition.

Here, the COA allowed Bailey’s appeal. Hogan J stated:

100. It is inherent in the doctrine of good faith as a general principle of law that any party seeking to avail of that principle should show appropriate regard for the rights of third parties who might reasonably be affected by their actions. There is nothing at all to suggest that either the developer or, for that matter, the Council official in question gave any consideration to this issue. In such circumstances no sensible developer could reasonably suppose that a planning authority could informally sanction such deviations from location and rotor diameter without a formal assessment of the potential planning and environmental impact of these changes and especially their potential effects on third parties.

Kilvane sought leave of the Supreme Court to appeal that decision. Granting leave, the Court determined that the case raised a matter of general public importance and certified two questions:

(a) What is the nature and extent of the deviation from the permitted development which crosses the materiality threshold, so as to render the development an unauthorised development and what criteria should a court apply in determining where the threshold lies?

(b) What are the implications of the involvement of an official of the planning authority for the area in which the development is taking place in representing to the developer that a particular deviation from the development, as authorised by the planning authority or the Board, will not render the development an unauthorised development and, in particular, should a court have regard to such a pre-development representation or statement in determining whether the deviation is material so as to render the development unauthorised?

New Judgment: Sweetman v Shell, Court dismisses appeal re Corrib gas terminal planning permission as moot

Bellanaboy-Bridge-Gas-Terminal-Overview-900x556Dismissing this appeal (here) in an action under s 160 of the Planning and Development Act 2000, Dunne J stated that “notwithstanding the fact that a pre-commencement condition requiring agreement between the developer and the planning authority on a particular issue has not been concluded but where there is subsequent agreement, a court will not generally grant relief pursuant to s 160 of the Act”.

In October 2004, An Bord Pleanala granted Shell planning permission for the construction of a gas terminal in County Mayo, subject to, among other things, Shell providing Mayo County Council with security for the reinstatement of the land to its original condition after activity has ceased at the plant (Condition 37). In March 2005, Sweetman issued High Court proceedings under s 160 of the Planning and Development Act 2000 seeking a range of inhibiting and mandatory injunctions and orders permitting him to inspect the sites.

By the time the case came to hearing, in March 2006, the issues had been narrowed to two, one of which was Shell’s compliance with Condition 37. Sweetman argued that the arrangement that Shell was proposing and that the Council were agreeable to was not in compliance with Condition 37, and he was seeking an injunction prohibiting further work on the site until there was full compliance.

Dismissing Sweetman’s proceedings, Smyth J held that there was substantial compliance and only formalities remained to be fulfilled. Sweetman appealed that decision to the Supreme Court.

Supreme Court

In a notice of appeal dated April 2006, Sweetman sought a declaration that Condition 37 was not complied with and an order restraining work until there was full compliance. However he did not actively pursue the appeal, which lay dormant until 2014 when it appeared on the uncertified list on the Chief Justice’s direction. The parties corresponded by letter, and Shell’s solicitors provided details of its compliance with Condition 37 and sought withdrawal of the appeal. Sweetman did not withdraw the appeal. Although, as the terminal construction had been completed in the intervening years, and has since commenced production, Sweetman was not seeking an order that the terminal be shut down, he was seeking a determination that Condition 37 had not been complied with–but that Shell be given an opportunity to comply.

Dunne J noted that although Sweetman did not withdraw his appeal, he effectively had to be forced to proceed with it through its inclusion in the uncertified list. And given the nature of the remedies he was originally seeking–injunctive relief–he was facing a difficult struggle to begin with. But given his failure to proceed promptly, each delay decreased his likelihood of succeeding, as the courts’ power under s 160 of the 2000 Act is discretionary. In this case that discretion would have had to have regard to the other parties that would be affected, that Shell had invested significantly on the legitimate understanding that it was in compliance with planning law, and to those in employment, either during construction or processing. Dunne J stated that it is unacceptable to conduct litigation of this nature in the manner that this case was conducted.

In conclusion she reviewed the changed circumstances since the notice of appeal in 2006: Shell had completed the terminal and commenced production; Sweetman was not seeking the shut down of the plant; the Council had agreed to Shell’s security, and, as it was not party to the proceedings, Sweetman could not challenge that decision. Given those circumstances, Dunne J determined that there was no live dispute between the parties and dismissed the appeal as moot.

 

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