O'Mahony v. An Bord Pleanala [2005] IEHC 39 (18 February 2005)

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Cite as: [2005] IEHC 39

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    [2005] IEHC 39
    THE HIGH COURT
    DUBLIN
    Record No. 04/584JR
    BETWEEN/
    JAMES G. O'MAHONY
    Applicant
    -and-
    AN BORD PLEANÁLA
    Respondent
    And
    THE COUNTY COUNCIL OF
    THE COUNTY OF CORK CITY
    NOTICE PARTY
    APPROVED JUDGEMENT OF MR. JUSTICE O'NEILL DELIVERED ON FRIDAY, 18TH FEBRUARY 2005

    MR. JUSTICE O'NEILL:

    This is an application for a leave to apply for Judicial review of two decisions of the first named Respondent, An Bord Pleanála, made on the 4th February 2004 whereby in the first decision it Confirmed a Compulsory Purchase Order in relation to Part of the applicant's lands on the 29th October 2003 and in its second decision gave approval of a road improvement scheme in relation to the N25 at or about or adjacent to the plaintiff's lands. In these proceedings orders of certiorari are sought to quash both of these decisions.

    This application for leave was made pursuant to Section 50 of the Planning Act of 2000 and therefore the applicant must show substantial grounds for contending that these decisions are invalid. Substantial grounds means weighty or substantial or reasonable grounds, that is to say, not tenuous or just simply open to argument. It is, of course, a higher standard than the ordinary standard that pertains for obtaining leave to apply for judicial review.

    Now, the background to this matter is that the applicant is the owner of approximately 12 hectares of land zoned in the Cork County Development Plan for mid density housing. He has access from these lands via a driveway onto the N25. At the moment the lands are of an agricultural nature and the buildings were used in recent times as an abattoir. The actual entrance that is there at the moment is of a driveway type and manifestly, as it stands, unfit as an access into a housing development. The Cork County Council have a proposed scheme to upgrade the N25 and for that purpose have sought approval for that scheme from An Bord Pleanála under Section 51 of the roads Act 1993. In order to build a slip road off the N25 leading to the Bandon direction, Cork County Council made a Compulsory Purchase order of the entrance and a significant part of the avenue leading up to the buildings on the applicant's land. The road scheme Provides for another access into the applicant's land nearer the Dunne Stores property.

    The applicant is clearly aggrieved because the proposed scheme does not give him an access directly onto the N25 suitable for a development on this lands consistent with its zoning for mid density housing. The applicant has applied for planning permission for housing and this application was refused initially by the Cork County Council and on appeal by An Bord Pleanála, and the primary reason for refusal by both of these bodies was traffic safety reasons and also the unsuitability of an access onto a national

    Primary route.

    The applicant raises a number of grounds in respect of which he seeks leave and I will deal with these in turn. The first of these grounds is that he says that the application to An Bord Pleanála by Cork County Council was misconceived being expressed to be for approval of the Environmental Impact Statement rather than for approval of the Road Improvement Scheme itself as required by Section 51 of the 1993 Roads Act.

    This contention by the applicant appears to me to be almost solely, if not indeed solely, based upon a sentence in a letter of the 30th October of 2003 from the County Council to An Bord Pleanála in which it purports to seek the approval in question. It is the applicant's case that in apparently seeking approval only for the Environmental Impact Statement that the jurisdiction of An Bord Pleanála under Section 51 of The Road Act 1993 has not been correctly invoked and, hence, its decision lacks essential jurisdiction and is, therefore, invalid. In my view this ground is not sustainable, it is based solely on an extract from a letter of 30th October 2003. Taking this letter as a whole it is quite clear to me that the application was for approval of the road scheme and not just the Environmental Impact Statement. It has to be remembered that there is no prescribed form in the regulations under the Roads Act for making these applications and indeed the only documents which are expressly required to be provided in the Environmental Impact Statement, but having regard to these factors and the overall tenor of the letter itself, it seems to me that nobody could be in any doubt but that what was sought to be approved was the Road Improvement Scheme and not otherwise. It seems to me that this ground is no more than a clutching at a very frail straw indeed.

    This ground, in my view, can be fairly characterised as purely technical, not affecting at all the merits one way or the other of the main issue and I'm quite satisfied that it lacks sufficient weight or substance to warrant leave for judicial review.

    The next ground put forward was that the Bord did not have regard to an alleged breach of Section 15(1) of the Roads Act of the Planning and Developments Act of 2000 on the part of the County Council in failing to have provided the applicant with an access onto the N25 suitable for a housing development and in so doing breached its own Development Plan by frustrating a housing development on the applicant's land. It must be remembered that the decisions challenged are those of An Bord Pleanála, thus, in my view, the court cannot be asked in this application to consider the merits of the contention that the County Council breached Section 15(1) in the manner alleged.

    The question of whether the applicant was effectively denied a proper access to this land by the road scheme was extensively canvassed in the oral hearing with experts called on both sides of the argument. The applicant's case was that that access to the Eagle Valley estate to the east was not likely to be achieved because of the inadequacy of the roads there and also because of a ransom strip separating the applicant's land from the actual road itself on the Eagle Valley side. Also, it was contended that access was unlikely to be achieved onto the Bandon Road, hence, without access onto the N25 the zoning objective relative to his land would be defeated.

    For the County Council the case was made that both of these routes had the potential to provide access to the applicant's lands. Having considered all the evidence the Inspector came down on the side of the County Council. Soon after that the applicant's application for planning permission for his land for housing was refused by the County Council and later An Bord Pleanála primarily on the ground of road safety and the undesirability of access onto the national primary route. Thus, it was argued here by Ms. Butler and Mr. Macken that even without the Road Improvement Scheme the applicant was not going to Have an access onto the N25 in any event. It is not for me to decide these issues. Suffice it to say, that in an application for a judicial review, such as this, it is the legality of the decision and not the merits that must be considered. No allegation has been made in respect of that issue, by the applicant in respect of a breach of natural justice, not is there an allegation of irrationality made. I would, of course, draw attention to the fact that ground 15 of the grounds does, in fact, allege irrationality, but, in fact, this ground was not pressed in the course of the argument by Mr. Galligan and indeed if it had been pressed, I wouldn't have had the slightest hesitation or difficulty in finding that there was ample material before the Board to support and justify the decisions it had taken and had that ground been pressed it would undoubtedly have failed. The decision as to whether there was such a breach, that is to say, a breach of Section 15(1) of the Planning and Development Act 2000 was one which was within the competence of An Bord Pleanála to consider and decide upon it having been raised by the applicant in the oral hearing, and its decision, in my view, cannot now be disturbed on this ground. Hence, in my view it is not open to this court on a judicial review application to interfere with the decision of An Bord Pleanála on the grounds that there was alleged to have been a breach of Section 15(1) of the Planning and Development Act 2000 on the basis that, the Road Improvement Scheme did not provide for an access to the plaintiff's lands suitable for a housing development on to the N25 directly. Accordingly, in my view this ground fails.

    Now, the next ground that was raised related to the adequacy of the Environmental Impact Statement. The applicant contends that the Environmental Impact Statement did not consider future development on the applicant's land and the impact of the roads scheme on it in terms of noise, air quality and access to the N25. In the oral hearing the County Council experts conceded that this was so, for An Bord Pleanála it was submitted that an Environmental Impact Statement could not consider impacts on development not yet known as to do so would be simply to speculate, it was submitted that an Environmental Impact Statement could only consider impacts on planned development, that is to say, development in respect of which there was planning permission.

    I would be satisfied that the absence of planning permission would not be sufficient to excuse a non-consideration of future potential development. The zoning on the land indicates that within the lifetime of the development plan, development of a particular kind may take place, in this case mid density housing, it would seem to me that to ignore the likelihood zoned development would be a significant deficiency in an Environmental Impact Statement and a failure to comply with the relevant directive, that is to say, the Environmental Impact Statement, directive. While in this case the applicant's real and only concerns with the access onto the N25, at no stage had he raised any concerns about the noise or air quality impacts or the like. Insofar as the N25 access problem is concerned that problem is a present and immediate problem and is well described and considered in the Environmental Impact Statement. It is a problem which exists now and its impact can indeed undoubtedly be fully anticipated and indeed it would be unreal to suggest that the Environmental Impact Statement does not fully deal with the future impact of that problem. In my view, therefore, there is no deficiency in the Environmental Impact Statement in this regard.

    In essence the Environmental Impact Statement describes the link road which as described and laid out in the scheme has the undoubted consequence of denying access on the link road except as a private entrance being, a left in and left out entrance, making it clear that the impact of the roads scheme so far as the access to the applicant's lands is concerned is to deny access on to N25 for a housing development. All of this, in my view, is readily apparent from the Environmental Impact Statement, and as I have said it would be unreal to criticise the Environmental Impact Statement for failing to describe future impacts in that regard.

    Having regard to the fact that the applicant has no real concern about noise or air pollution issues it would seem to me that his complaint, that the EIS does not consider the impact of the scheme on future development of land in this regard is of a very tenuous nature and lacks the kind of weight or substance to justify leave to apply for judicial review.

    The next ground relates to compliance with article 3 of EU directive 85/337/EC as replaced by Article 5 of the EU directive 97/11/EC. The applicant's case is that there was an obligation on An Bord Pleanála to identify, describe and assess in their decision the direct and indirect effects of the scheme on human being, flora, fauna, on soil water, air climate and landscape, on material assets and cultural heritage, and on the interaction between these factors mentioned above. The duty to carry out this assessment, it was submitted, lies solely on the Bord and not the Inspector and must be recorded in its decision. Manifestly the decision does not do this and it is submitted, therefore, on its fact it is invalid for failure to comply with Article 3. It was submitted that the reason that his is a requirement was, that it was there to demonstrate compliance in a transparent way that the Bord has, in fact, carried out the required assessment.

    Both Ms. Butler and Mr. Macken submitted that the Environmental Impact Assessment is a process set out in Articles four to nine of the directive in question, each step of which forms part of the assessment. The function of the Bord are then set out and prescribed in paragraphs eight and nine. They submit that there has been a full compliance by An Bord Pleanála with the requirements of the Directive and Section 51 of the Roads Act 1993. I'm satisfied that Ms. Butler and Ms. Macken are right in this regard and I'm also satisfied that the construction place by Mr. Galligan on Article 3 is entirely misplaced. It is quite clear reading through the directive in question that the Environmental Impact Assessment is indeed a process which is set out in various stages and steps, as are described in articles four to nine of the directive in question. In my view the assessment cannot be seen as confined to Article 3 alone. Indeed Article 3 itself prescribes that the assessment must be carried out in accordance with Articles four to 11.

    Indeed in the case of Burkely v the Secretary For the Environment 2001, 2 AC, a case relied on by Mr. Galligan at pages 615 and 616 of the report,

    Where it sets out part of the opinion of Lord Hoffman affords a good illustration or description of how, in fact, this assessment works in a staged way in accordance with these articles. I'm satisfied that this ground is wholly unsustainable and lacks the weight and substance to warrant judicial review.

    The last ground, which is raised by the applicant is a denial of natural justice on the grounds that the Inspector refused to divulge the contents of a letter from Dunnes Stores during the oral hearing. The contents of this were later made available to the applicants. It was conceded by the applicant that nothing in the arrangement or agreement between Dunnes Stores and the County Council in any way prejudiced the applicant. The applicant contends, however, that the statement in the letter to the effect that the Road Improvement Scheme would not go ahead for an indefinite period because the NRA had not provided funding for it should have been revealed by the Inspector as it materially affected the assessment of impacts from the scheme and if known could have effected the evidence from experts particularly in cross-examination.

    The applicant has failed to demonstrate at all to my satisfaction how this information would materially have altered the assessment of the Environmental Impact and in particular the one that he was exclusively concerned about, namely, access to the N25 and, hence, he has failed to demonstrate that the non-disclosure of the contents of this letter inhibit him in making his case at the oral hearing or that it had the effect of, as it were, rendering the EIS incapable of dealing with the particular Environmental Impacts to which he drew attention. I'm satisfied that the applicant has failed to demonstrate a breach of his right to natural justice in this regard and hence in that being so this ground lacks sufficient weight to justify a judicial review.

    Towards the end of the hearing the applicant applied to me for a reference to the European Court of Justice under Article 234 of the treaty on two questions. The first of these being: does Directive number 97/11/EC or directive have direct affect in our law? And the second question was: does article three oblige the decision maker, in this case An Bord Pleanála, to identify, describe and assess Environmental Impacts in relation to the matter set out in the article? I'm satisfied that it is open to me to interpret the relevant provisions of the directive in question and that I have done that as is clear from the above and, therefore, I do not need the assistance of the European Court for that purpose. No issue was raised in the argument as to the inadequacy of the transposition of this directive or any of its Provisions into our domestic law and, therefore, it seems to me that the issue of direct effect just simply does not arise.

    Having regard to all of the foregoing it would appear to me that all of the grounds put forward by the applicant have failed and that being so I must refuse leave to apply for judicial review.

    END OF JUDGMENT

    APPROVED JUDGMENT O'NEILL J.


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URL: http://www.bailii.org/ie/cases/IEHC/2005/H39.html