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Waddington v. An Bord Pleanala [2000] IEHC 100 (21st December, 2000)
THE
HIGH COURT
JUDICIAL
REVIEW
1999
No. 264JR
BETWEEN
GABRIEL
MONTGOMERY DeFREITAS WADDINGTON
APPLICANT
AND
AN
BOARD PLEANALA
RESPONDENT
AND
DROGHEDA
PORT COMPANY AND LOUTH COUNTY COUNCIL
NOTICE
PARTIES
JUDGMENT
of Mr. Justice Paul Butler delivered on the 21st day of December, 2000.
1. The
Applicant in these proceedings is seeking, by way of Judicial Review, to
challenge the decision of the Respondent made on the 14th day of May 1999
pursuant to the Local Government (Planning and Development) Acts 1963 to 1978
deciding to grant permission for a development comprising the construction of a
60 metre riverside quay extension at Tom Roe’s Point, Baltray Road,
Drogheda, Co. Louth (Planning Register Reference No. 98645: An Board Pleanala
Reference No. PL15.109169)
2. Although
four grounds are referred to in the Statement of Grounds, the Applicant relies
on the three following grounds namely:-
- The
decision was made in excess of jurisdiction and was
ultra
vires
the
Respondent’s powers in that the Respondent failed to fulfil the
obligations imposed on the Respondent in granting planning permission by
Article 27 of the European Communities (Natural Habitats) Regulations, SI No.
94 of 1997.
- Further,
or in the alternative, the Respondent’s decision to grant the planning
permission was unreasonable in that it was based on an irrational determination
by the Respondent’s inspector that the proposed 60 metre riverside quay
extension would not add to the through put tonnage of traffic generation.
- Further,
or alternatively, the Respondent’s decision was made in breach of Natural
Justice.
FACTS
- In
1996 planning permission was granted for a development comprising the
construction of a 100 metre riverside quay. At that time the Applicant was
abroad and she made no objection to the application.
- The
present application, referred to above, is for the construction of a 60 metre
riverside quay extension (to the said 100 metre riverside quay).
- The
site of both (developments) marks the upstream boundary of a European site
within the meaning of Section 2 of the Local Government (Planning and
Development) Act, 1993 as amended by Regulation 26 of the European Communities
(Natural Habitats) Regulations, 1997. It is such a site because it
is
a “Special Protection Area” classified pursuant to Article 4 of the
Birds Directive by paragraph 69 of the European Communities (Conservation of
Wild Birds) (Amendment) Regulations, SI 269 of 1996 which regulations came into
operation on 11th September, 1996.
-
Regulation 27 of the said 1997 regulations imposes particular obligations on a
planning authority or the board in the determination of planning
applications
likely
to have significant effects on a European site. The relevant provisions of the
Regulation provide as follows:-
“27(1)
A local authority when duly considering an application for planning permission,
or the Board when duly considering an appeal on an application for planning
permission, in respect of a proposed development that is not directly connected
with, or necessary to the management of, a European site but likely to have a
significant effect thereon either individually or in combination with other
developments, shall ensure that an appropriate assessment of the implications
for the site in view of the site’s conservation objectives is undertaken.
(2)
An environmental impact assessment in respect of a proposed development
prepared in accordance with a requirement of or under the Local Government
(Planning and Development) Regulations, 1994 shall be an appropriate assessment
for the purposes of paragraph (1).
(3)
Notwithstanding Section 26 of the Local Government and Development Act 1993 and
subject to paragraphs (4), (5) and (6) a local authority or the Board, as the
case may be, shall, having regard to the conclusions of the assessment of which
paragraph (1) relates, decide to grant permission for the proposed development
only after having ascertained that it will not adversely affect the integrity
of the European site concerned.
(4)
In considering whether a development will adversely affect the integrity of the
European site concerned, the local authority or Board, as the case may be,
shall have regard to the manner in which it is proposed to be carried out or
to any conditions or restrictions subject of which they propose that the
permission should be given.
(5)
A local authority or the Board, as the case may be, may, notwithstanding a
negative assessment and in the absence of alternative solutions, decide to
grant permission for a proposed development where such development has to be
carried out for imperative reasons of overriding public interest.”
3. It
is clear from the foregoing regulation that these considerations only arise
when the Planning Authority forms the opinion that the proposed development is
“likely to have a significant effect” on a European site. The
regulation provides, in that case, that an appropriate assessment of the
implications for the site in view of the site’s conservation objectives
is undertaken. It is specifically provided that an environmental impact
assessment in respect of the proposed development shall be such an appropriate
assessment.
4. As
this is an application that invokes the jurisdiction of the Court to grant an
Order of
Certiorari
of the Board’s decision on the grounds referred to above, I think it
appropriate to put the application within the context of the Judgment of
Finley,
CJ. in O’Keeffe -v- An Board Plenala
(1993) 1 I.R.39 the principals enunciated by the Supreme Court as to the
circumstances under which this Court can intervene to quash the decision of an
administrative officer or tribunal on the grounds of unreasonableness or
irrationality which principles areI usefully summarised in the Judgment of
Laffoy
J. in O’Reilly and Others -v- O’Sullivan and Others
(unreported delivered on 25th July, 1996) as follows:-
(i)
The Court can intervene if the decision is fundamentally at variance with
reason and common sense.
(ii)
If a decision on a competent matter is so unreasonable that no reasonable
authority could ever have come to it then the Court can intervene, but to prove
a case of that kind would require something overwhelming.
(iii)
Judicial Review is concerned not with the decision, but with the decision
making process. It is not an appeal from a decision but a review of the manner
in which the decision was made.
(iv)
The circumstances under which the Court can intervene on the basis of
irrationality with the decision-maker involved in an administrative function
are limited and rare while the foregoing is not necessarily a comprehensive
statement of the circumstances under which the Court cannot intervene, it
cannot intervene merely on the grounds that:-
(a)
It is satisfied that on the facts as found it would have raised different
inferences and conclusions or
(b)
It is satisfied that the case against the decision made by the authority was
much stronger than the case for it.
(v)
Under the provisions of the Planning Acts, the legislature had unequivocally
and firmly placed questions of planning, questions of the balance between
development and the environment and the proper convenience and amenities of an
area within the jurisdiction of the Planning Authorities and An Board Plenala
which are expected to have skill, competence and experience in planning
questions. The Court is not vested with that jurisdiction, nor is it expected
to, nor can it, exercise discretion with regard to planning matters.
(vi)
In order for an Applicant for Judicial Review to satisfy a Court that the
decision making authority has acted irrationally so that the Court can
intervene and quash its decision, it is necessary that the Applicant should
establish to the satisfaction of the Court that the decision making authority
had before it no relevant material which would support its decision.
(vii)
The onus of establishing all that material is on the Applicant for Judicial
Review, and if he fails in that onus, he must fail in his claim.
5. Although
the decision under attack in this case is in respect of a
“development” which is separate, one cannot get away from the fact
that the development in question involves what an extension of a quay in
respect of which permission was already granted. It is argued that the
Respondent did not carry out an environmental impact assessment because it did
not come to the view that the proposed development was likely to have a
significant affect on the environment. Such an assessment had been carried out
in respect of the previous development and the board had the benefit of that
assessment. It had not only every right to take that assessment into
consideration but it had a duty to do so. At no time did it purport to rely
upon the assessment as fulfilling the obligation to carry out an “an
appropriate assessment” under the said Article 27.
6. Accordingly,
I hold the Applicant fails in ground 1 above (and in the statement of grounds)
referred to.
7. On
the “irrationality” ground, it is argued that the inspectors
determination that the proposed extension would not add to the through put
tonnage or traffic generation was irrational etc. in that it “flew in the
face of the evidence before him that the proposed extension was to facilitate
the handling of cargo from two ships simultaneously while the environmental
statement made for the 100 metre quay in the course of construction on foot of
the 1996 permission clearly indicated that the 100 metre quay was designed to
facilitate cargo handling and safety of one ship.” I simply do not
accept that that is the case. There is no evidence that the original 100 metre
quay was designed for the use of one ship only. It was designed for a certain
maximum tonnage and for a certain overall length of 120 metres. The onus of
proof is upon the Applicant and the Applicant has failed to established that
there would be any increase in traffic or tonnage as a result of the proposed
development. On the contrary, the only relevant evidence in relation there to
is to the affect that there will be no increase in tonnage or traffic and that
the purpose of the proposed extension was to allow for the safer and more
convenient manoeuvring of up to two ships.
8. Accordingly
I reject the second ground above referred to.
9. Finally,
it is argued on behalf of the Applicant that the Respondent’s decision
was in breach of Natural Justice in that “the Respondent failed to inform
the Applicant that the inspector was taking into account the Environmental
Statement made by the developer in relation to the planning permission for the
100 metre quay and associated dredging granted in 1996.” Quite simply,
condition no. 1 appearing on the first page of the grant of planning permission
dated 20th November, 1996 provides as follows:-
“The
standards of noise, vibration, dust and such relating to the construction and
operation phases of the proposed development, shall be as set out in the
Environmental Impact Statement, save as such or altered by any relevant
conditions below.”
10. It
is clear, therefore, that the Applicant was at all material times aware that
there existed an Environmental Impact Statement and that the same was
considered in the planning process. It does seem to me that the Applicant may
not have been aware of this fact but she should have been.
11. Accordingly,
I refuse this application.
© 2000 Irish High Court
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