https://www.bailii.org/ie/cases/IEHC/2018/H808.html
[2018] IEHC 808 THE HIGH COURT
JUDICIAL REVIEW [2013 No. 398 J.R.] IN THE MATTER OF SECTION 50 OF THE
PLANNING OF DEVELOPMENT ACT 2000, (AS AMENDED)
BULRUSH HORTICULTURE LTD APPLICANTS AND
AN BORD PLEANÁLA RESPONDENT AND
WESTMEATH COUNTY COUNCIL FIRST NAMED NOTICE PARTY AND
FRIENDS OF THE IRISH ENVIRONMENT SECOND NAMED NOTICE PARTY
[2013 No. 424 J.R.] IN THE MATTER OF SECTION 50 OF THE
PLANNING OF DEVELOPMENT ACT 2000 (AS AMENDED)
WESTLAND HORTICULTURE LTD, WESTMEATH PEAT LIMITED
AND CAVAN PEAT LIMITED APPLICANTS AND
AN BORD PLEANÁLA RESPONDENT AND
WESTMEATH COUNTY COUNCIL FIRST NAMED NOTICE PARTY AND
FRIENDS OF THE IRISH ENVIRONMENT LTD SECOND NAMED NOTICE PARTY
JUDGMENT of Mr. Justice Meenan delivered on the 7th day of December, 2018
Background
1. These are two judicial review proceedings that, essentially, involve similar facts and issues of law.
2. In the first set of proceedings, the applicant is Bulrush Horticulture Limited, hereinafter referred to “Bulrush”. [ Camagh Bog, Doon near Castlepollard, Co Westmeath ]
In the second set of proceedings, I refer to the applicants collectively as “Westland”.
3. By order of the President of the High Court, dated 30 May 2013, Bulrush was granted leave to apply by way of application for judicial review for:-
By order of Feeney J., dated 6 June 2013, Westland was granted similar reliefs in respect of lands at Lower Coole, Mayne, Ballinealloe, Clonsura near Coole and Fineagh, County Westmeath.
4. These judicial review proceedings came on for hearing before the Court and a written judgment was delivered on 8 February 2018 wherein I dismissed both applications for judicial review ( Bulrush Horticulture Ltd. v An Bord Pleanála; Westland Horticulture Ltd. & Ors v An Bord Pleanála [2018] IEHC 58).
5. What is now before the Court is an application, made on behalf of both Bulrush and Westland, seeking a certificate “that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal]” on specified points of law, as per the requirements of s. 50A(7) of the Act of 2000. In respect of Bulrush, those points of law are:-
6. With regards Westland, the specified points of law are:-
7. In the course of my earlier judgment, I set out the relevant legislation which encompasses both domestic and EU legislation. I also referred to case law from both the Irish Courts and from the Court of Justice of the European Union (“CJEU”).
Statutory Provision
8. Section 50A(7) of the Act of 2000 provides:-
9. By virtue of s. 75 of the Court of Appeal Act 2014, references to the Supreme Court are to be construed as reference to the Court of Appeal unless the context otherwise requires.
10. Therefore, to obtain a certificate for leave to appeal, this Court has to certify that its decision involves:-
Test to be Applied
11. In Glancré Teoranta v. Mayo County Council [2006] IEHC 250, MacMenamin J. set out at para. 7 the principles that should be applied in an application such as this:-
12. These principles have been followed in numerous other cases and were considered by Clarke J. (as he then was) in Arklow Holidays Limited v. An Bord Pleanála [2006] IEHC 2 where he stated at para. 3.1:-
13. Not all of the principles enunciated by MacMenamin J. are applicable to the instant case. There are however two principal issues, those being “exceptional public importance” and “uncertainty in the law”.
“Exceptional public importance”
14. It is submitted by Bulrush and Westland that my interpretation of s. 4(4) of the Act of 2000 was essential to the issues which I had to decide. Section 4(4) provides:-
15. The consequences of the decision of this Court, in the opinion of Westland, are set out in an affidavit of Mr. Mark Hamill, Head of the Technical Department at Westland, made in support of this application. Mr. Hamill states:-
He further states that:-
16. I accept that the decision of this Court has important and far reaching implications for the peat harvesting industry and I accept that the Court’s interpretation of the relevant legislation “involves a point of law of exceptional public importance”. However, this is not, of itself, sufficient for me to grant the certificate sought.
“Uncertainty in the law”
17. The requirement for uncertainty is reflected in the wording of s. 50A(7) of the Act of 2000 which refers to it being “desirable in the public interest that an appeal should be taken to the Court of Appeal.” Thus, there can be points of law “of exceptional public importance” which are not so uncertain as to require a ruling from the Court of Appeal.
18. To meet the “uncertainty” test, both Bulrush and Westland point to my interpretation of the decision in Stadt Papenburg v. Germany , Case-2206-08 (Unreported, European Court of Justice, 14 January 2010) (this case and others are generally referred to as the “Pipeline cases”). They submit that my interpretation is at odds to the views expressed by Charleton J. in An Táisce v. Ireland [2010] IEHC 415.
19. Both Bulrush and Westland maintain that the obligation to carry out an EIA does not arise in respect of peat extraction development other than peat extraction development involving a new or extended area of 30 hectares or more.
20. Hearing an application such as this the Court is in a somewhat invidious position. On the one hand, I have heard and considered submissions and arguments from counsel representing each of the parties involved and I have reached my conclusion. An application to certify points of appeal cannot be an opportunity to “re-run” the original application. On the other hand, I am conscious of the observations of Clarke J. (as he then was) in Arklow Holidays Limited v. An Bord Pleanála [2008] IEHC 2 where he stated at para. 4.5:-
21. As for the submission that my views on the Stadt Papenburg “Pipeline Cases” are at odds to those expressed by Charleton J. in An Táisce v. Ireland I refer to the judgment of Charleton J. wherein he stated at para. 3:-
22. Further, in the course of my judgment I referred to a passage of O’Neill J. in M & F Quirke & Sons v. An Bord Pleanála [2009] IEHC 426 which was, as submitted by the respondent, approved by Charleton J. in McGrath Limestone Works Limited v. An Bord Pleanála [2014] IEHC 382. Thus I do not see that a level of uncertainty in the law as would require me to grant the certificate sought has been reached.
23. With regards the issue of the peat extraction involving an extended area of 30 hectares or more, I am satisfied that there is no uncertainty here. My judgment set out and analysed the relevant Directives and legislation. From this analysis it was entirely clear to me that an EIA could be required on a “case by case examination”. Such was the case here. Therefore, I will not grant a certificate on this point.
24. In the course of the hearing, both Bulrush and Westland submitted that peat extraction was a “use” development as opposed to a “works” development and thus s. 4(4) of the Act of 2000 did not apply. I rejected this submission having applied the decision of the Supreme Court in Kildare County Council v Goode [1999] 2 IR 495. I do not see any uncertainty on this point of law. In any event, the points of law which both Westland and Bulrush seek to have certified do not appear to cover this point.
25. In reaching my view that the threshold of uncertainty has not been reached I believe I am entitled to take into account what was deposed to in the affidavit of Mr. Mark Hamill, which has already been referred to. In the course of his affidavit he states:-
He continues to state that:-
And,
26. These averments lead me to believe that what both Bulrush and Westland require is not a decision of the Court of Appeal resolving an uncertainty in the law but rather a change in the law itself. Indeed, had the new legislation, in the form of Regulations, been enacted then the applications before this Court would not have proceeded.
27. By reason of the foregoing, I will not grant the certificate(s) sought.
also see