Clifford/ O'Connor v An Bord Pleanála and Kerry Co. Co. [2022] IEHC 474 ("The Kerry Greenway No. 3 Judgment")
Locations
This No. 3 Judgment deals with the second module which relates to declaratory relief only, and specifically whether the Board had complied with its publication obligations. Specifically, (i) the failure to publish materials on the board’s website in the course of the application procedure, and (ii) the failure to publish notice of the decision at the end of the procedure.
The reason why any lack of publication does not go to certiorari is that these Applicants were not handicapped in their submissions by virtue of any lack of publication. However, the Court found that that still leaves open the possibility of declaratory relief if a breach has been shown.
The relevant facts are as follows:
In August 2018, Kerry County Council ("The Council") published a notice in Kerry's Eye Newspaper of an application to the Board to approve the construction of the South Kerry Greenway ("the Greenway") as required by s. 51 of the Roads Act 1993 (as amended),. The Council also applied to the Board for confirmation of a compulsory purchase order (CPO) of the lands required along the Greenway route.
In October 2018, the Board received a number of submissions from the public, including the Applicants in these proceedings, resulting from the newspaper publication of the notice.
In November 2018, the Board requested further information from the Council, which was notified to the Applicants, and which the Council supplied in April 2019. The Board decided the Council needed to advertise this further information as it was "significant". The Council advertised the information in the Irish Examiner and Kerry's Eye on 9 May 2019. The Board received submissions from various third parties, including from the Greenway Information Group on 24 June 2019. This submission was not published on the Board's website.
Coincidentally, on 24 June 2019, the same day as the submission from the Greenway Information Group was received by the Board, the European Union (Roads Act 1993) (Environmental Impact Assessment) (Amendment) Regulations 2019 (S.I. No. 279 of 2019) ("The 2019 Regulations") came into force. This made amendments to the Roads Act 1993 to give effect to Directive 2014/52/EU (in particular concerning public participation in respect of development consents requiring Environmental Impact Assessment). The 2019 Regulations inter alia expanded the requirements for newspaper publication and to ensure certain documentation was published on the Board's website. The making of the 2019 Regulations was published in Iris Oifigúil on 28 June 2019.
The Board held an extended oral hearing on the Kerry Greenway between 8 October 2019 and 22 November 2019, and various additional information was provided by the Council at the hearing, in the form of four correcting documents to the Environmental Impact Assessment (EIA) and CPO process. This documentation was not published on the Board's website.
Ultimately, on 10 November 2020, The Board approved the construction of a modified version (omitting two sections of the Greenway, because of certain environmental concerns raised by the Board's Inspector) with conditions and approved the CPO of the necessary lands.
In the No. 1 Judgment, Mr. Justice Humphreys in the High Court refused to quash the Board's decisions on various substantive grounds (so the Greenway construction has proceeded), but had left over the claims for declaratory relief in order to clarify the law in respect of the publication requirements under the Road Act 1993 (as amended).
Findings:
In this No. 3 Judgment, Mr. Justice Humphreys drew conclusions under the following headings:
1. Failure to publish material on the Board's website
Mr. Justice Humphreys found that there were two categories of information that it was alleged that the Board had failed to publish: (i) information that arose before transposition of the amending EIA directive; and (ii) information that arose on or after that transposition on 24 June 2019.
In respect of publication prior to the transposition date, the Court noted that the EIA report was published on the council’s website, but not on the board’s website. The additional information and the notice seeking the additional information were not published on the board’s website and nor were location maps. In addition, after the Amendment came into operation, the Court found that the Board had failed to publish the submission of Greenway Information Group and the four correcting documents adding to the EIAR on its website.
2. Non-publication on the central portal
The Court refused to examine questions relating to the operation of the Minister for the Environment and Local Government's website as they were not joined as a Respondent to the proceedings.
3. Lack of publication of material by the Board
The Court went through the amending provisions of the 2019 Regulations, and concluded that the Board was not required to retrospectively revisit its past actions and apply the new law to such past actions by, for example publishing documents which it had received historically. The context, language and purpose of the 2019 Regulations all militate in favour of an interpretation that the new obligation to publish material introduced on 24 June 2019 was a prospective obligation to publish material received on or after that date, not an obligation to be required to reopen files so as to be obliged to publish previously received material. However, the Court found that the material received on or after the transposition date was subject to the obligations under the 2019 Regulations. The court found that the Board's reasons for failing to publish the Greenway Information Group submission dated 24 June 2019 and the EIA errata documentation on its website on or after 24 June 2019, were not sufficient, as follows:
(i) The submission may have been made before the regulations
Even if the Greenway Information Group submission was received on 24 June 2019 before the time that the Minister signed the commencement order for the 2019 Regulations, section 16(3) of the Interpretation Act states that every provision of a statutory instrument comes into operation at the end of the day before the day on which the statutory instrument is made.
(ii) The notice of legislation in Iris Oifigúil came later
Publication in Iris Oifigiúil is only for information. It is not a legal prerequisite to the coming into operation of instruments. Some jurisdictions have a general rule that regulations don’t come into force until their official promulgation, but Ireland is not one of those jurisdictions.
(iii) Legal uncertainty
The Court found that ignorance of the law is no excuse, particularly for a state body, so the Board could not simply say that it was unaware of the 2019 Regulations coming into force at that time.
The Court also dismissed the Board's argument that because the Greenway public participation process had already got underway at some point prior to the 2019 regulations, the regulations should not apply to new incoming material in order to maintain legal certainty, for the following reasons: the 2019 Regulations did not say such; doing so would undermine the purpose of the Regulations; applying the Regulations to a live process is not retrospective; and whether to publish a document is a procedural question not a substantive question. The obligation to continue the process as it was originally only applies if some vested substantive right is thereby unfairly adversely affected. The Court reviewed the case law in this area and concluded that nobody (in particular a State body such as the Board) has a “right” to maintenance of current procedural arrangements by reference merely to the fact that the procedure has already commenced when a new law is enacted, in particular when that new law related to an EU law requirement such as public participation.
(iv) Lack of prejudice
The Court found that the lack of prejudice against the Applicants in this case had already been dealt with by refusing to allow for certiorari on these grounds, but that prejudice was not a fatal obstacle to the Applicants when seeking declaratory relief.
4. Historic nature of the point and discretionary nature of declarations
Even though the facts of the case are novel and likely unique because the transposition date had long since passed and there were unlikely to be any more such cases in the pipeline, there were three reasons why the court said that it was appropriate to make declarations in this case:
1) Clarification of these specific issues may shed light on analogous matters in future;
2) The rule of law seeks to mark breaches of statute; and
3) The Board had still not notified the public of the additional information via a central portal.
5. Pleading objection
The Court found that even though the Applicants had not specifically pleaded the failure of the Board to publish the submission received on 24 June 2019, they did refer to s. 51(4C) of the Roads Act 1993 (as amended) which includes the requirement to make an electronic copy of submissions available on its website. Therefore, the Court found that the Applicants had adequately pleaded the failure to publish submissions.
6. Alleged failure to publish newspaper notices
The Applicants' claimed that the newspaper notice publishing the Board's decision to approve the Greenway, did not specify that a section of the route had been omitted. However, the Court found that the Board's decision included a condition for the omission of the relevant sections of the Greenway, and therefore the modifications are apparent from the decision itself.
More generally, the Applicants argued that the notice did not contain the necessary details of the decision, but simply referred the reader to the Board’s website and to the reference number of the Board's decision. The Court found that that in itself at the level of broad principle was not impermissible, particularly in the context of a complex application which is virtually impossible to summarise in a newspaper notice, provided the link is adequate. However, the Court found that using the full reference number provided for in the newspaper notice did not in fact return a result in the search function of the Board's website, which made it insufficiently accessible for the ordinary members of the public. A specific link to the page would have been more appropriate.
The Court dismissed the Applicants' argument that Section 51(6C) of the Roads Act 1993 (as amended) required the EIAR to be contained in the newspaper advertisement.
The Applicants’ final complaint was that the newspaper notice was not published promptly. The Court found that the concept of the publication occurring “promptly” is set out in art. 9 of the directive, therefore the Applicants had failed to enter a plea against the State for non-transposition, and the court could not consider that argument. Therefore, the Board had satisfied the definition of the defaulted case law in Case C-456/08 European Commission v. Ireland.
Finally, in rejecting the claim that the eight-week limitation period on a challenge to a decision of the Board ran from notification of the decision, the Courts looked to section 50(7) of the 2000 Act, which prescribes it runs from notification of the decision.
Orders
The Court indicated that it intends to make a declaration that the Board acted in breach of s. 51(4C) of the Roads Act 1993 (as amended) by failing to make available on its website a submission received on 24th June, 2019 and four errata documents furnished at the oral hearing from 8th to 18th October, 2019 and 12th to 22nd November, 2019 insofar as they affected the EIA report.
Further the Court intends to declare that the Board acted in breach of s. 51(6C) of the Roads Act 1993 (as amended) insofar as information required by that sub-section was placed on its website rather than in the newspaper notice in circumstances where the newspaper notice did not adequately identify the precise link at which such necessary information was to be found.
The matter is listed for final orders on 3 October 2022.
Written by: Jonathan Moore and John Quigley