It’s a long way from the CJEU to Tipperary: Supreme Court refer a Planning Challenge to a Tipperary Wind Farm development to the CJEU

Summary: On 24 February 2017, Justice Clarke and Justice O’Malley delivered a joint decision of the Supreme Court in Grace @ Sweetman v An Bord Pleanála, ESB Wind Development Limited, Coillte and the Department of Arts, Heritage and the Gaeltacht [Appeal No: 2/2016]. The decision considers an application seeking leave to appeal to the Supreme Court directly from the High Court, wherein the Applicants sought to rely on Article 34.5.4 of the Constitution as introduced by th...

Summary:

On 24 February 2017, Justice Clarke and Justice O’Malley delivered a joint decision of the Supreme Court in Grace & Sweetman v An Bord Pleanála, ESB Wind Development Limited, Coillte and the Department of Arts, Heritage and the Gaeltacht [Appeal No: 2/2016]. The decision considers an application seeking leave to appeal to the Supreme Court directly from the High Court, wherein the Applicants sought to rely on Article 34.5.4 of the Constitution as introduced by the 33rd amendment, which permits a direct appeal from the High Court to the Supreme Court, also referred to as a ‘leapfrog appeal’. The test for a leapfrog appeal from the High Court to the Supreme Court being of a lower threshold than the test for an appeal to the Court of Appeal pursuant to the Planning and Development Act, 2000 (the “Act”) In granting leave to appeal, it was held that:

1. Ms Grace has standing to pursue these proceedings and this appeal. In reaching that decision, the Court looked at Article 11 of the Codified Directive 2011/92/EU (the “Directive”) which states; in order for a person to have the right to bring a challenge conferred by Article 11, they must have “sufficient interest” in the matter “in accordance with the laws of the member state concerned” and that the relevant standing requirement is interpreted and applied in the basis of a “wide access to justice”. It is apparent from the wording of Article 11 of the Directive that it involves the application of national standing rules of the Member State, but that discretion is “limited by the need to respect the objective of ensuring wide access to justice for the public concerned”. In consideration of Article 11, the Court looked at the following three points in detail:

A. the issue of the limits of standing in judicial review challenges generally in Ireland;

B. the application of the general principles identified in (a) in the case of environmental challenges; and

C. whether the position in national law identified as a result of (a) and (b) requires to be modified in the light of the “wide access to justice” requirement specified in Article 11 of the Directive.

The Court held that in those circumstances it was not necessary to determine whether her co-Applicant also has standing;

1. 2. it was not necessary for the Court to review existing jurisprudence in respect of the Applicants’ right to appeal a decision of the High Court in the absence of an entitlement to appeal due to the refusal of a certificate of leave to appeal by the High Court. The Court referred to the Applicants direct right of appeal to the Supreme Court pursuant to Article 34.5.4, however the Court did state “while an appeal to the Court of Appeal must always remain the most normal route for any appeal to follow, nonetheless a party who is refused a certificate which has the effect of preventing them from invoking the jurisdiction of the Court of Appeal, has a constitutional right open to them.”; and
   3. the Court referred to the European Court of Justice for a determination on the proper interpretation of Articles 6(3) and 6(4) of Directive 92/43 EEC (“Habitats Directive”).

The Supreme Court will await the determination of the CJEU on the matter referred, before ruling whether An Bord Pleanála properly assessed the possible environmental impact the proposed wind farm may have on the hen harrier habitat, which are a protected species under EU Law.

Significance of the Decision:

This case has concluded that even though Ms Grace had not participated in the planning process she did have standing in her appeal based on the fact that she resided less than one kilometre from the special protection area (“SPA”). The Court will also look behind the decision of An Bord Pleanála in granting planning permission for a wind farm in an EU funded SPA. This represents a departure from the traditional position whereby the Court deferred to An Bord Pleanála in relation to questions of proper planning and sustainable development.

Facts:

Ms Grace and Mr Sweetman challenged a decision of An Bord Pleanála to grant permission for the development of a wind farm on lands owned by Coillte, with the wind farm to be operated by ESB Wind Development Limited. The basis for the challenge by the Applicants was that An Bord Pleanala had failed to carry out an adequate Environmental Impact Assessment as is a requirement of the Habitats Directive and the Act. The Applicants further sought a determination as to their standing as they had not participated in the planning process. The Applicants claim was dismissed by the High Court who determined they did not have sufficient standing to bring the proceedings seeking judicial review of An Bord Pleanala’s decision. The Applicants initiated further proceedings to the High Court seeking a certificate of appeal of the decision on standing to the Court of Appeal on whether the assessment carried out by An Bord Pleanála was adequate. This was again refused, leading to the Applicants bring their claim before the Supreme Court pursuant to Article 34.5.4 of the Constitution. Please click here for a link to the full judgment.