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Enforcing the Environmental Impact Assessment Directive in Ireland: Evolution of the Standard of Judicial Review

Published online by Cambridge University Press:  20 July 2018

Áine Ryall
Áine Ryall*
Affiliation:
School of Law, University College Cork (Ireland), and Vice-Chair of the Aarhus Convention Compliance Committee. Email: [email protected].
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Abstract

The specific characteristics of each national system of judicial review reflect the indigenous legal framework and well-established administrative culture. It is necessary, therefore, to contextualize judicial review against the background of the idiosyncrasies of the local legal and administrative systems and what the national system regards as ‘unlawful’ decision making. An analysis of the contemporary jurisprudence of the Irish courts – in the specific context of enforcement of environmental impact assessment law – reveals a complex web of principles, which continue to evolve and to be influenced by European Union (EU) law. The article maps the development of these principles and assesses whether the standard of review (or the intensity of scrutiny) applied by the Irish courts is compatible with the EU law principle of effective judicial protection.

Keywords

Judicial reviewEffective judicial protectionEnvironmental impact assessment
Type
Article
Information
Transnational Environmental Law , Volume 7 , Issue 3 , November 2018 , pp. 515 - 534
Copyright
© Cambridge University Press 2018 

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Footnotes

I thank Mariolina Eliantonio, Tiina Paloniitty, Joe Noonan, Garrett Simons SC, Tom Flynn BL, and the two anonymous reviewers for TEL for very helpful comments on an earlier draft of this article. The views expressed in this article are those of the author alone.

References

1 Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment (codification), [2012] OJ L 26/1, as amended by Directive 2014/52/EU, [2014] OJ L 124/1.

2 While there has been some recent academic discussion around the idea of a specialist environmental court for Ireland and what such a development might involve, this idea has not attracted any significant degree of political attention or support to date: Ryall, Á., ‘A Framework for Exploring the Idea of an Environmental Court for Ireland’ (2015) 22(3) Irish Planning and Environmental Law Journal, pp. 87–95 Google Scholar, and Clarke, F., ‘A Possible Environmental Court: The Constitutional and Legal Parameters’ (2015) 22(3) Irish Planning and Environmental Law Journal, pp. 96–99 Google Scholar.

3 For an insightful modern statement of the significant difficulties the courts face when presented with ‘a major conflict of expert and other evidence’ and ‘a very tangled web of scientific and other data’, see Brownfield Restoration Ireland v. Wicklow County Council and the Environmental Protection Agency (No. 3) [2017] IEHC 456, para. 207 (per Humphreys J). The Rules of the Superior Courts (RSC) (SI No. 15 of 1986) (as amended) provide that the court may appoint an ‘assessor’ (or ‘assessors’) in a particular case, but such an appointment is very rare in practice: see generally RSC, Order 36, rule 41 (as amended); see also RSC, Order 63B, rule 23 and Order 64, rule 43 (as amended), concerning competition proceedings and admiralty proceedings respectively. An assessor is a person with ‘skill and experience’ in a particular field whose role is to assist the court in understanding or clarifying a matter, or evidence in relation to a matter.

4 In practice, most applications for judicial review in the environmental field are brought against decisions of An Bord Pleanála. Established in 1977 under the Local Government (Planning and Development) Act 1976, the functions of An Bord Pleanála include hearing appeals from planning decisions taken at first instance by local authorities. An appeal in this particular context is a full appeal, de novo, on the merits of the planning decision. However, it is important to note that in certain cases, including proposed development involving infrastructure of strategic importance, An Bord Pleanála is the first-instance decision maker rather than an appellate body; see further the organization’s website, available at: http://www.pleanala.ie. For a recent detailed analysis of An Bord Pleanála see Department of Environment, Community and Local Government, ‘Organisational Review of An Bord Pleanála by the Independent Review Group’, Feb. 2016, available at: http://www.housing.gov.ie/planning/bord-pleanala/review/organisational-review-bord-pleanala.

5 Ryall, Á., ‘Delivering Energy Policy in Ireland: Protest, Dissent and the Rule of Law’, in R.J. Heffron & G.F.M. Little (eds), Delivering Energy Law and Policy in the EU and the US (Edinburgh University Press, 2016), pp. 554–558 Google Scholar.

6 The scope of the decision maker’s duty to give reasons for a planning decision involving EIA is a live issue before the Supreme Court at the time of writing (see Section 4).

7 See generally de Blacam, M., Judicial Review, 3rd edn (Bloomsbury, 2017), pp. 155–528 Google Scholar; Simons, G., Planning and Development Law, 2nd edn (Thomson Round Hall, 2004), pp. 655–720 Google Scholar.

8 De Blacam (ibid., para. 27.07) distinguishes between ‘unreasonableness’ and ‘irrationality’ as follows: ‘The irrational is limited to the absurd or perverse, whereas the unreasonable includes a broader range of wrongful acts’.

9 State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642, p. 658.

10 O’Keeffe v. An Bord Pleanála [1993] 1 IR 39, p. 71.

11 Ibid., p. 71.

12 As McMahon J in the High Court explained in Klohn v. An Bord Pleanála [2007] IEHC 111, para. 37: ‘The legislature, in its wisdom, vested the power to make [a decision on the adequacy of the Environmental Impact Statement] in a body which has expertise and experience in these matters. Such a body is much better qualified and in a much better position to make such technical decisions in this specialised area than the Court, which has to rely on expert evidence to inform it in these cases. The courts will only interfere in such decisions where they appear so irrational that no reasonable authority or decision maker in this position would have made such a determination’.

13 Consider, e.g., the comments of McGovern J in North Kerry Wind Turbine Awareness Group v. An Bord Pleanála [2017] IEHC 126, paras 39–40. The learned judge cited Berkeley v. Secretary of State for the Environment [2000] UKHL 36, in which Lord Hoffmann emphasized that a balance must be struck between ensuring the effectiveness of the EIA Directive and avoiding an overzealous response to cases of minor non-compliance. McGovern J also adopted the comments of Advocate General Sharpston to the effect that the EIA Directive ‘is not about formalism’ as representing a useful guide for the Irish courts in reviewing planning decisions involving EIA (see Joined Cases C-128/09, C-129/09, C-130/09, C-131/09; C-134/09 and C-135/09, Boxus and Roua and Others v. Région wallonne, EU:C:2011:667, para. 79 of the Opinion).

14 O’Keeffe, n. 10 above, pp. 71–2.

15 Sweetman v. An Bord Pleanála [2007] IEHC 153, paras. 6.12–6.13.

16 Ibid., paras 6.12–6.13.

17 Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701.

18 Ibid., p. 723 (per Murray CJ).

19 Ibid., p. 723 (per Murray CJ), and pp. 742–3 (per Denham J) (the concept of proportionality is ‘inherent in any analysis of the reasonableness of a decision’).

20 Ibid., p. 738.

21 Ibid.

22 N. 1 above.

23 Aarhus (Denmark), 25 June 1998, in force 30 Oct. 2001, available at: http://www.unece.org/env/pp/treatytext.html.

24 The Aarhus Convention: An Implementation Guide, 2nd edn (United Nations Economic Commission for Europe, 2014), p. 196, available at: https://www.unece.org/env/pp/implementation_guide.html. While the guide is not legally binding, the CJEU confirmed in Case C-182/10, Solvay v. Région wallonne, EU:C:2012:82, paras 26–7, that as ‘an explanatory document’ it may be taken into consideration, where appropriate, together with other relevant material, for the purpose of interpreting the Convention.

25 Case C-120/97, Upjohn Ltd v. The Licensing Authority, EU:C:199:14, para. 35.

26 Ibid., para. 34.

27 Ibid., para. 34.

28 Ibid., para 33.

29 Directive 65/65/EEC relating to Proprietary Medicinal Products [1965–66] OJ English Special Ed. 20.

30 Upjohn, n. 25 above, para. 33.

31 Ibid., para. 36.

32 Case C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v. Bezirksregierung Arnsberg, Trianel Kohlekraftwerk Lünen GmbH & Co KG, EU:C:2010:773 (Trianel), para. 43; Case C-72/12, Gemeinde Altrip (Municipality of Altrip), Gebrüder Hört GbR, Willi Schneider v. Rhineland-Palatinate, EU:C:2013:712 (Altrip), para. 45; Case C-570/13, Gruber v. Unabhängiger Verwaltungssenat für Kärnten, EU:C:2015:231, para. 37; Case C-71/14, East Sussex County Council v. Information Commissioner, Property Search Group and Local Government Association, EU:C:2015:656 (East Sussex), para. 52.

33 On the principles of equivalence and effectiveness and their impact see K. Lenaerts, ‘National Remedies for Private Parties in the Light of the EU Principles of Equivalence and Effectiveness’ (2011) 46 Irish Jurist, pp. 13–37. Essentially, the principle of equivalence demands that claims based on EU law must not be treated less favourably than claims based on national law, while the principle of effectiveness requires that it must not be ‘virtually impossible’ or ‘excessively difficult’ to enforce EU law in the national legal system.

34 For an analysis of the jurisprudence see Á. Ryall, ‘Access to Justice in Environmental Matters in the Member States of the EU: The Impact of the Aarhus Convention’, Jean Monnet Working Paper 5/2016, available at: http://www.jeanmonnetprogram.org/wp-content/uploads/JMWP-05-Ryall.pdf.

35 The codification of the EIA Directive in 2011 led to a renumbering of its articles.

36 Case C-427/07, Commission v. Ireland, EU:C:2009:457, paras 87–8.

37 Ibid., para. 89.

38 Altrip, n. 32 above, para. 37.

39 N. 32 above.

40 Altrip, n. 32 above, para. 36.

41 Ibid., para. 37.

42 Ibid.

43 Case C-137/14, Commission v. Germany, EU:C:2015:683, para. 80.

44 East Sussex, n. 32 above.

45 [2003] OJ L 41/26.

46 For a detailed analysis of the reasoning of the CJEU in East Sussex see M. Eliantonio & F. Grashof, ‘C-71/14, East Sussex County Council v. Information Commissioner, Property Search Group, Local Government Association (Judgment of 6 October 2015) – Case Note’ (2016) 9(1) Review of European Administrative Law, pp. 35–47.

47 East Sussex, n. 32 above, para. 57.

48 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 is the case in which what came to be known as ‘Wednesbury unreasonableness’ was first articulated by Lord Greene MR. On the meaning of ‘Wednesbury unreasonableness’ see R. Moules, Environmental Judicial Review (Hart, 2011), pp. 213–20. Essentially, as Moules explains (ibid., p. 214), the essence of ‘unreasonableness’ in the Wednesbury sense is that ‘there is a range of reasonable responses to any administrative problem, and provided the decision-maker remains within that reasonable range, it does not matter that the court disagrees with the outcome’.

49 East Sussex, n. 32 above, para. 58.

50 Ibid., para. 58.

51 Ibid., para. 58.

52 Case C-72/12, Altrip, EU:C:2013:422, para. 84.

53 See the observations of Advocate General Sharpston in Case C-71/14, East Sussex County Council v. Information Commissioner, Property Search Group and Local Government Association, EU:C:2015:234, para. 58.

54 SIAC Construction Ltd v. Mayo County Council [2002] IESC 39, para. 78.

55 Upjohn, n. 25 above.

56 SIAC, n. 54 above, para. 81 (emphasis added).

57 Ibid., para. 85 (emphasis added).

58 For a detailed analysis of SIAC see Á. Ryall, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland (Hart, 2009), pp. 108–11.

59 Upjohn, n. 25 above, para. 34.

60 Sweetman, n. 15 above, para. 6.11.

61 Ibid., para. 6.16.

62 Ibid., para. 6.19.

63 Ibid., para. 6.19.

64 Ibid., para. 6.19.

65 Ibid., para. 6.21.

66 Ibid., para. 6.21.

67 Klohn, n. 12 above, para. 29.

68 Ibid., para. 29.

69 Keane v. An Bord Pleanála [2012] IEHC 324, paras 18 and 19.

70 Ibid., para. 20.

71 Ratheniska v. An Bord Pleanála [2015] IEHC 18.

72 Ibid., para. 75.

73 Carroll v. An Bord Pleanála [2016] IEHC 90, para. 40.

74 Meadows, n. 17 above.

75 Carroll, n. 73 above, para. 42. It is notable that Fullam J observed that even if a higher standard of scrutiny was applied by the court in the form of the ‘manifest error’ test, this would not avail the applicant in this case: ibid., para. 66. The High Court could find no evidence of ‘manifest error’ in the assessment by An Bord Pleanála of the likely effects on human health – in particular, noise and shadow flicker – of the proposed wind farm development.

76 The term ‘Environmental Impact Statement’ (or EIS) is used in the Irish context to describe the information provided by the developer under Art. 5 EIA Directive (described as ‘the environmental impact assessment report’ in Art. 5).

77 See, e.g., Kenny v. An Bord Pleanála (No. 1) [2000] IEHC 146; Kenny v. An Bord Pleanála (No. 2) [2001] IEHC 39; Arklow Holidays Ltd v. Wicklow County Council [2003] IEHC 68; Kildare County Council v. An Bord Pleanála [2006] IEHC 173. The early case law is considered in Ryall, n. 58 above, pp. 221–3.

78 People Over Wind and Environmental Action Alliance Ireland v. An Bord Pleanála [2015] IEHC 271.

79 Ibid., para. 8.

80 Ibid., para. 101.

81 Balz v. An Bord Pleanála [2016] IEHC 134, para. 55.

82 The relevant planning legislation requires that the EIS must contain certain specified information (in line with Art. 5 EIA Directive), including a non-technical summary: Planning and Development Regulations 2001 (SI No. 600 of 2001) as amended, Art. 94 and Sch. 6.

83 Holohan v. An Bord Pleanála [2017] IEHC 268.

84 Ibid., para. 91.

85 NM (DRC) v. Minister for Justice, Equality and Law Reform [2016] IECA 217.

86 Directive 2005/85/EC on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status [2005] OJ L 326/13.

87 Holohan, n. 83 above, para. 99.

88 Ibid., para. 100.

89 Ibid., para. 100. On the difficult question of the (limited) scope for judicial review of error of fact in Irish law see De Blacam, n. 8 above, pp. 229–35.

90 Holohan, n. 83 above, para. 101.

91 Ibid., para. 102.

92 Ibid., para. 102, citing Lord Brightman in R v. Chief Constable of North Wales Police, ex parte Evans [1982] 1 WLR 1155, p. 1173.

93 In Case C-283/81, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health, EU:C:1982:335, para. 16, the CJEU explained that the correct application of EU law may be ‘so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised [before the national court] is to be resolved’ (i.e., the matter is acte clair).

94 Holohan, n. 83 above, para. 103.

95 It is notable that, although the standard of review was considered to be acte clair, the High Court decided to refer a total of 11 questions to the CJEU on a range of matters relating to the correct interpretation of the EIA Directive and Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Fauna and Flora [1992] OJ L 206/7 (Habitats Directive): ibid., para. 142.

96 See further European Commission, Commission Notice on Access to Justice in Environmental Matters, C(2017) 2616 final, 28 Apr. 2017, paras 127–50, concerning ‘[t]he need to scrutinize both procedural and substantive legality’.

97 East Sussex, n. 32 above, para. 58.

98 Commission v. Germany, n. 43 above, para. 80.

99 T. Bingham, The Rule of Law (Allen Lane/Penguin, 2010), p. 60.

100 Sweetman, n. 15 above.

101 Klohn, n. 12 above.

102 Keane, n. 69 above.

103 Holohan, n. 83 above.

104 See Balz, n. 81 above, paras 57–9.

105 Consider, e.g., Kelly v. An Bord Pleanála [2014] IEHC 400, and the commentary on this decision by Simons, G., ‘Merits-Based Review of Planning Decisions’ (2015) 22(1) Irish Planning and Environmental Law, pp. 14–18 Google Scholar.

106 Connelly v. An Bord Pleanála [2017] IESCDET 57 (appeal from [2016] IEHC 322, n. 107 below); North Kerry Wind Turbine Awareness Group [2017] IESCDET 102. See also the reference for a preliminary ruling in Case C-461/17, Holohan v. An Bord Pleanála, currently pending before the CJEU, which concerns, inter alia, the scope of the decision maker’s duty to give reasons in the specific context of conducting an appropriate assessment under the Habitats Directive, n. 95 above.

107 Consider, e.g., Balz, n. 81 above, paras 158–80; Connolly v. An Bord Pleanála [2016] IEHC 322, paras 24–7; and North East Pylon Pressure Campaign Ltd v. An Bord Pleanála [2017] IEHC 338 (a challenge to the decision of An Bord Pleanála to grant approval for development of the North-South Interconnector project), paras 168–94, concerning consideration of alternatives to the proposed development and assessment of health impacts (in particular, electric and electro-magnetic fields).

108 N. 15 above, para. 6.21.

109 See Ryall, Á., ‘Aarhus Convention and Access to Justice in Environmental Matters: Some Critical Reflections’ (2013) 20(4) Irish Planning and Environmental Law Journal, pp. 165–168 Google Scholar.

110 See, e.g., Simons, n. 7 above, paras 12-76–12-97.

111 See generally Ryall, Á., ‘The Aarhus Convention: A Force for Change in Irish Environmental Law and Policy?’, in R. Caranta, A. Gerbrandy & B. Müller (eds), The Making of a New European Culture: The Aarhus Convention (Europa Law, 2018), pp. 129–156 Google Scholar.

112 Ibid.

113 Ibid.

114 Conway v. Ireland [2017] IESC 13.

115 See also the observations of Clarke J in Persona Digital Telephony Ltd v. Minister for Public Enterprise, Ireland and the Attorney General [2017] IESC 27, paras 2.6–2.9.

116 N. 95 above.

117 See Kelly, n. 105 above; and Balz, n. 81 above.

118 The pending references from Ireland are: (Case C-164/17) Grace and Sweetman v. An Bord Pleanála [2017] IESC 10; (Case C-167/17) Klohn, v. An Bord Pleanála [2017] IESC 11; (Case C-470/16) North East Pylon Pressure Campaign Ltd v. An Bord Pleanála [2016] IEHC 490; (Case C-461/17) Holohan, n. 106 above.