Declaratory Relief for Non-Compliance with Section 37F(2) of the Planning and Development Act 2000: Kennedy & Anor v An Bord Pleanala

Introduction

The High Court of Ireland delivered its judgment in the case of Kennedy & Anor v An Bord Pleanala & Ors (Approved) ([2024] IEHC 570) on October 7, 2024. The appellants, John Joe Kennedy and the Wind Turbine Action Group South Roscommon, challenged the permission granted to Energia Renewables ROI Limited for a wind farm development under the Strategic Infrastructure Development (SID) procedure. The primary issues raised revolved around alleged inadequacies in the board's assessment processes, including the Environmental Impact Assessment (EIA) and Appropriate Assessment (AA), and the board's failure to properly notify and invite submissions on additional information provided by the developer.

Summary of the Judgment

Justice Humphreys delivered a comprehensive judgment addressing each of the appellants' grounds of challenge. The court systematically dismissed most of the appellants' claims, concluding that the board had adequately fulfilled its statutory obligations in conducting the EIA and AA. However, the court upheld one significant ground of challenge related to the board's non-compliance with Section 37F(2) of the Planning and Development Act 2000. Specifically, the board failed to:

Make additional information available for public inspection;
Provide proper notice that the information was available;
Invite further submissions or observations within a specified period.

Additionally, the court excluded the late-filed affidavit of Ms. Rose Burke in its entirety due to its pervasive inadmissibility.

Analysis

Precedents Cited

The judgment extensively referenced prior case law to substantiate the court's reasoning:

Kelly v. An Bord Pleanála & Ors [2014] IEHC 400: This case highlighted issues related to inadequate AA, which was significant in understanding the standards expected in environmental assessments.
Emerald Meats Limited v. The Minister for Agriculture, Ireland & The Attorney General [2012] IESC 48: Addressed the admissibility of expert witness testimony, emphasizing the necessity for independent expert status.
Environmental Trust Ireland v. An Bord Pleanála [2022] IEHC 540: Provided guidelines on expert witness independence, reinforcing the principles applied in assessing Ms. Burke's affidavit.
Eco Advocacy v. An Bord Pleanála (No. 4) [2023] IEHC 713: Emphasized the necessity for adequate reasoning in environmental assessments to ensure transparency and accountability.
Other relevant cases were cited to reinforce principles related to procedural fairness, burden of proof, and the necessity for competent assessment by planning authorities.

Legal Reasoning

The court's legal reasoning can be distilled into several key components:

Burden of Proof: The appellants bore the onus to demonstrate that the board failed to comply with statutory obligations. Their failure to provide sufficient evidence led to the dismissal of most grounds.
Proper Particularization: Many of the appellants' claims were dismissed on the basis that they failed to properly particularize how specific provisions of the Planning and Development Regulations were breached.
Expert Witness Admissibility: The court scrutinized Ms. Burke's affidavit, determining it was inadmissible due to her lack of independent expert status and the affidavit's overreliance on hearsay.
Non-Compliance with Section 37F(2): The core issue upheld by the court was the board's failure to adhere to procedural requirements for making additional information available and inviting submissions, as mandated by Section 37F(2) of the Planning and Development Act 2000.
Declaratory Relief: Instead of granting certiorari to quash the board's decision, the court opted for declaratory relief to formally acknowledge the board's non-compliance with statutory obligations without affecting the substantive permission granted.

Impact

This judgment establishes several important precedents and implications for future planning and environmental assessment cases:

Procedural Adherence: It underscores the absolute necessity for planning authorities to meticulously follow statutory procedures, especially regarding public notifications and opportunities for submissions.
Declaratory Relief: Demonstrates the court's willingness to provide declaratory relief in instances of procedural non-compliance, even when substantive decisions are upheld.
Expert Witness Standards: Reinforces the importance of independent expert testimony in legal proceedings, limiting the admissibility of affidavits from non-independent experts.
Public Participation: Highlights the critical role of public participation in the planning process and the legal ramifications of failing to facilitate adequate public engagement.
Judicial Review Standards: Clarifies the standards required for appellants to successfully challenge planning decisions, particularly the burdens associated with demonstrating procedural and substantive inadequacies.

Complex Concepts Simplified

Section 37F(2) of the Planning and Development Act 2000

This section mandates that when additional significant information is submitted regarding a planning application, the planning authority must:

Make the information available for public inspection.
Provide proper notice that the information is available.
Invite further submissions or observations within a specified timeframe.

Failure to comply with these procedural requirements can result in legal challenges, as seen in this case.

Declaratory Relief

Declaratory relief is a judicial determination that certain facts are true. In this context, the court declared that the board failed to comply with Section 37F(2) without altering the substantive decision to grant planning permission.

Appropriate Assessment (AA)

AA is a process mandated by EU law to assess the potential impacts of a project on protected sites and species. It ensures that developments do not adversely affect biodiversity and habitats of European significance.

Environmental Impact Assessment (EIA)

EIA is a systematic process to evaluate the potential environmental effects of a proposed project. It aims to promote sustainable development by ensuring that decision-makers consider environmental implications before proceeding with projects.

Conclusion

The High Court's judgment in Kennedy & Anor v An Bord Pleanala & Ors serves as a crucial reminder of the paramount importance of procedural compliance in the planning and development process. While the substantive decision to grant planning permission was upheld, the court's recognition of the board's procedural lapses emphasizes that adherence to statutory obligations is non-negotiable. The provision of declaratory relief for non-compliance with Section 37F(2) sets a clear precedent for future cases, ensuring that public participation mechanisms are not merely procedural formality but foundational elements of equitable and transparent planning processes.