Reid v An Bord Pleanala (Approved)

Factual and Procedural Background

This opinion concerns an application for leave to appeal and costs following a judicial review under section 50 of the Planning and Development Act 2000 as amended. The underlying proceedings were initiated by the Plaintiff against Company A (An Bord Pleanála) with Company B (Intel Ireland Limited) as a notice party. The Plaintiff’s initial judicial review challenged decisions made by Company A regarding planning and environmental assessments. Previous related judgments include a determination on the exclusion of evidence before trial and a dismissal of the Plaintiff’s substantive proceedings. The current judgment addresses the Plaintiff’s application for leave to appeal that dismissal and the issue of costs.

Legal Issues Presented

1. What is the nature of the obligation on a developer when preparing a Natura Impact Statement under Article 6(3) of the Habitats Directive and section 177T of the Planning and Development Act 2000, including the consequences of non-compliance and whether an incomplete Natura Impact Statement meets the obligation?
2. Whether the decision-maker (Company A) has an autonomous obligation under the Habitats Directive to accept developer material only if there is no scientific doubt apparent to a reasonable expert, and how such scientific doubt is to be resolved.
3. In what circumstances it is appropriate for the court to decline to consider material that was before the decision-maker when making its decision.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully evaluated the Plaintiff’s proposed questions for leave to appeal and found them to be overly broad, essayistic, and not properly grounded in the facts or pleadings of the case. The first question regarding the developer’s obligations in preparing a Natura Impact Statement was rejected because no factual finding of failure to comply had been established, and the relevant statutory provision (section 177T) was not pleaded in the grounds.

Regarding the second question on the autonomous obligation of the decision-maker, the court articulated a combined test involving three established elements: the developer’s material must not be evidently defective; sufficient expertise must be applied in the assessment; and the decision-maker must act reasonably. The court noted that the Plaintiff did not dispute this formulation or show it was adverse to their case, undermining the basis for appeal.

The court also recognized that removal of scientific doubt is necessary but not sufficient; the best scientific knowledge must be applied. However, the Plaintiff failed to discharge the evidential burden to show that best scientific knowledge was not applied or that there was contrary material requiring consideration.

On the third question concerning the exclusion of material that was before the decision-maker, the court clarified that evidence not properly admitted in the judicial review proceedings cannot be considered, even if it was before the administrative body. The court emphasized procedural fairness, noting that late introduction of material deprived other parties of the opportunity to respond.

The court further clarified the scope of documents applicants may request from the administrative file, including the complete file, any removed documents, and documents not originally on the file but considered by the decision-maker.

Finally, the court considered whether there was a broader question of exceptional public importance warranting leave to appeal in light of a recent Supreme Court decision. It concluded that the present case did not raise such a question sufficiently to justify leave, and that an appeal primarily for error correction was not appropriate under the statutory scheme.

On costs, the court found no basis to award costs against Company B (Intel) or Company A (the board). It noted the absence of frivolous or vexatious conduct and highlighted the general rule in environmental litigation that applicants are not usually exposed to costs for losing, absent special circumstances. The court determined that the case did not meet the high threshold for such circumstances.

Holding and Implications

The court DISMISSED the Plaintiff’s application for leave to appeal.

The direct effect of this decision is that the dismissal of the Plaintiff’s judicial review proceedings stands without further appeal on the substantive issues raised. No costs are awarded against any party, maintaining the general rule of no order as to costs in environmental litigation absent exceptional circumstances. The judgment clarifies procedural expectations regarding evidence admissibility and the scope of documents to be disclosed in judicial review of planning decisions. It does not establish new legal precedents but reaffirms existing principles concerning the application of scientific expertise and procedural fairness in environmental judicial review.