Clifford & Anor v An Bord Pleanala & Ors; O Connor & Ors v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

On 23 January 2017, Company B (Kerry County Council) sought a direction from the planning board regarding the necessity of an Environmental Impact Statement (EIA report) for the South Kerry Greenway project, which the board confirmed was required. The legislative deadline to transpose the 2014 EIA Directive had expired on 16 May 2017 without timely transposition relevant to this application governed by section 51 of the Roads Act 1993.

Following a pre-application consultation on 26 June 2018, Company B made a compulsory purchase order on 27 August 2018 and applied for development consent for a proposed 31.93 km greenway route on 29 August 2018. Notices were published and submissions were made by various applicants and interested parties throughout October 2018. The planning board requested further information in November 2018, which was provided in April 2019. The board decided the information was significant and required further advertisement, which occurred in May 2019.

On 24 June 2019, regulations implementing the 2014 Directive were enacted (the 2019 Regulations). A submission received that day from solicitors representing one applicant was not published on the board's website. An oral hearing was held from October to November 2019, during which additional errata documents were introduced but also not published online. The inspector prepared a report in April 2020 recommending omission of certain greenway sections due to environmental concerns. After board meetings in June and October 2020, permission and compulsory purchase order approval were granted on 10 November 2020 with conditions omitting specified sections.

Applicants were notified of the decision in November 2020, and public notices were published in local newspapers. Leave to challenge the board's decision was granted in early 2021. Previous judicial review applications had been refused certiorari or leave to appeal. The present judgment addresses declaratory relief related to publication obligations under the relevant legislation and EU directives.

Legal Issues Presented

1. Whether the planning board complied with its statutory obligations to publish relevant application materials, including submissions and additional information, on its website in accordance with section 51 of the Roads Act 1993 as amended by the 2019 Regulations implementing the 2014 EIA Directive.
2. Whether the board complied with its obligation to publish adequate notice in newspapers following its decision to grant permission and compulsory purchase order.
3. Whether the 2019 Regulations apply retrospectively or prospectively to materials and steps in an ongoing planning application process.
4. Whether failure to comply with publication requirements warrants declaratory relief notwithstanding refusal of certiorari due to lack of prejudice to applicants.

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 examined the statutory framework under section 51 of the Roads Act 1993 and relevant EU directives, particularly the 2014 EIA Directive as implemented by the 2019 Regulations. It distinguished between materials arising before and after the transposition date of 24 June 2019, holding that retrospective application of new publication obligations to pre-transposition materials would be impractical, burdensome, and inconsistent with principles of statutory interpretation.

However, the court found that the board clearly breached its statutory duties by failing to publish on its own website a submission received on 24 June 2019 and four errata documents added during the oral hearing later that year, which constituted additions to the EIA report. The board's excuses—uncertainty about timing of receipt, delayed official publication of the regulations, and arguments about legal certainty or lack of prejudice—were rejected as legally unmeritorious.

The court emphasized that procedural changes, including publication obligations, presumptively apply to ongoing processes prospectively and that no vested rights exist to maintain procedural arrangements unchanged once new rules take effect. It distinguished the present case from precedent cited by the board, particularly Kenny v. An Bord Pleanála, which involved different factual and legal contexts.

Regarding the final notice published in newspapers, the court found that while use of a weblink is permissible, the notice failed to provide a sufficiently clear and specific link or instructions for the public to reliably locate the decision details on the board's website, thereby breaching section 51(6C). The absence of the EIA report on the website was not required by that provision. The timing of publication was governed by the directive's term "promptly," which the court found lacked direct effect due to insufficient clarity and precision.

The court also addressed the lack of prejudice to applicants, explaining that declaratory relief remains appropriate to uphold the rule of law and proper statutory administration even when certiorari was refused for lack of prejudice. The board's attempts to claim rights or legal certainty to avoid compliance were dismissed as untenable.

Holding and Implications

The court issued the following orders:

• Declaration that the planning board breached section 51(4C) of the Roads Act 1993 by failing to make available on its website a submission received on 24 June 2019 and four errata documents furnished during the oral hearing in October and November 2019 insofar as they affected the EIA report.
• Declaration that the board breached section 51(6C) of the Roads Act 1993 by placing required information on its website rather than adequately in the newspaper notice, which failed to identify the precise link for the public to access the decision information.
• The matter was listed for further mention on 3 October 2022 to address any consequential issues.

The decision directly affects the parties by formally recognizing breaches of statutory publication duties by the planning board in this case. No new precedent altering existing legal principles was established; rather, the judgment reaffirmed established doctrines concerning prospective application of procedural changes, the board's statutory obligations, and the availability of declaratory relief to uphold the rule of law.