Eileen Stack Shanahan & Anor -v- Ireland and the Attorney General & Ors [2012] IEHC 571 (12 November 2012)

Judgment Title: Eileen Stack Shanahan & Anor -v- Ireland and the Attorney General & Ors

Neutral Citation: [2012] IEHC 571

High Court Record Number: 2011 431 JR

Date of Delivery: 11/12/2012

Court: High Court

Composition of Court:

Judgment by: O'Malley J.

Status of Judgment: Approved

NEUTRAL CITATION 2012 [IEHC] 571

THE HIGH COURT

JUDICIAL REVIEW

[2011 No. 431 J.R.]

BETWEEN

EILEEN STACK SHANAHAN AND GERARD SHEEHAN

APPLICANTS

AND

IRELAND AND THE ATTORNEY GENERAL, AN BORD PLEANALA, THE MINISTER FOR THE ENVIRONMENT, THE MINISTER FOR ARTS, CORK COUNTY COUNCIL AND THE NATIONAL ROADS AUTHORITY

RESPONDENTS

AND

PETER SWEETMAN AND ASSOCIATES

NOTICE PARTY

JUDGMENT of Ms. Justice O'Malley delivered on the 12th day of November, 2012

INTRODUCTION
1. The applicants, who appear as litigants in person, are a married couple who live in a house called Carrigaphooca Manor House (sometimes referred to in the papers as Carrigaphooca House), near the town of Macroom in County Cork. In these proceedings they seek a variety of orders arising out of the decision made on the 7th April, 2011 by the third respondent An Bord Pleanála (hereafter referred to as "the Board") to grant approval for the development by the Sixth respondent ("the County Council") of approximately 22 kilometres of dual carriageway in the Council's administrative area. The proposed road would run from Baile Bhuime to Coolcour and would bypass Macroom.

2. The main concern of the applicants relates to the potential impact of the road on the area in which they live. Their house, which is a protected structure, is very close to Carrigaphooca Castle, a registered national monument. The proposed road would pass within about 200m of the castle. Another registered national monument, Carrigaphooca Stone Circle, is in the immediate vicinity. (References in this judgment to ''the two monuments" mean the castle and the stone circle.) There is also a site of historical interest at nearby Carrigaphooca Bridge which was the scene of a battle in the Civil War and which is marked by a memorial. The applicants believe very strongly that the proposed road will seriously damage the landscape setting of these locations.

3. The applicants feel very strongly about the history and cultural associations of their area. They both appear to have family connections with it going back many generations. It is only fair to say that they have dedicated enormous amounts of time and effort to this particular matter for the last ten years.

4. By order of Peart J. made on the 30th May, 2011 the applicants were granted leave to seek the following reliefs:

1. An order of certiorari quashing the decision of the Board to grant approval to the respondents Cork County Council for the development of a Road Scheme HA0025 which decision was made on the 7th April 2011 and which decision was accorded register reference number DHA0025.

2. A declaration that in determining application HA0025, which application approved construction of a Road Scheme, the Board failed to comply with the requirements of Council Directive 85/337/EEC, as amended by Directive 97/11/EC and the Environmental Impact Directive 2003/35/EC, (hereafter the EIA Directive) and in particular failed to carry out an appropriate assessment of the project for the purposes of the EIA Directive as amended.

3. A declaration that the Board notwithstanding that it is the competent authority behaved ultra vires through an error of law in that they failed to comply with a request from the respondent Department of Environment, Heritage and Local Government which was that a final decision was not to be made by the Board until the Department had an opportunity to fulfil its statutory remit by completing an assessment of the Road Scheme on architectural heritage grounds and respond to the Board.

4. A declaration that the Board failed in the absence of a written and/or oral submission from the Department to An Bord Pleanála Oral hearing in May 2010, to use their discretionary powers and show that they had considered the opportunity to use them. The Board failed to obtain the consent and a direction from the Minister of DoEHLG on the indirect and direct impacts on the Carrigaphooca National Monuments in State ownership.

5. A declaration that the Board failed to consider whether there was a breach of Article 6(1) of EIA Directive. The failure by the Department of Environment, Heritage and Local Government to express an opinion at the Oral Hearing on the road development's impact on the architectural heritage, and to fulfil their statutory remit is a breach of Article 6(1) of the EIA Directive 85/337/EEC and Article 121 of the Planning and Development Regulations 2001.

6. A declaration that the Board failed to apply Article 9(1) of the EIA Directive 85/337/EEC. The Board's failure to provide a statement of reasons prevents the applicants [from] assessing whether they have a reasonable chance of success in obtaining a judicial review, of arming themselves for a review and of assessing whether the Board adequately addressed the issues raised by applicants. The applicants fail to understand why the matter was decided as it was and what conclusions were reached on "the principal important controversial issues, disclosing how any issue of law or fact was resolved".

7. A declaration that the provisions of EIA Directive 85/337/EEC as amended are of a procedural nature and for legal certainty must be complied with by all the respondents.

8. A declaration that the Constraints Document, of principle constraints, issued by the respondents Cork County I National Road Authority to the public at large is a fundamental component of the EIA process, primarily concerned with the avoidance of significant adverse environmental impacts. This Constraints Document confers a legitimate expectation that Registered National Monuments should be regarded as key constraints.

9. An order [relating to discovery]

10. A stay

11. A declaration that there was a breach of the applicant's [rights under] Article 8 of the ECHR Act 2003.

12. A declaration that the matters of this judicial review are of "Public Importance", are of "Special Circumstances" and are in the interests of Justice" to merit any relief that the Court deems suitable.

5. The grounds for the reliefs sought can be summarised as follows:

1. The Board failed to properly assess the project's direct and indirect effects on landscape and cultural heritage and thereby breached Article 3 of the EIA Directive.

2. The Board's decision, in its statement of reasons, fails to address the concerns of the applicants and thereby breached Articles 8 and 9(1) of the EIA Directive and s.34 (10) of the Planning and Development Act, 200.

3. The Board overturned its inspector's recommendation that the development be rejected. The inspector's view was that traffic volumes were too low to justify the scale of the development.

4. The right of public participation was breached by the failure of the County Council/National Roads Authority to identify in the course of the public consultation process the two registered National Monuments at Carrigaphooca Castle Demesne. The information provided in that process also failed to make clear the extent of the total land take in the vicinity of the castle and the extent of interference with the landscape setting.

5. The Board disregarded the failure of the County Council to assess the cultural heritage of the alternative route and to describe the inter relationship between the architectural, archaeological, heritage and landscape factors as required by the EIA Directive.

6. The Board disregarded the failure of the County Council to assess the impact on archaeological landscapes of the proposed development as required by Article 3 of the EIA Directive.

7. The Board disregarded the failure of the County Council to assess the environmental impact on the two registered monuments as required by the EIA Directive.

8. The Board failed to address the failure of the NTS to alert the public in relation to the scale of the works proposed to be placed in the historic landscapes of the national monuments.

9. The Board disregarded the failure to refer to the two national monuments in the Landscape and Aesthetics section of the technical report as required by Article 6 of the EIA Directive

10. The Board failed to have proper regard to the misidentification of the two monuments in the Cultural Heritage report.

11. The Board disregarded the failure of the Conclusions section of the Cultural Heritage Report to refer to the impact of the development on the two monuments.

6. Grounds relating to Article 9(1) of the EIA Directive (85/337/EEC)

1. The Board approved the development without indicating what its determination was in respect of the integrity of the landscapes of the two monuments

2. The Board failed to inform the public whether the developer met the requirements of Articles 3 and 5(3)

3. The Board failed to in form the public of the over-riding public interest in the protection of the landscapes of the two monuments

4. The Board failed to consider the cumulative effects of the development on the historic landscapes of the monuments

Grounds relating to legitimate expectation and the dereliction of duty by the Minister for the Environment, Heritage and Local Government

1. The Constraints Study Report published in 2003 stated that "all recorded monuments have statutory protection"; that they should be regarded as constraints which should be avoided if at all possible" and that "in particular, those in State Ownership, Registered Sites and those with Preservation Orders should be regarded as key constraints". This gives rise to a legitimate expectation that the two monuments would be adequately protected.

2. The annual average daily traffic volume for the N22 road west of Macroom has never exceeded 6,800. This cannot justify a four lane Type 2 carriageway capable of carrying 34,000 - 42,000 cars per day.

Grounds relating to Article 40.3 of the Constitution and Article 8 of the European Convention on Human Rights

1. The failure of the statutory authorities to carry out their obligations amounts to an interference with the applicant's rights under the Constitution and the Convention.

2. The provisions of s. 50B(2) of the Planning and Development Act, which greatly curtails the rights of parties in environment-related litigation to obtain their costs, has meant that the applicants have to present their case without the benefit of legal advice or representation. They are thereby discriminated against and placed at a fundamental disadvantage.

7. At the hearing of the matter the applicants sought to amend their pleadings extensively. Certain of the amendments were not opposed by the respondents, who concede (correctly in my view) that they do not amount to much more than amplification of the earlier grounds. These additional grounds include a reference to the Preamble of the Constitution; a complaint that the Board failed to give adequate consideration to the report of the inspector who conducted the oral hearing; a complaint that the Board has acted inconsistently and has caused legal uncertainty by making a "Preservation order boundary" in respect of a national monument in Moore Street but not in relation to the monuments at Carrigaphooca and a claim that the decision is irrational and contrary to common sense.

8. Objection was taken to the addition of two new reliefs. The applicants now seek an order of certiorari in respect of a compulsory purchase order made on the 16th October, 2009 and confirmed on the 7th April, 2011, authorising the compulsory acquisition of 189 hectares of land and extinguishing certain public rights of way for the purpose of the road development and to the addition of grounds related thereto. They also seek a declaration that Article 1OA of the EIA Directive has been incorrectly transposed into Irish law by means of s.50B.

9. I propose to deal with the issues relating to legal representation and to the amendment of the pleadings first.

SECTION 50B OF THE PLANNING AND DEVELOPMENT ACT, 2000
10. This section, inserted by s. 33 of the Planning and Development Act, 2010, provides as follows:

(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts and subject to subsections (3) and (4), in proceedings to which this section applies each party (including any notice party) shall bear its own costs.

(3) The Court may award costs against a party in proceedings to which this section applies if the Court considers it appropriate to do so-

(i) because the Court considers that a claim or counterclaim by the party is frivolous or vexatious

(ii) because of the manner in which the party has conducted the proceedings, or where the party is in contempt of the Court.

(4) Subsection 2 does not affect the Court's entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.

11. The section came into force on the 28th September, 2010 and was in force when these proceedings were instituted. It has since been amended, by the provisions of the Environment (Miscellaneous Provisions) Act, 2011 to restore a greater degree of discretion to the court to award costs to a party who has been wholly or partially successful but that amendment does not apply to these proceedings.

12. It appears that s.50B was introduced in order to satisfy the requirement of Article 10A of the EIA Directive, inserted into that Directive by the Public Participation Directive 2003/35/EC, that the" review procedure" available to challenge the substantive or procedural legality of certain decisions, acts or omissions should not be "prohibitively expensive". The "review procedure" available in Ireland is the High Court judicial review procedure and the object of the section is, it is said on behalf of the State parties, to ensure that would-be litigants are not deterred by the fear of a "prohibitively expensive" costs order being made against them. The State parties argue that the provision strikes a fair balance, does not discriminate against the applicants and does not place them at any disadvantage.

13. The court has been told by the applicants that they attended a lecture given by a barrister known for his expertise in planning and environmental matters, who gave it as his view that s.50B, meant the end of pro bono litigation in such cases. They therefore felt that they had to represent themselves. They have not given evidence that they actually sought and were refused legal advice or representation and nor have they mounted any form of attack on the section.

14. The full impact of the section in either its former or current wording has yet to become clear but I do consider that there is cause for disquiet. There is in my view a certain unreality in saying that the applicants are at no disadvantage when they are opposed in these proceedings by three sets of Senior and Junior Counsel, all of whom have extensive experience in this area. Fear of an order of costs being made against one may be a serious matter but so too is the inability to obtain representation, no matter how meritorious the case, unless one can pay for it "up front". It is hard to see how, from the point of view of legal practitioners, the section could not have a "chilling" effect on their willingness or capacity to provide their services. There is also the possibility that unmeritorious cases will take up the time of the courts where timely and effective legal advice could have stopped them.

15. In the instant case, the applicants have not sought any relief directly in relation to legal representation. However they do, to some extent, ask the court for a degree of flexibility that would not be shown to represented parties. This is particularly so in relation to the application to amend their pleadings to include the compulsory purchase order. In effect, they say that they did not understand the correspondence from the other parties on the topic of amendment. On the 21st July, 2011 when the matter was mentioned before the president, the respondents told the court that there was a possibility that the applicants wished to amend their pleadings and the president directed that any amendments should be brought forward by the 31st of that month. The applicants thereafter lodged amended papers but did not return to court to seek further leave. They state that they are confident that, if they had gone back to Peart J, leave would have been forthcoming because, as they correctly point out, they were given leave on everything they asked for in the first instance.

16. They also argue that the compulsory purchase order is really part of the decision of the board in relation to the road approval and that the two cannot be separated.

17. The respondents say that the applicants were given the opportunity to make the necessary application and did not do so. They argue that what is sought to be introduced is a new pleading as opposed to an amendment. They point out that the compulsory purchase order is not contingent on the validity of the development consent. Finally, they point out that litigation relating to compulsory purchase orders is not one of the matters to which s.50B applies.

18. In my view these objections are well-founded. Misunderstanding of the Rules of Court by lay litigants will generally be met with a degree of indulgence but this is a case where the application for what is in effect leave to seek new reliefs based upon new grounds is made almost a year after the direction of the President. Nor do I feel entitled to second-guess Peart J in the manner suggested. The requirement to seek leave cannot be simply set aside in that fashion.

THE POSITION OF THE NOTICE PARTY
19. I am not clear as to why Mr. Sweetman was joined as a notice party in these proceedings. At the hearing he sought to address me on various matters which were not the subject of the leave granted in the case and were not related to that leave. I therefore declined to hear his submissions.

THE SUBSTANTIVE ISSUES
20. The applicants have raised a very wide-ranging variety of arguments and have referred the court to a very large number of authorities. It seems to me that many of the arguments are misconceived and have no application to the case in hand. For example, it is not possible to argue that the oral hearing process under the Planning Acts can in any way constitute an attack on the fundamental Constitutional rights of the applicants. Participation in such a hearing is an entitlement, not an obligation or a burden, and as a matter of law can not be seen as an infringement of the right to liberty or the right to earn a livelihood. On a different tack, English law relating to Royal parks cannot be assumed to be relevant on the basis that some of the land in question once belonged to the kings of Munster.

21. I do not wish to sound unduly critical of the applicants- it is also the case that they, and the respondents, have referred to an extensive number of planning law judgments. However, there has in my view been to some extent a failure to see the wood for the trees.

22. It is important to remember what the role of the court is in a judicial review.

This is not an appeal from the decision of the Board. The task here is to consider, firstly, the process by which the impugned decision came to be made and see whether it was tainted by any material error in law or procedure. If not, the question then arises as to whether the decision is one that is unsupported by relevant material and flies in the face of reason and common sense- O'Keeffe v An Bard Pleanála [1993] 1 I.R. 39 hills, woodland clumps, rocky outcrops and so on. Most of the areas concerned are described as having a very attractive landscape. The section puts a figure on the number of households that would be expected to experience an adverse visual effect.

28. The Cultural and Heritage section relates to features of man-made origin and also to places with significant historical associations. Carrigaphooca Castle and the stone circle come into the first of these categories. The NTS recognises that they are Registered National Monuments and proposes to minimise the impact of the development on their setting as far as possible by appropriate landscape planting.

29. The applicants complain that the castle and stone circle should have been included in the Landscapes and Aesthetics section. It is further complained that they have the wrong identification numbers attributed to them. The respondents say that as a matter of convention built features are included in the Cultural and Heritage section. They accept that the identification numbers are incorrect but point out that the mistake was put right in the errata slip.

30. I cannot find that there is anything either sinister or legally flawed in this. There is no evidence that anyone was or could have been materially misled.

(2) The Inspector's Report

31. The Inspector's report is a 246-page document. By way of introduction it refers to the EIS and summarises the NTS. At paragraph 3. 11 it summarises the Cultural Heritage section and refers specifically to the two monuments. Chapter 4 of the report sets out the evidence given at the oral hearing in great detail, including cross- examination of the various witnesses. The issues in relation to the Carrigaphooca area were touched on a number of times.

32. Mr Cunningham, of McCarthy Hyder, told the hearing that minutes of a meeting held in the firm's offices on the 4th April, 2001 demonstrated that Carrigaphooca Castle and the stone circle were fully in the minds of the people designing the road scheme.

33 A Mr Carter gave evidence in relation to views from the castle, and said that in one direction the view would be affected but not significantly.

34. Ms. Faith Bailey, a historian who had worked on the EIS, referred to the castle and the stone circle in dealing with areas of particular archaeological sensitivity. In archaeological terms, she said that there would be a slight negative impact on the castle and none on the stone circle.

35. In relation to built or architectural heritage, Ms Bailey identified the applicant's home, Carrigaphooca House, as a protected structure deemed to be of regional importance. She considered that the development would have a slight negative impact on it.

36. As stated, the applicants attended at the hearing. They cross-examined all the above witnesses and the cross-examinations and submissions are recorded fully by the Inspector. The second named applicant made submissions both in his own capacity and as a representative of the Society of the Descendants of the Officers of the Irish Brigades in Europe.

37. In Chapter 5 of his report the Inspector assessed the evidence and submissions. In relation to the overall justification for the scheme, he was of the view that a bypass of Macroom would be beneficial. However, he felt that west of Gurteenroe junction the likely traffic figures did not justify a dual carriageway and the proposal was in that respect premature. He was also of the view that the western section passing to the north of Baile Mhic Ire and Baile Bhuime would be likely, when set together with the lack of justification for the road, to result in significant adverse visual and landscape impacts. He recommended refusal of approval.

38. In relation to the matters of particular concern to the applicants, the Inspector considered that they would not give grounds for rejection of the proposed development.

THE ROLE OF THE MINISTER
39. Prior to the hearing, during the pre-planning stages, the National Monuments Service carried out an archaeological and architectural assessment of the proposed road. Mr. Martin O'Neill, an archaeologist working with the Service, says that he had identified Carrigaphooca Castle and the stone circle as features that might be affected and in whose vicinity previously unknown material might be found during any works. He says that he reviewed the EIS and was satisfied with its content, its statement of effects and mitigation and its assessment of all matters he believed to be relevant to the archaeological heritage including the national monuments.

40. According to Mr. O'Neill, a Mr Browner, a retired senior architect from the Built Heritage and Architectural Policy Section, had inspected and assessed Carrigaphooca in response to various requests from the applicants. He was expected to deal with the architectural aspects of any submission to be made to the Board. However, according to Mr. O'Neill, when the relevant notification date was received Mr Browner was away. A letter was therefore written to the Board asking for an extension or adjournment, in case there was any matter to be dealt with. This was misconceived -the Board has no power to grant such a request. In the event, it transpired that there was no submission to be made.

41. The applicants see this as dereliction of duty by the Minister, and a case of "tacit authorisation". They consider that the Minister was biased against them. As evidence of bias they point to a letter written to them by Mr Browner, in which he stated that there was no "vista" between their house and the castle. They understand this as an assertion that the castle cannot be seen from their house and they have produced photographs to prove that it can.

42. In my view this argument is based on a misconception. The Minister is a statutory consultee -he is not obliged to make submissions or be represented at the hearing where he does not feel that there is something he wishes to say.

43. As far as Mr. Browner is concerned, I do not see any evidence of bias in the letter. I believe that it is clear that he is using the word "vista" in a particular architectural sense, where it denotes a formal, planned relationship between two buildings.

THE DECISION OF THE BOARD
44. The Board decided to grant approval for the road subject to a number of conditions. In its decision it recites that it has had regard to:

(a) The national Spatial Strategy 2002-2020 and the Regional Planning Guidelines for the South West Region the objective;; of which seek to achieve good quality transportation and communication links between Cork as a gateway city and the hub towns of Killarney and Tralee

(b) The policies set out in the Cork County Development Plan 2009 and other statutory plans for Macroom and environs and the Cork Area Strategic Plan 20001-2020 and the North and West CorkStrategic Plan 2002-2020

(d) The severe traffic currently being experienced in the town of Macroom

(e) The seriously substandard condition of much of the existing N22 National Road between Macroom and Baile Bhuime this as an assertion that the castle cannot be seen from their house and they have produced photographs to prove that it can.

42. In my view this argument is based on a misconception. The Minister is a statutory consultee - he is not obliged to make submissions or be represented at the hearing where he does not feel that there is something he wishes to say.

THE DECISION OF THE BOARD
44. The Board decided to grant approval for the road subject to a number of conditions. In its decision it recites that it has had regard to:

(a) The national Spatial Strategy 2002-2020 and the Regional Planning Guidelines for the South West Region the objectives of which seek to achieve good quality transportation and communication links between Cork as a gateway city and the hub towns of Killarney and Tralee

(d) The severe traffic currently being experienced in the town of Macroom

(e) The seriously substandard condition of much of the existing N22 National Road between Macroom and Baile Bhuime

(f) The negative impact of excessive through traffic on the commercial, social and environmental conditions and road safety in the town of Macroom and the villages of Baile Mhic Ire and Baile Bhuime

(g) The extensive route selection undertaken by the road authority and the adjustments incorporated in the proposed road development

(h) The environmental impact statement submitted in support of the application and the measures contained therein to mitigate environmental impacts, as well as other mitigation measures submitted to the oral hearing

(i) The relationship of the proposed development to the five designated Natura 2000 sites within 10 kilometres of the proposed road development

(j) The grant by the National Parks and Wildlife Service (NPWS) of a Derogation Licence under the Habitats Regulations in respect of the Kerry Slug

and also to the report and recommendation of the inspector and to the objections and submissions made in relation to the application.

45. As required by s. 34(10) the Board gave reasons for deciding not to accept the recommendation of the inspector. Stating that it agreed with him that the first section (bypassing Macroom) was justified but the second section premature, the Board said that the construction of the entire road was justified by reference to:

(i) the strategic importance of the principal Cork-Kerry road link for the future development of the South West Planning Region

(ii) the current highly unsatisfactory nature of that road, and

(iii) the difficulties associated with improving the existing road to an adequate standard.

46. The Board said that it noted the inspector's concerns in relation to the visual and landscape impacts on the area north of Baile Mhic Ire/Baile Bhuime but considered that these would not justify refusal having regard to the very limited options for bypassing these villages. It considered that the impacts would be reduced over time with appropriate landscaping.

47. The Board specifically noted that the inspector did not recommend refusal on any ground related to Carrigaphooca Castle, Carrigaphooca House, the stone circle or the Civil War monument at the bridge and stated that it agreed with his conclusions in relation to these aspects. However, it considered it appropriate to attach conditions to the approval to mitigate the impact on the site and to assist in interpreting its historic significance.

48. The relevant conditions are No.1 -that all of the mitigation measures described in the environmental impact statement and amended Statement of Mitigation Measures submitted at the oral hearing be carried out in full- and No.7- that prior to commencement of works on the relevant parts of the proposed road development, the road authority shall commission a suitably qualified person to carry out a detailed photographic survey (aerial and ground) and maps of the [three sites mentioned] of historic and cultural significance in order to ensure that an accurate record is maintained of the topographical and landscape characteristics of each site as it existed prior to the proposed road development. The photographs and maps are to be accompanied by a description of the historic events associated with each site and made available for public display in the public library in Macroom. Condition No.8 stipulates that signage along the proposed road shall include signage indicating the historic/cultural sites referred to in Condition 7.

CONCLUSIONS
49. Having regard to the task identified earlier in this judgment, I find no material flaws in the procedure of the Board. It had due regard to the material before it. I cannot say that it had regard to any matter that it should not or that it disregarded any matter of relevance. Where it disagreed with the inspector it gave reasons and the reasons are clear. It is not obliged to give a discursive judgment, nor to seek to replicate the approach of the very detailed, highly professional report of the inspector. Its decision was based on evidence, was not manifestly umeasonable and does not fly in the face of common sense.

50. The process followed before the decision was lengthy, public and fair. The applicants had every opportunity to put their case, and did so extensively. Ultimately they were not successful in persuading others to their point of view to the extent they wished, despite the decision of the Board to attach certain conditions in relation to the issues of concern to them. However, as pointed out earlier, this hearing is not an appeal.

51. I therefore refuse the reliefs sought.

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