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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kavanagh -v- Ireland & Ors [2007] IEHC 296 (31 July 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H296.html Cite as: [2007] IEHC 296 |
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Judgment Title: Kavanagh -v- Ireland & Ors Composition of Court: Smyth J. Judgment by: Smyth J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 296 THE HIGH COURT DUBLIN 2007/1269P BETWEENMICHAEL KAVANAGH PLAINTIFF -AND- THE GOVERNMENT OF IRELAND, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL DEFENDANTS APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTHDELIVERED ON TUESDAY, 31ST DAY OF JULY 2007 1. Introduction: The reliefs sought by the Plaintiff in this action are predominantly declarations (reliefs 1 - 13 inclusive): declaratory reliefs arise from consideration of matters of law. The Plaintiff seeks to have a determination of matters of EU law (relief No. 16) and a form of injunctive relief (relief No. 15). The decisions which the Plaintiff seeks to impugn are identified in paragraph 8 of the Statement of Claim as decisions of the first three named Defendants announced on 26th January 2005 and allegedly adopted in the period between November, 2004 and January, 2005 to develop on an agriculturally zoned 150 acre rural site at Thornton Hall farm i.e. across the road from his (the Plaintiff's) family residence, a new major prison development, a new CMH for the State and/or both, without prior public consultation, without carrying out any and/or any proper environmental assessment in accordance with EC law of their likely significant effects on the environment. 2. The Reliefs Claimed: In addition to those identified above, relief is also sought in respect of "subsequent modifications" to the foregoing, and these are identified at paragraphs 68, 69 and 70 of the Statement of Claim and specifically as:-
(2) The decision to close and sell the CMH in Dundrum for development and to build a new CMH at Thornton Hall and any modification thereof. (3) A combination of both decisions. (4) The inclusion of the decision to close and sell Mountjoy Prison and to build a new prison at Thornton Hall in the National Development Plan 2007 to 2013 adopted in January 2007. 3. The issues In my judgment the issues which fall to be determined in this action are the following:-
(2) Directive 2001/42/EC:
(b) If so, are they concerned with "town and country planning" or "land use"? (c) Do they set the framework for future development consent of projects listed in annexes 1 and/or 2 to Directive 85/337/EEC?
(2) Is an EI necessary at any stage? (3) In respect of the prison, is the application of Directive 85/337 excluded by virtue of Article 1(5) thereof and Part 4 of the Prisons Act, 2007. (4) If not, do any of the impugned decisions constitute projects within annex 1 or 2 of the Directive 85/337/EC? 4. The trial procedure At the outset of the hearing the Court was given by the Defendant's counsel a note of an unsuccessful appeal taken by the Plaintiff to the Supreme Court seeking to vacate the trial date. From this it appears that the Court considered the discovery and concluded that the date ought not to be vacated and that the discovery was adequate in the terms of the Court order. Just before the hearing of this action began counsel for the Defendants learned from Plaintiff's counsel that the Plaintiff was not calling any witnesses and had no witnesses available in court. Mr. Connolly SC the Defendants suggested that notwithstanding the case was one of plenary hearing that as:
3. For fairness of procedure in the case to the Plaintiff, he elected not to insist on cross-examining the Plaintiff or any of the Plaintiff's witnesses. This first concession was on the basis that his own evidence-in-chief was contained in the replying affidavits but coupled with the right of the Plaintiff's counsel to cross-examine any such witnesses. [In fact all such witnesses were available and proffered for cross-examination, but the invitation was not availed of by counsel for the Plaintiff.] 4. In addition it was indicated that a witness from the Department of Finance would be called to deal with the National Development Plan (hereinafter referred to as the NDP), a witness from the Department of Health to deal with the CMH (hereinafter referred to as CMH). 5. Later a further concession was made to call Mr. Joseph Boyle of the Estate and Prison Service of the Department of Justice - the source of the information and belief of many of the matters in the affidavits of James Martin, an Assistant Secretary of the Department of Justice, to answer at first hand matters referred to in the affidavits - who was involved in the Thornton project since its inception.
(b) In seeking to persuade a judge to exercise the discretion conferred on him by the rule the onus lay on the party making the application to persuade the Court to exercise its discretion in its favour and if the case of the application being resisted, the onus lies on the other party to establish a bona fide desire for the production of the witnesses. The gist of the action is: Do any of the decisions from 2004 onwards separately or cumulatively amount to or consist of a plan or programme within the meaning of the Directives, invoked by the Plaintiffs, such that such Directives are applicable to such work or works as the Defendants or any of them have carried out at Thornton. The instant case is clearly distinguishable from the Phonographic case where the Defendant was putting the Plaintiff on full proof of its case. In the instant case the Defendant in acknowledging the stated difficulties of the Plaintiff in producing witnesses not only makes a variety of concessions to the Plaintiff, but assumes the full burdens of the defence having foregone the opportunity of testing the Plaintiff's evidence by way of cross-examination. The elements to which the evidence is directed are of formal or peripheral matters and do not go to the gist of the case which is a matter of law. In the instant case there was no written agreement as to how to proceed, but the matter was debated at length and the procedure indicated by Mr. Connolly was expressed to be acceptable by Mr. Giblin SC on behalf of the Plaintiff (T1 24/7/07 p46 L19-20). In these circumstances it became unnecessary to make any express order under order 39 rule 1, but had such a necessity arisen I would unhesitatingly have exercised my discretion in making an order in the terms of the proposals put before the Court by Mr. Connolly which are based on reason, common sense and consonant with the interests of justice and in ease of the Plaintiff. 5. The Evidence I am satisfied and find the following facts are either agreed or sustained and established by the evidence. That the decision to replace Mountjoy was a stand alone decision and was not part of or contingent on a plan or programme of general prison development. It was a decision in principle and did not purport to exempt the proposal from the normal administrative, financial and legislative procedures that would be appropriate. The proposal was to develop the new prison facility by means of a Public Private Partnership. Once the proposal to replace Mountjoy was accepted by the Government, reference to it was included in various documentation for financial planning and budgetary purposes, including aggregate financial plans such as the NDP. The first task in implementing the Government decision was to acquire a suitable site. To this end advertisements were placed in national newspapers by the Irish Prison Service in February 2004 seeking expressions of interest from parties who might be interested in making sites available for a new prison complex with a capacity for a thousand prisoners to replace Mountjoy. An approximate acreage and within a radius of Dublin City Centre was indicated. The responses from the advertisement were subjected to review or scrutiny by a Committee set up in May 2004 by the Minister for Justice, Equality and Law Reform ("the Minister"). On 30th November 2004 just as it seemed matters could be concluded with the owner of the preferred site - the owner of the site suddenly indicated he was not willing to go ahead with the sale. On the same date the Government approved in principle the purchase of a site subject to a final decision by the Minister and the location was to be confirmed with the Government. On 20th December 2004 another site - at the centre of the litigation - Thornton Hall was offered to the Irish Prison Service. It was assessed under the criteria first applied to the other sites, earlier referred to, it received the second highest marks (ahead of the site withdrawn on the 30th November 2004) and was considerably cheaper than the site which had been awarded the highest marks. On 18th January 2005, the Committee recommended that it be purchased. On 26th January 2005 the Government were informed that the Minister intended to purchase the site at Thornton Hall and a contract was signed the same day for 150 acres at a total cost of 29.9 million euro. That day a press release was issued which stated that the site had been purchased stating its size and location, and stating that "full details of the new prison complex have not yet been finalised" but giving an outline of the facilities that would be on the site and indicated that the capacity would be upwards of 1,000 prisoners and up to 1,000 prison officers and other staff would be employed there. A letter of the 27th January 2005 with enclosure informed the Plaintiff of the purchase. Exhibit "MK5" to the Plaintiff's original affidavit indicates (inter alia) that the CMH might well (it was to be the subject of further study) be transferred to Thornton. On 3rd February 2005 the minutes of the Committee which evaluated the sites were published on the website of the Minister's Department. The Minister met with a delegation from the local community shortly after the and announcement was made. I am satisfied and find as a fact that the Plaintiff knew of the decisions aforesaid in the public domain: what he did not have was the documentation that lead to the formulation of these individuals and separate (if interrelated) decisions. In early March 2005 a Ms. Teresa McDonnell, who is a neighbour of the Plaintiff and swore supporting affidavits in his interest, sought information under the Freedom of Information Acts 1997-2003 and requests for access to Environmental Information under S.I. No. 125 of 1998 (Directive 90/313/EEC). Severe criticism was levelled at the stated dilatory and poor response to inquiries made under the Freedom of Information Acts. In the context of this litigation I refrain totally from usurping functions at yet unexercised by those first entrusted by law to make determinations on such criticism. What was first requisitioned was-
On 22nd April 2005 a Mr. Richard Merne (a neighbour of the Plaintiff and a fellow member of the local residents association) issued proceedings against the Minister for the Environment seeking a declaration that certain areas of the Thornton site were a national monument. On 25th April 2005 Mr. Merne was granted leave to seek judicial review of the decision of 26th January 2005. The reference here to these proceedings is to record a step in the chronology of events - referable to the site at Thornton. It is clear the Minister in effect declined to meet with local residents while those proceedings were extant. The sale of Thornton Hall closed on 1st October 2005. In the year 2006 a number of meetings took place, one of which took place on 3rd March and others on 13th March and 3rd and 7th April with various local residents or groups of residents (paragraphs 8 to 11 of the affidavit of Maeve Hogan sworn on behalf of the Defendants in these proceedings). The Government decided on 12th May 2006 that a new CMH will be built in part of the Thornton Hall land set aside for that purpose. On 7th July 2006 the Government approved proposals by the Minister that a special development approval procedure was appropriate that would meet the environmental protection standards of the European Union, and that assigned to the Houses of the Oireachtas the final say or determination as to whether the specific details of the intended project should be approved. The relevant provisions, applicable to this very significant project of national importance are to be found in Part 4 of the Prisons Act, 2007. The Prisons Bill, 2006 was presented to Seanad Éireann on 10th November 2006. In January 2007 the NDP was launched. Unlike previous Development Plans, which were required by EU regulations to drawdown EU structural funds - the 2007 NDP is not required by any legislative, regulatory or administrative requirement. The NDP is essentially a financial plan or framework setting out what the Government sees as the investment priorities for the next seven years, and how resources can be invested amongst different investment priorities. It is not designed or intended to set any kind of framework for the granting or refusing of permissions for the carrying out of projects or to have any influence on the physical planning process (even if planning authorities or An Bord Pleanála may note it or do have regard to it i.e. the NDP) in their decisions. I am satisfied and find as a fact that it is essentially a financial or budgetary plan and even if, as is the case, a project of national significance is mentioned in the NDP such is for administrative purposes as indicative of the type of project that would be financed out of a particular financial "envelope". In the context of this litigation I cannot be concerned to determine any differences of opinion that may exist or be said to exist in respect of whole or part of the NDP between the European Commission and the Government of Ireland and what influence and effect (if any and to what degree, if at all) the NDP may have on those charged in law with making decisions under the Planning Acts and Regulations. In the context of the NDP, reference was made by the Plaintiff to a decision of An Bord Pleanála concerning Lansdowne Road rugby grounds and to a letter from the European Commission to the Government of Ireland - neither were put in evidence or before the Court or put to the witness in written form who appeared for the Department of Finance. I draw no adverse inference of finding against the Plaintiff attributable to such omissions. Essentially the debate on NDP came down to one of intendment and possible effect. I am satisfied and find as a matter of fact that the NDP was and is not intended to set a framework for development consent or planning permission but in the application or determinations of those empowered by law to so determine on some occasions the NDP may be noted and may or may not weigh in favour or against such consent or permission which fundamentally would have to rest on strict planning grounds and reasons. On 20th February 2007 the Plenary Summons issued in this case. The Prisons Act, 2007 was signed by the President on the 31st March 2007 and Part 4 thereof came into force on 1st May 2007, pursuant to the Prisons Act, 2007 (Commencement) Order 2007, S.I. No. 180 of 2007 (having been duly signed by the Minister on 27th April 2007). Part 4 applies to larger prison developments (e.g. involving more than five acres or a capacity for 250 prisoners) but only if the Minister so directs in writing. On 29th May 2007 the Minister in exercising the powers conferred on him by section 18(1) of the Prisons Act 2007 directed that Part 4 of the Prisons Act, 2007 applies to the proposed construction of a prison on a site not previously used for that purpose in the Electoral Division of Kilsallaghan in the County of Fingal (Thornton Hall site) by S.I. No. 251 of 2007. The effect of this empowered decision is that what I will call the Thornton Hall project or prison, the prison project is an exempted development for the purpose of the Planning and Development Acts, 2000-2006, and no longer subject to regulation under section 181 of the Planning and Development Act, 2000, the European Communities (Environmental Impact Assessment) Regulations 1989-2005, or the provisions of the Planning Acts and Regulations relating to Environmental Impact Assessment. That is not to say that the building of the intended prison is free of control or regulation. Indeed the provisions of Part 4 of the Prisons Act, 2007 are extremely elaborate and complex and provide for a number of steps protective of those who may be concerned considerably in excess of those provided for under any of the provisions of the Planning Acts as they exist in this country and furthermore directly take into account Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Council Directive 97/11/EEC and envisage a special sanctioning by the Oireachtas before building of the prison can commence. 6. Delay In this context the narrative of the chronology of events earlier recorded in this judgment between the formal decision of 3rd February 2004 (see paragraph 4 of the Plaintiff's original affidavit) and much more particularly when notified by letter of 27th January 2005 (Exhibit "MK5" to the same affidavit) of the decision of the actual purchase of Thornton at €29.9 million to serve as a location for a new prison is of importance. The Plaintiff says he was in a state of consternation when he heard of this prison project. Furthermore it is clear that there was considerable concern and/or opposition amongst local residents to the planned development (per paragraph (13) of the Plaintiff's original affidavit). Proceedings issued on 20th February 2007. In effect the Plaintiff permitted almost two full years to elapse before bringing these proceedings. During this period the Merne judicial review proceedings were widely publicised and Mr. Merne has in these proceedings sworn an affidavit in support of the Plaintiff herein and he swore an affidavit in Mr. Merne's proceedings, (see paragraph 3 of Mr. Merne's affidavit herein sworn on 4 July 2007) and same was brought with the knowledge or assistance, certainly with the knowledge, of the Kilsallaghan Residents Association (formed in 2003) of which the Plaintiff was aware and had approved. The Defendants entered an Appearance on 1st March 2007 and called on the Plaintiff to deliver a Statement of Claim. Not only was this not done within the time prescribed by the Rules of the Superior Courts, but it was only done on the insistence of the Defendants. Almost three months then elapsed before the Plaintiff issued a motion dated 16th April 2007 returnable for 18th April 2007 seeking interlocutory relief. It was submitted by Mr. James Connolly S.C. for the Defendants - and uncontradicted, that a Statement of Claim was only delivered (on the insistence of the Defendants) on 28th May 2007, to which the Defendants delivered a defence on 6th June 2007. The inference I was asked to draw from the signing by the Minister of his Order of 29th May that it was merely a response to the delivery of the Statement of Claim. No evidence has been adduced to substantiate that and I am satisfied that the Minister proceeded with all dispatch once the Act was passed to give effect to the intendment of the replacement of Mountjoy Prison. The reliefs sought in this action are public law reliefs. The fact that the Plaintiff has proceeded by way of plenary summons does not change this from being in essence, a judicial review application. Since 26th/27th January 2005 to adopt Mr. Connolly's expression 'the clock was running'. I am satisfied and find as a fact that as of the 26th/27th January 2005 the Plaintiff had notice of the decision and intention of the Defendants - (in particular the Minister) to proceed with the prison project, of which it is clear from the evidence the Plaintiff was strongly opposed. In affidavits sworn in these proceedings directed to this issue the Plaintiff avers that until the document evidencing the decision of 4th February 2004 is discovered neither can he (the Plaintiff) or the Court know whether such a decision was in fact taken. Altogether from the clear imputation as to the veracity of the oath of Mr. Martin as Assistant Secretary in the Minister's Department, when all decisions made referable to the prison project were discovered and the document was disclosed (but not put in evidence) the imputation was not withdrawn. This unwarranted unfairness is not limited to this document. Even if this were a minor issue, and even if the criticism of the Plaintiff was correct, it was irrelevant because the Defendants do not necessarily have to rely on that decision and clearly exhibited the decision of 30th November 2004. That decision in any event was made public at the time it was made. In paragraph (5) of the Plaintiff's affidavit he raises the question that there was no record or minute of any Government decision confirming the purchase of Thornton Hall as a location for the development approved in principle on a site for a location on 30th November 2004 (Exhibit "JM1"). Exhibit "JM2" dated 26th January 2005 identifies the site as Thornton - I am satisfied that it adequately covers the averment of Mr. Martin and reject this submission as unsustainable in the light of the uncontradicted averment of Mr. Martin - and again from the unattended discovery (which I do not rely upon as evidence for it was not formally put). It is clear from the documents (before any discovery was made) that the Government decision to purchase was on 30th November 2004, but it was subject to the final decision of the Minister for Justice - the location of which was confirmed to the Government on 26th January 2005. In this regard I express my incredulity that all of the averments in the Plaintiff's original and supporting affidavit prior to that sworn on the 4th July 2007 were based on suppositions or non existing decisions. In fact the reliefs sought in the originating summons was on the basis that the decisions were real and did exist. The point is only made for the first time on the 4th July 2007 in response to the averments by Mr. Martin sworn in his affidavit (on behalf of the Defendants) on 20th June 2007. The issue of delay is raised in paragraph 55 of the defence and again in a specific motion by the Defendant to have the Plaintiffs claim dismissed on either of the following grounds:-
(ii) no detailed plans had been drawn up at that time. (iii) the possibility of relocating the CMH had been considered but no final decision on relocating it to Thornton had been made - but if it came to pass, the 'Kilsallaghan' end of the site was its likely location. (A formal Government decision to relocate was made in May 2006) [T3 p169 Q115] (iv) there was a possibility of a courthouse being located on the site [I find as a fact on the evidence (T2 p175/6 Q138) that there is no proposal for any public courthouse on the site]. (v) a full archaeological survey had been completed. (vi) The local community will have an opportunity to engage with the Irish Prison Service in relation to the specification for tender and some of the criteria in the specification would include such things as the maximum height of the facility, and the limiting of any environmental impact. (vii) two thirds of the outer boundary had been planted with trees and more work would be done in this regard over the year ahead. (viii) statutory consultation would begin when plans were in place - the end of Summer, perhaps June or July. [This time anticipation was very optimistic as the undisputed evidence of Mr. Boyle at the hearing of the action was that as yet there was no final design for the prison - there is an outline design for the prison which as of July 2007 was and is the subject of detailed negotiations with the commercial entities involved (T3 p176/7 Q141). As of July 2007 the design stage is evolving (T2 p190 Q212). It is accepted that when a design is chosen that there will be public consultation and an Environmental Impact Assessment (T3 p177 Q146). Mr. Boyle's evidence was that it was hoped - if it was possible - in the next few months to commence the planning process under Part 4 of the Prisons Act (T3 p178 Q149). [This evidence was not challenged in cross-examination and I find the facts to be in accordance with this evidence]. (ix) the Minister said he was committed to proceed with his plans and would engage in due course with "anyone who wants to engage with us."
I am satisfied and find as a fact that at no stage of events relevant to the proceedings was it ever suggested by the Defendants or any of them or their advisors that the building or replacement of the CMH on whatever part of the Thornton site it may be located would be exempt or free from the requirements of the Planning Acts. Furthermore I am satisfied and find as a fact that there were different locations within the site considered at different times and the relevant acreages differed from 20 acres to 17.5 acres. Furthermore that the possible building of the to be relocated CMH is nowhere near the design stage (T2 p164 Q84 L8-9), and that planning permission will be sought at that stage (T2 p168 Q109 L22-23). Not withstanding that the Plaintiff sought and obtained discovery and that the additional witnesses were called and available to be cross-examined as to the intended location of the to be relocated CMH - when such a witness (Mr. Lynch) was called it was the Defendant's Counsel who introduced a map that earmarked the location of the site (T2 p163-164 Q82-84). The matter, if of moment or concern, was not the subject of any cross-examination by the Plaintiff. The Plaintiff in paragraph (9) of his affidavit seeks in some way to explain delay by stating that the mere introduction of a Bill into the Oireachtas has no legal effect. This however is to avoid the fact that the prison project was real, stated to be of great concern to the Plaintiff and other local residents. Whatever shortcomings may have attended the Freedom of Information Act enquiries, the business of the Oireachtas in legislative matters is in the public domain. I am satisfied and find as a fact on the undisputed evidence set out in paragraph (11) of the affidavit of James Martin sworn on the 20th June 2007 that -
Paragraph (10) of the Plaintiff's affidavit of 4th July 2007 was ultimately relied upon by Mr. Travers, Counsel for the Plaintiff, as both explaining the delay and providing good reasons for the delay in bringing the proceedings. While appreciating the personal circumstances of the Plaintiff and his stated reluctance to take these proceedings and apprehension about the intended development of the prison project, nonetheless if he was as shocked as he avers he was on 26th January 2005 on hearing the 1 o'clock news that day and later receiving the letter of the 27th January 2005, I think it not unreasonable that he should have acted promptly to challenge a decision with which he so profoundly and seriously disagreed and to which he was, on his own evidence, opposed and which had caused him fear shock and "obliged to shield his family from its extent as to the devastation which the proposed project was likely to inflict on us all" (paragraph (12) of the Plaintiff's affidavit sworn on 16th April 2007). In my judgment not only did he not act promptly, but he did not act within time. He engaged, as was his entitlement, with his neighbours directly or indirectly in various residents groups or meetings. Mr. Merne brought his proceedings within three months of the January notification - that he acted independently of the Plaintiff in this action and sought some like reliefs as the Plaintiff in the instant case touching upon Directives 85/337/EEC (as amended) and 2001/42/EC is not the issue here considered. The fact is that Mr. Merne acted within time, the Plaintiff could have done likewise but chose another route. The issue of delay in bringing the proceedings and in prosecuting was raised both in the defence, at the interlocutory hearing in June and at the hearing earlier this month in July. Both parties expressed a sense of urgency in having the issues in the action determined with expedition. The procedural delays in the action in bringing a motion for interlocutory injunction between the Plenary Summons of 20th February and Notice of Motion 16th April i.e. two months, and again before delivering a Statement of Claim on 28th May another six weeks later does not in my judgment show any commitment to urgency. The disposition of the Plaintiff to any delay that might result from the grant of injunctive relief to the Plaintiff was expressed as follows at the interlocutory hearing as follows:
In the overall context of the opposition of some local residents to the building of the prison, exception was taken by Mr. Merne in his affidavit sworn on 4th July 2007 at paragraph (2) to the purported inference that he and Mr. Kavanagh were "serial litigants". The context of the concern which is not an issue in the case was of "serial litigation" [T 15/6/07 p80/81] and quite emphatically did not suggest that the Plaintiff was a "serial litigant". [T 15/6/07 p139 L8-9] The Plaintiff in his presentation of the facts and during the course of his deliberations or submissions concerning the Directives referred on numerous occasions to screening. There is a distinction between the screening of the site by trees and the screening as put by the Plaintiff of an application for some form of consent. The Plaintiff was making an assumption that no screening of the projects, plans or programmes took place. [T2 p47 L5/6] There was no evidence one way or the other as to whether it occurred and when the witness was called who might have dealt with this no question of screening was ever put to such witness. Other than the NDP which was published in January 2007, which I found to be a financial and budgetary programme or framework to which Directive 2001/42/EC has no application by reason of Article 3.8 thereof, the Plaintiff is out of time in raising the challenges he makes in these proceedings. Notwithstanding that this issue of delay or failing to act promptly or being otherwise statute barred being pleaded in the defence, and the affidavits referable to the interlocutory application, and before and specifically in relation to a Motion brought by the Defendants in this regard, no case law was advanced in support or to assist the Court on the Plaintiff's behalf in coming to a view that the Plaintiff ought to be excused for such delay as has occurred. On the other hand Mr. Connolly SC on behalf of the Defendants did (as he had already signaled in earlier documentation i.e. his legal submissions at the time of the interlocutory application and during this hearing) relied on a number of cases he submitted should inform the Court in approaching this issue. In particular he relied on the authority of O'Donnell -V- Dun Laoghaire Corporation [1991] ILRM 301 by Costello J (as he then was) that the time limits applicable for judicial review remained applicable to actions commenced by plenary summons in a given context. In particular Costello J stated at p314 as follows:
Furthermore he noted that although an aggrieved Plaintiff may be able to establish a reasonable explanation for the delay, the Court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights, (State (Cussen) -v- Brennan [1981] IR181), or again the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would be a good reason for extending the time or a Plaintiff may acquiesce in the situation arising from ultra vires decisions he later challenges, or the delay may have amounted to a waiver of his right to challenge it and so the Court could not conclude that there were good reasons for excusing the delay in instituting the proceedings. The principles were again reiterated and considered in DeRóiste -v- Minister for Defence [2001] 1 IR 190 where the Supreme Court held that in analysing the facts of a case to determine if there was no good reason to extend time or to allow judicial review, the Court may take into account the following factors:
2. The conduct of the Applicant. 3. The conduct of the Respondents.
5. Any effect which may have taken place on third parties by the order to be reviewed. 6. Public policy that proceedings relating to the public law domain take place promptly except when good reason is furnished.
The matter was also considered by Barr J in Solan -v- DPP [1989] ILRM 491 when it was held that:
The issue to be determined is the date upon which time started to run and the chronology earlier referred to in this judgment is in point. The inclusion of the prison project in particular (and to a lesser extent the CMH) are projects in the NDP but this does not affect the question of the 'clock beginning to tick' to use Mr. Connolly's analogy. More recently in the unreported decision of 7 March 2003 Kearns J in Sloan -v- Louth County Council considered the question of delay in the context of judicial review and on page 18 of the transcript of his judgment observed said as follows.
Kearns J concluded as follows:
In my judgment the Courts should no more fail to protect the weak against the strong and to ensure that they are no less favourably treated in having their cases heard and determined with the same urgency as large commercial cases, then that they must be acute to ensure that they and their procedures are not used or permitted to be used to unfairly frustrate or delay the legitimate objective of the implementation of large infrastructural projects required as a matter of public policy as ascertained by the legislature or the several bodies to whom or which the implementation of such projects is entrusted. To fail to maintain such balance is to favour in one instance, the rich, and the other those who, however honestly and sincerely object to the implementation of such projects against those, many of whom may also be financially or economically weak, whose own taxes are as a matter of probability being applied directly or indirectly to remedy a deficiency perceived to exist by the legislature or the body responsible under the law for the works for public benefit. In the instant case I am quite satisfied that there has been inordinate and inexcusable delay in respect of which no good sufficient or substantial reasonable explanation has been tendered to the Court. In my judgment the Plaintiff's case can be dismissed on the grounds of delay alone. I think in fairness and deference to the submissions of the parties and for the sake of completeness I intend to proceed further. I bear in mind particularly the decision of the High and Supreme Court in Mulcreevy -v- Minister for Environment, Heritage and Local Government and Dún Laoghaire Rathdown County Council [2004] 1IR 72 and while accepting that the provisions of Part 4 of the Prisons Act differ considerably than the matters therein the subject of consideration, I nonetheless harken onto the underlying concern of the Supreme Court, that to leave such matters unexamined may not do justice to all the parties in a given set of circumstances. 23 7. The EU Directives The Plaintiff's submissions were that the case begins and ends with the ongoing breaches by the Defendants of their obligations under European Community Law. The Plaintiff, inter alia, contested the compatibility with EC law, and in particular Directive 2001/42/EC of the European Parliament and of the Council of 27th June 2001 on the assessment of the effects of certain plans and programmes on the environment, and Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, of a series of decisions of the Government of Ireland and/or of the Minister for Justice, Equality and Law Reform and Health and Children to proceed to develop opposite the Plaintiff's family home, at Thornton Hall, Kilsallaghan, County Dublin, a prison project and a relocated CMH for the State without carrying out a prior Strategic Environmental Assessment (SEA) or an Environmental Impact Assessment (EIA) in accordance with the requirements of the Directives aforesaid. The Plaintiff at the outset of his submissions under this general heading invited the Court to refer certain questions prepared in advance by the Plaintiff to the European Court for decision. In my judgment it is quite unnecessary to take this course, notwithstanding that it is discretionary in that (a) the matter can be determined reasonably without resort to such a referral and furthermore there is an appeal directly to the Supreme Court (with its own body of expertise and experience of the European Court of Justice). I think it unnecessary to recite in this judgment the provisions of the Treaty which obligates States to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty, with a high level of protection and improvement in the quality of the environment that is the desideratum of the Treaty. Council Directive 2001/42/EC ("the SEA Directive"). Recital (1) Provides that:-
Article 2 draws a distinction between "plans and programmes" in the ordinary meaning of the words and plans and programmes "for the purpose of the Directive. In other words "plans and programme" (in the ordinary sense) must possess certain characteristics if they are to constitute "plans and programmes" (in the Directive sense). The European Commission has provided guidelines (and they are no more) on the implementation of the Directive. Paragraph 3.3 of the Guidelines suggest that "the name alone ('plan', 'programme', 'strategy', 'guidelines', etc.) will not be a sufficiently reliable guide: Documents having all of the characteristics of a plan or programme as defined in the Directive may be found under a variety of names. Furthermore in the Directive itself Article 13 in dealing with the implementation of the Directive notes specifically in Article 13.1 as follows:-
The provision in paragraph 3.25 of its Guidelines (which are not binding but are a reasonable pointer as to how in practical terms the Directive may be viewed) provides as follows:-
In my judgment the mere provision of the funding envisaged by the NDP is indicative of how an activity could be financed. It in no way seeks to set a framework as to what decision or decisions should be made by the appropriate authority or authorities in relation to the actual proposal or project to be so funded. Most development carried out under a planning permission or development consent has environmental effects. What the Directive is concerned about is a significant environmental affects and in that context Member States are afforded due latitude to make a determination as to what plans or programme (if such they be) are likely to have significant environmental affects and to make such provision in their legislative or in regulatory framework to deal with such. I am satisfied as a matter of fact and as of law that none of the impugned decisions are in fact "required by legislative regulatory or administrative provision." Even if the impugned decisions were as contended for by the Plaintiff as "plans and programmes" for the purpose of the Directive a question arises as to whether they require Strategic Environmental Assessment and in this regard the provisions of Article 1 and the provisions of Article 3(1) and (2) are apposite. With regard to those matters set out in Article 3.3(2)(a) the Plaintiff relies on the reference in Article 3(2)(a) to "town and country planning or land use". In my judgment this is to do violence to the language of the Directive for in no sense can the decision to acquire the lands for the purpose of building a prison or CMH or the NDP constitute a plan or programme prepared for "town and country planning or land use". A policy decision to build something in an urban or rural location does not amount to a plan or programme as contended for correctly in my judgment by the Defendant and I am prepared to accept that submission. A policy decision to use a piece of land in a particular way does not amount to a plan or programme prepared for "land use". Use of the expressions "town and country planning or lands use" are more applicable to the Planning Acts and the zoning of land or the laying out of towns or the preparation of a draft development plan or of a development plan itself. The Defendants submitted that the phrases "town and country planning" and "land use" refer to what is generally termed in Ireland as "planning". They do not comprise individual decisions relating to specific projects. If it was intended to cover matters such as these there would be no reason at all to confine the Directive to "authorities". It would have equal application to private projects, as Directive 85/337 does. I am satisfied that the NDP comes within the exemption provided for by Article 3(8) of the Directive that it has a budgetary or financial plan and sets out no environmental criteria as to what types of development are permissible within the general community. Some reliance is placed by the Plaintiff to the specific reference at page 48 to "the new prison complex at Thornton in North County Dublin" but it is to be emphasised that this is mentioned in a context where what is being discussed is capital investment not environmental considerations. I am satisfied that the NDP does not require a Strategic Environmental Assessment under the above Directive as:-
(c) It does not set the framework for future development consent. The Plaintiff laid considerable emphasis on the provisions of Article 4.1 of the Directive which provides that:-
Section 20 provides that:-
The contents of the notice are provided for in section 21, and section 22 obligates the Minister to make copies of the documents mentioned in section 19 available to any interested party in written form or electronically. That being done the Minister is then obliged under section 23 to appointment a rapporteur to receive written submissions or observations in relation to the development from interested parties. The rapporteur may only take account of written submissions or observations which are received within the period of six weeks provided for in the section. The obligation is then upon the rapporteur to prepare a report on the basis of those submissions and that report shall then be submitted to the Minister, who shall arrange for it to be published. If it is intended that there are to be substantive amendments by the Minister to the development section 24 takes care of this eventuality. Then the same safeguards as earlier provided for in sections 19 to 21 are to be followed in such event. In the consideration of that adjustment or amendment or alteration the rapporteur shall prepare a supplementary report on the basis of the written submissions or observations received within the given period. Again the rapporteur shall submit a report to the Minister who shall arrange to have it published. The Minister shall then have regard under the provision by virtue of section 25 to:-
(b) any supplementary Environmental Impact Assessment and supplementary report However, the Minister if he decides to proceed with the development he shall move a draft resolution in both Houses of the Oireachtas containing given information as provided for in Section 26(1). However, before moving the draft resolution the Minister must cause a number of documents to be laid before each Houses of the Oireachtas. They include the following:-
(ii) its land use requirements during the construction and operational phases
(c) visual representation of the exterior of the completed development; (d) the report and any supplementary report of the Rapporteur.
Directive 85/337/EEC 2 The Plaintiff's submissions centre on the suggestion that the proposed prison and proposed CMH constitute "urban development projects" for the purpose of annex 2 of the Directive, and that the development consent has in fact already been given. The Plaintiff prays in aid Directive 2000/60/EEC (the Water Framework Directive) and Directive 80/68/EEC (the Groundwater Directive) in support of a suggestion that an EIA is required as pleaded in paragraphs 90 and 91 of the Statement of Claim. The submission of the Defendants is quite simple and concise and it is that the Directive does not apply by virtue of the provisions of Article 1(5) thereof which provides that the Directive:-
The Defendants properly concedes that the Oireachtas will be the ultimate determining body that will grant the 'development consent' to the prison and that in relation to the CMH it is accepted that it will require planning permission in due course, and that if an Environmental Impact Assessment is required it will be done in the course of the planning process. The Plaintiff submitted that the works carried out to date are an infringement of the Directives and specifically that there was an obligation in the light of the first recital to this Directive (1985) that the works carried out to date of an exploratory nature and those pertaining to the screening of the site from the surrounding area amount to development such as required an environmental assessment, accordingly the Defendants had failed to do so "at the earliest possible date". The timing of an EIA (if such is or was required) has been determined by the Supreme Court in Martin -V- An Bord Pleanála (unreported) 10th May 2007 and is very succinctly put in the following terms:-
In the course of argument the Plaintiff sought to expand on the extent to which the meaning of the words in annex 2 could be given and I am satisfied that in the context which such expressions as the installation of the disposal of waste (projects not included in annex 1) and waste water treatment plants (projects not included in annex 1) and sludge - deposition sites and car parks are all referable to specific purposes. Such car parks are as provided or to be provided in the prison project are ancillary and incidental to the institutional use and not in an urban area or part of an urban development, and even if they were, they are not public car parks to the extent that members of public coming and going to the prison may have the use of them unregulated by the prison authority. They have specifically delimited use to the institutional use, and not to any form of private or commercial use. The Plaintiff's submissions is that there is a combined plan made up of three stages. Stage one is the decision of 30th November 2004 to close Mountjoy and acquire a property elsewhere for the relocation of the prison, stage two the decision to purchase on the 26th January 2005 Thornton Hall, and stage three the decision on 16th May 2006 to relocate the CMH to part of the Thornton site. In my judgment while these are interrelated in a colloquial sense they are not "the plan or programme" envisaged by the Directive which is to be submitted for a "development consent". The development consent that is envisaged by Article 1 of the 85 Directive is quite clear and it is a decision of the competent authority or authorities which entitles the developer to proceed with the project. The Plaintiff also raises concerns about archaeology. However, the 2007 Acts specifically disapplies any provisions of the National Monument Legislation except for section 25 which purely provides for criminal sanctions for damages to artifacts and in this regard the Plaintiff would have to show that he has in some way damnified or apprehend damages to a specified artifact. In my judgment it is not sufficient for the Plaintiff simply to speculate that some damage may occur on the site to some artifact in order to be able to obtain for the Court the form of injunctive relief sought in this case. I have carefully considered case C-81/96 of the ECJ and in particular paragraphs 16, 17, 19, 20, 23, 24 and 28 thereof and case C-392/96 (the Commission of the European Communities -v- Ireland) and in particular paragraph 22, 26, 64 and 70 to 79 inclusive and case C-435/97 and in particular paragraphs 59 to 62 inclusive thereof, but remain unconvinced that there is any necessity for me to refer to the European Court of Justice any of the questions set out in the annex to the submissions of the Plaintiff's counsel. I have given particular attention to the decision of European Court of Justice in case 283/81 Sri Cilfit and Lanficio de Gavardo -v- Ministry of Health dealing with the obligation to seek a preliminary ruling of the court. I am of opinion that there is no warrant to submit the queries raised in the Annex to Plaintiff's submissions to the European court. In my judgment the Court cannot in many action be concerned with what may or may happen at some day or date in the future to the land or premises of Mountjoy prison and any additional land that may have been purchased adjacent to it, no more than it should be concerned what may or may not happen to the lands or buildings known as the CMH. These decisions are matters of policy or of a commercial character and are not ad rem to the issues in the instant case. Accordingly, I dismiss the Plaintiff's case in its entirety and order accordingly. |
