LEGAL SUBMISSIONS
(originally made to runway appeal oral hearing but resubmitted by UPROAR to T2 appeal)

These submissions have been prepared on behalf of Mr. Matt Harley. In this connection the submissions are confined to legal issues. For the purposes of efficiency all arguments both factual and legal made on behalf of the third party appellants are formally adopted and relied upon by Mr. Harley (see generally Harrington v An Bord Pleanala). It should also be noted that Mr. Harley has been an integral member of Portmarnock Community Association since its inception and indeed has made many representations to many different individuals and bodies on their behalf and on his own behalf.

These submissions deal with the relevant legal principals applicable to this appeal. They do so both by reference to EU law and national law. They also deal in particular with planning conditions.

The amended directive:

For the purposes of clarity it should be stated that when referring to the EIA Directive, reference is made to the Council Directive 85/337-EEC of the 27th of June 1985 on the assessment of the effects of certain public and private projects on the environment. This Directive has been amended on a number of occasions, and, in particular by Council Directive 97/11-EC and Directive 2003/35-EC of the European Parliament and of the Council of the 26th of May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice, Council Directive 85/337-EEC and 96/61-EC.

Further, a form of environmental assessment has been introduced for certain plans and programmes on the environment under Directive 2001/42-EC of the European Council and Parliament. The objective of the directive is to ensure that certain categories of projects which are likely to have significant effects on the environment should be subject to environmental impact prior to any decision being made to grant development consent. In Ireland the instrument implementing the above directives is The Planning and Development Act, 2000 (as amended) ('PDA 2000'). It is within the framework as set out by this legislative instrument that the EIA Directive is implemented in this Country.

Pursuant to those requirements the Dublin Airport Authority ('D.A.A.') have, as part of their planning application, prepared an environmental impact statement. Article 3 of the Directive provides that an EIA shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect effects of a project on the following factors:-

The member states should ensure that the developer compiles the information required having regard, inter alia, to current knowledge and method of assessment. Reference is made to the traffic modeling used by the DAA in this case.

Project splitting:

The proposal the subject of the appeal is an example of project splitting. It is not it is submitted an example of "pure" project splitting which generally refers to the break up of a development to ensure none of the individual projects are large enough to trigger the requirement for an EIS.

It is submitted that the development before the Board is a more subtle version of same ie there is a failure to identify correctly the entire project and as a result only a partial assessment is carried out. A good example of this approach is where a developer of a new power station would require peat extraction elsewhere but fails to include same in the application for permission. Of course if the assessment process is to be meaningful, then both aspects should be examined together. It is submitted that there is a more general requirement to measure the cumulative effects of a given project, taken in its entirety. It is submitted in this case that it is entirely artificial to suggest that separate applications for development consent being made in quick succession by the same body in the same location is not one project. It is precisely the type of approach that the directive seeks to avoid.

The Irish High Court in Arklow Holidays Limited v An Bord Pleanála has given some support for the above approach. Mr. Justice Clarke granted leave to apply for judicial review on the ground, inter alia, that An Bord Pleanála may have erred in failing to assess certain aspects of the proposed development. The project consisted of a wastewater treatment plant. The Inspector, and by inference, An Bord Pleanála, appeared to have taken the view that it was unnecessary to assess the impact of those aspects of the development outside the waste-water treatment plant itself. Clarke J. held that it was arguable, for the purpose of a leave application, that aspects of a project which themselves might not have impacts which would be significant, when taken on a cumulative basis and added to the impact of other aspects of the same project, might have significant environmental effects.

Most importantly however, the European Court of Justice in Commission v Spain (Case - 227/01) [2004] ECRI-8 253. The Spanish Government sought to break up a two hundred and fifty one long railway line between Valencia and Tarragona into a 13.2 kilometer section of railway. The European Court of Justice pointed out that were the Spanish Government to be allowed do this, the effectiveness of the directive could be seriously compromised, since the national authorities concerned would need only to split up long distance projects into successive shorter sections in order to exclude from the requirements of the directive both the project as a whole and the sections resulting from that division.

DESCRIPTION OF THE PROJECT.

As is obvious from the wording of the directive, the description should cover the directs effects and any indirect, secondary, cumulative, short, medium and long term, permanent and temporary, positive and negative effects of the project. The obligation extends to include the description of the proposed development, both to its construction and operational stages. Of much greater importance is the requirement to consider the effect of the proposed development in total on future developments. In this connection regard should be had to development objectives under the development plan. Mr. Justice O'Neill in his decision in O'Mahony v An Bord Pleanála [2005] IEHC 39 indicated that to ignore the likelihood of 'zoned development' would be a significant deficiency in an environmental impact statement and a failure to comply with the directive.

In that decision O'Neill J. considered that in circumstances where zoning on the land indicates that, within the lifetime of the development plan, development of a particular kind may take place, same should have been addressed in the environmental impact statement notwithstanding that there was no grant of permission in existence in relation to those lands.

ALTERNATIVES.

As is clear from Mr. Harley's submission the D.A.A. have signally failed to examine a proper alternative. They have, without any proper analysis, indicated that any alternative would be prohibitively expensive. They have come to this conclusion without proper analysis.

The D.A.A., owner of the lands the subject of the application, have not measured the effect of the development on what is a material and relevant asset, their own lands. They set the value of the land at nought. This is to totally ignore the opportunity cost value of the lands. The proposed development will significantly reduce the value of the lands. The D.A.A. have not measured the effect on lands they hold on behalf of the State.
The artificiality of the review of alternatives can be seen in the total absence of any cost benefit analysis of such an alternative. Indeed there is a total absence of cost benefit analysis in relation to both this application and its sister application, the one for the terminal. While the Board might take the view that the general economic benefits of the proposal fall outside its remit it cannot be gainsaid that the financial effect on both the subject site and the lands over which the planes will now fly is within its domain. The applicant has not properly measured the effects on the amenities of the appellants. The failure of the applicant to properly indicate by how much the land in Portmarnock and ST. Margarets will be devalued represents a significant breach in their statutory duties and goes to the adequacy of the EIS.

ADEQUACY OF ENVIRONMENTAL IMPACT STATEMENT.

Clearly the responsibility for the adequacy of environmental impact statement falls, or lies, with the planning bodies and on appeal to An Bord Pleanála. The Bord is under an obligation when it considers an environmental impact statement is non-compliant to seek further information in relation to same. In this connection the appellants evidence in relation to the DAA's failure to carry out a health impact assessment is noteworthy. That said the below comments are noted:

'In an imperfect world it is unrealistic counsel of perfection to expect that an Applicant's environmental statement will always contain the full information about the environmental impact of a project'. The regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient and make provision through the publicity and consultation process for any deficiencies to be identified so that the resulting environmental information provides the local planning authority with as full a picture as possible" R (on the application of Bluett) v Derbyshire County Council [2004] JPL 751.

While recognizing the above comments it is also the case that the Bord must ensure that full information is before it prior to making the relevant development consents. In this connection it must not, by way of conditions, require agreement in advance of development of certain matters relating to matters of environmental concern. For example, the Bord are not in a position to leave over to another day the question of the effect of traffic and or, for example, the effect of emissions arising either from traffic and or the increase in the number of flights arriving in and leaving Dublin Airport. All relevant matters must before the Board.

STANDARD OF REVIEW.

While not a matter to be dealt with necessarily by the Board, and or the Inspector, out of an abundance of caution and for the purposes of any possible applications for judicial review, it is submitted formally that the standard of review as outlined in both the English and Irish cases to date, more particularly in Kildare County Council v An Bord Pleanála [2006] IEHC 173 is not sufficient to meet the directive requirements under Article 10(a). In other words the test applied by the High Court when reviewing the merits of a decision of An Bord Pleanala is such a difficult one to overcome that is does not constitute a remedy as required under Article 10(a).

PLANNING CONDITIONS.

In general terms, and should planning permission be granted in this case, the conditions attaching thereto will be of significant importance to the Third Party Appellants herein. Of most concern to the Third Party Appellants is the potential hiving-off of environmental concerns to planning conditions. Of course in circumstances where the High Court has refused to enforce ambiguously worded conditions attaching to planning permissions, it is of grave concern to the Third Party Appellants that any conditions attaching to the planning permission are clear. In circumstances where certain matters have to be carried out, a timetable for same should be provided. It is further submitted that any further information required must be of minor detail only.

It is also submitted that potential mitigating factors contained by way of condition are not sufficient to make up for absences in the environmental impact statement. In other words, if the environmental impact statement is considered to be inadequate, then the application should be refused. It cannot be the case that the Applicant is allowed to make up the difference by way of a positive obligation attached to a grant of planning permission.

By definition conditions of this type are deferring consideration of certain matters until after the relevant development consent has been granted. The case of Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA civ 262 is authority for the proposition that it is not permissible to leave over questions which relate to either:-

This is so even if the proposed mitigation methods are a satisfactory way of dealing with the issue. The reason for this is that it allows the Applicant to leapfrog the democratic purpose of the consultation process (see generally R (on the application of Hereford Waste Watchers Limited) v Hereford Council (2005) EWHC 191 (admin). The rule of thumb is that if there is to be an environmental effect as a result of the development, then it is incumbent on the planning authority to await the results of the surveys before deciding whether to grant planning permission or not. The following quotation is illustrative:-

'Moreover it is clear from the comprehensive list of likely significant effects in paragraph 3, and the reference to mitigation measures in paragraph 2(d), that it is intended that in accordance with the objective of the directive, the information contained in the environmental statement should be both comprehensive and systematic, so that a decision to grant planning permission is taken 'in full knowledge' of the projects likely significant effects on the environment.

If consideration of some of the environmental impacts and mitigation measures is effectively postponed until the reserved matters stage, the decision to grant planning permission would have been taken with only a partial rather than a full knowledge of the projects likely significant effects on the environment. That is not to suggest that the full knowledge requires an environmental statement to contain every conceivable scrap of environmental information about a particular project. The directive and the assessment regulations require likely significant effects to be assessed. It would be for the local planning authority to decide whether a particular effect is significant or the decision to defer a description of a likely significant adverse effect and any measures to avoid, reduce or remedy it to a later stage would not be in accordance with the terms of Schedule 3, would conflict with the public's right to make an input into the environmental information and would therefore conflict with the underlying purpose of the directive.'

A further example of a planning permission being set aside on the basis that the development consent had been granted in the absence of sufficient information is found in R (on the application of Hereford Waste Watchers Limited) v Hereford Council (2005) EWHC 191 (admin). It is important to note that in order to avoid frustrating public consultation and participation, the Board should ensure that any condition attaching under section 34(5) of The Planning and Development Act, 2000 does not leave over too much agreement to be made between the local planning authority and the Applicant. In this connection regard should be had to Arklow Holidays Limited v An Bord Pleanála in which Mr. Justice Clarke suggested that if the prescribed criteria were impermissibly wide, it might well be argued that the public was excluded from appropriate consultation as required by the directive, in relation to the final determination of the matters subject to the conditions.

THE DECISION ITSELF.

It is submitted that under amended Article 9 of the directive the heretofore usually generic and perfunctory reasons for the decisions are no longer appropriate and would be inadequate. In this connection a more discursive decision will be required. It is expected that such decisions will have to make specific reference in specific terms to the principal concerns raised by the Third Party Appellants. In this connection regard should be had to Mulholland v An Bord Pleanála (No. 2) [2005] IEHC 306. More specifically, Article 9 requires that the decision itself be set out, not only the reasons but also the considerations underlying the decision.

DIRECT EFFECT

It should at all times be emphasized as stated by the House of Lords in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 by Lord Hoffman that 'The directly enforceable right of a citizen which is accorded by the directive is not merely a right to a fully informed decision on a substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the directive in which the public, however misguided or wrong-headed it is, is given an opportunity to express its opinion on the environmental issues.'

The extent that it was necessary to rely on such a statement is unsure in the circumstances where Article 10 specifically confers on qualified members of the public a right of access to review procedure before a court of law or another independent and impartial body. It follows of course as a corollary the creation of such a remedy that members of the public enjoy rights. Underpinning this entire submission is the fact that An Bord Pleanála, as an emanation of the State, is required, not only to apply National Law but of course European Law as well. In this regard An Bord Pleanála has a freestanding discretion to require the submission of an environmental impact statement.

It may also be the case that the Board has to disapply National Law so as to ensure compliance with the requirements of the directive. In this connection reliance by the Bord on the planning legislation while failing to properly measure the effect on the environment of the proposed development, is, it is submitted, incorrect. It is formally submitted that if either the Inspector or the Board fail to properly address legal points, either in the Inspector's report and laterally in the Bord's decision, they will have failed to meet their obligations under the directive.

OVERRIDING PRINCIPLE.

It is submitted that the overriding duty on the Bord is to examine the significant environmental effects at the earliest possible opportunity. It is only in circumstances where those effects are not identifiable until the time of any subsequent procedure relating to the implementing decision that this examination can be delayed or carried out in the course of that second procedure (see Wells R (on the application of Wells) v Secretary of State for Transport and Local Government and the Regions (Case C/201/02) [2004] ECR1-723). This case states in clear terms that an environmental impact assessment should be conducted at the earliest possible stage for identifying and assessing all the effects which the project may have.

ARTICLE 10(a).

As has been outlined to the hearing, Friends of the Curragh Environment Limited v An Bord Pleanála [unreported decision of the High Court, Kelly J. July 14th 2006] suggested that the provisions of Article 10(a) did not meet the criteria for direct effect. It is submitted that the fact of the terms of the directive found their origins in the Aarhus Convention, reinforces the case for an expansive interpretation to be given. It is further submitted that any residual ambiguity or lack of clarity can be easily resolved by way of interpretation by the Irish Courts or if necessary by a preliminary reference to the European Courts of Justice.

It is also submitted that An Bord Pleanála does not represent the review procedure for the purposes of Article 10(a). It is submitted that An Bord Pleanála is part of the public consultation process and does not carry out a review procedure for the purposes of Article 10(a). It is suggested that Article 10(a) requires a review procedure outside the actual planning process itself, in other words a review by the courts.

Nap Keeling B.L. Conor Gallagher B.L.
12 October 2006