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Ni Eili v. Environmental Protection Agency [1997] IEHC 79; [1997] 2 ILRM 458 (6th May, 1997)
THE
HIGH COURT
JUDICIAL
REVIEW
1997/58
J.R.
BETWEEN
ORLA
NI EILI
APPLICANT
AND
THE
ENVIRONMENTAL PROTECTION AGENCY
RESPONDENT
AND
ROCHE
(IRELAND) LIMITED
NOTICE
PARTY
JUDGMENT
of Mr. Justice Kelly delivered the 6th day of May, 1997
.
BACKGROUND
On
the 17th December, 1996 the Respondent, pursuant to the provisions of
Section
88 of the
Environmental Protection Agency Act, 1992 (the Act) granted a revised
licence to the Notice Party. The licence permitted that company to carry on
the following activities, namely, the manufacture of pharmaceutical products
and their intermediaries and the incineration of hazardous waste at
Clarecastle, Co. Clare, subject to certain conditions.
The
licence was issued under
Section 88(2) of
the Act. The granting of the licence
was preceded by the making of objections to the Respondent by a group called
the Clare Action Again Incineration, of which the Applicant was a member. The
Respondent, having received these objections, convened an oral hearing to deal
with them. This hearing was convened under
Section 86 of
the Act. It lasted
for four days and the Inspector prepared a written report on foot of it. The
group of which the Applicant was a member participated in the hearing. So also
did the Applicant herself in that capacity.
1. On
the 14th February, 1997 the Applicant obtained leave from Morris J. to seek
Judicial Review in respect of the licence of the 17th December, 1996. She was
permitted to seek -
"
(i)
An
Order of Certiorari quashing the decision of the Respondent dated the 17th day
of December 1996 to grant a licence under Part IV of the Environmental
Protection Agency Act, 1992 to operate an incinerator at Clarecastle, Co. Clare.
(ii)
A
Declaration that the said decision of the Respondent was unreasonable in law
and ultra vires the statutory powers of the Respondent.
(iii) A
Declaration that the failure of the Environmental Planning Agency
(sic)
to give a reasoned decision to support its grant of a licence was in breach of
its statutory duties under the Environmental Protection Act, 1992
(sic)
and constituted a breach of natural justice and constitutional fair procedures.
(iv)
A
Declaration that the failure of the Environmental Planning Agency
(sic)
to give a reasoned decision in support of its grant of a licenc
e
under
Part IV of the Environmental Protection Agency Act, 1992 constituted a
violation of the Applicant's constitutional right of access to the Courts.
(v)
A
Declaration that the oral hearing was not conducted in a judicial or impartial
manner.
(vi)
Such
further or other Order as the Court deems mete.
(vii) An
Order for costs".
2. The
grounds upon which she was given leave to seek the aforesaid reliefs were as
follows:-
"
(i)
The
Respondent's decision dated the 17th day of December 1996 to grant a licence
for the operation of an incinerator at Clarecastle, Co. Clare is unreasonable
in law and is not factually sustainable having regard to the evidence before
the Agency of the dangers to the environment arising from the potentially
harmful emissions from the incinerator and the fact that there was reasonable
ground for believing that such emissions could cause significant environmental
pollution and harmful effects to the health and safety of animals, including
human life, and plant life.
(ii)
The
Respondent is under a statutory duty to have regard to specific factors before
it exercises its discretion to grant or refuse a licence. The Respondent
therefore, acted ultra vires its powers under statute in purporting to grant a
licence under the Environmental Protection Act, 1992
(sic)
without having any due regard to these statutory requirements.
(iii) The
Respondent took irrelevant considerations into account when deciding to grant
the licence on hypothetical and unfinalised plans for the design and
construction of the incinerator. In the
circumstances
the decision to grant a licence was premature.
(iv)
In
failing to give the Applicant an opportunity to make representations based on
the form and design of the incinerator actually to be constructed, the
Respondent caused a breach of the rules of natural justice and in particular
the principle of audi alteram partem and the right to be heard.
(v)
In
failing to give a reasoned decision by reference to the statutory obligation of
the Respondent to have regard to certain specified factors to ground the grant
of a licence, the Respondent erred in law and acted ultra vires and/or the said
error appeared on the face of the record of the decision.
(vi)
The
Respondent is under a duty to have regard to the Report of the Inspector
prepared at the oral hearing of the application but only the Respondent has
authority under the Act to make a decision to grant or refuse a licence under
the Act. In failing to form an independent and reasoned decision the
Respondent abrogated its duties under the Act.
(vii) The
said Report was prepared by the Inspector who conducted the hearing, considered
the evidence of the experts, heard oral submissions and questioned the parties
whilst taking notes for the purpose of
preparing
his Report. In the circumstances the hearing was not conducted in a judicial
manner in that the Report of the Inspector did not provide sufficient detail to
permit a Court upon review to be able to ascertain the material upon which the
decision was reached nor did it provide sufficiently accurate evidence of what
transpired at the oral hearing to ground the Inspector's conclusions and
recommendations.
(viii) The
giving of oral evidence on behalf of Roche Ireland Ltd. creates the appearance
of non-independence and partially
(sic)
in the conduct of the oral hearing in that the expert was a former employee of
the Respondent herein and the Inspector was a current employee.
(ix)
The
failure of the Respondent to give a reasoned decision constitutes an erosion of
the Applicant's constitutional rights of access to the Court in circumstances
where an appeal from that decision must be
made
within two months of the making of the decision. The Respondent's decision to
grant a licence was therefore reached in breach of natural and constitutional
justice in that the Applicant is not given an adequate opportunity to assess
her legal rights in respect of the decision.
(x)
Such
further and other grounds as may be supplied in due course".
3. The
Order of Morris J. and the relevant documents were served on the Respondent and
the Notice Party. On the 9th April, 1997 a new firm of solicitors came on
record for the Applicant. Up to then she had been represented by Sharon
Callinan, a Solicitor attached to the Legal Aid Board Law Centre in Ennis. Her
present solicitors, Messrs Noonan, Lenihan and Carroll, came on record on that
date. On the same day a Notice of Motion seeking the reliefs permitted by
Morris J. was served and was listed before me on the 28th April, 1997 for
mention. On that day Counsel for the Applicant told me that he wished to apply
for leave to amend by expansion his grounds for seeking the Judicial Review.
He indicated that he wished to raise questions concerning the constitutionality
of certain provisions of the Act. I indicated that I would be prepared to
permit such an application to be made on notice to the Respondent and the
Notice Party and also to the Attorney General. As all the parties before the
Court on that date agreed that the matter was urgent, I decided that the motion
seeking such amendment should, in addition, be served on the Attorney General.
I did this so that I might have the benefit of the Attorney's views at that
stage so as to avoid the possibility of an application to set aside being made
by him subsequent to an order directing his joinder, if such were made. Such
an application to set aside would, of course, further delay the hearing of this
urgent matter.
4. On
foot of this leave a motion was issued and heard by me on Thursday and Friday
last, the 1st and 2nd May, 1997. The motion brought by the Applicant seeks the
following reliefs:-
"(a) An
Order pursuant to Order 84 of the Rules of the Superior Courts amending the
Statement Required to Ground Judicial Review filed herein on the 14th day of
February 1996.
(b) Such
further or other Orders as this Honourable Court shall deem mete and just.
(c) An
Order for costs".
5. The
amendments which are sought are as follows:-
"(d)(vi)(b)
A Declaration by way of an application for Judicial Review that Section 85 of
the Environmental Protection Agency Act, 1992 is repugnant to the Constitution
and consequently that the decision of the Environmental Protection Agency dated
the 17th day of December 1996 licensing the operation of an incinerator at
Clarecastle in Co. Clare, is void.
(d)(vi)(c)
A Declaration that Sections 83, 85(8) and 88 of the Environmental Protection
Agency Act, 1992 permitting the Environmental Protection Agency to award
licences which are non-justiciable and unreviewable after two months and before
three years after their date of issue, are unconstitutional and that
consequently the decision of the Environmental Protection Agency dated the 17th
day of December 1996 licensing the operation of an incinerator at Clarecastle
in Co. Clare is void".
6. The
grounds relied upon to support these two additional declarations which are
sought are as follows:-
"(xi) The
Environmental Protection Agency Act, 1992 fails to provide any process of
appeal from decisions of the Environmental Protection Agency and is therefore
in breach of natural and constitutional justice. Alternatively, any process
for review of decisions or of proposed decisions of the Environmental
Protection Agency provided by Section 85 of the Environmental Protection Agency
Act, 1992 is in breach of breach
(sic)
of natural and constitutional justice. In particular the provision made in the
said Section 85 for review by the Environmental Protection Agency of its own
proposed decision is in breach of the maxim
'nemo
judex in causa sua'
.
(xii) The
Environmental Protection Agency Act, 1992 does not provide any or any adequate
appeal from a decision of the EPA and limits to two months the period in which
a licence awarded by the EPA may be questioned. The finality of the decision
of the EPA and the time limit within which it may be questioned is in breach of
Article 34.1 and/or of Article 40.3.1 of the Constitution as the said Act would
prevent the Applicant or any other interested party from seeking a review of
the licence in Courts established by the Constitution in circumstances where it
emerged more than two months and before three years after the award of a
licence that a decision to award a licence was based on materially incorrect or
misleading information or where there had been a material change in
circumstances on which the decision was based or where other circumstances
might emerge indicating that the licence ought to be reviewed".
7. The
application seeking leave to amend was opposed by the Respondent, the Notice
Party and the Attorney General on a variety of grounds.
8. I
will turn to consider the validity of these objections presently but before
doing so, I ought to point out that there is no challenge being made to the two
months time period prescribed under Section 85(8) within which an application
for Judicial Review has to be made.
THE
LIMITATION OBJECTION
9. The
Applicant is opposed on the basis that her application is time-barred having
regard to the provisions of Section 85(8) of the Act. That subsection reads:-
"A
person shall not by any application for judicial review or in any other legal
proceedings whatsoever question the validity of a decision of the Agency to
grant or refuse a licence or revised licence, unless the proceedings are
instituted within the period of two months commencing on the date on which the
decision is given".
10. This
subsection is in absolute terms and does not permit of any extension of the two
month period which is prescribed. It is argued that to permit the amendments
which are sought would be to override the will of Parliament as expressed in
the subsection. If the amendments are permitted, they would allow the
Applicant to make an entirely new case in addition to that already allowed by
the Court and to do so far outside the permitted two month period.
11. The
Applicant, however, argues that the section should be construed strictly since
it imposes a very short time period for the commencement of proceedings and
thereafter renders access to the Courts to question the validity of the licence
impossible. Here, the Applicant instituted her proceedings within the
prescribed time. All she now seeks is an amendment to those proceedings.
12. It
cannot be denied but that the amendments sought by the Applicant amount to an
additional and entirely new case. The new grounds are very different to those
already advanced. They raise in effect a new cause of action. Can the
Applicant be permitted to do this by way of an amendment to her existing
proceedings?
13. In
my view she can not. To allow such a course would, in my opinion, run counter
to the will of Parliament as expressed in Section 85(8) of the Act.
14. All
statutory construction has as its object the discernment of the intention of
the legislature. What is the object of Section 85(8)? It seems to me that it
is (a) to require that proceedings which question the validity of a decision of
the respondent be instituted at an early date to ensure that uncertainty about
the decision be disposed of one way or the other in a timeous fashion; (b) to
make the beneficiary of such a decision and the respondent aware that the
validity of such decision is being questioned and the basis for such
questioning so that they may prepare their response to such proceedings
expeditiously. To permit of the amendment sought here would run counter to the
legislature's intent in this regard.
16. The
wording of these provisions is virtually identical to those in suit and provide
that an application for leave to apply for Judicial Review
"shall
be made within the period of two months commencing on the date on which the
decision is given"
.
In
KSK
Enterprises Limited v. An Bord Pleanala
[1994] 2 IR 128, Finlay C.J. said of these provisions:-
"The
general scheme of the subsection now inserted by the Act of 1992 is very firmly
and strictly to confine the possibility of judicial review in challenging or
impugning a planning decision either by a planning authority or by An Bord
Pleanala. The time limit which has already been mentioned is indicated as
being a very short time limit and it is an absolute prohibition against
proceeding outside it with no discretion vested in the Court to extend the time".
He
went on:-
"From
these provisions, it is clear that the intention of the legislature was greatly
to confine the opportunity of persons to impugn by way of judicial review
decisions made by the planning authorities and in particular one must assume
that it was intended that a person who has obtained a planning permission
should, at a very short interval after the date of such decision, in the
absence of a judicial review, be entirely legally protected against subsequent
challenge to the decision that was made and therefore presumably left in a
position to act with safety upon the basis of that decision".
In
Keane
v. An Bord Pleanala
(unreported 23rd May, 1995), Murphy J., then a Judge of the High Court, had to
consider in the context of the planning legislation the very question posed to
me on this application, namely, can the grounds of challenge be expanded beyond
the statutory time limit? He said:-
"It
seems to me that the application cannot be allowed or admitted. In the first
place the legislation requires that an application for judicial review of what
might loosely be termed planning matters must be brought within two months.
This is an extraordinarily brief time limit within which to bring the
proceedings. But to permit an amendment at a later stage, however well founded
the new ground might appear, seems to me to be impermissible.
I
think Counsel for the applicants might concede that this is so although in
certain circumstances they might challenge the constitutionality of such
provision. But I accept the argument made on behalf of the respondent that to
add any new grounds after the two month period is impermissible".
17. I
agree with these views of Murphy J. In my opinion the reasoning behind them
applies with equal force to the provisions of Section 85(8) of the Act.
18. I
am of the view that the Applicant cannot expand her challenge by seeking new
reliefs on new grounds outside the statutory time limit. To allow such a thing
to occur would run counter to the statute, negative its intent, and in effect
permit of no time bar at all in respect of the additional reliefs sought.
19. Lest
I am incorrect in these views, I will now consider whether, as a matter of
discretion, the Applicant should be permitted to adopt the course which she
seeks.
JUDICIAL
DISCRETION
20. If
the provisions of Section 85(8) are not rigid and do not fall to be construed
as I have just done, then the question of the amendment or more correctly the
enlargement of the grounds falls to be dealt with as does any other amendment
to proceedings; it is a matter of judicial discretion.
21. In
the present case I would not be prepared to allow the alteration as a matter of
discretion. In so deciding I have taken into account the following:-
1. The
Applicant has been fully au fait with the circumstances surrounding the grant
of this licence. She participated in the oral hearing which took place prior
to the decision which it is now sought to impugn.
2. Although
her legal representation has changed since the Order of Morris J., that in
itself is not a good reason to allow the alteration.
3. The
expansion sought is a major one and really involves an entirely new and
different relief to that already contended for. It is in effect a new cause of
action.
4. If
granted, the new reliefs would inevitably involve the joinder of an additional
party, namely, the Attorney General.
5. Even
if a rigid time limit of two months is not imposed by
the Act, nonetheless the
view of the legislature as to the desirability of such a period being adhered
to is of significance. Here four and a half months went by without these new
claims being advanced.
6. No
satisfactory explanation has been given for the failure to apply at the leave
stage for the reliefs now sought to be introduced. I do not consider any
disputes which the Applicant may have had with the Legal Aid Board subsequent
to the Order of Morris J. to be of any relevance in the regard.
7. The
new reliefs, by their very nature, can only fall for consideration when all the
other existing grounds have been adjudicated on and decided against the
Applicant. They are therefore discrete reliefs and their joinder now can only
give rise to additional cost and expense.
22. For
these reasons I would, in the exercise of my discretion, refuse to allow the
enlargement which is sought.
REMAINING
OBJECTIONS
23. In
the light of my decision to refuse this application on the grounds already
stated, it is neither necessary nor desirable that I should express my views on
the other questions which were canvassed before me.
24. I
therefore express no views on the Applicant's
locus standi
to mount these additional claims nor as to the arguability of the grounds which
have been advanced nor on the question of whether such questions are moot.
25. This
application is dismissed.
© 1997 Irish High Court
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