High Court of Ireland Decisions

Judgment Title: Sweetman -v- An Bord Pleanála & Ors

Neutral Citation: [2009] IEHC 174


High Court Record Number: 2009 99 JR

Date of Delivery: 03 April 2009

Court: High Court

BETWEEN

PETER SWEETMAN

JUDGMENT of Mr. Justice Kelly delivered on the 3rd day of April, 2009


These proceedings
On 28th November, 2008 the first named respondent (the Board) granted approval for the construction of the Galway City outer bypass scheme. That is a multimillion euro development which seeks to address the chronic traffic congestion in Galway City and its environs.

On 30th January, 2009 the applicant issued a notice of motion which seeks leave pursuant to s. 50 of the Planning and Development Act 2000, (as amended) to apply for judicial review of that decision of the Board.

If granted leave to apply for judicial review, the primary relief sought against the Board is an order of certiorari quashing its decision of 28th November, 2008.

The applicant also seeks leave to judicially review the remaining respondents (the State respondents) concerning Ireland’s alleged failure to give proper effect to Article 10a of Council Directive 2003/35/EC.

This judgment deals with the applicant’s claim to be entitled to discovery of certain documents as against the State respondents.


Article 10a
This Article was inserted in Council Directives 85/337/EEC and 96/61/EC by Directive 2003/35/EC. The Article reads as follows:-


“Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

Member States shall determine at what stage the decisions, acts or omissions may be challenged.

What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.

The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.”



The Reliefs Claimed
Six reliefs pertinent to Article 10a are claimed by the applicant. I set them out hereunder. I use the same numbering for them as is used in the statement required to ground the application for judicial review.

“(II) A declaration by way of an application for judicial review that the applicant has sufficient standing to maintain these proceedings under Irish Law including the provisions of section 50 of the Planning and Development Act, 2000 (as amended) and/or Article 10a of Council Directive 2003/35/EC.

(III) In the alternative, a declaration that the second named respondent has failed to implement the provisions of Article 10a of Council Directive 2003/35/EC in relation to the standing requirement required to maintain proceedings of an environmental law nature.

(IV) A declaration that the standard of review applied by the Irish High Court of the substantive legality and/or merits of a decision taken by An Bord Pleanála in relation to a priority natural habitat is to be in the nature of a heightened or anxious scrutiny.

(V) In the alternative, a declaration that the second named respondent has failed to implement the provisions of Council Directive 85/337/EEC, as amended, in relation to the standard of review required by the Irish Courts of decisions of an environmental law nature.

(VI) A declaration by way of application for judicial review that the applicant is entitled under Irish Law and/or the provisions of Council Directive 2003/35/EC including Article 10a to bring the within proceedings at a cost that is not prohibitive.

(VII) In the alternative, a declaration that the second named respondent has failed to implement the provisions of Council Directive 2003/35/EC in accordance with requirements (sic) of such Directive.”



The Grounds
Four grounds in all are relied upon by the applicant in support of his claim against the State respondents. I set them out using the same system of numbering as he uses in his statement grounding the application.

“(X) Article 10a 2003/35/EC sets out a number of matters that are required to ensure public participation in environmental decision making. These provisions include certain preconditions including, inter alia, that an individual show ‘sufficient interest’. Section 50 PDA 2000 (as amended) states that an applicant must have ‘substantial interest’. The Supreme Court in Harding v. An Bord Pleanála [2008] IEHC 27 has indicated that an applicant must show, inter alia, a ‘personal and peculiar interest’ in the matter. This is much (sic) higher threshold that is required by the Directive. The second named respondent has in those circumstances failed to ensure the full and proper implementation of the Directive in circumstances where the an (sic) applicant must meet a much higher threshold in the Irish Courts than is required by the Directive and is failing to ensure full public participation in environmental decision making.

(XI) In providing a merits review mechanism in the High Court which applies a very onerous standard the second named respondent has failed to properly implement 2003/35/EC. The applicant herein can only challenge the decision by way of an application for judicial review. The said application can only be taken in the High Court. The standard for a review of the merits of the decision means the applicant must be in a position to prove that the decision maker has gone temporarily and inexplicably mad. The standard applicable in practical terms and in law does not allow the High Court intervene with the decision except in the most extraordinary circumstances. Article 10a provides for a review of the substantive legality of the decision. The test applied by the High Court effectively rules out the type of review required by the Directive. Moreover, in order to appeal a decision of the High Court the applicant must be in a position to prove that the case raises a question of exceptional public importance. The cumulative effect of these obstacles is to preclude any meaningful review of the merits of the decision and in this case, in circumstances where there is no statutory appeal and/or review mechanism.

(XII) Whereas the standard of review in the High Court is primarily procedural in nature and given the absence of a statutory merits based appeal mechanism, the second named respondent has failed to ensure, in accordance with the Directive 2003/35/EC that the decision can be reviewed both on its substantive merits and procedural legality.

(XIII) Article 10a/2003/35/EC sets out a number of matters that are required to ensure public participation in environmental decision making. These provisions include provision of a review of environmental decision making that is not prohibitively expensive. The Directive does not limit these costs to administrative costs. One of the Directive’s primary aims is to ensure public participation in environmental decision making. In those circumstances, it is incumbent on the second named respondent to provide a mechanism through the courts or otherwise to allow the review of decisions at a greatly reduced cost to a member of public or of a non-governmental organisation. This is particularly so in circumstances where there is no appeal provided for in the statutory regime.”



The Discovery Application
As yet, the respondents have not filed any papers in opposition to the applicant’s claim. Indeed the time for so doing has not yet expired.

Nonetheless, the applicant has brought an application against the State respondents seeking discovery of three species of documents all of which relate to his Article 10a claims. It is, however, clear both from the replying affidavit filed and the submissions made that all of the applicant’s claims for such reliefs and the grounds relied upon will be controverted by the State respondents.


The Documents Sought
Three species of documents are sought. They are as follows:-


“1. Documentation regarding and evidencing the second and third named respondent’s implementation of the provisions of Article 10a of Council Directive 2003/35/EC requiring that the bringing of proceedings subject to such Directive not be prohibitively expensive, including documentation regarding and evidencing the second and third named respondent’s replies to the European Commission in response to formal letters of complaint from the European Commission and the reasoned opinion of the Commission concerning Ireland’s failure and/or inadequate implementation of the provisions of Article 10a of Council Directive 2003/35/EC.

2. Documentation regarding and evidencing the second and third named respondent’s implementation of the provisions of Article 10a of Council Directive 2003/35/EC requiring that there be a substantive review procedure of decisions the subject matter of the Directive, including documentation regarding and evidencing the second and third named respondent’s replies to the European Commission in response to formal letters of complaint from the European Commission and the reasoned opinion of the Commission concerning Ireland’s failure and/or inadequate implementation of the provisions of Article 10a of Council Directive 2003/35/EC.

3. Documentation regarding and evidencing the second and third named respondent’s implementation of the provisions of Article 10a of Council Directive 2003/35/EC requiring that there be a procedural review procedure of decisions the subject matter of the Directive, including documentation regarding and evidencing the second and third named respondent’s replies to the European Commission in response to formal letters of complaint from the European Commission and the reasoned opinion of the Commission concerning Ireland’s failure and/or inadequate implementation of the provisions of Article 10a of Council Directive 2003/35/EC.”


The applicant contends that these three species of documents are relevant to the issues which the court will have to decide on his complaints concerning Article 10a. He also asserts that it is necessary that he should have sight of these documents on discovery because they will afford him a litigious advantage in the conduct of his case.

The State respondents argue that the documents are neither relevant or necessary and, even if they are, they contend that they are covered by public immunity privilege and ought not to be disclosed.

In essence the applicant is seeking discovery of correspondence and other documents exchanged between Ireland and the Commission of the European Communities in respect of an alleged failure to implement adequately or at all the provisions of Council Directive 2003/35/EC.


Timing
Leave to apply for judicial review has not yet been obtained by the applicant. As the case is governed by the provisions of s. 50 of the Planning and Development Act 2000, as amended, such an application has to be made on notice to the relevant respondents and notice parties. In addition, a higher threshold has to be achieved than that which applies in what might be called ordinary judicial review. The hearing for leave takes place inter partes and if leave is granted then a second hearing is required.

These statutory provisions were introduced with a view to saving time and costs but experience has taught that in fact the opposite is the result. In an effort to achieve the statutory objective the practice has developed in the Commercial List to have what is in short hand called a “telescoped” hearing.

That hearing involves the application for leave being heard inter partes, and if leave is granted then the same judge on the same occasion proceeds to hear the substantive claim. The use of this procedure ensures that the same judge deals with the application for leave and the substantive hearing and does so sequentially. This avoids the mischief which can occur when the leave application takes place with a second hearing occurring, weeks or perhaps months, after the application for leave and very often by another judge.

When at an early stage in the life of the Commercial List I suggested this form of procedure it was readily acceded to, and it is invariably what now occurs in judicial review applications of this type which are dealt with in the Commercial List.

In the present case, the parties have agreed that the telescoped procedure should be utilised, thus ensuring a saving in time and costs.

Given that that is the procedure to be followed in the present case, the State respondents, sensibly, did not seek to raise any objection to the discovery application being considered on the basis that the court ought not to do so prior to leave being granted.


The Criteria
The discovery application is made pursuant to O. 31, r. 12 of the Rules of the Superior Courts.

The terms of that rule make it clear that discovery will only be ordered if the court is satisfied that the documents are (a) relevant to the issues in the proceedings and, (b) necessary for disposing fairly of the cause or matter or for saving costs.


Has the Test Been Met?
The applicant does not satisfy me that the documents which he seeks are either relevant or necessary to the issues which he raises concerning the implementation of Article 10a of the Directive.

The issues are largely legal ones and turn to a considerable extent to the interpretation of the provisions of s. 50 and 50(a) of the Planning and Development Act 2000, as amended.

In coming to this conclusion, I follow the views expressed by Clarke J. in respect of a similar application made by the same applicant in a case against the same respondent bearing record number [2006 No. 447 J.R.]. The judgment of Clarke J. was delivered on the 9th March, 2007.

One of the issues in that case was whether Ireland had properly transposed certain European Directives concerning the entitlement of persons to engage in public participation in planning and environmental matters into Irish law. The judge was considering an application for discovery which sought correspondence between the Irish authorities and European Union authorities in relation to what the applicant believed was a contention on the part of the relevant European authorities that Ireland was in breach of its obligations to transpose the Directive, together with the responses from Ireland to those contentions. As is clear, the documents sought were either identical or very similar to the species of documents which are sought by the applicant in the instant case.

Not merely were the documents identical or very similar, but so also were the arguments, both as to relevance and necessity. One particular argument which was repeated in the present case was that such documents might reveal an acceptance on the part of the State respondents of a failure to properly transpose the European obligations.

In dealing with the application, Clarke J. said this:-


“While the existence of such documents might be interesting from a general perspective and might indeed have some relevance to issues that might arise as between Ireland and the European Union, it does not seem to me that, even if there were a document which appeared to accept on the part of the Irish State that there had been a failure to transpose, that that matter would be admissible or relevant to the consideration which the court will have to give in these proceedings, which is the narrow question of whether, as a matter of law, based on a comparison of the Directive and the Irish measures which have been adopted to comply with the Directive, whether there has been a proper transposition.

As I pointed out in Arklow Holidays, in the not dissimilar circumstances that arose in the case of the Commission v. Ireland, the Court of Justice made clear that questions as to the adequacy of transposition are properly answered by comparing the relevant legal measures rather than considering the facts and considering the legal measures adopted by the country concerned in comparison with the obligations placed upon that country in the Directive.

That is an objective exercise to be carried out by courts of competent jurisdiction, including, in an appropriate case, the courts of the European Union if a reference is made.

The subjective views expressed by even eminent authorities within either the Commission or within the Member State concerned as to what their view is on that question are not matters which, in my view, could properly be taken into account by the court.

In those circumstances, it does not seem to me that the information sought could advance the plaintiff’s case or damage the defendant’s case, in that even if it were to transpire to be the case that there was information in the relevant documents which indicated a view expressed on the part of Ireland to the effect that there may have been a failure to properly transpose the Directives, that would not be a matter which ought properly influence the court in its decision as to whether, as a matter of law, there has been a proper transposition.

In those circumstances, it does not seem to me that the relevant documents meet the necessary test and, for those reasons, I would propose refusing the application for discovery.”


I find the reasoning and conclusion of Clarke J. wholly persuasive and as applicable in this case as it was in the case decided by that judge.

I therefore conclude that the applicant has not demonstrated that the documents sought are either relevant to the issues which the court will have to decide here or necessary for disposing fairly of this case or for saving costs.

That is sufficient to decide this application but, lest I am wrong in the conclusion which I have reached, I propose to deal with the second leg of objection which was raised by the State respondents.


Privilege
Even if the documents sought ought to be discovered (contrary to the conclusion which I have just reached) the State respondents contend that they ought not to be disclosed because they are protected from such disclosure by reason of public immunity confidentiality.

The documents sought arose in the context of both the pre-litigation procedure in Article 226 EC infringement proceedings and the procedure itself. The Commission delivered a reasoned opinion. It did so as a step in proceedings preliminary to the Commission bringing infringement proceedings against Ireland pursuant to Article 226. A reasoned opinion does not have any binding legal effect but it may lead to an action before the European Court of Justice. Documents exchanged between a Member State and the Commission are, it is argued, protected from disclosure by the public interest exemption laid down in European Law as interpreted and applied by the European Court of First Instance.

The documents sought relate to an alleged infringement of community law namely a failure to make proper transposition of Article 10a of Directive 85/337/EEC, as amended. The Commission brought an Article 226 action against Ireland after the exchange of pleadings and correspondence between the parties which was carried out in accordance with the rules of procedure of the Court of Justice. An opinion of Advocate General Kokott was handed down on 15th January, 2009 and the judgment of the European Court in those proceedings is awaited.

The applicant here seeks to discover the exchanges which took place between this State and the Commission but it is argued, they are protected from disclosure by reason of two decisions of a European Court.

The first is a decision of the European Court of First Instance in the case of World Wide Fund for Nature v. Commission of the European Communities C – 105/95. There that court said as follows:-


“63. In this regard, the court considers that the confidentiality which the Member States are entitled to expect of the Commission in such circumstances warrants, under the heading of protection of the public interest, a refusal of access to documents relating to investigations which may lead to an infringement procedure, even where a period of time has elapsed since the closure of the investigation.”

Subsequently, in the case of Petrie & Ors v. Commission of the European Community C – 191/99, that same court cited the paragraph which I have just quoted and said:-

“As the Court pointed out in paragraph 63 of its judgment in WWF, the Member States are entitled to expect the Commission to guarantee confidentiality during investigations which might lead to an infringement procedure. This requirement of confidentiality remains even after the matter has been brought before the Court of Justice, on the ground that it cannot be ruled out that the discussions between the Commission and the Member State in question regarding the latter's voluntary compliance with the Treaty requirements may continue during the court proceedings and up to the delivery of the judgment of the Court of Justice. The preservation of that objective, namely an amicable resolution of the dispute between the Commission and the Member State concerned before the Court of Justice has delivered judgment, justifies refusal of access to the letters of formal notice and reasoned opinions drawn up in connection with the Article 226 EC proceedings on the ground of protection of the public interest relating to inspections, investigations and court proceedings, which comes within the first category of exceptions in Decision 94/90.”

These quotations seem to me to establish as a matter of European Law (which must be given effect to in this jurisdiction) that documents of the type sought here enjoy a form of public interest confidentiality which preserves them from disclosure upon discovery.

Indeed the applicant’s counsel did not seek to argue to the contrary but made the point that this issue could only arise after an affidavit of discovery had been made in the conventional format scheduling a description of the relevant documents and asserting the claim of privilege at that juncture.

Whilst it is undoubtedly the case that that is the normal procedure which is followed, I see no reason why that should be so in the instant case. It is clear that the documents sought are protected from disclosure because they all fall within the protected category as identified by the European Court of First Instance. There is thus no point in additional costs and expense being incurred by going through the elaborate procedure of having an affidavit of discovery sworn with an individual identification of every document which falls within the relevant category.

I am of the view that in circumstances, such as the present, where the entire species of documents sought are clearly covered by the form of privilege from disclosure as in the present case, discovery should be refused without the necessity of requiring that elaborate and expensive procedure be followed.

Accordingly, I also refuse discovery on the basis that the documents attract public immunity privilege from disclosure as identified in the two decisions of the European Court of First Instance to which I have referred.


Disposal
The application for discovery is dismissed.