The High Court judgment in Friends of the Irish Environment v. An Bord Pleanála (delivered in 2018 by Meenan J) decided that if a Section 5 referral is made by a third party, then the owners and occupiers of the lands must be identified and served with notice of the referral, and given an opportunity to make submissions in accordance with basic fair procedures.

Facts:

Friends of the Irish Environment (FIE) is a limited company, whose objectives include protection of the Irish environment. One of their primary concerns in recent years has been about peat extraction in Ireland. FIE maintains the position that certain peat extraction works are not exempted developments and therefore require planning permission.

To advance this position and in pursuit of its environmental objectives, FIE made a Section 5 referral to Westmeath County Council, seeking a determination as to whether the peat extraction activities at Lickny/Newcastle, Doon and Carlanstown in Westmeath were exempted development or not. They provided maps which outlined the three areas involved, but did not provide information about who the owners and/or occupiers were. Westmeath County Council referred the matter to An Bord Pleanála (the Board). The Board considered the referral and its Inspector's Report, and made the decision to dismiss it on procedural grounds under Section 138(1)(b). This provision gives the Board an absolute discretion to dismiss an appeal or referral due the nature of the appeal or referral. The Board reached this conclusion on the basis that the referral was not sufficiently particular or detailed enough for it to carry out its obligations. It identified the central weakness in the referral as being the absence of certainty in relation to who owned the land, with different parcels of land being held by multiple owners.

Outcome and key holdings:

FIE sought an order of certiorari quashing the Board's decision to dismiss its Section 5 referral. The High Court denied this relief and ruled in favour of the Board. In reaching this decision, it held as follows:

• In the exercise of its "absolute discretion" under Section138, the Board's decision must be rational, reasonable and within the legislative framework that enables the decision to be made. The Board's conduct had adhered to these principles.

• A determination that what was once exempted development is no longer exempt can have serious consequences for the owners/occupiers involved. As a result, basic fair procedures are incorporated into the Planning and Development Act 2000 (the Act), as amended, in order to ensure that those effected by such a determination have an opportunity to make observations or submissions. However, in order for the owners or occupiers to be afforded an opportunity to be heard, they must first be identified. This could not be done in the instant case.

• It would be unsafe for the Board to make such a Section 5 determination concerning the property rights of those involved, without these individuals/entities being identified and given an opportunity to make submissions.

Counsel for FIE argued that the problem concerning the identities of the owners and/or occupiers could have been overcome if the Board availed of Section 250(7) of the Act. This provision permits notice to be given to the relevant person(s) by putting it in an obvious and visible location on or near the land or the premises. Meenan J did not consider this to be a reasonable course of action for the Board to have to take, particularly in this case where the various folio maps showed myriad parcels of land subdivided into numerous lots, each with a potentially different occupier. This would require that a separate notice would have to be affixed for each lot.

As a consequence, Meenan J rejected FIE's challenge to the Board's decision to dismiss their referral.

The key take-away from this judgment is that where the Section 5 procedure is used, whether that context is peat extraction, grid connection works or in the commercial retail sphere, the owners must be identified, served with notice of the referral and given an opportunity to make submissions in accordance with basic fair procedures.

Download a copy of the Friends of the Irish Environment v. An Bord Pleanála High Court decision