Ni Eili v. Environmental Protection Agency [1997] IEHC 79; [1997] 2 ILRM 458 (6th May, 1997)

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 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 , (8) and 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. 15. I am fortified in this view by the jurisprudence which has developed on the similar provisions contained in Section 82 (3)(B) of the Local Government (Planning and Development) Act, 1963 as amended by Section 19 (3) of the Local Government (Planning and Development) Act, 1992 . 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 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII