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Mr Justice Frank Clarke

An Bord Pleanála have been unsuccessful in appealing an order of certiorari granted by the High Court which quashed its decision to grant planning permission for a wind farm development in County Clare.

Finding that the permission granted should be quashed “on much narrower grounds” than those given in the High Court, Chief Justice Frank Clarke said that the “complete, precise and definitive” findings were a necessary pre-condition to An Bord Pleanála having jurisdiction to grant permission where it had been determined that an Appropriate Assessment was required.

Background

McMahon Finn Wind Acquisitions Ltd made an application for permission to develop a wind farm consisting of six turbines, which was refused by Clare County Council in July 2011.

The developer appealed against that refusal to An Bord Pleanála, which granted permission in May 2014.

Thereafter, local resident Kathleen Connelly brought judicial review proceedings challenging the decision of An Bord Pleanála.

High Court

Ms Connelly alleged that An Bord Pleanála failed to:

  1. Carry out and/or record any screening assessment for Appropriate Assessment (AA), contrary to national and European law,
  2. Carry out and/or record any proper AA under national and European law,
  3. Carry out and/or record any proper Environmental Impact Assessment (EIA) under national/European law, and
  4. Consider or have regard to its obligations under s.37(2) of the Planning and Development Act 2000.

In the High Court, Justice Barrett decided to quash the decision of the Board granting permission. Ms Connelly’s objection in relation to s.37(2) of the Planning and Development Act 2000 was rejected by the High Court, however in considering the other objections raised by Ms Connelly, Justice Barrett said that An Bord Pleanála relied on generic reasoning for its decision in breach of its duty. In this regard, Justice Barrett held that it was not acceptable for a public decision-making body to issue a decision which refers to “an ocean of material consulted or relied upon” in support of its decision “and to leave an affected party thereafter to fish in that ocean for what she might catch there of relevance…”.

Justice Barrett concluded that An Bord Pleanála, in reaching its decision, had breached its obligations regarding the recording of the screening assessment for the AA, the AA itself, and the EIA – as such, Justice Barrett said that the cumulative effect of these breaches gave rise to an order of certiorari.

Supreme Court

An Bord Pleanála appealed the decision of the High Court to the Supreme Court by way of a leapfrog appeal.

Mr Chief Justice Clarke observed that the obligation to give reasons for decisions varied enormously, and said that the requirement to give reasons was “not intended to, and cannot be met by, a form of box ticking”. In this regard, Mr Chief Justice Clarke said that there were three specific areas of law to address:

  1. The criteria by reference to which a court should assess whether the reasons given are adequate in any particular case;
  2. The identification of the documents or materials which can properly be considered for the purposes of identifying the reasoning of the decision maker as part of the process of determining whether adequate reasons have been given; and
  3. The potentially separate question of whether European Union law requires, either for the purposes of an EIA or, perhaps more clearly, for the purposes of an AA, that reasons require to be given in any particular form or, importantly, whether certain express scientific findings require to be made prior to a sustainable decision occurring.

Mr Chief Justice Clarke concluded that Justice Barrett “imposed too exacting a standard on the Board in respect of the obligation under national law to give reasons”. Reversing the decision of the High Court in this regard, Mr Chief Justice Clarke said that the reasons given were “…adequate to enable any interested party to know why the Decision, insofar as it relates to the development consent, went the way it did and to consider whether there was any legitimate basis for seeking to mount a challenge”.

Furthermore, Mr Chief Justice Clarke was satisfied that the Decision and any other materials “either expressly referred to in it or can be taken by necessary implication to form part of the reasoning, provide adequate information to enable any interested party to assess whether an appropriate EIA has been carried out”.

In respect of the AA however, Mr Chief Justice Clarke said that “neither the Decision itself nor any other materials which were expressly referred to in the Decision or must be taken by necessary implication to form part of the process leading to the ultimate determination of the Board, can be shown to contain the sort of complete, precise and definitive findings which would underpin a conclusion that no reasonable scientific doubt remained as to the absence of any identified potential detrimental effects on a protected site having regard to its conservation objectives”.

Finding that the permission granted by An Bord Pleanála should be quashed, Mr Chief Justice Clarke said that the “complete, precise and definitive” findings were a necessary pre-condition to An Bord Pleanála having jurisdiction to grant a development consent in a case where it is determined that an AA is required – and An Bord Pleanála failed to make the sort of findings which the jurisprudence of the CJEU requires to be made as part of a valid AA.

Emphasising that the Supreme Court’s decision to dismiss the appeal was made “on much narrower grounds” than those identified in the High Court, Justice Clarke said that his reasoning for quashing the decision of An Bord Pleanála was confined to the grounds related to the AA.

  • by Seosamh Gráinséir for Irish Legal News

Copyright © Irish Legal News Ltd 2018

The post Supreme Court: Permission granted by An Bord Pleanála to develop wind farm in Clare failed to provide sufficient reasoning appeared first on Irish Legal News.

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The Irish courts saw an increase in defamation and personal injury cases last year, amid a decline in divorce applications and possession orders.

Over 655,000 new matters were introduced to the courts last year in total, including a 16 per cent increase in new appeals to the Supreme Court.

The new figures are included in the Courts Service of Ireland’s annual report for 2017, presented to the Oireachtas yesterday.

Of the 655,000 matters, over 425,000 were criminal offences and over 228,000 were civil matters.

At High Court and Circuit Court level, there were increases in defamation and personal injury cases, and slight decreases in divorce and judicial separation applications.

After several years of increases, the number of possession orders made in both jurisdictions decreased.

At District Court level, there was a slight increase in applications under the domestic violence legislation.

Writing in the foreword, Mr Justice Frank Clarke, Chief Justice of Ireland and chair of the Board of the Courts Service, said: “These increases and decreases might well reflect changes in the law, or in the environment in which we conduct commerce or organise society.”

He also highlighted the challenges for the courts in dealing with appeals – of which substantially more were submitted last year than resolved – and in recruiting and retaining judicial assistants.

Justice Minister Charlie Flanagan said: “I know the courts remain extremely busy, but I am happy to note that, in general, across the system, waiting times have either been maintained or, reduced.

“I wish to commend both the judges and courts staff for all their efforts in this regard and of course, encourage everyone to continue working to bring about further improvements.”

The post Defamation and personal injury cases up in 2017 – divorce and possession orders down appeared first on Irish Legal News.

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The Chief Justice of Ireland, Mr Justice Frank Clarke, has called on parliamentarians to write laws with “greater clarity” on their meaning.

He issued the “cry” for clarity while speaking at the launch of the Courts Service of Ireland annual report yesterday, according to The Irish Times.

He said the intentions of legislators were often unclear, particularly in the areas of planning and environmental law.

Mr Chief Justice Clarke said: “The solution lies at least as much in the hands of legislators in producing greater clarity as it does in the courts and, from my perspective, lies even more on the legislative side.”

He warned that increasingly complex planning laws could trouble projects “which, even though they may successfully clear all hurdles at the end of the day, may suffer by being held up for too long”.

He emphasised that he was not criticising the content of laws, which is “not a judge’s business”, but issuing “a cry for clearer legislation which will make the resolution of litigation easier and therefore quicker”.

The post Chief Justice: Laws need to be written with ‘greater clarity’ appeared first on Irish Legal News.

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The partners at Cork firm McCullagh Wall Solicitors have gone separate ways and established two new law firms, Harry McCullagh Solicitors and Regan Wall Solicitors.

Harry McCullagh, who founded and managed his own practice prior to setting up McCullagh Wall with Adrian Wall, is continuing to practice from the now-defunct firm’s Douglas offices.

Mr McCullagh’s practice has an emphasis on property, litigation and private client work.

Meanwhile, Mr Wall has launched Cork’s first dedicated corporate law firm alongside his associate Kieran Regan. The new Regan Wall Solicitors is practising from new offices on the South Mall, Cork City.

In a statement published online, Mr McCullagh and Mr Wall said: “There will be no disruption to our valued clients, with both firms co-operating in the ongoing provision of legal services.

“We would like to thank our clients for their continued support and look forward to working with you across the two new firms.”

The post McCullagh Wall Solicitors splits into two firms appeared first on Irish Legal News.

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Justice Minister Charlie Flanagan

Justice Minister Charlie Flanagan has published legislation to repeal the offence of publication or utterance of blasphemous matter from Article 40 of the Constitution.

The Thirty-seventh Amendment of the Constitution Bill 2018 will be debated in the Oireachtas in September and it is intended that the referendum will take place in October.

Mr Flanagan said: “Successive reports, most recently, the Sixth Report of the Constitutional Convention, have recommended that the offence of blasphemy be removed from our Constitution.

“Its removal will bring us into line with internationally accepted norms and will re-affirm the message that we are a tolerant and pluralist society where freedom of expression is valued and important.”

The minister also said hoped that debate around the referendum “will be conducted in a calm and inclusive manner” and that he does “not believe that this matter is especially controversial”.

The post Flanagan publishes legislation for repeal of constitutional ban on blasphemy appeared first on Irish Legal News.

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Karen Bradley

Northern Ireland Secretary Karen Bradley has set out plans to legislate for key public appointments if the Northern Ireland Executive is not restored by the autumn.

The minister has instructed officials to work on legislation allowing UK government ministers to make appointments to the Northern Ireland Judicial Appointments Commission (NIJAC), the Northern Ireland Policing Board and the Probation Board for Northern Ireland.

The Policing Board has not been properly constituted since the 2017 Assembly election, as it has not had the political members it requires.

NIJAC has fallen to a “very low membership”, particularly in its legal and judicial representation, affecting its capacity to operate.

The Probation Board’s entire membership will expire in November unless new appointments are made.

Commenting today, Ms Bradley (pictured) said: “The UK government’s priority is to restore the devolved institutions at Stormont.

“In the meantime, I have been clear that I will continue to take any urgent and necessary action to protect good governance and the delivery of public services in Northern Ireland.

“I hope that an accommodation can be reached and an Executive formed so that Northern Ireland Ministers can make these important appointments in the autumn. If not, I am prepared to bring forward legislation to enable these appointments to be made to ensure that these bodies can continue their vital work.”

The post Westminster to legislate for key judicial, policing and probation appointments appeared first on Irish Legal News.

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Lady Hale

The text of Lady Hale’s speech delivered in Edinburgh in June has been published.

The speech, Devolution and the Supreme Court – 20 years On, was delivered at the Scottish Public Law Group 2018 in the Signet Library last month.

Lady Hale looks at the different models of devolution adopted by Northern Ireland, Scotland and Wales.

Referring to the Miller case, the judge notes that the Supreme Court held that the consent of the devolved legislatures was not required.

“Basically, as had been held years ago by the Privy Council in Madzimbamuto v Lardner-Burke, constitutional conventions are not law in the usual sense. Hence, the policing of the scope of the Sewel convention and the manner of its operation did not lie within the constitutional remit of the judiciary which is to protect the rule of law (para 151).”

On the UK’s constitutional arrangement she says: “I think that the only conclusion I can draw is that devolution of legislative- as opposed to executive – power turns the United Kingdom Supreme Court into a genuinely constitutional court. As members of the Judicial Committee of the Privy Council, we were familiar with this role in the context of the Commonwealth Constitutions with which we have to deal. But there are some special features to UK devolution which are different – not least because the UK Parliament retains, in theory at least, its full legislative competence. But we have now had sufficient experience of devolution cases to have worked out some principles which operate reasonably consistently across the different parts of the United Kingdom despite the different models adopted. Hopefully, these do not now cause too much discontent within the devolved jurisdictions. Indeed, it could be that it is within the different regions of England that more discontent may be felt, but that’s another question.”

The post Models of devolution subject of Lady Hale speech appeared first on Irish Legal News.

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Legal changes aimed at criminalising assistance to irregular migrants – meant to deter human trafficking – must not imperil human rights, the Council of Bars and Law Societies of Europe (CCBE) has said.

The CCBE said in a statement that it “wishes to express its utmost concern regarding the restrictions on human rights and rights of the defence which may arise from such legislative initiatives”.

It mentions that Article 18 of the EU Charter of Fundamental Rights enshrines the right to asylum as a fundamental right in EU law. Furthermore, Article 47 of the EU Charter guarantees the right to an effective remedy and effective access to justice, and Article 48 also guarantees the presumption of innocence and the right of defence as principles of EU law.

The statement adds: “Accordingly, restrictions imposed by national law on the activities of lawyers in the field of migration must always comply with these basic rights. Similar to humanitarian aid, activities of lawyers providing legal assistance cannot be criminalised. Access to justice is a fundamental right protected by the European Convention on Human Rights and is considered as one of the main pillars of the rule of law.”

Under EU law, the CCBE noted, no legislation can be adopted, interpreted or applied in such a way as to limit the possibility for a lawyer to provide legal assistance to any client, regardless of their origin or the way in which they entered the territory of the Union.

As a result of the legal changes, the LIBE Committee of the European Parliament has just proposed a draft resolution to prevent humanitarian aid from being considered a criminal offence.

The post European legal bodies group warns against criminalisation of assistance to irregular migrants appeared first on Irish Legal News.

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Gideon Benaim

British singer Sir Cliff Richard has won a major privacy lawsuit against the BBC over its coverage of a police investigation into him.

Mr Justice Mann, sitting in the High Court in London, awarded £210,000 in damages, one of the largest-ever sums in this area of law.

Sir Cliff was represented by Gideon Benaim, partner and head of reputation protection at London-based Simkins, who led a team including fellow partner Jon Oakley, associate Jessica Welch and trainee Thomas Moore.

Sir Cliff claimed that the BBC and the South Yorkshire Police (SYP) had violated his rights both in privacy and under the Data Protection Act 1998, which had “radically affected” his life and finances.

Mr Justice Mann held the BBC and SYP partly liable for part of the damages. Of the first £190,000 in damages, the BBC must pay 65 per cent and the SYP must pay 35 per cent. The remaining £20,000 in aggravated damages must be paid by the BBC alone.

SYP had already agreed to pay Sir Cliff £400,000 as part of an earlier settlement with him, Mr Justice Mann noted.

In his judgment, Mr Justice Mann held that “an accused should at least prima facie have a reasonable expectation of privacy in respect of an investigation” and that the fact of a police search, without more, does not remove the legitimate expectation of privacy which otherwise exists.

In this case, the nature of the offence which was being investigated – an historic sex offence – reinforced the legitimate or reasonable expectation because of the damage that could be done if it were revealed, and made the legitimate expectation a strong one.

Although the judge acknowledged that there is “a very significant public interest in the fact of police investigations into historic sex abuse, including the fact that those investigations are pursued against those in public life”, he said the public interest did not exist “in this case”.

He added that the BBC’s use of a helicopter to broadcast footage of a police search of Sir Cliff’s home was “to add sensationalism”.

The post UK: Cliff Richard wins major privacy lawsuit against the BBC appeared first on Irish Legal News.

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Legal professionals and human rights activists are set to take part in a wide-reaching discussion on the future of policing hosted by the Irish Council for Civil Liberties (ICCL) in Dublin tonight.

“Rights-based Policing: visions for change from the community” has been organised two months ahead of the Commission on the Future of Policing (CFP)’s report.

It will hear from KOD Lyons partner Gareth Noble; artist Fiona Whelan; and solicitor and Travellers’ rights activist David Joyce.

Alyson Kilpatrick BL, former human rights advisor to the Northern Ireland Policing Board (2009-17), will respond to their experiences for the ICCL, having been commissioned by the civil liberties group to undertake research on a rights-based approach to policing.

The aim of the event is to tease out, in practical terms, what difference a rights-based approach to policing could make to communities that have particular experiences with An Garda Síochána.

The event is taking place in the Radisson Blu Royal Hotel on Golden Lane at 6.30pm. More information is available from EventBrite.

The post Lawyers and activists to discuss rights-based policing in Dublin tonight appeared first on Irish Legal News.

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