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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Martin v. An Bord Pleananla [2002] IEHC 82 (24 July 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/82.html Cite as: [2003] 1 ILRM 257, [2002] IEHC 82 |
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THE HIGH COURT
[2002 No. 83 JR]
BETWEEN
ERIC MARTIN
APPLICANT
AND
AN BORD PLEANÁLA
FIRST NAMED RESPONDENT
AND
IRELAND AND THE ATTORNEY GENERAL
SECOND NAMED RESPONDENTS
AND
INDAVER IRELAND LIMITED
NOTICE PARTY
JUDGMENT of O’Sullivan J. delivered 24th of July 2002.
Introduction
1. The applicant is a resident of Duleek Co. Meath and challenges the validity of the statutory procedures, and in particular the intended holding of an oral hearing by the first named respondent which is the statutory planning appeals authority, whereby it is processing appeals to it by several parties against a decision of Meath County Council as local planning authority to grant, subject to conditions, planning permission for the construction by the notice party of an incinerator near Duleek. In addition to getting planning permission the notice party will also require an integrated pollution licence from the Environmental Protection Agency before commencing the activity of waste processing at the plant. The applicant is a member of an unincorporated body known as the No Incineration Alliance which body has appealed the planning decision of Meath County Council to the first named respondent. The applicant is not himself an appellant in his own right as an individual apart from being a member of the No Incineration Alliance.
2. On the 28th of December 2001 the first named respondent published a notice inviting submissions from the public in relation to the said appeal as part of its environmental impact assessment of the proposed development. This assessment is intended to be carried out under domestic statutes and regulations incorporating the relevant European directives to which I will refer in more detail at a later point. At this point it is sufficient to note that the public notice requested submissions or observations from the public to matters other than the risk of environmental pollution from the activity.
3. The first named respondent has intimated, in addition, an intention to hold an oral hearing into the appeals before it.
4. By application made to McKechnie J. on 18th of February 2002 the applicant applied, ex parte, for leave to apply by way of judicial review for a number of reliefs including an order of certiorari quashing the published notice of the first named respondent, a declaration that the procedures proposed by the first named respondents are in conflict with the relevant environmental impact assessment directives, a declaration that the latter have not been correctly transposed into Irish domestic law and for a stay on any further consideration by the first named respondent of the appeals pending determination of these proceedings.
5. Liberty was granted on the said date by McKechnie J. to seek the aforesaid reliefs but in relation to the application for a stay he ruled that the same should be made by way of motion on notice to the parties to the action. Accordingly a motion was issued on the 26th of April 2002 and the matter came on for hearing before me and this is my reserved judgment on that application.
The Challenge
6. The key challenge to the first respondents’ procedures is that by splitting consideration of the effect of a development such as an incinerator between the first respondent (which deals only with planning considerations) and the Environmental Protection Agency (which deals only with environmental/pollution considerations) the system operated by the first named respondent fails to implement the relevant European directives in two key respects namely;
(1) All relevant considerations are not considered before the go-ahead is given for construction of the incinerator as required by the directives, and(2) Some environmental effects - especially those which can arise from the interaction between planning and environmental effects - are not considered at all.
Preliminary points
1. Estoppel
7. It is submitted that the applicant is a member of an unincorporated body which is itself a full scale appellant to the first named respondent which has, I am informed, requested an oral hearing of that appeal. He cannot, it is said, associate himself by membership with an endorsement of the procedures on the one hand, and on the other challenge them in court. For the applicant it is submitted that there is nothing inconsistent with this, he is entitled to appeal or be associated with an appeal and also entitled to be assured that the appeal will be conducted in accordance with European law. He challenges the publication of the notice and the proposed oral hearing because it is now clear that these procedures will not be so conducted.
8. I agree. I do not think the applicant is debarred from applying to court on this basis.
Applicable principles
9. The applicant’s counsel suggested that because there was no application to set aside the leave granted to him to bring judicial review proceedings that therefore the court must treat the application as comprising automatically, as it were, a serious issue to be tried and move on immediately to consider the balance of convenience given, as submitted, that the question of damages does not really arise. Furthermore the application is one founded on an assertion of European rights which should, therefore, be accorded special weight by the court even on an interlocutory application.
10. Against this it was submitted that there is in fact a difference between the threshold standard required for the granting of leave to bring judicial review proceedings on the one hand, and on the other the test at interlocutory injunction stage as to whether there is a serious issue to be tried. It was further submitted that an applicant seeking to assert rights which originate in European law who seeks interlocutory relief is to be dealt with on the same basis as any other applicant for interlocutory relief.
11. With regard to the first point I cannot agree that just because there has been no application to set aside the order granting leave to bring judicial review proceedings that therefore on this application for interlocutory relief, it must be assumed without further examination of the applicant’s case that he has established a serious issue to be tried.
12. In the first place I note the determination of Fennelly J. delivering the judgment of the Supreme Court in Gordon -v- Director of Public Prosecutions & Anor. Unreported, Supreme Court, Fennelly J., 7th June, 2002, at p. 7 where he says:-
“It follows that the applicant for the order to set aside carries a heavier burden than the original applicant for leave. The latter has to show that he has an arguable case. The former has to establish that leave should not have been granted, a negative proposition. It is both logical and convenient to the administration of justice that this should be so. The leave procedure was intended to provide a filtering process, a protection against frivolous or vexatious applications.”
13. In that case the Supreme Court set aside an order of Kearns J. in turn setting aside an order of Butler J. granting leave to apply for judicial review by way of certiorari. He held that it had not been shown that the order of Butler J. plainly should not have been made.
14. Furthermore I note and agree with the observations of Kelly J in Ryanair Limited and Aer Rianta CPT (Unreported, High Court, Kelly J., 25th January, 2001) at p. 5:
“The applicant has already satisfied Kinlen J. of the existence of an arguable case in respect of its complaints against the respondent. If it had not done so, leave to seek judicial review would not have been granted. A higher standard of proof is applicable on this application for an interlocutory injunction pending trial.”
15. In the light of this it seems to me that it would be improper for me to draw the inference that a failure on the part of any of the parities to these proceedings to bring an application to set aside the order of McKechnie J. in the present case confers on the applicant's case an automatic entitlement to be treated on this application as comprising a serious issue to be tried. In my view I must on this application apply the normal rules without any such inference.
16. The impact of European law
17. The applicant submits that because the rights asserted here derive from the requirements of a European directive the court must ensure by its order on this application that there is no risk that the directive will not be applied and that given the strength of his argument in relation to the defects in the domestic procedure transposing the directives the only way to ensure this is to grant the stay. He relies in particular on Von Colson & Anor. -v- Land Nordrhein-Westfalen: (Case 14/83) [1984] ECR 1891, para. 26) which where relevant provides as follows:-
“ ... the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No. 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the directive in order to achieve the result referred to in the third paragraph of Article 189.”
18. On the other hand it is a settled principle that EC law rights are to be vindicated in accordance with domestic procedure rules. The European Court made this clear in Rewe Handelsgesellschaft Nord mbH -v- Hauptzollamt Kiel (Case 158/80) [1981] ECR 1805 at p. 1841) where it was stated:-
“The system of legal protection established by the Treaty ... implies that it must be possible for every type of action provided for by national law to be available before the national courts for the purpose of ensuring observance of community provisions having direct effect, on the same conditions concerning admissibility and procedure as would apply were it a question of ensuring observance of national law.”
19. This principle was applied by Lynch J. in O’Neill -v- Ryan [1990] 2 I.R. 200 where he said:-
“It is therefore clear that I must give effect to Articles 85 and 86 of the Treaty but it is also well settled that effect must be given by the national courts in like circumstances and subject to like limitations as would be applied by the national courts to an analogous cause of action in national law, it being clearly understood however that no limit which would wholly or substantially negative the enforcement of Articles 85 and 86 in Irish Law could be applied.”
20. In delivering a judgment approving the judgment of Lynch J., Blayney J. said in the Supreme Court [1993] I.L.R.M. 557 at p. 571:-
“He [the plaintiff] has no direct remedy against the party alleged to be guilty of the tort or of the breach of statutory duty. And under community law there is no obligation on our courts to create such a remedy.”
21. Blayney J. went on to quote with approval the extract from Rewe - Handelsgesellschaft already referred to.
22. It is noteworthy that in the earlier case of Rewe - Zentral Finanz eG -v- Landwirtschaftskammer für das Saarland (Case 33/76) [1976] ECR 1989 at p. 1997 the Court of European Justice said:
“... it is for the domestic legal system of each member state ... to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of community law ...”
23. In Pesca Valentia Limited -v- Minister for Fisheries [1985] I.R. 195 the Supreme Court was dealing, inter alia, with the application of a community law point which was characterised by McCarthy J. as a “fair case on the law and a strong case on the facts as to damage”. It is clear, however, that the court applied the normal principles applicable to any injunction case. Indeed Finlay C.J. said p. 201:
“I am not, however, satisfied that there is any special principle applicable to an application for an interlocutory injunction of this kind.”
- albeit that the main thrust of his judgment in that regard was to reject an argument that the court could never make an order frustrating the operation of a post constitution statute which enjoyed the presumption of constitutionality.
24. It is also clear that McCarthy J. applied the general principles enunciated in the Campus Oil case.
25. It is, I think, clear from the authorities that if the only thing preventing the application of European law with direct effect in this jurisdiction were a rule or procedure in domestic law then the court should set aside the latter to ensure application of the former. At the stage of an application for an interlocutory injunction, however, there is no question of the application of European law being frustrated in this way. The applicant's challenge is hotly disputed and at this point the issue between the parties has not been determined. It is simply not open to the applicant at this interlocutory stage before that issue has been debated and determined to assert that the continued procedure which he challenges will necessarily frustrate his rights under European law. He cannot come into court and say :-
“I have an overwhelming case and the court has no option but to put a stop to the procedures which I say are wrong.”
26. He must, in my view, rather tailor his application to the traditional Campus oil principles and say
“I have a serious issue to be tried: damages will not be an adequate remedy and the balance of convenience favours the granting of a stay.”
27. I do not understand our law to acknowledge principles other than those enshrined in Campus Oil supra for dealing with an application for interlocutory injunction.
28. Indeed in Ryanair Unreported, Supreme Court, Fennelly J., 7th June 2002 Kelly J., said at p. 2):-
“Mr. Hogan contends that his case in law both as to the invalidity of the charges and the “rules of conduct” is so strong that I ought not to apply these well established principles but should proceed to grant an injunction pending trial based on the strength of his case alone and without regard to either adequacy of damages as a remedy or balance of convenience.I reject this invitation. I do so on two grounds. First, such an approach is unprecedented. No case was cited in support of it. It is an invitation which is extended in the teeth of authoritative statements from the highest Courts both in this jurisdiction and in England.”
29. Kelly J. went on to quote extensively from the judgement of Griffin J. in Campus Oil Ltd. -v- The Minister for Industry and Energy [1983] I.R. 82 and speeches from the decision of the House of Lords in the American Cyamanid -v- Ethicon Ltd., [1975] AC 396 which are so familiar that they do not require further re-citation here.
30. In my view on this as on any application for an interlocutory injunction I must apply the usual principles enunciated by the Supreme Court in the Campus Oil case supra.
31. Accordingly I turn now to consider whether the applicant has established a serious issue to be tried.
Serious issue
32. The applicant refers to Council Directive 85/337/EEC of 27th June 1985 on the assessment on the effects of certain public and private projects on the environment OJ L 175/40, 5th July 1985 as amended by Council Directive 97/11/EC of 3rd March 1997, OJ 1073/5 14th March 1997. One of the recitals of 85/337 provides where relevant:-
“Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of those projects has been carried out;whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;
33. The applicant submits that it is clear from the foregoing that no project should be authorised by the relevant consent before the environmental impact statement (submitted by the applicant for such consent) is subjected to an assessment, in respect of which the public have a full contemporaneous right of involvement, has been completed. This assessment must involve consideration of all the direct and indirect effects of a project on the factors identified in Article 3 together with the interaction between those factors.
34. The applicant further refers to the statutory provisions transposing these provisions into domestic law. These impose a general obligation on the first named respondent under Section 37 of the Planning and Development Act, 2000 to deal with an appeal as if it were an application made to it in the first instance. It must deal with an application for a development which requires to be accompanied by an environmental impact statement subject, inter alia, to the provisions of Section 98 of the Environmental Protection Agency Act, 1992. This provides where relevant as follows:-
(1) “Notwithstanding section 26 of the Act of 1963, [now s. 37 of the Act of 2000] or any other provision of the Local Government (Planning and Development) Acts, 1963 to 1991, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity -(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or(c) decide to grant such permission subject to conditions which are for the purposes of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity, and, accordingly -(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall not consider any matters relating to the risk of environmental pollution from the activity;(ii) An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity.”
35. By Section 4 of the same Act “environmental pollution” means, (inter alia),
“the disposal of waste in a manner which would endanger human health or harm the environment and, in particular -(i) create a risk to waters, the atmosphere, land, soil, plants or animals,(ii) cause a nuisance through noise or odours, or(iii) adversely affect the countryside or places of special interest, ...”
36. Furthermore “activity” is defined as meaning “any process, development or operation specified in the first schedule”. The first schedule includes the incineration of hazardous waste, hospital waste, incineration of waste in plants with a capacity exceeding one tonne per hour and the use of heat for the manufacture of fuel from waste.
37. “Disposal” is defined, in relation to waste, as including,
“the collection, sorting, carriage, treatment, storage and tipping above or under ground, and the transformation operations necessary for its recovery, reuse or recycling.”
38. The applicant submits that by reason of Section 98 of the Act of 1992 and by reference to the wide definitions of “environmental pollution”, “activity” and “disposal” in relation to waste the first respondent in dealing with the present appeal will be precluded from considering any matters relating to a risk of environmental pollution which is so widely defined that it includes, at least arguably, references to traffic, adverse impact on the countryside, amenity or places of special interest not to mention the more traditionally identified pollution effects such as risks to waters, atmosphere, land, soil, plants or animals.
39. Furthermore the applicant refers to the regulatory regime which makes it clear that the first respondent when dealing with the submission of an environmental impact statement (as is required in the present instance) is confined to dealing with impacts other than the risk of environmental pollution from the activity. In this way the first named respondent is precluded from ensuring that the environmental impact statement covers the entire range of the deleterious effects contemplated in the relevant directives.
40. The Environmental Protection Agency in turn will have jurisdiction to ensure that an environmental impact statement deals adequately with environmental pollution effects arising from the activity but this, the applicant submits, will come at a point in time (in the present case) after a possible grant by the first named respondent of a permission which would entitle the applicant to proceed with the construction of the waste disposal plant.
41. It is further submitted that at least some of the environmental effects which arise from the interaction between the identified classes of environmental consequences identified in the directive will not be considered either by An Bord Pleanála or by the Environmental Protection Agency particularly in a context where construction work may already have begun before the Environmental Protection Agency’s assessment is complete.
42. Against this it is submitted that the statutory regime now under challenge has been in operation successfully and without difficulty for a decade. Neither the first named respondent nor the Environmental Agency, it is submitted, has experienced difficulty in considering each of their own relevant environmental effects of any development and there is no reason to assert that it will be different in the case of the present appeal. Furthermore it is submitted that this application is premature. There is simply no way of identifying whether and if so which particular effects will not be considered by the first named respondent if the appeal goes ahead. Reference is made to European case law which asserts that the application of European principles should not be tested otherwise than by reference to facts which have been found. In the present case the applicant is seeking to make a hypothetical case by reference to contemplated defects in the proposed processes of the first named respondent.
43. The applicant also referred to a reasoned opinion addressed to Ireland by the Commission of the European Communities and dated 25th of July 2001. In that reasoned opinion it was stated, inter alia, para. 3.2.4
“.... the Commission considers that the Irish implementing legislation for the impact assessment directive fails to comply with the terms of the directive in respect of projects requiring an IPC licence.3.2.5. In particular, it fails to comply with Article 3 of the impact assessment directive in as much as, for such projects, there is no provision which ensures that the environmental impact assessment covers the inter-action between the factors mentioned ... in the first, second and third indents of Article 3 of Directive 85/337/EEC as amendment by Directive 97/11/EEC.3.2.6. The Irish implementing legislation also fails to comply with Article 8 of the impact assessment directive in as much as for projects requiring an IPC licence, it does not ensure respect for the obligation in Article 8 of the Directive 85/337/EEC before and after amendment by Directive 97/11/EEC to take account of information gathered pursuant to Articles 5, 6 and 7 in the development consent procedure.”
44. Earlier in the reasoned opinion at par. 3.2.2 the Commission had said
Section 98 of the EPA Act places limitations on the roles of Irish Local Planning Authorities and Ireland’s planning appeals board in cases where integrated pollution control licences have been granted or will be granted. In particular, planning authorities and the planning appeals board are precluded from refusing planning permission for the reason that the development would cause environmental pollution or from imposing development consent conditions for the purposes of controlling pollution. Planning authorities, when considering a development consent proposal, are precluded from considering any matters relating to the risk of environmental pollution and the planning appeals board are precluded from considering any appeal insofar as it relates to the risk of environmental pollution.3.2.3. However under Irish implementing legislation for the impact Assessment directive, primary responsibility for compliance with the impact assessment directive lies with the Irish Planning authorities and the Irish planning appeals board for projects that involve both planning permission and IPC licence. Moreover, while Irish legislation in such cases provides for the information provided by the developer in an EIA procedure (“the environmental impact statement”) to be transmitted to the environmental protection agency, the agency does not appear to have any specific duties in relation to the different stages of the EIA procedure.
At par. 3.5.1. The Commission’s opinion said:-
“In the commission's view, it is inconsistent with the system of EIA provided for in the impact assessment directive to allow a project to be executed in whole or in part before the development consent procedure is concluded.”
At par. 3.5.4 it said
“As at present informed, the Commission considers that Ireland has not taken the necessary measure to ensure that projects requiring EIA are assessed before consent is given in accordance with the impact assessment directive.”
45. In conclusion the commission invited Ireland to take the necessary measures to comply with this reasoned opinion within two months of receipt of this opinion.
46. The applicant submits that his case is very strong in light, inter alia, of this reasoned opinion and that the court at this stage should take account of the strength of his case.
47. The respondents submit that the reasoned opinion is not binding of itself but that in order to become binding an application must be made to the Court of Justice and the court must make an order none of which steps have been taken. Furthermore, it is contended that at least the main thrust of this reasoned opinion is directed at perceived defects in the Irish domestic transposition of the European directives other than those which will arise in the present case.
48. The only relevance I should stress of considering this reasoned opinion at this stage of these proceedings is, under our law, in relation to ascertaining whether the plaintiff has raised a fair question for trial. I consider myself bound by the principles laid down by the Supreme Court in the Campus Oil case [1983] I.R. 82 and others in the way in which I deal with this application. It is true, of course, that in Pesca Valentia [1985] I.R. 195 the Supreme Court did intervene positively to grant a restraining order at the interlocutory stage but this was on the basis of the application of the Campus Oil principles not their suspension or replacement. In Ryanair Unreported, Supreme Court, Fennelly J., 7th June 2002 Kelly J. rejected a submission that he should consider the strength of the applicant’s case over and above determining that there was a fair issue to be tried as being unprecedented. I do likewise as I am also bound by the principles established in the Supreme Court.
49. In my opinion the applicant has made out a serious issue to be tried. As already indicated, however, I do not think that at this stage that I should concern myself with the strength or otherwise of that case.
Damages
50. The applicant says that unless a stay is granted he will be involved in what he asserts will be a useless waste of time while the first respondent conducts an assessment including an oral hearing (which he says could take up to six weeks) into these appeals. He will have no way of recovering his expenses involved and time thus wasted. The respondents point to the Local Government (Planning and Development) Act, 1976 which authorises the first named respondent to direct either a planning authority to pay costs and expenses to an appellant or where the planning authority’s decision is not substantially altered to direct the appellant to pay the costs of the planning authority or other parties to the appeal. They also submit that on general principles if the appellant can establish that the State, by failing to implement the European Directives, has infringed or frustrated a right of the applicant then he is entitled to damages against the State.
51. Further it is submitted that whilst An Bord Pleanála would not have any monitory damages in the event that the stay was given, the notice party would. It has already incurred €2 million outlay and is sustaining ongoing expenses although these are not quantified.
52. The applicant submits that the €2 million outlay would be incurred in any event because it is referable to the costs of preparing the application and appeal. Furthermore any damages that the notice party might rely on with reference to delay are too remote to be taken into account at this stage.
53. In this context the applicant submits, in addition, that his case really is to assert that he has a right under European law to insist that the first respondent’s procedures be carried out correctly under that law and that it is not so much a question of damages as of his absolute right and entitlement to be engaged in the correct procedures.
54. I am not persuaded that the plaintiff has a clear cut path to monitory compensation by way of Section 19 of the 1976 Act or otherwise in the event that he is refused a stay and succeeds in his action. On the other hand he will not himself as an individual necessarily carry the costs of an appeal by the group of which he is a member and I do not think that whatever monitory loss he may sustain in the event of a “wasted” involvement in an appeal procedure should be treated by me at this stage as very substantial.
55. Again, whilst the applicant has given an undertaking as to damages in the traditional form there is no sufficient detail in relation to it which would enable me to assess it as a realistic undertaking when balanced against the prospective losses of the notice party if the stay were granted and the applicant subsequently loses his case. Whilst the losses of the notice party are not quantified on an ongoing basis and whilst I accept the applicant's point that the €2 million already spent may largely have been spent no matter what the course of the proceedings, I am unable to treat the applicant’s undertaking as to damages as little more other than a pro forma compliance with the usual requirement of the court in this kind of application. It was proffered by his counsel in reply at the end of a four day hearing and not elaborated in any detail. On this ground alone I would conclude he is not entitled to the stay which he seeks. However, I proceed, notwithstanding, to set out my views in regard to the balance of convenience as follows.
Balance of convenience
56. In my opinion the balance of convenience also favours the refusal of the granting of a stay. It is clear from authority that it would take something almost overwhelming for a court to suspend the continued application of domestic law pending the trial. In Pesca Valentia, [1985] IR 193 indeed, the court was persuaded to temporarily suspend the law of the land because the applicants would face criminal liability otherwise. Furthermore they would have been prevented from carrying on with their livelihood pending final determination of the action. Here the boot is on the other foot. It is the notice party that seeks, if and when so authorised, to carry on a business in respect of which the applicant, has asserted strong objections. The first named respondent has a statutory duty not only to consider the appeals before it but to do so within a time frame identified by statute as particularly limited, in the first instance, to a period of four months. There is a public dimension to the considerations of the court on this aspect of the application - namely the interests of the public in the efficient despatch by the first named respondent of the appeals which come before it.
57. In this context there are two principles to which I would refer in addition as follows:
(a) The inconvenience which can arise by delaying or interfering with a procedure by a statutory authority on an interlocutory application such as the present. Such an interference was considered in R -v- Association of Futures Brokers and Dealers Limited and Another ex parte Mordens Limited [1991] 3 Admin. L.R. 254) where it is clear from the judgment of McCullough J. that even where an applicant made an argument that he would suffer irreparable damages unless a stay was granted a stay in fact should not have been given. He said:
“To entertain challenges at the interlocutory stage would play havoc with the conduct of proceedings in courts and tribunals below. Even to make an application to this court will in most cases occasion at least some interruption to the course of those proceedings”
58. He went on to consider that the outcome of those proceedings might even prove immaterial to the interests of the applicant for interim relief - in the present case for example in the circumstances that the first named respondent decided to refuse permission.
59. Woolf L.J. in a similar case R -v- Bow Street Metropolitan Stipendiary Magistrate, ex parte Noncyp Ltd. [1988] 3 W.L.R. 827 at p. 836 referred to the fact that:
“(an application at the end of the proceedings) ... will also avoid the possibility of successive applications for judicial review and will be more in keeping with the general principle that judicial review should be a remedy of last resort.”
(b) Quite apart from this there is the respect which the court should afford the existing legislative regime of the State. I do not understand the jurisprudence of the European Court of Justice or any other authorities relied on by the applicant to interfere with this latter principle. Certainly in particular cases such as for example the Pesca Valentia case [1985] IR 193, the court will interfere with such a regime. But it would take very strong considerations at the balance of convenience stage in my view. Such considerations do not apply here.
60. I would add one final word in the Pesca Valentia case supra it seems tolerably clear that the case made by the plaintiff to the effect that he had made out an arguable case was itself a strong case - strong enough, that is - to overcome the presumption of constitutionality which applied to the Fisheries (Amendment) Act, 1983, which was challenged by the plaintiff. Notwithstanding this, it is notable, as the judgments of the Supreme Court demonstrate, that the application was dealt with by reference to Campus Oil principles - and not by reference to the strength of the applicant’s case.
61. In reply counsel for the applicant suggested that I might, if I thought it helpful, refer the question as to whether the Irish legislation adequately transposed the European directives into domestic law to the European Court of Justice. It was submitted by the respondents that the application or suggestion came too late for them to make an adequate reply and secondly that the test for the exercise of my discretionary jurisdiction in this regard was not whether it would be helpful to my determination but whether it was necessary. In my opinion it would not be appropriate for me at this juncture to refer that question to the European Court of Justice and I refuse so to do. Indeed to do so would be inconsistent with the application of the Campus Oil principles. On this application I am not determining the question whether Irish domestic legislation has adequately transposed the EC directives. The view of the European Court of Justice at this point of these proceedings would therefore be irrelevant to the question I have to determine namely whether a substantial question has been raised.
62. Accordingly I refuse the application for a stay.
