Ballyboden Tidy Towns Group v an Bord Pleanála, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 20 October 2021
• Neutral Citation: [2021] IEHC 648
• Court: High Court
• Docket Number: [2021 No. 89 JR]

Between

Ballyboden Tidy Towns Group

Applicant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

South Dublin County Council

Notice Party

[2021] IEHC 648

[2021 No. 89 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on Wednesday the 20th day of October, 2021

1 The Whitechurch Stream catchment area in Rathfarnham has been subject to significant recurring flooding, particularly in 1986 during Hurricane Charley, and in 2007, 2008 and 2011. The area has been identified under the Dodder Catchment-based Flood Risk Assessment and Management (CFRAM) project as being liable to particularly noteworthy flooding during a one in one-hundred year flood event. That is mainly due to low banks, overtopping of existing defences, insufficient floodplain capacity or insufficient capacity at a number of bridges and culverts causing water to back up.

2 With a view to making an application for developing consent for flood alleviation works under s. 177AE of the Planning and Development Act 2000, the council engaged RPS Group Ltd. as consultants who prepared an Environmental Impact Assessment (EIA) screening report, Ecological Impact Assessment Report and Natura Impact Statement (NIS) on 6th July, 2020.

3 On 29th July, 2020, the council engaged in public consultation as set out at s. 6 of the Planning Report.

4 The formal application was then made for flood alleviation works along a 1.5 km section of Whitechurch Stream. The section affected flows south from St. Enda's Park (where the school established by Pádraig Pearse (1879–1916) was located after its move from Cullenswood House, Ranelagh in 1910), and under Sarah Curran Avenue (Sarah Curran (1782–1808), the fiancée of Robert Emmet (1778–1803), lived in the Priory, Rathfarnham, a short distance away), to the confluence with the Owendoher River to the north at the junction of Ballyboden Road with Willbrook Road.

5 The board's inspector, Karla McBride, gave a favourable report on 30th October, 2020 and the board gave a direction to grant permission on 16th December, 2020.

6 The formal decision was made on 17th December, 2020. That decision refers to the habitats directive 92/43/EEC, but not to the EIA directive 2011/92/EU or indeed to any other provision of EU law (although that is not pleaded as a ground of complaint). Unlike normal development consents (s. 40 of the 2000 Act), the legislative procedure here under s. 177AE does not limit the duration within which it is lawful to carry out the development.

7 Further surveys were then carried out post-consent, in particular in February 2021 and more recently between 22nd June, 2021 and 26th August, 2021.

Points not pursued

8 The applicant informed the court that a number of points were not being pursued. In particular:

• (i). alleged unlawful reliance on mitigation measures for the purposes of the EIA screening determination;

• (ii). alleged lack of public participation for the purposes of s. 177AE of the 2000 Act; and

• (iii). alleged breach of public participation in relation to the Kingfisher ( Alcedinidae).

Points already rejected

9 The applicant seeks to make two points that have already been rejected in Save Cork City Community Association CLG v. An Bord Pleanála [2021] IEHC 50, ( [2021] 7 JIC 2802 Unreported, High Court, 28th July, 2021):

• (i). that the board had no jurisdiction to undertake EIA screening under s. 177AE of the 2000 Act; and

• (ii). alleged breach of or non-transposition of art. 9a of the EIA directive in such a context.

10 While a spirited attempt was made to reinvigorate these points and to an extent to distinguish Save Cork City, I do not think any basis has been made out to revisit the decision or to say that it does not apply here. So while the applicant can be taken to have preserved its position for any hypothetical appeal, in summary these points fail here for the same reasons as they failed in Save Cork City. In particular, the fact that the applicant is claiming here that the council carried out the screening rather than the board does not amount to a new point. The logic of the legislation, as explained in Save Cork City, is that the council is not the competent authority in such a situation. So insofar as the applicant now in effect argues otherwise, that is just clearly wrong.

Other points that are being made

11 That leaves four points to be dealt with:

• (i). alleged failure to conduct assessment by reference to cumulative impacts;

• (ii). alleged inadequate surveys;

• (iii). alleged use of the incorrect legal test; and

• (iv). the indefinite nature of the permission.

Alleged failure to conduct assessments by reference to cumulative impact of other developments

12 The problem for the applicant here is that the potential for cumulative impacts from the flood defence works in conjunction with other developments was considered in the EIA report and the NIS. Those documents adopt a clear methodology for cumulative impact assessment: see s. 6.3.5.2 of the NIS and s. 6.5 of the EIAR.

13 The NIS states that a search was conducted of planning applications within the vicinity of the development using the South Dublin County Council planning portal map viewer and the Department of Housing, Planning and Local Government EIA portal map viewer. The search was limited to the five-year period preceding the report and excluded retention applications, incomplete, withdrawn and refused applications. A table setting out the relevant projects with potential for in combination effects is provided at table 6–14. A search of An Bord Pleanála's website to identify SID or SHD developments was also undertaken.

14 In respect of the developments so identified, these are analysed and commented on in table 6–14. The upshot was that there was a conclusion of an absence of developments giving rise to in-combination effects with the works in question.

15 The applicant now, armed with the wisdom of hindsight, claims that some developments were not considered without having put those to the board at the relevant time. That unfortunately is an exercise in gaslighting the board, in the sense of manipulatively moving the goalposts by criticising somebody for the outcome of their having done something without having given that person a fair opportunity to do it correctly by making one's point at the time that that thing was due to be done. The sort of retrospective criticism that is now being engaged in is always possible. The applicant has not established any effective challenge to the board's methodology and certainly did not do so at the relevant time and I do not see how it can legitimately succeed on this point now in those circumstances. While there are exceptions to the principle that you have to first put your point (traversed elsewhere: Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, ( [2021] 4 JIC 1204 Unreported, High Court, 12th April, 2021)), they don't apply here.

Alleged inadequacy in otter and bat surveys

16 Grounds 20 – 23 recite certain essentially factual allegations that inadequate surveys were conducted. Those statements do not amount to a legal ground. A legal ground has to postulate a basis for an entitlement to relief by reference to some identified legal provision or doctrine and an explanation as to how that gives rise to an entitlement to the remedy sought.

17 The only attempt to do so is in a single sentence, the first sentence of ground 24: “It is the Applicant's case that the Board did not have sufficient survey information before it to reach a conclusion for the purposes of Articles 4 & 12 of the Habitats Directive.”

18 The ground regarding bats is slightly more elaborate, but not hugely so. Ground 28 says that “[i]t is the Applicant's case that the Board did not have sufficient survey information before it to reach a conclusion for the purposes of Articles 4 & 12 of the Habitats Directive. It is further the Applicant's case that insofar as the Board was obliged to assess the impacts on bats (including roosting, resting and foraging grounds) and to reach a conclusion consistent with the test in Article 4 & 12. It did neither of these.”

19 Contextually, it is important to note that the case is significantly different from An Taisce v. An Bord Pleanála [2021] IEHC 254, ( [2021] 4 JIC 2003 Unreported, High Court, 20th April, 2021), where there was a claim of inadequate evaluation of evidence regarding an impact on a European site under art. 6 of the habitats directive (see para. 24 identifying the points made there). Here, the survey point is not identified as an art. 6 point at all, just a point under arts. 4 and 12 of the habitats directive. But those provisions are addressed to Member States, not to individual competent authorities. No obligation on the board to “reach a conclusion”, as is put in the applicant's pleadings, is imposed directly by arts. 4 or 12. That gives rise to a requirement for the pleadings to specify how such an obligation is imposed indirectly. Or indeed more fundamentally to specify what the obligation is – reach what conclusion consistent with arts. 4 and 12?

20 The applicant in essence has not specified the route map in the pleadings by which the court gets to the relief sought. It has simply in effect asserted “Article 12 therefore certiorari”. That is fundamentally inadequate. In oral submissions the applicant relied on the European Communities (Birds and Natural Habitats) Regulations 2011 ( S.I. No. 477 of 2011), but those are nowhere pleaded in the statement of grounds. The gist of the point now sought to be made seems to be that art. 12 imposes a directly effective obligation on all State competent authorities to reach a conclusion that scientifically complete surveys have been carried out as an implicit consequence of the implied obligation to reach a conclusion that the grant of a development consent would not envisage...