Ballyboden Tidy Towns Group v an Bord Pleanála

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Mr. Justice Woulfe
• Judgment Date: 15 November 2022
• Neutral Citation: [2022] IESC 47
• Docket Number: Record No. 2022/15

Between/

Ballyboden Tidy Towns Group

Appellant

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

South Dublin County Council

Notice Party

[2022] IESC 47

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

Hogan J.

Record No. 2022/15

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Development consent – Temporal limitation – Article 6(3) of Directive 92/43/EEC – Appellant appealing against a decision which dismissed its application for judicial review of a decision of the first respondent to approve certain development to be carried out by the notice party – Whether Article 6(3) of Directive 92/43/EEC contained an obligation to impose a temporal limitation on a grant of development consent

Facts: The appellant, Ballyboden Tidy Towns Group, appealed to the Supreme Court against a decision of the High Court (Humphreys J) which dismissed its application for judicial review of a decision of the first respondent, An Bord Pleanála (the Board), to approve certain development to be carried out by the notice party, South Dublin County Council. The following questions arose for decision in the appeal: (i) whether the Court below was correct to dispose of the appellant’s incompatibility point (i.e. that the indefinite nature of the approval was incompatible with Article 6(3) of Directive 92/43/EEC (the Habitats Directive)) on the basis that it was not properly pleaded; (ii) whether Article 6(3) contained an obligation to impose a temporal limitation on a grant of development consent; (iii) if the answer to the second question was yes, whether the Planning and Development 2000 s. 177AE procedure was capable of bearing a conforming interpretation or whether s. 177AE was incompatible with Article 6(3); (iv) in the alternative, if the answer to the second question was yes, whether the appellant was entitled to rely on the direct effect of any such obligation.

Held by Woulfe J that while the appellant could have pleaded the different strands of its case more precisely, the other parties did know the case they had to meet at the trial, and subsequently on appeal. Woulfe J held that at the appeal hearing the other parties did not press any pleading point, and it was appropriate to consider the other questions arising on their merits rather than dispose of any of them on pleading grounds. There were a number of factors which lead Woulfe J to the conclusion that an implied automatic time limit on all approvals granted under s. 177AE was not necessary: (a) the appellant’s concern as to some unanticipated change in environmental conditions at some unknown future point in time was addressed by Article 6(2) of the Habitats Directive, as given effect to in Irish law by the EC (Birds and Habitats) Regulations 2011 (S.I. 477 of 2011) (the 2011 Regulations); (b) this concern appeared to be addressed far more effectively by the 2011 Regulations than by the implication of an automatic requirement for an unspecified time limit on all such approvals; (c) the appellant’s concerns could also be addressed by attaching conditions to the approval which incorporate mitigation measures which aim, at least in part, to minimise any negative impacts on a site arising from future changes in ecological data; and (d) if it were felt necessary by the Board to impose a time limit when granting approval, because of the particular facts and circumstances surrounding a proposed development, the Board had the power to attach such a condition pursuant to s. 177(V)(4) of the 2000 Act. Woulfe J held that the correct application of Article 6(3) of the Habitats Directive was so obvious in this case as to leave no scope for any reasonable doubt. Therefore, Woulfe J did not believe it was necessary to make a reference to the Court of Justice of the European Union for a preliminary ruling. In circumstances where the second question had been answered in the negative, he held that the third and fourth questions no longer arose.

Woulfe J held that Article 6(3) of the Habitats Directive did not require a competent authority to impose a temporal limitation on a grant of developmental consent. Woulfe J therefore dismissed the appeal.

Appeal dismissed.

Judgment of Mr. Justice Woulfe delivered on the 15 ^th day of November, 2022

Introduction

1 . The appellant appeals against a decision of the High Court (Humphreys J.) which dismissed its application for judicial review of a decision of An Bord Pleanála (“the Board”) to approve certain development to be carried out by the notice party.

2 . The Whitechurch Stream catchment area has been identified under the River Dodder Catchment Flood Risk Assessment and Management Project as a location that is liable to a particular risk of flooding. The Whitechurch Stream is one of the five main tributaries of the River Dodder and flows through Rathfarnham in South County Dublin.

3 . On the 17 ^th December, 2020, the notice party was granted approval by the Board for flood defence works along a section of the Whitechurch Stream, pursuant to s.177AE of the Planning and Development 2000 (“the 2000 Act”). As a part of that process, a Natura impact statement was prepared and an appropriate assessment under Directive 92/43/EEC (“the Habitats Directive”) was carried out. The Board ultimately concluded that the proposed development would not adversely affect the integrity of any European sites, in view of the site's conservation objectives.

4 . The appellant sought to challenge the Board's decision to grant approval for the proposed development on the basis, inter alia, that the Board granted a development consent of indefinite duration for a project requiring an appropriate assessment under the Habitats Directive. The appellant contended in his Amended Statement of Grounds that while planning permissions granted to natural or legal persons under either s.34 or s.37 of the 2000 Act are time-limited, approvals granted to local authorities under s.177AE can be of indefinite duration. To this end, it argued that the Board should have placed a time limit on this approval, and sought an order of certiorari quashing the Board's decision. Insofar as s.177AE permits the grant of an approval of indefinite duration, the appellant argued that this scheme is inconsistent and incompatible with the requirements of Article 6(3) of the Habitats Directive.

The High Court

5 . On the 20 ^th October 2021, Humphreys J. ( [2021] IEHC 648) gave judgment dismissing the appellant's challenge to the development consent.

6 . The appellant had sought to challenge the Board's decision on a number of grounds. A number of these points were not pursued at the hearing. Two further points were also excluded by the trial judge on the basis that they had been considered and rejected in a recent decision of his ( Save Cork City Community Association CLG v. An Bord Pleanála [2021] IEHC 50). The trial judge went on to consider and dismiss four points of challenge to the Board's decision.

7 . The fourth point pursued by the appellant, and the point relevant to this appeal, is the lawfulness of the indefinite approval granted by the Board under s.177AE of the 2000 Act, in light of the obligations imposed by the Habitats Directive. The appellant claimed that the indefinite nature of the approval was unlawful because such an approval could be activated at any time, even if ecological circumstances had changed. The trial judge felt that the pleadings concerning this point were somewhat confused on the issue as to which of four categories of legal consequences applied – certiorari, constitutional invalidity, invalidity by reference to European Union (“EU”) law or a non-transposition point. Despite this, Humphreys J. went on to consider the point by reference to each of these four possible legal consequences.

8 . In respect of the relief of certiorari, Humphreys J. held that this point could only go to the validity of the decision if the Habitats Directive was directly effective in respect of a time limit on the duration of a development consent. He concluded that the appellant had not pleaded that the Habitats Directive was directly effective in this respect, but even if it had done so, any implied rule relating to the duration of a development consent was not sufficiently clear, precise, and unconditional as to be capable of having direct effect. The claim that the s.177AE procedure was unconstitutional was ultimately not pursued by the appellant. The claim that s.177AE was invalid by reference to EU law was withdrawn in part, and rejected in part by Humphreys J. as being really a transposition argument.

9 . Finally, in respect of any potential non-transposition argument, the trial judge found that the appellant had not pleaded that s.177AE fails to transpose Article 6 of the Habitats Directive and, given the indispensability of the requirement to plead one's case with precision, he thought this was sufficient to dispose of the claim under this heading. He stated that one cannot altogether dismiss the merits of the point as unarguable should it be properly pleaded in some future case, and one might possibly see arguments for some (potentially renewable) limitation on the duration of s.177AE approvals needing to be put in place.

10 . In a separate judgment, Humphreys J. ( [2022] IEHC 1) refused to certify a number of proposed questions to the Court of Appeal pursuant to s.50B of the 2000 Act, concluding again that the case sought to be made by the appellant regarding the obligation to impose a time limit on a development consent granted under s.177AE was not properly pleaded.

The Determination

11 . Following these judgments, the appellant applied for leave to appeal to the Supreme Court. In a determination dated the 4 ^th April 2022 ( [2022] IESCDET 42), this Court granted the appellant leave to appeal on the issue of the grant of a development consent under s.177AE of the 2000 Act insofar as it...