Coastal Concern Alliance v Minister for Housing Local Government & Heritage
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 21 March 2024 |
| Neutral Citation | [2024] IEHC 139 |
| Court | High Court |
| Docket Number | 2021 352 JR |
[2024] IEHC 139
2021 352 JR
THE HIGH COURT
JUDICIAL REVIEW
James Devlin SC and Margaret Heavey for the applicant instructed by Harrington & Company
Feichín McDonagh SC and Emma Synnott for the respondents instructed by the Chief State Solicitor
David Browne SC for the notice party instructed by Philip Lee LLP
JUDGMENT of Mr. Justice Garrett Simons delivered on 21 March 2024
This judgment is delivered in respect of an application to dismiss the within judicial review proceedings on the basis that they are moot. The proceedings seek to challenge a form of development consent issued under the Foreshore Act 1933. The respondent decision-maker asserts that the proceedings are now moot in circumstances where the activities authorised by the development consent were carried out and completed prior to the hearing of the substantive application for judicial review.
The issue of principle to be addressed in this judgment is whether a legal challenge to the validity of a development consent becomes moot in circumstances where (i) the applicant for judicial review fails to secure a stay on the implementation of the development consent, and (ii) the permitted works or activities have been carried out and completed prior to the date upon which the substantive judicial review application comes on for hearing before the High Court.
The applicant in these judicial review proceedings seeks to challenge a foreshore licence granted by the Minister of State under the Foreshore Act 1933. The foreshore licence was executed on 25 January 2021 pursuant to an earlier decision by the Minister for Housing, Local Government and Heritage approving the grant of a foreshore licence subject to recommended conditions and licence fee. The Minister of State issued a notice of determination of the foreshore licence on 28 January 2021, and this was subsequently published in Iris Oifigiúil on 2 February 2021 as required under section 21A of the Foreshore Act 1933.
The foreshore licence purports to authorise the following “ operations”:
“‘Operations’ means to undertake surveys, including geophysical surveys, geotechnical surveys, ecological surveys; deploying up to two buoys mounted floating lidar units and up to two wave rider buoys incorporating wave and current measurement devices, to inform the preliminary design for a proposed wind farm array and ancillary infrastructure at the Licensed Area for the Permitted Use and as specified in the Plans.”
These judicial review proceedings were instituted on 19 April 2021. The principal relief sought in the proceedings is an order of certiorari quashing the decision of 28 January 2021 (“ the impugned decision”). The High Court directed that the application for leave be heard on notice. Leave was granted, unopposed, on 16 June 2021 by the High Court (Meenan J.). The proceedings were made returnable to 12 October 2021 with directions that opposition papers be filed in advance of that date.
At the leave hearing on 16 June 2021, there was a brief discussion of a potential application for a stay on the implementation of the foreshore licence. Counsel for the developer indicated that his side intended to oppose any application for a stay on the development consent and would require time to file affidavit evidence. The court granted the applicant liberty to apply in relation to a stay. Counsel for the applicant requested that the developer's solicitor keep his side informed of the progress of the activities. The implication being that a stay might not be necessary if the proceedings came on for early hearing prior to the commencement of any significant activities. In the event, no application for a stay was ever made. This was so notwithstanding that the developer's solicitor provided regular updates on the progress of the activities.
Opposition papers were filed in January and February 2022, respectively. On 12 July 2023, the substantive application for judicial review was assigned a hearing date of 5 March 2024. The hearing of this case and a related case was estimated to take five days.
On 14 February 2024, an issue was raised, for the first time, that the proceedings had become moot and should be struck out in circumstances where the activities authorised by the foreshore licence have been carried out and completed. This issue was raised in correspondence from the Office of the Chief State Solicitor. The Minister was given liberty to issue a motion seeking to have the proceedings struck out as moot. The hearing of the substantive application for judicial review has been rescheduled for July 2024 (in the event that the proceedings are not struck out). The strike out application was heard before me on 5 March 2024 and judgment reserved until today's date.
The parties were given leave to deliver supplemental written submissions addressing a judgment which had arisen during the course of argument, namely, North Wall Property Holding Company Ltd v. Dublin Docklands Development Authority [2009] IEHC 11. The submissions were duly delivered on 12 March 2024 and have been considered in the preparation of this judgment.
In brief, the case as pleaded in the statement of grounds is that the decision to grant the foreshore licence is invalid in that it had been reached in contravention of the Habitats Directive (92/43/EEC) and the Environmental Impact Assessment Directive (2011/92/EU). The application for a foreshore licence had been subject to a screening determination for the purposes of the Habitats Directive and the implementing domestic legislation. The screening determination was to the effect that, save in respect of four specified European Sites, the proposed activity was not likely to have a significant effect on a European Site. As to the four specified sites, the decision-maker concluded, following the completion of a stage two appropriate assessment, that the proposed activities were “ not likely to pose a significant likely risk” to the nature conservation interests of any Natura 2000 site. The applicant contends that this is the incorrect test for a stage two appropriate assessment and does not comply with Article 6(3) of the Habitats Directive and the domestic implementing regulations. The stage two appropriate assessment is also criticised on the ground that the guidance relied upon is out of date. In particular, it is argued that the foundational document, upon which the National Parks and Wildlife Service guidelines are based, had been updated in 2019 and that the NPWS guidelines should have been updated to reflect this.
As to the stage one screening determination, it is alleged that the decision-maker erred in law in purporting to screen out the North Dublin Bay SAC. The argument here seems to be that the decision-maker took into account mitigation measures which, it is said, is impermissible in the context of a screening determination. The applicant cites in this regard the judgment of the CJEU in People over Wind, Case C-323/17, EU:C:2018:244. More generally, criticism is also made of what are alleged to have been failures in terms of the public information provided in respect of the application for the foreshore licence.
As to the EIA Directive, it is submitted that the screening determination was mistakenly carried out by reliance upon an outdated legislative regime. In particular, it is submitted that the screening determination was not made by reference to the 2011 version of the EIA Directive, nor the amendments introduced thereto by Directive 2014/52/EU.
It is not necessary, for the purpose of determining the strike out motion, to indicate a view on the strength or otherwise of the underlying merits of the substantive application for judicial review. It is, however, relevant to consider what the legal consequences would be should it transpire, following a full hearing, that the grounds of judicial review are made out.
The gravamen of the applicant's case is that a form of development consent was granted without there having been proper compliance with the provisions of the Habitats Directive and the EIA Directive. If the applicant were to succeed in establishing its case, then the default position would be that the development consent should be set aside, and consideration given to the carrying out of some form of remedial assessment. This represents the default position under EU law.
The obligations of the national court in such circumstances are well established. The national court must take measures to eliminate the unlawful consequences of that breach of EU law. This principle has been reiterated as follows, in the context of the EIA Directive, by the CJEU in Commission v. Ireland (Derrybrien Wind Farm), Case C-261/18, EU:C:2019:955 (at paragraphs 75 to 77):
“Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member States are nevertheless required to eliminate the unlawful consequences of that breach of EU law. That obligation applies to every organ of the Member State concerned and, in particular, to the national authorities which have the obligation to take all measures necessary, within the sphere of their competence, to remedy the failure to carry out an environmental impact assessment, for example by revoking or suspending consent already granted, in order to carry out such an assessment (see, to that effect, judgments of 7 January 2004, Wells, C-201/02, EU:C:2004:12, paragraph 64, and of 26 July 2017, Comune...
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