Friends of the Irish Environment Clg v The Government of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 24 April 2020
• Neutral Citation: [2020] IEHC 225
• Docket Number: [Record No. 2018/391 JR]
• Court: High Court
• Date: 24 April 2020

BETWEEN

FRIENDS OF THE IRISH ENVIRONMENT CLG

APPLICANT

AND

THE GOVERNMENT OF IRELAND, MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IEHC 225

Barr J.

[Record No. 2018/391 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning & development – National Development Plan – National Planning Framework – Challenge to Plan and Framework

Facts: In 2018, the Government of Ireland, published the National Planning Framework (the NPF) and the National Development Plan (the NDP) as part of its vision for Ireland over the following 22 years, known collectively as Project Ireland 2040. In the course of preparing the NPF a strategic environmental assessment was carried out (the SEA) and an appropriate assessment was carried out under the regulations implementing the Habitats Directive (the AA). The applicant, Friends of the Irish Environment CLG, challenged the validity of the assessments that were carried out by the respondents, the Government, the Minister for Housing, Planning and Local Government, Ireland and the Attorney General. The applicant alleged that due to shortcomings in the various assessments and due to the lack of certain monitoring and other provisions, the assessments themselves and the resultant NPF were fatally flawed and on that account an order of certiorari should be granted striking down the NPF. In addition, it was alleged that the NDP was adopted by the respondents contrary to the provisions of European Law, because no SEA or AA was carried out of it. The applicant also argued that a determination that the plan would not adversely affect any European sites, which was required pursuant to Art. 6.3 of the Habitats Directive, was not carried out prior to the adoption of the plan, in particular because no written determination was made by the respondents that the plan would not adversely affect the integrity of any European sites and that due to such omission, the respondents lacked the necessary jurisdiction to adopt the NPF at the time that it purported to do so.

Held by Barr J that the applicant had not made out an entitlement to any of the reliefs sought in the statement of grounds.

Barr J dismissed the applicant’s application for relief in these proceedings.

Application dismissed.

JUDGMENT of Mr. Justice Barr delivered electronically on 24th April, 2020

1. Introduction

1 In 2018 the Government published the National Planning Framework (hereinafter the NPF) and the National Development Plan (hereinafter the NDP) as part of its vision for Ireland over the following 22 years, known collectively as Project Ireland 2040.

2 In the course of preparing the NPF a strategic environmental assessment was carried out (hereinafter referred to as the SEA) and an appropriate assessment was carried out under the regulations implementing the Habitats Directive (hereinafter referred to as the AA). In these proceedings the applicant challenges the validity of the assessments that were carried out by the respondents. The applicant alleges that due to shortcomings in the various assessments and due to the lack of certain monitoring and other provisions, the assessments themselves and the resultant NPF are fatally flawed and on that account an order of certiorari should be granted striking down the NPF. In addition, it is alleged that the NDP was adopted by the respondents contrary to the provisions of European Law, because no SEA or AA was carried out of it.

3 The applicant also argues that a determination that the plan would not adversely affect any European sites, which was required pursuant to Art. 6.3 of the Habitats Directive was not carried out prior to the adoption of the plan, in particular because no written determination was made by the respondent that the plan would not adversely affect the integrity of any European sites and that due to such omission, the respondents lacked the necessary jurisdiction to adopt the NPF at the time that it purported to do so.

4 Before coming to the specific grounds of challenge raised by the applicant in these proceedings, it will be helpful to set out in very brief terms a summary of the main provisions of the NPF and the NDP. It will also be of assistance to set out a chronology of steps that were taken in advance of the purported adoption of the NPF and NDP.

2. Overview of the NPF and the NDP

5 The NPF is a high level policy document. It is a macro spatial strategy which maps out general development goals for the country for the period up to 2040. It was brought about due to a number of stark projections that were provided as a result of research conducted by the Economic and Social Research Institute in its paper “Prospects for Irish Regions and Counties: Scenarios and Implications”, published in December 2017. The ESRI predicts that the population of Ireland will increase by approximately one million people, or by 20% over 2016 levels, to almost 5.7 million people by 2040. They estimate that the population aged over 65 will more than double to 1.3 million, or to 23% of the total, whilst those aged under 15 will decrease by around 10%, with numbers remaining at just below one million in 2040. The population growth will give rise to a need for at least an additional half a million new homes by 2040. The ESRI also projected the need for an additional 660,000 jobs to 2040. They stated that in line with international trends, the ongoing shift to a knowledge economy and the growing role of services will continue to change the nature of work, sustaining demand for a more highly skilled and educated workforce. New ways of working, new trade partners and new relationships between producers and consumers will continue to transform the business landscape.

6 To cater for the future growth and development of both the population and the economy, a set of ten National Strategic Outcomes were identified, as follows: Compact Growth – which provides that urban development will wherever possible be on infill and brownfield sites within the envelope of existing built-up areas; Enhanced Regional Accessibility – which provides that due to the more compact approach to urban development requirements there is a need for enhanced connectivity between centres of population of scale; Strengthened Rural Economies and Communities – through the 2017 Action Plan for Rural Development, there is provision for resource schemes and policies to drive the development and diversification of the rural economy, such as the national broadband scheme; High Quality International Connectivity – as an island, provision is made for enhanced connectivity between this country and our nearest neighbour the UK and our other trading partners in the EU and further afield; Sustainable Mobility – this provides for a well-functioning integrated public transport system, thereby enhancing competitiveness, sustaining economic progress and enabling sustainable mobility choices for citizens; A Strong Economy supported by enterprise, innovation and skills – a competitive, innovative and resilient regional enterprise base is seen as essential to providing jobs and employment opportunities for people to live and prosper in the country; Enhanced Amenities and Heritage – attractive places include a combination of factors, including vitality and diversity of uses, ease of access to amenities and services supported by integrated transport systems and green modes of movement such as pedestrian and cycling facilities; Transition to Sustainable Energy – this provides that new energy systems and transmission grids will be necessary for a more distributed, more renewables focussed energy generation system, harnessing both the considerable on-shore and off-shore potential from energy sources such as wind, wave and solar and connecting the richest sources of that energy; Sustainable Management of Water, Waste and other environmental resources – investment in water infrastructure is seen as critical to the implementation of the NDP. The NPF provides that the current water services strategic plan by Irish Water will be updated in the light of the policies in the NPF addressing the requirements of future development, while also addressing environmental requirements such as obligations under the EU Water Framework Directive mandated River Basin Management Plan; Access to Quality Child Care, Education and Health Services – the framework provides that child care, education and health systems will need to plan ahead in order to meet the implications of an additional one million people by 2040.

7 Ultimately, the respondents chose an option known as Option 2 – Regional Effectiveness and Settlement Diversity, as the option which would best suit the needs of the country in attaining the National Strategic Outcomes, while at the same time taking account of the projected growth in population. For planning purposes, the country is divided into three regional assemblies; being the East and Midlands Regional Assembly, made up of Dublin and surrounding counties, the Southern Regional Assembly made up of the southern counties in the country and the North Western Regional Assembly made up of the counties along the western seaboard and the on the northwest coast. The chosen option provided for the following: (i) the level of growth in the NWRA and the SRA combined would be equal to that of the EMRA; (ii) focus the highest quantum of growth and rates of growth in five cities and a number of regionally important large towns through a tailored approach to settlement growth targets; (iii) deliver at least 40% of all new homes nationally on infill or brownfield sites within the built-up envelope of existing urban settlements; and (iv) provide some critical infrastructure in advance of planned growth to kick start development and provide other infrastructure sequentially on a phased basis in tandem. Under this plan the level of growth in the areas outside...