Friends of the Irish Environment Clg v Roscommon County Council Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 28 January 2022 |
| Neutral Citation | [2022] IEHC 44 |
| Court | High Court |
| Docket Number | 2021 No. 1097 J.R. |
[2022] IEHC 44
2021 No. 1097 J.R.
THE HIGH COURT
JUDICIAL REVIEW
Interlocutory relief – Development – Judicial review – Applicant seeking to restrain the carrying out of development works pending the hearing and determination of judicial review proceedings – Whether there was a real risk that were interlocutory relief to be refused there could be negative effects on European Sites
Facts: The applicant, Friends of the Irish Environment CLG, applied to the High Court seeking to restrain the carrying out of development works pending the hearing and determination of judicial review proceedings. The proceedings questioned the validity of an order made by the chief executive of the first respondent, Roscommon County Council, on 14 October 2021. The impugned order purported to authorise the carrying out of interim flood relief works. The applicant alleged that there was a risk of serious and irreparable harm to a European Site, to wit an Annex I priority habitat type, were the works to go ahead. The applicant put in affidavit evidence from experts which suggested that even insofar as the construction phase was concerned there was a risk to a number of European Sites, i.e. the Lough Funshinagh SAC and the Lough Ree SAC/SPA, from matters such as, inter alia, the introduction of non-native invasive species, waste and a risk to water quality. The applicant was also highly critical of the fact that the proposed works incorporated what it characterised as unauthorised works carried out in the summer of 2021. The local authority relied on the fact that the increased water levels at the Lough Funshinagh SAC had in recent years resulted in flooding events affecting the use of the local road and a number of individual dwelling houses. The local authority relied on public health and safety, and a risk to human life, as factors in support of allowing it to carry out the works in the interim. It was said that because of logistical considerations the works must be carried out and completed during the spring months if there was to be any alleviation of the flood risk the coming winter. The local authority relied, more generally, on the public interest in upholding administrative decisions, citing the judgments in Okunande v Minister for Justice, Equality and Law Reform [2012] IESC 49 and Jennings v An Bord Pleanála [2022] IEHC 11.
Held by Simons J that the case turned on the balance of justice and that the principal determinant of whether or not to grant interlocutory relief must be the impact on the two protected European Sites, including, in particular, the Annex I priority habitat type. Simons J was satisfied on the affidavit evidence before the court that there was a real risk that were interlocutory relief to be refused there could be negative effects on the two European Sites. Simons J held that the applicant had put in sufficient expert evidence in that regard to persuade the court, at the interlocutory stage, that there was such a risk. Having considered whether the environmental risk was outweighed by some other public interest factor, including the issues of human health and safety raised by the local authority, Simons J concluded that the balance lay in favour of the grant of interlocutory relief. Simons J found that the issues relied upon by the local authority were ones which it had been aware of since at the very latest June and July 2020. Simons J held that the delay in carrying out and completing lawful flood relief works had been entirely caused by the local authority’s own actions, in particular, its misstep in attempting illegally to use the procedure under the Local Authorities (Works) Act 1949 in the summer of 2021. Simons J found that had the local authority, instead, taken the course of applying to An Bord Pleanála, it was likely that the flood relief works would have been finished within time.
Simons J decided to grant interlocutory relief restraining the carrying out of any further works.
Application granted.
James Devlin, SC, Stephen Dodd, SC and John Kenny for the applicant instructed by FP Logue Solicitors
Neil Steen, SC for the first named respondent instructed by McCann Fitzgerald LLP
Rory Mulcahy, SC and Aoife Carroll for the second and third named respondents instructed by the Chief State Solicitor
EX TEMPORE JUDGMENT delivered by Mr. Justice Garrett Simons on 28 January 2022
This ruling is delivered in respect of an interlocutory application seeking to restrain the carrying out of development works pending the hearing and determination of these judicial review proceedings. The proceedings question the validity of an order made by the chief executive of Roscommon County Council on 14 October 2021. I will refer to this order as “ the impugned order”. The impugned order purports to authorise the carrying out of what is described as interim flood relief works.
The order consists of a number of related decisions, the overall effect of which, if valid, would be to authorise the carrying out of the interim flood relief works (hereinafter “ the proposed works”). These include, inter alia, the following. First, a screening determination, for the purposes of Article 6 of the Habitats Directive 92/43/EC and Regulation 42 of the domestic implementing regulations, the Birds and Natural Habitats Regulations 2011 (SI No 477 of 2011), which purports to find that the proposed works are not likely to have a significant effect on a European Site. Secondly, a screening determination for the purposes of the Environmental Impact Assessment Directive 2011/92/EU (“ EIA Directive”) which purports to find that the proposed works are not likely to have a significant effect on the environment. Thirdly, and more controversially, there is a decision purporting to deem the proposed works as comprising an urgent solution to an “ emergency situation” calling for immediate action for the purposes of the Local Government Act 2001 and the Planning and Development Act 2000.
One of the legal consequences of deeming there to be an “ emergency situation” is that certain procedural safeguards, which would otherwise have obtained, are disapplied in respect of the proposed works. See Section 179(6)(b) of the Planning and Development Act 2000. Crucially, the mechanism whereby local authority development can be referred to an independent competent authority (An Bord Pleanála) for screening is avoided. The parties are agreed that Article 120(3) of the Planning and Development Regulations 2001 (as substituted in 2018) does not apply in the case of a deemed “ emergency situation” because it only applies to local authority development which is subject to Part 8 of the Planning and Development Regulations 2001.
The applicant for judicial review seeks to challenge each of these decisions. In addition, and in the alternative, the applicant seeks to challenge the validity of the underlying legislation pursuant to which certain of these decisions were made. In particular, it is contended that it is not permissible as a matter of EU law to allow a local authority qua developer to make screening determinations in respect of its own development. It is said that this is inconsistent with the requirements of Article 9a of the EIA Directive and the thrust of the Habitats Directive.
There is a final matter which should be flagged as part of the introduction to this ruling. The interim flood relief works the subject-matter of the within judicial review proceedings represent a modified and scaled-down version of a previous development proposal. The local authority had commenced works in respect of this previous development proposal in the summer of 2021. Those works were purportedly authorised pursuant to the Local Authorities (Works) Act 1949. This Act, self-evidently, predates the coming into force and effect of the relevant EU environmental legislation, and has not been updated to reflect the changes mandated by EU law. The Act of 1949 did not, therefore, impose an obligation as a matter of domestic law upon the local authority to carry out a screening exercise for the purposes of either the EIA Directive or the Habitats Directive.
The conduct of the local authority in purporting to utilise the Local Authorities (Works) Act 1949 was itself challenged in separate, earlier judicial review proceedings ( Friends of the Irish Environment v. Roscommon County Council; 2021 No. 773 JR). The local authority did not seek to defend those earlier judicial review proceedings, and certain orders were made by this court with the consent of the parties on 25 August 2021.
The relevance of all of this for present purposes is that the local authority intends to utilise certain of the works carried out in the summer of 2021 for the new proposed flood relief works. In particular, it is intended to incorporate a section of pipeline of some 800 metres into the revised project. Put otherwise, the local authority is seeking to incorporate into its new development proposals some of the works which were carried out pursuant to the now quashed development consent. As explained presently, there is a question mark as to the legal status of these earlier works.
I turn now to consider the legal test governing an application for interlocutory relief. The parties are in broad agreement as to the legal principles to be applied by this court in determining the application for interlocutory relief. All sides rely on the judgments of the Supreme Court in Okunande v. Minister for Justice, Equality and Law Reform [2012] IESC 49; [2012] 3 I.R. 152 and in Krikke v. Barranafaddock Sustainability Electricity Ltd [2020] IESC 42. The parties also rely on the very recent judgment of the High Court (Holland...
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