Friends of the Irish Environment CLG v Galway County Council

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 17 February 2023
• Neutral Citation: [2023] IEHC 75
• Court: High Court
• Docket Number: [2022 No. 858 JR]

Friends of the Irish Environment CLG

Applicant

and

Galway County Council, Ireland and The Attorney General

Respondents

[2023] IEHC 75

[2022 No. 858 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Humphreys J. delivered on the 17 ^th day of February, 2023

1 . In 2010, a 10 m wide concrete bridge and culvert was constructed at the N59 at Polladirk River, Kylemore, Connemara, Co. Galway.

2 . As of an assessment in May, 2022, a significant quantity of sediment and material is said to have accumulated around the bridge/ culvert. The council took the view that removal of material was required to avoid flooding. A report was prepared by consultants, Hydro Environmental Ltd., on 24 ^th June 2022. A method statement was prepared by MKO Environmental Consultants on 7 ^th July, 2022. Works to remove sediment and materials were then carried out by the council, apparently being completed on 12 ^th August, 2022.

Procedural history

3 . The statement of grounds in the present proceedings was filed on 12 ^th October, 2022. The matter was mentioned to the court on 13 ^th October, 2022. Leave has yet to be granted

4 . On 29 ^th November, 2022, the applicant brought a motion to admit this case to the Commercial Planning and Strategic Infrastructure Development List on the basis of O. 63A, r. 1(g) RSC as applied to the List. The motion is opposed by Galway County Council, although leaving aside the legal rationale for that approach, the strategic rationale seemed unclear.

5 . The council argued that its motivation was because proceedings in the List are more costly to manage, but that seems to me to be almost certainly wrong, for at least three reasons:

• (i). First of all, case management in the list should ensure far fewer mention dates because default or agreed directions will apply, rather than adjournment from time to time in a general list.

• (ii). Secondly, there is a general time-limit for hearings in the List of three days for substantive matters (or four days if multiple cases are heard together), which is only rarely departed from. The council argued that this case might not exceed such a time period anyway, but that is speculative. Maybe or maybe not, but the case involves complex questions that also engage arguments against the State. A modest limit for the length of the hearing could well bring significant benefits in this case.

• (iii). One other factor that could reduce costs which is worth mentioning is the benefit of having the matter dealt with in a specialised list. The advantage of specialisation is normally that it avoids any possible requirement for a judge assigned to a more general area to have to read into the particular topic concerned, especially a field as technical as planning. Hence specialisation gives rise to a potentially quicker hearing and determination of the matter. Obviously some general judicial review judges have considerable planning exposure and expertise, but coming before such a judge is not absolutely guaranteed by reason of the nature of the judicial review list itself. To argue, as the council says here, that there is enough expertise in the general judicial review list, is to come close to almost nihilistically denying the whole purpose of a specialised list in the first place. That is not a proposition that stands up to a whole lot of scrutiny.

6 . Sensibly, the State respondents pleaded neutrality on the motion to admit. Indeed there is a general unwritten practice that public law entities don't stoop to such tawdry practices as forum-shopping, objecting to transfer of cases to specialised lists, demanding recusal of judges and so on, but are expected to fatalistically accept whatever judge they come before, thus contributing something intangible but real by way of upholding mutual respect as between the judicial and other branches of government. Galway County Council doesn't seem to have got that memo, but so be it; I don't hold that against them and I will have to determine the objection on its legal merits.

Materials before the court

7 . Materials placed before the court by being uploaded to the ShareFile platform for this case included pleadings, exhibits, leave checklists and affidavits running to a total of 217 pages.

Reliefs sought in the proceedings

8 . The reliefs sought in the proceedings are as follows:

• 1. “An order of certiorari quashing the decision (‘the impugned decision’) of the First Named Respondent authorising emergency flood relief works at N59 Kylemore Bridge, Connemara, County Galway pursuant to the Local Authorities (Works) Act 1949 dated 14 ^th July 202 [ sic] (Local Authority Ref E3998).

• 2. Such declaration(s) of the legal rights and/or legal position of the Applicants and/or persons similarly situated and/or of the legal duties and/or legal position of the respondent(s) as the Court considers appropriate.

• 3. A declaration that the works purported to be authorised by the impugned decision are prescribed under section 176 of the Planning and Development Act 2000 and Regulation 93 of the Planning and Development Regulations 2001 and/or section 179 and Regulation 80 of the Planning and Development Regulations 2001 and were therefore required to be subject to the consent procedures under that Act and those Regulations.

• 4. In the alternative, a declaration that the impugned decision was granted consent contrary to the requirements of Articles 27 and 42 of the European Communities (Birds and Natural Habitats) Regulations ( S.I. 477 of 2011).

• 5. If necessary, a declaration that section 2 of the Local Authorities (Works) Act 1949 and/or section 179(6)(b) of the 2000 Act is ultra vires and invalid in that it constitutes a mis-transposition of Article 6(3) of the Habitats Directive (Council Directive 92/43 on the protection of natural habitats) and/or the Second and Third Named Respondents have failed to properly transpose Article 6(3) of the Habitats Directive for the purposes of the Local Authorities (Works) Act 1949 and/or section 179(6)(b) of the 2000 Act and/or that Article 6(3) is directly effective.

• 6. A declaration that section 2 of the Local Authorities (Works) Act 1949 is ultra vires and invalid in that it constitutes a mis-transposition of Articles 1, 2 and 4 of the Environmental Impact Assessment Directive ( Directive 2011/92/EU as amended) and/or the Second and Third Named Respondents have failed to properly transpose Articles 1, 2 and 4 of the EIA Directive for the purposes of the Local Authorities (Works) Act 1949.

• 7. A stay on works being carried out pursuant to the Decision pending the resolution of these proceedings.

• 8. An Order, including an interim and/or interlocutory Order, requiring the Respondent to suspend the works the subject matter of the decision.

• 9. An Order directing the First Named Respondent to remediate the works carried out pursuant to the impugned decision.

• 10. A Declaration that Section 50B of the Planning and Development Act 2000 as amended, and / or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála whereby proceedings where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention apply to these proceedings.

• 11. Further or other orders.

• 12. Costs.”

Framework for the application

9 . Paragraph 1(1) and (2) of High Court Practice Direction HC107 as substituted by Practice Direction HC114 provides as follows:

“(1) The Commercial Planning and Strategic Infrastructure Development List (the “List”) encompasses the following categories of cases:

(a) judicial reviews relating to strategic infrastructure development or strategic housing development, or under the Planning and Development (Amendment) (Large-scale Residential Development) Act 2021 (which cases will be administratively entered in the list without the necessity for application by any party), and

(b) planning and environmental cases of a commercial character, or with commercial aspects, which are admitted to the list under sub-paragraph (2)(a).

(2) (a) (i) A party to a planning or environmental case of a commercial character or with commercial aspects that would make it suitable for admission to the Commercial List may apply for the admission of the case to the List. An application for the entry of a case to the List should be made to the Judge in charge of the List or such other judge of the List as may be directed in any particular case or category of cases. The application should be made by notice of motion. The notice of motion shall have appended thereto a certificate of the solicitor for the moving party to the effect that the proceedings would be appropriate to be treated as “commercial proceedings” within the meaning of O. 63A r. 1 RSC, and setting out such facts relating to the proceedings as shall demonstrate this. Paragraphs 1 to 4 of High Court Practice Direction HC93 shall apply with any necessary modifications to such an application. Only in exceptional circumstances, which must be averred to on behalf of the moving party, may an application be made under this sub-paragraph in a case where the exchange of affidavits (or pleadings in the case of plenary proceedings) is complete. The court may grant such an application if the interests of justice so require.

...