Hellfire Massy Residents Association v an Bord Pleanála, The Minister for Housing, Planning and Local Government, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 02 July 2021
• Neutral Citation: [2021] IEHC 424
• Docket Number: [2020 No. 568 JR]
• Court: High Court

Between

Hellfire Massy Residents Association

Applicant

and

An Bord Pleanála, The Minister for Housing, Planning and Local Government, Ireland and The Attorney General

Respondents

and

South Dublin County Council

Notice Party

[2021] IEHC 424

[2020 No. 568 JR]

THE HIGH COURT

JUDICIAL REVEW

Planning and development – Judicial review – Declaratory relief – Applicant seeking declaratory relief – Whether regs. 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 are invalid

Facts: A formal application for a visitor’s centre and associated works was submitted directly to the first respondent, An Bord Pleanála (the board), under s. 175 of the Planning and Development Act 2000 on 31st July, 2017. The board decided to approve the application, with conditions, on 25th June, 2020. The applicant, Hellfire Massy Residents Association, challenged the board’s decision. The substantive reliefs sought were relief 1, an order of certiorari, relief 3, a declaration that s. 175 of the 2000 Act is invalid, and relief 4, that regs. 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) are invalid. On 9th June, 2021, the High Court (Humphreys J) dismissed the case insofar as it related to reliefs 1 and 3, and also relief 4 insofar as it concerned the pre-development consent situation. On foot of that order Humphreys J let the board and the council out of the case with no order as to costs, with liberty to reapply if they wished to make a submission should the remaining matter in the case transpire to require a reference under art. 267 TFEU. Following that decision Humphreys J proceeded to hear further submissions on the validity of the 2011 regulations regarding the post-consent situation.

Held by Humphreys J that the following referable issues arose: (1) whether the general principles of EU law arising from the supremacy of the EU legal order have the effect that a rule of domestic procedure whereby an applicant in judicial review must expressly plead the relevant legal provisions cannot preclude an applicant who challenges the compatibility of domestic law with identified EU law from also relying on a challenge based on legal doctrines or instruments that are to be read as inherently relevant to the interpretation of such EU law, such as the principle that EU environmental law should be read in conjunction with the Aarhus Convention as an integral part of the EU legal order; (2) whether arts. 12 and/or 16 of directive 92/43/EEC have the effect that a rule of domestic procedure whereby an applicant must not raise a “hypothetical question” and “must be affected in reality or as a matter of fact” before she can complain regarding the compatibility of the domestic law with a provision of EU law cannot be relied on to preclude a challenge made by an applicant who has invoked the public participation rights in respect of an administrative decision and who then wishes to pursue a challenge to the validity of a provision of domestic law by reference to EU law in anticipation of future damage to the environment as result of an alleged shortcoming in the domestic law, where there is a reasonable possibility of such future damage, in particular because the development has been authorised in an area which is a habitat for species subject to strict protection and/or because applying the precautionary approach there is a possibility that post-consent surveys may give rise to a need to apply for a derogation under art. 16 of the directive; (3) whether arts. 12 and/or 16 of directive 92/43/EEC have the effect that a derogation licence system provided in domestic law to give effect to art. 16 of the directive should not be parallel to and independent of the development consent system but should be part of an integrated approval process involving a decision by a competent authority (as opposed to an ad hoc judgement formed by the developer itself on the basis of a general provision of criminal law) as to whether a derogation licence should be applied for by reason of matters identified following the grant of development consent and/or involving a decision by a competent authority as to what surveys are required in the context of consideration as to whether such a licence should be applied for; and (4) whether arts. 12 and/or 16 of directive 92/43/EEC have the consequence that, in respect of a development where the grant of development consent was subjected to appropriate assessment under art. 6(3) of directive 92/43/EEC, and in a context where a post-consent derogation may be sought under art. 16 of directive 92/43/EEC, there is a requirement for a public participation procedure in conformity with art. 6 of the Aarhus Convention.

Humphreys J dismissed the proceedings as to reliefs 1, 3 and insofar as it related to the pre-consent process, relief 4. Humphreys J substituted the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media as the second respondent in lieu of the Minister for Housing, Planning and Local Government. Humphreys J referred to the CJEU the questions identified in the judgment and made Eco Advocacy directions (Eco Advocacy CLG v An Bord Pleanála [2021] IEHC 265).

Proceedings dismissed in part.

JUDGMENT of Humphreys J. delivered on Friday the 2nd day of July, 2021

1 The Hellfire Club is an 18th century building at the summit of Montpelier Hill in County Dublin. It has been suggested that the architect was Edward Lovett Pearce who is associated with the Stillorgan Obelisk, Castletown House and the Irish Parliament House among other buildings.

2 While it seems to have been erected by William Conolly, Speaker of the Irish House of Commons, as a hunting lodge in 1725, the National Inventory of Architectural Heritage (NIAH) states that it was built by Lord Rosse around 1740 (see para. 2.3.6 of the inspector's report noting the discrepancy). Presumably there is a definite answer to that, albeit that it may not have been clarified to the board.

3 The land is bisected by the Old Military Road/Killakee Road (R115). To the west is Montpelier Hill and Hellfire Forest, and to the east is Massy's Wood. Part of the old Military Road is itself on the National Inventory of Architectural Heritage with a date of approximately 1780.

4 Massy's Wood takes its name from the family of the sixth Baron Massy who inherited the lands in 1880. The lands were part of the demesne of Killakee House which originally included formal gardens and walled gardens, as well as glasshouses designed by the ironmaster Richard Turner, more famous for the Palm Houses in Kew Gardens, Belfast Botanical Gardens and the Royal (later National) Botanical Gardens in Glasnevin. The remains of the walled gardens are a protected structure (RPS 384).

5 The concept of a Dublin Mountains Visitor Centre in the area was first proposed in the 2007 Dublin Mountains Strategic Development Plan for Outdoor Recreation. It was subsequently identified in the South Dublin Tourism Strategy 2014 and as an objective in the 2016 to 2022 South Dublin Development Plan.

6 Detailed presentations were made by the Chief Executive of South Dublin County Council to the elected members and landowners in February and March 2017 and public open days were held in April 2017.

7 Under s. 120(3)(b) of the Planning and Development Act 2000, the council requested the board to determine whether it was required to carry out an environmental impact statement (EIS). The inspector recommended that the council should not be required to prepare an EIS.

8 On 8th May, 2017, the board decided to the contrary and directed the council to do so, referring to the impact of the increase in visitors on the historical and archaeological heritage of the area.

9 On 16th May, 2017, the deadline for transposition of directive 2014/52/EU, the amending EIA directive, fell due. However, the directive was not in fact transposed until 1st September, 2018 although no point is taken on that here.

10 In lieu of an EIS, an environmental impact assessment report (EIAR) was submitted with the application.

11 On 12th June, 2017, a further presentation to elected members was made and the council agreed that an application for permission would be submitted to the board.

12 In July 2017, the Dublin Mountains Visitor Centre Business Plan final report was prepared by CHL Consulting Company Ltd. This document included a summary of demand projections based on an estimated pre-existing cohort of local amenity users of 100,000 per year and a “prudent estimate” of growth to 225,000 per year with a target for 300,000 for the subsequent five-year period.

13 The document modishly divides the public into “consumer segments” such as the “culturally curious (overseas)”, “social energisers (mainly UK)”, “connected families (domestic)” and “great escapers (overseas)”. It states that a number of assumptions have been made to model the performance of the visitor's centre which “for the most part are drawn from CHL's experience of trends and norms in the visitor attraction sector. In most cases the assumptions made tend to err on the side of caution”. Caution here means that the report is not tending to overstate visitor numbers or revenue.

14 The formal application for a visitor's centre and associated works was submitted directly to the board under s. 175 of the 2000 Act on 31st July, 2017. The lands concerned are owned by Coillte, which is consenting to the application. No part of the development is within a European site.

15 The main elements of the application are for two buildings comprising the visitor centre, a tree canopy walk/pedestrian bridge over the R115, conversion of conifer forest to deciduous woodland and conservation works to existing structures.

16 On 5th September, 2017, the board requested the council to submit additional information by way of a shapefile showing the...