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

• Jurisdiction: Ireland
• Court: High Court
• Judge: Humphreys J.
• Judgment Date: 13 October 2021
• Neutral Citation: [2021] IEHC 636
• Docket Number: [2020 No. 568 JR]

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 636

[2020 No. 568 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Judicial review – Leave to appeal – Applicant seeking leave to appeal – Whether the High Court was correct to conclude that the validity of the planning permission could be upheld, notwithstanding that the Court had referred a question to the Court of Justice of the European Union on an issue that was integral to that permission

Facts: The High Court (Humphreys J), on 2nd July, 2021, in Hellfire Massy Residents Association v An Bord Pleanála (No. 1) [2021] IEHC 424, dismissed the application for certiorari of the impugned planning permission in the case and decided in principle to refer certain separate issues to the CJEU which arose out of a challenge to the legislative scheme in relation to derogation licences. The applicant, Hellfire Massy Residents Association, sought leave to appeal under s. 50A(7) of the Planning and Development Act 2000. The applicant’s first three proposed questions of exceptional public importance related to environmental impact assessment (EIA): “1. What are the legal requirements on a Developer and the Competent Authority in identifying and assessing the predicted major impact of a development? Is it appropriate to rely on estimates based on cautious assumptions for the purposes of Environmental Impact assessments? Is that consistent with the precautionary principle. Were those requirements correctly applied in this case? 2. To what extent is the task on the Competent Authority effected (sic) by the absence of any alternative statistical analysis submitted in the course of the permission procedure? 3. How is the test of “flawed on its face by a reasonable expert” to be applied? Was it applied correctly here?” The applicant’s fourth proposed question of exceptional public importance was: “[w]as the High Court correct to conclude that the validity of the planning permission could be upheld, notwithstanding that the Court has referred a question to the Court of Justice of the European Union on an issue that is integral to that permission?”

Held by Humphreys J that the vague and general terms of the first three questions invited a discursive, roving, write-an-essay type response, illustrative of the insufficiently defined nature of the actual points involved: S.A. v Minister for Justice and Equality (No. 2) [2016] IEHC 646. He held that the applicant’s points were not in fact properly pleaded: para. 57 of the No. 1 judgment. He held that, as put in the submission of the first respondent, An Bord Pleanála, “the Applicant’s aforesaid contentions bear little to no relation or comparison to its written submissions dated 20th May 2021 (for the substantive hearing) as regards the issue of estimated visitor numbers”. He noted that, as Noonan J pointed out in Ross v An Bord Pleanála (No. 2) [2015] IEHC 484, it is generally inappropriate to grant leave to appeal on the basis of a point that has not been properly pleaded. Humphreys J held that there was a lack of an adequate evidential basis for the challenge. He held that the vague nature of the questions disguised the fact that the real impact of the applicant’s points was very fact-specific. Regarding the fourth question, he held that, as pointed out in the No. 1 judgment, the derogation legislation argument was pleaded against the State, not as a ground for certiorari, and the argument that this issue was “integral to th[e] permission” did not arise on the facts: para. 61 of the No. 1 judgment.

Humphreys J held that the application for leave to appeal would be dismissed, the order refusing certiorari should be perfected and in respect of the relief against the State which remained outstanding, the parties should complete the Eco Advocacy directions (Eco Advocacy CLG v An Bord Pleanála [2021] IEHC 265), in order to enable the order for reference to the CJEU to be finalised.

Application dismissed.

JUDGMENT of Humphreys J. delivered on Wednesday the 13th day of October, 2021

1 In Hellfire Massy Residents Association v. An Bord Pleanála (No. 1) [2021] IEHC 424, ( [2021] 7 JIC 0201 Unreported, High Court, 2nd July, 2021), I dismissed the application for certiorari of the impugned planning permission in this case and decided in principle to refer certain separate issues to the CJEU which arise out of a challenge to the legislative scheme in relation to derogation licences.

2 The applicant now seeks leave to appeal under s. 50A(7) of the Planning and Development Act 2000 and I have considered the relevant law, in particular Arklow Holidays Ltd. v. An Bord Pleanála [2006] IEHC 102, [2007] 4 I.R. 112, S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646, ( [2016] 11 JIC 1404 Unreported, High Court, 14th November, 2016), Heather Hill Management Company CLG v. An Bord Pleanála [2019] IEHC 820, [2019] 12 JIC 0502 (Unreported, High Court, Simons J., 5th December, 2019), Halpin v. An Bord Pleanála [2020] IEHC 218, [2020] 5 JIC 1501 (Unreported, High Court, Simons J., 15th May, 2020), Rushe v. An Bord Pleanála [2020] IEHC 429, [2020] 8 JIC 3101 (Unreported, High Court, Barniville J., 31st August, 2020), Dublin Cycling Campaign CLG v. An Bord Pleanála [2021] IEHC 146, [2021] 2 JIC 2508 (Unreported, High Court, McDonald J., 25th February, 2021).

Applicant's proposed questions 1 to 3 – environmental impact assessment

3 The applicant's first three proposed questions of exceptional public importance relate to environmental impact assessment (EIA):

• “1. What are the legal requirements on a Developer and the Competent Authority in identifying and assessing the predicted major impact of a development? Is it appropriate to rely on estimates based on cautious assumptions for the purposes of Environmental Impact assessments? Is that consistent with the precautionary principle. Were those requirements correctly applied in this case?

• 2...