Hellfire Massy Residents Association v an Bord Pleanála, The Minister for Housing, Heritage and Local Government (by Order), Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 14 January 2022
• Neutral Citation: [2022] IEHC 2
• Court: High Court
• Docket Number: [2020 No. 568 JR]

Between

Hellfire Massy Residents Association

Applicant

and

An Bord Pleanála, The Minister for Housing, Heritage and Local Government (By Order), Ireland and The Attorney General

Respondents

and

South Dublin County Council

Notice Party

[2022] IEHC 2

[2020 No. 568 JR]

THE HIGH COURT

JUDICIAL REVEW

Development consent – Strict protection – Public participation – Applicant challenging the validity of regs. 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 – Whether the procedure for grant of development consent was not integrated with the system of strict protection

Facts: The High Court (Humphreys J), in Hellfire Massy Residents Association v An Bord Pleanála (No. 1) [2021] IEHC 424, dismissed the proceedings save insofar as they concerned a challenge to the validity of regs. 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) regarding the process to be adopted after the grant of development consent. The essential ground of challenge to the legislation was that firstly the procedure for grant of development consent is not integrated with the system of strict protection for the purpose of art. 12 of the habitats directive 92/43/EEC, and secondly that the system of strict protection as implemented in Ireland does not provide for proper public participation.

Held by Humphreys J that, as discussed in the No. 1 judgment, four questions of European law that related to the interpretation of EU law and that were necessary for the decision arose from the substantive grounds, and he considered it appropriate in all circumstances to make a reference to the Court of Justice under art. 267 TFEU.

Humphreys J referred the following questions to the CJEU pursuant to art. 267 TFEU: (i) 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 Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998 as an integral part of the EU legal order; (ii) whether arts. 12 and/or 16 of directive 92/43/EEC and/or those provisions as read in conjunction with art. 9(2) of the Aarhus Convention and/or in conjunction with the principle that member states must take all the requisite specific measures for the effective implementation of the directive 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; (iii) whether arts. 12 and/or 16 of directive 92/43/EEC and/or those provisions as read in conjunction with arts. 6(1) to (9) and/or 9(2) of the Aarhus Convention Convention and/or with the principle that member states must take all the requisite specific measures for the effective implementation of the directive 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; (iv) whether arts. 12 and/or 16 of directive 92/43/EEC and/or those provisions as read in conjunction with arts. 6(1) to (9) and/or 9(2) of the Aarhus Convention 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.

Reference to CJEU.

(No. 4)

JUDGMENT of Humphreys J. delivered on Friday the 14th day of January, 2022

Subject matter of the dispute

1 The applicant challenges the validity of the Irish legislation regarding strictly protected species set out in regulations adopted to give effect to the habitats directive 92/43/EEC and the birds directive 2009/147/EC. This challenge to the legislation arose in the context of a challenge to a development consent granted, with conditions, on 25th June, 2020 by An Bord Pleanála (“the board”) to South Dublin County Council (“the council”) for two buildings comprising a visitor centre at Montpelier Hill in County Dublin, a tree canopy walk/pedestrian bridge over the R115, conversion of conifer forest to deciduous woodland and conservation works to existing structures.

Facts

2 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.

3 On 8th May, 2017, the board decided that an EIS was required, referring to the impact of the increase in visitors on the historical and archaeological heritage of the area.

4 On 16th May, 2017, the deadline for transposition of directive 2014/52/EU fell due. However, the directive was not in fact transposed until 1st September, 2018.

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

6 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.

7 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.

8 The document 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.

9 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.

10 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.

11 On 5th September, 2017, the board requested the council to submit additional information by way of a shapefile showing the red-line boundary.

12 On 9th October, 2017, the board requested further information in relation to potential impacts on fauna and habitats which had been raised in a submission from the Department of Culture, Heritage and the Gaeltacht on 25th September, 2017.

13 The council responded to this request in November 2017, and that response was subjected to a round of public consultation.

14 On 7th February, 2018, the board requested additional information in relation to potential impacts on specified matters, in particular the Wicklow Mountains Special Protection Area (SPA).

15 An oral hearing took place over six days between 20th and 27th November, 2018.

16 On 9th January, 2019, the inspector prepared a first report which was negative in nature. It indicated that the inspector was satisfied with the issues of proper planning, zoning and design, but considered that the impact of the bridge had not been fully assessed. The inspector thought that very little surveying had been carried out in Massy's Woods (para. 10.3.11). Certain aspects of the design were queried.

17 An issue had been raised as to the identity...