Hellfire Massy Residents Association v an Bord Pleanála

JurisdictionIreland
JudgeMr. Justice O'Donnell
Judgment Date24 October 2022
Neutral Citation[2022] IESC 38
CourtSupreme Court
Docket NumberS:AP:IE:2021:000126
Between/
Hellfire Massy Residents Association
Appellant
and
An Bord Pleanála, The Minister for Housing, Planning & Local Government, Ireland and The Attorney General
Respondents

and

South Dublin County Council
Notice Party

[2022] IESC 38

O'Donnell C.J.

Dunne J.

Woulfe J.

Hogan J.

Murray J.

S:AP:IE:2021:000126

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Development consent – Strict protection – Public participation – Appellant 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 the substantive judgment ([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. In the second judgment ([2021] IEHC 636), Humphreys J refused leave to appeal to Court of Appeal. The third judgment ([2021] IEHC 771) concerned the joinder of two amici curiae. In the fourth judgment ([2022] IEHC 2), Humphreys J held that 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 of the European Union (CJEU) under art. 267 of the Treaty on the Functioning of the European Union. The appellant, Hellfire Massy Residents Association, appealed to the Supreme Court. The third and fourth questions raised issues over the procedure which was followed or might have to be followed in respect of disturbance of habitats. In particular, the third question raised the issue of whether the parallel process of development consent and derogation licences under the 2011 Regulations was one which required to be integrated. The High Court judge had expressed the provisional view that this separation of the system was not compatible with the requirements of European law and, in particular, the requirement of strict protection under the Habitats Directive, 2009/147/EC. It was at least possible that the CJEU may take the same view. If so, it was argued, it would follow that Irish law would in some respect be deficient, and it was argued, that it must also follow that the permission which, on this argument would have been granted under a flawed and unlawful procedure, was invalid and should be quashed. However, the dismissal of the claim for certiorari would preclude that possibility. It follows therefore, it was argued, that the High Court was wrong to dismiss the claim for certiorari of the permission, and that the proper course was to have adjourned the question of the validity of the development permission pending the determination of the reference.

Held by O'Donnell CJ that Humphrey J’s analysis of what was his own judgment and reference was correct. O'Donnell CJ found that, whatever the precise parameters of the pleading, the validity of the planning permission at issue could not be affected by the outcome of the applicant’s challenge to the validity of the 2011 Regulations insofar as it provides for a post-consent derogation. O’Donnell CJ held that the outcome of that particular challenge would have to await the outcome of the CJEU’s determination; yet, as that outcome could not affect the validity of the planning permission at issue, Humphreys J was correct in the circumstances to hold that the mere existence of that challenge to the validity of the 2011 Regulations could not – and should not – preclude the High Court from dismissing certiorari proceedings directed towards the invalidity of the permission.

O'Donnell CJ dismissed the appeal.

Appeal dismissed.

Judgment of Mr. Justice O'Donnell, Chief Justice, delivered on the 24th October, 2022.

1

. This appeal raises a novel point which illustrates the complexity of planning law and judicial review procedure particularly when, as is almost now universally the case, issues of European law are sought to be relied upon.

2

. The development which is the subject matter of these proceedings is a proposed visitor centre near the Hellfire Club, an 18th Century building at the summit of Montpelier Hill in County Dublin. It is proposed that it would be developed by the South Dublin County Council (“the Council”), which is the notice party. The development of a Dublin Mountain Visitor Centre was first proposed in 2007, and was identified as an objective in the 2016–2022 South Dublin Development Plan. The details of the development and the somewhat tortuous planning history are set out in four judgments delivered by the learned High Court judge in this matter:-

(i) [2021] IEHC 424 (the substantive judgment and the subject matter of this appeal — “Judgment Number 1”);

(ii) [2021] IEHC 636 (Refusal of leave to appeal to Court of Appeal – “Judgment Number 2”);

(iii) [2021] IEHC 771 (joinder of two amici curiae – “Judgment Number 3”); and

(iv) [2022] IECH 2 (ruling re: questions for Article 267 reference to the Court of Justice of the European Union (“CJEU”) – “Judgment Number 4”)

For present purposes, however, it is possible to focus upon a small subset of issues raised and facts addressed in the proceedings while, however, keeping in mind that the issues starkly highlighted in this appeal were only a small part of a larger and more detailed and complex piece of litigation.

3

. After discussions at County Council level and public open days, the planning process was commenced by an application in 2017 to An Bord Pleanála (“the Board”) pursuant to the Planning and Development Act, 2000 as amended (“the 2000 Act”) for a determination of whether the Council was required to carry out an Environmental Impact Assessment (“EIA”). The Inspector appointed by the Board recommended that the Council should not be so required, but the Board decided to the contrary, having regard to the impact of increased visitor numbers on historical and archaeological heritage. Accordingly, in July, 2017, an application for permission was submitted to the Board pursuant to s. 175 of the 2000 Act accompanied by an Environmental Impact Assessment Report (“EIAR”). The main elements of the proposed development were two buildings comprising the visitor centre, a tree canopy walk/pedestrian bridge over the old Military Road, R115, and the proposed conversion of conifer forest to deciduous woodland. Further information was requested, and a further round of public consultation ensued, culminating in an oral hearing of six days duration. The Inspector's report raised concerns relating to biodiversity in relation to the impact on squirrels and bats. The report also raised concerns as to the appropriate assessment relating to the impact on European sites.

4

. Following the receipt of the report, the Board requested further information and a revised EIAR was submitted. The Inspector concluded that, while there had been obvious gaps in the information provided initially, those lacunae had been addressed, and the Board then decided to approve the application subject to a number of conditions.

5

. The applicant challenged the decision on, what the High Court judge described as, “a modest 98 grounds”, resulting in extensive pleadings and the delivery of lengthy legal submissions by the parties. For present purposes, however, it is relevant to note that the respondents to the proceedings were the Board, which had granted the permission sought to be challenged, and the Minister for Housing Planning and Local Government, Ireland and the Attorney General (“the State Bodies”), and that South Dublin County Council, the proposed developer, was a notice party. The trial judge with commendable lucidity and brevity rejected two domestic law points of challenge relating to the assessment of visitor numbers, and compliance with the public consultation provisions of the 2000 Act, and also dismissed challenges contending that there had been inadequate assessment by reference to identified European law provisions. No issue now arises in relation to any of these grounds.

6

. In addition to these challenges relating to the manner in which the permission process was conducted, the applicant also raised an issue in relation to the validity of the public participation provisions contained in s. 175 of the 2000 Act and had also challenged the validity of Regulations 51 and 54 of the European Communities Birds and Natural Habitats Regulations of 2011 (S.I. 477 of 2011) (“the 2011 Regulations”) which in turn implemented the Habitats Directive, 2009/147/EC, as amended (“the Habitats Directive”). Again, the High Court judge rejected the challenge to s. 175 and no issue now arises in relation thereto. However, this appeal is concerned with the challenge to the 2011 Regulations and what flows from that.

7

. As the trial judge observed, the pleadings in this regard are not entirely clear and it will accordingly be necessary to set them out in detail. However, before doing so, it is important to explain the particular factual issue that arises, and by reference to which the claim was made.

8

. The particular focus of the applicant's challenge were the provisions of Regulations 51 and 54 of the 2011 Regulations. The 2011 Regulations themselves implement the Habitats Directive, and, among other things, create an offence of interfering with, destroying, or causing the deterioration of, habitats. Regulations 51 to 54 (and, indeed, 55) however, provide for the possibility of derogation from the 2011 Regulations in certain circumstances. As one might expect, it is possible that issues may arise in relation to interference with the habitat and the possibility of seeking a...

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6 cases
  • O'Donnell and Others v an Bord Pleanála and Others
    • Ireland
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    • July 5, 2023
    ...been demonstrated here). 130 . I make this point because we have already seen in Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38, ( [2022] 10 JIC 2402 Unreported, Supreme Court, 24th October, 2022) that applicants can make illogical claims that all parts of their cas......
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    ...“own motion obligation”, which AG Kokott says has been widely misunderstood. 79 Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 (Supreme Court, O'Donnell CJ, 24 October 2022). 80 The Board of Management of St. Audeon's National School v. An Bord Pleanála [2021] IEHC ......
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    ...“generally”, as opposed to meaning it was a strict rule. 871 Hellfire Massy Residents Association v. An Bord Pleanála [2022] IECH 2 & [2022] IESC 38. 872 §§41 & 44 & 873 Hickwell v Meath County Council [2022] IEHC 631. ...
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    ...matters. Such matters can be dealt with by way of declaration (see by analogy Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 (Unreported, Supreme Court (O'Donnell C.J.), 11 th October, 109 . In the light of the applicant's affidavit, it seems to me that there are su......
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