Hellfire Massy Residents Association v an Bord Pleanála and Others (No.5)
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 27 October 2023 |
| Neutral Citation | [2023] IEHC 591 |
| Court | High Court |
| Docket Number | [2020 No. 568 JR] |
and
[2023] IEHC 591
[2020 No. 568 JR]
THE HIGH COURT
JUDICIAL REVEW
(No. 5)
JUDGMENT of Humphreys J. delivered on Friday the 27th day of October, 2023
. This is the eighth judgment or decision arising from these proceedings, the applicant having lost on all grounds to date.
. 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 decided in principle to refer certain questions to the CJEU having dismissed the applicant's proceedings on other points.
. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 2) [2021] IEHC 636, ( [2021] 10 JIC 1302 Unreported, High Court, 13th October, 2021), I refused leave to appeal to the Court of Appeal in relation to the dismissed matters.
. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 3) [2021] IEHC 771 I added two amici curiae.
. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 4) [2022] IEHC 2, [2022] 1 JIC 1406 I made the formal order for reference.
. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 5) [2022] IESCDET 21 the Supreme Court granted an application for leapfrog leave to appeal in relation to the dismissed matters.
. In Hellfire Massy Residents Association v. An Bord Pleanála (No. 6) [2022] IESC 38, [2022] 10 JIC 2402 (O'Donnell C.J.) Hellfire 2022 IESC 38 the Supreme Court dismissed the appeal on the merits.
. In judgment of 6 July 2023, Hellfire Massy Residents Association v An Bord Pleanála & Ors, C-166/22, ECLI:EU:C:2023:545, the CJEU (Seventh Chamber) answered the referred questions as follows:
“Articles 12 and 16 of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora must be interpreted as meaning that a piece of national legislation intended to transpose those provisions into national law cannot be regarded as contrary to that directive on the ground that that piece of national legislation does not provide for (i) a development consent procedure which involves a decision by a competent authority determining whether it is necessary to apply for a derogation under Article 16 of the abovementioned directive because of matters identified following the grant of development consent to a project and/or whether surveys are required to that end or (ii) public participation in that derogation procedure.”
. Accordingly I am now resuming the main proceedings in order to determine them in accordance with the judgment of the CJEU.
. The applicant now seeks declaratory relief. It also seeks costs irrespective of whether a declaration is granted or not.
. As noted in previous judgments, 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.
. 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.
. 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.
. An oral hearing took place over six days between 20th and 27th November, 2018.
. 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.
. Her main concerns were with biodiversity, noting the impact on squirrels from both clear-felling for the car park and replacement of coniferous trees with deciduous trees. The latter would give the invasive grey squirrel the advantage in its ongoing battle with the native red squirrel (see para. 11.6.5).
. She notes that a squirrel drey was recorded (para. 11.6.16) and also referred to mitigation measures (para. 11.6.17). Observers provided evidence of other dreys in Massy's Woods (para. 11.6.19) and she noted the intention to conduct a pre-construction survey.
. The report noted that the EIAR table 6.16 notes that there will be a loss of a drey and a further information response notes that a derogation licence would be sought to destroy one drey (para. 11.6.20). The inspector said that this was contradicted at the oral hearing in that it was stated that the design of the car park was arranged to avoid the drey.
. Following further information and public participation, the inspector then produced an addendum to the report on 6th May, 2020.
. The inspector thought that “there were obvious gaps in the information initially provided”, but “I am satisfied that those lacunae have been addressed” (para. 5.4.26). She noted that the NPWS was of the same view and generally considered that matters had been adequately addressed.
. On foot of that addendum and the original report, the board decided to approve the application, with conditions, on 25th June, 2020.
. The board's decision states that it had regard, among other things, to the habitats directive 92/43/EEC, the birds directive 79/409/EEC, the water framework directive 2000/60/EC and the EIA directive 2014/52/EU amending directive 2011/92/EU. Regard was also had to national, regional and local policy to the objectives and interests of the Wicklow Mountains SPA (004040) and the Wicklow Mountains SAC (002122).
. The board completed an appropriate assessment exercise and concluded there was no adverse effect on European sites. It also completed an environmental impact assessment and concluded that the main direct and indirect effects would be mitigated as set out in the decision. The conclusion was that “subject to the implementation of the mitigation measures proposed … and subject to compliance with the conditions set out … the effects on the environment of the proposed development … would be acceptable”.
. While the inspector had recommended to omit the tree-top bridge and canopy and bridleway in Massy's Woods, the board decided not to omit that element, essentially on the basis of the further ecological information and surveys.
. The board concluded that the proposed development would be in accordance with proper planning and sustainable development. Nine conditions were imposed including applying the mitigation measures in the EIAR (condition 2) and the NIS (condition 3), a revised forestry management plan to retain the majority of mature conifers on the Hellfire plantation to support the red squirrel (condition 5), and the engagement of an ecological clerk of works (condition 7).
. The proceedings were instituted on 14th August, 2020, seeking certiorari of the permission granted and various declaratory reliefs.
. An outline of the procedural history can be gathered from the judgments referred to above.
. A first module related to the validity of the permission. That was determined against the applicant, a decision that was upheld on appeal. The court then turned to the declaratory relief, and referred questions to the CJEU in that regard.
. Following the judgment of the CJEU, correspondence took place between the parties from 21st July, 2023 onwards, as to what order if any the court should make in the light of the decision of the CJEU.
. The hearing of the present, final module in the proceedings which deals with whether to grant declaratory relief in the light of the judgment of the CJEU, took place on 23rd October, 2023.
. The relief sought in the amended statement of grounds is as follows:
“D. Reliefs:
1. An Order of Certiorari by way of application for judicial review quashing the decision of the First Respondent (“The Board”) dated 25th June 2020 to approve the construction of a visitors centre, car park and associated works at Montpelier Hill in south County Dublin.
2. Such declaration(s) of the legal rights and/or legal position of the applicant and/or persons similarly situated and/or the legal duties and/or legal position of the Respondents and as the court considers appropriate.
2. A Declaration that the public consultation process adopted by the Notice Party (‘the Council’) breached the public participation rights and the rights to fair procedures of the Applicant.
3. A Declaration that the public consultation procedure provided by the Second Respondents contained in section 175 of the Planning and Development Act 2000 is incompatible with the requirements of the EIA Directive and/or breaches the Applicant's rights to fair procedures, constitutional rights and rights to effective public participation.
4. A Declaration that the Board erred in law...
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