Merriman v Fingal County Council

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Max Barrett
Judgment Date21 November 2017
Neutral Citation[2017] IEHC 695
Date21 November 2017
Docket Number2017 No. 201 JR
(1) BETWEEN:
HELENA MERRIMAN, MICHAEL REDMOND, ADRIENNE MCDONNELL, PETER COLGAN, ELIZABETH MCDONNELL, TREVOR REDMOND, PATRICIA DEIGHEN, MARGARET THOMAS, NOEL REILLY, HELEN GILLIGAN, JAMES SCULLY, FERGUS RICE, NOEL DEEGAN, VALERIAN SALAGEAN, SIDNEY RYAN, GREG FARRELL, SHEELAGH MORRIS, JIMMY O'CONNELL, SILE HAND, DECLAN MCDONNELL, ELIZABETH ROONEY

&

DESMOND O'CONNOR
Applicants
– AND –
FINGAL COUNTY COUNCIL
First Respondent
– AND –
IRELAND

AND

THE ATTORNEY GENERAL
Second and Third Respondents
– AND –
DUBLIN AIRPORT AUTHORITY PLC
First Notice Party
– AND –
RYANAIR DAC
Second Notice Party
(2) BETWEEN:
FRIENDS OF THE IRISH ENVIRONMENT CLG
Applicant
– AND –
FINGAL COUNTY COUNCIL
Respondent
– AND –
DUBLIN AIRPORT AUTHORITY PLC
First Notice Party
– AND –
IRELAND

AND

THE ATTORNEY GENERAL
Second and Third Notice Parties
– AND –
RYANAIR DAC
Fourth Notice Party

[2017] IEHC 695

Barrett J.

2017 No. 201 JR

2017 No.344 JR

THE HIGH COURT

Environment, Construction & Planning – S. 42 of the Planning and Development Act 2000 – Development Consent – EIA Directive – Extension of planning permission – Public interest – Certiorari – Locus standi

Facts: The applicants in relation to both the proceedings sought an order of certiorari for quashing the decision of the local county council for refusing the applicants' submissions in relation to the proposed extension of the appropriate period of construction of the runaway. The applicants contended that the said extension was in breach of the EIA directive and the applicants' right to participation in the process involving that extension. The respondents alleged that they had complied with their obligations under s. 42 of the Planning and Development Act 2000 ('PADA').

Mr. Justice Max Barrett refused to grant the desired reliefs to the applicants in both the proceedings. The Court found that the discretion under s. 42 of PADA was limited in nature and the planning authority had no choice but to extend the duration of planning permission if the required conditions were complied with by the applicants. The Court further held that in reading the section as a whole, it was clear that the legislature had never intended to make public participation as an element of the permission granted under s. 42. The Court also observed that the applicant, in the second proceeding, did not have a locus standi to challenge the present proceedings as it did not participate in the planning process at all and the said permission was not granted under art. 11 of the EIA as asserted by that applicant.

JUDGMENT of Mr Justice Max Barrett delivered on 21st November, 2017.
TABLE OF CONTENTS

(Numbers in square brackets are paragraph numbers)

A. INTRODUCTION

I. The Applications and the Parties [1]

II. The Nature of the Permission Granted [6]

III. Three Preliminary Points [9]

(i) Impermissible Collateral Attack. [9]

(ii) Standing. [13]

(iii) Utterances in the Oireachtas. [18]

(iv) Judgment Notwithstanding. [21]

IV. Standard of Review and Ultra Vires Arguments [22]

(i) Standard of Review. [22]

(ii) Arguments as to Vires. [24]

a. Overview. [24]

b. Considerations of a Commercial, Economic or Technical Nature. [27]

c. The Commencement/Extent of the Works. [29]

V. A Minor Point of Style [34]

B. THE PREVIOUS PROCESS

VI. The Process that Preceded the New Runway Permission [35]

(i) Overview. [35]

(ii) Mr Byrne's Evidence. [37]

(iii) The Report of An Bord Pleanála's Inspector. [38]

C. SECTION 42

VII. The Substance of Section 42 [47]

VIII. Some General Observations Concerning Section 42 [50]

IX. Section 42(2)-(4) and (6) of PADA [51]

(i) Section 42(2). [52]

(ii) Section 42(3). [55]

(iii) Section 42(4). [57]

(iv) Section 42(6). [58]

X. Extent of Discretion Arising under Section 42 [61]

XI. Some Case-Law on Section 42 [62]

(i) Overview. [62]

a. Coll v. Donegal County Council and anor. [63]

b. McDowell and anor v. Roscommon County Council. [65]

c. State (McCoy) v. The Corporation of Dún Laoghaire. [68]

d. Lackagh Quarries Ltd v. Galway City Council. [73]

XII. Conclusion [81]

XIII. Constitutionality of Section 42 [83]

D. THE AMENDED STATEMENT OF GROUNDS AND CERTAIN AFFIDAVIT EVIDENCE

XIV. The Amended Statement of Grounds [84]

XV. Ms Merriman's Affidavit Evidence [88]

E. SOME PRINCIPAL DOCUMENTS

XVI. The Planning Permission [91]

XVII. The Application for Extension of Duration of Permission [92]

XVIII. The Letter of 11th January, 2017 [97]

XIX. Fingal County Council's Consideration of the Extension Application [111]

XX. Ms Merriman's Letter of 27th January, 2017 and the Reply Received [121]

F. CERTAIN CASE-LAW
XXI. The Decision in Dellway [124]

(i) Introduction. [124]

(ii) Overview of Decision and Conclusions. [129]

a. Decision. [129]

b. Conclusions. [131]

(iii) Judgment of Fennelly J. [132]

a. Overview. [132]

b. Effect on Rights and Diminution in Property Values. [133]

(vi) Blinkered Focus on Facts at Hand? [148]

G. THE ENVIRONMENTAL IMPACT DIRECTIVE

XXII. Is a Decision under Section 42 a "Development Consent"? [150]

XXIII Some General Points [157]

(i) A Ten-Year Permission. [157]

(ii) Transposition. [160]

XXIV. Some Case-Law of Interest [164]

(i) Križan v. Slovakia. [164]

(ii) R. (Wells) v. Secretary of State for Transport, etc. [177]

a. Facts. [177]

b. The Decision of the Court of Justice. [182]

(iii) Some post-Wells Irish case law. [184]

a. Dunne v. Minister for the Environment [184]

b. Lackagh Quarries Ltd v. Galway City Council [186]

XXV. No Requirement as to Further Public Participation [188]

H. ASPECTS OF THE CASE 2 APPLICANT'S CASE

XXVI. Background Facts [191]

XXVII. The Statement of Grounds [192]

(i) Some Aspects of the Statement of Grounds. [192]

(ii) Some Case-Law of Relevance. [198]

XXVIII. Some General Submissions by the Case 2 Applicant [205]

XXIX. Climate Change [206]

(i) Overview. [206]

(ii) The IPCC Report and Professor Bows-Larkin's Observations. [207]

a. The IPCC Report. [207]

b. Professor Bows-Larkin's Observations. [209]

(iii) Climate Action and Low Carbon Development Act 2015. [211]

(i) Article 267 TFEU. [221]

(ii) Development Consent and Continuing Process. [224]

(iii) Commission v. Ireland. [226]

(iv) Change or Extension to Project Already Authorised. [228]

a. General. [228]

b. Pro-Baine ASBL and Others. [231]

XXXI. The Habitats Directive [233]

(i) Submission Made. [233]

(ii) No Issue Presents. [235]

(iii) Bald Assertions. [237]

(iv) European Communities (Birds and Natural Habitats) Regulations 2011. [239]

(v) Conclusion. [240]

I. THE CONSTITUTION AND THE CONVENTION

XXXII. Constitutional Right Contended For [241]

XXXIII. Consensus? [242]

XXXIV. Recognising Expressly a Right Not Previously Recognised Expressly [243]

XXXV. Caution Required [247]

(i) I O'T. v. B. [247]

XXXVI. The Parameters of the Right Contended For. [253]

XXXVII. Who Decides? [256]

XXXVIII. Companies and Personal Rights. [258]

XXXIX. Conclusion as to Constitutional Right Contended For. [261]

J. LEAVE AND CONCLUSION

XLI. Case 1 Applicants [272]

XLII. Case 2 Applicant [273]

A. INTRODUCTION
I
The Applications and the Parties
1

The above-named applications ostensibly concern a decision made by Fingal County Council earlier this year to grant an extension to a planning permission of 2007 pursuant to which Dublin Airport Authority has permission to construct a new runway and do certain related works at Dublin Airport (the "new runway permission").

2

The individuals named as applicants in the first application (the "Case 1 Applicants") are all householders, so-called "ordinary" people seeking, as their counsel put it at hearing ' to protect their homes from being overwhelmed by a runway or in fact more particularly, being overwhelmed by an administrative process which is trundling down a runway toward them and has been for the last ten years'.

3

The sole applicant in the second application (the "Case 2 Applicant") is a limited company whose objects include the protection of the Irish environment. It is a member of the Irish Environmental Network and the European Environmental Bureau. In recent years, it has been especially concerned as to the growing impact of human activities on the environment and, in particular, the impact on our climate of the increasing production of greenhouse gases.

4

As will be seen, the applications brought by the householders and Friends of the Irish Environment are not identical. However, they overlap to such an extent that the two applications were heard in tandem, the arguments of the two sets of applicants greatly overlap, and it is possible to adjudicate on their applications in a single judgment, though some elements of the judgment, as will be seen, are particular to one or other of the applications brought. One point of distinction is that the Case 1 Applicants have not previously been given leave to bring judicial review. What they have received is what is sometimes referred to as a "telescoped hearing" in which application has been made on notice to seek judicial review, with the court to decide (i) whether to grant leave, and, if so, (ii) whether to grant relief? By contrast, the Case 2 Applicant has been given leave to bring judicial review proceedings and the court is therefore, only concerned with whether or not relief should be granted.

5

The respondents and notice parties are well-known persons and...

To continue reading

Request your trial
12 cases
  • Barford Holdings Ltd v Fingal County Council
    • Ireland
    • High Court
    • 29 Marzo 2023
    ...occasions ( State (McCoy) v Lackagh Quarries Ltd v. Galway City Council [2010] IEHC 479 (“ Lackagh”); Merriman v. Fingal County Council [2017] IEHC 695; [2018] IEHC 65 (“ Merriman”), been held to preclude the Council from considering the Habitats Directive or the EIA Directive when making a......
  • Friends of the Irish Enviroment CLG -v -The Government of Ireland
    • Ireland
    • High Court
    • 19 Septiembre 2019
    ...with human dignity and reliance is placed in this regard on the decision of Barrett J. in Merriman v. Fingal County Council & Ors. [2017] IEHC 695. The existence of this right is much debated and disputed by the 74 With regard to those aspects of the claim which might be interpreted as sta......
  • DPP v S. A
    • Ireland
    • Court of Appeal (Ireland)
    • 16 Noviembre 2020
    ......On around 3rd December 2010, SA, after viewing properties in the County Louth area, rented a substantial detached house on its own grounds with ..., comprehensive but concise manner and in accordance with the Bar Council Code of Conduct. . . 46 The appellant submits that the ......
  • Friends of the Irish Environment Ltd v an Bord Pleanála
    • Ireland
    • High Court
    • 15 Febrero 2019
    ...to those arising in the within proceedings were recently considered by the High Court (Barrett J.) in Merriman v. Fingal County Council [2017] IEHC 695. In a reserved judgment delivered on 21 November 2017, the High Court ruled that the Habitats Directive did not apply to a decision to gra......
  • Request a trial to view additional results
4 books & journal articles
  • Whither Constitutional Environmental (Rights) Protection In Ireland After ?Climate Case Ireland'?
    • Ireland
    • Irish Judicial Studies Journal No. 2-21, July 2021
    • 1 Julio 2021
    ...of both 7 (n 2). 8 Climate Action and Low Carbon Development Act 2015, s 3. 9 Friends of the Irish Environment v Fingal County Council [2017] IEHC 695 [261]. 10 Orla Kelleher, ‘The Revival of the Unenumerated Rights Doctrine: A Right to an Environment and its Implications for Future Climate......
  • Our Herculean Judiciary?: Interpretivism and the Unenumerated Rights Doctrine
    • Ireland
    • Irish Judicial Studies Journal No. 1-20, January 2020
    • 1 Enero 2020
    ...Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law’ (2019 Dublin University Law Journal 141. 71 [2017] IEHC 695. See Orla Kelleher, ‘The Revival of the Unenumerated Rights Doctine: A Right to an Environment and its Implications for Future Climate Change Litigation......
  • Climate change migration and the views in Teitiota
    • Ireland
    • Irish Judicial Studies Journal No. 1-21, January 2021
    • 1 Enero 2021
    ...and Hari Osofsky, ‘A Rights Turn in Climate Change Litigation’ (2018) 7(1) Transnational Environmental Law 37-67, 66. 22 ibid 67. 23 [2017] IEHC 695. 24 ibid [265]. [2021] Irish Judicial Studies Journal Vol 5(1) 4 IRISH JUDICIAL STUDIES JOURNAL 4 The most prominent recent climate change cas......
  • Editorial
    • Ireland
    • Hibernian Law Journal No. 18-2019, January 2019
    • 1 Enero 2019
    ...of the Irish Environment CLG v Government of Ireland 2017/793 JR. 12 Friends of the Irish Environment CLG v Fingal County Council [2017] IEHC 695 [264]. Editorial xi Editorial Advisor, T P Kennedy, for the guidance he has provided to me all year, and for enthusiastically supporting and faci......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT