Sandymount and Merrion Residents Association v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 19 November 2013
• Neutral Citation: [2013] IEHC 542
• Docket Number: [No.29 J.R./2013]
• Court: High Court
• Date: 19 November 2013

[2013] IEHC 542

THE HIGH COURT

[No.29 J.R./2013]

Sandymount & Merrion Residents Association v Bord Pleanala & Ors

COMMERCIAL

JUDICIAL REVIEW

BETWEEN

SANDYMOUNT AND MERRION RESIDENTS ASSOCIATION

APPLICANT

AND

AN BORD PLEANÁLA

FIRST NAMED RESPONDENT

THE MINISTER FOR ARTS HERITAGE AND THE GAELTACHT

SECOND NAMED RESPONDENT

IRELAND AND THE ATTORNEY GENERAL

THIRD AND FOURTH NAMED RESPONDENTS

AND

DUBLIN CITY COUNCIL

NOTICE PARTY

EEC DIR 43/1992

PLANNING & DEVELOPMENT ACT 2000 S226

PLANNING & DEVELOPMENT ACT 2000 S175

PLANNING & DEVELOPMENT ACT 2000 S176

EEC DIR 43/1992 ART 2

EEC DIR 43/1992 ART 3

EEC DIR 43/1992 ART 4

EEC DIR 43/1992 ART 5

EEC DIR 43/1992 ART 6

EEC DIR 43/1992 ART 6(3)

FORESHORE ACT 1933 S3

EUROPEAN COMMUNITIES (BIRDS & NATURAL HABITATS) REGS 2011 SI 477/2011

MARLEASING v LA COMMERCIAL INTERNACIONAL DE ALIMENTACION 1992 1 CMLR 305 1993 BCC 421 1990 1 ECR 4135

PFEIFFER v DEUTSCHES ROTES KREUZ 2005 IRLR 137 2005 ICR 1307 2004 AER (D) 52 (OCT) 2004 ECR I-8835

PUPINO, IN RE 2005 3 WLR 1102 2006 QB 83 2006 AER (EC) 142 2005 ECR I-5285

EEC DIR 43/1992 ART 38

EEC DIR 43/1992 ART 27(2)

SOCIETA ITALIANA DRAGAGGI SPA v MINISTERO DELLE INFRASTRUTTURE E DEI TRANSPORTI 2005 ECR I-167 2005 AER (D) 62 (JAN)

BUND NATURSCHUTZ IN BAYERN EV v FREISTAAT BAYERN 2006 ECR I-8445 2006 AER (D) 76 (SEP)

EUROPEAN REPUBLIC v HELLENIC REPUBLIC UNREP CJEU 08.11.2012 CASE C-244/11

EEC DIR 43/1992 ART 21

EEC DIR 43/1992 ART 3(1)

FIRST CORPORATE SHIPPING, IN RE 2001 AER (EC) 177 2001 1 CMLR 511 2000 AER (D) 1712 2000 ECR I-9235

EEC DIR 337/1985 ART 10(A)

PLANNING & DEVELOPMENT ACT 2000 S50(B)

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S33

PLANNING & DEVELOPMENT (AMDT) ACT 2010 S33(4)

PLANNING AND ENVIRONMENTAL LAW

Development

European Union law - Habitats - Special area of conservation - Natura 2000 site - Judicial review - An Bord Pleanála - Consent to public authority development - Sewage treatment - Whether failure by Minister to inform Board of impending designation of special conservation area - Whether development prohibited by habitats protection - Whether sufficient proof shown of lack of protection for special area of conservation - Whether suitable assessment of risk of adverse impact on special area of conservation - Directive - Statutory interpretation - Conforming interpretation of directive with national law - Whether basis to conclude that protection requirement would not be met - Shadow notification - Whether intended designation of special area of conservation giving rise to protection requirements - Whether development constituting unlawful conduct - Costs - Whether statutory provisions regarding costs in environmental protection proceedings applicable - Whether each party to bear own costs - Marleasing SA v La Comercial de Alimentation SA (Case C106/89) [1990] 4 ECR I-4135; Pfeiffer and ors v Deutches Rotes Kreuz (Joined cases C397/01 & C-403/01) [2004] ECR I-8835; Criminal Proceedings Against Pupino (Case 105/03) [2005] ECR I-5285; Societá Italiana Dragaggi sPa v Ministero della Infrastrutture e dei Transporti (Case C-117/03) [2005] ECR I-167; Bund Naturschtz in Bayern eV v Freistaat Bayern (Case C-244/05) [2006] ECR I-8445 and Commission v Hellenic Republic (Case C-103/10) [2012] ECR I-147 considered - European Communities (Birds and Natural Habitats) Regulations 2011 (SI 477/2011) - Foreshore Acts 1993 to 2011, s 3 - Planning and Development Act 2000 (No 30), s 50B -Planning and Development (Amendment) Act 2010 (No 30), s 33 - Directive 92/43/EEC, arts 2, 3, 6 and 27 - Directive 85/337/EEC, art 10a - Proceedings dismissed (2013/29JR - Charleton J - 19/11/2013) [2013] IEHC 542

Sandymount and Merrion Residents Association v An Bord Pleanála

This case concerned a challenge by the applicants, the Sandymount and Merrion Residents Association, against the decision of the first named respondent, An Bord Pleanála. The decision in question granted consent to Dublin City Council, the notice party, to develop and expand the sewage treatment plant in Dublin and to construct a tunnel outflow 9 kilometres into Dublin Bay. On the 3 ^rd of December 2012, the second named respondent, the Minister for Arts Heritage and the Gaeltacht, designated a sea area including the outfall pipe as a candidate for an area of special conservation and on the 18 ^th of January, 2013, the applicant acquired leave to commence judicial review proceedings. As a result, Dublin City Council stopped their work on the plant.

The applicants argued that the consent of An Bord Pleanála should be quashed because the Board failed to have regard to the designation of the special area of conservation seventeen days after its decision; because the State failed to implement the relevant European legislation on habitats; because the State failed to inform the Board about the impending designation; and because any further consent required for the sewage plant project could not any longer protect the designated area, breaching habitats obligations. The relevant EU principles were set out in Council Directive 92/43/E.E.C. 1992 on the conservation of natural habitats and of wild fauna and flora, which decreed the plan of identifying and protecting species of animals and plants requiring conservation and to protect land, coastal and sea areas with special characteristics. The allegations were denied by the respondents and Dublin City Council.

Held by Charleton J., the underlying objectives of the Directive had to be upheld and the duty of effective cooperation on Member States observed. On this, the Court was satisfied by the actions of the respondent Minister in following a timescale and procedure consistent with effective cooperation and with guidance by the Commission. The Court observed that a proper consideration of the relevant file eradicated the argument that the process of preparation was delayed so that Dublin City Council could obtain An Bord Pleanála"s consent for upgrading the sewage plant. There were, Charleton J. asserted, legitimate reasons for targeting December 2012. Moreover, the Court held that 'no one was misinformed about anything'. It was held that appropriate conditions for protection were set by An Bord Pleanála as suggested by the respondent Minister and that the plans by Dublin City Council for expansion of the sewage plant were subjected to appropriate environmental analysis. Additionally, the Court was of the opinion that the designation of the area by the Respondent Minister 'markedly increased the protection of this environment'. The Court noted that the respondent Minister required stringent legal protections for the area as various safeguards including requiring waste water discharge licences in conjunction with Article 6.3 of the Directive and environmental assessment of the impact of pipeline construction on the integrity of the site.

The Court concluded that there was no unlawful conduct under European or national law by the respondents and that the jurisdiction of An Bord Pleanála was exercised appropriately. The application was therefore dismissed. Each party to the proceedings was to bear its own costs.

2 2 1.0 My previous judgment on this matter was dated the 25 ^th March, 2013, and concerned the entitlement of the Sandymount and Merrion Residents Association to be the applicant in these proceedings. That entitlement is established.

3 3 1.1 This judgment concerns the substantive challenge by the Residents' Association to the decision of An Bord Pleanála of the 16 ^th November, 2012 to grant consent to Dublin City Council to develop and expand the existing sewage treatment plant for Dublin city and to construct a tunnel outflow 9 kilometres into Dublin Bay. This is situated near the old Pigeon House power station on the sea shore. A map of this proposal may be referenced at the end of this judgment.When the tide is out, this location is beside, on the South side, Sandymount strand. A person can walk all the way around on that beach to the South Great Wall and then continue out on the wall for some miles into the Irish Sea. Dublin Bay is pierced by two walls coming eastwards out from the city; the South Great Wall and the opposing North Bull Wall. Together these walls frame the estuary of the River Liffey into a bottleneck; thus, by Venturi action, according to the design of Captain William Bligh in 1801, increasing outflow and reducing silting. Since the last judgment, further papers have been filed and it is possible to describe the existing works and the new plan more accurately and in more detail. The project arose in consequence of the disquiet of the European Commission and the negotiations that resulted from its intervention.

4 4 1.2 I am now told that, when fully operational, the new sewage plant will cater for over 2.1 million people. The necessity to upgrade the existing plant arises from the increase in the population of Dublin over the last two generations. Additionally, sewage will be pumped from the hinterland of Dublin to be treated there. All of this treated sewage must go somewhere. At the moment, sewage from the city flows directly out to the North of the sewage works and is diffused right into the estuary of the Liffey between the North and South walls. This area contains the facilities for a swimming club. Part of what is now planned for the new works is a 9 kilometre pipeline that will discharge that treated effluent far out into Dublin Bay. On the 3 ^rd December, 2012, the respondent Minister designated a huge sea area that includes the outfall pipe as a candidate special area of conservation. On the 18 ^th January, 2013, the applicant obtained leave to commence these judicial review proceedings. In consequence, Dublin City Council slowed or stopped the work on the new plant. The pipeline and what is to come out of it is what most concerns this...