Save Cork City Community Association CLG v an Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 28 July 2021
• Neutral Citation: [2021] IEHC 509
• Court: High Court
• Docket Number: [2020 No. 563 JR]

In the Matter of the Planning and Development Act 2000

Between

Save Cork City Community Association CLG

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Cork City Council

Notice Party

[2021] IEHC 509

[2020 No. 563 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning and development – Flood defence works – Judicial review – Applicant seeking certiorari of the first respondent’s decision to grant permission – Whether the notice party complied with its obligations arising from s. 177AE(4)(a)(ii) of the Planning and Development Act 2000

Facts: The notice party, Cork City Council, proposed the development for flood defence works at Morrison’s Island under part 8 of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) on 12th February, 2018. On 14th May, 2018, the city council granted itself approval for the scheme. Judicial review proceedings were then brought, with the applicant, Save Cork City Community Association CLG, as one of the moving parties: Ó Muirí & Save Cork City v Cork City Council [2018 No. 546 JR]. An order of certiorari was made on 8th January, 2019 the primary ground being that because the development required appropriate assessment having regard to the judgment in Case C-323/17 People Over Wind v Coillte Teoranta (Court of Justice of the European Union, 12th April, 2018, ECLI:EU:C:2018:244), the council was not entitled to pursue the project under s. 179 of the Planning and Development Act 2000 and part 8 of the 2001 regulations. Having had regard to the legal problem with the part 8 application, the council then launched a proposal pursuant to s. 177AE of the 2000 Act. The formal application was made to the first respondent, An Bord Pleanála (the board), on 13th December, 2018 involving: (i) remedial works to existing quay walls; (ii) the construction of public realm improvement works; and (iii) the construction of flood defence works along the quayside between Parliament Bridge and Parnell Bridge. The board direction granting permission was dated 4th June, 2020 and the formal decision date was dated 17th June, 2020. The applicant applied to the High Court seeking the following reliefs: (1) certiorari of the board’s decision of 17th June, 2020; (2) general declaratory relief; (3) a declaration that the State has failed to transpose art. 9a of EIA directive 2011/92/EU; (4) a declaration that s. 177AE of the 2000 Act is invalid having regard to EU law or the Constitution; (5) a declaration that regs. 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) are invalid in EU law; (6) a stay; and (7) costs.

Held by Humphreys J that: (i) the following relief was granted based on relief 2, namely a declaration that Cork City Council did not comply with its obligations arising from s. 177AE(4)(a)(ii) of the 2000 Act by failing to ensure that during the times and places publicly advertised a copy of the Natura Impact Statement was available to be inspected free of charge or purchased or both at the option of the person availing of the right of public participation and/or by failing to facilitate persons seeking to avail of the right of public participation in that regard; (ii) the following relief was dismissed as having been withdrawn, namely relief 4, a declaration that s. 177AE of the 2000 Act is incompatible with the EIA directive and/or in breach of the applicant’s rights; (iii) relief 1 (certiorari of the board’s decision), relief 3 (a declaration regarding non-transposition of art. 9a of the EIA directive) and relief 6 (a stay on the undertaking of any works pursuant to the grant of the planning permission for the proposed development) were refused; and (iv) the following relief was adjourned generally with liberty to apply, namely relief 5, a declaration that regs. 51 and 54 of the 2011 Regulations are contrary to arts. 12 and 16 of council directive 92/43/EC.

Humphreys J held that the application was granted in part, dismissed in part, refused in part and adjourned in part.

Application granted in part.

JUDGMENT of Humphreys J. delivered on Wednesday the 28th day of July, 2021

1 Cork City is said to take its name from Corcach Mór Na Mumhan (the Great Marsh of Munster), and the relationship with the River Lee has been central to its history. In the millennium and a half since its foundation in or around the 6th century, quite some progress has been made in draining the “great marsh”, and much land has been reclaimed over the years (for a historical overview, see the city council's website, corkpastandpresent.ie).

2 This case concerns an area of central Cork City known as Morrison's Island that began as one of the marshes surrounding the city. The area is no longer an island, but a small part of the central island between the two channels of the Lee that encircle the inner city.

3 The Pacata Hibernia map of 1601 illustrates the walled medieval city showing Morrison's Island as a largely undeveloped island to the east of the city.

4 It was reclaimed and embanked in the mid to late 17th century. At that time, it was described as “East marsh next adjoining the city”, but had other names such as Island Nagary, Red Abbey Marsh, Dunbar's Marsh, Lavitt's Marsh and Dog Island. It remained largely undeveloped in a map of 1690.

5 Smith's map of Cork of 1750 shows the island marked with the legend “About this place the Duke of Grafton was killed”. This is a reference to Henry FitzRoy KG, first Duke of Grafton (1663–1690), a son of King Charles II and Barbara Palmer (née Villiers) (1640–1709), first Duchess of Cleveland, Countess of Castlemaine. Grafton was killed in the storming of Cork during the Williamite-Jacobite war in 1690. (Dublin's Grafton St. is named for his son Charles FitzRoy KG, the second Duke of Grafton.)

6 Rocque's map of 1759 shows Morrison's Island marked as Dunbar's Marsh. The first building to take place on Morrison's Island was around 1760 when a row of houses was erected on its northern side.

7 By Connor's map of 1774, Morrison's Island had been developed and a bridge was shown linking Prince's Street to the island.

8 Beaufort's map of 1801 also shows some development. The river's edge is marked as Dunbar's Marsh and the area retains its island character. The island by this time became a strong industrial and commercial centre. A notable businessman who set up a preserved provisions firm in the area was John Henry Gamble, whose firm supplied provisions to Sir William Parry (1790–1855) for his polar expedition in 1824. The following year, Parry's ship, The Fury, was wrecked in Nunavut, Canada, at Prince Regent Inlet, which Parry named, presumably for George, Prince Regent, 1811–20 (thereafter King George IV). Gamble's provisions were found years later in a perfect state of preservation, which is presumably a testament to the quality of his work at Morrison's Island.

9 Holt's 1832 map introduces a recognisably modern streetscape. Morrison's Island is no longer an island at this stage and lies on the north bank of the south channel of the Lee. Union Island (now Union Quay) lies on the south bank of the south channel. Morrison's island is essentially the triangular area bounded to the north by South Mall and to the south by the quays on the north bank of the Lee marked on the 1832 map as Morrison Quay and Charlotte Quay. The latter was presumably named for Queen Charlotte of Mecklenburg-Strelitz (19th May, 1744–17th November, 1818, mother of George, Prince Regent, who we met earlier) (although the quay concerned at some point became known as “Father Matthew Quay”).

10 The name Morrison in introduced for the first time in the 1832 map, and derives from James Morrison who purchased the island. He was a member of one of Cork's great mercantile families and a Lieutenant-Colonel of the True Blues, a volunteer regiment, becoming Lord Mayor of Cork in 1784. Another member of the family, Rowland Morrison, became Lord Mayor in 1806. The largest commercial building on Morrison's Island was Suttons, founded in 1845 by Abraham Sutton, and had become a household name in the coal industry by the end of the 19th century. The most notable structure on Morrison's Island is Holy Trinity Church constructed between 1832 and 1908 (the long duration being explained by lack of funds). In later years, Morrison's Island became associated with Cork's legal and medical professions.

11 Notwithstanding various ongoing works of land reclamation and consolidation of the smaller islands in central Cork, flooding has remained a problem. Indeed it has figured prominently in jurisprudence in recent years: University College Cork v. Electricity Supply Board [2014] IEHC 135, [2014] 2 I.R. 525, University College Cork v. Electricity Supply Board [2015] IEHC 598, [2015] 10 JIC 0504 (Unreported, High Court, Barrett J., 5th October, 2015), University College Cork v. Electricity Supply Board [2017] IEHC 599, [2017] 10 JIC 2401 (Unreported, High Court, Barrett J., 24th October, 2017), University College Cork v. Electricity Supply Board [2017] IECA 248, [2017] 9 JIC 2201 (Unreported, Court of Appeal, Ryan P., 22nd September, 2017), University College Cork v. Electricity Supply Board [2018] IECA 82, [2018] 03 JIC 2002 (Unreported, Court of Appeal, Ryan P. (Irvine and Whelan JJ. concurring), 20th March, 2018), University College Cork v. Electricity Supply Board [2018] IESCDET 140, [2018] 10 JIC 1703 (Unreported, Supreme Court, O'Donnell, Dunne and Finlay Geoghegan JJ., 17th October, 2020), University College Cork v. Electricity Supply Board [2020] IESC 38, [2020] 7 JIC 1301 (Unreported, Supreme Court, Clarke C.J. (O'Donnell, MacMenamin, Dunne and Charleton JJ. concurring), 13th July, 2020), University College Cork v. Electricity Supply Board [2020] IESC 66, [2020] 10 JIC 2107 (Unreported, Supreme...