Save Roscam Peninsula CLG and Others -v- an Bord Pleanála and Others (No. 2)

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 09 June 2022
• Neutral Citation: [2022] IEHC 328
• Year: 2022
• Court: High Court
• Docket Number: [2021 No. 1110 JR]

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Save Roscam Peninsula CLG, Sophie Cacciaguidi-Fahy, Martin Fahy and Philip Harkin

Applicants

and

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

Respondents

and

Alber Developments Limited

Notice Party

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Abbey Park and District Residents Association Baldoyle

Applicant

and

An Bord Pleanála, Ireland, The Attorney General and Fingal County Council

Respondents

and

The Shoreline Partnership

Notice Party

[2022] IEHC 328

[2021 No. 1110 JR]

[2021 No. 972 JR]

THE HIGH COURT

JUDICIAL REVIEW

Planning and development – Costs protection – Planning and Development Act 2000 s. 50B – Appellants seeking leave to appeal – Whether the fact that a development consent envisages a density of housing greater than that in a local area plan that was subject to SEA does not constitute “damage to the environment” within meaning of s. 4(1) of the Environment (Miscellaneous Provisions) Act 2011

Facts: In Save Roscam Peninsula CLG v An Bord Pleanála (No. 1) [2022] IEHC 202, the High Court (Humphreys J) refused a declaration that the applicants, Save Roscam Peninsula CLG, Ms Cacciaguidi-Fahy, Mr Fahy and Mr Harkin, were entitled to costs protection under s. 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011, and adjourned the applicants’ points relating to the interpretative application under the Aarhus Convention pending a proposed reference to the CJEU. In Abbey Park v An Bord Pleanála [2022] IEHC 201, Humphreys J made a similar order refusing the applicant, Abbey Park and District Residents Association Baldoyle, relief under s. 50B of the 2000 Act and under the 2011 Act, but adjourned the Aarhus interpretative obligation issue pending the proposed reference in Enniskerry Alliance v An Bord Pleanála [2022] IEHC 6. The applicants sought leave to appeal to the Court of Appeal under s. 50A(7) of the 2000 Act.

Held by Humphreys J that, in Abbey Park, a rewording was arrived at to which the first respondent, An Bord Pleanála (the board), did not object. Those reworded questions which Humphreys J was certifying were as follows: “1. Was the Court correct to conclude that only challenges to a decision or purported decision made or purportedly made, any action taken or purportedly taken or any failure to take any action, pursuant to a statutory provision that gives effect to the SEA Directive, in other words, challenges to the SEA process itself (as opposed to challenge based on any document that has been subjected to the SEA process), came within the ambit of the costs protection regime for the purposes of section 50B(1)(a)(II) of the Planning and Development Act 2000 (as amended)? 2. Was the Court correct to take the view that the fact that a development consent envisages a density of housing greater than that in a local area plan that was subject to SEA does not constitute “damage to the environment” within meaning of section 4(1) of the Environment (Miscellaneous Provisions) Act 2011?” In Save Roscam, the applicants proposed a complex series of questions. It seemed to Humphreys J that while the gist of the first sub-question of the first question was acceptable, it did not quite highlight the issues involved, so the question was reworded as follows: “Does “damage to the environment” in section 4(1) of the Environment (Miscellaneous Provisions) Act 2011 require the damage to be both (a) tangible in the sense of being above and beyond the type that can be alleged in respect of any development, and (b) ecological in the sense of damage to the existing environment as opposed to merely arising where a development is proposed that is arguably less environmentally beneficial than another alternative hypothetical development”. The board did not object to leave to appeal being granted in those terms. Humphreys J refused leave to appeal based on the remaining questions.

Humphreys J held that the order would be: (i) in Save Roscam, that (a) the applicants be granted leave to appeal under s. 50A(7) of the 2000 Act on the question set out in the judgment that was certified for that purpose, and (b) the costs of that application be adjourned to 11th July, 2022; (ii) in Abbey Park that (a) the applicant be granted leave to appeal under s. 50A(7) of the 2000 Act on the basis of the questions set out in the judgment that were certified for that purpose, and (b) the costs of that application be reserved.

Leave to appeal granted.

(No. 2)

JUDGMENT of Humphreys J. delivered on Thursday the 9th day of June, 2022

1 In Save Roscam Peninsula CLG v. An Bord Pleanála (No. 1) [2022] IEHC 202, ( [2022] 4 JIC 0809 Unreported, High Court, 8th April, 2022), I refused a declaration that the applicants were entitled to costs protection under s. 50B of the Planning and Development Act 2000 or the Environment (Miscellaneous Provisions) Act 2011, and adjourned the applicants' points relating to the interpretative application under the Aarhus Convention pending a proposed reference to the CJEU.

2 In Abbey Park v. An Bord Pleanála [2022] IEHC 201, ( [2022] 4 JIC 0808 Unreported, High Court, 8th April, 2022), I made a similar order refusing relief under s. 50B of the 2000 Act and under the 2011 Act, but adjourned the Aarhus interpretative obligation issue pending the proposed reference in Enniskerry Alliance v. An Bord Pleanála [2022] IEHC 6, ( [2022] 1 JIC 1410 Unreported, High Court, 14th January, 2022).

3 Both applicants now seek leave to appeal to the Court of Appeal under s. 50A(7) of the 2000 Act. The caselaw in that regard is well established and is referred to in the parties' submissions, and was recently helpfully summarised by Barniville J. in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231, ( [2022] 4 JIC 2601 Unreported, High Court, 26th April, 2022).

The questions in Abbey Park

4 After some discussion with counsel on both sides, a rewording was arrived at to which the board did not object. Those reworded questions which I am now certifying are as follows:

• “1. Was the Court correct to conclude that only challenges to a decision or purported decision made or purportedly made, any action taken or purportedly taken or any failure to take any action, pursuant to a statutory provision that gives effect to the SEA Directive, in other words, challenges to the SEA process itself (as opposed to challenge based on any document that has been subjected to the SEA process), came within the ambit of the costs protection regime for the purposes of section 50B(1)(a)(II) of the Planning and Development Act 2000 (as amended)?

• 2. Was the Court correct to take the view that the fact that a development consent envisages a density of housing greater than that in a local area plan that was subject to SEA does not constitute “damage to the environment” within meaning of section 4(1) of the Environment (Miscellaneous Provisions) Act 2011?”

The questions in Save Roscam

5 The applicants proposed a complex series of questions. The first sub-question of the first question is as follows:

“Should the damage requirement in S.4(1) of the Environment (Miscellaneous Provisions) Act 2011 be interpreted as meaning:

• That the Applicant must establish a likelihood of tangible ecological harm such as impact on specific species, habitats or natural resources, above and beyond impact of a type that can be alleged in respect of any development (as held by the High Court in Enniskerry Alliance and Protect East Meath v Bord Pleanala, [2022] IEHC 6)?”

6 It seems to me that while the gist of this question is acceptable, it does not quite highlight the issues involved, so after some discussion with counsel this question was reworded as follows:

“Does “damage to the environment” in section 4(1) of the Environment (Miscellaneous Provisions) Act 2011 require the damage to be both

• (a) tangible in the sense of being above and beyond the type that can be alleged in respect of any development, and

• (b) ecological in the sense of damage to the existing environment as opposed to merely arising where a development is proposed that is arguably less environmentally beneficial than another alternative hypothetical development”.

7 The board did not object to leave to appeal being...