High Court: Environmental activist refused leave to challenge Dublin planning decision

About this case:

• Citation:
  [2019] IEHC 525
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Barniville

Describing the case as “one of the most unusual cases to have come before the Irish Courts”, Mr Justice David Barniville said the man’s non-participation in the process was one of many reasons to conclude that he did not have “sufficient interest” in the matter.

Background

In May 2017, Dublin City Council made an application to An Bord Pleanála pursuant to s. 175 of the Planning and Development Act 2000 (as amended) for approval for a proposed development of a civic plaza, ancillary traffic management measures and minor road works at College Green in the centre of Dublin City.

In October 2018, the Board refused to grant approval for the development, concluding that:

• The traffic analysis carried out and the associated information provided was not sufficient to “accurately quantify the traffic impacts of the proposed development and the magnitude of those impacts”
• There was uncertainty but “likely significantly negative impacts” for bus transport in light of the extent of the re-routing of buses proposed, the critical importance of bus transport to the city and its future role in facilitating a shift from car usage.
• There were identified and unresolved capacity issues on the Quays in relation to their capacity to accommodate the scale of the bus rerouting proposed.
• There was a failure to demonstrate that the existing footpaths on both sides of the Quays had the capacity to accommodate the increased numbers of pedestrians that would be redirected onto the quays as a result of the bus re-routing.

Dublin City Council did not and does not seek to challenge the Board’s decision.

High Court

In what Mr Justice Barniville described as “one of the most unusual planning cases to have come before the Irish courts”, Mr John Conway, who described himself as an “environmental activist”, sought to challenge the decision refusing to grant approval.

Mr Conway, who resides in Dundalk, did not participate in any way in the planning process before the Board, and Mr Justice Barniville said was almost unique in that the case was “concerned with an attempted challenge, by a person with a significant interest in the environment, to a decision by the Board refusing to grant approval for a development”. Mr Conway submitted that he did not participate in the planning process because he thought that the Council would obtain the required approval.

Mr Conway’s application was not as a result of any alleged adverse environmental effects. Submitting that the Board’s decision was unlawful, Mr Conway stated in his affidavit that he found it “upsetting that seemingly huge sums of money were spent” by the Council in the project, and that it would be a waste of money if the Council had to make a new application. Mr Conway also complained that there was no public commentary on what he perceived to be a waste of public resources. 

Mr Conway sought an order of certiorari and an order remitting the  application to the Board, complaining that:

• The inspector reached findings which significantly different from those of a consultant appointed by the Board;
• There was insufficient reliable traffic modelling and assessment on which to base its decision;
• The Board failed to take proper account of the changes proposed under the NTA’s “Bus Connects” proposal to reorganise the bus network in Dublin;
• The Board based its decision on an incorrect assumption that it exercised control/influence over the routing of bus traffic when that was the role of the NTA;
• The Board disregarded relevant information including measures implemented by the NTA to alleviate delays to commuters
• The decision was based on inadequate and unreliable information;
• the decision was invalid as the Board was “prevented from complying with and failed to comply with the provisions of the Habitats Directive and the EIA Directive” 
• The decision was irrational and/or failed to provide proper reasoning or rationale
• The decision was disproportionate and should have been granted with conditions rather than being refused outright.

Mr Conway also sought a declaration that the procedure under s. 175 of the Planning and Development Act 2000 is unlawful, submitting that the procedure failed to provide an effective remedy to challenge a refusal of permission, that this is a breach of the principle of equivalence, and that judicial review is not an effective remedy.

Mr Justice Barniville found that, as a matter of national law, Mr Conway did not have a “sufficient interest” in the matter for the purposes of s. 50A(3)(b) of the Planning and Development Act 2000, and therefore did not have standing to bring the proceedings (Grace and Sweetman v An Board Pleanála [2017] IESC 10, McDonagh v An Bord Pleanála [2017] IEHC 586, and Sweetman v An Bord Pleanála & ors [2017] IEHC 133 considered).

Mr Justice Barniville was also satisfied that there was nothing in EU law requiring the court, in compliance with obligations to ensure “wide access to justice” to the “public concerned” to interpret national standing rules in a way which would afford standing to the applicant to bring and maintain the proceedings. Mr Justice Barniville said it would be “quite extraordinary” if the Directive “or any other provision of EU law were to require the court to uphold the applicant’s standing to bring these proceedings having regard to the several factors which strongly militate against such standing”.

Finding it unnecessary to make a reference to the CJEU to clarify the conformity of national standing rules with EU law, Mr Justice Barniville said he was not in any doubt as to the scope of EU law in this regard and refused the requested reference.

In all the circumstances, Mr Justice Barniville was satisfied that Mr Conway did not have standing to bring the proceedings, and refused Mr Conway leave to bring the proceedings.

• by Seosamh Gráinséir for Irish Legal News