The High Court has declared that Cork City Council failed to comply with public access requirements when it handled a Natura Impact Statement for proposed flood defence works on Morrison’s Island. The court refused to quash An Bord Pleanála’s permission for the project, while adjourning a separate claim about protections for strictly protected species.
In a judgment delivered on 28 July 2021, Humphreys J. ruled that the council did not ensure the statement was available for free inspection or purchase at the times and places advertised. The judge said people seeking access had been dissuaded or misdirected, and that the inconsistent responses suggested a systems problem rather than a one-off lapse.
The works cover a 553-metre stretch of the River Lee between Parliament Bridge and Parnell Bridge. They include repairs to existing quay walls, public realm improvements and flood defences. The application was made by the council to An Bord Pleanála under section 177AE of the Planning and Development Act 2000, and permission was granted in June 2020.
The council’s notice said the Natura Impact Statement could be inspected or purchased during a stated period. The judgment recounted that members of the public seeking documents at council offices on 21 December 2018 received different responses: some were refused or directed elsewhere, while different prices were charged for the statement. The council did not specifically dispute the accounts. The judge found that online availability or copies elsewhere did not remedy the failure to meet the advertised arrangements.
The court considered that failure insufficient to justify quashing the permission, but more than de minimis. It therefore granted a declaration that the council had not complied with section 177AE(4)(a)(ii). The judgment also held that the board had implied authority under section 177AE(15) to determine whether an environmental impact assessment was required. The applicant’s challenge to the board’s decision was refused, as were its claims concerning non-transposition of an EIA directive provision and a stay on works.
The applicant had also argued that the project should be assessed as part of a wider flood relief scheme and that cumulative effects had not been considered. The judge found that a full environmental impact assessment of possible future works could not be required in the absence of a formal proposal for them, and that cumulative effects had been considered in the inspector’s report.
A claim seeking a declaration that regulations 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011 were contrary to the Habitats Directive was adjourned generally, with liberty to re-enter after determination of a related case. The court did not decide that claim in this judgment.