The High Court has refused Ballyboden Tidy Towns Group leave to appeal a judgment dismissing its challenge to flood relief works in the Whitechurch Stream catchment area in Rathfarnham, Co Dublin.
In a judgment delivered on January 7, 2022, Mr Justice Humphreys dismissed the group’s application for leave to appeal. The ruling concerned the application for leave only; it did not revisit or change the earlier dismissal of the judicial review proceedings.
The group proposed five questions for appeal concerning whether planning permission could be indefinite, whether an implied limit on the duration of development consent could have direct effect under EU law, and whether Irish planning legislation should be interpreted as requiring a time limit.
The judge said the central difficulty was that the case the group sought to advance about a time limit had not been properly pleaded in the original proceedings. He said a point that was not pleaded could not meet the threshold for certification. The judgment also noted that the group had not pleaded non-transposition or identified a specific directive provision as directly effective.
The group argued that conforming interpretation of national law should be considered before direct effect. The judge accepted that as a general proposition but held it did not assist in this case. He said the legislation reproduced the directive and that the proposed interpretation of section 177AE(3), read with section 177V(1), would extend an appropriate-assessment requirement into a substantive obligation to impose a time limit on the development consent. He described that interpretation as implausible and outside the proper scope of conforming interpretation.
The judgment said the conforming-interpretation argument had not been specified in the pleadings and was introduced only at the leave stage. The judge agreed with the State’s description of it as a changed case and the planning board’s description of it as an entirely recast case.
He added that a duration argument framed as non-transposition, or a new argument that the board should have considered a time limit, might not be unarguable if properly pleaded. He did not decide those points or the public-interest aspect of certification. The application for leave to appeal was dismissed.