The Supreme Court concluded that Article 6(3) of the Habitats Directive does not require a competent authority to place a time limit on every development consent. In a judgment delivered by Mr Justice Woulfe on 15 November 2022, the Court said the appeal should be dismissed.
Ballyboden Tidy Towns Group had challenged An Bord Pleanála’s approval of flood-defence works along the Whitechurch Stream, in the River Dodder catchment in south Dublin. South Dublin County Council was the notice party. The Board approved the works on 17 December 2020 under section 177AE of the Planning and Development Act 2000, after an appropriate assessment. It concluded the works would not adversely affect the integrity of any European site.
The group argued that an approval under section 177AE could last indefinitely and should have been limited in time. It said environmental information could become outdated, so conditions assessed as safe when approval was granted might not protect a site if circumstances changed before the works were carried out. It relied on Article 6(3), which requires assessment before consent, and argued that Irish law should be interpreted to require a time limit or that the Directive’s requirement should apply directly.
The High Court dismissed the judicial review in October 2021. On appeal, the respondents disputed that Article 6(3) imposed a general time limit and argued that the case had not been properly pleaded. In the Supreme Court, however, the other parties did not press the pleading objection. Mr Justice Woulfe considered the substantive question.
He said Article 6(3) expressly requires appropriate assessment before approval but does not specify a time limit for consent. He considered that the Directive’s separate Article 6(2), which provides for general protection against deterioration and disturbance, addresses the possibility of later environmental change. The judgment also referred to Irish regulations giving effect to that protection, mitigation and monitoring conditions attached to this approval, and the Board’s power to impose a time limit where the particular circumstances warrant one.
The Court declined the group’s request for a preliminary reference to the Court of Justice of the European Union, finding the interpretation sufficiently clear. Because it concluded that Article 6(3) did not require a time limit, the further questions about conforming interpretation and direct effect did not arise. The judgment’s conclusion was that the appeal should be dismissed; it does not state in the supplied text that a formal dismissal order was made.