The High Court has refused James Clifford, Peter Sweetman and other applicants leave to appeal an earlier judgment concerning planning consent for the South Kerry Greenway.
In a judgment delivered on 15 October 2021, Mr Justice Humphreys dismissed the application under section 50A(7) of the Planning and Development Act 2000. The court had previously dismissed the applicants’ application for certiorari challenging development consent under section 51 of the Roads Act 1993.
The applicants proposed asking what obligations apply when a competent authority modifies a development proposal under the environmental impact assessment directive and implementing legislation, and whether those obligations were met in this case. The judge said the question was too general and did not identify the relevant provisions. He also said it inaccurately described the Board’s decision: the permission included a condition omitting sections of the proposal, rather than the Board modifying the proposal in the way the question suggested.
The judgment said the applicants’ arguments for appeal relied in part on alleged failures in public participation that had not formed the basis of their argument at the substantive hearing. The judge said the case could not be reconfigured for the appeal application.
The omitted sections ran from Renard Point to Cahersiveen Water Treatment Plant and at Cloghanelinaghan. They were to remain omitted pending further investigation and possible changes to the buffer zone beside the Valentia Estuary shoreline. The judge said the sections were modest in the context of the overall project and that their omission, made because of environmental concerns, could have been contemplated. He also noted that the scheme already had multiple access points and that alleged impacts on a European site were unsupported by evidence.
The earlier judgment had stated that the project ultimately approved had to be assessed, while also finding that a change in the final decision did not automatically require revised statements or a return to the start of the process. The October judgment said the applicants had not given a substantial reasoned argument against that finding. It described their complaint as fact-specific and found no demonstrated inconsistency with existing case law.
The court did not consider the remaining parts of the leave-to-appeal test. It dismissed the application, said it was provisionally minded to make no order as to costs unless submissions to the contrary were made within seven days, and left the question of a stay listed for further submissions on 19 October 2021. The judgment does not state the final costs decision or the outcome of the stay issue.