The High Court dismissed a residents’ association’s challenge to planning permission for a Dublin Mountains visitor centre, but said it would in principle refer four questions about wildlife protection rules to the Court of Justice of the European Union (CJEU).
The case concerned An Bord Pleanála’s June 2020 approval of a visitor centre and associated works on Coillte-owned land around Montpelier Hill and Massy’s Wood, including a tree canopy walk and pedestrian bridge over the R115. The Hellfire Massy Residents Association sought to quash the permission and challenge provisions of the Planning and Development Act 2000 and the European Communities (Birds and Natural Habitats) Regulations 2011.
In a judgment delivered on 2 July 2021, Mr Justice Humphreys dismissed the claims seeking to quash the permission and invalidate section 175 of the 2000 Act. He also dismissed the challenge to the 2011 regulations insofar as it concerned the pre-consent process. The judge said the association had not shown that the visitor projections relied on by the board were facially flawed, and had provided no contrary statistical evidence. Its complaint about public access to planning documents during the Covid-19 closure of Ballyroan Library also failed: the association had been able to make a submission, and the judge found it lacked standing to assert the rights of others.
Several environmental grounds were withdrawn or not pursued. On other issues, including bat mitigation, squirrel evidence and otter surveys, the judge found the association had not established its case on the material before him. The board’s permission included conditions requiring mitigation measures in the environmental reports, a revised forestry plan retaining most mature conifers to support red squirrels, and an ecological clerk of works.
The remaining issue concerned whether the 2011 regulations provide an adequate system for dealing with possible derogation licences for protected species after planning consent, including whether the process should be linked to planning approval and include public participation. The judge found a reasonable possibility that later surveys could identify impacts requiring a licence, although no current definite or likely need for one had been established.
He therefore identified four EU law questions for referral, covering pleading rules, standing to bring an anticipatory challenge, integration of licensing with development consent, and public participation in a post-consent licensing process. The judgment did not decide that the regulations were invalid. The court said it would refer the questions in principle, directed the parties to complete further steps, and ordered the matter re-listed in six sitting weeks. It also ordered that the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media replace the Minister then named as second respondent.