The High Court has refused an application by Carrickmines residents Ultan and Edel O’Brien to add a new legal claim to their challenge to planning permission for a 482-home development on Golf Lane, Carrickmines, Dublin 18.
The O’Briens sought to amend their Statement of Grounds to argue that Ireland had failed to properly transpose Article 12 of the EU Habitats Directive into Irish law. They also sought a declaration that section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 was invalid.
Their existing challenge concerns permission granted to Bowbeck DAC for 482 apartments, a crèche, gym and local shop. The O’Briens say the development could harm bats and had argued in their original case that the Board failed to meet habitat-protection requirements.
The amendment application was prompted by the possibility that An Bord Pleanála might argue that Article 12 did not bind it when deciding the planning application. The court noted that the evidence did not establish whether the Board had changed its position in the O’Briens’ proceedings. Their solicitor had referred to a separate case in which the Board was said to dispute the application of Article 12, but the court had not been provided with the relevant Statement of Opposition.
Justice Twomey treated the proposed mis-transposition claim as a new case because it would widen the issues the State respondents had to answer and seek a new form of relief: a declaration that legislation was invalid. The court applied the statutory test for extending the eight-week deadline in planning judicial reviews. The permission was granted on 20 April 2021, and the challenge deadline expired on 14 June 2021. The O’Briens sought permission to bring their challenge on that deadline and applied to amend their grounds on 26 July.
The court found the O’Briens had not shown good and sufficient reason for omitting the mis-transposition claim from their original grounds. It also found they had not shown that the omission was outside their control, as required for an extension of time. The court therefore refused the amendment. It did not determine the underlying planning challenge or decide whether Article 12 applied to the Board.
On final orders, the judgment asked the parties to try to agree outstanding matters without further court time. The case was provisionally listed for mention one week after judgment, if needed.