The High Court has refused Hellfire Massy Residents Association leave to appeal its earlier dismissal of a challenge to a planning permission, but directed the parties to take further steps on a separate legal challenge against the State.
In a judgment delivered on 13 October 2021, Mr Justice Humphreys dismissed the association’s application for leave to appeal under section 50A(7) of the Planning and Development Act 2000. The application concerned the court’s earlier refusal to quash the planning permission. That refusal was to be formally perfected following the decision.
The association proposed four questions said to raise issues of exceptional public importance. Three concerned environmental impact assessment, including how predicted impacts and visitor numbers should be assessed, and whether the relevant tests had been applied correctly. The judge said the questions were too vague and general, and did not clearly show that the legal answers would determine the proceedings. He also found that the points had not been properly pleaded, that some differed from the association’s submissions at the substantive hearing, and that the challenge lacked an adequate evidential basis. The association had not provided contrary visitor-number information or established that a reasonable expert would regard the council’s material as facially flawed.
The fourth proposed question concerned whether the planning permission could stand while a related issue about derogation legislation was referred to the Court of Justice of the European Union. The judge said the legislation argument had been pleaded against the State rather than as a ground to quash the permission. He also found that the planning board had not relied on a derogation licence in the sense argued by the association, so the proposed issue did not arise on the facts of the permission challenge.
The court had earlier decided in principle to refer separate issues about the legislative scheme for derogation licences to the EU court. That reference remained to be finalised as part of the outstanding relief against the State; the October judgment did not decide the validity of that scheme.
The judge directed the board to submit materials within two weeks, the State respondents within a further two weeks, and South Dublin County Council within the following two weeks. After that period, the reference order was to be finalised without further formality. The matter was listed for mention on 29 November 2021 to confirm completion. The court also said a party seeking consideration of an amicus curiae could ask for an earlier mention.