Judgment: 2013-07-19 · Court archive

High Court refuses leave to appeal over Macroom bypass approval

The court said the proposed environmental assessment and costs questions either had not been raised at trial or concerned matters not decided in the judgment.

The High Court · [2013] IEHC 348

Who, what, where, when and why

Who
  • Eileen Stack Shanahan
  • Gerard Sheehan (Applicant)
What

The court said the proposed environmental assessment and costs questions either had not been raised at trial or concerned matters not decided in the judgment.

Where

Places mentioned in the report

  • Baile Bhuirne
  • Coolcour
  • Macroom
  • Carrigaphooca Castle
  • The stone circle
When

Judgment:

Why

Reasons reported in the judgment

Justice O’Malley said the earlier finding of “no material flaw” meant that the court had found no illegality. She concluded that the proposed environmental questions either had not been in issue in the case as it proceeded or concerned matters decided under well-established legal principles. A separate argument that the court itself could conduct an environmental assessment had not been made at first instance, and could not support leave to appeal.

The High Court refused Eileen Stack Shanahan and Gerard Sheehan leave to appeal its earlier judgment upholding An Bord Pleanála’s approval for a dual carriageway from Baile Bhuirne to Coolcour, bypassing Macroom.

In a judgment delivered on 19 July 2013, Ms Justice Iseult O’Malley considered seven proposed questions concerning environmental impact assessment and limits on costs recovery in planning proceedings. Under the applicable statutory test, leave could be granted only if the decision involved a point of law of exceptional public importance and an appeal was desirable in the public interest.

The applicants argued that the Board had not properly assessed or recorded the project’s effects under the Environmental Impact Assessment Directive. They highlighted potential interaction between impacts on cultural heritage and landscape, including the setting of Carrigaphooca Castle and the stone circle. They also submitted that the earlier judgment had not made an explicit finding on the legality of the Board’s process.

Justice O’Malley said the earlier finding of “no material flaw” meant that the court had found no illegality. She concluded that the proposed environmental questions either had not been in issue in the case as it proceeded or concerned matters decided under well-established legal principles. A separate argument that the court itself could conduct an environmental assessment had not been made at first instance, and could not support leave to appeal.

The applicants also sought to raise questions about section 50B(2) of the Planning and Development Act, which generally required each party in covered cases to bear its own costs, subject to specified exceptions. The court had granted them leave to seek a declaration concerning public importance, special circumstances and the interests of justice, but had made no decision on that relief because costs issues were left until the end of the case by agreement.

The judge said no point of law on section 50B(2) had been determined in the earlier judgment, so the proposed questions on that issue could not ground an appeal. The court refused leave on all the proposed questions. The ruling concerned permission to appeal; it did not determine the outstanding costs relief.

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