The High Court has dismissed the final module of a residents’ association’s challenge to planning legislation linked to a visitor centre and other works at Montpelier Hill, County Dublin. The court declined to make a declaration applying a European court ruling to the case and made no order as to costs.
The Hellfire Massy Residents Association had sought a declaration concerning Articles 51 and 54 of the European Communities (Birds and Natural Habitats) Regulations 2011, which implement aspects of European protections for strictly protected species. The association argued that the regulations did not provide a system of strict protection because, it said, a developer could decide after receiving planning permission whether to seek a derogation licence. It also argued that the derogation process lacked public consultation.
The proceedings arose from An Bord Pleanála’s June 2020 approval, with conditions, of South Dublin County Council’s proposal for a visitor centre, car park and associated works at Montpelier Hill. The approved works included a pedestrian bridge over the R115 and changes to woodland. The board concluded that, subject to mitigation measures and conditions, the environmental effects would be acceptable. The residents’ earlier challenge to the planning permission was dismissed, and that outcome was upheld on appeal.
After the European Court of Justice answered questions referred to it, the association proposed a declaration that where a development requires a protected-species derogation, that derogation must be obtained before development consent. The High Court said the European court’s judgment addressed that sequence where a derogation is required, but also recorded that the need for one had not been identified when permission was granted in this case.
The High Court noted that a derogation had been envisaged in connection with destroying a squirrel drey. However, the judgment says the car park was redesigned to avoid the drey, and the issue of a required derogation therefore did not arise on the facts as established. The court also said the proposed declaration was not pleaded, did not reflect the case advanced in the original grounds, and would amount to an advisory opinion on a situation that had not arisen.
The court dismissed the proceedings, including the remaining request for declaratory relief. It made no order as to costs, including reserved costs or costs before the European court. The judgment was delivered by Humphreys J. on 27 October 2023.