The Supreme Court has sent a European environmental assessment issue in a Kildare planning case back to the High Court, deferring its final order on a deemed planning permission for a housing proposal in Ballymore Eustace.
In a judgment delivered on 18 February 2010, President of the Supreme Court Kearns said An Taisce should be heard on whether permission could lawfully be deemed granted when no assessment had been carried out on an Environmental Impact Statement submitted with the application.
The case concerns Abbeydrive Developments Ltd’s application, made on 3 December 2002, to build houses. Kildare County Council did not decide the application within the prescribed period. In a July 2009 judgment, the Supreme Court had upheld the developer’s appeal and held it entitled to a declaration that the council was deemed to have decided the application on the last day of that period.
An Taisce had been notified of the application and made a submission to the council, but said it received no further correspondence until 2007, when it was told the application had been deemed withdrawn. The judgment said that information was misleading because the application had not been withdrawn. An Taisce learned of the court proceedings after the July 2009 judgment was reported in a newspaper. Its attempt to appeal to An Bord Pleanála was rejected as out of time.
An Taisce argued that European law did not allow tacit permission for a development requiring an environmental impact assessment. It sought to be heard before the Supreme Court made final orders, while expressly saying it did not seek to reopen the earlier judgment. The developer opposed the application, arguing that the matter was res judicata and that An Taisce was not an affected party. The council acknowledged that it had not considered the EIS issue in the High Court and took a neutral position on An Taisce’s application.
Kearns said the EIS issue went to the heart of whether permission could be granted by default and, if upheld, would have affected the outcome. He regarded An Taisce as an affected party entitled to be heard. He left for the High Court to consider whether the council itself could rely on the point.
The Supreme Court remitted that issue alone to the High Court and deferred making any final order. An Taisce may be heard at any hearing there. The Court’s earlier declaration remains subject to a determination by the High Court or Supreme Court on whether default permission could lawfully have been deemed granted without the assessment required by the Directive. The judgment does not itself decide that question.