The High Court refused Peter Sweetman’s application for a certificate to appeal its May 2016 judgment in a judicial review concerning planning permission for the Killaloe By-Pass. Mr Justice McDermott ruled on 24 June 2016 that the proposed question did not meet the statutory test for an appeal to the Court of Appeal.
The underlying case challenged An Bord Pleanála’s 25 March 2013 decision to grant Clare County Council permission for the road scheme. The applicant argued that a 0.15-hectare area of alluvial woodland, a priority habitat under the EU Habitats Directive, was entitled to “shadow protection” even though it had not been put forward for designation as a Site of Community Importance or designated as a Special Area of Conservation.
In the May judgment, the court found that the woodland was not a “European site” under domestic planning law and was not entitled to Article 6 protections under the Directive or the relevant EU case law. The court noted that the woodland would be temporarily removed and then recolonised, with mitigation and monitoring conditions attached to the permission. A further 0.76 hectares of similar habitat was to be cultivated nearby.
For the appeal certificate, Sweetman proposed asking whether shadow or de facto protection could extend to an Annex I priority habitat that had not been identified or listed as a Site of Community Importance or designated as a Special Area of Conservation. He argued that the issue raised uncertainty and pointed to a 2013 High Court decision concerning Dublin Bay, known as SAMRA.
Justice McDermott said the legal principles in that case and the current proceedings were consistent. He explained that EU case law can protect sites identified by a member state and put forward for designation, including in certain circumstances before the designation process is complete. The court said SAMRA concerned a site Ireland had nominated; it did not establish a parallel protection process for habitats the State had not included on its national list.
The judge was not satisfied that the law was uncertain or that the proposed question arose from a conflict between the two judgments. He also found no evidence that the proposed point affected many other cases, and said it lacked the exceptional public importance required by law. The court therefore refused to certify the proposed point for appeal. The ruling dealt with the appeal certificate application; it did not revisit or set aside the planning permission.