The High Court has dismissed Ballyboden Tidy Towns Group’s judicial review of planning permission for flood alleviation works along a 1.5km stretch of Whitechurch Stream in Rathfarnham.
The permission was granted by An Bord Pleanála on 17 December 2020, following an application by South Dublin County Council under section 177AE of the Planning and Development Act 2000. The works cover a section running from St Enda’s Park to the stream’s confluence with the Owendoher River.
The group had dropped several grounds before the hearing, including claims about public participation and reliance on mitigation measures in environmental impact screening. It also argued that the board lacked jurisdiction to carry out screening under section 177AE and that EU law requirements had not been properly transposed. Justice Humphreys said those arguments had already been rejected in an earlier High Court case and dismissed them for the same reasons.
The remaining issues concerned cumulative effects from other developments, the adequacy of otter and bat surveys, the legal test applied to protected species, and the absence of a time limit on the permission.
The judge said the environmental reports had assessed cumulative impacts using searches of planning applications and other major developments. The group had not raised its criticisms of the projects considered with the board at the relevant time, and the court found no effective challenge to the assessment method.
On the survey and protected-species grounds, the court found that the group’s pleadings did not explain clearly what legal duty the board had breached or how the cited provisions of the Habitats Directive created an entitlement to the relief sought. The judge said the arguments made orally went beyond what had been set out in the case and could not be read into the pleadings.
The group also challenged the indefinite duration of permissions under section 177AE, arguing that ecological conditions could change before the works were carried out. The court dismissed the claim because the legal relief had not been pleaded with sufficient precision. The judge said an implied EU rule limiting the duration of such permissions was not clear enough to have direct effect, and the group had not properly pleaded the relevant transposition claim.
The judgment did not rule out the duration issue being arguable in a future case if properly pleaded. It noted that authorities might need to consider whether some form of time limit, potentially renewable, should apply.
The proceedings were dismissed. The court did not quash the permission or impose a time limit on it.