The High Court declared that An Bord Pleanála breached statutory publication requirements during the South Kerry Greenway approval process, but did not quash the planning decision. The ruling was made in the second module of judicial review proceedings, which dealt with declaratory relief left over after the court refused certiorari in July 2021.
Mr Justice Humphreys found that the board should have published on its website a submission received on 24 June 2019 from solicitors for the Greenway Information Group, along with four errata documents added to the environmental impact assessment report during oral hearings in October and November 2019. Those materials were not published. The court declared that this breached section 51(4C) of the Roads Act 1993.
The court distinguished those materials from documents received before the relevant 2019 regulations took effect. It held that the new website publication duties applied prospectively to new material arising in an ongoing process; they did not require the board to reopen files and publish material already received. The board’s arguments based on uncertainty about when the regulations took effect, later publication of notice of the regulations, legal certainty and lack of prejudice did not excuse the later omissions.
The applicants also challenged the newspaper notice announcing the decision. The board had approved the greenway subject to omitting two sections recommended for further environmental consideration. The court rejected complaints that the notice had to describe those omissions in a particular way or include the environmental impact assessment report. But it found that the notice’s general reference to the board’s website and case number did not let a reasonably informed member of the public readily find the decision: searching the advertised reference as given returned no result. The court declared a breach of section 51(6C) to that extent.
The court did not rule on an alleged failure by the Minister to include information on the central EIA portal, because the Minister was not a respondent. It also rejected the applicants’ argument that the newspaper notice was not published promptly, finding no pleaded challenge to the State’s failure to transpose that requirement and that the directive wording could not support the claim as pleaded.
The matter was listed for mention on 3 October 2022 to address any further or consequential matters. The declarations clarified the publication breaches; the approval itself remained unquashed.