The Supreme Court has dismissed an appeal by the Hellfire Massy Residents Association over a High Court decision not to quash planning permission for a proposed visitor centre near the Hellfire Club in County Dublin.
The appeal concerned whether the High Court should have delayed its decision on the planning permission until the Court of Justice of the European Union (CJEU) ruled on a separate challenge to the validity of provisions governing post-consent derogation licences under the European Communities (Birds and Natural Habitats) Regulations 2011.
The planning permission had been granted by An Bord Pleanála to South Dublin County Council, subject to conditions. The Supreme Court said the assessment supporting that permission did not contemplate disturbance or destruction of habitat that would itself require a derogation licence. The High Court had found a reasonable possibility that surveys after consent might identify a need for such a licence during development or its operation.
The High Court dismissed the challenge seeking to quash the permission, finding that the Board had not relied on the possibility of a later derogation when granting consent. It separately allowed the challenge to the Regulations, insofar as it concerned the post-consent situation, to proceed against the State respondents and referred questions of EU law to the CJEU. That challenge remains unresolved pending the CJEU’s determination.
The Association argued that a CJEU ruling might establish that the separate planning and derogation systems were legally deficient, potentially undermining the permission. The Supreme Court held that this did not follow in this case. The post-consent procedure was concerned with circumstances that might arise only after permission was granted; a flaw in that later procedure could not logically invalidate the earlier permission. The Court also noted that the permission had not relied on a derogation licence.
The Court’s decision addressed the appeal about whether the High Court could dismiss the certiorari claim before the CJEU reference was answered. It did not decide whether the 2011 Regulations comply with EU law. The appeal was dismissed.