The High Court has refused an application by the M28 Steering Group for a certificate allowing an appeal against the court’s earlier dismissal of its challenge to approval of the N28 Cork Ringaskiddy road scheme.
In a judgment delivered on 17 November 2020, Mr Justice MacGrath also declined to refer the applicant’s proposed questions to the Court of Justice of the European Union (CJEU). The ruling concerned whether the applicant had met the legal threshold for an appeal certificate and whether an EU-law reference was necessary at this stage. It did not decide whether future quarrying activity would comply with the quarry’s planning permission.
The underlying judicial review challenged An Bord Pleanála’s 2018 approval for the road scheme. In December 2019, the High Court refused to quash that approval. The Steering Group then sought a certificate under section 50A(7) of the Planning and Development Act 2000, which permits an appeal only where the decision involves a point of law of exceptional public importance and an appeal is desirable in the public interest.
The applicant argued that the road scheme depended on material from a quarry and that the consent and environmental assessments for the extraction were unclear. It also relied on EU environmental law and the CJEU’s decision in Friends of the Irish Environment. The Board and Cork County Council, a notice party, opposed certification. They submitted that the road and quarry were separate developments, that cumulative effects had been assessed, and that the proposed questions turned on the facts or issues not decided in the earlier judgment.
Justice MacGrath held that the project assessed for the challenged approval was the road scheme, not a combined road-and-quarry project. He said the earlier judgment had rejected the project-splitting argument and had considered the road’s cumulative effects with the permitted quarry. The court had not decided whether particular future extraction would breach the quarry permission or require a further planning application.
The judge found the first three proposed questions fact-specific, not points of law arising from the judgment, and not matters of legal uncertainty. He also rejected the claim that Article 11 of the Environmental Impact Assessment Directive required an appeal stage, applying the approach set out in earlier High Court authority.
The court was not satisfied that the proposed CJEU questions were necessary to determine the application, because they assumed that the quarry formed part of the road project, a position the court had rejected. It also found no basis to certify the remaining proposed questions or to conclude that the applicant’s Article 11 rights had been breached.
The application for a certificate was refused in full, and the court declined the requested EU reference.