A local community association has failed to get High Court orders overturning An Bord Pleanála's permission for certain flood relief works on Morrison's Island in Cork city.
The permission is valid and Save Cork City Community Association is not entitled to a stay on the works which formed a "relatively small" part of the overall flood relief works in the city, Mr Justice Richard Humphreys held.
However, the association is entitled to a declaration arising from public participation rights under the planning laws, he ruled.
While it had a potential case against the State regarding alleged inadequacy of the planning legislation concerning derogation licences granted after a planning consent, that ground was not a basis to challenge the validity of the permission decision, he further held. He adjourned that aspect of the case pending his judgment on another case raising a similar issue.
In his judgment on Wednesday, the judge said the works at issue have legitimately divided opinion in Cork and it must be accepted the association was entitled to advance its challenge.
He expressed concern that “applicant shaming” has now become “a background feature” in a number of planning cases.
Noting anti-victimisation provisions in the Aarhus Convention concerning public participation in planning issues, he hoped drawing attention to this “would help stimulate more informed responses” and a “greater recognition of the entitlement to exercise rights of public participation”.
It could be “somewhat unfair, if not ill-informed”, to criticise the association for delaying this project when it’s clear from the history of the matter the case “has taken just one year out of the 15-year history of Cork flood defence works”.
Challenge
In its action heard earlier this month, the group challenged the board’s June 2020 permission for various relief works at Morrison’s Island.
Its core claim was the disputed permission involved impermissible “project splitting”, within the meaning of the environmental impact assessment (EIA) directive, of the Lower Lee flood relief scheme, the overall flood-relief scheme for the city.
Its concern was that part of a project for the purposes of the directive may now be given consent without the project as a whole being made subject to an EIA.
Its case was against the board, the Minister for Housing, Local Government and Heritage, and the State.
Dismissing the claims concerning project splitting, he said the works at issue form part of a wider set of possible works referred to by a board inspector as a “masterplan”. It is not possible to do a full EIA for all such works in the absence of a formal proposal, he said.
The present project also does not seem to have the sort of necessary interaction with the wider works that would render a full EIA mandatory, he ruled.
‘Tortuous’ process
In other findings, he ruled section 177AE of the Planning and Development Act 2000 adequately provides a jurisdiction to provide an EIA screening, albeit in a “tortuous, indirect and implied manner”.
He held the applicant had failed to make out a case of breach of requirements of the habitats directive concerning protection of bats and otters.
The association was entitled to a declaration the council did not comply with public participation obligations under the planning acts to ensure members of the public could inspect or purchase a natura impact statement (NIS) concerning the works, he held.
On December 21st, 2018, some members of the public attended the council’s offices and were either unable to, or dissuaded from, purchasing copes of an NIS which the council had advertised would be available at its offices from December 20th, 2018, to February 15th, 2019, he said. However, one person was given the NIS free, another was charged €1.50 for it and a third was charged €9 for it.
The problems accessing the NIS were “suggestive of a systems issue rather than a one-off lapse”, he said.
