Byrne v Fingal County Council: Declaratory Relief for LAP Non-Compliance

1. Introduction

This commentary examines the High Court decision in Byrne v Fingal County Council & Ors [2025] IEHC 204, delivered by Humphreys J. on 11 April 2025. The case arose out of Fingal County Council’s decision to make the temporary Covid-19 pedestrianisation of New Street in Malahide permanent under s. 179 of the Planning and Development Act 2000. The applicant, Ms Nicola Byrne, had earlier failed to obtain interlocutory relief against the Council’s temporary order. She then challenged the permanent public realm works on multiple grounds, including (i) absence of a Local Area Plan (LAP) for Malahide, (ii) alleged failure to consider cumulative traffic and environmental impacts, and (iii) non-compliance with EU EIA and Water Framework Directives. The respondents included Fingal County Council, An Bord Pleanála, the Minister for Housing, Planning and Local Government, and the Attorney General.

2. Summary of the Judgment

Humphreys J. dismissed Ms Byrne’s application for certiorari and related reliefs except to grant a declaration that Fingal County Council had been in breach of s. 19(1)(b) of the Planning and Development Act 2000 by failing, from June 2020 to date, to prepare a mandatory LAP for Malahide. The court held:

The absence of the required LAP does not render all subsequent decisions of the Council void; it gives rise to declaratory relief, not automatic quashing by certiorari.
The chief executive’s s. 179 report complied with statutory duties to summarise submissions and consider cumulative effects.
An Bord Pleanála correctly screened the pedestrianisation project as sub-threshold (0.22 ha) under the Planning and Development Regulations 2001 (Class 10(b)(iv)), and lawfully considered in-combination effects with other works.
No EU law error arose in the interpretation of “area involved” for EIA thresholds and no project-splitting rendered the board’s decision unlawful.

The court ordered that, apart from the declaration on the LAP breach, the proceeding be dismissed and awarded limited costs in favour of the applicant against the Council.

3. Analysis

3.1 Precedents Cited

The judgment engages both domestic and EU precedents:

Doherty v Government of Ireland [2010] IEHC 369: implied obligation to comply with plan-making duties within a reasonable time.
Aannemersbedrijf P.K. Kraaijeveld BV v Zuid-Holland (Case C-72/95): limits on Member State discretion to set EIA thresholds – art. 2(1) EIA Directive.
Commission v Ireland (Case C-392/96): cumulative effects of independent peat-harvesting projects in the Burren required EIA despite each project’s small scale.
Commission v Spain (Case C-227/01): rail project could not be artificially split into sub-projects to avoid EIA.
Ecologistas en Acción-CODA v Madrid (Case C-142/07): “project-splitting” in underground motorway works; courts must verify functional interdependence and cumulative effects.
Commission v United Kingdom (Case C-508/03): multi-stage consent procedures must assess effects not determined at outline stage.
Marktgemeinde Straßwalchen (Case C-531/13): cumulative impact of gas-exploration drillings required screening of 30 probes in municipal area.
WertInvest Hotelbetriebs GmbH v Magistrat der Stadt Wien (Case C-575/21): urban projects below individual thresholds can collectively trigger EIA if, taken as a whole, likely significant effects arise.

These authorities establish that (a) Member States may not evade EIA by splitting large undertakings; (b) cumulative and in-combination effects must be considered both for threshold screening and in individual EIA; and (c) “project as a whole” may extend beyond the consents under challenge.

3.2 Legal Reasoning

Humphreys J.’s reasoning proceeded in the following key strands:

Statutory Duty to Prepare LAPs (s. 19(1)(b)): Malahide, a town over 5,000 population, legally required an LAP since June 2020. No plan had been adopted. By analogy with Doherty, the duty must be carried out within a reasonable time (six-year cycle of a development plan). The appropriate remedy for such default is declaratory relief, not automatic quashing of development consents (paras. 53–61).
Chief Executive’s s. 179 Report: Section 179(3)(b)(iv) requires only a summary of submissions and responses. The report identified and addressed cumulative context—Malahide Green, Broadmeadow Way, Sutton-Malahide cycle scheme—and evaluated proper planning and sustainable development. There was no failure of reasons or consideration (paras. 70–73).
EIA Screening and “Area Involved”: Under Planning and Development Regulations 2001, Sch. 5 Part 2 Class 10(b)(iv), the “area involved” is the footprint of the works (0.22 ha), not an amorphous “zone of influence.” Following Finlay J. in Fitzpatrick v An Bord Pleanála [2019] IESC 23, each project is assessed on its own submission unless EU law compels cumulative threshold screening (paras. 84–88).
Cumulative/In-Combination Impacts: Article 4(4) and Annex III of the EIA Directive require consideration of other projects’ environmental effects. The board’s inspector assessed broad cumulative impacts (paras. 108–110) and concluded no significant traffic-safety or environmental effects would arise from the pedestrianisation of a 150 m street. Ms Byrne did not dispel the onus to show otherwise (paras. 129–131).
Interpretation of Screening Provisions: Article 120(3) PDR and Sch. 7 oblige screening of sub-threshold developments with reference to annexed criteria, including cumulative impacts. Absent a conflict, the domestic regulations may be read compatibly with EU law (Marleasing principle); no ultra vires breach arose (paras. 135–136).

3.3 Impact of the Judgment

This decision clarifies several points of wide application:

Failure to adopt mandatory statutory plans (LAPs) is remediable by declaration rather than outright invalidation of development consents, avoiding paralysis of planning functions.
Section 179 reports need only summarise and respond to submissions; a summary of cumulative context suffices absent specific unaddressed expert critiques.
The “area involved” for EIA thresholds means the physical footprint of the proposed works; broader “zone of influence” concerns are addressed under in-combination screening.
Project-splitting and cumulative threshold screening obligations must align with EU tools but do not automatically render sub-threshold consents unlawful if combined effects were sensibly assessed.

The ruling may moderate overly aggressive judicial-review challenges to urban public-realm works based on alleged plan-making defaults or speculative cumulative impacts, while preserving access to declaratory remedies for plan defaults.

4. Complex Concepts Simplified

Certiorari: A prerogative writ quashing a decision for illegality. Here, the court refused certiorari except to declare the LAP breach.
Local Area Plan (LAP): A statutory land-use plan for towns >5,000 population under s. 19(1)(b) PDA. It provides local planning frameworks under the county development plan.
Section 179 Procedure: A local authority may execute development itself; the chief executive’s report and members’ non-veto amount to consent.
EIA Screening: A process under Art. 4 of the EIA Directive and arts. 120–120C PDR to determine if environmental impact assessment is required.
Sub-threshold vs. Supra-threshold: Sub-threshold projects fall below statutory size limits but still require screening for cumulative/in-combination effects; supra-threshold projects automatically require EIA.
Project-Splitting: Illicit division of a large project into smaller parts to avoid EIA; unlawful if parts are functionally interdependent or cumulative effects were not examined.

5. Conclusion

Byrne v Fingal County Council establishes that default in preparing a statutorily required Local Area Plan gives rise to declaratory relief rather than automatic quashing of subsequent decisions. It affirms that section 179 reports need only summarise submissions and respond, that EIA screening focuses on the physical “area involved,” and that cumulative impacts must be sensibly considered without compelling overly broad “zone of influence” tests. The decision strikes a pragmatic balance: it upholds rule-of-law principles by marking statutory non-compliance, while ensuring that needed urban public-realm improvements are not routinely derailed by technical plan defaults or speculative cumulative-impact claims.