Hellfire Massy Residents Association v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The case concerns a planning application for a visitor centre and associated development in a historically and environmentally sensitive area at the summit of Montpelier Hill in County Dublin. The site includes the Hellfire Club, an 18th century building, and surrounding lands featuring protected structures and habitats such as Massy’s Wood and parts of the Old Military Road. The proposal for the Dublin Mountains Visitor Centre was first identified in strategic plans from 2007 onwards and involved presentations and public consultations between 2017 and 2018.

The planning application was submitted by South Dublin County Council under section 175 of the Planning and Development Act 2000. The application included an Environmental Impact Assessment Report (EIAR) and a Natura Impact Statement (NIS) following a direction by An Bord Pleanála (the board) to prepare an Environmental Impact Statement (EIS).

The board conducted an oral hearing, received multiple rounds of additional information, and considered ecological concerns particularly relating to protected species such as red squirrels, bats, and otters. After initial concerns by the inspector, further surveys and mitigation plans were submitted. The board ultimately approved the application with conditions on 25 June 2020.

The applicant, a residents association, challenged the board’s decision by way of judicial review, raising multiple grounds including alleged errors in visitor number estimates, procedural breaches under the Planning and Development Act 2000, and the validity of relevant legislation and regulations. The High Court heard submissions and dismissed the case in part on 9 June 2021, with further issues relating to the validity of certain regulations to be addressed subsequently.

Legal Issues Presented

1. Whether the board lawfully relied on estimated future visitor numbers in its decision-making process.
2. Whether there was non-compliance with section 175 of the Planning and Development Act 2000 concerning public notice and consultation.
3. Whether the relevant provisions of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) are invalid, particularly Articles 51 and 54, for failing to provide strict protection and adequate public participation in relation to derogation licences.
4. Whether the system of derogation licences under the 2011 regulations is properly integrated with the planning consent system as required by EU law and the Habitats Directive.
5. Whether the board’s environmental impact assessment and appropriate assessment complied with domestic and EU environmental law, including the Habitats Directive and the Aarhus Convention.
6. Whether the applicant has standing and whether the claims regarding the validity of legislation and procedural fairness are justiciable in the circumstances.

Arguments of the Parties

Applicant's Arguments

• The visitor numbers projected by the council were unreliable and lacked foundation, rendering the board's reliance on them unlawful.
• There was a procedural breach under section 175 due to the closure of a public library during the Covid-19 emergency, impeding fair public notice and consultation.
• The European Communities (Birds and Natural Habitats) Regulations 2011 fail to create a system of strict protection as required by the Habitats Directive because they allow post-consent derogation licences without adequate public participation or integration with the planning process.
• The board unlawfully relied on unverified mitigation measures for protected species, and improperly authorised potential destruction of protected species’ breeding sites (e.g., squirrel dreys).
• The applicant challenged the validity of section 175 of the Planning and Development Act 2000 and the 2011 regulations as incompatible with EU law and constitutional rights.

Respondents' Arguments

• Estimations of visitor numbers inherently involve uncertainty but are based on informed opinion and empirical data; no contrary statistical evidence was submitted by the applicant.
• The applicant was not prevented from making submissions and has no standing to assert procedural breaches on behalf of others.
• The mitigation measures relied upon by the board are verified and consistent with relevant guidelines for protected species.
• The board did not rely on the prospect of derogation licences at the time of decision and no condition was required to anticipate post-consent derogation needs.
• The planning permission process and the derogation licence system operate independently but lawfully; integration beyond existing legal obligations is not required by EU law.
• The applicant’s challenges to legislation were either improperly pleaded or lacked standing, except for the post-consent challenge to the 2011 regulations which raises referable EU law questions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the applicant’s grounds of challenge, dividing them into domestic law points, EU law points, and legislative validity points.

Regarding domestic law, the court found that visitor number estimates are inherently uncertain but based on objective evidence and expert opinion, and no contrary evidence was submitted. Thus, the board’s reliance on these figures was lawful. The alleged procedural breach relating to public notice during Covid-19 was rejected on grounds of standing and fairness, noting the applicant was not prevented from making submissions.

On EU law points, the court dismissed challenges related to alleged unreliable visitor numbers and inadequate ecological assessments where the applicant withdrew or failed to provide countervailing scientific evidence. The court found mitigation measures to be verified and consistent with guidelines. It also rejected claims that the board unlawfully relied on derogation licences, noting no such reliance was made at the time of consent.

The court addressed the legislative validity challenges with careful attention to pleading and standing issues. It distinguished between pre-consent and post-consent derogation licence requirements, concluding that the decision was not made under the 2011 regulations in relation to derogation licences and thus could not be invalidated on that basis. However, the court recognized a real and substantial question as to whether the 2011 regulations adequately integrate the derogation licence system with the planning consent system, and whether the lack of public participation in derogation licence procedures complies with EU law, the Habitats Directive, and the Aarhus Convention.

The court identified four referable questions of EU law concerning the interpretation and compatibility of the 2011 regulations with EU environmental law and public participation rights. It exercised its discretion to refer these questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling, given the absence of clear authority and the importance of the issues.

Holding and Implications

The court DISMISSED the applicant’s judicial review challenge insofar as it related to:

• The order of certiorari quashing the board’s decision;
• The validity of section 175 of the Planning and Development Act 2000;
• The invalidity of the 2011 regulations concerning the pre-consent process.

The court substituted the Minister for Tourism, Culture, Arts, Gaeltacht, Sport and Media as a respondent in place of the previously named Minister for Housing, Planning and Local Government for matters relating to the 2011 regulations.

The court referred four important questions of EU law to the CJEU concerning the interpretation and validity of the 2011 regulations in relation to post-consent derogation licences and public participation requirements under the Habitats Directive and the Aarhus Convention.

The direct effect of this decision is that the planning permission granted by the board stands and is not quashed. However, the referral to the CJEU may lead to future clarifications or changes in the legal framework governing derogation licences and public participation in environmental matters. No new domestic precedent was established on the substantive merits of the planning application or the board’s decision.