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

Factual and Procedural Background

The case concerns a proposed visitor centre near an 18^th-century building on a hill outside The City. The project, to be developed by Notice Party, required planning permission from Respondent 1 under the Planning and Development Act 2000. An initial screening concluded that an Environmental Impact Assessment (“EIA”) was necessary, and a full application, accompanied by an Environmental Impact Assessment Report (“EIAR”), followed in 2017. After additional information, public consultation and a six-day oral hearing, permission was granted subject to conditions.

Appellant sought judicial review in the High Court on “a modest 98 grounds,” challenging both domestic and EU-law compliance. Four separate High Court judgments ensued. Most domestic-law challenges were rejected. The central remaining dispute concerned the legality of Regulations 51 and 54 of the 2011 European Communities Birds and Natural Habitats Regulations (“the 2011 Regulations”), which govern derogation licences for protected species. The High Court:

• Dismissed the claim for certiorari of the planning permission.
• Retained a stand-alone claim seeking a declaration that the 2011 Regulations are invalid in the post-consent context, and referred four questions to the Court of Justice of the European Union (“CJEU”) under Article 267 TFEU.

Appellant appealed directly to the Supreme Court, contending that the permission could not be finally upheld until the CJEU reference was resolved.

Legal Issues Presented

1. Whether a possible future CJEU ruling on the validity of the 2011 Regulations (as they apply after development consent) could render the already-granted planning permission invalid.
2. Whether the High Court erred in dismissing the certiorari claim instead of adjourning it pending the CJEU reference.

Arguments of the Parties

Appellant's Arguments

• The planning permission was granted within a dual system that separates development consent from post-consent derogation licensing; if that structure is held unlawful by the CJEU, the permission itself must fall.
• The High Court should have retained the certiorari claim so it could quash the permission if the CJEU finds the national derogation regime incompatible with EU law.
• CJEU answers are not confined to the precise wording of the questions; they may comment broadly on the permission’s legality, making it premature to dismiss the challenge.

Respondents' Arguments

• The Board’s decision did not rely on any derogation licence, nor was disturbance of protected habitats authorised; therefore, the permission is unaffected by any defect in the derogation regime.
• The remaining dispute is solely between Appellant and the State regarding the abstract validity of the 2011 Regulations; it cannot logically invalidate the permission.
• Dismissing the permission challenge avoids unnecessary delay to a public-interest project while allowing the CJEU reference on the separate declaratory issue to proceed.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge O’Donnell, delivering judgment for the Court, framed the issue as one of “logic rather than law.” Key analytical steps were:

• The permission authorises a development which, on the evidence before the Board, did not require habitat disturbance or a derogation licence. Therefore, the Board did not “rely on” Regulations 51 or 54.
• The remaining High Court proceedings concern only a prospective, post-consent scenario: if, during construction, a need for derogation arises, the validity of the 2011 Regulations will matter. That question is now before the CJEU.
• A post-consent flaw cannot retroactively infect a permission lawfully granted without reliance on the derogation procedure. Consequently, no conceivable answer from the CJEU could render the permission invalid.
• Because the permission’s validity is insulated from the pending reference, the High Court was entitled to dismiss the certiorari claim and to remove Respondent 1 and Notice Party from the proceedings, limiting the reference to the declaratory dispute against the State.
• The Supreme Court emphasised the public-interest value in avoiding unnecessary delay to infrastructure projects and endorsed the trial judge’s careful separation of issues.

Holding and Implications

APPEAL DISMISSED.

The Supreme Court affirmed the High Court’s dismissal of the challenge to the planning permission. The declaratory claim against the 2011 Regulations—and the related CJEU reference—proceeds independently, but whatever the CJEU decides cannot affect the permission upheld here. No new substantive precedent was set; the ruling clarifies procedural practice by confirming that courts may sever and finally determine permission challenges where the outcome of a separate EU-law reference cannot logically alter the permission’s validity.