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Coastal Concern Alliance v Minister for Housing Local Government & Heritage & Anor (Approved)
Factual and Procedural Background
The Applicant initiated judicial review proceedings challenging a decision made by the Minister for Housing, Local Government and Heritage ("the Minister") dated 12 November 2020 to grant a foreshore licence. This licence authorised a geophysical survey, seabed sampling, a geotechnical survey, and deployment of buoy-mounted metocean equipment approximately ten kilometres off the Dublin Coast near Kish and Bray Banks.
The Minister's decision was based on a departmental recommendation following an assessment process that included an Appropriate Assessment Screening and Natura Impact Statement (NIS) submitted by the developer. The Marine Licence Vetting Committee (MLVC) reviewed the application and recommended approval subject to mitigation measures.
During the substantive judicial review hearing, the Respondents conceded that the decision-making process did not comply with the Habitats Directive (Directive 92/43/EEC), specifically failing to properly apply Article 6(3) and the relevant domestic implementing regulations. The Minister’s approval incorrectly merged the legal tests for stage one screening and stage two appropriate assessment, impermissibly considering mitigation measures at the screening stage.
The foreshore licence was executed on 25 January 2021, and notice of determination was published on 2 February 2021 in the official gazette and on the Department’s website. The notice contained discrepancies, including an incorrect identification of the decision-maker as the Minister of State rather than the Minister.
The Applicant sought to amend its statement of grounds to include a declaration that the developer could not rely on survey data gathered under the impugned foreshore licence for any future development consent applications. This relief was not part of the original pleadings and required leave to amend.
Procedurally, the judicial review was initiated by an ex parte application for leave on 26 April 2021, granted on 16 June 2021. Opposition papers were filed in early 2022. The substantive hearing was scheduled for March 2024 but was preceded by a strike out application on grounds of mootness, which was dismissed in March 2024. The substantive hearing took place over two days in July 2024, with judgment reserved.
The developer had commenced and completed most survey activities authorized by the foreshore licence prior to the institution of proceedings and elected not to carry out all originally authorized activities, instead applying for a second foreshore licence for those activities.
Legal Issues Presented
- Whether the decision to grant the foreshore licence complied with the requirements of Article 6(3) of the Habitats Directive and the domestic Natural Habitats Regulations.
- Whether the Applicant should be permitted to amend its statement of grounds to seek declaratory relief preventing the developer from relying on survey data obtained under the impugned foreshore licence for future development applications.
- The appropriate form of relief following the conceded breach of the Habitats Directive, including whether the foreshore licence should be quashed and whether the application should be remitted for reconsideration.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Keegan v. Garda Síochána Ombudsman Commission [2012] IESC 29 | Principles governing applications for leave to amend statements of grounds in judicial review proceedings, including considerations of delay, prejudice, and enlargement of the case. | The court applied these principles to refuse leave to amend due to excessive delay and prejudice to the developer. |
| North Westmeath Turbine Action Group v. An Bord Pleanála [2022] IECA 126 | Clarification that Order 84, rule 23(2) allows amendment of relief and grounds in judicial review, with the interests of justice as the guiding test. | Referenced in assessing whether to allow amendment; the court found the proposed amendment would introduce a new cause of action and cause prejudice. |
| Ballyboden Tidy Towns Group v. An Bord Pleanála [2024] IESC 4 | The necessity for the court to be satisfied that setting aside a decision by certiorari is a lawful exercise of judicial review jurisdiction, even where respondents concede. | The court was satisfied that quashing the decision was lawful and appropriate. |
| Hayes v. Environmental Protection Agency [2024] IECA 162 | Explanation of the two-stage process under the Habitats Directive for Appropriate Assessment and the threshold of scientific certainty required. | The court applied this framework to find the decision-maker failed to correctly distinguish between stage one screening and stage two assessment. |
| People Over Wind, Case C-323/17, EU:C:2018:244 | Prohibition on taking mitigation measures into account at the screening stage of Appropriate Assessment under the Habitats Directive. | The court found that the Minister impermissibly relied on mitigation measures at stage one, invalidating the decision. |
| T.C. Briels, Case C-521/12, EU:C:2014:330 | Legal test for stage two Appropriate Assessment focusing on adverse effects on site integrity considering mitigation. | The court emphasized the necessity of applying the correct stage two test, which was not done here. |
| Commission v. Ireland (Derrybrien Wind Farm), Case C-261/18, EU:C:2019:955 | Member States’ obligation to eliminate unlawful consequences of breaches of EU environmental law, including remedial assessments and possible revocation of consent. | Supported the court’s conclusion that the development consent should be quashed and remedial processes considered. |
| Latvijas valsts meži, Case C-434/22, EU:C:2023:966 | Clarification that the Habitats Directive does not impose direct obligations on individuals and that national authorities must remedy breaches. | Supported the court’s rejection of declaratory relief directly against the developer and the focus on state responsibility. |
| Wells, Case C-201/02, EU:C:2004:12 | Clarification on adverse repercussions of breaches of environmental directives and limits on direct effect against individuals. | Referenced in rejecting “inverse direct effect” of the Habitats Directive against the developer. |
| Fowler v. Keegan Quarries Ltd [2016] IEHC 602 | Precedent for remedial assessment within enforcement proceedings. | Noted as a possible enforcement route, though not clearly available in the present case. |
| Kelly v. An Bord Pleanála [2019] IEHC 84 | Judicial review courts focus on the substance of the decision-maker’s analysis rather than exact wording in Appropriate Assessment. | Applied in assessing the flawed decision-making process in this case. |
Court's Reasoning and Analysis
The court began by examining the decision-making process under the Habitats Directive and the domestic Natural Habitats Regulations, emphasizing the two-stage Appropriate Assessment framework: stage one screening to determine if a project is likely to have a significant effect, and stage two full assessment to evaluate adverse effects on site integrity.
The court found that the Minister’s decision erroneously conflated the stage one and stage two tests, impermissibly considering mitigation measures at the screening stage, which is contrary to established EU law and case law such as People Over Wind. The Minister’s understanding of the legal test was flawed, and the decision-making record was deficient, including incorrect identification of the decision-maker and inconsistent legal formulations in the notice of determination.
Given the Respondents’ concession that the decision breached the Habitats Directive, the court considered the appropriate relief. The Applicant sought to amend its grounds to include a novel declaratory relief preventing the developer from relying on survey data obtained under the impugned licence for future development applications.
Applying established principles from Keegan and North Westmeath Turbine Action Group, the court analyzed the application to amend. It found that the amendment would significantly enlarge the case by introducing a new cause of action directly against the developer, changing the developer’s status from notice party to respondent. The amendment was brought after a substantial delay of approximately three years without adequate explanation, causing prejudice to the developer, who had already commenced and completed most activities under the licence.
The court rejected the application to amend on these grounds.
On the merits of the declaratory relief sought against the developer, the court identified two principal objections: (1) the Habitats Directive cannot be enforced directly against private individuals absent national implementing legislation, reaffirmed by recent ECJ case law including Latvijas valsts meži; and (2) imposing an ad hoc penalty on a developer who complied with its obligations does not further the Directive’s purpose, especially where the legal error was made by the competent authority, not the developer.
The court noted that national authorities are required to remedy environmental harm caused by breaches of the Habitats Directive, typically by quashing invalid consents and requiring remedial assessments, but this obligation does not extend directly to private developers.
The court observed that enforcement mechanisms under domestic law are limited, with the Minister holding exclusive powers under the Natural Habitats Regulations. There is no private enforcement route available to the Applicant.
Consequently, the only viable procedural mechanism to address the breach and potential environmental harm is to remit the application for reconsideration by the Minister, who was the original decision-maker. This allows for a remedial assessment and decision consistent with EU and domestic law.
Holding and Implications
The court issued the following orders:
- Refused the Applicant’s motion for leave to amend the statement of grounds to include declaratory relief against the developer.
- Granted an order of certiorari quashing the decision made on 12 November 2020 to grant the foreshore licence.
- Ordered the remittal of the foreshore licence application to the Minister for Housing, Local Government and Heritage with a direction to reconsider and reach a decision in accordance with the court’s findings.
The direct consequence is that the impugned foreshore licence is invalidated and the Minister must reconsider the application applying the correct legal tests under the Habitats Directive. The Applicant’s novel claim to prevent the developer from relying on survey data for future development consent applications was rejected due to procedural delay, prejudice, and legal principle.
No new precedent was established beyond reaffirming existing principles on Appropriate Assessment, the limits of direct effect of EU Directives against private parties, and procedural rules on amendment of judicial review pleadings. The ruling maintains the established balance between environmental protection obligations and procedural fairness to developers and competent authorities.
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