Ballyboden Tidy Towns Group v An Bord Pleanala & Ors [No 2] (Approved)

Factual and Procedural Background

The Applicant challenged a planning permission granted for the construction of 114 build-to-rent apartments on a site off Stocking Lane, Rathfarnham, County Dublin. The planning permission was granted by the Board, relying on the Ballycullen Oldcourt Local Area Plan 2014 (the LAP), which had been extended beyond its original expiry date of 2020 by resolution of the South Dublin County Council in 2019 under section 19(1)(d) of the Planning and Development Act 2000.

The Applicant contended that the extension of the LAP was invalid due to non-compliance with the Strategic Environmental Assessment Directive (Directive 2001/42/EC) because no new environmental assessment was carried out upon extension. The Applicant sought various reliefs including certiorari quashing the planning permission and declarations regarding the invalidity of certain statutory provisions and procedures.

Procedurally, the matter was divided into two modules. Module I, concerning several grounds of challenge other than the SEA-related issue, was dismissed by Holland J. in December 2023. Module II, focusing on the core ground challenging the extension of the LAP under the SEA Directive, proceeded to a hearing before Humphreys J. on 1st May 2025, with judgment reserved.

Legal Issues Presented

1. Whether the extension of the period of application of the Ballycullen Oldcourt Local Area Plan 2014-2020 (BOLAP) without a new Strategic Environmental Assessment (SEA) constitutes a "modification" of the plan under the SEA Directive, thereby requiring such assessment.
2. Whether the Applicant's challenge to the planning permission based on the alleged invalidity of the extended LAP amounts to an impermissible collateral attack on the unchallenged decision of the Council to extend the LAP.
3. Whether the Applicant has locus standi to challenge the legislation underpinning the LAP extension in the absence of a timely and properly pleaded challenge to the specific decision extending the LAP.
4. Whether the legislative provisions allowing extension of LAPs without explicit provision for SEA are incompatible with the SEA Directive and EU law.
5. Whether the proceedings are moot given the LAP expired on 2 June 2024.

Arguments of the Parties

Applicant's Arguments

• The extension of the LAP period is a modification under the SEA Directive and was invalid because no environmental assessment or screening was carried out at the extension stage.
• Section 19(1)(d) of the Planning and Development Act 2000 is incompatible with the SEA Directive as it permits extension without assessment, rendering the extended LAP invalid.
• The Board erred in granting planning permission relying on an invalid plan that had ceased to have effect.
• The Applicant relied on case law analogies from the Court of Justice of the European Union (CJEU), including Inter Environmental Wallonie and Friends of the Irish Environment, to support the need for fresh assessment upon extension.
• The Applicant contended that EU law requires ongoing remedial obligations to address failures to conduct necessary assessments.
• The Applicant sought declaratory relief that certain statutory provisions and procedures were ultra vires or incompatible with EU law.

State Respondents' Arguments

• The term "modification" in the SEA Directive does not include the extension of the duration of a LAP without textual or substantive changes.
• Case law under related environmental directives (EIA and Habitats Directives) is not applicable by analogy to the SEA Directive in this context.
• The extension of the LAP involves continuation of the existing plan without modification of the legal framework governing planning permissions.
• The statutory scheme requires certain procedural steps and opinions before extension, ensuring consistency with higher-level planning documents subject to SEA.
• The Applicant's challenge to the extension decision is an impermissible collateral attack as the decision was not challenged within statutory time limits under section 50 of the 2000 Act.
• The Applicant lacks locus standi to challenge the legislation abstractly without a timely challenge to the specific extension decision.
• The matter is moot because the LAP expired in June 2024, removing any live controversy.
• Even if a remedial obligation exists to address environmental assessment failures, the Applicant has not pleaded or demonstrated any such effects or sought to activate that obligation.
• The legislation does not prevent SEA but is silent on SEA upon extension, allowing for a conforming interpretation.

Council's Arguments

• The Applicant’s claim is an impermissible collateral attack on the Council’s valid and unchallenged decision to extend the LAP.
• The extension is not a “modification” under the SEA Directive as it involves no textual or substantive amendment to the plan.
• The Council complied with statutory procedures, including obtaining required opinions before extension.
• The Applicant’s reliance on certain CJEU cases is misplaced as those cases do not relate directly to the SEA Directive or the facts here.
• The extension decision benefits from a presumption of validity and no challenge was brought within statutory time limits.
• The Applicant lacks standing to challenge the legislation in the abstract without a timely, specific challenge.
• The LAP expired, making declaratory relief inappropriate and moot.
• The Applicant’s case contradicts its own reliance on the LAP during the planning process, amounting to an abuse of process.

Board's Arguments

• The Applicant’s challenge to the Board’s decision is dependent on invalidating the extended LAP, which was not challenged in accordance with section 50 requirements.
• The Board repeats preliminary objections that the challenge is an impermissible collateral attack and out of time.
• Even if a breach of the SEA Directive occurred, certiorari should be refused as the Applicant failed to argue the invalidity before the Board and relied on the LAP in submissions.
• The validity of section 19(1)(d) of the 2000 Act is a matter for the State Respondents.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the Applicant’s challenge concerning the extension of the LAP duration and its compatibility with the SEA Directive. It noted that the statutory scheme under section 19(1)(d) of the Planning and Development Act 2000 permits extension of a LAP for a further five years after procedural steps including obtaining opinions from the Chief Executive.

The Court accepted the argument that an extension of the LAP duration without textual or substantive change does not amount to a "modification" under the SEA Directive requiring a new strategic environmental assessment, relying on CJEU case law, particularly Inter-Environnement Bruxelles (Case C-567/10).

The Court found the Applicant’s attempt to challenge the validity of the extended LAP without directly challenging the Council’s resolution to extend it was an impermissible collateral attack barred by statutory time limits under section 50 of the 2000 Act. The Applicant failed to seek an extension of time or to properly plead a remedial obligation to address any alleged environmental assessment deficiencies.

Furthermore, the Court held that the challenge to the legislation in the abstract was inappropriate in the absence of a timely and specific challenge to the extension decision, consistent with principles of judicial restraint and locus standi.

The Court also considered the mootness of the proceedings as the LAP had expired on 2 June 2024, and noted that declaratory relief would serve no practical purpose. The Applicant’s positive reliance on the LAP during the planning process before the Board contradicted the claim that the LAP was no longer valid, amounting to an abuse of process.

In summary, the Court concluded that the extended LAP remained valid, the legislation was not invalid for failure to explicitly provide for SEA upon extension, and the Applicant’s challenge was procedurally and substantively unsustainable.

Holding and Implications

DISMISSED

The Court dismissed the proceedings in their entirety. The Applicant’s challenge to the planning permission, based on the alleged invalidity of the extended LAP due to non-compliance with the SEA Directive, was rejected as an impermissible collateral attack on an unchallenged Council decision. The legislation permitting extension of LAPs without explicit provision for SEA was not declared invalid. No relief was granted, and no new precedent was established beyond the application of existing principles regarding collateral attack, locus standi, and procedural requirements for challenging planning decisions and legislation. The LAP was held to have remained valid during the relevant period, and the planning permission granted by the Board was not vitiated by reliance on the extended LAP.

The Court made no order as to costs unless submissions were made within seven days. The matter was listed for further directions regarding costs.