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AN CHÚIRT UACHTARACH
THE SUPREME COURT
Dunne J.
Woulfe J.
Hogan J.
S:AP:IE:2024:000181
[2025] IESC 13
BETWEEN/
FRIENDS OF THE ARDEE BOG
APPLICANT
AND
AN BORD PLEANÁLA, IRELAND AND
THE ATTORNEY GENERAL
AND
RESPONDENTS
LOUTH COUNTY COUNCIL
NOTICE PARTY
JUDGMENT of Mr. Justice Gerard Hogan delivered the 25th day of March 2025
Introduction
1. These judicial review proceedings involve a challenge to certain decisions of An Bord Pleanála in respect of the construction of a 4.5km road together with two bridges in respect of the proposed N52 Ardee Bypass at Ardee, Co. Louth. As I will explain presently, this judgment concerns the single question as to whether this Court should grant the applicant leave to appeal from a decision of the High Court pursuant to Article 34.5.4⁰ of the Constitution. Such applications are normally dealt by with a panel of this Court in chambers and a formal determination later follows. As it happens, this Court considered that it could not resolve this particular application by means of a determination on paper alone. In our determination in this matter dated 21st February 2025 we accordingly directed an oral hearing. That hearing took place on 13th March 2025 and this Court is accordingly now proceeding to judgment in respect of this application.
2. In May 2021 Louth County Council ("the Council") sought a determination from An Bord Pleanála ("the Board") under s. 50(1)(b) of the Roads Act 1993 ("the 1993 Act"). Specifically, the applicant challenges a decision of An Bord Pleanála dated 19th October 2021 directing the Council not to prepare an Environmental Impact Assessment ("EIA") or a Natura Impact Statement ("NIS") in respect of the proposed development. The proposed route passes through a portion of the Ardee Bog which is a proposed Natural Heritage Area and which is located in an area of Special Protection Area.
3. There appears to be a long history with regard to earlier applications for permission in respect of this project. Following the confirmation of a compulsory purchase order by the Board as far back as September 2006, it appears that in 2019 the Council cleared much of the hedgerows from part of the route and from the land which had been compulsorily acquired. In the present case the Board's inspector concluded that as the proposed bypass would be located within an agricultural area, the proposed development would now only require some additional felling of trees and some additional hedgerows.
4. The inspector concluded ultimately that the project would not be likely to have significant impacts on the environment and, accordingly, that there was no need for an Environmental Impact Assessment. She did, however, conduct an appropriate assessment ("AA") screening for the purposes of Article 6 of the Habitats Directive saying that there was not likely to be any direct or indirect effects on any Special Protection Area ("SPA") in view of the conservation objectives of those sites. It followed that no NIS was therefore necessary.
5. It is not disputed, however, that there was no site-specific conservation objectives in place for one of the potentially impacted SPAs, namely, the Stabannan-Braganstown SPA. The State parties acknowledged this and a declaration to this effect was made by consent in the High Court. The applicant maintains, inter alia, that this omission was fatal to the validity of the Board's decision of October 2021 and that there was no proper AA screening as required by Article 6(3) of the Habitats Directive. This is disputed by both respondents who contend that this point was never adequately pleaded by the applicant and, specifically, it was never argued that this was fatal to the Board's jurisdiction to make the decision. The State parties (Ireland and the Attorney General) acknowledge while that the issue is, in principle, capable of giving rise to a matter of general public importance, nevertheless the failure to plead this jurisdictional point means that this issue has no relevance to the present case. The Council did not take part in the proceedings.
6. The applicant also maintains that the earlier clearing of the hedgerows ought to have been considered by the Board in its screening for EIA and AA under s. 50(1)(b) of the 1993 Act. The respondents maintain that this issue was already dealt with by this Court in Concerned Residents of Treascon v. An Bord Pleanála [2024] IESC 28.
7. These points are all said by the applicant to amount to issues of general public importance for the purposes of this Article 34.5.4⁰ leave application.
The judgment of the High Court
8. By a judgment delivered the 14th May 2024 the High Court rejected the application for judicial review: see Friends of Ardee Bog v. An Bord Pleanála [2024] IEHC 292. In her judgment O'Regan J. concluded that no manifest error on the part of the Board had been identified and that it had sufficient information before it to arrive at the conclusions which it did. She further indicated that while she would grant a declaration that the State parties had failed to provide specific conservation objectives in respect of the Stabannan-Braganstown SPA in a manner contrary to the requirements of EU law, following a concession by the State parties to this effect. By a further decision of 5th November 2024 O'Regan J. refused leave to appeal to the Court of Appeal: see Friends of Ardee Bog v. An Bord Pleanála (No.2) [2024] IEHC 634.
Conclusions
9. When this application for leave initially came before the Court it became clear that the scope of the appeal would be a major issue. The Court acknowledged this in its first published determination in this matter ([2025] IESC DET 29), albeit that we stated that this issue could not be determined without sight of the pleadings and oral argument. The Court has had the benefit of now seeing the pleadings and, as I have indicated, has heard the participating parties. We propose now separately to consider the position of the two respondents, commencing with the State parties.
The position of Ireland and the Attorney General
10. In the original statement of grounds of 13th December 2021 these judicial review proceedings the applicant sought three separate specific declaratory reliefs. The first declaration sought related to the failure to put in place special conservation measures in respect of the Stabannan-Braganstown SPA, a failure which was said to amount to a breach of Article 4(1) and Article 4(2|) of the Birds Directive, Directive 2009/147/EC. The declaratory relief which was granted by consent in the High Court corresponds substantially to the first declaration.
11. The second and third declarations relate to contentions that the State failed properly to transpose Annex II, paragraph 1(a) of Directive 2011/92/EU (as amended)("the EIA Directive") into domestic law so far as it concerned development consents in respect of the restructuring of rural land holdings. The third declaration concerned a claim that the State had failed properly to transpose Annex II, para. 10(e) of the EIA Directive into domestic law in so far as it concerns road projects.
12. At the oral hearing before us it was agreed that the applicant had effectively abandoned these claims for second and third declarations before the High Court as against the State parties. Counsel for the applicant accepted this, but he contended that the declaratory relief now sought in respect of EIA screening in respect of land restructuring and the clearing of hedgerows was against the Board and not as against the State parties. I will consider this argument presently.
13. In these circumstances I am satisfied that no additional relief can now properly be sought against the State parties apart from the declaration granted by consent in the High Court. It follows in turn that leave to appeal in respect of these additional grounds must be refused so far as the State respondents are concerned.
The case against the Board
14. Much of the debate during the course of the oral hearing centred on whether the applicant had challenged the jurisdiction of the Board to make a determination that no NIS was necessary. The focus here was on paragraph 11 of the applicant's grounding statement which had pleaded that this decision was "invalid on the ground that it contravenes reg. 42(1) of S.I. No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011 in that the Board's assessment was not made in view of the best scientific knowledge and in view of the conservation objectives of the site, and no regard was had to the in-combination effect."
15. This was amplified by further particulars at paragraph 29:
"The failure to consider best scientific knowledge incorporates the absence of management plans and detailed conservation objectives for the SPAs, the failure to require the Council to identify the individuals who prepared components of the AA screening report and EIA screening report and the failure to allow public participation in circumstances where the applicants could have provided better scientific records about curlew movements."
16. It was said that this pleading did not adequately convey what was in effect now being argued, namely, whether the existence of valid conservation objectives for an SPA are a pre-requisite to the Board's jurisdiction to carry out a valid AA screening. In this context counsel for the Board pointed to the absence of any plea that the Board lacked jurisdiction as such (in the sense of an original jurisdiction to embark upon its determination at all) and the fact that the pleadings did not specify that the reference to "best scientific knowledge" in paragraph 11 included site-specific conservation objectives of the bog.
17. So far as the scope of the pleading issue is concerned the Court is required to be "mindful of the supremacy of EU law and the risk that if the Court was to take an overly restrictive approach to the scope of the appeal, such a restriction could interfere with its obligation to ensure that the relevant statutory provisions are properly construed against the backdrop of EU law": see Friends of the Irish Environment Ltd. v. Minister for Environment [2019] IESC 53, per Irvine J. Contrary to the argument of the Board, it is not at all clear that this principle is any way affected by the subsequent decision of the Court of Justice in Case C-721/21 Eco Advocacy CLG EU:C: 2023: 479 regarding the application of the principles of equivalence and effectiveness to Irish pleading rules in environmental cases. The decision in Eco Advocacy merely determines that the existing judicial review pleading rules contained in Ord. 84, r. 20(3) - requiring that each ground is precisely stated and identifying the facts or matters relied to support that ground - do not violate these principles.
18. It is, however, unnecessary at this juncture to arrive at a final conclusion on the pleading issue which has arisen in this application for leave. It is sufficient to say that the substantive issue in question, if properly pleaded, is certainly one of general public importance since it has the capacity to affect a very large number of development projects. This is re-enforced by the fact that the Court of Appeal has already made an Article 267 reference to the Court of Justice on what in effect is this very point: see Power v. An Bord Pleanála [2024] IECA 295.
19. In the circumstances I would propose that the Court should grant leave to the applicant to appeal to this Court pursuant to Article 34.5.4⁰ of the Constitution in respect of this issue (i.e. the validity of the Board's determination given the absence of site-specific conservation objectives for the SPA), while leaving over the question to the main hearing on that appeal as to whether this issue is in fact properly within the scope of the appeal.
20. I consider that leave should be refused in respect of all other grounds. Specifically, the declaratory relief now sought (in effect) at grounds 3 and 4 of the applicant's application for leave notice is in truth in effort to re-agitate matters which the applicant had expressly abandoned in the High Court. If - as was contended in the course of the appeal - there was a deficiency in the manner in which Irish law had transposed the two Directives in question, this would be a matter for the State, not the Board. Yet as we have noted, these are in substances the declaratory reliefs which it is agreed that the applicant did not pursue in the High Court.
Some general observations
21. In the ordinary way this Court would now give specific directions in relation to early case management and an early hearing of the appeal given the manifest urgency of the appeal. There is, however, little point in taking this step since this Court finds itself obliged to await the outcome of the judgment of the Court of Justice in the Power case because the question posed in the Article 267 reference in that case is essentially the same one as is posed here in the present case. It may be noted that at the conclusion of the judgment in Power the Court of Appeal had expressly requested the Court of Justice to deal with that reference on an expedited basis. We were, however, informed by counsel in the course of the oral hearing that the Court of Justice had refused the Court of Appeal's request. We can only record our disappointment at this turn of events because this means, unfortunately, that there will be a further delay in the resolution of this important appeal.
22. In our first determination we recorded our "deep concern" that a challenge to the development of a major item of infrastructure is only now coming to this Court by way of an application for leave under Article 34.5.4⁰ some three years and three months after these judicial review proceedings were initially commenced in the High Court. (It is important to state that however that no part of this delay can be attributed to the trial judge who dealt with this case with commendable efficiency). This cannot be regarded as satisfactory.
23. At the oral hearing it was accepted that there was fault on all sides. All of the parties accepted that the delays which occurred in the High Court in respect of a challenge to a major infrastructure project were entirely unacceptable. This should not be allowed ever to recur. There is an obligation on all of the parties to progress such cases with a clear sense of urgency. Specifically, both the Board and the State parties should clearly understand that the apparently repeated indulgence which was afforded to them in this case with regard to the late filing of pleadings well outside the time periods stipulated by Ord. 84, r. 21 represented a concession to them which should not lightly be repeated in any future case of this kind.
24. While the Court will now grant the applicant leave in respect of this single issue as against the Board this is on the basis that (as already indicate) this grant of leave is entirely without prejudice to the pleading issue regarding the proper scope of the appeal. We have already expressed our concerns regarding the delays which have already taken place in respect of an urgent case of this kind involving a major infrastructure project. It must be understood that once the Court of Justice has given judgment in Power that this case must then be re-entered before this Court with all deliberate speed. The parties must stand ready if necessary to file written submissions at relatively short notice and to accept such early date for the hearing of the appeal as the Chief Justice may then direct.
25. Accordingly, this application for leave to appeal pursuant to Article 34.5.4⁰ is granted in part and refused in part.