Residents’ group loses challenge over Rathfarnham flood relief works

A residents’ group has lost its High Court challenge over planning approval for flood relief works in Rathfarnham, Dublin.

Mr Justice Richard Humphreys, in a judgment on Wednesday, dismissed the action by Ballyboden Tidy Towns Group (BTTG) aimed at overturning An Bord Pleanála’s decision last December.

The board granted approval, subject to 18 conditions, to South Dublin County Council for flood defence and associated works in the Whitechurch stream between St Enda’s Park and the confluence of the stream with the Owendoher river in Rathfarnham.

BTTG, which describes itself as being dedicated to the built and natural environment of Ballyboden and the greater Rathfarnham area, claimed the board’s decision was invalid on several grounds.

In his judgment, Mr Justice Humphreys noted the relevant area has been subject to significant recurring flooding, particularly in 1986 during Hurricane Charley, and again in 2007, 2008 and 2011.

He noted some grounds of this challenge failed as a result of decisions in other cases and he dismissed all of the remaining grounds.

Considered

He rejected claims that the board failed to conduct an assessment by reference to the culmulative impact of the proposed works. The potential for cumulative impacts from the works in conjunction with other developments was considered in the Environmental Impact Assessment (EIA) screening report and the Natura Impact Statement, he said.

The applicant had not established any effective challenge to the board’s methodology, he held.

The judge dismissed claims of alleged inadequacy in bat and otter surveys after finding the pleadings had failed to explain and state positively how, as a matter of law, the alleged obligation in that regard arose, what the obligation was and how it was not complied with.

The applicant had failed to make out a further claim that the board applied the incorrect legal test in relation to the relevant provisions of the Habitats Directive, he held.

He rejected claims arising from the flood works proceeding via the section 177AE procedure under the Planning and Development Act 2000 after the board decided a full EIA was not required.

Incompatible

The group claimed the section 177AE procedure is incompatible with the EU law as it allows for an indefinite planning permission for the development which the board cannot revisit, either by conducting an EIA itself or directing the council to produce one.

The problem with this argument was that there was nothing specific in the section 177AE procedure to which the applicant took exception, the judge said.

Given the indispensability of the requirement to plead one’s case with precision, that was sufficient to dispose of this ground, he said. Where a court is asked to get involved in the legal adequacy or validity of legislation, or similar measures of general application, “the precise relief sought must be particularised beyond doubt in advance”.

The judge added that one cannot altogether dismiss the merits of the point as unarguable, should it be properly pleaded in some future case. Notwithstanding that there may be particular legitimate needs for flexibility in the public sector context, one might possibly see arguments for some (potentially renewable) limitation on the duration of section of 177AE permissions needing to be put in place.