Group of residents lose challenge of Rathfarnham flood relief work
A group of residents have lost their challenge in the High Court over the approval of planning for flood relief works in Rathfarnham, Dublin.
Judge Richard Humphreys, in a judgment on Wednesday, dismissed the Ballyboden Tidy Towns Group (BTTG) action to overturn An Bord Pleanála’s decision last December.
The council approved, subject to 18 conditions, the South Dublin County Council for flood defense and associated works in Whitechurch Creek between St Enda’s Park and the stream’s confluence with the Owendoher River at Rathfarnham.
BTTG, which describes itself as being dedicated to the built and natural environment of Ballyboden and the greater Rathfarnham area, claimed the council’s decision was invalid on several grounds.
In his judgment, Judge Humphreys noted that the affected area had been subjected to significant recurrent flooding, particularly in 1986 during Hurricane Charley, and again in 2007, 2008 and 2011.
He noted that some grounds for this challenge had failed as a result of rulings in other cases and dismissed all other grounds.
Took into consideration
He rejected the allegations that the board failed to conduct an assessment by referring to the cumulative impact of the proposed work. The potential for cumulative impacts of the works in conjunction with other developments has been taken into account in the environmental impact assessment (EIA) screening report and the Natura impact statement, a he declared.
According to him, the applicant had not established any effective challenge to the jury’s methodology.
The judge dismissed the allegations of alleged insufficiency in the bat and otter investigations after finding that the pleadings had failed to explain and positively state how, in law, the alleged obligation to this regard arose, what was the obligation and how it was not fulfilled.
The applicant failed to make a further claim that the board applied the incorrect legal test with regard to the relevant provisions of the Habitats Directive, he said.
It rejected the claims arising from the flood works procedure via the Article 177AE procedure under the Planning and Development Act 2000 after the board of directors decided that a full EIA no was not necessary.
The group claimed that the Article 177AE procedure is incompatible with EU law because it allows an indefinite building permit for development that the council cannot review, either by carrying out an EIA itself or by directing the board to produce one.
The problem with that argument was that there was nothing specific about the Section 177AE proceeding that the claimant objected to, the judge said.
Given the indispensable nature of the requirement to plead one’s case precisely, that was enough to dispose of that ground, he said. When a court is asked to intervene in the adequacy or legal validity of legislation, or similar measures of general application, “the precise remedy sought must be specified in advance without any doubt”.
The judge added that one cannot completely dismiss the merits of the point as indisputable, if it is properly argued in a future case. Notwithstanding that there may be particular legitimate needs for flexibility in the context of the public sector, one could possibly see arguments in favor of a (potentially renewable) limitation on the duration of the section of permits 177AE to be set. in place.