Supreme Court to hear appeal over Rathfarnham flood relief works
The Supreme Court has agreed to hear an important appeal from a group of local residents over planning approval for flood relief works in Rathfarnham, south County Dublin.
The appeal concerns the correct interpretation of the Habitats Directive and the operation of a key aspect of the development permit system for local authorities, according to a decision published by a panel of three judges of the tribunal.
He could be forced to take the issues raised to the EU Court of Justice, the court added.
Ballyboden Tidy Towns Group (BTTG) appealed after losing their High Court challenge to overturn An Bord Pleanála’s December 2020 approval for flood relief works.
Council has granted approval, subject to 18 conditions, to South Dublin County Council for flood defenses and associated works in Whitechurch Creek between St Enda’s Park and the confluence of Whitechurch Creek with the River Owendoher at Rathfarnham .
BTTG, which describes itself as dedicated to the built and natural environment of Ballyboden and the greater Rathfarnham area, claimed the council’s decision was invalid on a number of grounds.
In his judgment last October, High Court Judge Richard Humphreys noted that the area concerned had been subject to recurrent severe flooding, particularly in 1986 during Hurricane Charley, and in 2007, 2008 and 2011.
Among various findings, he rejected claims that the board applied the incorrect legal test with respect to the relevant provisions of the Habitats Directive.
It also dismissed claims arising from the flood works via Section 177AE proceedings under the Planning and Development Act 2000 after council decided a full EIA was not required.
The group claimed that the Section 177AE procedure is incompatible with EU law because it allows indefinite planning permission for development which the council cannot review, either by carrying out an EIA itself or by asking the council to produce one.
The High Court said that while the point could not be said to be indisputable, it had to be dismissed as it was not precisely argued.
The group of residents then asked the Supreme Court to hear an appeal.
In its published decision, the court found that the group had met the necessary criteria for the court to hear its appeal.
The substantive point raised was of some importance with regard to the correct interpretation of the Habitats Directive and the operation of the differential regime for granting building permits under paragraphs 34 and 37 of the 2000 Act and the development permit granted to local authorities under Section 177AE, the court heard.
The Court stated that it considered that it should not be prevented from considering a potentially important point regarding the construction of the Habitats Directive simply because it was said that the issue had not been properly argued.