Tidy Towns group challenges Rathfarnam flood relief works

A local residents group has taken a High Court challenge over planning approval for flood relief works in Rathfarnham in south County Dublin.

Ballyboden Tidy Towns Group (BTTG) has brought proceedings aimed at overturning An Bord Pleanála's decision last December granting an application by 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.

When the proceedings against the board and the State came ex parte (one side only represented) before Mr Justice Richard Humphreys on Friday, he asked that one of the grounds of challenge against the State parties be amended. John Kenny, instructed by solicitor Fred Logue, for the residents, agreed to do so.

The judge fixed a provisional hearing date for November, granted a stay, subject to certain terms, on the works, and adjourned the matter for further directions to later this month in the court’s Strategic Infrastructure Development list.

BTTG, which describes itself as dedicated to the built and natural environment of Ballyboden and the greater Rathfarnham area, claims the board’s permission, which is subject to 18 conditions, is invalid on several grounds.

It claims the State has failed to transpose article 9a of the EC Environmental Impact Assessment (EIA) Directive in respect of conflicts of interest for local authority development.

Article 9a provides that EU member states shall ensure that competent authorities perform their duties arising from the directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.

The council had applied for permission for the proposed works under a particular procedure, the section 177AE procedure under the Planning and Development Act 2000, the group says.

Various notices were published on the council’s website concerning its application but none of those informed the public that a binding EIA screening had already been undertaken which had screened out the necessity for a full EIA report, the group claims.

Allowing the council to screen out the need for a full EIA constitutes an impermissible conflict of interest, it is claimed.

In screening out the need for an EIA, the flood works can proceed via the Section 177AE procedure which, the group claims, is incompatible with the EIA and habitats directives 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.

It is also claimed the board was obliged, but failed, to reach a conclusion consistent with the requirements of the habitats directive in relation to the impact of the proposed works on otters and on bats. The board further failed to properly address issues arising from the presence of kingfishers, it is claimed.

Other claims include that the section 177AE procedure is incompatible with the rights to public participation and to an effective remedy.