Supreme Court to hear appeal over Rathfarnham flood relief works

Case raises important issues about Habitats Directive and planning regime, court says

The Supreme Court has agreed to hear an important appeal by a local residents group over planning approval for flood relief works in Rathfarnham in south county Dublin.

The appeal concerns the proper construction of the Habitats Directive and the operation of a key aspect of the development consent system for local authorities, according to a published determination by a three judge panel of the court.

It might be obliged to make a reference to the Court of Justice of the EU on the issues raised, the court added.

Ballyboden Tidy Towns Group (BTTG) sought an appeal after losing its High Court challenge aimed at overturning An Bord Pleanála's December 2020 approval for the flood relief works.

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 Whitechurch stream with the Owendoher river in Rathfarnham.

BTTG, which describes itself as 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 last October, the High Court's Mr Justice Richard Humphreys noted the relevant area has been subject to significant recurring flooding, particularly in1986 during Hurricane Charley, and in 2007, 2008 and 2011.

Among various findings, he dismissed claims the board applied the incorrect legal test in relation to the relevant provisions of the Habitats Directive.

He also 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.

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 High Court said, while it could not be said the point was inarguable, it must be dismissed due to not being precisely pleaded.

The residents group then applied to the Supreme Court to hear an appeal.

In its published determination, the court held the group had met the necessary criteria for the court to hear its appeal.

The substantive point raised was of some importance regarding the proper construction of the Habitats Directive and the operation of the differential regime for the grant of planning permission under subsections 34 and 37 of the 2000 Act and the grant of development consent to local authorities under section 177AE, the court said.

The court said it considered it should not be debarred from examining a potentially important point regarding the construction of the Habitats Directive simply because it was said the issue was not properly pleaded.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

READ MORE