[2025]_IESC_13_ — [2025]_IESC_13_ — Ireland courts

AN CHÚIRT UACHTARACH THE SUPREME COURT

Dunne J. Woulfe J. Hogan J.

S:AP:IE:2024:000181

[2025] IESC 13

BETWEEN/

FRIENDS OF THE ARDEE BOG

APPLICANT

AND

AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL

AND

RESPONDENTS

LOUTH COUNTY COUNCIL

NOTICE PARTY JUDGMENT of Mr. Justice Gerard Hogan delivered the 25th day of March 2025

Introduction

1. These judicial review proceedings involve a challenge to certain decisions of An Bord

Pleanála in respect of the construction of a 4.5km road together with two bridges in

respect of the proposed N52 Ardee Bypass at Ardee, Co. Louth. As I will explain

presently, this judgment concerns the single question as to whether this Court should

grant the applicant leave to appeal from a decision of the High Court pursuant to Article

34.5.4⁰ of the Constitution. Such applications are normally dealt by with a panel of this

Court in chambers and a formal determination later follows. As it happens, this Court

considered that it could not resolve this particular application by means of a

determination on paper alone. In our determination in this matter dated 21st February

2025 we accordingly directed an oral hearing. That hearing took place on 13th March

2025 and this Court is accordingly now proceeding to judgment in respect of this

application.

2. In May 2021 Louth County Council (“the Council”) sought a determination from An

Bord Pleanála (“the Board”) under s. 50(1)(b) of the Roads Act 1993 (“the 1993 Act”).

Specifically, the applicant challenges a decision of An Bord Pleanála dated 19th October

2021 directing the Council not to prepare an Environmental Impact Assessment

(“EIA”) or a Natura Impact Statement (“NIS”) in respect of the proposed development.

The proposed route passes through a portion of the Ardee Bog which is a proposed

Natural Heritage Area and which is located in an area of Special Protection Area. 3. There appears to be a long history with regard to earlier applications for permission in

respect of this project. Following the confirmation of a compulsory purchase order by

the Board as far back as September 2006, it appears that in 2019 the Council cleared

much of the hedgerows from part of the route and from the land which had been

compulsorily acquired. In the present case the Board’s inspector concluded that as the

proposed bypass would be located within an agricultural area, the proposed

development would now only require some additional felling of trees and some

additional hedgerows.

4. The inspector concluded ultimately that the project would not be likely to have

significant impacts on the environment and, accordingly, that there was no need for an

Environmental Impact Assessment. She did, however, conduct an appropriate

assessment (“AA”) screening for the purposes of Article 6 of the Habitats Directive

saying that there was not likely to be any direct or indirect effects on any Special

Protection Area (“SPA”) in view of the conservation objectives of those sites. It

followed that no NIS was therefore necessary.

5. It is not disputed, however, that there was no site-specific conservation objectives in

place for one of the potentially impacted SPAs, namely, the Stabannan-Braganstown

SPA. The State parties acknowledged this and a declaration to this effect was made by

consent in the High Court. The applicant maintains, inter alia, that this omission was

fatal to the validity of the Board’s decision of October 2021 and that there was no proper

AA screening as required by Article 6(3) of the Habitats Directive. This is disputed by

both respondents who contend that this point was never adequately pleaded by the

applicant and, specifically, it was never argued that this was fatal to the Board’s

jurisdiction to make the decision. The State parties (Ireland and the Attorney General)

acknowledge while that the issue is, in principle, capable of giving rise to a matter of general public importance, nevertheless the failure to plead this jurisdictional point

means that this issue has no relevance to the present case. The Council did not take part

in the proceedings.

6. The applicant also maintains that the earlier clearing of the hedgerows ought to have

been considered by the Board in its screening for EIA and AA under s. 50(1)(b) of the

1993 Act. The respondents maintain that this issue was already dealt with by this Court

in Concerned Residents of Treascon v. An Bord Pleanála [2024] IESC 28.

7. These points are all said by the applicant to amount to issues of general public

importance for the purposes of this Article 34.5.4⁰ leave application.

The judgment of the High Court

8. By a judgment delivered the 14th May 2024 the High Court rejected the application for

judicial review: see Friends of Ardee Bog v. An Bord Pleanála [2024] IEHC 292. In

her judgment O’Regan J. concluded that no manifest error on the part of the Board had

been identified and that it had sufficient information before it to arrive at the

conclusions which it did. She further indicated that while she would grant a declaration

that the State parties had failed to provide specific conservation objectives in respect of

the Stabannan-Braganstown SPA in a manner contrary to the requirements of EU law,

following a concession by the State parties to this effect. By a further decision of 5th

November 2024 O’Regan J. refused leave to appeal to the Court of Appeal: see Friends

of Ardee Bog v. An Bord Pleanála (No.2) [2024] IEHC 634.

Conclusions

9. When this application for leave initially came before the Court it became clear that the

scope of the appeal would be a major issue. The Court acknowledged this in its first

published determination in this matter ([2025] IESC DET 29), albeit that we stated that

this issue could not be determined without sight of the pleadings and oral argument. The Court has had the benefit of now seeing the pleadings and, as I have indicated, has

heard the participating parties. We propose now separately to consider the position of

the two respondents, commencing with the State parties.

The position of Ireland and the Attorney General

10. In the original statement of grounds of 13th December 2021 these judicial review

proceedings the applicant sought three separate specific declaratory reliefs. The first

declaration sought related to the failure to put in place special conservation measures

in respect of the Stabannan-Braganstown SPA, a failure which was said to amount to a

breach of Article 4(1) and Article 4(2|) of the Birds Directive, Directive 2009/147/EC.

The declaratory relief which was granted by consent in the High Court corresponds

substantially to the first declaration.

11. The second and third declarations relate to contentions that the State failed properly to

transpose Annex II, paragraph 1(a) of Directive 2011/92/EU (as amended)(“the EIA

Directive”) into domestic law so far as it concerned development consents in respect of

the restructuring of rural land holdings. The third declaration concerned a claim that the

State had failed properly to transpose Annex II, para. 10(e) of the EIA Directive into

domestic law in so far as it concerns road projects.

12. At the oral hearing before us it was agreed that the applicant had effectively abandoned

these claims for second and third declarations before the High Court as against the State

parties. Counsel for the applicant accepted this, but he contended that the declaratory

relief now sought in respect of EIA screening in respect of land restructuring and the

clearing of hedgerows was against the Board and not as against the State parties. I will

consider this argument presently.

13. In these circumstances I am satisfied that no additional relief can now properly be

sought against the State parties apart from the declaration granted by consent in the High Court. It follows in turn that leave to appeal in respect of these additional grounds

must be refused so far as the State respondents are concerned.

The case against the Board

14. Much of the debate during the course of the oral hearing centred on whether the

applicant had challenged the jurisdiction of the Board to make a determination that no

NIS was necessary. The focus here was on paragraph 11 of the applicant’s grounding

statement which had pleaded that this decision was “invalid on the ground that it

contravenes reg. 42(1) of S.I. No. 477/2011 – European Communities (Birds and

Natural Habitats) Regulations 2011 in that the Board’s assessment was not made in

view of the best scientific knowledge and in view of the conservation objectives of the

site, and no regard was had to the in-combination effect.”

15. This was amplified by further particulars at paragraph 29:

“The failure to consider best scientific knowledge incorporates the absence of

management plans and detailed conservation objectives for the SPAs, the failure

to require the Council to identify the individuals who prepared components of

the AA screening report and EIA screening report and the failure to allow public

participation in circumstances where the applicants could have provided better

scientific records about curlew movements.”

16. It was said that this pleading did not adequately convey what was in effect now being

argued, namely, whether the existence of valid conservation objectives for an SPA are

a pre-requisite to the Board’s jurisdiction to carry out a valid AA screening. In this

context counsel for the Board pointed to the absence of any plea that the Board lacked

jurisdiction as such (in the sense of an original jurisdiction to embark upon its

determination at all) and the fact that the pleadings did not specify that the reference to “best scientific knowledge” in paragraph 11 included site-specific conservation

objectives of the bog.

17. So far as the scope of the pleading issue is concerned the Court is required to be

“mindful of the supremacy of EU law and the risk that if the Court was to take an overly

restrictive approach to the scope of the appeal, such a restriction could interfere with its

obligation to ensure that the relevant statutory provisions are properly construed against

the backdrop of EU law”: see Friends of the Irish Environment Ltd. v. Minister for

Environment [2019] IESC 53, per Irvine J. Contrary to the argument of the Board, it is

not at all clear that this principle is any way affected by the subsequent decision of the

Court of Justice in Case C-721/21 Eco Advocacy CLG EU:C: 2023: 479 regarding the

application of the principles of equivalence and effectiveness to Irish pleading rules in

environmental cases. The decision in Eco Advocacy merely determines that the existing

judicial review pleading rules contained in Ord. 84, r. 20(3) – requiring that each ground

is precisely stated and identifying the facts or matters relied to support that ground – do

not violate these principles.

18. It is, however, unnecessary at this juncture to arrive at a final conclusion on the pleading

issue which has arisen in this application for leave. It is sufficient to say that the

substantive issue in question, if properly pleaded, is certainly one of general public

importance since it has the capacity to affect a very large number of development

projects. This is re-enforced by the fact that the Court of Appeal has already made an

Article 267 reference to the Court of Justice on what in effect is this very point: see

Power v. An Bord Pleanála [2024] IECA 295.

19. In the circumstances I would propose that the Court should grant leave to the applicant

to appeal to this Court pursuant to Article 34.5.4⁰ of the Constitution in respect of this

issue (i.e. the validity of the Board’s determination given the absence of site-specific conservation objectives for the SPA), while leaving over the question to the main

hearing on that appeal as to whether this issue is in fact properly within the scope of the

appeal.

20. I consider that leave should be refused in respect of all other grounds. Specifically, the

declaratory relief now sought (in effect) at grounds 3 and 4 of the applicant’s

application for leave notice is in truth in effort to re-agitate matters which the applicant

had expressly abandoned in the High Court. If – as was contended in the course of the

appeal – there was a deficiency in the manner in which Irish law had transposed the two

Directives in question, this would be a matter for the State, not the Board. Yet as we

have noted, these are in substances the declaratory reliefs which it is agreed that the

applicant did not pursue in the High Court.

Some general observations

21. In the ordinary way this Court would now give specific directions in relation to early

case management and an early hearing of the appeal given the manifest urgency of the

appeal. There is, however, little point in taking this step since this Court finds itself

obliged to await the outcome of the judgment of the Court of Justice in the Power case

because the question posed in the Article 267 reference in that case is essentially the

same one as is posed here in the present case. It may be noted that at the conclusion of

the judgment in Power the Court of Appeal had expressly requested the Court of Justice

to deal with that reference on an expedited basis. We were, however, informed by

counsel in the course of the oral hearing that the Court of Justice had refused the Court

of Appeal’s request. We can only record our disappointment at this turn of events

because this means, unfortunately, that there will be a further delay in the resolution of

this important appeal. 22. In our first determination we recorded our “deep concern” that a challenge to the

development of a major item of infrastructure is only now coming to this Court by way

of an application for leave under Article 34.5.4⁰ some three years and three months after

these judicial review proceedings were initially commenced in the High Court. (It is

important to state that however that no part of this delay can be attributed to the trial

judge who dealt with this case with commendable efficiency). This cannot be regarded

as satisfactory.

23. At the oral hearing it was accepted that there was fault on all sides. All of the parties

accepted that the delays which occurred in the High Court in respect of a challenge to

a major infrastructure project were entirely unacceptable. This should not be allowed

ever to recur. There is an obligation on all of the parties to progress such cases with a

clear sense of urgency. Specifically, both the Board and the State parties should clearly

understand that the apparently repeated indulgence which was afforded to them in this

case with regard to the late filing of pleadings well outside the time periods stipulated

by Ord. 84, r. 21 represented a concession to them which should not lightly be repeated

in any future case of this kind.

24. While the Court will now grant the applicant leave in respect of this single issue as

against the Board this is on the basis that (as already indicate) this grant of leave is

entirely without prejudice to the pleading issue regarding the proper scope of the appeal.

We have already expressed our concerns regarding the delays which have already taken

place in respect of an urgent case of this kind involving a major infrastructure project.

It must be understood that once the Court of Justice has given judgment in Power that

this case must then be re-entered before this Court with all deliberate speed. The parties

must stand ready if necessary to file written submissions at relatively short notice and to accept such early date for the hearing of the appeal as the Chief Justice may then

direct.

25. Accordingly, this application for leave to appeal pursuant to Article 34.5.4⁰ is granted

in part and refused in part.