High Court declares council failed to adopt Local Area Plan but dismisses other planning challenges.

[2025] IEHC 204

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000342]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS

AMENDED)

BETWEEN

NICOLA BYRNE

APPLICANT

AND

FINGAL COUNTY COUNCIL, AN BORD PLEANÁLA AND THE MINISTER FOR HOUSING,

PLANNING AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Humphreys J. delivered on Friday the 11th day of April 2025

1. Never let a good crisis go to waste is a concept frequently, albeit probably inaccurately,

attributed to Winston Churchill. In that spirit, Fingal County Council’s response to the Covid

emergency included the temporary pedestrianisation of New Street in the centre of Malahide village.

Following that experiment, it was decided to make the pedestrianisation permanent. The applicant,

who brought an unsuccessful application for an injunction against the temporary pedestrianisation,

replies in an equally Churchillian spirit of shrugging off that defeat and fighting the council, if not

quite on the beaches of Malahide, at least on its pedestrianised roadways.

Judgment history

2. In Byrne v. Fingal County Council [2021 509 JR], the applicant challenged the exercise of

powers by the chief executive of the council pursuant to s. 38 of the Road Traffic Act 1994 (the 1994

Act) and s. 95 of the Road Traffic Act 1961 (the 1961 Act) to make alterations to the traffic

management arrangements on New Street, Malahide whereby New Street was pedestrianised from

June 2021.

3. The applicant sought interlocutory relief in July 2021 in respect of the pedestrianisation of

New Street. By order of the High Court (Meenan J.) of 11th August 2021, the application for

interlocutory relief was refused in an ex tempore ruling delivered on 11th August 2021, with no order

as to costs directed at a later stage.

4. Those proceedings were subsequently adjourned to await the outcome of the present

proceedings.

Geographical context

5. The issue centres on pedestrianisation of New Street in Malahide which is not especially long

(c. 150 m in length) and is one of the central streets of Malahide village. A picture (not up to date)

of the pedestrianised state of the street as of June 2020 is at

https://maps.app.goo.gl/JZNYZrTXUbfuYhsPA. I might say that for reasons which I will come to,

the jaunty state of pedestrian bliss in that picture wasn’t particularly replicated when I visited the

locus in quo.

6. To the west of the development lies Old Street, and one of the applicant’s main concerns is

the increase in traffic there caused by the closure to traffic of New Street.

7. The proposed greenway has a link to Malahide village which ends with a proposed bike

parking area around Strand Court, near the top of Old Street. Old Street is a one-way system with

traffic running northwards towards Strand Court, so the applicant suggests that if cyclists keep going

eastwards on Strand Court/ Strand Street they will meet more traffic at the junction of Old Street

than they would if New Street remained open to traffic as it was pre-2020.

Facts

8. The Broadmeadow Way between Malahide Demesne and Newbridge Demesne (a walking

and cycleway) was approved on 19th May 2020 (https://www.pleanala.ie/en-ie/case/304624). The

environmental impact assessment report (EIAR) describes the peak movement in both directions as

being in the order of 3,500 users per day. That doesn’t necessarily translate into quite that many

cyclists coming into Malahide village let alone into the intersection between the greenway, Strand

Court and Old Street, which is not the sole outlet into Malahide village.

9. New Street was pedestrianised from around June to December 2020.

10. It then seems to have reopened to traffic for a brief period and was made a one-way street

between December 2020 and June 2021.

11. It was then re-pedestrianised from 4th June 2021 and at that time Fingal County Council

(the council) committed to the permanent pedestrianisation of New Street and that plans to give

effect to that would be subject to a statutory process.

12. The decision to implement the June 2021 pedestrianisation was given effect by chief

executive’s order of 4th June 2021 in exercise of the powers conferred on the council by s. 38 of the

1994 Act and s. 95 of the 1961 Act.

13. The proposed public realm works are to occur on New Street, c. 150 m in length with an

area of 0.22 ha, and would comprise the following:

(i) widening of footpaths and provision of new kerb edges with existing kerbstones

retained, realigned and protected within the widened footpaths and public spaces;

(ii) realignment and narrowing of the trafficable section of New Street and insertion of

control measures and all necessary signage to provide for a pedestrianised street

with associated traffic flow routes and restrictions allowing for time limited one-way

access from 07:00 to 11:00 each day for deliveries and emergency vehicles from

Main Street/ The Mall to New Street and a two-way access from Strand Street to

Ross’s Terrace via New Street;

(iii) upgrade of all street surfaces;

(iv) provision of two loading bays at the southern and northern ends of New Street and

an accessible parking space in front of the HSE building;

(v) installation of cycle stands at six locations on New Street with capacity for 23 cycle

parking spaces;

(vi) removal and replacement of 11 existing trees with 37 trees of species appropriate

to the location and environment and provision of soft landscaping and green

infrastructure with planting zones for seeded, planted and hedging areas and

associated bioretention and tree pit areas;

(vii) provision of outdoor dining zones including tables and chairs and other ancillary

moveable structures;

(viii) provision of street furniture including seating, benches and litter and recycling bins

and a water feature;

(ix) new public lighting;

(x) upgrade of the watermain and foul drainage networks and upgrade and relocation

of the surface water drainage network including provision of sustainable urban

drainage systems (SUDs) features as part of hard and soft landscaping;

(xi) provision of ducting for existing and future utilities and piped infrastructure; and

(xii) all associated site and development works.

14. The council gave notice of the proposed public realm works on or about 19th April 2023

pursuant to s. 179 of the Planning and Development Act 2000 (the 2000 Act). Prior to the publication

of the notice, the council:

(i) carried out a screening for environmental impact assessment, and determined on

5th April 2023 that the proposed public realm works by themselves, or in

combination with other projects, are not likely to have a significant effect on the

environment and accordingly that environmental impact assessment (EIA) is not

required; and

(ii) carried out a screening for appropriate assessment (AA) and determined on 5th April

2023 that the proposed public realm works individually, or in combination with other

plans or projects, will not have a significant effect on any European sites, in view of

the sites’ conservation objectives, and that the proposed public realm works do not

require a Stage 2 AA.

15. A statutory consultation process in respect of the public realm works was carried out between

19th April 2023 and 2nd June 2023, during which the applicant made a submission.

16. On 9th May 2023, the Malahide Old Village Residents’ Association (MOVRA) made an

application to the board for an EIA screening determination pursuant to art. 120(3)(b) of the

Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (the 2001 regulations).

Requests were also made by Ms Claire Jepson and Mr Noel Mahon (collectively the art. 120(3)(b)

requests).

17. A submission was made to the board by the council in respect of the EIA screening

determination on 5th July 2023, which comprised a submission from the council dated 5th July 2023

and a response prepared by BMA Planning dated 4th July 2023.

18. The board appointed an inspector to report on the proposed development. The inspector

inspected the site on 2nd August 2023, and prepared a report dated 28th August 2023.

19. The board considered the inspector’s report and the art. 120(3)(b) requests at a meeting on

7th November 2023, and decided not to direct the council to prepare an EIAR in respect of the

proposed public realm works. The board direction is dated 7th November 2023.

20. The board order which contains the decision not to direct the council to prepare an EIAR is

dated 17th November 2023.

21. The board notified the council of its decision and the council's chief executive prepared his

report prior to 16th January 2024.

22. The chief executive prepared a report in respect of proposed public realm works in

accordance with s. 179(3) of the 2000 Act in which she recommended that the council proceed with

the development as proposed.

23. On 16th January 2024, a meeting of the elected members of the council was held at which

the elected members considered the report of the chief executive officer in accordance with s. 179(4)

of the 2000 Act. At that meeting, four motions relating to the chief executive’s report were

considered by the elected members. Two of those motions were defeated by a vote of the elected

members and two were withdrawn. In addition, the elected members held a vote on the

recommendation contained in the chief executive’s report to proceed with the proposed public realm

works and that vote was passed with 22 votes in favour, 9 votes against and 5 abstentions.

24. The elected members did not pass a resolution pursuant to s. 179(4) of the 2000 Act to

either vary or modify the development nor did they decide not to proceed with the development

and, consequently, Fingal was permitted to proceed with the development in accordance with s.

179(4)(b) of the 2000 Act. The legal act is therefore that of the chief executive – the members’

vote is essentially a negative one of deciding not to get involved to veto that. The scheme does not

require their approval as such.

25. On 30th January 2024, Fingal issued a notice pursuant to art. 84 of the 2001 regulations,

notifying relevant parties of its intention to proceed with the proposed public realm works.

Procedural history

26. Proceedings were issued on 8th March 2024, and the statement of grounds and grounding

affidavit of the applicant were filed.

27. On 11th March 2024, the proceedings first appeared in the Planning & Environment List on

an ex parte basis. I granted leave to the applicant to apply for judicial review, and the time for

bringing the application was extended without prejudice to any point the respondents might raise.

28. On 14th March 2024, the notice of motion (returnable to 15th April 2024) was filed.

29. On 15th April 2024, the case was listed for mention and directions were agreed.

30. On 22nd April 2024, the case was listed for further mention.

31. On 13th June 2024, the statement of opposition of the first named respondent accompanied

by affidavit of Mr David Storey on behalf of Fingal County Council was sworn and filed.

32. On 24th June 2024, the case was listed for mention and a hearing date was assigned. The

2021 proceedings referenced above were adjourned for mention to 28th April 2025 (i.e. after the

hearing of the present proceedings).

33. On 27th June 2024, the statement of opposition of the third, fourth and fifth named

respondents (the State respondents) and affidavit of Mr Declan Grehan on behalf of the State

respondents were filed (sworn on 26th June 2024).

34. On 25th October 2024, the statement of opposition of the board and affidavit of Mr Pearse

Dillon were filed (sworn on 24th October 2024).

35. On 18th November 2024, the case was listed for mention and a revised directions timetable

was agreed.

36. On 4th December 2024, the replying affidavit of the applicant was delivered.

37. On 1st January 2025, the written legal submissions of the applicant were delivered (note

these are dated 23rd December 2024).

38. On 6th February 2025, the written legal submissions of the first named respondent were

delivered.

39. On 20th March 2025, the written legal submissions of the second named respondent were

delivered.

40. On 24th March 2025, the case was listed for mention for the callover before the hearing.

41. On 26th March 2025, the written legal submissions of the State respondents were delivered.

42. The matter was heard on 1st and 2nd April 2025, when judgment was reserved.

43. The parties had no objection to my having a site visit to get a sense of the interaction of the

various streets, which I did during a lunchtime shortly after the hearing. I certainly got a flavour of

the applicant’s concerns. I can record the following but parties can take it that I amn’t assuming

that any of these observations are necessarily representative.

44. Old Street is fairly narrow as the applicant said in her submission quoted below, does not by

any means run in a straight line, as she also said. It is not exactly set up to be a major thoroughfare.

There was a modest but steady stream of traffic and almost no parking spots to be had. The fact

that pretty much all parking on both sides of the road was occupied left not a whole lot of room for

traffic. That said, the “convergence” point where it emerges onto the Strand isn’t exactly a huge

pinch point – the junction is quite wide at that location. There is a major pinch point a few dozen

metres to the west of that (there are only about 5 doorways between the two points) where Bissett’s

Strand comes through a 2.20 m arch under the railway – that is a two-way street but the archway

is only wide enough for one lane. Broadmeadow Way will disgorge any of its users that wish to exit

into this part of the village somewhere between that point and the top of Old Street. I did see only

one lone cyclist using the Strand during a 10-15 minute walk along it so one might think that there

is a possibility of a noticeable increase when Broadmeadow Way goes live. Again however that may

not be representative.

45. The current state of the pedestrianised New Street is rather half-hearted as

pedestrianisations go. The road/footpath construction and layout is that of an active roadway, with

no real physical barriers to vehicles coming in or out. There are no entry signs at the Strand side,

although vehicles can exit at either end. A sign at the southern end says that the street is a

“Pedestrian Zone except for deliveries” from “06:00 – 11:00”. My visit was outside those hours and

there were both commercial and non-commercial vehicles driving on the street, as well as both types

of vehicle parked. That doesn’t immediately suggest a particularly effective degree of enforcement

of the pedestrianisation.

Relief sought

46. The reliefs sought in the statement of grounds are as follows:

“1. An Order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and Section 50 of the Planning and Development Act 2000 as amended quashing

the decision of the Council of 16 January 2024 to carry out a Proposed Development

consisting of the pedestrianisation of New Street, Malahide, County Dublin.

2. An Order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986

as amended and Section 50 of the Planning and Development Act 2000 as amended quashing

the decision of the Board of 17 November 2023 to the effect that an EIA was not required in

respect of the proposal of Fingal County Council to carry out a Proposed Development

consisting of the pedestrianisation of New Street, Malahide, County Dublin.

3. Such declaration(s) of the legal rights and/or legal position of the applicant and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the Respondents as the court considers appropriate.

4. A Declaration that R120 of the Planning and Development Regulations 2001 as

amended infringes A2(1) and A4(3) of the EIA Directive, and should be set aside or declared

invalid.

5. A Declaration that, insofar as Irish law does not require that discharges by the

Council to a water body must be subject to authorisation or binding rules, it is contrary to

A11 of the Water Framework Directive.

6. A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous

Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended,

the inherent jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the

European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and/ or Article 9

of the Convention on Access to Information, Public Participation In Decision-Making and

Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the

Aarhus Convention), confirming that Section 50B of the Planning and Development Act 2000

as amended and/ or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act

2011 apply to the Grounds set out at Part E hereof.

7. Discovery.

8. Such further or other Order as the Court considers appropriate.

9. Costs.”

47. It can be noted that the primary relief is incorrectly phrased because the entitlement of

Fingal to proceed with the proposed public realm works arose, as a matter of law, by virtue of the

absence of any resolution made by the elected members pursuant to s. 179(4) of the 2000 Act

rather than a “decision of the Council of 16 January 2024”.

Grounds of challenge

48. The core grounds of challenge are as follows:

“1. The Council Decision is invalid because there is no LAP for Malahide.

2. The Council Decision is invalid because the Council failed to have regard to relevant

ministerial Guidelines contrary to S28 PDA, namely guidelines for the content of LAPs.

3. The Council erred in law in failing to address, in its Chief Executive’s Report, the

submission made to it in relation to cumulative effects of the Proposed Development as a

matter of Irish law for the following reasons:

3.1. First, it was a major issue that was raised, and S179(4) requires the Chief Executive

to summarise the issues raised and his response, to evaluate whether or not the Proposed

Development is in accordance with the proper planning and sustainable development of the

area, and give the reasons and considerations for the evaluation, and he did not do so

3.2. Second, the Chief Executive erred in law because he failed to consider issues relating

to the proper planning and sustainable development of the area, namely what the combined

effects of the Proposed Development would be, when added to the effects of prior public

realm developments for the Malahide area.

3.3. Third, the Chief Executive erred in law in failing to consider whether the Proposed

Development would impede it in fulfilling its duty under S15 PDA to take such steps within

its powers as may be necessary for securing the objectives of the development plan, by

foreclosing the achievement of a plan objective to provide a greenway network (§6.5.6.2,

Table 6.1 and Objective CMP8).

4. The Council Decision is invalid because it is based on a decision of the Board which

is itself invalid for the reasons set out below.

5. The Board Decision is invalid because the Board misdirected itself in law as to the

threshold at which an EIA for an urban development project is mandatory pursuant to S175

and S176 PDA, R93 PDR and Schedule 5 Part 2 Class 10 PDR.

6. R120 PDR is required to be read in accordance with A2(1) and A4(3) of the EIA

Directive so that screening of a proposed development to determine whether it exceeds the

threshold at which EIA is required is required to screen the entirety of the project, not just

the Proposed Development itself. If and insofar as it may only require screening of the

Proposed Development to the exclusion of the project as a whole, R120 PDR is ultra vires

the Minister because it infringes A2(1) and A4(3) of the EIA Directive, and should be set

aside or declared invalid.

7. The Board erred in law in failing to consider cumulative effects on public health,

namely by way of risks associated with traffic hazard, arising from the Proposed

Development in conjunction with the development of a carpark at the Bridge Field,

refurbishment of the Green, and the Broadmeadow Greenway.

8. The Council Decision and / or the Board Decision are unlawful because they authorise

a discharge to water which has not been the subject of an EIA or screening for EIA that

determines whether the Proposed Development will comply with the obligations imposed by

A4 and A11 of the Water Framework Directive, and the screening therefore does not comply

with R120 PDR read in accordance with A2(1), A3(1) and A4(2) and (3) of the EIA Directive.”

49. Core ground 8 has been withdrawn. Core ground 4 is non-substantive and is parasitic on

the challenge to the board decision. There was some faint complaint on the opposing side about the

lack of particulars of the ground but this was totally misconceived because there is nothing to

particularise – the ground is merely a statement of intention to rely on the challenge to the board

decision. Core ground 2 was dropped in the statement of case.

Domestic law issues

Core ground 1 – alleged invalidity of the decision in the absence of a LAP

50. Core ground 1 is:

“1. The Council Decision is invalid because there is no LAP for Malahide.”

51. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 1 - The Council Decision is invalid because there is no LAP for Malahide.

Applicant Position

It is a mandatory requirement of S18 PDA that a town as big as Malahide must have a local

area plan (LAP). Malahide does not. The framework document for planning in the town

therefore does not exist, and any decision of the Council in relation to the town lacks a

statutorily required basis and is therefore invalid. (Impossibility of having regard to an LAP

does not eliminate the obligation to do so; and the consequence of failing to have regard is,

as always, that the decision is invalid.) (The Applicant also seeks a declaration in this

respect.)

Council Position

The Statement of Grounds contains no explanation as to the basis upon which the Council is

precluded from progressing public realm improvements by reason of the absence of an LAP

for a particular area. That is a failure to properly plead the case as required by Order 84,

Rule 20(3) RSC.

There is nothing in either section 179 of the 2000 Act nor Part 8 of the 2001 Regulations

which require an LAP to be in place prior to Fingal being entitled to proceed with development

within its functional area.

In any event, no breach of section 19 PDA arises.

The operative Development Plan for the functional area of Fingal is the Fingal County Council

Development Plan 2023 – 2029 (‘the Development Plan’). The preparation of LAPs for

individual areas is addressed by Objective CSO53, which makes it an objective to prepare

and implement Local Area Plans for identified areas. Table 2.16 of the Development Plan

contains a Schedule of LAPs to be commenced over the period of the Development Plan,

which does not include Malahide. The Development Plan also states, at page 61:

‘Following adoption of the Development Plan, a list of LAPs and other strategic plans to be

prepared over the lifetime of the Development Plan will be drafted by the Planning

Department based on the Council’s priorities and subject to resources.’

The preparation of LAPs will be undertaken by Fingal in accordance with the Schedule

contained at Table 2.16 and the text at page 61 of the Development Plan.

In addition, there are detailed development objectives for Malahide in the Development Plan.

Board Position

This Core Ground is not addressed to the Board.

State Position

This Core Ground is not addressed to the State Respondents.”

52. Section 19(1) of the Planning and Development Act 2000 provides:

“19.—(1) (a) A local area plan may be prepared in respect of any area, including a Gaeltacht

area, or an existing suburb of an urban area, which the planning authority considers suitable

and, in particular, for those areas which require economic, physical and social renewal and

for areas likely to be subject to large scale development within the lifetime of the plan.

(b) A local area plan shall be made, except for an area where a development plan of a former

town council continues to have effect, in respect of an area which—

(i) is designated as a town in the most recent census of population, other than a

town designated as a suburb or environs in that census,

(ii) has a population in excess of 5,000, and

(iii) is situated within the functional area of a planning authority which is a city and

county council or a county council.”

53. It isn’t disputed that Malahide comes within s. 19(1)(b). There is, therefore, an obligation

to have a local area plan (LAP) for Malahide – an obligation which has not been complied with. The

fact that the council intends to do that in accordance with a series of plans envisaged by the county

development plan isn’t a legal answer.

54. The current provision was substituted (with effect from 1st June 2014) by the Local

Government Reform Act 2014, s. 5(7) and sch. 2 part 4 (see S.I. No. 214 of 2014).

55. In construing the obligation to prepare a plan it is appropriate to infer an obligation to comply

within a reasonable time – see by analogy Doherty v. Government of Ireland [2010] IEHC 369,

[2011] 2 I.R. 222, [2011] 2 I.L.R.M. 516 (Kearns P.).

56. In determining a reasonable time from commencement of that provision to give effect to it,

the lifetime of a development plan of six years seems the absolute outer limit for compliance with

the statutory intention. Thus the council have been in breach of s. 19(1)(b) since on or about June

2020. Covid-19 can’t be much of an excuse in that context, since it only intervened at the very end

of that six-year period (March 2020) at which point nothing had been done to advance the LAP so it

wasn’t going to be capable of being put in place in the remaining three months anyway.

57. The council here probably shouldn’t be singled out too much in this regard because one gets

the impression rightly or wrongly that there has been quite a bit of delay in various local authorities

as regards giving effect to s. 19(1)(b).

58. So the applicant has established default. But the problem with the applicant’s argument

that this gives rise to certiorari is that it proves too much. A default in preparation of an overarching

plan – whether national, regional, county-wide or local, can’t have the effect that decision-taking

has to stop or can’t be lawfully completed. Generalising that demonstrates the implausibility of the

argument. Suppose there was a default or delay in producing a national plan – or suppose a plan

was struck down. Decisions must have regard to national climate plans – suppose one was

invalidated. The applicant gamely appeared to accept that the logic of her argument might mean

that that would prevent the taking of some decisions.

59. The applicant tried to argue that a decision-taker couldn’t take a decision that was

discretionary (as opposed to say where there was an obligation to decide the matter within a given

time) in the absence of part of the overarching framework. But that would render much decision-

taking impracticable. Many decisions have to be taken in imperfect conditions – that’s life. For the

court to invent a rule that lack of a necessary overarching plan spells doom for any decision that

isn’t mandatorily obligated would be disproportionate and would create considerable impracticability

and unworkability that is not mandated by the statute or otherwise by law.

60. There was some faint suggestion from the opposing side of the house that LAPs would be

more necessary in some areas than others based on the level of development already carried out,

and that Malahide town centre might not be such an area, but I don’t think that really gets the

council very far insofar as that is a point they are making. The statute doesn’t make any such

distinction and the court shouldn’t re-write clear statutory language out of existence, especially on

the basis of policy-based qualifiers that could be hotly debated and that the court isn’t particularly

equipped to evaluate.

61. That doesn’t mean that lack of a required plan is without consequence. The consequences

could be declaratory or by way of mandamus although the applicant didn’t ask for the latter. I think

that a declaration would be a proportionate response in the particular circumstances, having regard

to all relevant matters bearing on the court’s discretion in that regard, including the fact that the

applicant has correctly identified a non-compliance, the fact that the council did not or at any rate

did not clearly concede this point and certainly not in advance of the hearing (rather the high point

of the response was offering their stated intention to comply as an answer), and given the fact that

rule of law considerations would generally militate in favour of any non-compliance with statute

being marked in some appropriate way.

62. Finally and in any event, the pedestrianisation of New Street isn’t something done in a plan-

related vacuum. Provision for that pedestrianisation is contained in the development plan, so the

chief executive and council had plan-based guidance for the project on the facts here.

Core ground 3 – alleged failure by the council to consider cumulative effects

63. We need to note that while both the council and the board are accused of failure to consider

cumulative impacts, the failures are legally distinct and are pleaded in distinct terms. We are

concerned under this heading with the council. Core ground 3 alleges failure by the council in

assessment (centred on the chief executive’s report) and core ground 7 alleges failure by the board,

with the council playing only a walk-on part in that alleged problem.

64. Core ground 3 is:

“3. The Council erred in law in failing to address, in its Chief Executive’s Report, the

submission made to it in relation to cumulative effects of the Proposed Development as a

matter of Irish law for the following reasons:

3.1. First, it was a major issue that was raised, and S179(4) requires the Chief Executive

to summarise the issues raised and his response, to evaluate whether or not the Proposed

Development is in accordance with the proper planning and sustainable development of the

area, and give the reasons and considerations for the evaluation, and he did not do so

3.2. Second, the Chief Executive erred in law because he failed to consider issues relating

to the proper planning and sustainable development of the area, namely what the combined

effects of the Proposed Development would be, when added to the effects of prior public

realm developments for the Malahide area.

3.3. Third, the Chief Executive erred in law in failing to consider whether the Proposed

Development would impede it in fulfilling its duty under S15 PDA to take such steps within

its powers as may be necessary for securing the objectives of the development plan, by

foreclosing the achievement of a plan objective to provide a greenway network (§6.5.6.2,

Table 6.1 and Objective CMP8).”

65. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 3 - The Council erred in law in failing to address, in its Chief Executive’s Report,

the submission made to it in relation to cumulative effects of the Proposed Development as

a matter of Irish law.

Applicant Position

The Council, in considering the traffic impact of the proposed development in the planning

context, failed to have regard to cumulative impacts with other projects, in particular the

cumulative impact of the Proposed Development with the authorised Broadmeadows

Greenway and the planned Sutton to Malahide cycleway (also other developments at the

Bridge Field, Strand, and Green, carried out as part of the Malahide Public Realm Strategy,

and parklet developments); and thereby failed to consider relevant material, and / or failed

to give adequate reasons for its decision in relation to this main issue.

Council Position

The manner in which this Ground of Challenge has been addressed in submissions is

unsatisfactory as the Applicant has not distinguished between Core Grounds No. 3 and 7.

The claim that there was a failure to consider impacts on the safety of cyclists, has not been

pleaded and this is not an issue which was argued by the Applicant in any public consultation

process, nor was the issue raised in other submissions.

The Report of the Chief Executive Office complies with the requirements of section

179(3)(b)(iii) PDA. The Council draws particular attention to Sections T6e (Wider Malahide),

T2i (AA and EIA Screening) and T1a (Objections to the Pedestrianisation of New Street) of

Appendix D to the Chief Executive Report.

Seen in the light of the underlying documentation, including the EIA Screening Report

prepared by BMA Planning for Fingal, the Planning Report prepared by BMA Planning for

Fingal, the report prepared by the Planning and Strategic Infrastructure Department of

Fingal, the EIA Screening Determination made by the Board (including relevant underlying

documentation, i.e. the response of Fingal to the request for a screening determination, the

report prepared by BMA Planning on behalf of Fingal and submitted to the Board and the

Board’s Inspector’s Report), it is quite clear that there was proper and appropriate

consideration of the issue of cumulative assessments and proper consideration of the issues

which were in fact raised during the public consultation process.

Board Position

This Core Ground is not addressed to the Board. Insofar as the Applicant addresses Core

Ground 3 and Core Ground 7, which is addressed to the Board, together in submissions the

Board’s position in respect of Core Ground 7 is set out below.

State Position

This Core Ground is not addressed to the State Respondents.”

66. Section 179(4) of the 2000 Act, which is relied on in the ground, provides:

“(4)(a) The members of a local authority shall, within 6 weeks of the receipt of the report of

the chief executive, consider the proposed development and the report of the chief executive

under subsection (3).

(b) Following the consideration of the chief executive’s report under paragraph (a), the

proposed development may be carried out as recommended in the chief executive’s report,

unless the local authority, by resolution, decides to vary or modify the development,

otherwise than as recommended in the chief executive’s report, or decides not to proceed

with the development.

(c) For a resolution to have effect under paragraph (b) —

(i) it has to be passed not later than 6 weeks after the receipt of the chief executive’s

report, and

(ii) in the case of a resolution not to proceed with a proposed development, it shall

state the reasons for such resolution.”

67. This doesn’t have a whole lot to do with the alleged failure in summarisation. Possibly s.

179(3) was intended:

“(3)(a)(i) The chief executive of a local authority shall, where an application is not made to

the Board for a screening determination referred to in article 120(3)(b) of the Planning and

Development Regulations 2001, within 8 weeks after the expiration of the period during

which submissions or observations with respect to the proposed development may be made,

in accordance with regulations under subsection (2), prepare a report in writing in relation

to the proposed development and submit the report to the members of the authority.

(ii) The chief executive of a local authority shall, where an application is made to the

Board for a screening determination referred to in article 120(3)(b) of the Planning

and Development Regulations 2001, within 8 weeks after the making by the Board

of a screening determination that an environmental impact assessment is not

required in respect of the proposed development, prepare a report in writing in

relation to the proposed development and submit the report to the members of the

authority.

(b) A report prepared in accordance with paragraph (a) shall—

(i) describe the nature and extent of the proposed development and the principal

features thereof, and shall include an appropriate plan of the development and

appropriate map of the relevant area,

(ii) evaluate whether or not the proposed development would be consistent with the

proper planning and sustainable development of the area to which the development

relates, having regard to the provisions of the development plan and giving the

reasons and the considerations for the evaluation,

(iia) include the screening determination on why an environmental impact

assessment is not required and specify the features, if any, of the proposed

development and the measures, if any, envisaged to avoid or prevent what might

have otherwise been significant adverse effects on the environment of the

development,

(iii) list the persons or bodies who made submissions or observations with respect

to the proposed development in accordance with the regulations under subsection

(2),

(iv) summarise the issues, with respect to the proper planning and sustainable

development of the area in which the proposed development would be situated,

raised in any such submissions or observations, and give the response of the chief

executive thereto, and

(v) recommend whether or not the proposed development should be proceeded with

as proposed, or as varied or modified as recommended in the report, or should not

be proceeded with, as the case may be.

(c) A report prepared in accordance with paragraph (a) shall—

(i) in the case of development situated wholly within the maritime area—

(I) contain an evaluation of the consistency of the proposed development

with principles of proper planning and sustainable development and the

objectives of maritime spatial planning, having regard to the National

Planning Framework, the National Marine Planning Framework and any

maritime spatial plan applicable to the maritime site in which it is proposed

that the development would be carried out, and

(II) specify the reasons and considerations for that evaluation,

and

(ii) in the case of development proposed to be situated partly on the landward side

of a coastal planning authority’s functional area and partly in the maritime area—

(I) contain an evaluation referred to in subparagraph (ii) of paragraph (b)

and an evaluation of the consistency of the proposed development with

principles of proper planning and sustainable development and objectives of

maritime spatial planning, having regard to the National Planning

Framework, the National Marine Planning Framework and any maritime

spatial plan applicable to the maritime site in which it is proposed that the

development would be carried out, and

(II) specify the reasons and considerations for those evaluations,

in addition to the matters referred to in subparagraphs (i), (iia), (iii), (iv) and (v) of

paragraph (b).”

68. Section 15 provides:

“15.—(1) It shall be the duty of a planning authority to take such steps within its powers as

may be necessary for securing the objectives of the development plan.

(2) The chief executive of a planning authority shall, not more than 2 years after the making

of a development plan, give a report to the members of the authority on the progress

achieved in securing the objectives referred to in subsection (1).”

69. As regards the claim of lack of consideration of cumulative impacts, the problem is that the

council didn’t so fail.

70. Section T6e of the chief executive’s report includes the following:

“The public realm improvements of New Street are consistent with the Malahide Public Realm

Strategy, which looked at Malahide in the wider context with recommendations locally

envisaging that priority will be given to measures which improve the public realm, increase

pedestrian movement and cycling in the village of Malahide. In particular, the public realm

improvements are consistent with projects which focus on the permeability and connectivity

across Malahide for pedestrians and cyclists.

Since 2014 Government Policy has moved forward in the context of climate action and the

prioritisation of the movement of people over privately owned vehicles, in line with the

hierarchy of road users.

In the context outlined above, the public realm improvements have been considered in

accordance with the Fingal Development Plan 2023 –2029 along with other projects in the

area such as the Malahide Green (complete), Broadmeadow Greenway (commenced), and

the Sutton to Malahide Pedestrian and Cycle Scheme (Non Statutory Public Consultation

complete), all of which will promote and facilitate Active Travel within Malahide and the wider

county.

Therefore, it can be stated that the improvements to the public realm on New Street have

been considered in the context of the wider village and not in isolation.”

71. In the context of a statutory duty to merely provide a summary, no legal breach has been

made out by the applicant under this heading insofar as concerns the obligation to address

cumulative effects. That, expressly, can be done in a summary manner (sub-s.(3)(b)(iv)).

72. The subsidiary point of an alleged breach of a. 15 of the 2000 Act fails similarly. As the

council points out:

“59. … the Applicant has not demonstrated any inconsistency between the proposed

public realm improvements and the greenway network to which reference is made in the

Development Plan. In that regard, the Applicant has failed to discharge the burden of proof

and failed to establish any breach of section 15 of the 2000 Act.”

73. I agree with the applicant that compliance with s. 15 is an autonomous duty but it isn’t a

basis for certiorari to say that the council haven’t shown that s. 15 was considered on a reasoned

basis. A decision-taker doesn’t have to prove the decision to be valid. Things start with a

presumption of validity, all things being equal, and the applicant generally bears the burden of proof

to show otherwise, which hasn’t been discharged here.

EU law grounds

Core ground 5 – alleged mandatory EIA

74. I should note at the outset that some of the arguments made in submissions under this

heading more properly arise under core ground 7 and are addressed there.

75. Core ground 5 is:

“5. The Board Decision is invalid because the Board misdirected itself in law as to the

threshold at which an EIA for an urban development project is mandatory pursuant to S175

and S176 PDA, R93 PDR and Schedule 5 Part 2 Class 10 PDR.”

76. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant Position

The Board erred in law in that it misidentified the area involved in the Proposed

Development. A2 of the EIA Directive requires EIA for projects which are likely, by virtue of

their nature, size, or location, to have significant effects on the environment. A4(3) requires

the State to define those projects, for instance by setting thresholds. The threshold set for

the purposes of Schedule 5 Part 2 Class 10(b), urban development, is based on the ‘area

involved’. It includes the entire area where there is a change of use by intensification of use

– not just the roads from which traffic is to be diverted, but the roads onto which the diverted

traffic is to be directed. (‘Nature’ criterion.) Because this is a redevelopment of a street, the

buildings bordering each street are part of the area involved. (‘Location’ criterion.) The total

area involved – including the streets and their defining buildings – exceeds the threshold of

2ha in a business district, which is the size at which urban development must be subject to

EIA. (‘Size criterion’.)

Council Position

The arguments which are pursued by the Applicant in her Legal Submissions have not been

properly pleaded, as identified at §63 of the Council’s Legal Submissions.

The Applicant has not established an evidential basis for the case she wishes to make.

Without prejudice to the foregoing, the Applicant is not correct that this is a development in

respect of which a mandatory EIA is required.

The proposed public realm improvements will occur on New Street, Malahide which has an

area of 0.22 hectares. The proposed public realm improvements do not include works in

any other location other than New Street, Malahide. The area of the proposed public realm

improvements (which is the project for the purposes of the EIA Directive) is 0.22 hectares,

an area which is significantly below any of the thresholds in Class 10(b)(iv) of Part 2 of

Schedule 5 of the 2001 Regulations. As the proposed public realm improvements are limited

to New Street, the contention which subtends Core Ground No. 5 to the effect that the

project area is the entire centre of Malahide Village is wholly incorrect, has no basis in fact

or evidence and is fundamentally misconceived.

Board Position

The Board denies that it misdirected itself in law as to the threshold for which a mandatory

EIA under Class 10(b)(iv), Part 2 to Schedule 5 of the 2001 Regulations - ‘Urban

development which would involve an area greater than 2 hectares in the case of a business

district’ - is required.

In the first instance, the case now made by the Applicant in written legal submissions

comprises an impermissible attempt to expand the pleaded case.

Without prejudice to the foregoing, the Inspector and Board correctly determined that the

proposed public realm improvements – being the relevant ‘project’ for assessment for the

purposes of EIA - comprised sub threshold development of an area spanning 0.22 hectares.

The project here entails the carrying out of public realm improvement works and the

Applicant is conflating the area involved in those works with the separate issue of any area

that might be directly or indirectly affected by the project once completed. The construction

of the EIA Directive put forward by the Applicant and the manner in which it is contended

the ‘area involved’ ought to be determined is unsupported in law.

In addition, and without prejudice to the foregoing, the Applicant provides no evidential basis

for asserting that the streets surrounding New Street and curtilage of the buildings defining

them are ‘involved’ in the proposed development in the sense contended for.

Furthermore, the proposed public realm improvements are a standalone project and there

was no evidence before the Board suggestive that same are interdependent on other public

realm works within Malahide. In any event, even if such interdependence had been

established (which it has not), the decision in Fitzpatrick v An Bord Pleanála is clear that this

would go to the need for there to be an assessment of the cumulative effects of the proposed

development in cumulation with such other public realm works, something which occurred

here in any event.

In the premises, no invalidity in the Board’s decision is made out under Core Ground 5.

State Position

This Core Ground is not addressed to the State Respondents.”

77. There is a preliminary issue about the time limit for challenging the board decision but insofar

as discussion of that is required I will postpone that to the next ground.

78. Schedule 5 of the 2001 regulations is made under art. 93. That provides that:

“The prescribed classes of development for the purposes of section 176 of the Act are set

out in Schedule 5.”

79. Despite the section heading, the actual text of s. 176 is not phrased in terms of prescribing

classes of development as such. It provides:

“Prescribed classes of development requiring assessment.

176.—(1) The Minister shall, for the purpose of giving effect to the Environmental Impact

Assessment Directive, make regulations—

(a) identifying development which may have significant effects on the environment, and

(b) specifying the manner in which the likelihood that such development would have

significant effects on the environment is to be determined.

(2) Without prejudice to the generality of subsection (1), regulations under that subsection

may provide for all or any one or more of the following matters:

(a) the establishment of thresholds or criteria for the purpose of determining which classes

of development are likely to have significant effects on the environment;

(b) the establishment of different such thresholds or criteria in respect of different classes

of areas;

(c) the determination on a case-by-case basis, in conjunction with the use of thresholds or

criteria, of the developments which are likely to have significant effects on the environment;

(d) where thresholds or criteria are not established, the determination on a case-by-case

basis of the developments which are likely to have significant effects on the environment;

(da) the carrying out of a screening for environmental impact assessment (within the

meaning of section 176A), or a determination review or application referral (within the

meaning of section 176C);

(e) the identification of selection criteria in relation to—

(i) the establishment of thresholds or criteria for the purpose of determining which

classes of development are likely to have significant effects on the environment, or

(ii) the determination on a case-by-case basis of the developments which are likely

to have significant effects on the environment.

(3) Any reference in an enactment to development of a class specified under Article 24 of

the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No.

349 of 1989), shall be deemed to be a reference to a class of development prescribed under

this section.”

80. The concept is that if a development is included in sch. 5, it should be subjected to EIA. Part

1 of sch. 5 generally does not involve thresholds whereas part 2 generally does. Part 1 corresponds

to Annex I of the EIA directive and Part 2 corresponds to Annex II.

81. Sub-threshold development may still require to be examined. Development under any

thresholds in part 1 is captured potentially by art. 120(3), which provides:

“(3)

(b) Where any person considers that a development proposed to be carried out by a local

authority would be likely to have significant effects on the environment, he or she may, at

any time before the expiration of 4 weeks beginning on the date of publication of the notice

referred to in article 81(2), apply to the Board for a screening determination as to whether

the development would be likely to have such effects.

(c) An application for a screening determination under paragraph (b) shall, in order to be

considered by the Board, state the reasons for the forming of the view that the development

would be likely to have significant effects on the environment and shall indicate the class in

Schedule 5 within which the development is considered to fall.

(ca) The Board shall, by notice in writing served on the local authority, require the local

authority to submit to the Board the information specified in Schedule 7A for the purposes

of a screening determination.

(cb)(i) Where a local authority is submitting to the Board the information specified in

Schedule 7A, the information shall be accompanied by any further relevant information on

the characteristics of the proposed development and its likely significant effects on the

environment, including, where relevant, information on how the available results of other

relevant assessments of the effects on the environment carried out pursuant to European

Union legislation other than the Environmental Impact Assessment Directive have been

taken into account.

(ii) Where a local authority is submitting to the Board the information specified in Schedule

7A, the information may be accompanied by a description of the features, if any, of the

proposed development and the measures, if any, envisaged to avoid or prevent what might

otherwise have been significant adverse effects on the environment of the development.

(cc)(i) Where a local authority submits the information specified in Schedule 7A and p

paragraph (cb) pursuant to a requirement under paragraph (ca), the Board shall carry out

an examination of, at the least, the nature, size or location of the development for the

purposes of a screening determination.

(ii) The Board shall make a screening determination and—

(I) if such determination is that there is no real likelihood of significant effects on

the environment arising from the proposed development, it shall determine that an

EIA is not required, or

(II) if such determination is that there is a real likelihood of significant effects on the

environment arising from the proposed development, it shall—

(A) determine that the development would be likely to have such effects,

and

(B) by notice in writing served on the local authority, require the local

authority to prepare, or cause to be prepared, an EIAR in respect of the

development.

(e) For the purposes of paragraphs (b) and (ca), a local authority shall provide information

requested by the Board in relation to a sub-threshold development proposed to be carried

out by the local authority.”

82. The analysis must inter alia consider matters in sch. 7 (see art. 120(4)).

83. Schedule 5 part 2 class 10(b)(iv) of the Planning and Development Regulations 2001

provides as follows:

“10. Infrastructure projects

(b) (iv) Urban development which would involve an area greater than 2 hectares in the case

of a business district, 10 hectares in the case of other parts of a built-up area and 20 hectares

elsewhere.

(In this paragraph, ‘business district’ means a district within a city or town in which the

predominant land use is retail or commercial use.)”

84. It appears to be accepted that Malahide town centre is a business district. The inspector

found that (§8.2):

“As set out above, it is considered that the proposed development is of a class, Class 10 (b)

(vi) [recte (iv)] for the purposes of EIA. The threshold cited under Class 10 (b) (iv) in the

PDR is ‘urban development which would involve an area greater than 2 hectares in the case

of a business district, 10 hectares in the case of other parts of a built-up area and 20 hectares

elsewhere’.

The proposed development is in an urban location which can be considered a ‘business

district’. New Street is in the town centre of Malahide in which the predominant land use is

retail and commercial. Therefore, the threshold is 2 hectares. The proposed development

would be accommodated on a site of approximately .22 hectare.”

85. The applicant’s argument is that while the works in New Street would themselves occupy

0.22 hectares, the overall zone of influence would be over 2 hectares because the project would give

rise to diversion of traffic elsewhere and thus to intensification of use of other roads.

86. The problem with that test is that when the 2001 regulations refer to the concept of

“development which would involve an area”, they mean involve in a workable sense that can be

applied readily by planning decision-takers. The idea that the area of development means area in

some amorphous sense that includes whatever indeterminate areas in which ripple effects could

occur is unworkable. The regulations don’t mean that. By “area” they mean the area of the works

or in which the proposed use is meant to be carried out, not wider areas which will be affected by

the development or in which “uses” of other lands will be affected indirectly. This is basically a

question of interpreting domestic law.

87. Judged by reference to the issue of area, and without prejudice to core ground 7, the

development is thus “sub-threshold development” as defined by art. 92 of the 2001 regulations, so

the board didn’t err in failing to treat it as supra threshold as alleged or at all.

88. Even if the applicant is correct that the concept of the “project as a whole” is wider than the

project for which consent is sought as contended for under core ground 7, that doesn’t change the

point of interpretation of domestic regulations to the effect that “area” means of the works, for the

simple reason that the regulations are not workable otherwise. So the failure of this point can

logically be separated from any issue under core ground 7.

Core ground 7 – alleged failure by the board to consider cumulative impacts

89. Core ground 7 is:

“7. The Board erred in law in failing to consider cumulative effects on public health,

namely by way of risks associated with traffic hazard, arising from the Proposed

Development in conjunction with the development of a carpark at the Bridge Field,

refurbishment of the Green, and the Broadmeadow Greenway.”

90. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant Position

The Board, in considering the traffic impact of the proposed development in the context of

EIA screening, failed to have regard to cumulative impacts with other projects, in particular

the cumulative impact of the Proposed Development with the authorised Broadmeadows

Greenway and the planned Sutton to Malahide cycleway; and thereby failed to consider

relevant material, and / or failed to give adequate reasons for its decision in relation to this

main issue.

The Board also failed to consider the cumulative impact of prior developments, because it

failed to consider whether the total area of the Proposed Development, together with prior

public realm developments in Malahide, exceeded the threshold at which an EIA becomes

mandatory under R93 PDR Schedule 5 Part 2 Class 10(b) PDR (as required by A2 and A4(3)

of the EIA Directive). This failure has the result that a series of projects, carried out

successively, is able to avoid EIA because no one project ever exceeds the size threshold,

and is not in accordance with the Regulations interpreted in accordance with the Directive.

The Council also erred in law in failing to provide the areas of these prior developments for

inclusion in the threshold calculation, contrary to the requirements of R120(3)(ca) and (cb)

and Schedule 7A PDR, and/ or A4(4), A4(5) and Annex IIA of the EIA Directive.

Council Position

The manner in which this Ground of Challenge has been addressed in submissions is

unsatisfactory as the Applicant has not distinguished between Core Grounds No. 3 and 7.

The claim that there was a failure to consider impacts on the safety of cyclists has not been

pleaded and this is not an issue which was argued by the Applicant in any public consultation

process, nor was the issue raised in other submissions.

Issues relating to cumulative assessment were considered by the Board in the Inspector’s

Report. Fingal points, in particular, to page 6 of the Inspector’s Report where each of the

other developments on which the Applicant relies were identified.

The potential for cumulative impacts between the proposed public realm improvements and

other existing and/or approved projects was considered at 8.3.1.2 (‘Potential for Cumulative

Impacts with other Existing and/or Approved Projects’). That conclusion was reiterated at

8.3.3 where it is stated ‘Having regard to Section 8.3.1.2 it considered unlikely that

significant cumulative impacts would arise.’

Board Position

The Applicant’s assertion that in considering the traffic impact of the proposed development

in the context of EIA screening, the Board failed to have regard to the effects of the proposed

development in cumulation with other projects, in particular the Bridgefield Carpark,

refurbishment of the Green and/or the Broadmeadow Greenway, is incorrect. These projects

were clearly considered in terms, as is evident from the Inspector’s Report (§4) and the

assessment which follows. The content of the Art.120(3)(b) requests was considered and

the reasons provided by the Inspector and Board in reaching its conclusion are lawful and

adequate.

As set above, the Board assessed the project for development as required by the EIA

Directive and the Applicant has failed to establish any error in this respect. It is denied that

the Board decision facilitates project splitting.

State Position

This Core Ground is not addressed to the State Respondents.”

91. To the extent that this is premised on the logic of core ground 5, the argument that the

board read the 2001 regulations incorrectly in that regard can’t succeed.

92. Insofar as there is a separate issue about lack of consideration of cumulative impacts by the

board, we need to look at the pleadings, the facts and the law before trying to apply the latter.

93. The issue was enlivened by various preliminary objections. The lack of submissions on

relevant issues made by the applicant was canvassed although that argument did seem to soften a

bit as the hearing went on, to the point where I don’t think I need to address it. Had it been pressed

we would need to consider referring any such standing complaint in the light of cases such as C-

826/18 Stichting Varkens in Nood. Even the applicant’s attempt to give notice of errata in the

statement of grounds was repulsed, at least in the absence of a formal application to amend. I don't

think that latter issue makes much difference because the applicant’s point is clear enough, but it

might have been better to seek consent to a formal amendment.

94. As regard the complaint that the applicant should have challenged the EIA determination

within eight weeks rather than wait for the development consent decision, that is unfounded. That

was not a substantive decision but rather a step in the planning process leading ultimately to the

decision to carry out the development. It is obviously an intermediate decision as opposed to a final

substantive decision. It is not a separate statutory procedure – it is part of the development consent

process. All intermediate decisions have some legal effects and many of those can’t be revisited in

the administrative process – but overriding and imperative considerations of legal policy mean that

challenges to intermediate decisions must be saved for the final decision. To decide otherwise would

be to incentivise unnecessary litigation and to make the courts part of the problem rather than part

of the solution. The fact that the screening decision finally determines a certain issue and is

unappealable is certainly not decisive. It remains an intermediate decision. In s. 50(6) of the 2000

Act, the special context of the intermediate decision compels an interpretation that reads “the date

of the decision” as meaning the date of the final decision. Hence if the “decision” involves the input

of numerous actors – for example the board in relation to EIA screening and the council in relation

to the decision to proceed with the development (or for example, a confirmation by Uisce Eireann

under art. 22(2A)(a) of the 2001 regulations) – time only runs from the final decision even if one of

the intermediate decisions was made by a different actor, whether the actor is covered by s. 50 or

not. The opposing parties naturally seize on references in jurisprudence to the concept that some

irreversible intermediate decisions have to be challenged at the time. I think such references can

be explained by saying that one can’t be absolutely categorical given the vast number of scenarios

that can arise, but any such category has to be kept extremely tight and limited and may indeed be

fairly theoretical in practice. The derogation licence is the only type of thing that comes to mind –

if one wants to call it an intermediate decision, which I wouldn’t be inclined to do since it is made

under a separate code from planning law - but even that quite extreme case doesn’t appear to be

accepted as a properly separate decision by the European Commission in the context of the art. 267

TFEU reference on the issue (C-58/24, Drumakilla), and we will await the outcome with interest.

The tide of jurisprudence is running strongly against the notion of multiple judicial reviews on a

challenge-as-you-go basis in relation to the same matter. That is both for reasons of principle – a

requirement for multiple judicial reviews is incompatible with legal certainty, interferes with the right

of access to justice and also imposes unnecessary costs contrary to the requirement that proceedings

not be prohibitively expensive – and also for reasons of pragmatism – incentivising or even requiring

multiple judicial reviews imposes huge burdens on the court system with knock-on effects for other

litigants who then have to join a longer queue than is necessary. Anyway, if anything turned on this

I might have to consider referring questions arising from what in my view is a breach of the principles

of legal certainty and access to justice involved in the opposing submissions, but I don’t need to do

that in this case.

95. As regards the pleadings, the wording of this issue is somewhat exiguous in the sense that,

apart from in relation to the greenway, it does not set out any facts and matters about how the

alleged road safety issue arose (emphasis added):

“Core Ground 7, Cumulative Effects

51. The Board erred in law in failing to consider cumulative effects on public health,

namely by way of risks associated with traffic hazard, arising from the Proposed

Development in conjunction with the development of a carpark at the Bridge Field,

refurbishment of the Green, and the Broadmeadow Greenway which will bring an

average of 1,200 and estimated peak of 3,500 cyclists per day onto or across the Strand,

an unspecified proportion of whom will attempt to use a route onto which the Proposed

Development proposes to divert traffic from New Street (to run down Old Street and along

the Strand to the Marina, and from the Marina along the Green and James’ Terrace back up

to the Mall).

52. The specific errors made by the Board are:

52.1. First, the Board failed to give any (or any adequate) reasons or considerations in

relation to its rejection of the submission that there was need for EIA having regard to the

submission that there were such cumulative effects, contrary to R120(4) PDR and / or

A4(5)(b) of the EIA Directive.

52.2. Second, in the alternative, the Board failed to consider relevant material relating to

cumulative impact, contrary to R120(4) and Schedule 7 PDR, and / or A4(4), A4(5) and

Annex III of the EIA Directive.

52.3. Third, in the further alternative, the Board misdirected itself in law as to the concept

of cumulative effects, and failed to recognise that prior developments of a carpark at the

Bridge Field, refurbishment of the Green, and the Broadmeadow Greenway were existing or

authorised projects which it was obliged to have regard to, and thereby contravened R120(4)

and Schedule 7 PDR, and / or A4(4), A4(5) and Annex III of the EIA Directive. Furthermore,

in so doing the Board misdirected itself in law by failing to recognise that its decision

facilitated project splitting with the effect of avoiding requirement for EIA, contrary

to A2 of the EIA Directive, inasmuch as all of those projects had been collected in the

Malahide Public Realm Strategy, but were advanced one at a time over an extended period

so that each could be stated to be below threshold for urban development projects pursuant

to S176 PDA, A93 and Schedule 5 Part 2 Class 10(b) PDR, and / or A4(3) and Annex II Class

10(b) of the EIA Directive.

53. Furthermore, the Council failed to submit the information required by R120(3)(ca)

and (cb) and Schedule 7A PDR, and / or A4(4), A4(5) and Annex IIA of the EIA Directive. It

failed to submit the information relating to cumulative impacts referred to above. As a result

the Board Decision was based on inadequate information, and was therefore invalid, and in

consequence the Council Decision, being based on the Board Decision, is also invalid.”

96. Insofar as concerns the car park and the refurbishment of the Green, the pleadings leave

one in the dark as to what the alleged cumulative effects actually look like. The furthest the applicant

can advance this is by way of the general complaint that traffic hazard was not considered in the

context of potential cumulative assessment with those two projects. The applicant can’t succeed on

anything more specific than that.

97. I would however accept that the Broadmeadow Way issue is more specifically pleaded – the

gist of the complaint is lack of assessment of the impact, by virtue of cumulative/in-combination

interactions, of large numbers of additional cyclists being delivered to the top of Old Street. The

legal relevance of that complaint is pleaded in terms of failure of consideration, lack of reasons, and

project-splitting, and consequential complaints.

Cumulative effects – the factual context

98. Insofar as the complaint is one of project-splitting, we need to note that the Broadmeadow

Way project was subjected to full EIA – see https://www.pleanala.ie/en-ie/case/304624. The EIAR

is dated May 2019 prior to the pedestrianisation of New Street even in its initial formation.

99. The board order was signed by its deputy chairperson Mr Paul Hyde on 19th May 2020

(https://www.pleanala.ie/anbordpleanala/media/abp/cases/orders/304/d304624.pdf?r=94424048

3473) and thus just pre-dates the initial pedestrianisation of New Street. Hence one can conclude

that the EIA process of the Broadmeadow Way didn’t encompass consideration of cumulative and

in-combination effects with the present project (or sub-project, as the applicant might have it). That

doesn’t mean that this decision is invalid – it just opens the door for the argument, which we will

come to later.

100. The council plans to carry out a range of different works in the Malahide Public Realm

Strategy (https://www.fingal.ie/sites/default/files/2019-09/malahide_public_realm.pdf).

101. As regards the applicant’s submissions, the board submission sets out some context:

“32. ... For the avoidance of doubt, the Art.120(3)(b) request to the Board made by

MOVRA is exhibited at Tab 9 of exhibit NB1 to the Applicant’s grounding affidavit, with the

attachments referred to therein at Tab 11 thereto. The Applicant did not make an

Art.120(3)(b) request to the Board in her own name, however she asserts membership of

MOVRA in her replying affidavit (§3) and in written submissions (§22) and seeks to rely on

the points made as part of the Art.120(3)(b) requests generally. ...”

102. The applicant did make a submission to the council as part of the public realm strategy

consultation (which wasn’t part of this process), but that didn’t refer to cycle safety as such:

“Unique Reference Number: FIN-C570-173

Status: Submitted

Submission: Those who live in the village live with the consequences and harm

Author: Nicola Byrne

Consultation: Public Realm, New Street Malahide

Observations

Theme: General Comments

Title: Public Order Enforcement

Under New Street’s road closure, the antisocial behaviour, drinking on the streets and the

proliferation of public drug taking in Malahide has been increased hugely. This will be made

worse by the implementation of this which aims to place fixed seating and planters. These

will be focused by drinkers – especially after closing times, to create harm such as noise and

intimidating behaviour by intoxicated people on a continuous basis.

Anybody now visiting the village will see the amount of CCTV that has been installed by both

residents and businesses as a response to this harm.

Malahide now has a widespread reputation for lawlessness in Malahide. This means that

after 8pm at night very few residents feel safe enough to walk to Tesco due to the carry on

between the Green and New Street. The nuisance will now be a permanent reality where

safety in the village after 6pm cannot be guaranteed. Gardai have provided sworn evidence

to the Licencing Courts on 9th May that ‘Zero Tolerance for this type of public drinking is not

realistic’.

While the whole village would love a legal public realm project, all the evidence repeatedly

shows that this is making quality of life for living in the village very difficult. Why would a

project that causes harm and unnecessary suffering be adopted?

Council Members are being asked to approve of a scheme that has been repeatedly shown

to cause public nuisance and loss of residential amenity that cannot be controlled by

enforcement by either the Gardai or the Local Authority.

Theme: General Comments

Title: Traffic Displacement

The displacing of traffic from one wide straight street with traffic lights onto other much

narrower streets with no signals and many sharp corners is again just detached from reality.

Narrow streets such as New Streets now have to be used by many large and awkward loads

including the sewage sludge truck, large delivery lorries, boats for the marina as well as

emergency vehicles. [see photo from yesterday]

Using a narrow residential street to bring a double deck bus down is not acceptable. It has

to be upsetting for everyone when it gets stuck every day. When the bus gets stuck it backs

up traffic throughout the whole village. Why would you think this was ever going to be

acceptable?

Council Members are being asked to approve of a scheme that has been repeatedly shown

to make traffic in the village and surrounding areas more congested and less safe.

Theme: General Comments

Title: Not validly based in a current development plan

The Ministers office yesterday confirmed [See Letter attached] that the Fingal County

Development Plan is ‘ongoing’ which appears to make this Part 8 submission irrelevant as

there is no legal in existence CDP at this point, and all the planning reports for this Part say

CDP 2023-2029.

To make matters worse, Malahide lacks a Local Area Plan legally required to have because

of its population size. This is a planning process that would have allowed residents enter

into the process and defend their rights. How can a plan for the core of Malahide be legal

without the Local Area Plan being adopted first to give it a context?

Council Members are being asked to approve of a scheme that is premature because the

County Development Plan has not been fully adopted and because it has no Local Area Plan

to give it a legal context.

Theme: General Comments

Title: Noise

With the removal of traffic from New Street has meant that the intermittent shouts and

screams of drinkers on the street in the evenings is enough to wake residents from their

sleep. The closing times are now like having a festival on all streets in the village as the taxi

hunt commences with great revelry.

Theme: General Comments

Title: Public Urination

The places of structures on the street can only be considered another target for the late

night public street toilet users. Pictures attached. Its not just a feature on New Street it is

pretty much village-wide as the taxi situation is farcical.

Theme: General Comments

Title: More of a project for Pubs than for Public Realm

The handing over of public realm space to pubs is a disgrace and I echo other comments

here. As a resident I too voice my unhappiness at the disadvantage of having no access to

this additional public free space. Why can’t residents apply for the space too. Why are

private businesses being rewarded with free public space. When did this discrimination

become acceptable. Surely we are all entitled to front gardens now. I would like to place

my own private seating outside my home where the footpaths should be widened and I too

can improve the look of Old Street by greening up all the concrete that is now there.

Malahide has hundreds of acres for leisure activity – the plan ignores reality, has been flawed

in its delivery and has given an unrealistic expectation that somehow, we can change a road

to a pub and expect no consequences. As the fantasy cups of coffee and pints fade the

reality is Malahide will be a bleak sad place where ignorance has trumped evidence in favour

of the commercialisation of a public space for the benefit of the few while harming the many.

Theme: General Comments

Title: Conclusion

I request my statutory entitlement of an LAP for Malahide as this part 8 is premature due to

the non existent County Development Plan to which you claim to base this project on. Give

us back our fully designed public realm and complete the green project as in currently

mandated in the old CDP which is technically still in place till the new plan has been signed

of by the Minister.

Documents Attached:

FIN-C570-173-220550 - c64d2888-d22a-4038-b4b5-7bd0ed1d87a0.jpeg

FIN-C570-173-220554 - 4834de51-c03a-4629-9557-6c0a664e550b.jpeg

FIN-C570-173-220555 - HPLG-MOSOD-00415-2023.pdf

FIN-C570-173-220574 - Images Redacted.docx

Boundaries Captured on Map: No”

103. I’m not saying that the applicant can’t rely on other submissions, particularly of the residents

association of which she is a member, but here those submissions don’t take matters a whole lot

further, and the context of the lack of any submission on the confluence of cyclists and traffic at the

top of Old Street specifically is not irrelevant given that the content of any decision reflects

submissions made.

104. Taking a homely example, sometimes people criticise a judgment for not dealing with X (or

even do so in heated terms, if you can believe that), but one sometimes has to turn the question

around and ask if anybody properly and specifically put X before the court at the appropriate time.

Mysteriously one rarely gets much of an answer to that, but in the odd case where the silence is

broken by a relevant response, such replies curiously tend towards a sheepish negative for whatever

reason.

105. In the request for EIA screening, the residents’ association certainly did raise the issue of

cumulative effects with other public realm projects and listed such projects with maps. That doesn’t

get us very far absent some stated basis for saying that there will be specific cumulative impacts on

some clear basis that requires specific consideration. The submission is fairly light on specific

complaints about traffic hazards and doesn’t raise the specific centrepiece of the applicant’s

submissions in the judicial review. By analogy with Christopher Hitchens’ aphorism, “that which can

be asserted without evidence can be dismissed without evidence”, one can say that that which is

raised generally can be replied to generally. So raising traffic hazards in a general way in

submissions here may legitimately invite a general response.

106. In particular, the material in the MOVRA request, Mr Noel Mahon’s request, which does

include two pages under the heading of “Likely traffic effects”, and the MOVRA submission which

were before the board, make some reference to road safety but those correspondents don’t specify

the point about confluence of cyclists and traffic at the top of Old Street.

107. The material submitted by the council included two reports from BMA of April and July 2023

and the traffic and transportation assessment of PUNCH consultants, which were supportive of the

conclusion of no adverse safety impact. The council’s submission to the board includes the following:

“5. The Applicants' purported assessment of the likelihood of significant effects on the

environment is fundamentally flawed

5.1 As further detailed in the enclosed report of BMA Planning dated 04 July 2023, the

purported assessment of the likelihood of significant effects on the environment presented

by the Applicants in their submission to the Board is fundamentally flawed.

5.2 The Applicants have sought to present what they purport to refer to as an ‘EIA

Screening Assessment’ in Table 2 of their submission, at pages 7 to 12. Table 2 is presented

as an alternative to Table 4.1 of the EIA Screening Report link provided here: EIA Screening

Report.pdf (provided in Attachment A to the BMA Report) but, significantly and unlike the

EIA Screening Report, is not supported by any expert assessment of the potential for likely

significant effects. Further, while the Applicants have included a number of attachments to

their submission which they contend support the purported ‘assessment’ presented in Table

2 to their submission, those attachments relate to occurrences that typically happen within

an urban environment, as set out in the enclosed report of BMA Planning dated 04 July 2023.

Further, the very fact that these occurrences were addressed at the relevant time without

any significant effect to the environment confirms the resilience of the baseline urban and

natural environments within Malahide.

5.3 BMA planning have considered the purported ‘assessment’ presented by the

Applicants under each of the headings set out in the Applicants' Table 2, and have set out

in the enclosed report the basis on which they, Fingal County Council, and the Board, can

be satisfied that the proposed public realm improvements will not give rise to any likely

significant effects on the environment and that the Applicants' purported ‘assessment’ in

that regard is incorrect in its findings.

5.4 The Applicants do not identify any experts as having assisted them in the preparation

of this purported ‘assessment’ or point to any expert reports or evidence that would support

the contentions made in this purported ‘assessment’.

5.5 For example, the Applicants make a number of allegations in relation to potential

traffic impacts, which are not supported by any traffic counts or other evidence, or any

expert analysis of potential traffic impacts. In contrast, as mentioned above, a detailed

Traffic and Transportation Assessment (TTA) was carried out by PUNCH Consulting Engineers

and appended to the EIA Screening Report, which confirms that there is sufficient resilience

in the existing road network to absorb the redistribution of traffic arising from the

pedestrianisation of New Street and that the impact on those streets in the wider area is not

likely to be significant, and that the existing traffic arrangements relating to New Street do

not give rise to any likely significant effects. These traffic arrangements will be the same

when the pedestrianisation with public realm improvements is implemented and therefore

will not give rise to any likely significant effects. A link to this EIA Appendices which contains

the TTA report can be found by clicking the link here EIA Screening Report Appendices.pdf

(page 292 of 726 of the pdf link for ease of reference) and a hard copy is included in the

appendices to the EIA Screening Report at Attachment A to the enclosed report of BMA

Planning dated 04 July 2023.

5.6 The Applicants also suggest, again without pointing to any expert advice or input in

this regard and without any assessment, that the proposed public realm improvements will

adversely affect the context and setting of the buildings with the Malahide Architectural

Conservation Area. In fact, the nature and scale of the proposed public realm improvements

are consistent with established pattern of development within Malahide Village and are

designed to integrate with the established urban environment while respecting the

sensitivities of the Architectural Conservation Area and the natural environment within

Malahide. An Architectural Heritage Assessment (prepared by Coady Architects and

contained in the EIA Screening Report Appendices -Appendix C page 56 of 726 of the pdf

link for ease of reference and in hard copy in Attachment A to the enclosed report of BMA

Planning dated 04 July 2023) assessed the impact of the proposed development on the

Architectural Conservation Area and concludes that the proposed public realm improvements

represents a change from its current configuration of a central carriageway with footpaths

on both sides but that this change is necessary and appropriate and will enhance the setting

of the historic buildings on New Street. A link to the stand alone Architectural Heritage

Assessment report can be found here: Architectural Heritage Assessment.pdf.

5.7 Further, the Applicants point to Attachment 1 to their submission in support of their

contentions in relation to the ACA, but Attachment 1 simply includes two maps of Malahide

Village and does not include any assessment of the potential for likely significant effects on

the ACA.

5.8 Similarly, the Applicants point to a history of pluvial flooding in Malahide and include

(at Attachment 8) a number of photographs of a flooding event that occurred in July of 2021,

and one photograph from August 2021. The Applicants do not provide any evidence of any

increased risk of flooding arising from the proposed public realm improvements, or any

expert analysis of any potential flooding issues. However, the Site Specific Flood Risk

Assessment.pdf prepared by PUNCH Consulting Engineers and contained in the EIA

Screening Report Appendices (page 264 of 726 of the pdf link for ease of reference, and

included in hard copy in Attached A to the enclosed report of BMA Planning dated 04 July

2023) and the AA Screening Report ‘Appendices confirms that there is no likely significant

increase in risk of flooding to the site or other areas as a result of the proposed development.

In fact, as outlined in the Engineering Services Report contained within the EIA Screening

Report Appendices (Appendix E page 206 of 726 of the pdf link for ease of reference, and

included in hard copy in Attachment A to the enclosed report of BMA Planning dated 04 July

2023), the public realm improvements for a pedestrianised New Street dramatically improve

the stormwater drainage arrangements on New Street and thus represent a dramatic

improvement with respect to addressing pluvial flood risk.

5.9 In relation to the other various attachments provided by the Applicants, Attachment

4 for example is alleged to include ‘evidence of exposure of residential area to increased

traffic and crowds’ and ‘evidence of anti social behaviour’. Fingal County Council does not

accept that Attachment 4 includes such evidence. This attachment includes a number of

photographs and screenshots of news items including: -

a) On page 1, two photographs of Old Street, which runs parallel to New Street and is

not part of the proposed public realm improvements for a pedestrianised New Street. The

photographs show cars and buses using the street and show members of the public enjoying

outdoor dining in parklets placed on the street by local businesses, pursuant to Street

Furniture Licences granted by Fingal County Council under section 254 of the Planning and

Development Act 2000 (as amended).

b) On page 2, there are two screenshots of news reports of anti-social behaviour

occurring in Malahide, but not on New Street. There is also a photograph of a group of

young people sitting or standing with their bicycles on New Street. The Applicants seek to

characterise this image as showing a ‘congregation of youth gangs on New Street’, and

Fingal County Council does not accept this description.

c) On page 3, the first photograph-shows a group of people standing on the street and

is characterised by the Applicants as showing ‘“Mobbing” of shops by gangs of youths’. Fingal

County Council does not accept this description. Similarly, the fourth photograph shows a

small number of young people running along New Street, but the Applicants have described

this as a ‘youth gang rampage’ which is patently incorrect. In fact, this photograph also

shows people enjoying outdoor dining on New Street, using licenced street furniture, and

apparently untroubled by the alleged ‘gang rampage’.

5.10 Insofar as there is any allegation in the Applicants' submission to the Board that

there may be any issues in relation to access for emergency vehicles, HGV's, etc., it is noted

that the public realm improvements for a pedestrianised New Street accommodate the

movements of large delivery lorries, boats for the marina and emergency vehicles and this

has been fully demonstrated in a series of vehicle swept path analyses/drawings prepared

by PUNCH Consulting Engineers and included as part of the Part 8 application. {Click links

below here for each of the drawings, or a physical copy of the drawings are provided with

the AA Screening response referenced as ABP-317131-23 dated 04 July 2023).

222126-PUNCH-XX-XX-DR-C-0600.pdf

222126-PUNCH-XX-XX-DR-C-0601.pdf

222126-PUNCH-XX-XX-DR-C-0602.pdf

2221-26-PUNCH-XX-XX-DR-C-0603.pdf

222126-PUNCH-XX-XX-DR-C-0604.pdf

222126-PUNCH-XX-XX-DR-C-0625.pdf

5.11 In that regard, Attachment 9 to the Applicants' submission includes a photograph of

an ambulance, which is described as having been ‘forced \o mount footpath at top of New

St’. FCC were not notified of any issues by emergency services and we note that the

ambulance used the footpath for egress. The existing bollards are to be replaced as part of

the proposed public realm improvements to enhance their aesthetics and functionality.

Therefore, in fact, the existing arrangement will be enhanced by the proposed public realm

improvements.

5.12 Attachment 9 to the Applicants' submission also includes a photograph of a tanker

on Old Street which the Applicants say, ‘blocks all traffic for 4 hours’. This issue arose due

to the axel failure of a waste truck at the southern end of Old Street, on its way to the

wastewater treatment facility which is located off the northwest of Old St/Strand St junction,

before the Broadmeadow Estuary Crossing. The truck route to the Wastewater facility has

historically been via Old Street, due to its proximity to Wastewater Treatment Works. At

the time of this incident, An Garcia Siochana permitted vehicular traffic to use New Street

as an alternative route until the truck was removed from Old Street, and so this was a one

off incident that in Fingal County Council's view had no noticeable bearing on traffic. An

occurrence such as this is something that could occur on any road in any location across any

urban area in the country and the likelihood of this happening is not in any way increased

by the proposed public realm improvements.

5.13 Further, attachment 10 includes 2 photographs and is described as ‘Evidence about

the exposure of children to alcohol advertising as well as public alcohol consumption.’ The

first photograph shows two young people apparently in school uniforms, eating at a table on

New Street. The Applicants suggest that these children are being ‘exposed to alcohol

advertisement’, which we take it is a reference to the branded awning shown in the

photograph. Such awnings are a common feature of pubs and restaurants throughout Dublin

and often include branding for various alcoholic drinks. Young people travelling to and from

school will inevitably see such awnings, and indeed will likely see many other forms of

advertising for alcohol, and this is not related in any way to the proposed public realm

improvements for a pedestrianised New Street. Further, the second photograph is alleged

to show ‘children’ consuming alcohol. While this photograph does appear to show a person

sitting at a table on New Street having a drink, it is not clear from the photograph how old

that person might be, or if the drink is an alcoholic drink or not.”

108. The inspector says as follows:

“8.3.1.2. Potential for Cumulative Impacts with other Existing and/or Approved Projects

The adopted FCDP has been subject to AA and SEA and considered the policy set out in

‘Objective CSO63’ to pedestrianise New Street. The SEA for the plan concluded that its

implementation would not result in significant effects on the environment.

It is also noted that the development is on serviced lands in an urban area and does not

constitute a significant urban development in the context of the wider town and the other

projects identified above in Section 4.0.

The development is not associated with any significant loss of habitat or pollution which

could act in a cumulative manner to result in significant negative effects to any Natura 2000

sites. There are no projects which can act in combination with the development which can

give rise to significant effect to Natura areas within the zone of influence.

Similarly, the development is not associated with any significant generation of traffic which

could act in a cumulative manner to result in significant negative effects to the surrounding

road network. The road network is relatively permeable in this area and any displacement

of parking would be minimal in the context of the wider town. The conclusions of the Traffic

and Transportation Assessment submitted by FCC is considered reasonable in this context

and the road network can absorb the redistribution of traffic.

Should the construction of the proposed development occur in tandem with other urban

development, including those set out in Section 4.0 of this report and in particular the public

realm projects listed, any impacts would be of a temporary nature and short-term given:

• the limited nature of works (i.e., no significant structures, length of street),

• the expected duration of the works (15 months),

• the location of lands to be developed (town centre),

• the location and distance to the other existing and/or approved projects.

• the likelihood of temporal overlap of construction works between projects.

• the implementation of standard and best practice construction and operation measures.

It is considered unlikely that significant cumulative impacts with other existing and/or

approved projects would arise.”

109. At para. 8.2, the inspector rejected the concept of a relationship between the project and

other matters:

“The applicants raise the issue that the size of the urban development is larger than the site

size identified and FCC are effectively splitting several projects that make up the Malahide

Public Realm Strategy and other schemes in the area. When public realm strategy is

considered wholly the 2 hectare is exceeded and an EIA is required according to the

applicants.

However, it is considered that the projects in the strategy are not functionally interdependent

with each other and the New Street project arises from a distinct need and is not integral to

any other. It is reasonable that FCC in seeking the apply a public realm strategy would take

individual distinct needs and present these to the planning system as required – this is

inevitable for organisations undertaking large capital works programmes like local

authorities. It is not considered that ‘project-splitting’ occurs.

Therefore, it is ‘subthreshold’, and a mandatory EIA is not required.

In such instances, where the development is ‘subthreshold’, an assessment should be made

against the criteria for determining whether development listed in Part 2 of Schedule 5 which

are set out in Schedule 7 of the PDR. This is set out below in Section 8.3.”

Cumulative effects - the legal context

110. One crucial point made by the applicant is that compliance with the directive is an

autonomous obligation and thus that cumulative or in-combination effects must be considered as

required, independently of submissions. That is correct and is consistent with CJEU caselaw,

particularly the judgment of 21 September 1999, Commission of the European Communities v

Ireland, C-392/96, European Court Reports 1999 I-05901, ECLI:EU:C:1999:431 referred to below.

The level of detail in terms of reasons may nonetheless be contingent on the extent of submissions

made.

111. The applicant’s next point was that the law on cumulative impacts was unclear and required

a reference to Luxembourg.

112. On that issue, the parties’ positions as recorded in the statement of case are summarised as

follows:

“Applicant’s Proposed Questions

Does A4(3) of the EIA Directive (2011/92) require that, when calculating whether a proposed

development exceeds the threshold at which national law deems EIA to be mandatory (for

a development of a particular class and type, in this case urban development in a business

district where the area involved exceeds 2 ha), the competent authority must aggregate the

size of former projects carried by the same developer (a local authority) in the same general

area, so that once the cumulative area of all such projects exceeds the threshold set, EIA is

deemed to be mandatory?

The Council does not consider that there is any requirement for any question to be referred

to the CJEU.

The Board does not consider that any requirement for a reference to the CJEU arises.”

113. Whether the law is in fact uncertain requires a look at the caselaw and we will come back to

this.

114. One problem is that the concept of cumulative impacts has two senses. One is in defining

the “project as a whole” that must be assessed – where there are a number of sequential or related

developments they should be considered cumulatively in determining whether thresholds for EIA are

met. As the caselaw makes clear, there are situations where the individual sub-projects (for want

of a better term) are quite different, though in most cases they are related in some readily

identifiable way. Under the heading of this sense of the term, even if the project being consented

does not require EIA on its own terms, it may require EIA if it forms part of a wider supra-threshold

project.

115. The separate context is that where other projects are definitely not part of the “project as a

whole” at hand, cumulative and in-combination effects still have to be considered in deciding whether

sub-threshold development should be subjected to EIA (Annex III para. 1(b) of the EIA directive),

and in the carrying out of EIA itself where that applies.

116. That distinction involves distinguishing between “the project as a whole” and other projects

(which nonetheless may need to be considered in combination or cumulatively).

117. The principle could be summarised as follows:

(i) The project as a whole must be considered for EIA purposes – even if this goes

beyond the project for which consent is sought. Thus for example if consent is

sought for a sub-threshold project which is part of a supra-threshold project

(whether already part-consented in successive phases, or involving separate consent

applications in process or yet to be made) then the project for which consent is

sought must be treated as supra-threshold if either an EIA that would otherwise be

required would be avoided by the splitting, or if the part of the project being

consented has significant effects on the environment in conjunction with another

part that has already been subjected to EIA. There are situations in which otherwise

functionally unrelated projects need to be considered collectively for threshold

purposes as the caselaw indicates (piecemeal peat harvesting in Ireland;

accumulated urban development in Austria, for example).

(ii) As regards the relationship with other projects falling outside the “project as a

whole”, the cumulative and in-combination effects must still be considered as part

of any EIA screening or EIA itself.

118. This is complex enough but the major complexity is, I think, in the definition of “project as

a whole” since that can go beyond the project being consented. The domestic law has to reflect

that, something we will come to. Irish law is clear that the project to be assessed is that for which

consent is sought (see e.g. Fitzpatrick v. An Bord Pleanála [2019] IESC 23, [2019] 3 I.R. 617, [2019]

2 I.L.R.M. 247 (Finlay J.)). That is not in issue as long as we understand that that project may have

to be assessed as part of a wider project (recognised in paras. 56 and 61 of Fitzpatrick), and in

particular that the question of whether EIA is required may have to be considered by reference to

the wider project rather than just the project for which consent is sought, so that if the overall

project is supra-threshold then the project at hand may need to be assessed even if that element is

sub-threshold.

119. It will be illuminating to look at the EU caselaw which is cited in submissions and in:

(i) Commission notice regarding application of the environmental impact assessment

directive (directive 2011/92/EU of the European Parliament and of the Council, as

amended by directive 2014/52/EU) to changes and extension of projects - Annex

I.24 and Annex II.13(a), including main concepts and principles related to these

(2021/C 486/01) (https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=oj:JOC_2021_486_R_0001), nn. 31-37; and

(ii) European Commission: COWI, Directorate-General for Environment, Milieu, Hansen,

D. S., Fisker, S. et al., Environmental impact assessment of projects – Guidance on

screening (Directive 2011/92/EU as amended by 2014/52/EU), Publications Office,

2017, https://data.europa.eu/doi/10.2779/092377.

120. The position can be summarised as follows:

(i) In the judgment of 24 October 1996, Aannemersbedrijf P.K. Kraaijeveld BV e.a. v

Gedeputeerde Staten van Zuid-Holland, C-72/95, ECLI:EU:C:1996:404

(Kraaijeveld), at para. 50, the CJEU emphasised that the limits of the discretion to

set thresholds for assessment are to be found in the obligation set out in art. 2(1)

of the EIA directive that projects likely, by virtue inter alia, of their nature, size or

location, to have significant effects on the environment are to be subject to an impact

assessment.

(ii) The judgment of 21 September 1999, Commission of the European Communities v

Ireland, C-392/96, ECLI:EU:C:1999:431, paras. 76 and 82, related to a situation

where individual projects of peat extraction and destruction of limestone

pavements and other features, none of which were subjected to EIA,

cumulatively amounted to having a significant effect on the environment.

The “projects” were it seems by different “developers” at different times and

functionally distinct. The accumulated weight of the projects had a predictable

outcome – “much land clearance has taken place in the Burren without a single

impact assessment being carried out, although it is an area of unquestionable

interest. Limestone pavement, which is characteristic of the area, has been

destroyed, as have vegetation and archaeological remains, giving way to pasture”

(para. 80). One can interpret the decision as either giving a very broad

interpretation to the concept of a project, or as meaning that where cumulative

effects are significant, that impacts on the definition of the project as opposed to on

the scope of assessment if the project exceeds EIA thresholds.

(iii) The judgment of 16 September 2004, Commission of the European Communities v

Kingdom of Spain, C-227/01, ECLI:EU:C:2004:528 was a case about whether EIA

was required for a 13.2 km rail line which was part of a longer 251 km rail project.

The project appeared to have been substantially underway by the time the

enforcement proceedings were launched. The court said that a national authority

could not split up a long-distance project into successive shorter sections in order to

exclude from the requirements of the directive both the project as a whole and the

sections resulting from that division (para. 53).

(iv) The judgment of 4 May 2006, Commission v United Kingdom, C-508/03,

ECLI:EU:C:2006:287 was about failure to provide for EIA at a later stage of the

same project following EIA at the outline permission stage. At paras. 101-106 the

court was clear that if certain effects are not capable of being determined at the

stage when they are assessed, they must be assessed at the stage of any later

consent in a multi-stage process.

(v) The judgment of 28 February 2008, Paul Abraham and Others v Région wallonne

and Others, C-2/07, ECLI:EU:C:2008:133 was a complex decision regarding

modifications to Liege airport, but the essential point was that the domestic court

had to determine whether an agreement to such modifications was a development

consent, and in doing so had to consider both whether the modifications involved a

principal consent with subsequent implementing consents and whether different

projects taken as a whole had cumulative effects (para. 28). It’s hard to know how

to classify that Delphic pronouncement but the key context was that the works were

to the same development as the original airport.

(vi) The judgment of 25 July 2008, Ecologistas en Acción-CODA v Ayuntamiento de

Madrid, C-142/07, ECLI:EU:C:2008:445 concerned the Madrid Calle 30 project

which was an underground re-routing of a large motorway, broken up into 15 sub-

projects of which only one satisfied the domestic EIA threshold. The exact state of

the consenting process for the sub-other projects wasn’t clear on my reading and I

assume at least some were yet to be consented. The CJEU said (emphasis added):

“45. As regards the projects at issue in the main proceedings, it is clear from the

order for reference that they are all part of the larger project ‘Madrid calle 30’. It is

for the referring court to verify whether they must be dealt with together by virtue,

in particular, of their geographical proximity, their similarities and their

interactions” (dealt together meaning for EIA purposes). The court also said that

“44 ... the purpose of the amended directive cannot be circumvented by the

splitting of projects and the failure to take account of the cumulative effect of several

projects must not mean in practice that they all escape the obligation to carry out

an assessment when, taken together, they are likely to have significant effects on

the environment within the meaning of Article 2(1) of the amended directive (see,

as regards Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR

I‑5901, paragraph 76, and Abraham and Others, paragraph 27)”. In fact Abraham

didn’t use the phrase “several projects” in para. 27 – the phrase suggests several

potentially distinct projects.

(vii) In the judgment of 30 April 2009, The Queen, on the application of Christopher

Mellor v Secretary of State for Communities and Local Government, C-75/08,

ECLI:EU:C:2009:279, at para. 50 and the judgment of 16 July 2009, Commission of

the European Communities v Ireland, C-427/07, ECLI:EU:C:2009:457, at para. 41

the court reiterated the point in C‑72/95 Kraaijeveld about the limits of the discretion

to set thresholds.

(viii) The judgment of 10 December 2009, Umweltanwalt von Kärnten v Kärntner

Landesregierung, C-205/08, ECLI:EU:C:2009:767 para. 51 emphasised that an

overall assessment of the project was required even if it was transboundary – and

in that case even if a relatively small part of the power line concerned was in the

member state concerned.

(ix) The judgment of 3 March 2011, Commission v Ireland, C-50/09,

ECLI:EU:C:2011:109 concerned the need for the option of EIA in the context of an

Environmental Protection Agency (EPA) licence for the same project as was subject

to planning. Part of the problem was noted at para. 78 that the EPA could grant a

licence before EIA was carried out in the planning process.

(x) The judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others v

Vlaamse Gewest, C-275/09, ECLI:EU:C:2011:154 concerned an operating permit

relating to Bruxelles‑National Airport. The court held that while an airport operating

permit is not in principle a project in the absence of physical works, it is for the

national court to determine, on the basis of the national legislation applicable and

taking account, where appropriate, of the cumulative effect of a number of works or

interventions carried out since the entry into force of the directive, whether that

permit forms part of a consent procedure carried out in several stages, the ultimate

purpose of which is to enable activities which constitute a project to be carried out.

If no assessment of the environmental effects of such works or interventions was

carried out at the earlier stage in the consent procedure, it would be for the national

court to ensure that the directive was effective by satisfying itself that such an

assessment was carried out at the very least at the stage at which the operating

permit was to be granted.

(xi) The judgment of 21 March 2013, Salzburger Flughafen GmbH v Umweltsenat, C-

244/12, ECLI:EU:C:2013:203 was a case where there was a challenge to additional

infrastructure at Salzburg airport. The context was the prior construction of a

terminal in 2002-04. Again it wasn’t totally clear on my reading whether that was

subjected to EIA and I assume not. The case concerned whether EIA was required

for a further permission in 2004 for the construction of warehouses/ hangars,

parking, stands, and taxiway alterations. The CJEU in said at para. 37 in the context

of successive developments at the same location, that it can be necessary to take

account of the cumulative effect of projects in order to avoid a circumvention of the

objective of the European Union legislation by the splitting of projects which, taken

together, are likely to have significant effects on the environment. It was for the

referring court to examine, in the light of the caselaw, whether and to what extent

the effects on the environment of the projects referred to in the judgment and the

projects already carried out at the airport must be assessed as a whole.

(xii) The judgment of 11 February 2015, Marktgemeinde Straßwalchen and Others v

Bundesminister für Wirtschaft, Familie und Jugend, C-531/13, ECLI:EU:C:2015:79,

concerned whether exploratory drilling had to be subject to EIA. The court said at

para. 45 that it follows that a national authority, in ascertaining whether a project

must be made subject to an environmental impact assessment, must examine its

potential impact jointly with other projects. Moreover, where nothing is specified,

that obligation is not restricted only to projects of the same kind. The

preliminary assessment must also consider whether, on account of the effects of

other projects, the environmental effects of the exploratory drillings may be greater

than they would be in their absence. The context was the statement of the referring

court that there are roughly 30 probes for gas extraction within the area of the

Marktgemeinde Straßwalchen which were not taken into consideration by the

Bundesminister für Wirtschaft, Familie und Jugend in the contested decision,

whereas the referring court said that it is clear from the judgments in Umweltanwalt

von Kärnten (C‑205/08, EU:C:2009:767, para. 53) and Brussels Hoofdstedelijk

Gewest and Others (C‑275/09, EU:C:2011:154, para. 36) that the objective of

directive 85/337 cannot be circumvented by the splitting of projects. The CJEU said

that the other projects to be considered must include those in other member states

– outside what it called “municipal boundaries” (i.e., outside the territory of the

member state concerned – see para. 46).

(xiii) In the judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH v Magistrat der

Stadt Wien, C-575/21, ECLI:EU:C:2023:425, the CJEU said at para. 46 that a

member state which established thresholds or criteria at a level such that, in

practice, all projects of a certain type would be exempted in advance from the

requirement of an impact assessment would likewise exceed the discretion available

to it, unless all the projects excluded could, when viewed as a whole, be regarded

as not likely to have significant effects on the environment (citing judgment of 31

May 2018, Commission v Poland, C‑526/16, not published, EU:C:2018:356, para.

61 and the caselaw cited). The context was that of different projects in the same

urban area, whether already consented or not.

121. We can thus try to summarise things in tabular form as follows:

Should the project be assessed for determining if the threshold for EIA is met in

tandem with another project if the other project is as follows?

Already consented (or Application to be consented

carried out to the extent

consent is unnecessary)

EIA was already carried out Category 1 Category 3

Potentially if effects not all Not applicable (because

assessed initially: C- lack of consent means lack

508/03, Commission v of a complete EIA process)

United Kingdom

EIA was not carried out Category 2 Category 4

Potentially: C-392/96, Potentially: C-50/09,

Commission v Ireland; C- Commission v Ireland; C-

275/09, Brussels 142/07, Ecologistas en

Hoofdstedelijk Gewest; C- Acción-CODA; C-575/21,

244/12, Salzburger WertInvest Hotelbetriebs

Flughafen GmbH; C- GmbH

531/13, Marktgemeinde

Straßwalchen and Others v

Bundesminister für

Wirtschaft, Familie und

Jugend; C-227/01,

Commission v Spain; C-

575/21, WertInvest

Hotelbetriebs GmbH

Assessment of core ground 7 – reasons and lack of consideration

122. We need to go back to the pleadings here and remind ourselves that the complaints were

essentially lack of reasons, lack of consideration, and project-splitting. The other complaints are in

substance consequential on those headings. The difference between consideration in the abstract

and project-splitting is as to whether the other projects are part of the “project as a whole”. If so,

there may have been splitting, if not there still has to be consideration of in-combination effects.

123. Insofar as the applicant complains about the lack of consideration of impacts in

conjunction with the development of a carpark at the Bridge Field, refurbishment of the Green, and

the Broadmeadow Greenway, cumulative impacts were considered as a general proposition.

124. Insofar as the applicant complains about lack of reasons, the obligation is to provide the

main reasons on the main issues and that was done. What are the main issues is influenced by the

nature of the submissions made.

125. That leaves project-splitting.

Assessment of core ground 7 – project-splitting – projects other than Broadmeadow Way

126. Insofar as concerns the general complaint that the project should have been considered as

supra-threshold by considering it in combination with the car-park and Green refurbishment in terms

of road safety, nothing specific about the interaction with those developments that gives rise to an

issue about road safety has been pleaded to allow such a complaint to succeed.

Assessment of core ground 7 – project-splitting – Broadmeadow Way

127. That leaves us with the complaint that the project should have been considered as supra-

threshold by reference to its interaction with the Broadmeadow Way project (or to put it another

way – not subjecting it to EIA constitutes project-splitting) by reason of the large number of cyclists

arriving at the Strand Road.

128. This is category 1 in our table above – where the earlier (sub-)project was subjected to EIA

but the later (sub-)project was not.

129. Applying the law to the facts here one comes to a position as follows:

(i) While the starting point is that the project to be assessed is the project for which

consent is sought, EU law can clearly require a wider assessment in certain

circumstances. In the case of interaction with an already-assessed and already-

consented project, an overall assessment is still required if any significant effects of

the combined projects were not assessed initially.

(ii) That abstract framework still leaves open the question of whether this was such a

case.

(iii) In this case, the board took the view that the current (sub-)project did not have any

significant effects on the environment in combination with the Broadmeadow Way

project. Having regard to the council submission, addressed above, the board had

expert material which would allow it to reject any non-expert claim about road safety

without the necessity for more detailed discussion.

(iv) If an applicant wants to displace that there is an onus of proof to be discharged in

that regard. In the absence of overcoming that, as here, treating the projects as a

combined supra-threshold project is not a requirement of EU law and thus the point

is not a basis for certiorari.

130. The decision says that any submissions made were considered and the applicant hasn’t

proved otherwise. The lack of narrative discussion does not equate to lack of consideration. The

express finding of lack of significant interaction with other projects hasn’t been shown to be

unreasonable or otherwise unlawful. The board had the council’s traffic and transportation

assessment which it considered reasonable. That isn’t unlawful, even bearing in mind the applicant’s

point that the assessment didn’t specifically ask to what extent any increase in traffic on Old Street

would impact on cyclists leaving the proposed greenway to travel into New Street. That is addressed

implicitly in the conclusion that surrounding streets can absorb the traffic from New Street. A general

conclusion of absorption implies being satisfied with absorbing traffic in particular contexts. The

alleged impact on cyclists is somewhat speculative anyway. The applicant’s characterisation of this

as “funnelling” leading to “intensification” and confluence with cycle traffic is slightly rhetorical.

Traffic, whether vehicular or cycle-based, redistributes to cope with the conditions. Hence the

council’s view and the board’s conclusion that the road network could absorb the effect of

pedestrianising one short street without causing a significant adverse effect on the environment in

the sense of road safety or otherwise.

131. So the point can’t succeed, subject to the legislation being valid. Recourse to Luxembourg

doesn’t arise because the applicant hasn’t displaced the board’s factual assessment by evidence, so

the point is abstract and not “necessary” under art. 267 TFEU. A reference would thus be

inadmissible and academic. In any event, viewing the caselaw as a whole, no uncertainty in EU law

has been demonstrated.

Legislative validity or transposition issues

Core ground 6 – alleged invalidity of the regulations

132. Core ground 6 is:

“6. R120 PDR is required to be read in accordance with A2(1) and A4(3) of the EIA

Directive so that screening of a proposed development to determine whether it exceeds the

threshold at which EIA is required is required to screen the entirety of the project, not just

the Proposed Development itself. If and insofar as it may only require screening of the

Proposed Development to the exclusion of the project as a whole, R120 PDR is ultra vires

the Minister because it infringes A2(1) and A4(3) of the EIA Directive, and should be set

aside or declared invalid.”

133. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant Position

(Note that Core Ground 6 is misplaced, and should follow Core Ground 7.)

Where a series of projects cumulatively exceeds the size threshold at which EIA becomes

mandatory, A2 and A4(3) of the EIA require that EIA must be carried out regardless of the

fact that the individual project under consideration does not itself exceed the threshold. (In

this case the threshold is 2ha for urban development in a business district.) If it is held that

the Board did not err in its application of R120 PDR by failing to take account of the size of

prior projects in calculating whether the threshold was exceeded, on the basis that R93 and

R120 PDR, and Schedule 5 Part 2 Class 10(b) do not require the Board to ensure it carries

out an EIA in such circumstances, then those provisions fail adequately to transpose A2 and

A4(3) and Annex III of the EIA Directive which do so require.

Board Position

This Core Ground is primarily addressed to the State Respondents. However, insofar as it

is premised on a particular outcome in respect of Core Ground 5, the Board relies on its

position as set out above in respect thereto. Without prejudice thereto, this ground of

challenge is not particularised in accordance with the requirements of Order 84, Rule 20(3)

of the Rules of the Superior Courts and there are simply no pleaded particulars in support

of this ground within the Statement of Grounds.

Council Position

This is a ground of challenge in respect of which the pleadings are wholly inadequate. The

Statement of Grounds does not explain at all the basis upon which it is alleged that there

has been a failure to properly transpose the EIA Directive.

The substantive challenge is without merit as it is premised on both an interpretation of the

EIA Directive as regards the scope of the project which has been consistently rejected and

a mischaracterisation of the factual position.

State Position

The State Position is that the requirements of Order 84 Rule 20 (3) have not been met by

the Applicant as it is unclear how it is said that Article 120 of the PDR 2001 is unlawful (which

is denied).

Article 120 enables the local authority to determine when a project need not undergo either

the determination under paragraphs 4 or 5 of Article 4 of the EIA Directive. Article 120(4)(a)

obliges a planning authority or the Board to, inter alia, to have regard to the criteria in

Schedule 7 to the PDR 2001 in making its screening determination under Article 120(1B) or

Article 120(3)(cc) of the PDR.

Schedule 7 obliges the competent planning authority to take into account the cumulation of

the Proposed Development with other existing development and/or development which is

the subject of a consent for proposed development for the purposes of section 172(1A)(b)

of the Planning and Development Act 2000 and/or development which is the subject of any

development consent for the purposes of the EIA Directive. The ‘Proposed Development’ in

this case is the development proposed by the Council.”

134. The basic logic of this complaint is that even if the board’s decision could have been the

appropriate one, the legislation prevented the board from having the full range of options open to

it. That is totally logical but where it runs into difficulty is the suggestion that the legislation

prevented the board from complying with EU law. The impugned provision centres on art. 120(3)(b)

which provides:

“(b) Where any person considers that a development proposed to be carried out by a local

authority would be likely to have significant effects on the environment, he or she may, at

any time before the expiration of 4 weeks beginning on the date of publication of the notice

referred to in article 81(2), apply to the Board for a screening determination as to whether

the development would be likely to have such effects.”

135. Admittedly the legislation would be better if the concept of effects was expressly explained

as meaning either individually or in combination with other projects. The absence of those words

isn’t fatal because the legislation is capable of being read in an EU-law compliant manner in this

respect on standard C-106/89 Marleasing principles.

136. Perhaps the State might consider if the wording can be improved (this may affect other

provisions of legislation also) in the forthcoming process of the production of new regulations, but

in the absence of any particular block to a conforming interpretation, the legislation is not invalid as

alleged.

Summary

137. Before concluding and at the risk of stating the obvious, I wonder if the parties would forgive

me for asking if there is any room for the council to consider further consultations with the Old Street

residents or the elected members on their behalf, to see if any other road design, traffic

management, calming or parking measures or other steps in their own street or other areas could

improve things for them or other Malahide residents or both in a way that might take the edge off

any perceived knock-on effects of the New Street changes. The applicant referred in her submission

to options in Old Street such as widening the footpath, allowing bench seating outside houses,

greening the concrete. All of these sound totally doable and are common practice elsewhere (one

could give Dutch examples but then one can give Dutch examples for most good urban design, if

not design and land use generally and probably lots of other things as well). Admittedly there would

be impacts on the number of car parking spaces – that’s the ever-present reality of trade-offs again,

a perpetual disappointment to the those whose imaginative bandwidth doesn’t stretch beyond

simplistic solutions. Weighing the trade-offs is a matter for those concerned. Even mitigating noise

impacts on Old Street residents from revelry on the pedestrianised New Street shouldn’t be

completely impossible at least to some extent. Some form of planning gain for Old Street might go

a little way towards assuaging some of the by no means wholly unreasonable concerns articulated

by the applicant if the pedestrianisation of New Street does go ahead as proposed.

138. In outline summary, without taking from the more specific terms of this judgment:

(i) Core ground 1 – the applicant is correct that there has been non-compliance with

the statutory requirement for an LAP. This warrants a declaration rather than

certiorari because the lack of a plan does not render the works invalid, doubly so

where they already have plan-based support in the county development plan.

(ii) Core grounds 2 and 8 have been dropped and core ground 4 is merely consequential.

(iii) Core ground 3 – the requirement applying to the chief executive was to summarise

matters and it has not been shown that the summary was so defective as to require

certiorari.

(iv) Core ground 5 – the board did not misinterpret the regulations in holding that this

was a sub-threshold project in terms of area of works and not a supra-threshold

project as alleged.

(v) Core ground 7 – the applicant has not discharged the onus to show that the board’s

assessment of the lack of significant environmental impacts due to cumulative

assessments was flawed, especially given the nature of the submissions actually

made and bearing in mind that the context the Broadmeadow Way project was

subjected to full EIA already.

(vi) Core ground 6 – the regulations are not invalid as they can be read harmoniously

with EU law.

Order

139. For the foregoing reasons, it is ordered that:

(i) there be a declaration that from on or about June 2020 to date and continuing, the

first named respondent failed and is continuing to fail to comply with s. 19(1)(b) of

the Planning and Development Act 2000 by failing to adopt a local area plan for

Malahide;

(ii) the proceedings be otherwise dismissed;

(iii) unless any party applies otherwise by written legal submission within 21 days from

the date of this judgment, the foregoing order be perfected forthwith thereafter on

the basis of an order for costs (including the costs of written submissions and

certifying for two counsel in respect of any applications) being awarded to the

applicant against the first named respondent, limited to the costs that would have

been incurred had the applicant confined her proceedings to the issue on which she

prevailed, and that any issue as to the extent of the costs that would have arisen in

that circumstance be determined, in default of agreement, in the legal costs

adjudication process, with a stay on the execution (as opposed to the adjudication)

of any such costs until the final determination of the proceedings, and no order as

to costs in favour of or against any other party; and

(iv) the matter be listed on Monday 12th May 2025 to confirm the foregoing.