In October 2023 in Hellfire Massy Residents Association v. An Bord Pleanála (No.5)  IEHC 591 (the 8th decision in this case), the High Court considered the CJEU decision of 6 July 2023 on derogation licences and the Habitats Directive. That decision says that where a derogation licence is necessary, it must be obtained in advance of a grant of planning permission. Mr Justice Humphreys refused to grant declaratory relief in this case having ultimately found that such a licence was not required on the facts, but the CJEU decision is relevant for other projects.
This case consisted of a challenge to a permission granted by An Bord Pleanála to South Dublin County Council (the Council). The permission was for a visitor centre at Montpelier Hill in County Dublin and associated facilities including a tree canopy walk/pedestrian bridge. The applicants in particular challenged the validity of the Irish legislation regarding strictly protected species, implemented to give effect to the Habitats Directive 92/43/EEC and the Birds Directive 2009/147/EC.
The applicants were concerned with the loss of dreys (otherwise known as squirrel nests) and the grant of derogation licences (i.e. licences to disturb or interfere with a protected plant or animal species) only after planning permission is granted. The European Communities (Birds and Natural Habitats) Regulations 2011 (the 2011 Regulations) provide that the Minister can grant a derogation licence in certain circumstances where an activity or a development would disturb protected wildlife species. The applicants argued that reliance on ex-post grant derogation licences is incompatible with the requirements of strict protection for the purposes of the Habitats Directive. In particular, they claimed that Articles 51 and 54 of the 2011 Regulations did not create a system that prevented the Council from going ahead with the proposed project that would disturb protected species or cause damage or deterioration to breeding sites, foraging or resting places.
The applicants claimed that Irish legislation left it entirely up to the Council to decide, once they have obtained permission, whether they should also apply for a derogation licence before they can proceed. The Applicants also claimed that there is no system for public consultation in the derogation licence process.
In 2021, Humphreys J referred four questions to the CJEU, including whether the 2011 Regulations, to the extent they allow for a developer to obtain a derogation licence after the grant of planning permission, are consistent with the Habitats Directive. The CJEU found that the 2011 Regulations were not contrary to the Habitats Directive on the ground that national legislation provides for a development consent procedure that allows for a post-consent derogation procedure, and where there’s no public participation. The Court went on to hold however, that a derogation licence (if necessary) must be obtained before the development consent is given. To do otherwise would be contrary to the requirements of the Habitats Directive:
36. It follows from that case-law that, in the specific case where, first, the execution of a project that [requires development consent and a derogation licence] and where, second, a Member State confers power to grant such a derogation on an authority other than the one on which it confers power to give development consent for the project, that potential derogation must necessarily be adopted before development consent is given. If it were otherwise, that development consent would be given on an incomplete basis and would not, therefore, meet the applicable requirements.
The Court, however, did not comment on a situation where it is not clear whether a derogation licence will be required at the time development consent is sought.
Not applicable on the facts
In the High Court, the applicant sought a declaration reflecting this paragraph 36 of the CJEU judgment to the effect that where a derogation licence is necessary, it must be obtained in advance of development consent being granted. The Court, however, refused the declaration sought on a number of grounds. These grounds included that the complaint had not been previously pleaded and that the situation did not arise in this case, as the Council had not applied for a derogation licence and indeed such a derogation licence was not ultimately required. The potential derogation licence was envisaged to allow destruction of a drey. But as clarified at the oral hearing in 2018, there was no destruction of drey envisaged and the project had been redesigned to avoid that. The Court also stated that the judgment of the CJEU speaks for itself and a declaration by the Court repeating that to apply it (especially to hypothetical facts) “doesn’t add anything here – one could conceive of situations where that might be appropriate but this certainly isn’t one of them” (para 41).
Humphreys J found there was no basis for costs to the applicant given that the proceedings had wholly failed, especially in a context where the applicant has enjoyed complete costs protection against an adverse order for such proceedings that had failed at every stage.
Significantly the Judge commented that, “Planning law is already one-sided enough, and the court needs to strive not to make it even more so… In the absence of exceptional circumstances, bankrolling an applicant’s beaten docket would imbalance things even further” (para 45).