A developer cannot continue to defend a challenge to An Bord Pleanála's permission for construction of 450 housing units in Drogheda after the board accepted its decision was flawed, the High Court has ruled. The board had earlier this year accepted it should not have granted permission to Ravala Ltd in November 2019 for the proposed development at Marsh Road, east of Drogheda Town Centre, of the housing units, offices and a creche.
The planning application was made directly by Ravala to the board under a fast-track process for strategic housing projects which bypasses local authorities.
The permission was challenged by an environmental group, Protect East Meath Ltd, represented by John Kenny BL, instructed by solicitor Fred Logue. The group claimed the board's decision was flawed on grounds including it failed to properly take into account the impact or the proposed development on the Boyne Estuary Special Area of Conservation (SAC) and on various species of birds and bats.
It was claimed an assessment of the impact on the SAC was not done correctly due to a lack of surveys on the local bird population and that board was not entitled to screen out the possibility of significant effects on the SAC.
The challenge was previously admitted to the High Court’s fast-track strategic infrastructure development list. Before it came to trial, the board conceded the case with the effect the developer, if it wished to proceed, would have to make a fresh application for planning permission. It was accepted the board erred by screening out the potential significant effects and impact of the proposed development on the SAC.
Ravala, a notice party, sought to continue to defend the case but Protect Meath East argued it was not entitled to do so.
In a judgment on Friday, Mr Justice Denis McDonald said Ravala was not entitled to continue to defend the action and also made an order quashing the board’s permission. The judge said a relevant notice party is entitled to act as the legitimus contradictor to defend a decision in an action where the decision maker chooses not to defend the proceedings. In this case, no party, including Ravala, had identified to the court any case law where a notice party has defended a decision of a decision maker where the decision maker has consented to an order quashing the decision under challenge.
The board’s concession raised a doubt whether there was no risk from the proposed development to the SPA and the board’s decision was not something “a court could ignore lightly”.
While the board’s concession can not always be determinative of proceedings, a court, in cases where a decision is conceded on the basis of the adequacy of screening, will be slow to look behind a concession unless the notice party can clearly show a proposed development poses no risk to a protected site, he said In this case, Ravala had failed to demonstrate to the court the necessary objective material is available and had not persuaded the court it should be allowed to defend the proceedings.
