A local residents group has failed to get permission to appeal the High Court’s refusal to overturn permission for a €15 million visitor centre at Dublin’s Hell Fire club.
Although important issues of EU law which arose in the case have yet to be decided by the Court of Justice of the EU (CJEU), they do not impact on the validity of the permission.
As a result, Mr Justice Richard Humphreys’ refusal on Wednesday to permit an appeal over his decision upholding the permission clears the way for the visitor centre.
The issues yet to be decided by the CJEU arise out of the group’s challenge to the legislative scheme in relation to derogation licences. They include whether Irish regulations of 2011 implementing the European Birds and Habitats Directives are invalid by reference to EU law in relation to projects which may be subject to a derogation application after they have secured a planning consent.
The Hellfire Massy Residents Association (HMRA) claims the regulations do not respect the Aarhus Convention providing for public participation in environmental matters because they do not provide for a system of public consultation concerning the grant of a derogation licence.
In proceedings against An Bord Pleanála and the State, HMRA challenged the board’s permission to South Dublin County Council to develop a visitor centre in the Dublin mountains at the Massy’s Wood estate and Montpelier Hill. The site includes the Hell Fire club, a national monument built around 1725.
The project is being developed in co-operation with Coillte and the Dublin Mountains Partnership.
Not assessed
The HMRA claimed the development will function as a visitor’s hub for the Dublin and Wicklow mountains and will alter the type, intensity, mix and balance of visitors to Montpelier Hill, Natura 2000 sites and Massy’s Wood. It claimed this effect had not been assessed and the board failed to consider adequately or at all the impacts on, inter alia, natural habitats, bats and otters.
Earlier this year, Mr Justice Humphreys ruled the group had failed to establish that the granting of permission was invalid.
His reasons included that the HMRA had failed to establish the figures for future visitor numbers were so flawed the board acted unlawfully in taking them into account.
The group subsequently applied for the necessary certificate which would entitle it to appeal the decision the permission was valid.
In a further judgment on Wednesday, the judge ruled the group had not raised a point of law of exceptional public importance entitling it to a certificate.
Insufficiently defined
The points advanced by the group relating to the legal obligations of the board and developer concerning environmental impact assessment were insufficiently defined, he said.
He also said the group’s attempt to secure an appeal on the basis of the court’s referral of issues to the CJEU faced “major problems”, including that the derogation legislation argument had been pleaded against the State and was not advanced as a ground for quashing the board’s permission decision. The group’s argument that this issue “is integral to the permission” does not arise on the facts as pleaded, he said.
For those and other reasons, he refused leave to appeal. The judge directed that the court order refusing to quash the permission should now be perfected. He also made directions relating to finalising the CJEU reference and listed the matter for mention in late November.
