Residents who lost a legal challenge to An Bord Pleanála’s grant of approval for a 14km M28 motorway between Cork and Ringaskiddy were today told they cannot bring an appeal.
In the High Court, Mr Justice Michael MacGrath refused the umbrella group representing local residents — the M28 Steering Group — leave to appeal to the Court of Appeal.
The judge ruled that he was not satisfied that the M28 Steering Group had raised points of law of exceptional public importance. They had sought leave to appeal under Section 50 of the Planning and Development Act which allows an appeal if the case involves points of law of exceptional public importance and it is in the public interest an appeal is taken.
The High Court last December dismissed the challenge to An Bord Pleanála’s June 2018 decision to grant approval for the 14km-long M28 motorway.
Today, Mr Justice MacGrath also concluded that he was not satisfied it has been established that the court ought to refer suggested questions to the Court of Justice of the European Union (CJEU). The questions as framed, he said, are based on the continuing maintenance by the M28 Steering Group that the project under consideration is the road scheme and the quarry. The court, he said, had found the project is the road scheme, and in the circumstances, to accede to the request for a reference to Europe would involve requesting the CJEU to consider an issue which the High Court has concluded is not necessary for the determination of the issues in the case.
Mr Justice MacGrath was also not satisfied that it was desirable in the public interest that a certificate allowing a leave to appeal should be issued. Last December, the High Court said it was not convinced that the motorway project was not properly assessed by An Bord Pleanála before it made its decision.
Mr Justice MacGrath said on that occasion that the M28 Steering Group had failed in what was a difficult case to discharge the onus of proof required that would allow the court grant the reliefs it seeks, and must, therefore, dismiss the case.
The group had claimed that the board’s decision was flawed on grounds including that the application for permission to construct the road was premature, incomplete, and did not meet the requirements of both domestic and European law.
It also argued that there was a failure by the board to consider the whole project, or the cumulative effects of the proposed development.
They claimed that material to be used as part of the construction of the new road is to be extracted from a disused quarry, known as Raffeen Quarry, located along the route.
The group claimed that the quarry is important ecologically and is home to an array of protected flora and fauna. No proper assessment of the proposed roadworks on the quarry has been carried out, the group claimed.
The action was opposed by the board. It said that the project had been properly assessed before the decision to grant planning permission was granted.
Cork County Council, a notice party to the action, submitted to the court that an appropriate assessment in respect of the proposed project had been carried out.