Supreme Court to hear ‘leapfrog’ appeal over flood relief measures in Cork

Last year the High Court found that the Save Cork City Community Association had not made out grounds for an order quashing the permission granted to Cork City Council for the works
Supreme Court to hear ‘leapfrog’ appeal over flood relief measures in Cork

High Court reporters

The Supreme Court has agreed to hear a “leapfrog” appeal by a Cork city community association against the High Court's refusal to overturn planning permission for certain flood relief works in the city.

Last year Mr Justice Richard Humphreys found that the Save Cork City Community Association CLG (SCCCA) had not made out grounds for an order quashing the permission granted to Cork City Council for the works.

He also ruled that the group was not entitled to a stay on the works.

In his judgment the judge found that the group was entitled to a declaration that the council did not comply with public participation obligations under the planning acts to ensure members of the public could inspect or purchase a Natura Impact Statement concerning the works.

The group applied to the Supreme Court for a direct or "leapfrog" hearing of its appeal against the High Court's decision.

It also claimed the case raises an important issue concerning Environmental Impact Assessment (EIA) screening.

In a determination, a Supreme Court panel comprised of Ms Justice Elizabeth Dunne, Mr Justice Seamus Woulfe and Mr Justice Gerard Hogan said the exceptional circumstances of public importance exist in this case which required the appeal to be determined by the Supreme Court.

Flood defence works

In its action, the group challenged the An Bord Pleanala decision of June 17th, 2020 providing permission for remedial works to the existing quay walls in Cork city, and construction of improvement works and flood defence works between Parliament Bridge and Parnell Bridge along Morrison’s Quay and Fr Matthew Quay, and a short section along Union Quay close to Trinity footbridge at Morrison’s Island.

The group alleges the permission involved impermissible “project splitting”, within the meaning of the Environmental Impact Assessment (EIA) Directive, of the Lower Lee Flood Relief Scheme (LLFRS), the overall flood relief scheme for the city.

The concern was that part of a project for the purposes of the Directive may now be given consent without the project as a whole being made subject to an EIA.

The case was taken against the Board, the Minister for Housing, Local Government and Heritage, and the State.

In its decision granting a leapfrog appeal, the Supreme Court accepted that the group had raised a point of general, public importance that requires to be determined by it.

The issue raised relates to whether the power to conduct an EIA screening can be implied in the relevant section of the 2000 Planning and Development Act, particularly where it is said that there is no provision for such a procedure when an EIA report is required.

The group argues that the High Court decision has profound implications for legal certainty in local authority development, not least because the relevant law does not specify what should happen if Environmental Impact Assessment is required.

The Supreme Court said it would not hear argument in relation to a second point raised by the group, whether the High Court applied an incorrect test of “practical interpretation” to the concept of project splitting under the EIA Directive.

That point had been dealt with in another case ruled on by the Supreme Court, the ​three-judge panel determined.

The Supreme Court will fix a date for the hearing of the appeal at a later stage.

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