Murphy v. Wicklow County Council [1999] IEHC 57 (13th December, 1999)

JUDGMENT of O’Sullivan J., delivered on the 13th day of December 1999 1. The Plaintiff says that the Glen o’the Downs road scheme is in breach of Article 30 of the European Communities (Natural Habitats) Regulations, 1997 (S. I. 94 of 1997) which oblige the Minister to ensure that an appropriate assessment of the implications for the site in view of its inclusion in August 1999 as a candidate site of community importance and/or as a special area of conservation. 2. The Defendant says that this assessment is pointless because it has already been done under the procedures under the Wildlife Act 1976 . The Defendant relies on McBride -v- Galway Corporation (1998:1:I. R.:485, at page 534) where Keane J., states:- “However, there is no doubt that in every material and significant respect the Respondent complied with the requirements of those regulations. It is true that strictly speaking the application to the Minister for the Marine should have been accompanied by the E. I. S., but since it was furnished to him and considered by him before he granted the lease, that is of no practical significance. I am satisfied that in the circumstances it would not be a proper exercise of the court’s discretion to grant the Order of Certiorari or the other declaratory and injunctive reliefs also of a discretionary nature sought in these proceedings. It might be otherwise if non compliance in the fullest sense with the foreshore regulations had as a consequence a breach of any principle of European Union Law. That law in this context is enshrined in the Environment Directive and, as I have already found, the Respondent was not in breach of any of its requirements. There is another consideration pointing to the refusal of the relief sought insofar as it is grounded on a technical failure to comply with the foreshore regulations. The preparation of a further E. I. S., the notification of the public and of interested parties etc. would not merely be a redundant exercise since these procedures have already been gone through: it would also delay further the provision of a comprehensive system of drainage for Galway City and its environment, with the resultant continuing pollution of the Galway Bay area. That can hardly be regarded as upholding the primary objective of the Environment Directive of preventing “the creation of pollution or nuisance at source, rather than subsequently trying to counteract their effects”.” 3. In the present case, however, the test under the Habitats Directives is different in the sense that it is more stringent than that under the Wild Life Act 1976. In this regard I refer to Article 30(5) of the Regulations referred to which states:- “The Minister for the Environment may, notwithstanding a negative assessment and where the Minister is satisfied that there is no alternative solutions, decide to agree to the proposed road development where the proposed road development has to be carried out for imperative reasons of overriding public interest.” Prima facie it seems to me that it is possible that a scheme might pass the test under the Wild Life Code but fail that under the Habitat Directive and, if this is correct, then the present case is different from the case considered by the Supreme Court in McBride -v- Galway Corporation . 4. Counsel disagree whether or not Article 30 applies and, if not, whether the 1997 Regulations properly implement the E. U. Directive and if not whether the Directive has direct effect. In my view the Plaintiff has established a serious question to be tried at the hearing of this action. 5. The First named Defendant says that the case may take months to be finally determined and that they are at a loss of approximately £15,000.00 per week and that the Plaintiff cannot meet this loss on any undertaking which he might give as to damages. On the other hand the Plaintiff says that unless an injunction is granted prohibiting the works until final determination of the action, the substratum of the Plaintiff’s case will be destroyed and annihilated thereby depriving the Plaintiff of any effective court remedy. He submits that a poor man should not be shut out from the court where a rich man might succeed. In my view, given the capacity of the court in a suitable case to make arrangements for an early trial the balance of convenience favours the Plaintiff. 6. There remains, however, the issue of delay. On last Friday, the Supreme Court dealt with an appeal from an Order made by Geoghegan J., refusing the Plaintiff in these proceedings liberty to bring Judicial Review proceedings against the same Defendants which sought, inter alia , declaratory reliefs and a prohibitory injunction. In delivering the ruling of the court the Chief Justice in that case said, inter alia ,:- “It was open to the Applicant to initiate proceedings by way of Plenary Summons to be followed by a Statement of Claim and if he had done so it would not be necessary to avail of the present relief by way of Judicial Review. Having done so the application is subject to the rules of the Superior Courts and in particular Order 84 Rules 20(4) and 18(2). In order to seek Judicial Review the Applicant must satisfy the court that he has sufficient interest in the application and secondly that the application is made promptly and thirdly that the application for relief in all the circumstances is just and convenient. ... Counsel for the Applicant has submitted that the effective date for the making of an appropriate application for Judicial Review is the date of the breach of the regulation, not the putting in place (of the special status of the site), but the court cannot accept this because the entry on lands was always anticipated and the present application deals with a “recommencement” of earlier works which were carried out on the relevant lands by the local authority. The effective date, therefore, on which the promptness of the application is to be judged is the 12th August 1999, and it appears that this application was not made promptly. In addition, no affidavit of the Applicant has been filed seeking to explain the grounds of the delay and the court must rely on evidence rather than on submissions. ...there is no application for Certiorari and the application has not been, therefore, made as promptly as it might have been. ...bringing an application for Judicial Review is at the discretion of the court whether or not the relief should be granted. And this is well established in previous decisions and the court, in this case, takes into account all of the circumstances including the previous Judicial Review outing on numerous grounds and the fact that it is not shown in any evidence that the Applicant...(explained)...why the application was not made promptly, and there is no evidence to justify that there is an appropriate reason to extend the time for the making of the application for Judicial Review.” 7. It seems to me unreal to suggest that the discretion which I am exercising on this application is substantially different from that exercised by the Supreme Court in the determination to which I have just referred. I note in particular that the submission in relation to when the delay period commences to “run against” the Plaintiff was specifically considered by the Supreme Court. Accordingly and for the same reasons as set out in the judgment of the Supreme Court I must refuse the Plaintiff’s application. In doing this I am also bearing in mind the decision of Costelloe J., (as he then was) in O’Donnell -v- Dun Laoghaire Corporation (1991:I. L. R. M.:301 at page 304). Accordingly I will discharge the interim injunction and reserve the costs of this application. lgglen2 © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII