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Murphy v. Wicklow County Council [1999] IEHC 57 (13th December, 1999)
THE
HIGH COURT
99/12512p
BETWEEN
DERMOT
MURPHY
PLAINTIFF
AND
THE
COUNTY COUNCIL OF THE COUNTY OF WICKLOW AND THE MINISTER FOR THE ARTS HERITAGE
GAELTACHT AND THE ISLANDS AND THE MINISTER FOR THE ENVIRONMENT
DEFENDANTS
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
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