
68 April 2023 April 2023 PB
Dealing with planning matters
in a specialised planning list is
better – and cheaper
The case itself:
Having built a bridge in 2010 too low to carry the N59
over Connemara’s Polladirk River near Kylemore, the
accumulation of gravel and sediment around the
bridge and its culvert led to repeated flooding, with
one resident reportedly trapped on her car roof. The
Council sent in diggers in August 2022 to remove the
sediment and material but there was significant
pollution of the river arising from the works, one of
eight specially selected to preserve the freshwater
pearl mussel, a critically endangered species.
However, calling the works ”emergency” and
undertaking them under the 1949 Local Government
(Works) Act rather than using the Council’s powers under
the Planning Act 2000, prevented FIE appealing the local
authority’s failure to do the required assessment under
European legislation to An Bord Pleanála. It was under this
same 1949 legislation that Roscommon County Council
tried to drain Lough Funshinagh, leading to a successful
challenge in the High Court by FIE in 2022.
By Tony Lowes
ENVIRONMENT
J
udge Richard Humphreys
minced no words when
giving judgment on
17 February 2023,
overruling Galway County
Council’s attempt to stop a Judicial
Review by Friends of the Irish
Environment (FIE) of the Council’s
activities being transferred from the
High Court to the Commercial
Planning and Strategic
Infrastructure Development List (the
Commercial List).
Pointing out that ”there is a
general unwritten practice that
public law entities don’t stoop to
such tawdry practices as forum-
shopping, objecting to transfer of
cases to specialised lists,
demanding recusal of judges and so
on”, Judge Humphreys said that
branches of Government ”are
expected to fatalistically accept whatever judge
they come before, thus contributing something
intangible but real by way of upholding mutual
respect as between the judicial and other
branches of government. Galway County
Council doesn’t seem to have got that memo”.
Costs are lower if a case goes to the
Commercial List as it is tightly managed with
agreed directions minimising adjournments;
there is, further, a limit of three days for
hearings. Repetitive and prolix pleas can lead to
adverse costs outcomes. As the Judge pointed
out, further cost reductions are gained as “the
benefit of having the matter dealt with in a
specialised list avoids any possible requirement
for a judge assigned to a more general area to
have to read into the particular topic concerned,
especially a field as technical as planning”.
”To argue, as the council says here, that there
is enough expertise in the general judicial
review list, is to come close to almost
nihilistically denying the whole purpose of a
specialised list in the first place. That is not a
proposition that stands up to a whole lot of
scrutiny”.
The Council argued that the cost of the works
- €85,000 – did not meet the threshold for
admitting the case to a list normally confined to
multi-million projects. But Judge Humphreys
pointed out that “provision of public
infrastructure, such as the construction or
maintenance of roads, is inherently commercial
in the sense that it facilitates all human activities
requiring such infrastructure, including
commerce generally”. And of course, he
remarked, ”this isn’t just a local road – it’s a
national secondary road, the N59 (apparently
the longest numbered road in Ireland, according
to public domain material)”.
“Further, the grounds of challenge in this case
are such that they could aect similar public
works generally, which would cumulatively
amount to significant commercial sums”.
Addressing the Council’s suggestion that to
admit this case would in eect ”open the
floodgates” to a raft of other cases, the judge
said that: “As is almost always the case with
floodgates arguments, this point is overblown.
Certainly it does not mean that cases about
modifications to domestic dwellings, for
example, must be regarded as being of a
commercial character. The present judgment
merely applies the existing criteria. Any
extension of the List to planning generally would
undoubtedly require further resources, and
amendment to existing Practice Directions”.
The significance of this judgment extends far
beyond a bridge in Connemara; it lays out how
specialised Courts, like the proposed
Environmental Court, can actually enable justice
to be more eciently administered.
But the fundamental problem highlighted by
Justice Humphreys himself at the Parnell
Summer School in 2017 still remains. ”Ireland”,
he told his audience, was ”firmly in the bottom
layer of the international league table and rock
bottom of the European league table” for judges
per head of population. The ”single biggest
thing” the legislature could do to improve the
quality of justice in Ireland was to appoint more
Judges.
“The real losers from the lack of an adequate
number of judges are parties to litigation, and
in that regard the State is the biggest loser of all
from inadequate numbers of judges“, he said.
Tony Lowes is a Director of Friends of the Irish
Environment
Kylemore bridge works