BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Byrne v Fingal County Council & Ors (Approved) [2025] IEHC 204 (11 April 2025)
URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC204.html
Cite as: [2025] IEHC 204

[New search] [Printable PDF version] [Help]


[2025] IEHC 204

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000342]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

NICOLA BYRNE

APPLICANT

AND

FINGAL COUNTY COUNCIL, AN BORD PLEANÁLA AND THE MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Humphreys J. delivered on Friday the 11th day of April 2025

1.            Never let a good crisis go to waste is a concept frequently, albeit probably inaccurately, attributed to Winston Churchill.  In that spirit, Fingal County Council's response to the Covid emergency included the temporary pedestrianisation of New Street in the centre of Malahide village.  Following that experiment, it was decided to make the pedestrianisation permanent.  The applicant, who brought an unsuccessful application for an injunction against the temporary pedestrianisation, replies in an equally Churchillian spirit of shrugging off that defeat and fighting the council, if not quite on the beaches of Malahide, at least on its pedestrianised roadways.   

Judgment history

2.            In Byrne v. Fingal County Council [2021 509 JR], the applicant challenged the exercise of powers by the chief executive of the council pursuant to s. 38 of the Road Traffic Act 1994 (the 1994 Act) and s. 95 of the Road Traffic Act 1961 (the 1961 Act) to make alterations to the traffic management arrangements on New Street, Malahide whereby New Street was pedestrianised from June 2021.

3.            The applicant sought interlocutory relief in July 2021 in respect of the pedestrianisation of New Street.  By order of the High Court (Meenan J.) of 11th August 2021, the application for interlocutory relief was refused in an ex tempore ruling delivered on 11th August 2021, with no order as to costs directed at a later stage.

4.            Those proceedings were subsequently adjourned to await the outcome of the present proceedings.

Geographical context

5.            The issue centres on pedestrianisation of New Street in Malahide which is not especially long (c. 150 m in length) and is one of the central streets of Malahide village.  A picture (not up to date) of the pedestrianised state of the street as of June 2020 is at https://maps.app.goo.gl/JZNYZrTXUbfuYhsPA.  I might say that for reasons which I will come to, the jaunty state of pedestrian bliss in that picture wasn't particularly replicated when I visited the locus in quo.

6.            To the west of the development lies Old Street, and one of the applicant's main concerns is the increase in traffic there caused by the closure to traffic of New Street.

7.            The proposed greenway has a link to Malahide village which ends with a proposed bike parking area around Strand Court, near the top of Old Street.  Old Street is a one-way system with traffic running northwards towards Strand Court, so the applicant suggests that if cyclists keep going eastwards on Strand Court/ Strand Street they will meet more traffic at the junction of Old Street than they would if New Street remained open to traffic as it was pre-2020. 

Facts

8.            The Broadmeadow Way between Malahide Demesne and Newbridge Demesne (a walking and cycleway) was approved on 19th May 2020 (https://www.pleanala.ie/en-ie/case/304624).  The environmental impact assessment report (EIAR) describes the peak movement in both directions as being in the order of 3,500 users per day.  That doesn't necessarily translate into quite that many cyclists coming into Malahide village let alone into the intersection between the greenway, Strand Court and Old Street, which is not the sole outlet into Malahide village.

9.            New Street was pedestrianised from around June to December 2020.

10.         It then seems to have reopened to traffic for a brief period and was made a one-way street between December 2020 and June 2021.

11.         It was then re-pedestrianised from 4th June 2021 and at that time Fingal County Council (the council) committed to the permanent pedestrianisation of New Street and that plans to give effect to that would be subject to a statutory process.

12.         The decision to implement the June 2021 pedestrianisation was given effect by chief executive's order of 4th June 2021 in exercise of the powers conferred on the council by s. 38 of the 1994 Act and s. 95 of the 1961 Act.

13.         The proposed public realm works are to occur on New Street, c. 150 m in length with an area of 0.22 ha, and would comprise the following:

                    (i)        widening of footpaths and provision of new kerb edges with existing kerbstones retained, realigned and protected within the widened footpaths and public spaces;

                   (ii)        realignment and narrowing of the trafficable section of New Street and insertion of control measures and all necessary signage to provide for a pedestrianised street with associated traffic flow routes and restrictions allowing for time limited one-way access from 07:00 to 11:00 each day for deliveries and emergency vehicles from Main Street/ The Mall to New Street and a two-way access from Strand Street to Ross's Terrace via New Street;

                 (iii)        upgrade of all street surfaces; 

                 (iv)        provision of two loading bays at the southern and northern ends of New Street and an accessible parking space in front of the HSE building;

                  (v)        installation of cycle stands at six locations on New Street with capacity for 23 cycle parking spaces;

                 (vi)        removal and replacement of 11 existing trees with 37 trees of species appropriate to the location and environment and provision of soft landscaping and green infrastructure with planting zones for seeded, planted and hedging areas and associated bioretention and tree pit areas;

                (vii)        provision of outdoor dining zones including tables and chairs and other ancillary moveable structures;

               (viii)        provision of street furniture including seating, benches and litter and recycling bins and a water feature;

                 (ix)        new public lighting;

                  (x)        upgrade of the watermain and foul drainage networks and upgrade and relocation of the surface water drainage network including provision of sustainable urban drainage systems (SUDs) features as part of hard and soft landscaping;

                 (xi)        provision of ducting for existing and future utilities and piped infrastructure; and

                (xii)        all associated site and development works.

14.         The council gave notice of the proposed public realm works on or about 19th April 2023 pursuant to s. 179 of the Planning and Development Act 2000 (the 2000 Act).  Prior to the publication of the notice, the council:

                    (i)        carried out a screening for environmental impact assessment, and determined on 5th April 2023 that the proposed public realm works by themselves, or in combination with other projects, are not likely to have a significant effect on the environment and accordingly that environmental impact assessment (EIA) is not required; and

                   (ii)        carried out a screening for appropriate assessment (AA) and determined on 5th April 2023 that the proposed public realm works individually, or in combination with other plans or projects, will not have a significant effect on any European sites, in view of the sites' conservation objectives, and that the proposed public realm works do not require a Stage 2 AA.

15.         A statutory consultation process in respect of the public realm works was carried out between 19th April 2023 and 2nd June 2023, during which the applicant made a submission.

16.         On 9th May 2023, the Malahide Old Village Residents' Association (MOVRA) made an application to the board for an EIA screening determination pursuant to art. 120(3)(b) of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) (the 2001 regulations).  Requests were also made by Ms Claire Jepson and Mr Noel Mahon (collectively the art. 120(3)(b) requests).

17.         A submission was made to the board by the council in respect of the EIA screening determination on 5th July 2023, which comprised a submission from the council dated 5th July 2023 and a response prepared by BMA Planning dated 4th July 2023.

18.         The board appointed an inspector to report on the proposed development.  The inspector inspected the site on 2nd August 2023, and prepared a report dated 28th August 2023.

19.         The board considered the inspector's report and the art. 120(3)(b) requests at a meeting on 7th November 2023, and decided not to direct the council to prepare an EIAR in respect of the proposed public realm works.  The board direction is dated 7th November 2023.

20.         The board order which contains the decision not to direct the council to prepare an EIAR is dated 17th November 2023.

21.         The board notified the council of its decision and the council's chief executive prepared his report prior to 16th January 2024.

22.         The chief executive prepared a report in respect of proposed public realm works in accordance with s. 179(3) of the 2000 Act in which she recommended that the council proceed with the development as proposed.

23.         On 16th January 2024, a meeting of the elected members of the council was held at which the elected members considered the report of the chief executive officer in accordance with s. 179(4) of the 2000 Act.  At that meeting, four motions relating to the chief executive's report were considered by the elected members.  Two of those motions were defeated by a vote of the elected members and two were withdrawn.  In addition, the elected members held a vote on the recommendation contained in the chief executive's report to proceed with the proposed public realm works and that vote was passed with 22 votes in favour, 9 votes against and 5 abstentions. 

24.         The elected members did not pass a resolution pursuant to s. 179(4) of the 2000 Act to either vary or modify the development nor did they decide not to proceed with the development and, consequently, Fingal was permitted to proceed with the development in accordance with s. 179(4)(b) of the 2000 Act.  The legal act is therefore that of the chief executive - the members' vote is essentially a negative one of deciding not to get involved to veto that.  The scheme does not require their approval as such.

25.         On 30th January 2024, Fingal issued a notice pursuant to art. 84 of the 2001 regulations, notifying relevant parties of its intention to proceed with the proposed public realm works.

Procedural history

26.         Proceedings were issued on 8th March 2024, and the statement of grounds and grounding affidavit of the applicant were filed.

27.         On 11th March 2024, the proceedings first appeared in the Planning & Environment List on an ex parte basis.  I granted leave to the applicant to apply for judicial review, and the time for bringing the application was extended without prejudice to any point the respondents might raise.

28.         On 14th March 2024, the notice of motion (returnable to 15th April 2024) was filed.

29.         On 15th April 2024, the case was listed for mention and directions were agreed.

30.         On 22nd April 2024, the case was listed for further mention.

31.         On 13th June 2024, the statement of opposition of the first named respondent accompanied by affidavit of Mr David Storey on behalf of Fingal County Council was sworn and filed.

32.         On 24th June 2024, the case was listed for mention and a hearing date was assigned.  The 2021 proceedings referenced above were adjourned for mention to 28th April 2025 (i.e. after the hearing of the present proceedings).

33.         On 27th June 2024, the statement of opposition of the third, fourth and fifth named respondents (the State respondents) and affidavit of Mr Declan Grehan on behalf of the State respondents were filed (sworn on 26th June 2024).

34.         On 25th October 2024, the statement of opposition of the board and affidavit of Mr Pearse Dillon were filed (sworn on 24th October 2024).

35.         On 18th November 2024, the case was listed for mention and a revised directions timetable was agreed.

36.         On 4th December 2024, the replying affidavit of the applicant was delivered.

37.         On 1st January 2025, the written legal submissions of the applicant were delivered (note these are dated 23rd December 2024).

38.         On 6th February 2025, the written legal submissions of the first named respondent were delivered.

39.         On 20th March 2025, the written legal submissions of the second named respondent were delivered.

40.         On 24th March 2025, the case was listed for mention for the callover before the hearing.

41.         On 26th March 2025, the written legal submissions of the State respondents were delivered.

42.         The matter was heard on 1st and 2nd April 2025, when judgment was reserved. 

43.         The parties had no objection to my having a site visit to get a sense of the interaction of the various streets, which I did during a lunchtime shortly after the hearing.  I certainly got a flavour of the applicant's concerns.  I can record the following but parties can take it that I amn't assuming that any of these observations are necessarily representative.

44.         Old Street is fairly narrow as the applicant said in her submission quoted below, does not by any means run in a straight line, as she also said.  It is not exactly set up to be a major thoroughfare.  There was a modest but steady stream of traffic and almost no parking spots to be had.  The fact that pretty much all parking on both sides of the road was occupied left not a whole lot of room for traffic.  That said, the "convergence" point where it emerges onto the Strand isn't exactly a huge pinch point - the junction is quite wide at that location.  There is a major pinch point a few dozen metres to the west of that (there are only about 5 doorways between the two points) where Bissett's Strand comes through a 2.20 m arch under the railway - that is a two-way street but the archway is only wide enough for one lane.  Broadmeadow Way will disgorge any of its users that wish to exit into this part of the village somewhere between that point and the top of Old Street.  I did see only one lone cyclist using the Strand during a 10-15 minute walk along it so one might think that there is a possibility of a noticeable increase when Broadmeadow Way goes live.  Again however that may not be representative.

45.         The current state of the pedestrianised New Street is rather half-hearted as pedestrianisations go.  The road/footpath construction and layout is that of an active roadway, with no real physical barriers to vehicles coming in or out.  There are no entry signs at the Strand side, although vehicles can exit at either end.  A sign at the southern end says that the street is a "Pedestrian Zone except for deliveries" from "06:00 - 11:00".  My visit was outside those hours and there were both commercial and non-commercial vehicles driving on the street, as well as both types of vehicle parked.  That doesn't immediately suggest a particularly effective degree of enforcement of the pedestrianisation. 

Relief sought

46.         The reliefs sought in the statement of grounds are as follows:

"1.        An Order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986 as amended and Section 50 of the Planning and Development Act 2000 as amended quashing the decision of the Council of 16 January 2024 to carry out a Proposed Development consisting of the pedestrianisation of New Street, Malahide, County Dublin.

2.         An Order of certiorari pursuant to Order 84 of the Rules of the Superior Courts 1986 as amended and Section 50 of the Planning and Development Act 2000 as amended quashing the decision of the Board of 17 November 2023 to the effect that an EIA was not required in respect of the proposal of Fingal County Council to carry out a Proposed Development consisting of the pedestrianisation of New Street, Malahide, County Dublin.

3.         Such declaration(s) of the legal rights and/or legal position of the applicant and (if and insofar as legally permissible and appropriate) persons similarly situated and/or of the legal duties and/or legal position of the Respondents as the court considers appropriate.

4.         A Declaration that R120 of the Planning and Development Regulations 2001 as amended infringes A2(1) and A4(3) of the EIA Directive, and should be set aside or declared invalid.

5.         A Declaration that, insofar as Irish law does not require that discharges by the Council to a water body must be subject to authorisation or binding rules, it is contrary to A11 of the Water Framework Directive.

6.         A Declaratory Order pursuant to Section 7 of the Environment (Miscellaneous Provisions) Act 2011 as amended, Order 99 of the Rules of the Superior Courts as amended, the inherent jurisdiction of the Court, Article 47 of the Charter on Fundamental Rights of the European Union, Articles 4(3) and 19(1) of the Treaty on European Union, and/ or Article 9 of the Convention on Access to Information, Public Participation In Decision-Making and Access to Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998 (the Aarhus Convention), confirming that Section 50B of the Planning and Development Act 2000 as amended and/ or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 apply to the Grounds set out at Part E hereof.

7.         Discovery.

8.         Such further or other Order as the Court considers appropriate.

9.         Costs."

47.         It can be noted that the primary relief is incorrectly phrased because the entitlement of Fingal to proceed with the proposed public realm works arose, as a matter of law, by virtue of the absence of any resolution made by the elected members pursuant to s. 179(4) of the 2000 Act rather than a "decision of the Council of 16 January 2024".

Grounds of challenge

48.         The core grounds of challenge are as follows:

"1.        The Council Decision is invalid because there is no LAP for Malahide.

2.         The Council Decision is invalid because the Council failed to have regard to relevant ministerial Guidelines contrary to S28 PDA, namely guidelines for the content of LAPs.

3.         The Council erred in law in failing to address, in its Chief Executive's Report, the submission made to it in relation to cumulative effects of the Proposed Development as a matter of Irish law for the following reasons:

3.1.      First, it was a major issue that was raised, and S179(4) requires the Chief Executive to summarise the issues raised and his response, to evaluate whether or not the Proposed Development is in accordance with the proper planning and sustainable development of the area, and give the reasons and considerations for the evaluation, and he did not do so

3.2.      Second, the Chief Executive erred in law because he failed to consider issues relating to the proper planning and sustainable development of the area, namely what the combined effects of the Proposed Development would be, when added to the effects of prior public realm developments for the Malahide area.

3.3.      Third, the Chief Executive erred in law in failing to consider whether the Proposed Development would impede it in fulfilling its duty under S15 PDA to take such steps within its powers as may be necessary for securing the objectives of the development plan, by foreclosing the achievement of a plan objective to provide a greenway network (§6.5.6.2, Table 6.1 and Objective CMP8).

4.         The Council Decision is invalid because it is based on a decision of the Board which is itself invalid for the reasons set out below.

5.         The Board Decision is invalid because the Board misdirected itself in law as to the threshold at which an EIA for an urban development project is mandatory pursuant to S175 and S176 PDA, R93 PDR and Schedule 5 Part 2 Class 10 PDR.

6.         R120 PDR is required to be read in accordance with A2(1) and A4(3) of the EIA Directive so that screening of a proposed development to determine whether it exceeds the threshold at which EIA is required is required to screen the entirety of the project, not just the Proposed Development itself.  If and insofar as it may only require screening of the Proposed Development to the exclusion of the project as a whole, R120 PDR is ultra vires the Minister because it infringes A2(1) and A4(3) of the EIA Directive, and should be set aside or declared invalid.

7.         The Board erred in law in failing to consider cumulative effects on public health, namely by way of risks associated with traffic hazard, arising from the Proposed Development in conjunction with the development of a carpark at the Bridge Field, refurbishment of the Green, and the Broadmeadow Greenway.

8.         The Council Decision and / or the Board Decision are unlawful because they authorise a discharge to water which has not been the subject of an EIA or screening for EIA that determines whether the Proposed Development will comply with the obligations imposed by A4 and A11 of the Water Framework Directive, and the screening therefore does not comply with R120 PDR read in accordance with A2(1), A3(1) and A4(2) and (3) of the EIA Directive."

49.         Core ground 8 has been withdrawn.  Core ground 4 is non-substantive and is parasitic on the challenge to the board decision.  There was some faint complaint on the opposing side about the lack of particulars of the ground but this was totally misconceived because there is nothing to particularise - the ground is merely a statement of intention to rely on the challenge to the board decision.  Core ground 2 was dropped in the statement of case.

Domestic law issues

Core ground 1 - alleged invalidity of the decision in the absence of a LAP

50.         Core ground 1 is:

"1.        The Council Decision is invalid because there is no LAP for Malahide."

51.         The parties' positions as recorded in the statement of case are summarised as follows:

"Core Ground 1 - The Council Decision is invalid because there is no LAP for Malahide.

Applicant Position

It is a mandatory requirement of S18 PDA that a town as big as Malahide must have a local area plan (LAP).  Malahide does not.  The framework document for planning in the town therefore does not exist, and any decision of the Council in relation to the town lacks a statutorily required basis and is therefore invalid.  (Impossibility of having regard to an LAP does not eliminate the obligation to do so; and the consequence of failing to have regard is, as always, that the decision is invalid.)  (The Applicant also seeks a declaration in this respect.)

Council Position

The Statement of Grounds contains no explanation as to the basis upon which the Council is precluded from progressing public realm improvements by reason of the absence of an LAP for a particular area.  That is a failure to properly plead the case as required by Order 84, Rule 20(3) RSC.

There is nothing in either section 179 of the 2000 Act nor Part 8 of the 2001 Regulations which require an LAP to be in place prior to Fingal being entitled to proceed with development within its functional area.

In any event, no breach of section 19 PDA arises.

The operative Development Plan for the functional area of Fingal is the Fingal County Council Development Plan 2023 - 2029 ('the Development Plan').  The preparation of LAPs for individual areas is addressed by Objective CSO53, which makes it an objective to prepare and implement Local Area Plans for identified areas.  Table 2.16 of the Development Plan contains a Schedule of LAPs to be commenced over the period of the Development Plan, which does not include Malahide.  The Development Plan also states, at page 61:

'Following adoption of the Development Plan, a list of LAPs and other strategic plans to be prepared over the lifetime of the Development Plan will be drafted by the Planning Department based on the Council's priorities and subject to resources.'

The preparation of LAPs will be undertaken by Fingal in accordance with the Schedule contained at Table 2.16 and the text at page 61 of the Development Plan.

In addition, there are detailed development objectives for Malahide in the Development Plan.

Board Position

This Core Ground is not addressed to the Board.

State Position

This Core Ground is not addressed to the State Respondents."

52.         Section 19(1) of the Planning and Development Act 2000 provides:

"19.—(1) (a) A local area plan may be prepared in respect of any area, including a Gaeltacht area, or an existing suburb of an urban area, which the planning authority considers suitable and, in particular, for those areas which require economic, physical and social renewal and for areas likely to be subject to large scale development within the lifetime of the plan.

(b) A local area plan shall be made, except for an area where a development plan of a former town council continues to have effect, in respect of an area which—

(i) is designated as a town in the most recent census of population, other than a town designated as a suburb or environs in that census,

(ii) has a population in excess of 5,000, and

(iii) is situated within the functional area of a planning authority which is a city and county council or a county council."

53.         It isn't disputed that Malahide comes within s. 19(1)(b).  There is, therefore, an obligation to have a local area plan (LAP) for Malahide - an obligation which has not been complied with.  The fact that the council intends to do that in accordance with a series of plans envisaged by the county development plan isn't a legal answer.

54.         The current provision was substituted (with effect from 1st June 2014) by the Local Government Reform Act 2014, s. 5(7) and sch. 2 part 4 (see S.I. No. 214 of 2014).

55.         In construing the obligation to prepare a plan it is appropriate to infer an obligation to comply within a reasonable time - see by analogy Doherty v. Government of Ireland [2010] IEHC 369, [2011] 2 IR 222, [2011] 2 I.L.R.M. 516 (Kearns P.).

56.         In determining a reasonable time from commencement of that provision to give effect to it, the lifetime of a development plan of six years seems the absolute outer limit for compliance with the statutory intention.  Thus the council have been in breach of s. 19(1)(b) since on or about June 2020.  Covid-19 can't be much of an excuse in that context, since it only intervened at the very end of that six-year period (March 2020) at which point nothing had been done to advance the LAP so it wasn't going to be capable of being put in place in the remaining three months anyway.

57.         The council here probably shouldn't be singled out too much in this regard because one gets the impression rightly or wrongly that there has been quite a bit of delay in various local authorities as regards giving effect to s. 19(1)(b).

58.         So the applicant has established default.  But the problem with the applicant's argument that this gives rise to certiorari is that it proves too much.  A default in preparation of an overarching plan - whether national, regional, county-wide or local, can't have the effect that decision-taking has to stop or can't be lawfully completed.  Generalising that demonstrates the implausibility of the argument.  Suppose there was a default or delay in producing a national plan - or suppose a plan was struck down.  Decisions must have regard to national climate plans - suppose one was invalidated.  The applicant gamely appeared to accept that the logic of her argument might mean that that would prevent the taking of some decisions. 

59.         The applicant tried to argue that a decision-taker couldn't take a decision that was discretionary (as opposed to say where there was an obligation to decide the matter within a given time) in the absence of part of the overarching framework.  But that would render much decision-taking impracticable.  Many decisions have to be taken in imperfect conditions - that's life.  For the court to invent a rule that lack of a necessary overarching plan spells doom for any decision that isn't mandatorily obligated would be disproportionate and would create considerable impracticability and unworkability that is not mandated by the statute or otherwise by law.  

60.         There was some faint suggestion from the opposing side of the house that LAPs would be more necessary in some areas than others based on the level of development already carried out, and that Malahide town centre might not be such an area, but I don't think that really gets the council very far insofar as that is a point they are making.  The statute doesn't make any such distinction and the court shouldn't re-write clear statutory language out of existence, especially on the basis of policy-based qualifiers that could be hotly debated and that the court isn't particularly equipped to evaluate.

61.         That doesn't mean that lack of a required plan is without consequence.  The consequences could be declaratory or by way of mandamus although the applicant didn't ask for the latter.  I think that a declaration would be a proportionate response in the particular circumstances, having regard to all relevant matters bearing on the court's discretion in that regard, including the fact that the applicant has correctly identified a non-compliance, the fact that the council did not or at any rate did not clearly concede this point and certainly not in advance of the hearing (rather the high point of the response was offering their stated intention to comply as an answer), and given the fact that rule of law considerations would generally militate in favour of any non-compliance with statute being marked in some appropriate way. 

62.         Finally and in any event, the pedestrianisation of New Street isn't something done in a plan-related vacuum.  Provision for that pedestrianisation is contained in the development plan, so the chief executive and council had plan-based guidance for the project on the facts here. 

Core ground 3 - alleged failure by the council to consider cumulative effects

63.         We need to note that while both the council and the board are accused of failure to consider cumulative impacts, the failures are legally distinct and are pleaded in distinct terms.  We are concerned under this heading with the council.  Core ground 3 alleges failure by the council in assessment (centred on the chief executive's report) and core ground 7 alleges failure by the board, with the council playing only a walk-on part in that alleged problem.

64.         Core ground 3 is:

"3.        The Council erred in law in failing to address, in its Chief Executive's Report, the submission made to it in relation to cumulative effects of the Proposed Development as a matter of Irish law for the following reasons:

3.1.      First, it was a major issue that was raised, and S179(4) requires the Chief Executive to summarise the issues raised and his response, to evaluate whether or not the Proposed Development is in accordance with the proper planning and sustainable development of the area, and give the reasons and considerations for the evaluation, and he did not do so

3.2.      Second, the Chief Executive erred in law because he failed to consider issues relating to the proper planning and sustainable development of the area, namely what the combined effects of the Proposed Development would be, when added to the effects of prior public realm developments for the Malahide area.

3.3.      Third, the Chief Executive erred in law in failing to consider whether the Proposed Development would impede it in fulfilling its duty under S15 PDA to take such steps within its powers as may be necessary for securing the objectives of the development plan, by foreclosing the achievement of a plan objective to provide a greenway network (§6.5.6.2, Table 6.1 and Objective CMP8)."

65.         The parties' positions as recorded in the statement of case are summarised as follows:

"Core Ground 3 - The Council erred in law in failing to address, in its Chief Executive's Report, the submission made to it in relation to cumulative effects of the Proposed Development as a matter of Irish law.

Applicant Position

The Council, in considering the traffic impact of the proposed development in the planning context, failed to have regard to cumulative impacts with other projects, in particular the cumulative impact of the Proposed Development with the authorised Broadmeadows Greenway and the planned Sutton to Malahide cycleway (also other developments at the Bridge Field, Strand, and Green, carried out as part of the Malahide Public Realm Strategy, and parklet developments); and thereby failed to consider relevant material, and / or failed to give adequate reasons for its decision in relation to this main issue.

Council Position

The manner in which this Ground of Challenge has been addressed in submissions is unsatisfactory as the Applicant has not distinguished between Core Grounds No. 3 and 7.

The claim that there was a failure to consider impacts on the safety of cyclists, has not been pleaded and this is not an issue which was argued by the Applicant in any public consultation process, nor was the issue raised in other submissions.

The Report of the Chief Executive Office complies with the requirements of section 179(3)(b)(iii) PDA.  The Council draws particular attention to Sections T6e (Wider Malahide), T2i (AA and EIA Screening) and T1a (Objections to the Pedestrianisation of New Street) of Appendix D to the Chief Executive Report.

Seen in the light of the underlying documentation, including the EIA Screening Report prepared by BMA Planning for Fingal, the Planning Report prepared by BMA Planning for Fingal, the report prepared by the Planning and Strategic Infrastructure Department of Fingal, the EIA Screening Determination made by the Board (including relevant underlying documentation, i.e. the response of Fingal to the request for a screening determination, the report prepared by BMA Planning on behalf of Fingal and submitted to the Board and the Board's Inspector's Report), it is quite clear that there was proper and appropriate consideration of the issue of cumulative assessments and proper consideration of the issues which were in fact raised during the public consultation process.

Board Position

This Core Ground is not addressed to the Board.  Insofar as the Applicant addresses Core Ground 3 and Core Ground 7, which is addressed to the Board, together in submissions the Board's position in respect of Core Ground 7 is set out below.

State Position

This Core Ground is not addressed to the State Respondents."

66.         Section 179(4) of the 2000 Act, which is relied on in the ground, provides:

"(4)(a) The members of a local authority shall, within 6 weeks of the receipt of the report of the chief executive, consider the proposed development and the report of the chief executive under subsection (3).

(b) Following the consideration of the chief executive's report under paragraph (a), the proposed development may be carried out as recommended in the chief executive's report, unless the local authority, by resolution, decides to vary or modify the development, otherwise than as recommended in the chief executive's report, or decides not to proceed with the development.

(c) For a resolution to have effect under paragraph (b) —

(i) it has to be passed not later than 6 weeks after the receipt of the chief executive's report, and

(ii) in the case of a resolution not to proceed with a proposed development, it shall state the reasons for such resolution."

67.         This doesn't have a whole lot to do with the alleged failure in summarisation.  Possibly s. 179(3) was intended:

"(3)(a)(i) The chief executive of a local authority shall, where an application is not made to the Board for a screening determination referred to in article 120(3)(b) of the Planning and Development Regulations 2001, within 8 weeks after the expiration of the period during which submissions or observations with respect to the proposed development may be made, in accordance with regulations under subsection (2), prepare a report in writing in relation to the proposed development and submit the report to the members of the authority.

(ii) The chief executive of a local authority shall, where an application is made to the Board for a screening determination referred to in article 120(3)(b) of the Planning and Development Regulations 2001, within 8 weeks after the making by the Board of a screening determination that an environmental impact assessment is not required in respect of the proposed development, prepare a report in writing in relation to the proposed development and submit the report to the members of the authority.

(b) A report prepared in accordance with paragraph (a) shall—

(i) describe the nature and extent of the proposed development and the principal features thereof, and shall include an appropriate plan of the development and appropriate map of the relevant area,

(ii) evaluate whether or not the proposed development would be consistent with the proper planning and sustainable development of the area to which the development relates, having regard to the provisions of the development plan and giving the reasons and the considerations for the evaluation,

(iia) include the screening determination on why an environmental impact assessment is not required and specify the features, if any, of the proposed development and the measures, if any, envisaged to avoid or prevent what might have otherwise been significant adverse effects on the environment of the development,

(iii) list the persons or bodies who made submissions or observations with respect to the proposed development in accordance with the regulations under subsection (2),

(iv) summarise the issues, with respect to the proper planning and sustainable development of the area in which the proposed development would be situated, raised in any such submissions or observations, and give the response of the chief executive thereto, and

(v) recommend whether or not the proposed development should be proceeded with as proposed, or as varied or modified as recommended in the report, or should not be proceeded with, as the case may be.

(c) A report prepared in accordance with paragraph (a) shall—

(i) in the case of development situated wholly within the maritime area—

(I) contain an evaluation of the consistency of the proposed development with principles of proper planning and sustainable development and the objectives of maritime spatial planning, having regard to the National Planning Framework, the National Marine Planning Framework and any maritime spatial plan applicable to the maritime site in which it is proposed that the development would be carried out, and

(II) specify the reasons and considerations for that evaluation,

and

(ii) in the case of development proposed to be situated partly on the landward side of a coastal planning authority's functional area and partly in the maritime area—

(I) contain an evaluation referred to in subparagraph (ii) of paragraph (b) and an evaluation of the consistency of the proposed development with principles of proper planning and sustainable development and objectives of maritime spatial planning, having regard to the National Planning Framework, the National Marine Planning Framework and any maritime spatial plan applicable to the maritime site in which it is proposed that the development would be carried out, and

(II) specify the reasons and considerations for those evaluations,

in addition to the matters referred to in subparagraphs (i), (iia), (iii), (iv) and (v) of paragraph (b)."

68.         Section 15 provides:

"15.—(1) It shall be the duty of a planning authority to take such steps within its powers as may be necessary for securing the objectives of the development plan.

(2) The chief executive of a planning authority shall, not more than 2 years after the making of a development plan, give a report to the members of the authority on the progress achieved in securing the objectives referred to in subsection (1)."

69.         As regards the claim of lack of consideration of cumulative impacts, the problem is that the council didn't so fail.

70.         Section T6e of the chief executive's report includes the following:

"The public realm improvements of New Street are consistent with the Malahide Public Realm Strategy, which looked at Malahide in the wider context with recommendations locally envisaging that priority will be given to measures which improve the public realm, increase pedestrian movement and cycling in the village of Malahide.  In particular, the public realm improvements are consistent with projects which focus on the permeability and connectivity across Malahide for pedestrians and cyclists.

Since 2014 Government Policy has moved forward in the context of climate action and the prioritisation of the movement of people over privately owned vehicles, in line with the hierarchy of road users.

In the context outlined above, the public realm improvements have been considered in accordance with the Fingal Development Plan 2023 –2029 along with other projects in the area such as the Malahide Green (complete), Broadmeadow Greenway (commenced), and the Sutton to Malahide Pedestrian and Cycle Scheme (Non Statutory Public Consultation complete), all of which will promote and facilitate Active Travel within Malahide and the wider county.

Therefore, it can be stated that the improvements to the public realm on New Street have been considered in the context of the wider village and not in isolation."

71.         In the context of a statutory duty to merely provide a summary, no legal breach has been made out by the applicant under this heading insofar as concerns the obligation to address cumulative effects.  That, expressly, can be done in a summary manner (sub-s.(3)(b)(iv)). 

72.         The subsidiary point of an alleged breach of a. 15 of the 2000 Act fails similarly.  As the council points out:

"59.      ... the Applicant has not demonstrated any inconsistency between the proposed public realm improvements and the greenway network to which reference is made in the Development Plan.  In that regard, the Applicant has failed to discharge the burden of proof and failed to establish any breach of section 15 of the 2000 Act."

73.         I agree with the applicant that compliance with s. 15 is an autonomous duty but it isn't a basis for certiorari to say that the council haven't shown that s. 15 was considered on a reasoned basis.  A decision-taker doesn't have to prove the decision to be valid.  Things start with a presumption of validity, all things being equal, and the applicant generally bears the burden of proof to show otherwise, which hasn't been discharged here.

EU law grounds

Core ground 5 - alleged mandatory EIA

74.         I should note at the outset that some of the arguments made in submissions under this heading more properly arise under core ground 7 and are addressed there.

75.         Core ground 5 is:

"5.        The Board Decision is invalid because the Board misdirected itself in law as to the threshold at which an EIA for an urban development project is mandatory pursuant to S175 and S176 PDA, R93 PDR and Schedule 5 Part 2 Class 10 PDR."

76.         The parties' positions as recorded in the statement of case are summarised as follows:

"Applicant Position

The Board erred in law in that it misidentified the area involved in the Proposed Development.  A2 of the EIA Directive requires EIA for projects which are likely, by virtue of their nature, size, or location, to have significant effects on the environment.  A4(3) requires the State to define those projects, for instance by setting thresholds.  The threshold set for the purposes of Schedule 5 Part 2 Class 10(b), urban development, is based on the 'area involved'.  It includes the entire area where there is a change of use by intensification of use - not just the roads from which traffic is to be diverted, but the roads onto which the diverted traffic is to be directed. ('Nature' criterion.)  Because this is a redevelopment of a street, the buildings bordering each street are part of the area involved. ('Location' criterion.)  The total area involved - including the streets and their defining buildings - exceeds the threshold of 2ha in a business district, which is the size at which urban development must be subject to EIA.  ('Size criterion'.)

Council Position

The arguments which are pursued by the Applicant in her Legal Submissions have not been properly pleaded, as identified at §63 of the Council's Legal Submissions.

The Applicant has not established an evidential basis for the case she wishes to make.

Without prejudice to the foregoing, the Applicant is not correct that this is a development in respect of which a mandatory EIA is required.

The proposed public realm improvements will occur on New Street, Malahide which has an area of 0.22 hectares.  The proposed public realm improvements do not include works in any other location other than New Street, Malahide.  The area of the proposed public realm improvements (which is the project for the purposes of the EIA Directive) is 0.22 hectares, an area which is significantly below any of the thresholds in Class 10(b)(iv) of Part 2 of Schedule 5 of the 2001 Regulations.  As the proposed public realm improvements are limited to New Street, the contention which subtends Core Ground No. 5 to the effect that the project area is the entire centre of Malahide Village is wholly incorrect, has no basis in fact or evidence and is fundamentally misconceived.

Board Position

The Board denies that it misdirected itself in law as to the threshold for which a mandatory EIA under Class 10(b)(iv), Part 2 to Schedule 5 of the 2001 Regulations - 'Urban development which would involve an area greater than 2 hectares in the case of a business district' - is required. 

In the first instance, the case now made by the Applicant in written legal submissions comprises an impermissible attempt to expand the pleaded case.

Without prejudice to the foregoing, the Inspector and Board correctly determined that the proposed public realm improvements - being the relevant 'project' for assessment for the purposes of EIA - comprised sub threshold development of an area spanning 0.22 hectares.  The project here entails the carrying out of public realm improvement works and the Applicant is conflating the area involved in those works with the separate issue of any area that might be directly or indirectly affected by the project once completed.  The construction of the EIA Directive put forward by the Applicant and the manner in which it is contended the 'area involved' ought to be determined is unsupported in law.

In addition, and without prejudice to the foregoing, the Applicant provides no evidential basis for asserting that the streets surrounding New Street and curtilage of the buildings defining them are 'involved' in the proposed development in the sense contended for.

Furthermore, the proposed public realm improvements are a standalone project and there was no evidence before the Board suggestive that same are interdependent on other public realm works within Malahide.  In any event, even if such interdependence had been established (which it has not), the decision in Fitzpatrick v An Bord Pleanála is clear that this would go to the need for there to be an assessment of the cumulative effects of the proposed development in cumulation with such other public realm works, something which occurred here in any event.  

In the premises, no invalidity in the Board's decision is made out under Core Ground 5. 

State Position

This Core Ground is not addressed to the State Respondents."

77.         There is a preliminary issue about the time limit for challenging the board decision but insofar as discussion of that is required I will postpone that to the next ground.

78.         Schedule 5 of the 2001 regulations is made under art. 93.  That provides that:

"The prescribed classes of development for the purposes of section 176 of the Act are set out in Schedule 5."

79.         Despite the section heading, the actual text of s. 176 is not phrased in terms of prescribing classes of development as such.  It provides:

"Prescribed classes of development requiring assessment.

176.—(1) The Minister shall, for the purpose of giving effect to the Environmental Impact Assessment Directive, make regulations—

(a) identifying development which may have significant effects on the environment, and

(b) specifying the manner in which the likelihood that such development would have significant effects on the environment is to be determined.

(2) Without prejudice to the generality of subsection (1), regulations under that subsection may provide for all or any one or more of the following matters:

(a) the establishment of thresholds or criteria for the purpose of determining which classes of development are likely to have significant effects on the environment;

(b) the establishment of different such thresholds or criteria in respect of different classes of areas;

(c) the determination on a case-by-case basis, in conjunction with the use of thresholds or criteria, of the developments which are likely to have significant effects on the environment;

(d) where thresholds or criteria are not established, the determination on a case-by-case basis of the developments which are likely to have significant effects on the environment;

(da) the carrying out of a screening for environmental impact assessment (within the meaning of section 176A), or a determination review or application referral (within the meaning of section 176C);

(e) the identification of selection criteria in relation to—

(i) the establishment of thresholds or criteria for the purpose of determining which classes of development are likely to have significant effects on the environment, or

(ii) the determination on a case-by-case basis of the developments which are likely to have significant effects on the environment.

(3) Any reference in an enactment to development of a class specified under Article 24 of the European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349 of 1989), shall be deemed to be a reference to a class of development prescribed under this section."

80.         The concept is that if a development is included in sch. 5, it should be subjected to EIA.  Part 1 of sch. 5 generally does not involve thresholds whereas part 2 generally does.  Part 1 corresponds to Annex I of the EIA directive and Part 2 corresponds to Annex II.

81.         Sub-threshold development may still require to be examined.  Development under any thresholds in part 1 is captured potentially by art. 120(3), which provides:

"(3)

(b) Where any person considers that a development proposed to be carried out by a local authority would be likely to have significant effects on the environment, he or she may, at any time before the expiration of 4 weeks beginning on the date of publication of the notice referred to in article 81(2), apply to the Board for a screening determination as to whether the development would be likely to have such effects.

(c) An application for a screening determination under paragraph (b) shall, in order to be considered by the Board, state the reasons for the forming of the view that the development would be likely to have significant effects on the environment and shall indicate the class in Schedule 5 within which the development is considered to fall.

(ca) The Board shall, by notice in writing served on the local authority, require the local authority to submit to the Board the information specified in Schedule 7A for the purposes of a screening determination.

(cb)(i) Where a local authority is submitting to the Board the information specified in Schedule 7A, the information shall be accompanied by any further relevant information on the characteristics of the proposed development and its likely significant effects on the environment, including, where relevant, information on how the available results of other relevant assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Impact Assessment Directive have been taken into account.

(ii) Where a local authority is submitting to the Board the information specified in Schedule 7A, the information may be accompanied by a description of the features, if any, of the proposed development and the measures, if any, envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment of the development.

(cc)(i) Where a local authority submits the information specified in Schedule 7A and p paragraph (cb) pursuant to a requirement under paragraph (ca), the Board shall carry out an examination of, at the least, the nature, size or location of the development for the purposes of a screening determination.

(ii) The Board shall make a screening determination and—

(I) if such determination is that there is no real likelihood of significant effects on the environment arising from the proposed development, it shall determine that an EIA is not required, or

(II) if such determination is that there is a real likelihood of significant effects on the environment arising from the proposed development, it shall—

(A) determine that the development would be likely to have such effects, and

(B) by notice in writing served on the local authority, require the local authority to prepare, or cause to be prepared, an EIAR in respect of the development.

(e) For the purposes of paragraphs (b) and (ca), a local authority shall provide information requested by the Board in relation to a sub-threshold development proposed to be carried out by the local authority."

82.         The analysis must inter alia consider matters in sch. 7 (see art. 120(4)).

83.         Schedule 5 part 2 class 10(b)(iv) of the Planning and Development Regulations 2001 provides as follows:

"10. Infrastructure projects

(b) (iv) Urban development which would involve an area greater than 2 hectares in the case of a business district, 10 hectares in the case of other parts of a built-up area and 20 hectares elsewhere.

(In this paragraph, 'business district' means a district within a city or town in which the predominant land use is retail or commercial use.)"

84.         It appears to be accepted that Malahide town centre is a business district.  The inspector found that (§8.2):

"As set out above, it is considered that the proposed development is of a class, Class 10 (b) (vi) [recte (iv)] for the purposes of EIA.  The threshold cited under Class 10 (b) (iv) in the PDR is 'urban development which would involve an area greater than 2 hectares in the case of a business district, 10 hectares in the case of other parts of a built-up area and 20 hectares elsewhere'.

The proposed development is in an urban location which can be considered a 'business district'.  New Street is in the town centre of Malahide in which the predominant land use is retail and commercial.  Therefore, the threshold is 2 hectares.  The proposed development would be accommodated on a site of approximately .22 hectare."

85.         The applicant's argument is that while the works in New Street would themselves occupy 0.22 hectares, the overall zone of influence would be over 2 hectares because the project would give rise to diversion of traffic elsewhere and thus to intensification of use of other roads.

86.         The problem with that test is that when the 2001 regulations refer to the concept of "development which would involve an area", they mean involve in a workable sense that can be applied readily by planning decision-takers.  The idea that the area of development means area in some amorphous sense that includes whatever indeterminate areas in which ripple effects could occur is unworkable.  The regulations don't mean that.  By "area" they mean the area of the works or in which the proposed use is meant to be carried out, not wider areas which will be affected by the development or in which "uses" of other lands will be affected indirectly.  This is basically a question of interpreting domestic law.

87.         Judged by reference to the issue of area, and without prejudice to core ground 7, the development is thus "sub-threshold development" as defined by art. 92 of the 2001 regulations, so the board didn't err in failing to treat it as supra threshold as alleged or at all.

88.         Even if the applicant is correct that the concept of the "project as a whole" is wider than the project for which consent is sought as contended for under core ground 7, that doesn't change the point of interpretation of domestic regulations to the effect that "area" means of the works, for the simple reason that the regulations are not workable otherwise.  So the failure of this point can logically be separated from any issue under core ground 7.

Core ground 7 - alleged failure by the board to consider cumulative impacts

89.         Core ground 7 is:

"7.        The Board erred in law in failing to consider cumulative effects on public health, namely by way of risks associated with traffic hazard, arising from the Proposed Development in conjunction with the development of a carpark at the Bridge Field, refurbishment of the Green, and the Broadmeadow Greenway."

90.         The parties' positions as recorded in the statement of case are summarised as follows:

"Applicant Position

The Board, in considering the traffic impact of the proposed development in the context of EIA screening, failed to have regard to cumulative impacts with other projects, in particular the cumulative impact of the Proposed Development with the authorised Broadmeadows Greenway and the planned Sutton to Malahide cycleway; and thereby failed to consider relevant material, and / or failed to give adequate reasons for its decision in relation to this main issue.

The Board also failed to consider the cumulative impact of prior developments, because it failed to consider whether the total area of the Proposed Development, together with prior public realm developments in Malahide, exceeded the threshold at which an EIA becomes mandatory under R93 PDR Schedule 5 Part 2 Class 10(b) PDR (as required by A2 and A4(3) of the EIA Directive).  This failure has the result that a series of projects, carried out successively, is able to avoid EIA because no one project ever exceeds the size threshold, and is not in accordance with the Regulations interpreted in accordance with the Directive.

The Council also erred in law in failing to provide the areas of these prior developments for inclusion in the threshold calculation, contrary to the requirements of R120(3)(ca) and (cb) and Schedule 7A PDR, and/ or A4(4), A4(5) and Annex IIA of the EIA Directive.

Council Position

The manner in which this Ground of Challenge has been addressed in submissions is unsatisfactory as the Applicant has not distinguished between Core Grounds No. 3 and 7.

The claim that there was a failure to consider impacts on the safety of cyclists has not been pleaded and this is not an issue which was argued by the Applicant in any public consultation process, nor was the issue raised in other submissions.

Issues relating to cumulative assessment were considered by the Board in the Inspector's Report.  Fingal points, in particular, to page 6 of the Inspector's Report where each of the other developments on which the Applicant relies were identified.

The potential for cumulative impacts between the proposed public realm improvements and other existing and/or approved projects was considered at 8.3.1.2 ('Potential for Cumulative Impacts with other Existing and/or Approved Projects').  That conclusion was reiterated at 8.3.3 where it is stated 'Having regard to Section 8.3.1.2 it considered unlikely that significant cumulative impacts would arise.'

Board Position

The Applicant's assertion that in considering the traffic impact of the proposed development in the context of EIA screening, the Board failed to have regard to the effects of the proposed development in cumulation with other projects, in particular the Bridgefield Carpark, refurbishment of the Green and/or the Broadmeadow Greenway, is incorrect.  These projects were clearly considered in terms, as is evident from the Inspector's Report (§4) and the assessment which follows.  The content of the Art.120(3)(b) requests was considered and the reasons provided by the Inspector and Board in reaching its conclusion are lawful and adequate.

As set above, the Board assessed the project for development as required by the EIA Directive and the Applicant has failed to establish any error in this respect.  It is denied that the Board decision facilitates project splitting.

State Position

This Core Ground is not addressed to the State Respondents."

91.         To the extent that this is premised on the logic of core ground 5, the argument that the board read the 2001 regulations incorrectly in that regard can't succeed.

92.         Insofar as there is a separate issue about lack of consideration of cumulative impacts by the board, we need to look at the pleadings, the facts and the law before trying to apply the latter. 

93.         The issue was enlivened by various preliminary objections.  The lack of submissions on relevant issues made by the applicant was canvassed although that argument did seem to soften a bit as the hearing went on, to the point where I don't think I need to address it.  Had it been pressed we would need to consider referring any such standing complaint in the light of cases such as C-826/18 Stichting Varkens in Nood. Even the applicant's attempt to give notice of errata in the statement of grounds was repulsed, at least in the absence of a formal application to amend.  I don't think that latter issue makes much difference because the applicant's point is clear enough, but it might have been better to seek consent to a formal amendment.  

94.         As regard the complaint that the applicant should have challenged the EIA determination within eight weeks rather than wait for the development consent decision, that is unfounded.  That was not a substantive decision but rather a step in the planning process leading ultimately to the decision to carry out the development.  It is obviously an intermediate decision as opposed to a final substantive decision.  It is not a separate statutory procedure - it is part of the development consent process.  All intermediate decisions have some legal effects and many of those can't be revisited in the administrative process - but overriding and imperative considerations of legal policy mean that challenges to intermediate decisions must be saved for the final decision.  To decide otherwise would be to incentivise unnecessary litigation and to make the courts part of the problem rather than part of the solution.  The fact that the screening decision finally determines a certain issue and is unappealable is certainly not decisive.  It remains an intermediate decision.  In s. 50(6) of the 2000 Act, the special context of the intermediate decision compels an interpretation that reads "the date of the decision" as meaning the date of the final decision.  Hence if the "decision" involves the input of numerous actors - for example the board in relation to EIA screening and the council in relation to the decision to proceed with the development (or for example, a confirmation by Uisce Eireann under art. 22(2A)(a) of the 2001 regulations) - time only runs from the final decision even if one of the intermediate decisions was made by a different actor, whether the actor is covered by s. 50 or not.  The opposing parties naturally seize on references in jurisprudence to the concept that some irreversible intermediate decisions have to be challenged at the time.  I think such references can be explained by saying that one can't be absolutely categorical given the vast number of scenarios that can arise, but any such category has to be kept extremely tight and limited and may indeed be fairly theoretical in practice.  The derogation licence is the only type of thing that comes to mind - if one wants to call it an intermediate decision, which I wouldn't be inclined to do since it is made under a separate code from planning law - but even that quite extreme case doesn't appear to be accepted as a properly separate decision by the European Commission in the context of the art. 267 TFEU reference on the issue (C-58/24, Drumakilla), and we will await the outcome with interest.  The tide of jurisprudence is running strongly against the notion of multiple judicial reviews on a challenge-as-you-go basis in relation to the same matter.  That is both for reasons of principle - a requirement for multiple judicial reviews is incompatible with legal certainty, interferes with the right of access to justice and also imposes unnecessary costs contrary to the requirement that proceedings not be prohibitively expensive - and also for reasons of pragmatism - incentivising or even requiring multiple judicial reviews imposes huge burdens on the court system with knock-on effects for other litigants who then have to join a longer queue than is necessary.  Anyway, if anything turned on this I might have to consider referring questions arising from what in my view is a breach of the principles of legal certainty and access to justice involved in the opposing submissions, but I don't need to do that in this case.

95.         As regards the pleadings, the wording of this issue is somewhat exiguous in the sense that, apart from in relation to the greenway, it does not set out any facts and matters about how the alleged road safety issue arose (emphasis added):

"Core Ground 7, Cumulative Effects

51.       The Board erred in law in failing to consider cumulative effects on public health, namely by way of risks associated with traffic hazard, arising from the Proposed Development in conjunction with the development of a carpark at the Bridge Field, refurbishment of the Green, and the Broadmeadow Greenway which will bring an average of 1,200 and estimated peak of 3,500 cyclists per day onto or across the Strand, an unspecified proportion of whom will attempt to use a route onto which the Proposed Development proposes to divert traffic from New Street (to run down Old Street and along the Strand to the Marina, and from the Marina along the Green and James' Terrace back up to the Mall).

52.       The specific errors made by the Board are:

52.1.    First, the Board failed to give any (or any adequate) reasons or considerations in relation to its rejection of the submission that there was need for EIA having regard to the submission that there were such cumulative effects, contrary to R120(4) PDR and / or A4(5)(b) of the EIA Directive.

52.2.    Second, in the alternative, the Board failed to consider relevant material relating to cumulative impact, contrary to R120(4) and Schedule 7 PDR, and / or A4(4), A4(5) and Annex III of the EIA Directive.

52.3.    Third, in the further alternative, the Board misdirected itself in law as to the concept of cumulative effects, and failed to recognise that prior developments of a carpark at the Bridge Field, refurbishment of the Green, and the Broadmeadow Greenway were existing or authorised projects which it was obliged to have regard to, and thereby contravened R120(4) and Schedule 7 PDR, and / or A4(4), A4(5) and Annex III of the EIA Directive.  Furthermore, in so doing the Board misdirected itself in law by failing to recognise that its decision facilitated project splitting with the effect of avoiding requirement for EIA, contrary to A2 of the EIA Directive, inasmuch as all of those projects had been collected in the Malahide Public Realm Strategy, but were advanced one at a time over an extended period so that each could be stated to be below threshold for urban development projects pursuant to S176 PDA, A93 and Schedule 5 Part 2 Class 10(b) PDR, and / or A4(3) and Annex II Class 10(b) of the EIA Directive.

53.       Furthermore, the Council failed to submit the information required by R120(3)(ca) and (cb) and Schedule 7A PDR, and / or A4(4), A4(5) and Annex IIA of the EIA Directive.  It failed to submit the information relating to cumulative impacts referred to above.  As a result the Board Decision was based on inadequate information, and was therefore invalid, and in consequence the Council Decision, being based on the Board Decision, is also invalid."

96.         Insofar as concerns the car park and the refurbishment of the Green, the pleadings leave one in the dark as to what the alleged cumulative effects actually look like.  The furthest the applicant can advance this is by way of the general complaint that traffic hazard was not considered in the context of potential cumulative assessment with those two projects.  The applicant can't succeed on anything more specific than that.

97.         I would however accept that the Broadmeadow Way issue is more specifically pleaded - the gist of the complaint is lack of assessment of the impact, by virtue of cumulative/in-combination interactions, of large numbers of additional cyclists being delivered to the top of Old Street.  The legal relevance of that complaint is pleaded in terms of failure of consideration, lack of reasons, and project-splitting, and consequential complaints.

Cumulative effects - the factual context

98.         Insofar as the complaint is one of project-splitting, we need to note that the Broadmeadow Way project was subjected to full EIA - see https://www.pleanala.ie/en-ie/case/304624.  The EIAR is dated May 2019 prior to the pedestrianisation of New Street even in its initial formation. 

99.         The board order was signed by its deputy chairperson Mr Paul Hyde on 19th May 2020 (https://www.pleanala.ie/anbordpleanala/media/abp/cases/orders/304/d304624.pdf?r=944240483473) and thus just pre-dates the initial pedestrianisation of New Street.  Hence one can conclude that the EIA process of the Broadmeadow Way didn't encompass consideration of cumulative and in-combination effects with the present project (or sub-project, as the applicant might have it).  That doesn't mean that this decision is invalid - it just opens the door for the argument, which we will come to later.

100.       The council plans to carry out a range of different works in the Malahide Public Realm Strategy (https://www.fingal.ie/sites/default/files/2019-09/malahide_public_realm.pdf).

101.      As regards the applicant's submissions, the board submission sets out some context:

"32.      ...  For the avoidance of doubt, the Art.120(3)(b) request to the Board made by MOVRA is exhibited at Tab 9 of exhibit NB1 to the Applicant's grounding affidavit, with the attachments referred to therein at Tab 11 thereto.  The Applicant did not make an Art.120(3)(b) request to the Board in her own name, however she asserts membership of MOVRA in her replying affidavit (§3) and in written submissions (§22) and seeks to rely on the points made as part of the Art.120(3)(b) requests generally.   ..."

102.      The applicant did make a submission to the council as part of the public realm strategy consultation (which wasn't part of this process), but that didn't refer to cycle safety as such:

"Unique Reference Number: FIN-C570-173

Status: Submitted

Submission: Those who live in the village live with the consequences and harm

Author: Nicola Byrne

Consultation: Public Realm, New Street Malahide

Observations

Theme: General Comments

Title: Public Order Enforcement

Under New Street's road closure, the antisocial behaviour, drinking on the streets and the proliferation of public drug taking in Malahide has been increased hugely.  This will be made worse by the implementation of this which aims to place fixed seating and planters.  These will be focused by drinkers - especially after closing times, to create harm such as noise and intimidating behaviour by intoxicated people on a continuous basis.

Anybody now visiting the village will see the amount of CCTV that has been installed by both residents and businesses as a response to this harm.

Malahide now has a widespread reputation for lawlessness in Malahide.  This means that after 8pm at night very few residents feel safe enough to walk to Tesco due to the carry on between the Green and New Street.  The nuisance will now be a permanent reality where safety in the village after 6pm cannot be guaranteed.  Gardai have provided sworn evidence to the Licencing Courts on 9th May that 'Zero Tolerance for this type of public drinking is not realistic'.

While the whole village would love a legal public realm project, all the evidence repeatedly shows that this is making quality of life for living in the village very difficult.  Why would a project that causes harm and unnecessary suffering be adopted?

Council Members are being asked to approve of a scheme that has been repeatedly shown to cause public nuisance and loss of residential amenity that cannot be controlled by enforcement by either the Gardai or the Local Authority.

Theme: General Comments

Title: Traffic Displacement

The displacing of traffic from one wide straight street with traffic lights onto other much narrower streets with no signals and many sharp corners is again just detached from reality.  Narrow streets such as New Streets now have to be used by many large and awkward loads including the sewage sludge truck, large delivery lorries, boats for the marina as well as emergency vehicles. [see photo from yesterday]

Using a narrow residential street to bring a double deck bus down is not acceptable.  It has to be upsetting for everyone when it gets stuck every day.  When the bus gets stuck it backs up traffic throughout the whole village.  Why would you think this was ever going to be acceptable?

Council Members are being asked to approve of a scheme that has been repeatedly shown to make traffic in the village and surrounding areas more congested and less safe.

Theme: General Comments

Title: Not validly based in a current development plan

The Ministers office yesterday confirmed [See Letter attached] that the Fingal County Development Plan is 'ongoing' which appears to make this Part 8 submission irrelevant as there is no legal in existence CDP at this point, and all the planning reports for this Part say CDP 2023-2029.

To make matters worse, Malahide lacks a Local Area Plan legally required to have because of its population size.  This is a planning process that would have allowed residents enter into the process and defend their rights.  How can a plan for the core of Malahide be legal without the Local Area Plan being adopted first to give it a context?

Council Members are being asked to approve of a scheme that is premature because the County Development Plan has not been fully adopted and because it has no Local Area Plan to give it a legal context.

Theme: General Comments

Title: Noise

With the removal of traffic from New Street has meant that the intermittent shouts and screams of drinkers on the street in the evenings is enough to wake residents from their sleep.  The closing times are now like having a festival on all streets in the village as the taxi hunt commences with great revelry.

Theme: General Comments

Title: Public Urination

The places of structures on the street can only be considered another target for the late night public street toilet users.  Pictures attached.  Its not just a feature on New Street it is pretty much village-wide as the taxi situation is farcical.

Theme: General Comments

Title: More of a project for Pubs than for Public Realm

The handing over of public realm space to pubs is a disgrace and I echo other comments here.  As a resident I too voice my unhappiness at the disadvantage of having no access to this additional public free space.  Why can't residents apply for the space too.  Why are private businesses being rewarded with free public space.  When did this discrimination become acceptable.  Surely we are all entitled to front gardens now.  I would like to place my own private seating outside my home where the footpaths should be widened and I too can improve the look of Old Street by greening up all the concrete that is now there.

Malahide has hundreds of acres for leisure activity - the plan ignores reality, has been flawed in its delivery and has given an unrealistic expectation that somehow, we can change a road to a pub and expect no consequences.  As the fantasy cups of coffee and pints fade the reality is Malahide will be a bleak sad place where ignorance has trumped evidence in favour of the commercialisation of a public space for the benefit of the few while harming the many.

Theme: General Comments

Title: Conclusion

I request my statutory entitlement of an LAP for Malahide as this part 8 is premature due to the non existent County Development Plan to which you claim to base this project on.  Give us back our fully designed public realm and complete the green project as in currently mandated in the old CDP which is technically still in place till the new plan has been signed of by the Minister.

Documents Attached:

FIN-C570-173-220550 - c64d2888-d22a-4038-b4b5-7bd0ed1d87a0.jpeg

FIN-C570-173-220554 - 4834de51-c03a-4629-9557-6c0a664e550b.jpeg

FIN-C570-173-220555 - HPLG-MOSOD-00415-2023.pdf

FIN-C570-173-220574 - Images Redacted.docx

Boundaries Captured on Map: No"

103.      I'm not saying that the applicant can't rely on other submissions, particularly of the residents association of which she is a member, but here those submissions don't take matters a whole lot further, and the context of the lack of any submission on the confluence of cyclists and traffic at the top of Old Street specifically is not irrelevant given that the content of any decision reflects submissions made. 

104.      Taking a homely example, sometimes people criticise a judgment for not dealing with X (or even do so in heated terms, if you can believe that), but one sometimes has to turn the question around and ask if anybody properly and specifically put X before the court at the appropriate time.  Mysteriously one rarely gets much of an answer to that, but in the odd case where the silence is broken by a relevant response, such replies curiously tend towards a sheepish negative for whatever reason.  

105.      In the request for EIA screening, the residents' association certainly did raise the issue of cumulative effects with other public realm projects and listed such projects with maps.  That doesn't get us very far absent some stated basis for saying that there will be specific cumulative impacts on some clear basis that requires specific consideration.  The submission is fairly light on specific complaints about traffic hazards and doesn't raise the specific centrepiece of the applicant's submissions in the judicial review.  By analogy with Christopher Hitchens' aphorism, "that which can be asserted without evidence can be dismissed without evidence", one can say that that which is raised generally can be replied to generally.  So raising traffic hazards in a general way in submissions here may legitimately invite a general response.   

106.      In particular, the material in the MOVRA request, Mr Noel Mahon's request, which does include two pages under the heading of "Likely traffic effects", and the MOVRA submission which were before the board, make some reference to road safety but those correspondents don't specify the point about confluence of cyclists and traffic at the top of Old Street. 

107.      The material submitted by the council included two reports from BMA of April and July 2023 and the traffic and transportation assessment of PUNCH consultants, which were supportive of the conclusion of no adverse safety impact.  The council's submission to the board includes the following:

"5.        The Applicants' purported assessment of the likelihood of significant effects on the environment is fundamentally flawed

5.1       As further detailed in the enclosed report of BMA Planning dated 04 July 2023, the purported assessment of the likelihood of significant effects on the environment presented by the Applicants in their submission to the Board is fundamentally flawed.

5.2       The Applicants have sought to present what they purport to refer to as an 'EIA Screening Assessment' in Table 2 of their submission, at pages 7 to 12.  Table 2 is presented as an alternative to Table 4.1 of the EIA Screening Report link provided here: EIA Screening Report.pdf (provided in Attachment A to the BMA Report) but, significantly and unlike the EIA Screening Report, is not supported by any expert assessment of the potential for likely significant effects.  Further, while the Applicants have included a number of attachments to their submission which they contend support the purported 'assessment' presented in Table 2 to their submission, those attachments relate to occurrences that typically happen within an urban environment, as set out in the enclosed report of BMA Planning dated 04 July 2023.  Further, the very fact that these occurrences were addressed at the relevant time without any significant effect to the environment confirms the resilience of the baseline urban and natural environments within Malahide.

5.3       BMA planning have considered the purported 'assessment' presented by the Applicants under each of the headings set out in the Applicants' Table 2, and have set out in the enclosed report the basis on which they, Fingal County Council, and the Board, can be satisfied that the proposed public realm improvements will not give rise to any likely significant effects on the environment and that the Applicants' purported 'assessment' in that regard is incorrect in its findings.

5.4       The Applicants do not identify any experts as having assisted them in the preparation of this purported 'assessment' or point to any expert reports or evidence that would support the contentions made in this purported 'assessment'.

5.5       For example, the Applicants make a number of allegations in relation to potential traffic impacts, which are not supported by any traffic counts or other evidence, or any expert analysis of potential traffic impacts.  In contrast, as mentioned above, a detailed Traffic and Transportation Assessment (TTA) was carried out by PUNCH Consulting Engineers and appended to the EIA Screening Report, which confirms that there is sufficient resilience in the existing road network to absorb the redistribution of traffic arising from the pedestrianisation of New Street and that the impact on those streets in the wider area is not likely to be significant, and that the existing traffic arrangements relating to New Street do not give rise to any likely significant effects.  These traffic arrangements will be the same when the pedestrianisation with public realm improvements is implemented and therefore will not give rise to any likely significant effects.  A link to this EIA Appendices which contains the TTA report can be found by clicking the link here EIA Screening Report Appendices.pdf (page 292 of 726 of the pdf link for ease of reference) and a hard copy is included in the appendices to the EIA Screening Report at Attachment A to the enclosed report of BMA Planning dated 04 July 2023.

5.6       The Applicants also suggest, again without pointing to any expert advice or input in this regard and without any assessment, that the proposed public realm improvements will adversely affect the context and setting of the buildings with the Malahide Architectural Conservation Area.  In fact, the nature and scale of the proposed public realm improvements are consistent with established pattern of development within Malahide Village and are designed to integrate with the established urban environment while respecting the sensitivities of the Architectural Conservation Area and the natural environment within Malahide.  An Architectural Heritage Assessment (prepared by Coady Architects and contained in the EIA Screening Report Appendices -Appendix C page 56 of 726 of the pdf link for ease of reference and in hard copy in Attachment A to the enclosed report of BMA Planning dated 04 July 2023) assessed the impact of the proposed development on the Architectural Conservation Area and concludes that the proposed public realm improvements represents a change from its current configuration of a central carriageway with footpaths on both sides but that this change is necessary and appropriate and will enhance the setting of the historic buildings on New Street.  A link to the stand alone Architectural Heritage Assessment report can be found here: Architectural Heritage Assessment.pdf.

5.7       Further, the Applicants point to Attachment 1 to their submission in support of their contentions in relation to the ACA, but Attachment 1 simply includes two maps of Malahide Village and does not include any assessment of the potential for likely significant effects on the ACA.

5.8       Similarly, the Applicants point to a history of pluvial flooding in Malahide and include (at Attachment 8) a number of photographs of a flooding event that occurred in July of 2021, and one photograph from August 2021.  The Applicants do not provide any evidence of any increased risk of flooding arising from the proposed public realm improvements, or any expert analysis of any potential flooding issues.  However, the Site Specific Flood Risk Assessment.pdf prepared by PUNCH Consulting Engineers and contained in the EIA Screening Report Appendices (page 264 of 726 of the pdf link for ease of reference, and included in hard copy in Attached A to the enclosed report of BMA Planning dated 04 July 2023) and the AA Screening Report 'Appendices confirms that there is no likely significant increase in risk of flooding to the site or other areas as a result of the proposed development.  In fact, as outlined in the Engineering Services Report contained within the EIA Screening Report Appendices (Appendix E page 206 of 726 of the pdf link for ease of reference, and included in hard copy in Attachment A to the enclosed report of BMA Planning dated 04 July 2023), the public realm improvements for a pedestrianised New Street dramatically improve the stormwater drainage arrangements on New Street and thus represent a dramatic improvement with respect to addressing pluvial flood risk.

5.9       In relation to the other various attachments provided by the Applicants, Attachment 4 for example is alleged to include 'evidence of exposure of residential area to increased traffic and crowds' and 'evidence of anti social behaviour'.  Fingal County Council does not accept that Attachment 4 includes such evidence.  This attachment includes a number of photographs and screenshots of news items including: -

a)         On page 1, two photographs of Old Street, which runs parallel to New Street and is not part of the proposed public realm improvements for a pedestrianised New Street.  The photographs show cars and buses using the street and show members of the public enjoying outdoor dining in parklets placed on the street by local businesses, pursuant to Street Furniture Licences granted by Fingal County Council under section 254 of the Planning and Development Act 2000 (as amended).

b)         On page 2, there are two screenshots of news reports of anti-social behaviour occurring in Malahide, but not on New Street.  There is also a photograph of a group of young people sitting or standing with their bicycles on New Street.  The Applicants seek to characterise this image as showing a 'congregation of youth gangs on New Street', and Fingal County Council does not accept this description.

c)         On page 3, the first photograph-shows a group of people standing on the street and is characterised by the Applicants as showing '"Mobbing" of shops by gangs of youths'.  Fingal County Council does not accept this description.  Similarly, the fourth photograph shows a small number of young people running along New Street, but the Applicants have described this as a 'youth gang rampage' which is patently incorrect.  In fact, this photograph also shows people enjoying outdoor dining on New Street, using licenced street furniture, and apparently untroubled by the alleged 'gang rampage'.

5.10     Insofar as there is any allegation in the Applicants' submission to the Board that there may be any issues in relation to access for emergency vehicles, HGV's, etc., it is noted that the public realm improvements for a pedestrianised New Street accommodate the movements of large delivery lorries, boats for the marina and emergency vehicles and this has been fully demonstrated in a series of vehicle swept path analyses/drawings prepared by PUNCH Consulting Engineers and included as part of the Part 8 application. {Click links below here for each of the drawings, or a physical copy of the drawings are provided with the AA Screening response referenced as ABP-317131-23 dated 04 July 2023).

222126-PUNCH-XX-XX-DR-C-0600.pdf

222126-PUNCH-XX-XX-DR-C-0601.pdf

222126-PUNCH-XX-XX-DR-C-0602.pdf

2221-26-PUNCH-XX-XX-DR-C-0603.pdf

222126-PUNCH-XX-XX-DR-C-0604.pdf

222126-PUNCH-XX-XX-DR-C-0625.pdf

5.11     In that regard, Attachment 9 to the Applicants' submission includes a photograph of an ambulance, which is described as having been 'forced \o mount footpath at top of New St'.  FCC were not notified of any issues by emergency services and we note that the ambulance used the footpath for egress.  The existing bollards are to be replaced as part of the proposed public realm improvements to enhance their aesthetics and functionality.  Therefore, in fact, the existing arrangement will be enhanced by the proposed public realm improvements.

5.12     Attachment 9 to the Applicants' submission also includes a photograph of a tanker on Old Street which the Applicants say, 'blocks all traffic for 4 hours'.  This issue arose due to the axel failure of a waste truck at the southern end of Old Street, on its way to the wastewater treatment facility which is located off the northwest of Old St/Strand St junction, before the Broadmeadow Estuary Crossing.  The truck route to the Wastewater facility has historically been via Old Street, due to its proximity to Wastewater Treatment Works.  At the time of this incident, An Garcia Siochana permitted vehicular traffic to use New Street as an alternative route until the truck was removed from Old Street, and so this was a one off incident that in Fingal County Council's view had no noticeable bearing on traffic.  An occurrence such as this is something that could occur on any road in any location across any urban area in the country and the likelihood of this happening is not in any way increased by the proposed public realm improvements.

5.13     Further, attachment 10 includes 2 photographs and is described as 'Evidence about the exposure of children to alcohol advertising as well as public alcohol consumption.'  The first photograph shows two young people apparently in school uniforms, eating at a table on New Street.  The Applicants suggest that these children are being 'exposed to alcohol advertisement', which we take it is a reference to the branded awning shown in the photograph.  Such awnings are a common feature of pubs and restaurants throughout Dublin and often include branding for various alcoholic drinks.  Young people travelling to and from school will inevitably see such awnings, and indeed will likely see many other forms of advertising for alcohol, and this is not related in any way to the proposed public realm improvements for a pedestrianised New Street.  Further, the second photograph is alleged to show 'children' consuming alcohol.  While this photograph does appear to show a person sitting at a table on New Street having a drink, it is not clear from the photograph how old that person might be, or if the drink is an alcoholic drink or not."

108.      The inspector says as follows:

"8.3.1.2. Potential for Cumulative Impacts with other Existing and/or Approved Projects

The adopted FCDP has been subject to AA and SEA and considered the policy set out in 'Objective CSO63' to pedestrianise New Street.  The SEA for the plan concluded that its implementation would not result in significant effects on the environment.

It is also noted that the development is on serviced lands in an urban area and does not constitute a significant urban development in the context of the wider town and the other projects identified above in Section 4.0. 

The development is not associated with any significant loss of habitat or pollution which could act in a cumulative manner to result in significant negative effects to any Natura 2000 sites.  There are no projects which can act in combination with the development which can give rise to significant effect to Natura areas within the zone of influence.

Similarly, the development is not associated with any significant generation of traffic which could act in a cumulative manner to result in significant negative effects to the surrounding road network.  The road network is relatively permeable in this area and any displacement of parking would be minimal in the context of the wider town.  The conclusions of the Traffic and Transportation Assessment submitted by FCC is considered reasonable in this context and the road network can absorb the redistribution of traffic.

Should the construction of the proposed development occur in tandem with other urban development, including those set out in Section 4.0 of this report and in particular the public realm projects listed, any impacts would be of a temporary nature and short-term given:

• the limited nature of works (i.e., no significant structures, length of street), 

• the expected duration of the works (15 months), 

• the location of lands to be developed (town centre),

• the location and distance to the other existing and/or approved projects.

• the likelihood of temporal overlap of construction works between projects.

• the implementation of standard and best practice construction and operation measures.

It is considered unlikely that significant cumulative impacts with other existing and/or approved projects would arise."

109.      At para. 8.2, the inspector rejected the concept of a relationship between the project and other matters:

"The applicants raise the issue that the size of the urban development is larger than the site size identified and FCC are effectively splitting several projects that make up the Malahide Public Realm Strategy and other schemes in the area.  When public realm strategy is considered wholly the 2 hectare is exceeded and an EIA is required according to the applicants.

However, it is considered that the projects in the strategy are not functionally interdependent with each other and the New Street project arises from a distinct need and is not integral to any other.  It is reasonable that FCC in seeking the apply a public realm strategy would take individual distinct needs and present these to the planning system as required - this is inevitable for organisations undertaking large capital works programmes like local authorities.  It is not considered that 'project-splitting' occurs.

Therefore, it is 'subthreshold', and a mandatory EIA is not required.

In such instances, where the development is 'subthreshold', an assessment should be made against the criteria for determining whether development listed in Part 2 of Schedule 5 which are set out in Schedule 7 of the PDR.  This is set out below in Section 8.3."

Cumulative effects - the legal context

110.      One crucial point made by the applicant is that compliance with the directive is an autonomous obligation and thus that cumulative or in-combination effects must be considered as required, independently of submissions.  That is correct and is consistent with CJEU caselaw, particularly the judgment of 21 September 1999, Commission of the European Communities v Ireland, C-392/96, European Court Reports 1999 I-05901, ECLI:EU:C:1999:431 referred to below.  The level of detail in terms of reasons may nonetheless be contingent on the extent of submissions made. 

111.      The applicant's next point was that the law on cumulative impacts was unclear and required a reference to Luxembourg. 

112.      On that issue, the parties' positions as recorded in the statement of case are summarised as follows:

"Applicant's Proposed Questions

Does A4(3) of the EIA Directive (2011/92) require that, when calculating whether a proposed development exceeds the threshold at which national law deems EIA to be mandatory (for a development of a particular class and type, in this case urban development in a business district where the area involved exceeds 2 ha), the competent authority must aggregate the size of former projects carried by the same developer (a local authority) in the same general area, so that once the cumulative area of all such projects exceeds the threshold set, EIA is deemed to be mandatory?

The Council does not consider that there is any requirement for any question to be referred to the CJEU.

The Board does not consider that any requirement for a reference to the CJEU arises."

113.      Whether the law is in fact uncertain requires a look at the caselaw and we will come back to this.

114.      One problem is that the concept of cumulative impacts has two senses.  One is in defining the "project as a whole" that must be assessed - where there are a number of sequential or related developments they should be considered cumulatively in determining whether thresholds for EIA are met.  As the caselaw makes clear, there are situations where the individual sub-projects (for want of a better term) are quite different, though in most cases they are related in some readily identifiable way.  Under the heading of this sense of the term, even if the project being consented does not require EIA on its own terms, it may require EIA if it forms part of a wider supra-threshold project.

115.      The separate context is that where other projects are definitely not part of the "project as a whole" at hand, cumulative and in-combination effects still have to be considered in deciding whether sub-threshold development should be subjected to EIA (Annex III para. 1(b) of the EIA directive), and in the carrying out of EIA itself where that applies.

116.      That distinction involves distinguishing between "the project as a whole" and other projects (which nonetheless may need to be considered in combination or cumulatively). 

117.      The principle could be summarised as follows:

                    (i)        The project as a whole must be considered for EIA purposes - even if this goes beyond the project for which consent is sought.  Thus for example if consent is sought for a sub-threshold project which is part of a supra-threshold project (whether already part-consented in successive phases, or involving separate consent applications in process or yet to be made) then the project for which consent is sought must be treated as supra-threshold if either an EIA that would otherwise be required would be avoided by the splitting, or if the part of the project being consented has significant effects on the environment in conjunction with another part that has already been subjected to EIA.  There are situations in which otherwise functionally unrelated projects need to be considered collectively for threshold purposes as the caselaw indicates (piecemeal peat harvesting in Ireland; accumulated urban development in Austria, for example).

                   (ii)        As regards the relationship with other projects falling outside the "project as a whole", the cumulative and in-combination effects must still be considered as part of any EIA screening or EIA itself.

118.      This is complex enough but the major complexity is, I think, in the definition of "project as a whole" since that can go beyond the project being consented.  The domestic law has to reflect that, something we will come to.  Irish law is clear that the project to be assessed is that for which consent is sought (see e.g. Fitzpatrick v. An Bord Pleanála [2019] IESC 23, [2019] 3 I.R. 617, [2019] 2 I.L.R.M. 247 (Finlay J.)).  That is not in issue as long as we understand that that project may have to be assessed as part of a wider project (recognised in paras. 56 and 61 of Fitzpatrick), and in particular that the question of whether EIA is required may have to be considered by reference to the wider project rather than just the project for which consent is sought, so that if the overall project is supra-threshold then the project at hand may need to be assessed even if that element is sub-threshold.

119.      It will be illuminating to look at the EU caselaw which is cited in submissions and in:

                    (i)        Commission notice regarding application of the environmental impact assessment directive (directive 2011/92/EU of the European Parliament and of the Council, as amended by directive 2014/52/EU) to changes and extension of projects - Annex I.24 and Annex II.13(a), including main concepts and principles related to these (2021/C 486/01) (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=oj:JOC_2021_486_R_0001), nn. 31-37; and

                   (ii)        European Commission: COWI, Directorate-General for Environment, Milieu, Hansen, D. S., Fisker, S. et al., Environmental impact assessment of projects - Guidance on screening (Directive 2011/92/EU as amended by 2014/52/EU), Publications Office, 2017, https://data.europa.eu/doi/10.2779/092377.

120.      The position can be summarised as follows:

                    (i)        In the judgment of 24 October 1996, Aannemersbedrijf P.K. Kraaijeveld BV e.a. v Gedeputeerde Staten van Zuid-Holland, C-72/95, ECLI:EU:C:1996:404 (Kraaijeveld), at para. 50, the CJEU emphasised that the limits of the discretion to set thresholds for assessment are to be found in the obligation set out in art. 2(1) of the EIA directive that projects likely, by virtue inter alia, of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment.

                   (ii)        The judgment of 21 September 1999, Commission of the European Communities v Ireland, C-392/96, ECLI:EU:C:1999:431, paras. 76 and 82, related to a situation where individual projects of peat extraction and destruction of limestone pavements and other features, none of which were subjected to EIA, cumulatively amounted to having a significant effect on the environment.  The "projects" were it seems by different "developers" at different times and functionally distinct.  The accumulated weight of the projects had a predictable outcome - "much land clearance has taken place in the Burren without a single impact assessment being carried out, although it is an area of unquestionable interest.  Limestone pavement, which is characteristic of the area, has been destroyed, as have vegetation and archaeological remains, giving way to pasture" (para. 80).  One can interpret the decision as either giving a very broad interpretation to the concept of a project, or as meaning that where cumulative effects are significant, that impacts on the definition of the project as opposed to on the scope of assessment if the project exceeds EIA thresholds.

                 (iii)        The judgment of 16 September 2004, Commission of the European Communities v Kingdom of Spain, C-227/01, ECLI:EU:C:2004:528 was a case about whether EIA was required for a 13.2 km rail line which was part of a longer 251 km rail project.  The project appeared to have been substantially underway by the time the enforcement proceedings were launched.  The court said that a national authority could not split up a long-distance project into successive shorter sections in order to exclude from the requirements of the directive both the project as a whole and the sections resulting from that division (para. 53).

                 (iv)        The judgment of 4 May 2006, Commission v United Kingdom, C-508/03, ECLI:EU:C:2006:287 was about failure to provide for EIA at a later stage of the same project following EIA at the outline permission stage.  At paras. 101-106 the court was clear that if certain effects are not capable of being determined at the stage when they are assessed, they must be assessed at the stage of any later consent in a multi-stage process.

                  (v)        The judgment of 28 February 2008, Paul Abraham and Others v Région wallonne and Others, C-2/07, ECLI:EU:C:2008:133 was a complex decision regarding modifications to Liege airport, but the essential point was that the domestic court had to determine whether an agreement to such modifications was a development consent, and in doing so had to consider both whether the modifications involved a principal consent with subsequent implementing consents and whether different projects taken as a whole had cumulative effects (para. 28).  It's hard to know how to classify that Delphic pronouncement but the key context was that the works were to the same development as the original airport.

                 (vi)        The judgment of 25 July 2008, Ecologistas en Acción-CODA v Ayuntamiento de Madrid, C-142/07, ECLI:EU:C:2008:445 concerned the Madrid Calle 30 project which was an underground re-routing of a large motorway, broken up into 15 sub-projects of which only one satisfied the domestic EIA threshold.  The exact state of the consenting process for the sub-other projects wasn't clear on my reading and I assume at least some were yet to be consented.  The CJEU said (emphasis added): "45. As regards the projects at issue in the main proceedings, it is clear from the order for reference that they are all part of the larger project 'Madrid calle 30'.  It is for the referring court to verify whether they must be dealt with together by virtue, in particular, of their geographical proximity, their similarities and their interactions" (dealt together meaning for EIA purposes).  The court also said that "44      ... the purpose of the amended directive cannot be circumvented by the splitting of projects and the failure to take account of the cumulative effect of several projects must not mean in practice that they all escape the obligation to carry out an assessment when, taken together, they are likely to have significant effects on the environment within the meaning of Article 2(1) of the amended directive (see, as regards Directive 85/337, Case C-392/96 Commission v Ireland [1999] ECR I5901, paragraph 76, and Abraham and Others, paragraph 27)".  In fact Abraham didn't use the phrase "several projects" in para. 27 - the phrase suggests several potentially distinct projects.

               (vii)        In the judgment of 30 April 2009, The Queen, on the application of Christopher Mellor v Secretary of State for Communities and Local Government, C-75/08, ECLI:EU:C:2009:279, at para. 50 and the judgment of 16 July 2009, Commission of the European Communities v Ireland, C-427/07, ECLI:EU:C:2009:457, at para. 41 the court reiterated the point in C72/95 Kraaijeveld about the limits of the discretion to set thresholds.

               (viii)        The judgment of 10 December 2009, Umweltanwalt von Kärnten v Kärntner Landesregierung, C-205/08, ECLI:EU:C:2009:767 para. 51 emphasised that an overall assessment of the project was required even if it was transboundary - and in that case even if a relatively small part of the power line concerned was in the member state concerned.

                 (ix)        The judgment of 3 March 2011, Commission v Ireland, C-50/09, ECLI:EU:C:2011:109 concerned the need for the option of EIA in the context of an Environmental Protection Agency (EPA) licence for the same project as was subject to planning.  Part of the problem was noted at para. 78 that the EPA could grant a licence before EIA was carried out in the planning process.

                  (x)        The judgment of 17 March 2011, Brussels Hoofdstedelijk Gewest and Others v Vlaamse Gewest, C-275/09, ECLI:EU:C:2011:154 concerned an operating permit relating to BruxellesNational Airport.  The court held that while an airport operating permit is not in principle a project in the absence of physical works, it is for the national court to determine, on the basis of the national legislation applicable and taking account, where appropriate, of the cumulative effect of a number of works or interventions carried out since the entry into force of the directive, whether that permit forms part of a consent procedure carried out in several stages, the ultimate purpose of which is to enable activities which constitute a project to be carried out.  If no assessment of the environmental effects of such works or interventions was carried out at the earlier stage in the consent procedure, it would be for the national court to ensure that the directive was effective by satisfying itself that such an assessment was carried out at the very least at the stage at which the operating permit was to be granted.

                 (xi)        The judgment of 21 March 2013, Salzburger Flughafen GmbH v Umweltsenat, C-244/12,  ECLI:EU:C:2013:203 was a case where there was a challenge to additional infrastructure at Salzburg airport.  The context was the prior construction of a terminal in 2002-04.  Again it wasn't totally clear on my reading whether that was subjected to EIA and I assume not.  The case concerned whether EIA was required for a further permission in 2004 for the construction of warehouses/ hangars, parking, stands, and taxiway alterations.  The CJEU in said at para. 37 in the context of successive developments at the same location, that it can be necessary to take account of the cumulative effect of projects in order to avoid a circumvention of the objective of the European Union legislation by the splitting of projects which, taken together, are likely to have significant effects on the environment.  It was for the referring court to examine, in the light of the caselaw, whether and to what extent the effects on the environment of the projects referred to in the judgment and the projects already carried out at the airport must be assessed as a whole.

                (xii)        The judgment of 11 February 2015, Marktgemeinde Straßwalchen and Others v Bundesminister für Wirtschaft, Familie und Jugend, C-531/13, ECLI:EU:C:2015:79, concerned whether exploratory drilling had to be subject to EIA.  The court said at para. 45 that it follows that a national authority, in ascertaining whether a project must be made subject to an environmental impact assessment, must examine its potential impact jointly with other projects.  Moreover, where nothing is specified, that obligation is not restricted only to projects of the same kind.  The preliminary assessment must also consider whether, on account of the effects of other projects, the environmental effects of the exploratory drillings may be greater than they would be in their absence.  The context was the statement of the referring court that there are roughly 30 probes for gas extraction within the area of the Marktgemeinde Straßwalchen which were not taken into consideration by the Bundesminister für Wirtschaft, Familie und Jugend in the contested decision, whereas the referring court said that it is clear from the judgments in Umweltanwalt von Kärnten (C205/08, EU:C:2009:767, para. 53) and Brussels Hoofdstedelijk Gewest and Others (C275/09, EU:C:2011:154, para. 36) that the objective of directive 85/337 cannot be circumvented by the splitting of projects.  The CJEU said that the other projects to be considered must include those in other member states - outside what it called "municipal boundaries" (i.e., outside the territory of the member state concerned - see para. 46).

               (xiii)        In the judgment of 25 May 2023, WertInvest Hotelbetriebs GmbH v Magistrat der Stadt Wien, C-575/21, ECLI:EU:C:2023:425, the CJEU said at para. 46 that a member state which established thresholds or criteria at a level such that, in practice, all projects of a certain type would be exempted in advance from the requirement of an impact assessment would likewise exceed the discretion available to it, unless all the projects excluded could, when viewed as a whole, be regarded as not likely to have significant effects on the environment (citing judgment of 31 May 2018, Commission v Poland, C526/16, not published, EU:C:2018:356, para. 61 and the caselaw cited).  The context was that of different projects in the same urban area, whether already consented or not.

121.      We can thus try to summarise things in tabular form as follows:

Should the project be assessed for determining if the threshold for EIA is met in tandem with another project if the other project is as follows?

 

Already consented (or carried out to the extent consent is unnecessary)

Application to be consented

EIA was already carried out

Category 1

 

Potentially if effects not all assessed initially: C-508/03, Commission v United Kingdom

Category 3

 

Not applicable (because lack of consent means lack of a complete EIA process)

EIA was not carried out

Category 2

 

Potentially: C-392/96, Commission v Ireland; C-275/09, Brussels Hoofdstedelijk Gewest; C-244/12, Salzburger Flughafen GmbH; C-531/13, Marktgemeinde Straßwalchen and Others v Bundesminister für Wirtschaft, Familie und Jugend; C-227/01, Commission v Spain; C-575/21, WertInvest Hotelbetriebs GmbH

Category 4

 

Potentially: C-50/09, Commission v Ireland; C-142/07, Ecologistas en Acción-CODA; C-575/21, WertInvest Hotelbetriebs GmbH

 

Assessment of core ground 7 - reasons and lack of consideration

122.      We need to go back to the pleadings here and remind ourselves that the complaints were essentially lack of reasons, lack of consideration, and project-splitting.  The other complaints are in substance consequential on those headings.  The difference between consideration in the abstract and project-splitting is as to whether the other projects are part of the "project as a whole".  If so, there may have been splitting, if not there still has to be consideration of in-combination effects.

123.      Insofar as the applicant complains about the lack of consideration of impacts in conjunction with the development of a carpark at the Bridge Field, refurbishment of the Green, and the Broadmeadow Greenway, cumulative impacts were considered as a general proposition.

124.      Insofar as the applicant complains about lack of reasons, the obligation is to provide the main reasons on the main issues and that was done.  What are the main issues is influenced by the nature of the submissions made. 

125.      That leaves project-splitting.

Assessment of core ground 7 - project-splitting - projects other than Broadmeadow Way

126.      Insofar as concerns the general complaint that the project should have been considered as supra-threshold by considering it in combination with the car-park and Green refurbishment in terms of road safety, nothing specific about the interaction with those developments that gives rise to an issue about road safety has been pleaded to allow such a complaint to succeed.

Assessment of core ground 7 - project-splitting - Broadmeadow Way

127.      That leaves us with the complaint that the project should have been considered as supra-threshold by reference to its interaction with the Broadmeadow Way project (or to put it another way - not subjecting it to EIA constitutes project-splitting) by reason of the large number of cyclists arriving at the Strand Road.

128.      This is category 1 in our table above - where the earlier (sub-)project was subjected to EIA but the later (sub-)project was not.

129.      Applying the law to the facts here one comes to a position as follows:

                    (i)        While the starting point is that the project to be assessed is the project for which consent is sought, EU law can clearly require a wider assessment in certain circumstances.  In the case of interaction with an already-assessed and already-consented project, an overall assessment is still required if any significant effects of the combined projects were not assessed initially. 

                   (ii)        That abstract framework still leaves open the question of whether this was such a case.

                 (iii)        In this case, the board took the view that the current (sub-)project did not have any significant effects on the environment in combination with the Broadmeadow Way project.  Having regard to the council submission, addressed above, the board had expert material which would allow it to reject any non-expert claim about road safety without the necessity for more detailed discussion.

                 (iv)        If an applicant wants to displace that there is an onus of proof to be discharged in that regard.  In the absence of overcoming that, as here, treating the projects as a combined supra-threshold project is not a requirement of EU law and thus the point is not a basis for certiorari.

130.      The decision says that any submissions made were considered and the applicant hasn't proved otherwise.  The lack of narrative discussion does not equate to lack of consideration.  The express finding of lack of significant interaction with other projects hasn't been shown to be unreasonable or otherwise unlawful.  The board had the council's traffic and transportation assessment which it considered reasonable.  That isn't unlawful, even bearing in mind the applicant's point that the assessment didn't specifically ask to what extent any increase in traffic on Old Street would impact on cyclists leaving the proposed greenway to travel into New Street.  That is addressed implicitly in the conclusion that surrounding streets can absorb the traffic from New Street.  A general conclusion of absorption implies being satisfied with absorbing traffic in particular contexts.  The alleged impact on cyclists is somewhat speculative anyway.  The applicant's characterisation of this as "funnelling" leading to "intensification" and confluence with cycle traffic is slightly rhetorical.  Traffic, whether vehicular or cycle-based, redistributes to cope with the conditions.  Hence the council's view and the board's conclusion that the road network could absorb the effect of pedestrianising one short street without causing a significant adverse effect on the environment in the sense of road safety or otherwise. 

131.      So the point can't succeed, subject to the legislation being valid.  Recourse to Luxembourg doesn't arise because the applicant hasn't displaced the board's factual assessment by evidence, so the point is abstract and not "necessary" under art. 267 TFEU.  A reference would thus be inadmissible and academic.  In any event, viewing the caselaw as a whole, no uncertainty in EU law has been demonstrated.

Legislative validity or transposition issues

Core ground 6 - alleged invalidity of the regulations

132.      Core ground 6 is:

"6.        R120 PDR is required to be read in accordance with A2(1) and A4(3) of the EIA Directive so that screening of a proposed development to determine whether it exceeds the threshold at which EIA is required is required to screen the entirety of the project, not just the Proposed Development itself.  If and insofar as it may only require screening of the Proposed Development to the exclusion of the project as a whole, R120 PDR is ultra vires the Minister because it infringes A2(1) and A4(3) of the EIA Directive, and should be set aside or declared invalid."

133.      The parties' positions as recorded in the statement of case are summarised as follows:

"Applicant Position

(Note that Core Ground 6 is misplaced, and should follow Core Ground 7.)

Where a series of projects cumulatively exceeds the size threshold at which EIA becomes mandatory, A2 and A4(3) of the EIA require that EIA must be carried out regardless of the fact that the individual project under consideration does not itself exceed the threshold. (In this case the threshold is 2ha for urban development in a business district.) If it is held that the Board did not err in its application of R120 PDR by failing to take account of the size of prior projects in calculating whether the threshold was exceeded, on the basis that R93 and R120 PDR, and Schedule 5 Part 2 Class 10(b) do not require the Board to ensure it carries out an EIA in such circumstances, then those provisions fail adequately to transpose A2 and A4(3) and Annex III of the EIA Directive which do so require.

Board Position

This Core Ground is primarily addressed to the State Respondents.  However, insofar as it is premised on a particular outcome in respect of Core Ground 5, the Board relies on its position as set out above in respect thereto.  Without prejudice thereto, this ground of challenge is not particularised in accordance with the requirements of Order 84, Rule 20(3) of the Rules of the Superior Courts and there are simply no pleaded particulars in support of this ground within the Statement of Grounds.

Council Position

This is a ground of challenge in respect of which the pleadings are wholly inadequate.  The Statement of Grounds does not explain at all the basis upon which it is alleged that there has been a failure to properly transpose the EIA Directive.

The substantive challenge is without merit as it is premised on both an interpretation of the EIA Directive as regards the scope of the project which has been consistently rejected and a mischaracterisation of the factual position.

State Position

The State Position is that the requirements of Order 84 Rule 20 (3) have not been met by the Applicant as it is unclear how it is said that Article 120 of the PDR 2001 is unlawful (which is denied).

Article 120 enables the local authority to determine when a project need not undergo either the determination under paragraphs 4 or 5 of Article 4 of the EIA Directive.  Article 120(4)(a) obliges a planning authority or the Board to, inter alia, to have regard to the criteria in Schedule 7 to the PDR 2001 in making its screening determination under Article 120(1B) or Article 120(3)(cc) of the PDR.

Schedule 7 obliges the competent planning authority to take into account the cumulation of the Proposed Development with other existing development and/or development which is the subject of a consent for proposed development for the purposes of section 172(1A)(b) of the Planning and Development Act 2000 and/or development which is the subject of any development consent for the purposes of the EIA Directive.  The 'Proposed Development' in this case is the development proposed by the Council."

134.      The basic logic of this complaint is that even if the board's decision could have been the appropriate one, the legislation prevented the board from having the full range of options open to it.  That is totally logical but where it runs into difficulty is the suggestion that the legislation prevented the board from complying with EU law.  The impugned provision centres on art. 120(3)(b) which provides:

"(b) Where any person considers that a development proposed to be carried out by a local authority would be likely to have significant effects on the environment, he or she may, at any time before the expiration of 4 weeks beginning on the date of publication of the notice referred to in article 81(2), apply to the Board for a screening determination as to whether the development would be likely to have such effects."

135.      Admittedly the legislation would be better if the concept of effects was expressly explained as meaning either individually or in combination with other projects.  The absence of those words isn't fatal because the legislation is capable of being read in an EU-law compliant manner in this respect on standard C-106/89 Marleasing principles. 

136.      Perhaps the State might consider if the wording can be improved (this may affect other provisions of legislation also) in the forthcoming process of the production of new regulations, but in the absence of any particular block to a conforming interpretation, the legislation is not invalid as alleged. 

Summary

137.      Before concluding and at the risk of stating the obvious, I wonder if the parties would forgive me for asking if there is any room for the council to consider further consultations with the Old Street residents or the elected members on their behalf, to see if any other road design, traffic management, calming or parking measures or other steps in their own street or other areas could improve things for them or other Malahide residents or both in a way that might take the edge off any perceived knock-on effects of the New Street changes.   The applicant referred in her submission to options in Old Street such as widening the footpath, allowing bench seating outside houses, greening the concrete.  All of these sound totally doable and are common practice elsewhere (one could give Dutch examples but then one can give Dutch examples for most good urban design, if not design and land use generally and probably lots of other things as well).   Admittedly there would be impacts on the number of car parking spaces - that's the ever-present reality of trade-offs again, a perpetual disappointment to the those whose imaginative bandwidth doesn't stretch beyond simplistic solutions.  Weighing the trade-offs is a matter for those concerned.  Even mitigating noise impacts on Old Street residents from revelry on the pedestrianised New Street shouldn't be completely impossible at least to some extent.  Some form of planning gain for Old Street might go a little way towards assuaging some of the by no means wholly unreasonable concerns articulated by the applicant if the pedestrianisation of New Street does go ahead as proposed.

138.      In outline summary, without taking from the more specific terms of this judgment:

                    (i)        Core ground 1 - the applicant is correct that there has been non-compliance with the statutory requirement for an LAP.  This warrants a declaration rather than certiorari because the lack of a plan does not render the works invalid, doubly so where they already have plan-based support in the county development plan.

                   (ii)        Core grounds 2 and 8 have been dropped and core ground 4 is merely consequential.

                 (iii)        Core ground 3 - the requirement applying to the chief executive was to summarise matters and it has not been shown that the summary was so defective as to require certiorari.

                 (iv)        Core ground 5 - the board did not misinterpret the regulations in holding that this was a sub-threshold project in terms of area of works and not a supra-threshold project as alleged.

                  (v)        Core ground 7 - the applicant has not discharged the onus to show that the board's assessment of the lack of significant environmental impacts due to cumulative assessments was flawed, especially given the nature of the submissions actually made and bearing in mind that the context the Broadmeadow Way project was subjected to full EIA already.

                 (vi)        Core ground 6 - the regulations are not invalid as they can be read harmoniously with EU law.

Order

139.      For the foregoing reasons, it is ordered that:

                    (i)        there be a declaration that from on or about June 2020 to date and continuing, the respondent failed and is continuing to fail to comply with s. 19(1)(b) of the Planning and Development Act 2000 by failing to adopt a local area plan for Malahide;

                   (ii)        the proceedings be otherwise dismissed;

                 (iii)        unless any party applies otherwise by written legal submission within 21 days from the date of this judgment, the foregoing order be perfected forthwith thereafter on the basis of an order for costs (including the costs of written submissions and certifying for two counsel in respect of any applications) being awarded to the applicant against the first named respondent, limited to the costs that would have been incurred had the applicant confined her proceedings to the issue on which she prevailed, and that any issue as to the extent of the costs that would have arisen in that circumstance be determined, in default of agreement, in the legal costs adjudication process, with a stay on the execution (as opposed to the adjudication) of any such costs until the final determination of the proceedings, and no order as to costs in favour of or against any other party; and

                 (iv)        the matter be listed on Monday 12th May 2025 to confirm the foregoing.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC204.html