Cork city flood relief planning permission challenged in High Court

A Cork city community association has brought a High Court challenge over An Bord Pleanála’s permission for certain flood relief works in the city.

Mr Justice Richard Humphreys granted leave on Thursday for the action by Save Cork City Community Association CLG (SCCCA) against the Board, the Minister for Housing, Local Government and Heritage, and the State.

The case is aimed at overturning the Board’s June 17th 2020 permission approving remedial works to the existing quay walls in Cork city, the construction of public realm improvement works and flood defence works between Parliament Bridge and Parnell Bridge along Morrison’s Quay and Fr Matthew Quay and a short section along Union Quay close to Trinity footbridge at Morrison’s Island.

Jerry Healy SC, with John Kenny BL, instructed by solicitor Fred Logue, for the applicant, secured leave on Thursday to bring the judicial review proceedings. The case will be managed in the court’s strategic infrastructure development and commercial planning list and further directions will be made when the matter returns before the court in two weeks.

In its proceedings, the assocation wants orders quashing the Board’s permission as well as various declarations, including that the State respondents have failed to transpose, adequately or at all, Article 9a of the Environmental Impact Assessment (EIA) Directive in respect of conflicts of interest for the purpose of the proposed development.

The group’s core claim is that the permission involves impermissible “project splitting” within the meaning of the EIA Directive. Its concern is that part of a project for the purposes of the EIA Directive may now be given consent without the project as a whole being made subject to an EIA.

The association says the disputed works are just one part of the overall proposed flood relief scheme for Cork city, the Lower Lee Flood Relief Scheme (LLRFS), that the overall scheme is subject to an EIA procedure, which has not completed, and permission for the disputed works cannot be granted until the EIA procedure is complete.

The Board was obliged, but failed, to consider the proposed works as part of the overall scheme, it is claimed. This was particularly the case where the proposed works include flood relief measures which, when constructed, will be at the exact same height as, and will be fully integrated, with the overall scheme.

The Board’s inspector made a fundamental error of fact in identifying the full Lower Lee Flood Relief Scheme as “in abeyance” when it is not or without identifying the ambit of any such suspensive status, the association claims.

The association further claims that the Council, prior to public consultation, failed to state or make available for public consultation the fact it had already determined that EIA and appropriate assessment had been screened out

It is claimed the Directive requires, when a competent authority is also an applicant for planning permission, to avoid a conflict of interest but the State has failed to provide for that in the planning regime. Allowing the Council to screen out the necessity for an EIA constitutes a conflict of interest and the Board had no power to revisit the council decision, either by carrying out an EIA itself or directing the council to do so, it is claimed.