A judge has ruled that a challenge against Galway County Council's decision to authorise emergency flood relief works near Kylemore Abbey in Connemara can be admitted to the High Court's Commercial Planning and Strategic Infrastructure Development list.
In his judgement on a preliminary issue in the case Mr Justice Richard Humphreys rejected the council's claim that admitting the case, taken by the Friends of the Irish Environment (FIE) over the works, would result in additional legal costs.
The judge also remarked that Galway Council did not seem "to get the memo" that public bodies do not generally oppose applications to have cases entered into specialised court lists.
In an action that may have wider implications for local government, FIE claims that the works were given permission to go ahead by the Council under 1949 Local Authorities Act.
This it claims amounts to a breach of EU laws designed to protect the environment.
The action relate to works carried out near in and around Kylemore Bridge over the Dawros or Kylemore River in North Connemara, which is close to the well-known landmark Kylemore Abbey.
FIE applied to have the case admitted to the fast-track 'Commercial Planning and Strategic Infrastructure Development List, the specialist division of the High Court that deals with significant planning matters.
The Council opposed FIE's application to admit the case to the list due to the legal costs involved.
In his ruling on this preliminary matter the judge said the council's "strategic rationale" for its objection to entry "seemed unclear" and its arguments seemed to be "almost certainly wrong".
He said that the case management of the specialist list reduces the number of times that such cases come before the courts.
The judge said that the general time-limit for hearings in the list of three days to four for substantive matters, which is only rarely departed from, also saves costs.
He said that the council argued that this case might not exceed such a time period anyway, but that is speculative.
Maybe or maybe not, but the case involves complex questions that also engage arguments against the State, the judge said.
Read more: Locals express concern over frequent Kylemore flooding
A modest limit for the length of the hearing could well bring significant benefits in this case, he added.
Another factor that could reduce costs, and result in a quicker hearing of the case, is the benefit of having the matter dealt with in a specialised list, he said.
"The advantage of specialisation is normally that it avoids any possible requirement for a judge assigned to a more general area to have to read into the particular topic concerned, especially a field as technical as planning." he said
"To argue, as the council says here, that there is enough expertise in the general judicial review list, is to come close to almost nihilistically denying the whole purpose of a specialised list in the first place."
The Council's proposition did not "stand up to a whole lot of scrutiny."
He added that "sensibly, the State respondents pleaded neutrality on the motion to admit."
"There is a general unwritten practice that public law entities don't stoop to such tawdry practices as forum-shopping, objecting to transfer of cases to specialised lists, demanding recusal of judges and so on, but are expected to fatalistically accept whatever judge they come before, thus contributing something intangible but real by way of upholding mutual respect as between the judicial and other branches of government," he said.
"Galway Council doesn't seem to have got that memo, but so be it; I don't hold that against them, and I will have to determine the objection on its legal merits."
Argument 'overblown'
In his judgement Mr Justice Humphrey accepted that while the value of the claim was less than €1m, as the cost of the work was approximately €85,000, he said that there was "a commercial benefit" to the case being admitted to the list, due to the savings in time and costs.
The court's decision on the case, he added, could also affect similar public works generally which could cumulatively amount to the saving of significant commercial sums.
The judge further rejected the council's argument that the admission of the case to the list would open a floodgate of other cases being admitted to the list, which do not meet the criteria for entry.
The judge said that argument was "overblown."
In the circumstances the judge said that FIE had made out an ample for the case to be admitted to the list.
In its judicial review action FIE against the Council, Ireland and the Attorney General, claims that the permission granted for the works under the 1949 Act, cannot be permitted under EU law, and permission should have been sought under the 2000 Planning and Development Act.
The river is one of just a few remaining habitats in Ireland where the rare freshwater pearl mussels, which it is claimed are on the brink of extinction, can be found.
FIE claims that the council has authorised itself to carry out works, including dredging the river, on what is locally known as the Iron Bridge, aimed at preventing flooding.
The works were completed in October of last year.
It is claimed that the works may impact on mussels and salmon populations in the river.
Both species require pristine water to survive and thrive, it is claimed.
FIE claimed that the council has authorised flood relief works under the 1949 Act that are likely to have a significant effect on the environment and at the very least require to be screened for the purposes of complying with the EU directive on Environmental Impact Assessments.
The council it is claimed did not carry out any environmental assessments prior to the commencement of works, which FIE also claims breaches European Law.
FIE, represented by John Kenny Bl instructed by Eoin Brady of FP Logue solicitors, seeks several reliefs including an order quashing the council's decision to authorise works at the N59 Kylemore Bridge, in Connemara, and a temporary stay on those works.
FIE seeks a declaration that permission for the proposed works should be sought under the 2000 Planning and Development Act.
It also seeks declarations including that sections of the 1949 Act are invalid and constitute a mis-transposition of EU Directives on Habitats and Environmental Impact Assessments.
FIE further seeks declarations that the State respondents have failed to properly transpose those directives into domestic Irish law.
The case will be mentioned before the court at a later date.
