Dan Boyle: See You In Court


From top: The proposed M28 route from Cork City to Ringaskiddy; Dan Boyle

This week arguments are being heard in the High Court on the decision of Bord Pleanala to agree with an earlier decision of Cork County Council, to approve the route for the construction of a new section of motorway, the M28, to better link the Port of Cork at Ringaskiddy with the existing road network.

The gist of the argument being made is that neither Cork County Council nor Bord Pleanala put sufficient emphasis on the EU Habitats Directive when making their respective decisions.

Their collective oversight seems to have been most negligent regarding a historic quarry at Raffeen, a key point of the proposed motorway route.

Maybe the County Council and Bord Pleanala were unduly influenced by the term ‘quarry’? The site had been untouched for many decades. It has developed into quite a haven of biodiversity.

Something that should been obvious to anyone promoting this project, if they had done anything like an effective Environmental Impact Statement.

There is a good reason that this legal argument could hold sway, given a recent court decision made in favour of Friends of the Irish Environment in relation to the proposed Shannon LNG refinery.

Here the total inadequacy of adhering to the EU Habitats Directive was cited as the ultimate reason why the planning decision was unsafe.

The M28 judicial review is one of several such reviews that have or are being heard, all emanating from the Cork region.

Before the end of 2018 the Save Cork City campaign, protesting OPW proposals to create a concrete sarcophagus for the River Lee, as the least imaginative response to flooding risks, won its judicial review on Cork City Council’s contemptuous ignoring of the Habitats Directive.

Pending judicial reviews remain to be heard on the proposed Ringaskiddy incinerator, the plastics factory being suggested for Skibbereen, and an unloved promotion of a mechanised Kelp farm for Bantry Bay.

Giving permission to hear judicial reviews is by no means a given. The granting of these hearings is an admission that credibility exists in the taking of these cases, combined with the need to have arguments heard.

Part of me welcomes judicial activism in relation to the environment. It highlights the political indifference that has otherwise been the lot of environmental campaigners.

Much of this has been made possible by the application of the Aarhus Directive on the right to freedom of information on environmental matters into Irish law.

The Irish legal system has yet to realise the potential of this directive, but its impact is being felt incrementally.

In government The Greens struggled with an Attorney General who was painfully slow in implementing Aarhus. Within months of The Greens leaving office, a new Attorney General had no such qualms.

What these collective actions surely show is that our quasi judicial bodies, Bord Pleanala and the Environmental Protection Agency are not fit for purpose.

Neither body has ever had an environmental activist as a member of its board. Both have been the creatures of the traditional political parties and most particularly of IBEC.

In case it gets mentioned, while The Greens were in government, no vacancy occurred in either of these bodies.

We should be considering an Environmental Court, or possibly an Environmental Ombudsman.

To persist with a system where the only winners are the legal eagles, does not help campaigners, nor does not suit any concept of natural justice, and most certainly it doesn’t suit the environment.

Dan Boyle is a former Green Party TD and Senator. He is running in the local elections in Cork in May  for the Greren Party.  His column appears here every Thursday. Follow Dan on Twitter: @sendboyle

Map: Cork National Roads Office

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17 thoughts on “Dan Boyle: See You In Court

  1. growing_muses

    “Giving permission to hear judicial reviews is by no means a given. The granting of these hearings is an admission that credibility exists in the taking of these cases, combined with the need to have arguments heard.”

    Obtaining leave to JR a decision, especially on environmental grounds, is literally the lowest bar imaginable for litigation these days. This is a rather disappointing article for its lack of research, doubly so given the amount of highly competent environmental lawyers within your own party who could gladly have given you a steer.

  2. Dan Boyle

    I’ll bear that in mind when I submit to the Harvard Law Review. Applications for judicial review can and do get turned down, even on environmental grounds. Each of these campaigns sought judicial review with uncertainty, and were so advised.

  3. Ollie

    In government The Greens struggled with an Attorney General who was painfully slow in implementing Aarhus. Within months of The Greens leaving office, a new Attorney General had no such qualms.

    Why? Incompetence by greens? Innocence? Stupidity? Laziness?

    Kinda sums up the greens time in “power”, time wasted

        1. Cú Chulainn

          But not as big as the Skyrne valley. No problem running a motorway through that Dan.

  4. Hansel

    What the Green Party really needs is vehicles idling for longer on Carr’s Hill and producing as much emissions as possible. This would dovetail perfectly with their penchant for more diesel emissions.

    Funny how the quarry in question, complete with it’s decades of illegal dumping, hits the radar only now.

    I say leave them to it, don’t build any motorway, leave the emissions keep building up on the existing road and leave the “protected habitat” build up more toxic rubbish. Anything to prevent any kind of progress, please.

    Dan, you’re building up quite the repertoire of anti-infrastructure causes. I’ll bear it in mind when I vote, thanks.

    1. Gordon Reid

      I think you’ve got the wrong quarry. There is another quarry nearby that has a long history of toxic dumping, but it’s not Raffeen. We were told about the other one during the oral hearing, because it was suggested as a translocation site for some of the protected plants. It had to be pointed out to An Bord Pleanála that the soil was so toxic in the other quarry that the plants would be unlikely to grow.
      Raffeen is “hitting the radar” only now because nobody had proposed building a motorway through it before. The habitats have been under study by biodiversity experts for well over a decade, but that sort of thing doesn’t make headlines.
      Just to clarify, the judicial review is not being initiated by the Green Party. It’s a combination of local citizens who are concerned about the health effects of traffic, plus the biodiversity group protecting the quarry habitats, and environmental law experts, and it’s rigorously nonpolitical. But Dan’s support is much appreciated.
      Dan is making important and valid points here about environmental law. If the judicial review succeeds, it is because existing environmental law was not being applied in the planning decision. Whatever we might think about the merits of one or other proposal, I think we’d all want to be sure that the law under which they’re being decided is being properly applied, wouldn’t we? The fact that so many court cases are being won against our State agencies in the High Court and the European Court of Justice is an indication that they’re regularly not applying the law properly.

  5. Dan Boyle

    I’m all for infrastruture. Cars in Carrs Hill is the least reason for motorway development. In 20 years time we won’t have fossil fuel vehicles

    1. Hansel

      What will we have instead? Personal electric vehicles? Which will then be stuck in traffic on Carrs Hill for the foreseeable future: it’s significantly over-capacity and dangerous right now and our population is growing.

      “Public transport could solve it”: how do you get a bus lane down a road that’s currently the width of two lanes and full of traffic if you’re fundamentally opposed to adding lanes. Banning private transport doesn’t even fly in areas where public transport is very strong, like some city centres. The road’s not wide enough, you would need to add lanes, regardless what the lanes are. Locals have said they’re against a motorway, but in favour of a high quality dual carriageway. Which is basically the same thing.

      I don’t know if you’re being naive or obstinate on this one. Either you believe that in the future we can ban all private motorised transport on the existing over-capacity corridor or that we can somehow transport people by a means which doesn’t yet exist….or else I’m missing some other angle that you’ve thought of but not told us about?

      FWIW, I’m with you on the lee walls nonsense. It’s not a good solution to the problem and I personally believe only a tidal wall would suffice. Probably at Passage/LittleIsland.

  6. Dan Boyle

    I’d like to see better and more integrated planning. Like a port with a rail link. Like a road going through a golf course rather than where is being proposed, with sufficient space for a public transport option. I don’t believe that any response is better than none.

    1. Ronan

      Do animals not live in golf courses? No birds in the rushes, no hares in the rough?

      Is a golf course, like any open green space, not also a habitat?

      There’s wildlife everywhere open

      1. Nigel

        Bankers in the bunker, used car dealers on the greens, retired politicians at the bar.

        Go. straight through.

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