M28 - Cork to Ringaskiddy [advance works pending; 2024 start]

Hibernicis

Justice MacGrath’s judgment on the application for leave to appeal to the Court of Appeal (which was delivered on 17th November 2020) has been uploaded to the Courts.ie website.

It is available here. It’s fair to say that it is a pretty dense read.

The M28 steering group have resorted to a discussion on finer points of law, and the many emotionally charged issues which featured in the publicity material (artics driving through the bedrooms of the residents of Newlyn Vale, exploding trucks, fears of Maryborough Hill properties becoming worthless, detrimental impact on the quality of life of the 10,000, jack-knifing trucks landing on properties in the Rochestown area, etc. ) don’t merit a single mention. As stated in the Judgment the grounds on which this application was based are as follows:

The applicant maintains that certain points of law arise for certification pursuant to s. 50A (7) of the Act. It is also contended that certain of these issues ought to be referred to the CJEU under Article 267 of the Treaty of the Functioning of the European Union (“TFEU”):
a) Under what consent is the extraction of materials for the road in the quantities required authorised?

b) What assessments have been undertaken in respect of this extraction and where is it to be found?

c) Are the assessments “as complete as possible” in accordance with the requirements of European Commission v. Ireland (Case C-50/09).

d)In circumstances where the applicant sought to challenge the failure of a competent authority to carry out a complete Environmental Impact Assessment (“EIA”) and Appropriate Assessment (“AA”), and the failure to grant a development consent in respect of all necessary components of the developments (the quarrying work) are the requirements of Article 11 the Environmental Impact Directive satisfied in proceedings where a court has not identified either a consent authorising the said work, or any assessment of same?

e) Where a development consent is granted that depends on, or will be implemented together with, an earlier development consent (that has not been commenced) which earlier consent was granted pursuant to a provision of national law which did not properly implement the Habitats Directive and was granted in a manner not in accordance with the requirements of the said Directive, can such a grant of consent be lawful having regard to the requirements of EU law?

f) Is there an obligation on the competent authority to assess such earlier consent to ensure its compliance of EU law?

In his concluding paragraphs, Justice MacGrath addressed these points as follows

56. For all of the above reasons I must refuse the application for a certificate in respect of the first three questions (a), (b) and (c).

57. In its fourth question/issue, the applicant describes the quarrying works as a necessary component of the development. This question, in my view, is also predicated on the contention that the quarrying works and the scheme ought to be considered as one or a unitary scheme. The consent with which the Court was concerned and that which was challenged by the applicant in the proceedings, was the consent to the road scheme. The Court found that the project for the purpose of the EIA Directive is the road scheme. The applicant’s arguments were fully ventilated and considered by the court. Having considered the arguments and having heard the applicant, the court arrived at its conclusion. For these reasons and also on the basis of the principles accepted by Barniville J. in Rushe, referred to at para. 15 above, I am not satisfied that it has been established that there has been a breach of the applicant’s rights under Article 11 of the EIA Directive. For similar reasons outlined by the court in respect of questions (a), (b) and (c), I am also not satisfied that a point of law arises in respect of the contention that the requirements of Article 11 of the Directive have not been satisfied.

58. I have also concluded at para. 44 above that I am not satisfied that it has been established that the court ought to refer the suggested questions to the CJEU or that it is necessary, desirable or incumbent on this court to do so. The questions as phrased are predicated on a factual basis which the court has not accepted and the answer to those questions are not necessary for the court to arrive at its conclusions. For the sake of completeness, and for similar reasons, I am also not satisfied that arising from the court’s judgment, a point or points of law of exceptional public importance arise in respect of the issues raised at questions five and six, and/or that it is desirable in the public interest that certificate should issue in respect of leave to appeal this issue.

59. I must therefore refuse the application.

So in simple terms, as I expected, the application to appeal is pretty much “all about the quarry” (that the 10,000 probably didn’t even know existed, much less have a clue as to it’s is location or its environmental significance), and the EIA and some pretty esoteric legal points around the permissions to operate the quarry and extract rock for the road.

Also note that the application included a request to refer some of the points to the CJEU (Court of Justice of the European Union). Justice MacGrath also refused that.

The petition to appeal to the Supreme Court will in all probability be based on Justice McGrath having erred in law in his decision on the above grounds.

The real issue is whether or not any of this meets the constitutional requirements which are necessary to allow an appeal to the Supreme Court to proceed. The grounds are totally detached from real world issues, the urgent need to upgrade the road and the alleged issues of public concern. Sadly, this will be decided on some legal technicality with tenuous if any links to the lives of the users of the road and those living in its environs.

danny004

AN CHÚIRT UACHTARACH
[THE SUPREME COURT]

For Wednesday, 24th February, 2021

(In the Supreme Court)
Mr. Justice MacMenamin
At 10.30 o'clock
For Remote Case Management
94/20 McD v Governor of X Prison

***
The Chief Justice
Ms. Justice O'Malley
Ms. Justice Baker
Panel meeting for consideration of applications received seeking leave to appeal under Article 34.5.3º and Article 34.5.4º of the Constitution (In Chambers).
At 10.30 o'clock
1. 122/20 NK v RP
2. 04/21 M28 Steering Group v ABP & anor
3. 10/21 Law Society of Ireland v Coleman
4. 102/20 Osayawe v Gannon

kub

Are we going to see an end to this saga on Wednesday ?

blindsider

I doubt it, but happy to live in hope!

AugustusMinimus

If we get closure on Wednesday, what would be the likely timeline for shovels in the ground?

marno21

AugustusMinimus wrote: »

If we get closure on Wednesday, what would be the likely timeline for shovels in the ground?

Three years of advance works to commence once approval is given

Best case scenario would be mid 2024.

Hibernicis

kub wrote: »

Are we going to see an end to this saga on Wednesday ?

The majority of these applications are decided on quickly and it is likely (but not certain) that the result will be known by the applicants within hours of the hearing. The format is simple, the three judges look at the application (max a few pages) and any concise responses received from the other parties (ABP and CCC) and will seek to determine quickly whether or not there is a case to be heard. This is not a hearing about the pros and cons of the road, rather it is to determine whether or not there is either a legal issue of general public importance or an issue of justice which requires a full Supreme Court hearing. Justice MacGrath has already decided against the need for an appeal to the Court of Appeal and his decision and the reasons he gave for it will be available to the panel.

If the Supreme Court decides against allowing the appeal, it is the end of the road. If it grants the appeal, there could be another 12-24 months before there is a decision, and that of course could go either way.

Looking back at recent determinations, there have been 34 applications to the Supreme Court heard under the Constitutional provision since 1/11/2020 for which determinations have been published. In 9 cases the the petition was granted and in 25 it was refused. As against this O’ Connell & Clarke, Solicitors to the M28 shower, are specialists in environmental law cases and have had some notable successes in the past. The arguments relating to the EIA and the quarry which were put forward in the Judicial Review and the Court of Appeal application were the type of technical legal arguments designed to drag the case through every possible appeal route, almost on the basis that if they can't win, they can drag it out for the longest possible time.

Your guess is every bit as good as mine, however my guess (sadly) is that it will make it to the Supreme Court for a full hearing. I would however be absolutely delighted to be proved wrong.

blindsider

@Hibernicis - we won't shoot the messenger...on this occasion at least! :-)

Thanks again for the expert information and summary - it really is very helpful.

Fingers crossed the judges see sense....[deep breaths, decade of the rosary and fingers/toes crossed]

kub

Hibernicis wrote: »

The majority of these applications are decided on quickly and it is likely (but not certain) that the result will be known by the applicants within hours of the hearing. The format is simple, the three judges look at the application (max a few pages) and any concise responses received from the other parties (ABP and CCC) and will seek to determine quickly whether or not there is a case to be heard. This is not a hearing about the pros and cons of the road, rather it is to determine whether or not there is either a legal issue of general public importance or an issue of justice which requires a full Supreme Court hearing. Justice MacGrath has already decided against the need for an appeal to the Court of Appeal and his decision and the reasons he gave for it will be available to the panel.

If the Supreme Court decides against allowing the appeal, it is the end of the road. If it grants the appeal, there could be another 12-24 months before there is a decision, and that of course could go either way.

Looking back at recent determinations, there have been 34 applications to the Supreme Court heard under the Constitutional provision since 1/11/2020 for which determinations have been published. In 9 cases the the petition was granted and in 25 it was refused. As against this O’ Connell & Clarke, Solicitors to the M28 shower, are specialists in environmental law cases and have had some notable successes in the past. The arguments relating to the EIA and the quarry which were put forward in the Judicial Review and the Court of Appeal application were the type of technical legal arguments designed to drag the case through every possible appeal route, almost on the basis that if they can't win, they can drag it out for the longest possible time.

Your guess is every bit as good as mine, however my guess (sadly) is that it will make it to the Supreme Court for a full hearing. I would however be absolutely delighted to be proved wrong.

Thank you for that very detailed explanation.


As we seem to know at this time, all is good as far as that old quarry so what is stopping the work beginning from the Bloomfield side and if that Court case does proceed, surely by the time the contractors get down to that area, then if necessary, the Quarry area can be redesigned ?

Cork Trucker

kub wrote: »

Thank you for that very detailed explanation.


As we seem to know at this time, all is good as far as that old quarry so what is stopping the work beginning from the Bloomfield side and if that Court case does proceed, surely by the time the contractors get down to that area, then if necessary, the Quarry area can be redesigned ?

It'll be the golf club they'll want to save then :pac:

kub

Cork Trucker wrote: »

It'll be the golf club they'll want to save then :pac:

I thought it was all about a certain breed of fleas that live on the rats that occupy that old quarry at this stage.

Cork Trucker

kub wrote: »

I thought it was all about a certain breed of fleas that live on the rats that occupy that old quarry at this stage.

The quarry didn't even come into it until some bright spark in raffeen started a fundraiser to save it, that's when this crowd jumped on board. Flora and Fauna they said, more like a load of rats occupy it as you mention. If the quarry is disturbed the rats will relocate to nearby properties.

danny004

Can the supreme court deny their request for a full hearing but allow their request which is also submitted to allow them to go to the ECJ

AugustusMinimus

How many road projects have been appealed to Europe and how many have the state lost?

danny004

AugustusMinimus wrote: »

How many road projects have been appealed to Europe and how many have the state lost?[/QUOTE

well they have as part of their submission looked to go to the ECJ and if they are allowed ,money wont be a problem and breaking new ground of an NGO going to europe on a very local road issue related to a quarry 10km away wont phase them either.

ultimately i guess its no longer about a road project its now about current law and application of it.

Cork Trucker

AugustusMinimus wrote: »

How many road projects have been appealed to Europe and how many have the state lost?

I don’t know truthfully, what I do know is that Europe are partially/wholly bankrolling this? Unlikely to rule against themselves

Cookiemunster

Cork Trucker wrote: »

I don’t know truthfully, what I do know is that Europe are partially/wholly bankrolling this? Unlikely to rule against themselves

The ECJ is an independent body that has often ruled against the EU. The Apple case being a recent example.

Hibernicis

While the CJEU has a number of roles, it does not act as a court of appeal from the Irish Supreme Court and therefore does not in this hear cases about Irish Roads.

To explain the CJEU’s role in cases like this, it is necessary to understand how European “law” relates to Irish Law. The European Commission, with the approval of the Parliament and the Council (and therefore the participation of the member states) issues directives. These set out the objective of what is to be achieved, but not the detail of how it is to be done. Each member state then implements this in its jurisdiction (transposes it into domestic law) setting out the details of how it is to work. Usually this must be done within two years. In Ireland, this can be by Acts of the Dail, Statutory Instruments or Ministerial Order or a mix of these. When a court hears a case involving one of these Irish Laws there is a possibility of a divergence between the EU Directive and it’s implementation in Irish Law. It is open to the Superior Courts (Supreme Court and High Court) to refer concern this to the CJEU for a ruling on whether or not the Irish Law is in compliance with the European Directive. The CJEU issues a preliminary ruling which it returns to the Irish Court that referred it, and that court then makes a decision on the case before it, informed by the CJEU ruling. In this instance, the appellant, the M28 steering group asked the Irish High Court to refer a couple of points (relating to the Environmental Impact Directive and the Habitats Directive not being correctly implemented in Irish Law) to the CJEU. Justice MacGrath ruled that it was not necessary to refer these as he was satisfied that the Directives had been implemented correctly in Irish Law. We have to assume that they included the same request in their petition to the Supreme Court.

So the Supreme Court, should it decide to hear the appeal, will have to decide whether or not these directives are correctly implemented in Irish Law, and if it has any doubt will refer the question to the CJEU. The CJEU will issue a ruling, and the Supreme Court, informed by that ruling, would then decide on the case before it taking this and all other factors into account.

I’ve simplified this considerably, but that’s the basics of it.

danny004

Hibernicis wrote: »

While the CJEU has a number of roles, it does not act as a court of appeal from the Irish Supreme Court and therefore does not in this hear cases about Irish Roads.

To explain the CJEU’s role in cases like this, it is necessary to understand how European “law” relates to Irish Law. The European Commission, with the approval of the Parliament and the Council (and therefore the participation of the member states) issues directives. These set out the objective of what is to be achieved, but not the detail of how it is to be done. Each member state then implements this in its jurisdiction (transposes it into domestic law) setting out the details of how it is to work. Usually this must be done within two years. In Ireland, this can be by Acts of the Dail, Statutory Instruments or Ministerial Order or a mix of these. When a court hears a case involving one of these Irish Laws there is a possibility of a divergence between the EU Directive and it’s implementation in Irish Law. It is open to the Superior Courts (Supreme Court and High Court) to refer concern this to the CJEU for a ruling on whether or not the Irish Law is in compliance with the European Directive. The CJEU issues a preliminary ruling which it returns to the Irish Court that referred it, and that court then makes a decision on the case before it, informed by the CJEU ruling. In this instance, the appellant, the M28 steering group asked the Irish High Court to refer a couple of points (relating to the Environmental Impact Directive and the Habitats Directive not being correctly implemented in Irish Law) to the CJEU. Justice MacGrath ruled that it was not necessary to refer these as he was satisfied that the Directives had been implemented correctly in Irish Law. We have to assume that they included the same request in their petition to the Supreme Court.

So the Supreme Court, should it decide to hear the appeal, will have to decide whether or not these directives are correctly implemented in Irish Law, and if it has any doubt will refer the question to the CJEU. The CJEU will issue a ruling, and the Supreme Court, informed by that ruling, would then decide on the case before it taking this and all other factors into account.

I’ve simplified this considerably, but that’s the basics of it.

Brilliant explanation ,its a bad day when you dont learn something. So if it came to it and hopefully it wont does that mean if the supreme court has any doubt around the law complying with a European directive they must first ask the question of the European court ,then wait for a response and then finally can schedule a full hearing which Im guessing would all be close to a two year period.

riddlinrussell

danny004 wrote: »

Brilliant explanation ,its a bad day when you dont learn something. So if it came to it and hopefully it wont does that mean if the supreme court has any doubt around the law complying with a European directive they must first ask the question of the European court ,then wait for a response and then finally can schedule a full hearing which Im guessing would all be close to a two year period.

I think this is the case, this would however mean that the supreme court not only believe the Appeals court erred by dismissing the case but also erred in suggesting it was within the bounds of the EU directives? Am I right?

AugustusMinimus

Assume so that the road construction has been proven as not having contravened an Irish law but the Steering Group are claiming that it does contravene the specific EU directive which they believe has not been implemented in Irish law correctly?

riddlinrussell

AugustusMinimus wrote: »

Assume so that the road construction has been proven as not having contravened an Irish law but the Steering Group are claiming that it does contravene the specific EU directive which they believe has not been implemented in Irish law correctly?

The thing is, many road projects etc are subject to a legal challenge, I would assume this specific law would have been referred to the CJEU before now, and this is forming the basis of the decision by the Appeals court that it doesn't need to go to CJEU?

AugustusMinimus

This whole situation is ridiculous.

Surely county cases involving matters of national importance need to be prioritised in the courts or a separate court needs to be established to deal with these cases.

We’re looking at a 5 year delay which is crazy.

kub

AugustusMinimus wrote: »

This whole situation is ridiculous.

Surely county cases involving matters of national importance need to be prioritised in the courts or a separate court needs to be established to deal with these cases.

We’re looking at a 5 year delay which is crazy.

I suppose if at this stage that the famous Steering group, who put forward very questionable facts originally, are now relying on flora and fauna in a disused quarry 10 kms away from their primary area of concern, then it is safe to say that they have lost their case.

Aontachtoir

kub wrote: »

I suppose if at this stage that the famous Steering group, who put forward very questionable facts originally, are now relying on flora and fauna in a disused quarry 10 kms away from their primary area of concern, then it is safe to say that they have lost their case.

Losing their case in the court of public opinion is very different to losing their case in the court of law. It doesn't matter if their deceitful rubbish about exploding trucks or ecological apocalypse has been exposed as nonsense, if their last-ditch desperate argument about the quarry sticks enough for a full Supreme Court hearing then there's still no M28.

ianobrien

Anyone know how it went yesterday?

annfield1978

ianobrien wrote: »

Anyone know how it went yesterday?

Is another report required, or is a decision made on the day?

Cork Trucker

You’d think if they were successful the steering group would make it known. Nothing on their Facebook page since last November

ianobrien

Cork Trucker wrote: »

You’d think if they were successful the steering group would make it known. Nothing on their Facebook page since last November

I was thinking that .... fingers crossed.......

Aontachtoir

ianobrien wrote: »

I was thinking that .... fingers crossed.......

Maybe they're still waiting to hear back. I wish the courts made this sort of information easily and promptly available online to the interested public - not entirely clear to me why they can't.

Regardless, hopefully we hear back soon.