ESG Focus

Author: Clerkin Lynch LLP

Date Published 24/03/2022

ESG related Litigation

Clerkin Lynch LLP recently acted in the multi-party High Court action known as Flannery v An Bord Pleanala. The case related to the preservation of green space in the Dolphin’s Barn area of central Dublin, currently used for sporting and recreational purposes. The lands in question were designated as Z9 (recreational amenity and green network) and used for GAA sports but permission had been granted by An Bord Pleanala for development of 161 residential units, despite an earlier refusal by Dublin City Council. The permission granted has now been overturned and the proposed development will not proceed.

The decision of Mr. Justice Humphreys brings further clarity to a number of critical environmental law issues. Firstly the Court again emphasised the importance of the zoning classification of lands which are the subject of planning applications, with the Z9 classification invoking a ‘very high level of protection’ against applications for residential development. The Court also found that the provision in Z9 which permitted ‘limited ancillary development’ in ‘highly exceptional circumstances’ created a ‘legal test’ which needed to be properly engaged with by the decision maker prior to a decision being made. In particular the Court found that the financial circumstances of a sports club seeking to develop its Z9 zoned lands could not qualify as a ‘highly exceptional circumstance’ which would permit of an exception to the Z9 prohibition on development.

The case was also notable for the formal recognition it afforded to The Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (1998). In commenting on the role of the Aarhus Convention in Irish law Humphreys J commented ‘The Aarhus Convention is not some abstract document of interest only to academics and international lawyers. The Convention is an integral part of EU law,.’

Clerkin Lynch LLP is delighted to act in cases aimed at preserving environmental amenities for the benefit of the community at large. Urban parks and green spaces are vital components of sustainable cities.