A High Court judge has ruled on a case in which it was claimed that lands in Donegal were “illegally designated” as a candidate special area of conservation (cSAC).
Harry McHugh (plaintiff), who inherited the lands from his uncle, had taken the proceedings against the Minister for the Environment, Heritage and Local Government (defendant).
McHugh’s case revolves around lands – of which he was the beneficial owner and is now the legal owner, at Cashelgolan, Port Noo in Co. Donegal – that he said were illegally designated as a candidate special area of conservation.
Prior to 1997, the lands were owned by the McHugh’s uncle, Peter McHugh. He died in 2002 and thereafter Harry McHugh became his executor and beneficiary and in due course, legal owner of the lands in Donegal.
McHugh sought to have declarations that the designation of the lands “was null and void” on the basis that the Minister for the Environment “unlawfully transposed certain EU Directives and Regulations into Irish law”.
McHugh also sought compensation for the “depravation of the use and benefits of the lands”.
Case
The Minister for the Environment maintained that the directives were “correctly transposed” and that Harry McHugh has “no locus standi” since at the time that the lands were designated, he did not own them and even if he did the claim is statute barred.
In his judgement Justice David Nolan noted that the minister also stated that the case was a “judicial review masquerading as a plenary case and therefore the plaintiff (McHugh) is very much out of time given that the events in question occurred decades ago”.
The background to the case revolves around the EU Directive on the Conservation of National Habitats and of wild fauna and flora which was transposed into Irish law in 1997.
In the judgement it was noted that “a vast area known as West of Ardara/Maas Road was designated for the purposes of protecting the habitat, animal and plant species.”
It also stated: “A small part of the total area included the lands owned by the plaintiff’s (McHugh) uncle, were chosen and proposed as a cSAC”.
Justice Nolan noted in his judgement that “crucially from the perspectives of the defendant (Minister for the Environment) Peter McHugh did not challenge the designation.
“As time went on, the boundaries of the cSAC, in consultation with local landowners, farming groups and other associated individuals, were changed.
“There seems to have been a general collaborative attitude between landowners and the minister in relation to how this was achieved for the benefit of the landowners,” the judgement detailed.
Appeals
Harry McHugh appealed the original designation in December 2003.
In August 2004 a new agreement on cSAC boundaries for rivers had been negotiated and McHugh received notice including a map of the revised area proposed for designation.
This was communicated in a letter to McHugh in December 2006.
McHugh raised objections and sought compensation but was unsuccessful since in the meantime he had applied for approval for afforestation of 28.73 hectares of his lands.
The judgement noted that he was refused since it would “adversely alter or detrimentally damage the area of cSAC”.
It also detailed that between 2007 and 2008, McHugh “appealed many times, but it would seem from information obtained in July 2015, that these appeals were never processed and could not be traced”.
McHugh claimed that following the designation and the refusal he “has sustained losses of at least €1.5 million”.
According to the judgement “crucially neither of the boundary changes in 2003 or 2006 actually affected the lands of the plaintiff” but that was not how he “sees it”.
On September 17, 2008, McHugh’s then solicitors issued a plenary summons.
In it he sought declarations and damages for losses arising from the refusal to designate the lands to conversion to afforestation which, he alleged, was in breach of statutes, regulations and directives.
He also alleged that the selection criteria used in the designation process were incorrectly applied and in breach of law.
McHugh then delivered a statement of claim in May 2014 in which he alleged that 86 hectares of his lands were designated as a cSAC, and noted that “the planting of trees was a notifiable action which would require the minister’s consent which was refused, as was compensation”.
Over the following four years McHugh served a number of amended statements of claim without order of court.
Justice Nolan’s judgement noted that in June 2018, Justice David Barniville allowed the plaintiff (McHugh) “to amend his pleadings, but crucially provided that the defendant had the right to plead any defence that may arise from the amended or original statement of claim”.
The judgement highlights that McHugh has brough “many procedural applications” including through the Court of Appeal, the Master’s Court and the High Court.
Justice Nolan also stated that “at no time during this long case has the plaintiff (McHugh) furnished any cogent scientific grounds challenging the basis of the designation relating to his lands”.
He concluded: “The plaintiff’s basis for bringing this case is misconceived since, in my opinion, he does not have locus standi.
“When he became the beneficial owner in 2002 and onwards, locus standi was not created by virtue of the receipt of the notification of changes of boundaries in 2003 and 2006, because the changes of boundary did not affect his property”.
Therefore Justice Nolan said that he would “make the orders sought and strike out the proceedings”.