The Supreme Court has refused a man, who claimed he suffered losses of at least €1.5 million due to a portion of his lands being designated, permission to appeal a High Court decision to strike out his case.
Harry McHugh owns lands at Cashelgolan, Portnoo, Co. Donegal, of which a small portion was designated as a Special Area of Conservation (SAC) in 1997.
It was part of a large area known as West of Ardara/Maas Road which was designated by the minister for the environment, heritage and local government for the purposes of protecting the habitat, animal and plant species
Land
In its written determination, the three-judge Supreme Court noted that at the time of the designation in 1997 the lands were owned by the applicant’s uncle, Peter McHugh, who did not challenge the designation.
Following his uncle’s death in 2002, Harry McHugh then inherited the lands.
The court stated that McHugh’s case against the minister for the environment, heritage and local government is that the lands were illegally designated as a candidate Special Area of Conservation (cSAC).
He claimed that the designation of the lands was null and void as he believed it was based on certain EU directives and regulations which had been “unlawfully transposed” into Irish law.
He also sought compensation for the depravation of the use and benefits of the lands.
The defence, on behalf of the minister, stated that the EU directives were correctly transposed.
They also claimed that McHugh had no right to bring an action because at the time that the lands were designated, he did not own them and even if he did the claim is no longer legally enforceable as the events in question occurred decades ago.
Designation
On January 24, 2003, McHugh received a letter from the from the minister for the environment, heritage and local government stating that the boundaries of the SAC were to be changed.
The correspondence also stated that if McHugh wanted to make any significant changes to farming on the lands, he would require the written agreement of the minister.
McHugh sought to appeal the original designation and also sought the scientific evidence which justified the designation.
On December 4, 2006, McHugh received another letter from the department which outlined that in August 2004 a new agreement on cSAC boundaries for rivers had been negotiated.
A map of the revised area proposed for designation was enclosed, along with a booklet setting out a method to object to the designation.
Following receipt of that notice, McHugh raised objections and sought compensation but was unsuccessful as in the meantime he had applied for approval for afforestation of 28.73ha of his lands.
The Supreme Court noted that the application was refused since it would adversely alter or detrimentally damage the area of SAC.
Arising from the designation and the refusal McHugh said that he has sustained losses of at least €1.5 million.
The court stated that neither of the boundary changes in 2003 or 2006 affected McHugh’s lands.
However, the landowner maintained that the receipt of the two notifications gave rise to his cause of action.
Court
In 2008, McHugh brought High Court proceedings in which 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 alleged that the selection criteria used in the designation process were incorrectly applied and in breach of law.
He also wanted an order directing the minister to reassess his lands for the purposes of his application for afforestation.
The Supreme Court said that “nothing happened for years” until May 2014 when McHugh delivered a statement of claim to which amendments were later made.
He alleged that 86ha of his lands were designated “based upon a crude rapid survey done in areas of scientific interest with no correlation to ecological boundaries”.
The defence stated that McHugh was not the owner of the property when the site was designated as a cSAC and that any notices served, either in 2003 or 2006, did not affect his property rights, nor did they create a new cause of action.
Supreme Court
In April 2024, the case came before Justice David Nolan who decided to strike out the proceedings.
The judge ruled that basis for bringing this case was misconceived as he believed McHugh did not have legal standing (locus standi).
In refusing leave to appeal this decision, the Supreme Court said that despite McHugh’s “impressive presentation”, “the fact remains that when these lands were originally designated, he was not the owner”.
“If there was any merit in challenging the designation, and I am in no way certain there was, that should have been done in 1997.
“That did not happen and by the time he became the beneficial owner in 2002, time had already passed,” the court said.
The court found that the notification of revision of boundaries, which did not include McHugh’s lands, “did not give rise to a cause of action or reignite some latent cause of action”.
“At no time during this long case has the plaintiff furnished any cogent scientific grounds challenging the basis of the designation relating to his lands,” the court added.
The court ruled that the McHugh’s constitutional rights have not been breached in any way given that he did not own the lands at the time when the designation was made.