The Supreme Court handed down judgment in the case of Abbeydrive Development Ltd v Kildare County Council [2010] IESC 8] on 18th February 2010. The case concerned an application by An Taisce to be heard, pursuant to Order 84, Rule 26 of the Rules of the Superior Courts 1986 in opposition to an application by Abbeydrive Development for a declaration under section 34(8) of the Planning and Development Act 2000 (‘the Act’), that the respondent Planning Authority, having failed to make a decision on the applicant’s application for planning permission within the prescribed period, be deemed to have given such permission on the last day of that period.

Although made aware of the initial application for permission to undertake a development of houses on land in Ballymore Eustace and the accompanying Environmental Impact Statement, An Taisce submitted that it was unaware of the proceedings out of which the present application arose; namely the application to the High Court and subsequent successful appeal to the Supreme Court. It was the view of An Taisce that the declaration had been made contrary to European Law following the case of Commission v Belgium [2001] ECR I-4591 in which the European Court of Justice stated that developments subject to Council Directive 85/337/EEC (‘the EIA Directive’) could not be authorised by way of tacit permission.

The Court, applying Re Greendale Developments Ltd (No 3) [2000] 2 IR 514 confirmed that only in exceptional circumstances would it intervene to interfere within its own order where that decision was final and conclusive. Although, the present case was distinguishable on the ground that the present order was not final, the court, considering the overall importance of the point raised by An Taisce held that the making of the final order should be deferred until the issue of the Environmental Impact Statement was determined.

Remitting the issue to the High Court the court held that the previous judgment and declaration be subject to any determination by the High Court or Supreme Court as to whether default permission can in law be deemed to have been given in the absence of an assessment of the environmental impact as required by the EIA Directive. An Taisce was to be heard in any subsequent hearing having been found to be a party “affected” by the development for the purposes of the Act.