Eco Advocacy CLG v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 04 October 2021
• Neutral Citation: [2021] IEHC 610
• Court: High Court
• Docket Number: [2020 No. 1030 JR]

In the Matter of Section 50 of the Planning and Development Act 2000, as Amended

Between

Eco Advocacy CLG

Applicant

and

An Bord Pleanála

Respondent

and

Keegan Land Holdings Limited

Notice Party

And by Order

An Taisce – The National Trust for Ireland

and

Clientearth Aisbl

Amici Curiae

[2021] IEHC 610

[2020 No. 1030 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Permission – Development – Applicant challenging the validity of a permission granted by the respondent to the notice party for a housing development – Whether the respondent and inspector gave inadequate consideration to matters required to be considered under the EIA directive

Facts: The applicant, Eco Advocacy CLG, challenged by way of judicial review the validity of a permission, granted by the respondent, An Board Pleanála (the board), to the notice party developer, Keegan Land Holdings Ltd, for a housing development in Trim, Co. Meath. Leaving aside points already rejected in the No. 1 judgment, the remaining grounds of challenge as sought to be supplemented in oral submissions were as follows: (a) the board and inspector gave inadequate consideration to matters required to be considered under the EIA directive; (b) there was not an express statement of what documents exactly set out the reasoning of the competent authority; (c) the board failed to expressly address all specific headings and sub headings in annex III of the EIA directive; (d) the board improperly took account of mitigation measures at the screening stage contrary to the habitats directive; and (e) the board failed to remove all scientific doubt about the impact on the integrity of European sites by failing to deal with the submissions and matters raised in the submissions by An Taisce and Meath County Council.

Held by the High Court (Humphreys J) that it would refer the following questions to the CJEU pursuant to art. 267 of the TFEU: (i) Does the general principle of the primacy of EU law and/or of co-operation in good faith have the effect that, either generally or in the specific context of environmental law, where a party brings proceedings challenging the validity of an administrative measure by reference, expressly or impliedly, to a particular instrument of EU law, but does not specify which provisions of the instrument have been infringed, or by reference to which precise interpretation, the domestic court before which proceedings are brought must, or may, examine the complaint, notwithstanding any rule of domestic procedure requiring the specific breaches concerned to be set out in the party’s written pleadings. (ii) If the answer to the first question is “Yes”, whether art. 4(2), (3), (4) and/or (5) and/or Annex III of the EIA directive 2011/92 and/or the directive read in the light of the principle of legal certainty and good administration under art. 41 of the Charter of Fundamental Rights of the European Union have the consequence that, where a competent authority decides not to subject a proposal for development consent to the process of environmental impact assessment, there should be an express, discrete and/or specific statement as to what documents exactly set out the reasons of the competent authority. (iii) If the answer to the first question is “Yes”, whether art. 4(2), (3), (4) and/or (5) and/or Annex III of the EIA directive and/or the directive read in the light of the principle of legal certainty and good administration under art. 41 of the Charter have the consequence that, where a competent authority decides not to subject a proposal for development consent to the process of environmental impact assessment, there is an obligation to expressly set out consideration of all specific headings and sub-headings in annex III of the EIA directive, insofar as those headings and sub-headings are potentially relevant to the development. (iv) Whether art. 6(3) of directive 92/43/EEC is to be interpreted as meaning that, in the application of the principle that in order to determine whether it is necessary to carry out, subsequently, an appropriate assessment of the implications, for a site concerned, of a plan or project, it is not appropriate, at the screening stage, to take account of the measures intended to avoid or reduce the harmful effects of the plan or project on that site, the competent authority of a member state is entitled to take account of features of the plan or project involving the removal of contaminants that may have the effect of reducing harmful effects on the European site solely on the grounds that those features are not intended as mitigation measures even if they have that effect, and that they would have been incorporated in the design as standard features irrespective of any effect on the European site concerned. (v) Whether art. 6(3) of directive 92/43/EEC is to be interpreted as meaning that, where the competent authority of a member state is satisfied notwithstanding the questions or concerns expressed by expert bodies in holding at the screening stage that no appropriate assessment is required, the authority must give an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the works envisaged on the European site concerned, and that expressly and individually removes each of the doubts raised in that regard during the public participation process. (vi) If the answer to the first question is “Yes”, whether art. 6 (3) of the habitats directive 92/43 and/or the directive read in the light of the principle of legal certainty and good administration under art. 41 of the Charter has the consequence that, where a competent authority decides not to subject a proposal for development consent to the process of appropriate assessment, there should be an express, discrete and/or specific statement as to what documents exactly set out the reason of the competent authority.

Humphreys J directed that the applicant lodge hard copy books of all pleadings directly with the Principal Registrar within 28 days of the date of delivery of this judgment for transmission to the CJEU. Humphreys J adjourned the balance of the proceedings pending the decision of the CJEU.

Reference to CJEU.

(No. 2)

JUDGMENT of Humphreys J. delivered on Monday the 4th day of October, 2021

Subject matter of the dispute

1 The action is a challenge by way of judicial review of the validity of a permission, granted by the respondent An Board Pleanála (“the board”) to the notice party developer, for a housing development in Trim, Co. Meath. The proposal is for the construction of 320 dwellings at Charterschool Land, Manorlands, in the vicinity of the River Boyne and River Blackwater Special Area of Conservation (SAC) and Special Protection Area (SPA).

Facts

2 There were a number of previous refusals of development on the site. In 2008 a development was refused due to the lack of a sustainable drainage (SUDS) system.

3 In 2009 a development was rejected due to poor quality design having regard to the site being a prominent area in the historic town of Trim, a heritage town close to a zone of archaeological potential and an architectural conservation area.

4 A further proposed development was rejected in 2011 due to design issues and the conclusion that it would represent a low standard of residential development.

5 The lands were originally zoned for commercial or industrial use in the Trim Town Development Area Plan 2014 to 2020, but since changed to residential use.

6 A pre-planning meeting took place between the notice party and the local authority, Meath County Council (“the council”), on 3 ^rd September, 2019.

7 A first appropriate assessment (“AA”) screening report was prepared in November 2019.

8 On 20 ^th December, 2019, the notice party lodged an application for a pre-planning opinion as to whether the development would constitute strategic housing development.

9 On 13 ^th February, 2020, the developer held a pre-planning meeting with the board and on 2 ^nd March, 2020 the board decided that the application needed further consideration or amendment.

10 On 7 ^th April, 2020, conservation objectives for the River Boyne and River Blackwater SAC were adopted by the National Parks and Wildlife Service.

11 A second AA screening report was prepared in June 2020.

12 The formal planning application in the present case was submitted on 8 ^th July, 2020.

13 The design provides that during the operational phase of the site, surface water run-off will be collected below ground in attenuation storage tanks. They will operate in conjunction with suitable flow control devices which will be fitted to the outlet manhole of each attenuation tank. A class 1 bypass separator will be installed on the inlet pipe to all tanks in order to treat the surface water and remove any potential contaminants prior to entering the tank and ultimately prior to discharge. The water will outfall to a stream around 100 metres south of the development, a tributary of the Boyne.

14 The Boyne itself is approximately 640 metres to the north of the development. It is part of the River Boyne and River Blackwater SPA (reference number 004232) for which a qualifying interest is the Kingfisher (Alcedo atthis) [A229].

15 The River Boyne and River Blackwater SAC (reference number 002299) is approximately 700 metres north of the site. The qualifying interests are Alkaline fens [7230], Alluvial forests with Alnus glutinosa and Fraxinus excelsior (Alno-Padion, Alnion incanae, Salicion albae) [91E0], Lampetra fluviatilis (River Lamprey) [1099], Salmo salar (Salmon) [1106] and Lutra lutra (Otter) [1355].

16 An environmental impact assessment (“EIA”) screening report was prepared dated July 2020 as well as an ecological impact assessment which included a number of proposed mitigation measures. A habitats directive screening report was also submitted which...