Eco Advocacy CLG v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 22 November 2023 |
| Neutral Citation | [2023] IEHC 644 |
| Court | High Court |
| Docket Number | [2020 No. 1030 JR] |
In the Matter of Section 50 of the Planning and Development Act 2000, As Amended
and
and
[2023] IEHC 644
[2020 No. 1030 JR]
THE HIGH COURT
JUDICIAL REVIEW
(No. 3)
JUDGMENT of Humphreys J. delivered on Wednesday the 22nd day of November, 2023
. In Eco Advocacy CLG v. An Bord Pleanála (No. 1) [2021] IEHC 265, ( [2021] 5 JIC 2704 Unreported, High Court, 27th May, 2021), I rejected the applicant's domestic law points and decided to refer certain questions relating to EU law.
. In Eco Advocacy CLG v. An Bord Pleanála (No. 2) [2021] IEHC 610, [2021] 10 JIC 0406 I made the formal order for reference.
. In its Judgment of 15 June 2023, Eco Advocacy, C-721/21, ECLI:EU:C:2023:477, the CJEU addressed the questions referred.
. I am now dealing with the balance of the case in the light of those answers.
. The action is a challenge by way of judicial review of the validity of a permission, granted by the respondent An Board Pleanála 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).
. A pre-planning meeting took place between the notice party and the local authority, Meath County Council, on 3rd September, 2019.
. A first appropriate assessment (AA) screening report was prepared in November 2019.
. On 20th December, 2019, the notice party lodged an application for a pre-planning opinion as to whether the development would constitute strategic housing development.
. On 13th February, 2020, the developer held a pre-planning meeting with the board and on 2nd March, 2020 the board decided that the application needed further consideration or amendment.
. On 7th April, 2020, conservation objectives for the River Boyne and River Blackwater SAC were adopted by the National Parks and Wildlife Service.
. A second AA screening report was prepared in June 2020.
. The formal planning application was submitted on 8th July, 2020.
. 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.
. 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].
. 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].
. 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 concluded that there would be no impact on Natura 2000 sites.
. The applicant and other bodies made submissions on the application.
. On 11th August, 2020, a submission was made on behalf of An Taisce (the National Trust for Ireland, a statutory planning consultee and the first amicus curiae added by order of the court) noting the potential for impact on the European sites.
. On 31st August, 2020, the CEO of the council reported on the application.
. Both submissions are included in exhibit KC1 at tab 5. As regards the council, a memorandum from its heritage officer was prepared entitled “Comments Screening Statement for Appropriate Assessment and EcIA for residential development Charterschool Land, Manorlands, Trim, Co. Meath” and dated 30th August, 2020.
. It begins by dealing with terrestrial habitats and bats. Among the key points made were as follows:
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(i) habitats on the site are not used by qualifying interests in the associated European site;
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(ii) no assessment of the extent and cumulative impact of hedgerow removal was undertaken;
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(iii) the bat survey period was late in the active season for bats and does not provide information on bat usage during the spring when maternity roosts are active;
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(iv) the bat presence was dominated by Common pipistrelles followed by Soprano pipistrelles, with a limited level of other species including Leisler's bat and Myotis species;
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(v) the bat assemblage was a feature of local higher importance;
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(vi) a number of mitigation measures were outlined in the ecology impact assessment at para. 6.1;
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(vii) these mitigation measures should be implemented under the supervision of a suitably qualified ecologist and bat specialist;
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(viii) hedges and trees should not be removed during the nesting season; and
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(ix) preventative measures should be detailed within the construction environment management plan to ensure that non-native invasive species are not introduced into the site. These measures should follow the national roads authority document (The Management of Noxious Weeds and Non-Native Invasive Plant Species on National Roads, 2010) and take cognisance of the Best Practice Management Guidelines produced by Invasive Species Ireland (Maguire et al 2009).
. As regards water treatment, the author of the report noted the water being piped from an attenuation tank on the site to a stream 100 metres south of the site, being a tributary of the River Boyne. She went on to say: “in relation to the Appropriate Assessment the Board should satisfy themselves of the efficacy of the SUDS Strategy and surface water management on the site to ensure that there will be no significant effects (direct or indirect) on the qualifying interest of any Natura 2000 sites (European sites), either individually or in combination with any other plans or projects”.
. The Chief Executive's report is dated 31st August, 2020 and is issued under s. 8(5)(a) of the Planning and Development (Housing) and Residential Tenancies Act 2016. Section 7.13 of the report, as one might normally expect, repeats the heritage officer's concerns verbatim.
. Turning to the submission of An Taisce, a submission dated 11th August, 2020 prepared by Ms Phoebe Duvall, Planning and Environmental Policy Officer, noted the potential for impact on the spawning habitat for trout and potential impact on European sites.
. The submission stated as follows: “A stream runs approximately 100m from the site boundary and flows into the River Boyne. The Boyne is not only an SAC—and SPA-designated site as mentioned previously, but also supplies the drinking water for Trim. An Taisce has concerns that the water quality in this stream could be degraded as a result [of] the proposed works – the intention as per the plans is to have storm drains sending surface water to the stream that would be partially filtered in attenuation tanks. We note that this stream is likely to be a spawning ground for trout and submit that the potential ecological deterioration of the stream was not adequately considered in the Ecological Impact Assessment”. It is also worth specifically noting that An Taisce's comment that the filtration was only “partial” does not seem to have been specifically resolved subsequently.
. On 6th October, 2020, the board's inspector reported recommending that permission be granted and concluding, following the EIA and AA screening, that a full assessment was not required.
. The template used by the inspector in annex A of her report uses a format for EIA screening that differs in material respects from annex III of the EIA directive.
. Turning then to the way in which the submissions from An Taisce and the council were addressed by the inspector, section 12 of her report deals with appropriate assessment. Paragraph 12.1 notes the screening submission. Paragraph 12.2 describes the development and para. 12.3 notes the proximity of European sites and qualifying interests. Paragraphs 12.4 and 12.5 describe the conservation objectives of the European sites. Paragraph 12.6 notes the location of the Kingfisher along the Boyne and Blackwater system and says that no habitats associated with this species are identified on the site. It contends that the design of the surface water treatment takes account of the scale and nature of the proposed development and says that a road be constructed operated “in accordance with standard environmental features associated with a residential development”. It asserts that it would not have the potential to have a significant impact on the water quality and hence qualifying interests of the SAC and SPA.
. Reference is made to the An Taisce submission, following which the inspector comments: “[t]rout is not listed as a qualifying interest for the River Boyne and River Blackwater SAC. I do not consider there is potential for any impact on the River Boyne through any hydrological connections via surface, ground and waste water pathway and therefore no potential for any significant adverse impact from...
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