Friends of Ardee Bog v an Bord Pleanala and Others

JurisdictionIreland
JudgeMs Justice Miriam O'Regan
Judgment Date14 May 2024
Neutral Citation[2024] IEHC 292
CourtHigh Court
Docket Number[2021/1062JR]
Between
Friends of Ardee Bog
Applicants
and
An Bord Pleanála, Ireland and The Attorney General
Respondents

and

Louth County Council
Notice Party

[2024] IEHC 292

[2021/1062JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms Justice Miriam O'Regan delivered on 14 May 2024 .

Issues
1

. By letter of 5 May 2021 the notice party requested a determination from An Bord Pleanála (“ABP”), in respect of a proposed development which the notice party wishes to carry out namely the construction of a 4.5km road, the provision of four junctions along the road, the construction of two bridges over the River Dee and the River Gara; the construction of pedestrian and cycle facilities; new drainage arrangements: diversion of service and utilities; landscaping, fencing, safety barriers and public lighting, associated site works and work compounds. The proposed development was described as the N52 Ardee Bypass. The request of ABP was for a determination under s.50(1)(b) of the Roads Act 1993 (the “1993 Act”) in respect of the preparation of an Environmental Impact Assessment (“EIA”) Report and further pursuant to regulation 250(3)(a) of the Planning and Development Regulations 2001 (the “2001 Regulations”) as amended in respect of the preparation of a Natura Impact Statement (“NIS”), concerning the proposed development.

2

. ABP made two decisions both dated 19 October 2021 namely:-

In these proceedings the applicant seeks to impugn the decisions. The declaratory relief sought against the second and third named respondents has been compromised as hereinafter appears.

  • 1) directing the local authority not to prepare an Environmental Impact Assessment Report; and

  • 2) directing the local authority not to prepare a NIS; in respect of the proposed development.

3

Leave was granted to maintain the within proceedings on the basis of the statement of grounds of 15 December 2021.

4

Insofar as the applicant raises further particulars not identified in the statement of grounds in oral submissions, written submissions or indeed replies to the respondent's submissions such matters will not be dealt with in accordance with jurisprudence and O.84, r.20(3) of the Rules of the Superior Courts.

5

In respect of grounds generally in the statement of grounds, ABP in its statement of opposition of 3 February 2023 and in written and oral submissions has raised pleading points to the effect that:-

  • i. the applicant has not provided sufficient particulars of their various complaints;

  • ii. it is alleged that the applicant's challenge is vague and hypothetical;

  • iii. the challenge is based on bald unsubstantiated assertions and allegations not sustainable and not supported by any expert evidence;

  • iv. most of the applicant's complaints are without substance and made without any reference to the evidence that was before the Board.

6

The local authority had previously progressed a proposed bypass of Ardee in or about 1999 and in 2001 approval for the project was received under the part 10 (now part 8) process. In 2005, an amendment to the alignment of the proposed bypass required a revised planning application under the part 8 process and was approved in July 2005. A compulsory purchase order was confirmed by ABP in September 2006. At that time two routes had been intended and the width of the roadway was expressed to be 13m wide for the Northern Bypass. In or about 2018/2019 the Northern Bypass route was cleared of hedgerows.

7

The applicants assert that this clearing amounted to rural restructuring with no EIA or AA conducted. As a consequence it is suggested:-

  • i. Retention permission/substituted consent is required in respect of such clearing;

  • ii. in the alternative, clearing is part of the proposed development of the notice party and therefore should have been considered by ABP in its determinations aforesaid;

  • iii. in the further alternative, ABP was obliged to consider the prior works under it's remedial obligation imposed by the EU.

General
8

In the within matter the following three directives are engaged:-

  • i. Directive 92/43/EEC as amended (the “Habitats Directive”) in particular Article 6(3) thereof which provides that a plan or project not directly connected but likely to have significant effects either individually or in combination with other plans or projects on a European site, be subject to an appropriate assessment of the implications for the site in view of the site's conservation objectives;

  • ii. Directive 2009/147/EC (the “Bird's Directive”) and in particular Article 5(d) thereof which provides that Member States shall take requisite measures to establish a general system of protection for all species of birds set out in Annex 1 thereof prohibiting deliberate disturbance of these birds particularly during a period of breeding and rearing insofar as disturbance would be significant having regard to the objectives of the Directive. Under Article 4 of the above Directive Member States are to put in place special conservation measures concerning the habitats of the qualifying interests in identified in special protection areas (“SPA”).

  • iii. Directive 2011/92/EU (the “EIA Directive”). Under Article 2 thereof Member States are obliged to adopt all measures necessary to ensure that before development consent is given, projects likely to have a significant effect on the environment, by virtue, inter alia, of their nature, size or location are made subject to an EIA.

The EIA is to identify, describe and assess in an appropriate manner the direct and indirect significant effects of a project on biodiversity with particular attention to species and habitats protected under the foregoing Habitats Directive and/or Birds Directive.

9

It is not disputed in these proceedings that under the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 ( SI No. 456/2011) it is provided that applications for the restructuring of rural land holdings are considered by the Minister for Agriculture. This status continued until after the commencement of the within proceedings, when in 2023, there was an alteration of the provisions of the Regulation aforesaid.

10

By virtue of Statutory Instrument No. 477 of 2011, Regulation 24(1) it is provided that the Minister shall establish the necessary conservation measures and, if need be, appropriate management plans specifically designed for the European sites or integrated into other development plans and appropriate statutory, administrative, or contractual measures which correspond with the ecological requirements of those species and habitats in respect of which the site is included as a European site or that are subject to the conservation objectives of the site.

As regards the development of public roads Annex 2, para. 10(e) of the EIA Directive aforesaid is incorporated into Irish law under s.50(1)(a)(iv) of the 1993 Act.

11

Under regulation 250(1) of the Planning and Development Regulations 2001 as amended it is provided that where a local authority proposes to carry out an own development it is required to carry out a screening on the impacts of same individually or in combination with other plans and projects. If it cannot be excluded on the basis of objective information that the proposed development either individually or in combination with other projects would have a significant effect on a European site the authority is required to determine that NIS is required and submitted to ABP for approval under s.177AE of the Planning and Development Act 2000 as amended.

12

The proposed route passes through a portion of the Ardee Bog pNHA. It is within 12.4km of the Dundalk Bay Special Protection Area and Special Area of Conservation and is 5.3km from Stabannan- Braganstown SPA.

Applicant's Evidence
13

At ground E1 it is stated that the facts and matters relied on in support of each of the grounds are identified in the verifying affidavit sworn by Anne Lennon. It is said that such facts and matters are incorporated into the statement of grounds by reference.

14

The facts set out in the statement of ground are verified by the affidavit of Ms Lennon of 13 December 2021 aforesaid. It is common case that she does not assert that she is an expert. She is a member of the applicant which was established in 2018 for the environment, conservation and protection of Ardee Bog pNHA over which the proposed road will pass. She has been concerned for some years about the pHNA, the curlew and the greylag goose who feed on lands within or close to the pHNA. She complains that the Stabannan-Bragnarstown SPA only has generic conservation objectives, Dundalk Bay SPA having non-generic, but undetailed, objectives. She complains that neither SPA has a management plan.

15

Both species aforesaid are qualifying interests (“QI”) in respect of the Dundalk SPA with the greylag goose being a QI in respect of the Stabannan-Bragnarstown SPA. It is common case that these birds forage and breed outside of the SPA boundaries. The National Parks and Wildlife Service (NPWS) in a study identified that breeding curlews are in decline in Ireland. It is asserted that these curlew breed on the Ardee Bog although a nest has not yet been located on the bog.

On a survey in or about May 2019 the deponent met personnel from NPWS and subsequently a map was prepared by NPWS of location sightings of the feeding curlew. It is complained that given that the applicant has managed a log of sightings it could have shared it's records if it had been allowed participate in the process leading to the impugned determinations. In addition to the foregoing, the deponent states that the lands are liable to flooding which then attracts water birds including the greylag goose and whooper swan. A research paper of Frank Mitchell & Breeda Tuite has been exhibited to demonstrate the foreseeability of likely significant environmental impacts...

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