Friends of the Irish Environment CLG v The Government of Ireland, Minister of Housing, Planning and Local Government, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Ms. Justice Costello
• Judgment Date: 26 November 2021
• Neutral Citation: [2021] IECA 317
• Docket Number: Court of Appeal Record Number 2020/119
• Year: 2021
• Court: Court of Appeal (Ireland)

Between

Friends of the Irish Environment CLG

Applicant/Appellant

and

The Government of Ireland, Minister of Housing, Planning and Local Government, Ireland and The Attorney General

Respondents

[2021] IECA 317

Costello J.

Haughton J.

Murray J.

Court of Appeal Record Number 2020/119

THE COURT OF APPEAL

UNAPPROVED

JUDGMENT of Ms. Justice Costello delivered on the 26th day of November 2021

Introduction

1 . On 16 February 2018, the Government of Ireland announced the launch of Project Ireland 2040. The project comprises two parts – The National Planning Framework 2040 and a ten-year National Development Plan. The latter announced €116bn worth of investment over the period it covered.

2 . On 29 May 2018, the government formally reaffirmed its decision of 16 February 2018 to adopt and publish the National Planning Framework. The applicant in these proceedings challenges the validity of the decision, or decisions, to adopt both the National Planning Framework (“the NPF”) and the National Development Plan (“the NDP”) and seeks orders of certiorari quashing the NPF and the NDP. It does so on the basis of alleged failures by the respondents to observe mandatory requirements of EU law in the process of adopting the NPF and the NDP.

3 . By order dated 13 May 2020, the High Court (Barr J.) refused the applicant the relief sought ( [2020] IEHC 225). The applicant has appealed his judgment and order to this court. The appeal was heard on 27 and 28 April and on 23 June 2021.

Overview of the relevant legislative context for the adoption of the NPF and NDP

4 . When adopting the NPF and NDP, the government was required to comply with applicable legislation, including Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (“the SEA Directive”) and Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”), and the Regulations transposing the directives into Irish law, S.I. 435/2004 the European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 and S.I. 200/2011 the European Communities (Environmental Assessment of Certain Plans and Programmes) (Amendment) Regulations 2011 (“the SEA Regulations”), and S.I. 477/2011 the European Communities (Birds and Natural Habitats) Regulations 2011 (“the Habitats Regulations”). I set out the relevant provisions here so that the description of the detailed process undertaken which follows may be better understood and the issues said to arise from the alleged flaws in the process set in context.

5 . The Habitats Directive places strict legal obligations on member states to ensure the protection, conservation and management of the habitats and species of conservation interest in all European sites. Article 6 obliges member states to undertake an appropriate assessment (“AA”) for any plan or project which is likely to have a significant effect on any European site. The key provision of the Habitats Directive for present purposes is Article 6(3) which provides:-

“Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.” (emphasis added)

6 . In Kelly v. An Bord Pleanála [2014] IEHC 400, Finlay Geoghegan J. held that a determination that a plan or project will not affect the integrity of a European site is a jurisdictional requirement. At para. 40 she set out the requirement for a valid AA. It:-

This summary was approved of by the Supreme Court in Connolly v. An Bord Pleanála [2018] IESC 31. Any purported AA which does not satisfy these criteria will be invalid and any purported decision made in reliance thereon will have been reached without jurisdiction.

• “(i) Must identify, in the light of the best scientific knowledge in the field, all aspects of the development project which can, by itself or in combination with other plans or projects, affect the European site in the light of its conservation objectives. This clearly requires both examination and analysis.

• (ii) Must contain complete, precise and definitive findings and conclusions and may not have lacunae or gaps. The requirement for precise and definitive findings and conclusions appears to require analysis, evaluation and decisions. Further, the reference to findings and conclusions in a scientific context requires both findings following analysis and conclusions following an evaluation each in the light of the best scientific knowledge in the field.

• (iii) May only include a determination that the proposed development will not adversely affect the integrity of any relevant European site where upon the basis of complete, precise and definitive findings and conclusions made the Board decides that no reasonable scientific doubt remains as to the absence of the identified potential effects.”

7 . AA involves two mandatory steps – first, the plan or project is screened to ascertain whether AA is required. If it is determined that it is not, then no further assessment is required. If it is determined that AA is required, this must be carried out in the manner specified in Kelly. It is possible to have further assessment of alternative solutions, and issues of derogation may arise, though these are not relevant to the facts of this case, so I shall not discuss them further. The AA process involves the preparation and assessment of a Natura Impact Statement (“NIS”) and consultation with the public and statutory consultees prior to making an AA determination in respect of the plan or project.

8 . Article 6(3) is transposed into Irish law by the Habitats Regulations. Regulation 42(16) provides:-

“(16) Notwithstanding any other provision of these Regulations, a public authority shall give consent for a plan … or adopt a plan … only after having determined that the plan … shall not adversely affect the integrity of a European site.” (emphasis added)

9 . The obligation in Article 6(3) to agree to a plan only after having ascertained that it will not have adverse effects on protected sites is transposed as an obligation only to agree to a plan after having “determined” that it will not have such effects. The applicant alleges that the AA in this instance did not meet the test set forth in Kelly.

10 . Regulation 42(11) provides:-

“(11) An Appropriate Assessment carried out under this Regulation shall include a determination by the public authority under this Regulation pursuant to Article 6(3) of the Habitats Directive as to whether or not a plan … would adversely affect the integrity of a European site and the assessment shall be carried out by the public authority before a decision is taken to approve, undertake or adopt a plan …”. (emphasis added)

11 . Thus, the assessment which includes the determination, must be carried out “before a decision is taken” to adopt a plan. As this too is a matter of jurisdiction, failure to comply with this requirement invalidates any consequent decision. Here, the applicant alleges that there was no AA determination prior to the purported adoption of the NPF.

12 . Regulation 42(18)(a) requires the public authority to make available for inspection any determinations that it makes under the Regulations. It provides:-

“(18)(a) A public authority shall make available for inspection any determination that it makes in relation to a plan … and provide reasons for that determination, as soon as may be after the making of the determination … by members of the public … and shall also make the determination … available in electronic form.”

Thus, the public authority is required to make available, inter alia, for inspection by the public, the AA determination. The applicant alleges this did not occur in this case.

13 . Regulation 42(1) provides that screening for AA “shall be carried out by the public authority…”. In Regulation 2 the term “public authority” is defined to include a Minister of the government, but does not expressly include the government itself. In this case, the government is the public authority which adopted the NPF and the NDP. The applicant alleges that the government did not carry out the AA, despite the fact that the government adopted the NPF.

14 . The SEA Directive seeks to provide for a high level of protection of the environment by ensuring that an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment (Article 1). Article 2 defines the plans or programmes to which the Directive applies. Article 3 mandates that an environmental assessment, in accordance with Articles 4–9, shall be carried out in respect of plans and programmes referred to in paras. (2)–(4) of Article 3 which are likely to have significant environmental effects. Article 3(8) excludes financial or budget plans or programmes from the Directive. It is therefore necessary, as a preliminary matter, to determine whether a proposed plan or programme requires to be subject to strategic environmental assessment (“SEA”).

15 . Article 4(1) provides that the assessment “shall be carried out during the preparation of the plan or programme and before its adoption …”. The intention is that the environmental consequences of...