Friends of the Irish Environment CLG v Government of Ireland

• Jurisdiction: Ireland
• Judge: Ms. Justice Marie Baker
• Judgment Date: 09 November 2022
• Neutral Citation: [2022] IESC 42
• Court: Supreme Court
• Docket Number: S:AP:IE:2022:000001 High Court Record No.: 2018 No. 391 JR

Between/

Friends of the Irish Environment CLG

Applicant/Appellant

and

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

Respondents

[2022] IESC 42

O'Donnell C.J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

Hogan J.

S:AP:IE:2022:000001

A:AP:IE:2020:000119

High Court Record No.: 2018 No. 391 JR

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Strategic environmental assessment – Reasonable alternatives – Directive 2001/42/EC – Appellant challenging the two strands of Project Ireland 2040 adopted by the first respondent – Whether the comparison of reasonable alternatives, as required by Directive 2001/42/EC, was sufficient

Facts: The appellant, Friends of the Irish Environment CLG, challenged the two strands of Project Ireland 2040 adopted by the first respondent, the Government of Ireland, on 16 February 2018, and re-affirmed by a subsequent decision of the Government on 29 May 2018. Project Ireland comprised two plans, the National Planning Framework (NPF) and the National Development Plan (NDP). The challenge was to the validity of the adoption of both plans on account of the alleged failure to meet the requirements of Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Strategic Environmental Assessment Directive (the SEA Directive). In particular, the question was whether the comparison of reasonable alternatives, as required by the Directive, was sufficient. A separate question concerned whether sufficient monitoring provisions were provided in the NPF. A prior question which arose was whether the NPF and/or the NDP were required as a matter of law to be assessed under the provisions of the SEA Directive. The respondents argued that neither plan was subject to a requirement that it be so assessed as neither was a “plan or programme” within the meaning or scope of the Directive. Whilst the NPF was assessed for the purposes of the SEA Directive, the respondents submitted that this was not done by reason of a legal obligation, but rather that the NDP was wholly outside the scope of the SEA Directive by reason of it being a “budgetary policy”. On 26 November 2021, the Court of Appeal dismissed the appeal from the judgment of the High Court (Barr J, [2020] IEHC 225), although the Court of Appeal disagreed with some of his analysis and conclusions ([2021] IECA 317). The appellant appealed to the Supreme Court against that decision of the Court of Appeal.

Held by Baker J that an SEA assessment must be carried out in respect of a draft plan, but what was not clear was whether an assessment of a particular level of detail is required for all reasonable alternatives identified in a draft plan submitted for consultation before a plan is finally adopted. That was a question which in her mind could not clearly be answered from a reading of the Directive nor from the European Commission’s Guidance Document entitled “the implementation of Directive 2001/42 and the Assessment of the effects of certain Plans and Programmes on the Environment 2003” (the Commission Guidance). In light of the Court’s obligations as a final court, she proposed referring this interpretive question to the CJEU under Article 267 TFEU before she could come to a concluded view as to the correct interpretation of the requirement for an evaluation and assessment of reasonable alternatives. She noted that the Commission Guidance pointed out that Article 10 of the SEA Directive does not contain any technical requirements about the methods to be used for monitoring; further, the SEA Directive is not prescriptive as to the exact arrangements for monitoring, the frequency of monitoring, the methodology or the bodies who should conduct monitoring. She noted that the requirement is to monitor the implementation of a plan or programme and to ensure early intervention where this is needed. She held that this issue is one of the application of the provisions of the Directive and no interpretative difficulty required further clarification from the CJEU. She held that any further consideration of the adequacy of the proposals for monitoring should await the response to the questions proposed to be asked by the Court under Article 267 TFEU.

Baker J proposed that the questions be referred to the CJEU.

Reference to CJEU.

JUDGMENT of Ms. Justice Marie Baker delivered the 9 ^th day of November 2022

1 . This is a challenge to the two strands of Project Ireland 2040 adopted by the Government of Ireland on 16 February 2018, and re-affirmed by a subsequent decision of the Government on 29 May 2018. Project Ireland comprises two plans, the National Planning Framework (where convenient “NPF”) and the National Development Plan (where convenient “NDP”). Whether the Government was entitled to adopt the plan by way of reaffirmation of the decision made on 16 February 2008 is not in issue in these proceedings.

2 . In broad terms, the challenge is to the validity of the adoption of both plans on account of the alleged failure to meet the requirements of Directive 2001/42/EC of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, the Strategic Environmental Assessment Directive (the “SEA Directive”, or the “Directive”). In particular, the question is whether the comparison of reasonable alternatives, as required by the Directives, was sufficient. A separate question concerns whether sufficient monitoring provisions are provided in the NPF.

3 . A logically prior question which arises however, is whether the NPF and/or the NDP are required as a matter of law to be assessed under the provisions of the SEA Directive. The respondents argue that neither plan is subject to a requirement that it be so assessed as neither is a “plan or programme” within the meaning or scope of the Directive. Whilst the NPF was assessed for the purposes of the SEA Directive, the respondents submit that this was not done by reason of a legal obligation, but rather that the NDP is wholly outside the scope of the SEA Directive by reason of it being a “budgetary policy”.

4 . The Court of Appeal dismissed the appeal from the judgment of the High Court, Barr J. [2020] IEHC 225, although the Court of Appeal disagreed with some of his analysis and conclusions: see judgment of Costello J. delivered on 26 November 2021 ( [2021] IECA 317), with which Haughton and Murray JJ. agreed. The present appeal is against this decision of the Court of Appeal.

SEA Directive

5 . The SEA Directive was adopted by the European Parliament and the European Council as part of its promotion generally of sustainability and environment protection. It aims in a general sense to ensure that environmental considerations are taken into account in certain high level plans or programmes prepared or adopted by a competent public authority likely to have significant effects on the environment, but which themselves are not projects to which individual, site specific planning or development consent requirements are applicable. The plans and programmes for which specific provision is made are those prepared for specific sectors being agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and county and country planning and land use, and which themselves set a framework within which development consent for projects come to be considered.

6 . Article 1 of the SEA Directive sets out its objectives:

“The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.”

7 . The SEA Directive also requires an environmental assessment for the purpose of the preparation of those plans and programmes for which an assessment is required under Articles 6 and 7 of the Habitats Directive. That aspect of the Directive does not fall for consideration in this appeal, although it was a factor in the decision in the High Court and the Court of Appeal.

8 . Under the Directive a number of steps are to be followed, which combined comprise the environmental assessment. The first step is scoping, a concept which is found in both the Habitats Directive, (Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna), and the EIA Directive ( Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment) where a screening assessment is made. The second step involves the preparation of a draft plan accompanied by an environmental report, and one aspect of this appeal concerns the methodology used in the environmental report. The third stage involves public consultation and participation before the fourth stage of decision making and the adoption of a plan or programme by the relevant authority. Finally, provision is made for ongoing monitoring of a plan or programme.

9 . There is an express exclusion for those plans and programmes, the sole purpose of which is to serve national defence or civil emergency or financial or budget plans and programmes. This last class of exemption comes for consideration in this judgment.

10 . As can be seen from that brief summary, the purpose of the Directive, the precise parameters of which will be considered in more detail below (from para. 41), is to identify at an early stage the likely environmental...