Holohan v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 May 2017
• Neutral Citation: [2017] IEHC 268
• Court: High Court
• Docket Number: [2014 No. 476 JR]
• Date: 04 May 2017

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 AS AMENDED

BETWEEN

BRIAN HOLOHAN, RICHARD GUILFOYLE

NORIC GUILFOYLE

AND

LIAM DONEGAN

APPLICANTS

AND

AN BORD PLEANÁLA

RESPONDENT

AND

KILKENNY COUNTY COUNCIL

AND

THE MINISTER FOR ARTS, HERITAGE, REGIONAL, RURAL

AND

GAELTACHT AFFAIRS

NOTICE PARTIES

[2017] IEHC 268

Humphreys J.

[2014 No. 476 JR]

THE HIGH COURT

JUDICIAL REVIEW

Environment, Transport & Planning – The Roads Act 1993 – S.50 of the Planning and Development Act 2000 – Directive 92/43/EEC (Habitats Directive) – Approval for proposed development – Deficient Natura Impact Statement (NIS) – Certiorari – Art. 267 of the Treaty on the Functioning of the European Union ('TFEU') – Reference to Court of Justice of European Union – Directive 2001/42/EC ('EIA Directive').

Facts: The applicants sought an order of certiorari for quashing the decision of the respondent for granting planning permission to the first notice party under s. 51 of the Roads Act 1993 for the construction of an extension of the specific Road. The main issues raised by the applicants were in relation to the treatment of the alternatives in the Environmental Impact Statement ('EIS') and the rejection of main alternatives to the development at an initial stage.

Mr. Justice Richard Humphreys formulated certain questions in the present proceedings for being referred to the Court of Justice of the European Union ('CJEU'). The Court held that under the new constitutional regime, the High Court not being the Court of last resort for effective remedy could make a reference under art. 267 of the TFEU if the matters were not acte clair. The Court sought clarification from the CJEU pertaining to the effect of the Council Directive 92/43/EEC in relation to the identification of entire extent of habitats; identification of potential impact on all the species by proposed development under the NIS. The Court also referred the question as to whether the consideration and the rejection of an alternative would amount to 'main alternatives' under art. 5 (3) (d) of the Directive 2011/92/EC.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of May, 2017

1 The applicants seek an order of certiorari quashing a decision of An Bord Pleanála of 11th July 2014 which approved a proposed road development known as the Kilkenny Northern Ring Road extension. Development consent was granted to Kilkenny County Council pursuant to s. 51 of the Roads Act 1993, as amended. The applicants claim that the respondent erred in failing to consider the environmental effects of main alternatives studied, that the appropriate assessment (AA) purportedly carried out by the respondent was deficient, and that the respondent erred in approving the proposed development and endorsing the Natura Impact Statement (NIS) submitted by Kilkenny County Council, as the council had failed to carry out pre-consent ecological surveys. Further, it is claimed that the respondent erred in granting development consent in circumstances where there was a failure to establish whether derogation licences are required pursuant to art.16 of Council Directive 92/43/EEC of the 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the 'habitats directive') and the Wildlife Act 1976, as amended.

Findings of fact

2 In 2002, Kilkenny County Council adopted the planning objective of completing a northern ring-road and extension to Kilkenny City as part of an overall O-Ring around the City. There is an existing C-Ring around the Eastern half of the City already in place, and the proposed northern extension amounts to a fairly small fragment of the overall plan, around 1.5 km in length.

3 The proposed road cuts through a number of protected natural areas: a Special Protection Area (site code 004233) designated under Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (the 'birds directive') to protect the kingfisher, a candidate Special Area of Conservation (SAC) (site code 002162) under the habitats directive, and a proposed National Heritage Area. The SAC has been designated to protect various types of habitat including alluvial forest, petrifying springs, and other specified habitats. Its designation protects specific species listed in Annex II to the directive, namely the sea, river and brook lampreys, the crayfish, the twaite shad, atlantic salmon, otter, the marsh snail, the Killarney fern, freshwater pearl mussel, and the Nore freshwater pearl mussel ( Margaritifera margaritifera durrovensis) of which this SAC is, according to the site synopsis, the ' only site in the world' where this species exists (p.12).

4 The rationale for the project is set out in the environmental impact assessment (EIA) prepared in relation to this development, which refers to the over-capacity of the current transport links and for the fact that HGV vehicles are currently unnecessarily routed through the centre of this medieval city.

5 The site in question as a candidate SAC (cSAC) was notified to the European Commission in 2002, although for whatever reason formal designation has not occurred in the 15 years since then. Ms. Nuala Butler S.C. with Mr. Fintan Valentine B.L., who also addressed the court, for the board submits that this makes no difference in terms of the application of the legislation.

6 A site synopsis was prepared by the National Parks and Wildlife Service (NPWS) in connection with the SAC designation on 16th January, 2003 (a copy is annexed to Mr. Goodwillie's first ecology report) identifying all species on the site. (This was updated on 1st April, 2014 – see exhibit BH6).

7 In 2007, the Department of Environment, Heritage and Local Government issued circular PD2/07 which emphasised that complete information had to be included in the course of any application affecting a European site, and that development approval could not be made conditional on the furnishing of further information, having regard to the obligations of EU law.

8 In 2007, Kilkenny County Council adopted its development plan 2008-2014, which included the objective of constructing the northern ring-road extension as part of a wider roads scheme for the area.

9 Between 2008 and 2013, Mr. Roger Goodwillie, of Roger Goodwillie & Associates, on behalf of the council, conducted survey work on the site which was ultimately drawn from the preparation of the NIS. While there is evidence that the board's inspector indicated that the surveys had begun in 2008, he was unclear as to the exact dates of particular site visits.

10 Mr. Goodwillie made four written contributions to the papers before the board. The first in time was an ecology report prepared in March, 2008 for the constraints study being prepared by the council's consultants. This surveyed the wildlife and flora in the broad area. I will refer to subsequent reports later.

11 On 18th November, 2008, Clifton Scannell Emerson Associates, on behalf of the council, prepared a report entitled ' Kilkenny northern ring-road extension: constraints and route options study', which involved a detailed comparison of alternative routes for the proposed ring-road extension, although this did not include the option of ' spanning' the floodplain between the Nore river channel and Bleach Road by means of a bridge over the plain, as opposed to a culverted embankment thereon.

12 In 2008, the council submitted an application to the board for approval of a road scheme known as the Central Access Scheme for the City of Kilkenny. This was comprised of three separate phases, involving a 3.5 km road development and a bridge over the Nore.

13 On 7th July, 2009, the board, in dealing with the council's application for approval of the central access scheme for Kilkenny city, decided to invoke s. 217 of the 2000 Act, require a revised Environmental Impact Statement (EIS), and was provisionally of the view that the development was premature pending the completion of the Northern part of the ring road.

14 On 25th November, 2010, the NPWS prepared a ' site synopsis' under the birds directive in respect of the Special Protection Area (SPA).

15 On 19th July, 2011, the NPWS prepared a ' conservation objectives' document setting out the objectives to be achieved for the SAC (exhibit BH6). This identifies around 22 species and habitats requiring conservation and setting forth protection objectives. Note 4 on p. 2 of this document states that the maps ' do not necessarily show the entire extent of the habitats and species for which the site is listed. This should be borne in mind when appropriate assessments are being carried out.'

16 A separate, similar document was prepared on the same date under the birds directive in respect of the SPA, although it is somewhat more sparse in content.

17 In February, 2013, Mr. Goodwillie prepared a further ecology report.

18 In May, 2013, Mr. Goodwillie finalised the NIS, which assessed the impacts on the specific protected habitats and species for which the cSAC and SPA had been designated and that were found on the site. The impacts on species are discussed by reference to the site conservation objectives as stated in 2011. Ms. Butler submits that the proximity in time between the 2011 objectives and the 2013 NIS meant that there was no particular need for further review and analysis of the objectives at that point because the 2011 objectives could still be considered relevant and operative. At the same time, given the express qualification on the entire extent of the habitats and species set out in the conservation objectives document, a question arises as to whether a Natura impact statement must identify such entire extent.

19 In addition to those species for which the cSAC had been designated, there are species which contribute to the...