Peter Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 06 December 2021
• Neutral Citation: [2021] IEHC 777
• Docket Number: RECORD NO. 2018/740JR
• Court: High Court

Between

Peter Sweetman

Applicant

and

An Bord Pleanála

First Named Respondent

and

Ireland and the Attorney General

Second Named Respondent

and

Bradán Beo Teoranta

Galway County Council

Notice Parties

[2021] IEHC 777

RECORD NO. 2018/740JR

THE HIGH COURT

JUDGMENT of Ms. Justice Niamh Hyland delivered on 6 December 2021

Summary

1 In Sweetman v An Bord Pleanála & Ors [2021] IEHC 16, delivered on 15 January 2021, I quashed a decision of An Bord Pleanála (“the Board”) granting permission to a proposed development for the abstraction of freshwater from Loch an Mhuilinn, Gorumna Island, Co. Galway, solely on the basis of its failure to comply with the requirements of the Water Framework Directive, (“the WFD”). In reaching that decision, before accepting the argument in relation to the WFD, I rejected three alternative arguments proposed by the applicant.

2 Following delivery of that decision but before any Orders were made in this matter, correspondence ensued between the first notice party and the Environmental Protection Agency (“the EPA”). The EPA were not a notice party to these proceedings or involved in any way in the substantive hearing prior to delivery of my judgment and no party suggested at that time that they should be involved.

3 The response of the EPA was circulated to all parties and following this, the first named respondent brought an application to have the case reopened. In the context of that application, it was suggested by the applicant that, if I was minded to re-open the proceedings, I should make a preliminary reference to the Court of Justice of the European Union (“the CJEU”), pursuant to Article 267 TFEU.

4 Having considered the arguments raised by the parties, I have decided that a preliminary reference is warranted. In this judgment I:

• (i) Briefly describe the factual background to the permission under challenge;

• (ii) Summarise the judgment I delivered on 15 January 2021, including the basis upon which I concluded that the permission ought to be quashed for failure to meet the requirements of the WFD;

• (iii) Explain why I have decided to re-open the judgment;

• (iv) In the context of the request for a preliminary ruling, as identified in the recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings ( 2019/C 380/01) (the “Recommendations”), summarise the subject matter of the dispute and the relevant findings of fact, identify any relevant national provisions or case law, and explain why I consider it necessary to make a reference;

• (v) Set out the questions to be referred.

Nature of Dispute

5 The planning application in question sought permission to abstract a maximum of 4, 680m3 of freshwater per week from Loch an Mhuilinn, a privately owned non-tidal inland lake (characterised as a body of surface water under the WFD) for up to 22 weeks annually from May-September. The abstraction would take place 4 hours a day for a maximum of 4 days a week. The abstracted freshwater would be used to bathe diseased salmon to rid them of Amoebic Gill Disease and sea lice. These salmon are located in four licenced sites operated by the first notice party, Bradán Beo Teoranta in Kilkieran Bay, Co. Galway. The freshwater would be pumped from the lake via a pipeline to a proposed headwall at the coast road where another pipeline would convey the freshwater to tarpaulins which would be towed by boat to the sites where the fish would be treated.

Judgment of 15 January 2021

6 The applicant did not succeed in three of the four arguments raised. However it was successful in its argument that, in granting permission for the development, the Board had breached its obligation under Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000, establishing a framework for Community action in the field of water policy – the Water Framework Directive — to ensure non-deterioration and the achievement of good surface water status when granting approval for a development affecting a surface water body. I found that the proposed development will affect Loch an Mhuilinn, a surface water body. However, Loch an Mhuilinn had not been granted a status by the EPA following precise evaluation and monitoring, as required by the WFD and Ireland's implementing legislation. The concepts of deterioration and good surface water status are inextricably tied to the complex evaluation framework identified in the WFD. Given the failure by the EPA to assign a status to Loch an Mhuilinn, I concluded it was impossible for the Board to evaluate whether the proposed works were compliant with Article 4(1) of the WFD. The reliance by the Inspector and the Board on some type of proxy evaluation that referred to concepts said to stem from the WFD was not, in my view, sufficient to establish compliance with the WFD. In those circumstances, I quashed the decision of the Board solely on this ground.

Events post Judgment

7 Following the delivery of my judgment, the first notice party decided to seek the views of the EPA on the issues raised. The response of the EPA, by letter dated 28 January 2021, was circulated to all parties on 19 February 2021.

8 The EPA's response of 28 January 2021 set out an overview of its own understanding of “the EPA's role in identifying waterbodies under the Water Framework Directive” in 13 numbered points. In summary, it indicated that there was no obligation to determine the status of all waterbodies in the State and that it was not and is not obliged to determine the status of Loch an Mhuillin. Given the importance of the letter from the EPA, I set out all the points made below;

• “i. The purpose and provisions of the Water Framework Directive (WFD) apply to all waters including surface waters and groundwaters (Article 1 (Purpose) and Article 2 (Definitions).

• ii. The basic unit of reporting used in the Directive is known as a water body. Water bodies are used to report on compliance with the main environmental objectives of the Directive.

• iii. The Directive requires member states to identify water bodies (defined in Article 2(10)) as part of the analysis of the characteristics of the river basin districts (Article 5 and Annex II).

• iv. The EPA is the competent authority in Ireland for identifying water bodies under the WFD (Article 7, SI No. 722 of 2003. European Communities (Water Policy) Regulations).

• v. The European Commission produces guidance to support member states in implementing the WFD requirements. Guidance Document No. 2 relates to the Identification of Water Bodies

  https://ec.europa.eu/environment/water/waterframework/facts_figures/guidance_docs_en.htm

• vi. Guidance Document No. 2 recognises that the identification of all surface waters as discrete water bodies would place a very significant burden on member states.

• vii. The guidance states that member states have flexibility to decide whether the purposes of the Directive, which apply to all surface waters, can be achieved without having to identify as a water body every minor but discrete and significant element of surface water (Section 3.5 of Guidance Note 2).

• viii. For lakes, the Directive requires all lakes larger than 50 hectares (0.5km2) in surface area to be identified as a WFD water body (Article 5, Annex 2 (1.2.2)).

• ix. For lakes smaller than this threshold, member states may decide to include these as WFD water bodies if they are significant in the context of the Directive's purposes and provisions (e.g. ecologically important, important to the objectives of a protected area (as listed in Annex 5 of the Directive) or having a significant adverse impact on other surface waters).

• x. These principles were applied by the EPA and the River Basin District Coordinating Authorities to the selection of lake water bodies in Ireland (see Characterisation Report at link below). All lakes greater than 50 hectares in size and smaller lakes in protected areas (Special Areas of Conservation or areas used for drinking water abstraction) were identified as WFD water bodies.

  https://www. epa.ie/pubs/reports/water/other/wfd/ EPA_water_WFD_monitoring_programme_analysis_of_river_basins.pdf

• xi. There are an estimated 12,000 lakes in Ireland ranging in size from small ponds to our largest lakes such as Lough Conn and Lough Derg. The EPA has identified 800 lakes WFD lake water bodies.

• xii. Loch an Mhuilin is not an identified WFD water body as it does not meet the criteria in relation to surface area or being located in a protected area and therefore the EPA does not determine a status for it.

• xiii. For elements of surface water not identified as a WFD water body the basic protection measures listed in Article 11 of the Directive apply (Section 3.5 of Guidance Note 2).

9 In short, the EPA identified that it did not believe that it was necessary that Loch an Mhuilin be identified as a WFD water body. This was not a view that had ever been communicated to me during the hearing of the matter prior to the judgment of 15 January 2020. As the Board observed in their submissions on the re-opening of the case of 30 April 2021, “It is fair to say that all parties and the Court proceeded on the “common assumption” that the status of Loch an Mhuilin for the purposes of the WFD required to be and/or would be determined and that it now emerges that there is at least a possibility that that common assumption was mistaken”.

10 On 16 April 2021 the matter was re-listed and I asked the parties to provide written submissions on the re-opening of a judgment after delivery. I received those submissions from the Board on 30 April 2021, and from both the applicant and the first notice party on 21 May 2021. At that stage, the notice party made clear it was not intending to take part in any further hearings or make any further submissions.

11 Subsequent...