Sweetman v an Bord Pleanála and Others (Application for leave to seek judicial review) (No 3)

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date02 March 2010
Neutral Citation[2010] IEHC 53
CourtHigh Court
Date02 March 2010
Sweetman v Bord Pleanála & Ors
JUDICIAL REVIEW

BETWEEN

PETER SWEETMAN
APPLICANT

AND

An BORD PLEANÁLA, IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT
RESPONDENTS

AND

WEXFORD COUNTY COUNCIL, KILKENNY COUNTY COUNCIL AND THE NATIONAL ROADS AUTHORITY
NOTICE PARTIES

[2010] IEHC 53

[No. 202 J.R./2009]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Judicial Review - Irrationality - Approval for construction of bypass - Conservation - Natural habitats - Criteria to be applied - Whether adverse affect to site integrity - Whether substantial grounds - Whether appropriate assessment carried out - Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging totBescherming van Vogels, C 127/02, ECR (2004-I); R v Maff (Ex parte National Farmers Union)(Case C- 157/96)[1998] ECR 1 2211; Monsanto Agricoltura Italia and Ors. (Case C-236/01) [2003] ECR 1; Commission v. Portugal, C 239/04, ECR (2006-I) Case C 209/02 Commission v. Austria [2004] ECR 1 1211 considered - McNamara v. An Bord Pleanála [1995] 2 ILRM 125 and Power v. An Bord Pleanala [2006] IEHC 454 applied - Planning and Development Act 2000 (No 30), s. 50 and 50(A) - Council Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Fauna and Flora - Directive 79/409/EEC on the Conservation of Wild Birds - Relief refused (2009/202JR - Hedigan - HC - 2/3/2010) - [2010] IEHC 53

Sweetman v An Bord Pleanála

Facts The applicant sought leave to apply for judicial review of a decision of the first named respondent to grant approval to the notice parties to construct a road known as the New Ross Bypass. The applicant for leave and the substantive application were heard together by consent. It was accepted by the respondent herein that the proposed road crossed a site of community importance (SCI) under Habitats Directive (62/43/EEC) and also a European site under the European Communities (Natural Habitats) Regulations 1997/2002. It therefore had the benefit of the site protection rules established by Article 6(2) - (4) of the Directive as transposed by Article 30 of the Regulations. The applicant claimed that the decision was irrational because in the absence of conservation objectives the respondent could not properly assess the possible impact on the immediate environment and that a scientific doubt raised in the inquiry should have been such as to create a reasonable scientific doubt such that the respondent could not grant permission. Finally it was argued that a stepwise approach to making the decision was not adopted as a result of which the respondent did not ask itself the right question. The respondent argued that the conservation objectives were established in the course of the Environmental Impact Assessment (EIA) and were set out in the Environmental Impact Statement (EIS). It was further argued that there was no scientific doubt raised.

Held by Hedigan J. in refusing leave and the substantive application: That a plan or project under Article 6(3) of the Directive could only be authorised by a competent authority if it had made certain that it would not adversely affect the integrity of the site. That can only be the case where no reasonable scientific doubt remains as to the absence of such effects. In this case the respondent had before it the EIS and the Inspector's report. The requirement implicit in Article 6(3) for conservation objectives was met by their inclusion in the EIS. The scientific concern/doubt raised had already been identified in the EIS and mitigation measures were proposed therein. Consequently, the project in question was the subject of an appropriate assessment in the light of the conservation objectives for the site and there was relevant and ample evidence before the respondent upon which it could properly rely in order to ascertain there would be no likely adverse effect on the site and that no reasonable scientific doubt remained in relation thereto.

Reporter: L.O'S.

EEC DIR 92/43 ART 6

EEC DIR 79/409

EEC DIR 92/43 ART 6(2)

EEC DIR 92/43 ART 6(3)

EEC DIR 92/43 ART 6(4)

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 REG 30

LANDELIJKE VERENIGING TOT BEHOUD VAN DE WADDENZEE v STAATSSECRETARIS VAN LANDBOUW, NATUURBEHEER EN VISSERIJ 2005 AER (EC) 353 2004 ECR I-7405 2005 2 CMLR 31 2005 ENV LR 14

CMSN v PORTUGAL 2006 ECR I-10183

PLANNING & DEVELOPMENT ACT 2000 S50

PLANNING & DEVELOPMENT ACT 2000 S50A

MCNAMARA (KILL RESIDENTS GROUP) v BORD PLEANALA (NO 1) 1995 2 ILRM 125 1995/3/1122

POWER v BORD PLEANALA UNREP QUIRKE 17.1.2006 2007/51/10856 2006 IEHC 454

1

Judgment of Mr. Justice Hedigan delivered on the 2nd day of March, 2010.

2

1. The applicant seeks leave to apply for judicial review of a decision of the first named respondent hereinafter after, the Board, of the 22 nd December, 2008 to grant approval to the notices parties to construct a road known as the New Ross Bypass. On the consent of the parties the Court is hearing this application as a "telescoped" hearing whereby the application for leave to seek judicial review and the application itself will be heard together. Although initially raising many issues, the applicant has now narrowed his complaint down and focuses simply on the ground raised by him in connection with the Habitats Directive (62/43/EEC) and specifically with Article 6 thereof.

The statutory framework
3

2. Council Directive 92/43/EEC on the Conservation of Natural Habitats and Wild Fauna and Flora (the Habitats Directive) is transposed into Irish law by the European Communities (Natural Habitats) Regulations 1997/2002 (the Habitats Regulations). The Habitats Directive seeks to protect wildlife most significantly through a system of site designation and restrictions on land use that impacts on those designated sites. The Directive establishes a network of sites across Europe known as Natura 2000. This consists of sites designated under the Habitats Directive and of sites classified under Directive 79/409/EEC on the Conservation of Wild Birds (the Birds Directive). The site designation process under the Habitats Directive and the Habitats Regulations is a complex one. For the purposes of the present case it is accepted by the first named respondent that the proposed road crosses a site of community importance (SCI) under the Directive and a European site under the Regulations. It is also sometimes referred to as a candidate special area of conservation (cSAC). It therefore has the benefit of the site protection rules established by Article 6(2) - (4) of the Directive as transposed by Article 30 of the Habitats Regulations.

4

Article 6 of the Habitats Directive is as follows:

5

2 "1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.

6

2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.

7

3. 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.

8

4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.

9

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest."

10

3. This Article was considered by the European Court of Justice in Case C - 127/02 Waddenzee. The following extracts from that judgment are relevant to this case and are as follows:

11

2 "54. Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field. Those objectives may, as is clear from Articles 3 and 4 of the Habitats Directive, in particular Article 4(4), be established on the basis, inter alia, of the importance of the sites for the maintenance or restoration at a favourable conservation status of a natural habitat type in Annex I to that...

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