Sweetman v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 04 May 2016
• Neutral Citation: [2016] IEHC 277
• Court: High Court
• Docket Number: [2013 No. 356 J.R.]
• Date: 04 May 2016

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

BETWEEN

PETER SWEETMAN

AND

THE SWANS AND THE SNAILS LTD

APPLICANTS

AND

AN BORD PLEANÁLA AND IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

CLARE COUNTY COUNCIL

NOTICE PARTY

AND

NORTH TIPPERARY COUNTY COUNCIL

NOTICE PARTY

[2016] IEHC 277

McDermott J.

[2013 No. 356 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Planning & Development – S. 50 of the Planning and Development Act 2000 – S. 51 of the Roads Act, 1993 – Objection on granting planning permission – Council Directive 94/43/EEC (Habitats Directive) – Loss of habitat in Special Area of Conservation (cSAC) – EIA Directive 2011/92 /EU

Facts: The applicants sought an order of certiorari for quashing the decision of the first named respondent for granting permission to the first notice party in relation to proposed development. The applicants objected that the proposed development was approved in contravention of Council Directive 94/43/EC without considering the impact on an area of alluvial wet willow, which was a designated special area of conservation (cSAC). The applicants contended that the appropriate assessment carried out by the first named respondent did not comply with the requirements of art. 6 of the Habitats Directive & s. 177V of the Planning and Development Act, 2000.

Mr. Justice McDermott refused to grant an order of certiorari to the applicants. The Court held that the s. 177V of the Act of 2000, which provided for the approval of proposed development after consideration of impact upon concerned sites of community interest, was subject to art. 6 (4) of the Habitats Directive that called for carrying out the proposed development in public interest. The Court found that in the present case, the sites in issue were not the sites of community interest or cSAC and there was a mere possibility that it might impinge upon the cSAC of the lower river. The Court observed that there was no lacuna in the EIA carried out by the first named respondent as it had conducted and EIA and prepared a Natura Impact Statement (NIS) as well.

JUDGMENT of Mr. Justice McDermott delivered on the 4th day of May, 2016

1 The applicant seeks an order of certiorari of the decision of An Bord Pleanála (the Board) made on 25th March, 2013 to grant permission to Clare County Council under s. 51 of the Roads Act, 1993 (as amended) in respect of the 'Killaloe By-Pass', a development comprising of:

(a) The construction of a by-pass of Killaloe, Co. Clare of approximately 2km of Type 2 Single Carriageway;

(b) The construction of a bridge crossing the River Shannon approximately 170m long including 0.9km of Type 2 Single Carriageway between the R494 regional road and the R463 regional road;

(c) The upgrade and realignment of approximately 3.3km of the existing R494 road to Type 3 Single Carriageway;

(d) The provision of cycling and pedestrian facilities along the length of the proposed road development;

(e) The construction of two new bridges along the R494 regional road over the Kilmastulla River and the Limerick to Nenagh railway line;

(f) The construction of three roundabout junctions where the proposed road development intersects existing regional roads;

(g) The construction of two major/minor priority staggered junctions along the by-pass section of the proposed road development;

(h) The upgrading and realignment of some sections of existing regional and local roads; and

(i) Associated ancillary and consequential works.

2 The applicants also seek two declarations that:-

(1) Habitats which can be classified as Annex I priority natural habitats on the basis of their ecological characteristics are entitled to de facto protection under Council Directive 94/43/EEC of 21st May, 1992 on the Conservation of natural habitats and of wild fauna and flora (The Habitats Directive) in particular under Article 2 thereof;

(2) Any permanent and irreversible loss of habitat within the Special Area of Conservation (SAC) necessarily adversely affects the integrity of the site having regard to its conservation objectives and the constitutive characteristics of the site.

3 Leave was granted to apply for judicial review (Peart J.) on 13th May, 2013 in respect of a wide range of reliefs on 55 separate grounds. This was reduced at the hearing of the action to the relief set out above based on a more limited number of grounds. The applicants now rely upon grounds 1, 2, 3, 4, 8, 9, 10, 11, 12, 15, 16, 17, 18, 24, 25, 27, 33 and 34 in respect of the application for certiorari and grounds (iv) 1 and 2 in respect of the first declaration at para. d(5) of the statement of grounds and grounds (v) 1, 2 and 3 in respect of the declarations sought at para. d(6).

History of events

4 An application was lodged by Clare County Council with An Bord Pleanála in respect of this development on 7th February, 2012. At the same time an Environmental Impact Statement (EIS) and a Natura Impact Statement (NIS) were submitted by the Council to the Board. Further information was sought by the Board from the Council on 4th May, 2012 and a response was furnished on 25th May. An oral hearing was convened and held by an Inspector appointed for that purpose in October, 2012. On 6th March, 2013, the Board considered the application, the objections made in respect of the proposed development, the report of the Inspector who conducted the oral hearing and all documents and submissions on file, and decided to approve the proposed development subject to stipulated modifications and conditions. A Board Directive issued confirming this decision on 21st March, 2013 and a development consent was granted to the County Council approving the application with conditions on 25th May. The applicant claims that an area of alluvial wet willow/alder situated on the western side of the proposed bridge will be subjected to permanent and irreversible destruction even though it is a priority natural habitat as described in Annex I of the Habitats Directive.

Summary of the applicant's main grounds

5 Counsel on behalf of the applicant identified the main issues in the case under three broad headings namely:-

(a) The failure by the respondents to identify or deal adequately with a site hosting an alluvial woodland habitat which qualifies as an Annex I priority natural habitat located on the western side of the proposed development as a Site of Community Importance under the Habitats Directive.

(b) An Environmental Impact Assessment (EIA) carried out by the Board was deficient and did not comply with the provisions of Article 3 of Directive 2011/92/EU (The EIA Directive) or s. 171A of the Planning and Development Act 2000, as amended;

(c) The Board erred in law by attaching a condition to the material development consent, authorising the management of construction of the development without assessing a construction management plan and all relevant mitigation measures to be implemented thereunder, contrary to the EIA Directive.

It is necessary because of the wide ranging nature of the submissions made on behalf of the applicant to set out in some detail the provisions of the relevant Directive, regulations and statutory provisions concerning protected natural habitats.

Council Directive 92/43/EC of 21st May 1992 (The Habitats Directive)

6 The main aim of the Directive was expressed in its Preamble to be the promotion and maintenance of biodiversity, taking account of economic, social, cultural and regional requirements. It states that measures are necessary at community level to conserve natural habitats which are continuing to deteriorate and to define them as requiring priority in order to favour the early implementation of conservation measures. The object is to ensure the restoration or maintenance of natural habitats 'at a favourable conservation status'. Land-use, planning and development policies should encourage the management of features of the landscape which are of major importance for wild fauna and flora. The provisions of the Directive set out the procedures whereby Member States are required in cooperation with the European Commission to designate geographical areas containing priority natural habitats as Special Areas of Conservation (SACs) and protect them.

7 Article 1 of the Directive contains the following relevant definitions:-

'(a) conservation means a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable status as defined in (e) and (i);

(b) natural habitats means terrestrial or aquatic areas distinguished by geographic, abiotic and biotic features, whether entirely natural or semi-natural;

(c) natural habitat types of community interest means those which, within the territory referred to in Article 2:

(i) are in danger of disappearance in their natural range; or

(ii) have a small natural range following their regression or by reason of their intrinsically restricted area; or

(iii) present outstanding examples of typical characteristics of one or more of the nine following biogeographical regions: Alpine, Atlantic, Black Sea, Boreal, Continental, Macaronesian, Mediterranean, Pannonian and Steppic.

Such habitat types are listed or may be listed in Annex I;

(d) priority natural habitat types means natural habitat types in danger of disappearance, which are present on the territory referred to in Article 2 and for the conservation of which the community has particular responsibility in view of the proportion of their natural range which falls within the territory referred to in Article 2; these priority natural habitat types are indicated by an asterisk (*) in Annex I;

(e) conservation status of a natural habitat means the sum of the influences acting on a natural habitat and its typical species that may affect its long-term natural...