Waltham Abbey Residents Association v an Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 10 May 2021
• Neutral Citation: [2021] IEHC 312
• Docket Number: [2020 No. 813 JR]
• Court: High Court
• Date: 10 May 2021

In the Matter of Section 50, 50A and 50B of the Planning and Development Act 2000 and in the Matter of the Planning and Development (Housing) and Residential Tenancies Act 2016

Between

Waltham Abbey Residents Association

Applicant

and

An Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland and the Attorney General

Respondents

and

O'Flynn Construction Company Unlimited

Notice Party

[2021] IEHC 312

[2020 No. 813 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning and development – Environmental impact assessment – Applicant seeking an order of certiorari quashing the respondent’s decision to grant permission for a strategic housing development – Whether relief should be refused on grounds of discretion

Facts: The first respondent, An Bord Pleanála, on 16th September, 2020, decided to grant permission for a strategic housing development. The applicant, Waltham Abbey Residents Association, applied to the High Court seeking an order of certiorari quashing the board’s decision. The relief sought in core ground 1 was a challenge to the validity of the pre-application consultation legislation. That had been left over to a potential later module, pending the determination of the other issues, on the principle of reaching constitutional issues last. Core grounds 2 regarding appropriate assessment screening, 3 regarding the water framework directive, 6 regarding the site notice and 7 regarding parking provision were not pursued at the hearing. Thus, the only matters that fell for determination in this module were core grounds 4 and 5 regarding the environmental impact assessment (EIA) screening process.

Held by Humphreys J that there was no basis for refusing relief on grounds of discretion; doing so would only weaken the rule of law and undermine the enactment in this respect, probably fatally. He held that had it been necessary to come to a decision on the adequacy of the EIA in relation to bats, he would have given consideration to whether to seek the assistance of the CJEU on the questions arising; however, as the matter could be disposed of under domestic law, those questions were not “necessary” for the determination of the proceedings within the meaning of art. 267 TFEU, so, for the purposes of this case, the court did not need to get into EU law either in general or as to the possibility of a reference in particular.

Humphreys J held that there would be an order of certiorari removing for the purposes of being quashed the board’s decision to grant permission. On that basis, the case against the State was moot, so he provisionally proposed striking out the case against the State with no order, without prejudice to the applicant’s entitlement to pursue any such point in any future litigation if that becomes necessary and with liberty to re-enter the proceedings against the State in this case if some future development in the proceedings makes such re-entry legally appropriate. He held that if there is no such development, then any future case against the State would be ventilated through new proceedings in a hypothetical new factual context if such arises. He directed the parties to the module to liaise with the State and with List Registrar to list the matter on the next convenient Monday for any consequential directions.

Case moot.

JUDGMENT of Humphreys J. delivered on Monday the 10th day of May, 2021

1 On 23rd January, 2020, the notice party developer engaged in a pre-application consultation process for a proposed strategic housing development consisting of the construction of 123 apartments and associated works at Old Fort Road, Ballincollig, County Cork.

2 In February 2020, the board issued an opinion pursuant to s. 6(9) of the Planning and Development (Housing) and Residential Tenancies Act 2016 that the application provided a reasonable basis for a Strategic Housing Development (SHD) application.

3 There is a procedure under s. 7 of the 2016 Act for a subsequent opinion as to the scope of environmental impact assessment (EIA), but this was not activated here, so any EIA issues were integrated into the usual development consent process.

4 The formal SHD application was made on 11th June, 2020. A tree survey was conducted for that purpose and screening reports were produced for the purposes of EIA and appropriate assessment (AA). The EIA screening report at para. 3.1.3 asserts that the site is of “low value ecological habitat”. It does not include any particular analysis of the flora and fauna on the site. The only reference to “biodiversity” is to the AA screening report which in turn only relates to Natura 2000 sites rather than the ecology of the site itself.

5 The EIA screening report conclusion includes a proposal that the retention of existing vegetation on site “where possible” and its enhancement through new landscaping will result in a positive biodiversity impact. The “Statement of Consistency” states that “[t]he existing hedgerows and trees along the site boundary are to be retained and protected where appropriate. All trees to be maintained will be protected appropriately during construction and operation. As above, the existing trees on site are to be retained and protected …”. That wording suggests that no trees are being removed, but that is not the case. A number of cypress trees are being cut down as well as two oak trees out of six on the site. One of the oak trees being removed has a cavity which suggests that it could be suitable for use by fauna.

6 On 7th July, 2020, the applicant company which represents the residents of a nearby estate made a lengthy submission raising a vast number of issues. The main thrust of the submission related to the impact of a large new housing development on the existing established residential community, for example in terms of parking and traffic. Given the comprehensive nature of the submission, it was a pleasant surprise that the grounds in the present judicial review were tightly focused.

7 On 11th September, 2020, the inspector reported favourably on the application.

8 On 16th September, 2020, the board decided to grant permission for the development. For the purposes of AA the board adopted the screening exercise of the inspector. In relation to EIA, that is not stated because the inspector did not conduct a screening exercise in the sense of the Planning and Development Regulations 2001. Rather the board says that it completed an EIA screening. The primary relief sought in the present proceedings is an order of certiorari quashing the board's decision.

Scope of the challenge

9 The relief sought in core ground 1 is a challenge to the validity of the pre-application consultation legislation. That has been left over to a potential later module, pending the determination of the other issues, on the principle of reaching constitutional issues last.

10 Core grounds 2 regarding AA screening, 3 regarding the water framework directive, 6 regarding the site notice and 7 regarding parking provision were not in fact pursued at the hearing. Thus, the only matters falling for determination in this module are core grounds 4 and 5 regarding the EIA screening process.

Non-compliance with regulation 299B of the Planning and Development Regulations 2001

11 Regulation 299B of the Planning and Development Regulations 2001 (S.I. No. 600 of 2001), inserted by the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), envisages three levels of engagement with the EIA process. Firstly, there is “preliminary examination” which is required in every case by reg. 299B(1)(b). Following that the board may decide that “screening” is required and this is undertaken under reg. 299B(2)(b)(ii). The third and highest level of engagement following that process would be full EIA.

12 Where an application comes through preliminary examination and the board goes on to conduct a screening exercise, a document required to be produced by reg. 299B(1)(b)(ii)(II)(C) is “a statement indicating how the available results of other relevant assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Impact Assessment Directive have been taken into account.”

13 There is a difference in language between the regulations and the directive in that art. 4(4) of the EIA directive 2011/92/EU as amended, in particular by directive 2014/52/EU, does not require a “statement” of the assessments under other European Union legislation, only “information” (see generally on the amended directive, Agustìn Garcìa-Ureta, “ Directive 2014/52 on the Assessment of Environmental Effects of Projects: New Words or More Stringent Obligations?”, Environmental Liability, Law Practice and Policy, (2014) 22(6) Env. Liability: 239). Similarly, the EC EIA Guidance on Screening, 2017, p. 44 refers to information rather than a statement.

14 That said, any member state can normally implement a directive in a way that adds additional protections, not inconsistent with EU law, to those expressly spelled out in the directive.

15 One of those additional procedures here is the clear and unambiguous requirement of a “statement” of the analysis of the effects of the project under other EU law. As the CJEU pointed out in Case C-75/08 R. (Mellor) v. Secretary of State for Communities and Local Government (Court of Justice of the European Union, 30th April, 2009, ECLI:EU:C:2009:279) at para. 57: “third parties, as well as the administrative authorities concerned, must be able to satisfy themselves that the competent authority has actually determined, in accordance with the rules laid down by national law, that an EIA was or was not necessary” (emphasis added).

16 The situation is unfortunately inadequately reflected in the ministerial guidelines on EIA, 2018, issued under s. 28 of the ...