European court to rule on Bord Pleanála’s reasons when excluding EPAs

A High Court judge wants the Court of Justice of the EU (CJEU) to rule on European law issues concerning whether An Bord Pleanála must give more specific reasons when deciding developments do not require environmental impact or appropriate assessment.

Mr Justice Richard Humphreys will await the CJEU findings before issuing his final judgment on a challenge by an environmental group to the board’s permission for a strategic housing development of 320 residential units in Trim, Co Meath.

The challenge, by Eco Advocacy CLG, based in Enfield, Co Meath, concerns an October 2020 permission granted to Keegan Land Holdings Ltd (KLH) for the development at Charterschool Land, Manorlands, Trim.

Eco Advocacy’s concerns about the development include about its size, scale and height, effect on the cultural and architectural heritage of Trim, and potential impact on the environment.

The river Boyne and river Blackwater special protection area is some 700m north of the site.

The group claims none of the concerns that it or others, including the Department of Culture, Heritage and the Gaeltacht, An Taisce and Meath County Council raised were properly addressed by the board.

It claimed a report by a board inspector recommending approval of the development contained “perfunctory” and “uninformative” conclusions on a range of issues.

The group disputed the inspector’s conclusions that a full environmental impact assessment (EIA) and Appropriate Assessment was not required. It claimed no, or no appropriate, screening was carried out before it was determined an EIA or AA was not required.

The board, in granting permission, set out matters it “had regard to” but had not set out reasons or considerations for its decision to grant permission, it is claimed.

‘Wholly inadequate’

The board’s decision that the development was not likely to have significant effects on the environment was “wholly inadequate”, it argued.

Last May, Mr Justice Humphreys rejected domestic law grounds of the group’s challenge.

He also rejected certain EU law points raised but decided “in principle” to refer questions to the CJEU arising from the remaining EU law grounds of challenge.

These included claims the board and its inspector inadequately considered matters required to be considered under the EIA directive; there was no express statement of what documents exactly set out the reasoning of the board; and the board failed to remove all scientific doubt about the impact on the integrity of European sites by failing to deal with matters raised in submissions by An Taisce and the council.

Having heard “excellent” submissions from the sides, and “particularly helpful” submissions from An Taisce and Client Earth, as assistants to the court on legal issues, the judge gave a judgment on Monday referring six questions of European law to the CJEU.

These include whether EU law obliges a domestic court to apply Union law that has been raised by a party even if the particular provision or interpretation has not been specifically pleaded.

Challenge

If the answer to that is yes – and the judge said his view is that yes is the correct answer – then Eco Advocacy can pursue wider ground of challenge to the permission.

Those other grounds concern the obligations of the board, where it has decided not to carry out an EIA or AA, to specifically state what documents set out its reasons for doing so.

The judge said his view is that any screening decision should be accompanied by “express, discrete and specific reasons” and he was referring that issue because the board decision did not expressly state what specific documents set out its reasoning why an EIA and AA was not required.

The other questions include whether certain mitigation measures were impermissibly considered by the board at the AA screening stage.