Public Participation Is Not Triggered by AA Screening under s.146B; SAC Conservation Objectives Do Not Extend to Birds

3.1 Precedents Cited

The judgment is notable for synthesising a wide body of domestic and EU authority into a structured approach to (i) what can ground relief; (ii) what is within pleadings; and (iii) when EU-law complaints remain actionable where the impugned development is unaffected on the facts.

A. The public participation point: AA vs AA screening

• Carvill v. Dublin City Council [2025] IECA 84: Treated as decisive for the proposition that it is acte clair that public participation rights pleaded as arising from the habitats directive do not arise in a mere AA screening decision. Humphreys J. treats this as following “from the express terms of the habitats directive itself”.
• Sweetman v Environmental Protection Agency [2019] IEHC 81: Relied on by the applicants by analogy to argue that more-than-technical amendments cannot lawfully be made without public participation. The Court distinguished the case on the key factual/legal hinge: here, no AA was required, and the pleaded declaratory relief presupposed an AA-trigger.
• Marleasing SA v La Comercial Internacional de Alimentacion SA, C-106/89: Used to reinforce the availability of conforming interpretation. The Court held that even if s. 146B’s text is “sub-optimal”, it can be applied compatibly with EU law where EU assessment duties arise.

B. Harmless error and evidential burdens in environmental judicial review

• Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12 and R (Champion) v. North Norfolk District Council [2015] UKSC 52: Central to the Court’s account that not every defect requires quashing if the court can exclude a reasonable possibility that the outcome would have been different, and that courts may rely on evidence (including from developers) to determine harmlessness.
• Commission v Ireland (Derrybrien Wind Farm), C-261/18: Cited as the counterweight—post hoc assessment is exceptional where the error is material; however, the case before the Court fell on the opposite side of the line because of the finding of no impact.
• An Taisce v. an Bord Pleanála & Ors. [2022] IESC 8 and a line of High Court authorities (e.g. Carrownagowan Concern Group v. An Bord Pleanála [2024] IEHC 300, Nagle View Turbine Aware Group v. An Bord Pleanála [2024] IEHC 603): Used to restate that scientific/factual shortcomings in AA/EIA generally must be established by admissible evidence, and that mere assertion does not create scientific doubt.
• Ballyboden Tidy Towns Group v. An Bord Pleanála & Ors. [2024] IESC 4: Supports the permissibility of developer participation in defending consents and undermines any notion that the burden shifts merely because a decision-maker does not defend every point.

C. Pleadings discipline and the prohibition on expanding the case

• Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála & Ors. [2024] IESC 28: Authority for confining relief to pleaded contours, while recognising limited capacity to grant unpleaded relief only within those contours.
• Sweetman v. An Bord Pleanála (Sweetman XV) [2020] IEHC 39: Pleading stringency applies with particular force to non-transposition and EU-heavy arguments.
• Hellfire Massy Residents Association v. An Bord Pleanála [2022] IESC 38 and Babington v. Minister for Justice Equality and Law Reform & Ors. [2012] IESC 65: Deployed to reject scattergun pleadings and repetitive reformulations.

D. The birds/habitats directive interface: site objectives for “other species”

• Elliniki Ornithologiki Etaireia and Others v Ypourgos Esoterikon and Others, C-66/23: The key EU authority for the applicants’ SPA argument. Humphreys J. quoted the CJEU’s focus that conservation objectives must take account of “classification species” and also “other species of birds which must be protected under Article 4” and are “present in a significant manner”, while noting priority status for designation species.
• Holohan v An Bord Pleanála, C-461/17 and Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij, C-127/02: Used to frame the “reasonable scientific doubt” standard and to reject any requirement to disprove hypothetical risk.

E. Procedural governance: draft judgments and confidentiality

• O'Sullivan v. Health Service Executive [2023] IESC 11 and O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75: Cited to limit draft-judgment feedback to error correction, not re-argument, and to resist “criminal trial” proceduralism.
• Attorney General v. Crosland (No. 2) [2021] UKSC 58: Used to justify restrictions on publishing draft judgments as serving the administration of justice.

3.2 Legal Reasoning

A. Core ground 7 (invalidity of s. 146B): why the argument failed

1. The pleaded trigger (“AA required”) did not arise on the facts. The declaration sought posited that s. 146B is invalid because it fails to ensure that public participation is triggered “in every case” by an AA. The Court held that this was not a case requiring AA; therefore the asserted participatory right, as pleaded, did not arise.
2. AA screening is not enough. The Court held it is acte clair that public participation rights do not arise from a mere AA screening decision, relying on Carvill v. Dublin City Council [2025] IECA 84.
3. Conforming interpretation prevents the “silence = invalidity” leap. Even acknowledging s. 146B’s “sub-optimal” lack of express reference to habitats directive duties, the Court held the provision can be applied compatibly with EU law, and that if AA were required, the Commission could not treat the change as immaterial and would have to use its powers compatibly with EU obligations.
4. Unpleaded “legal certainty/transposition” complaints were not entertained. The Court noted (but did not decide) that legislative silence might arguably raise “inadequately transparent transposition” issues, but emphasised that this was not pleaded and could not be imported.

B. Core ground 6: what was actually pleaded, and the consequences

A key methodological move in the judgment was strict demarcation between pleaded and unpleaded claims. The Court rejected attempts to pivot to broader propositions (e.g. that the SAC should have been designated as an SPA, or that designation instruments were invalid), because they were not pleaded and would require a different evidential and procedural foundation.

C. The SAC point (Golden plover): “interpretation” cannot rewrite the directive

The Court held the applicants’ SAC argument was fundamentally misconceived because the habitats directive’s SAC regime is expressly structured around habitats in Annex I and species in Annex II, and Annex II contains no birds. Consequently, the obligation in Article 6(1) to establish conservation measures/objectives for SACs cannot be extended to birds. Any bird-related obligations in respect of areas overlapping an SAC must arise, if at all, under the birds directive—and such a birds-directive failure was not properly pleaded.

D. The SPA point (Grey heron and Mallard): a narrowed but potentially significant issue

The only surviving merits issue (for declaratory relief) concerns whether, and in what circumstances, a Member State must set site-level conservation objectives/measures within an SPA for species other than the “classification species”, applying Elliniki Ornithologiki Etaireia and Others v Ypourgos Esoterikon and Others, C-66/23.

Humphreys J. identified the pivotal legal/factual hinge as whether Grey heron and Mallard qualify as “protected species” within Article 4’s reinforced regime (Annex I species or regularly occurring migratory species) and, if so, whether their presence in the SPA is “significant” in the relevant sense. The State’s defence was that:

• Mallard is Annex II (hunting regime) and Grey heron is not in Annex I (as pleaded species);
• Article 4 protection (for non-Annex I birds) is tied to “regularly occurring migratory species” and significance;
• the State applies criteria (as described in its 2013 review and I-WeBS data) to determine whether a site is suitable for classification/added interests;
• the River Nore SPA was not identified as suitable for classification for relevant wintering waterbirds.

The Court signalled unease about potential uncertainty in the State affidavits (including the role of data limitations) and directed further written submissions to clarify facts, address preliminary objections (time limits, interest/standing, and pleading objections), and then address the substantive EU question.

E. Why consent validity was unaffected (and why certiorari was inappropriate)

Even if a defect in conservation objectives were established, the Court held it would not undermine the validity of the consent in this case because the evidence showed the project would not impact the species in question. The Court explicitly framed this as consistent with the EU-law-compatible doctrine of harmless error (drawing on Gemeinde Altrip and Others v Land Rheinland-Pfalz, C-72/12).

3.3 Impact

A. Planning amendments under s. 146B: participation challenges are fact-dependent

The judgment materially reinforces that challenges asserting a lack of public participation under s. 146B will fail where the pleaded participation right is said to be triggered by AA, but AA is not required. It also cements (at High Court level, and as treated as clear law) that AA screening does not itself entail public participation obligations, via Carvill v. Dublin City Council [2025] IECA 84.

B. Conservation objectives litigation: the Court will police category errors

The rejection of the Golden plover/SAC argument is a strong signal that courts will not allow “cross-directive” duties to be pleaded in a manner that effectively rewrites the architecture of the directives (habitats directive SAC regime vs birds directive SPA regime). Claimants must (i) identify the correct legal source of obligation; and (ii) plead and evidence it properly.

C. “Elliniki” aftershocks: the scope of SPA objectives for non-designation species

The Court’s decision to preserve (for Module III) the narrowed SPA issue indicates that Elliniki Ornithologiki may generate further domestic litigation about when “other” Article 4 species in an SPA require site-level objectives/measures. However, the judgment equally shows that such disputes will not readily unsettle individual consents absent evidence of impact.

D. Litigation discipline: pleadings, evidence, and proportionate remedies

The judgment’s insistence on pleading boundaries and evidential burdens, together with its reliance on harmless error, continues a trend in Irish planning/environmental judicial review towards outcome-materiality and disciplined case definition—especially in complex EU-law-heavy disputes.