Factual and Procedural Background
This opinion concerns an application by the Applicants for certification to appeal to the Court of Appeal following a judgment delivered by Judge Haughton in the High Court on 1st May 2015. The Applicants challenged a decision by the Respondent, a planning authority, relating to a planning permission for a commercial windfarm development proposed by Company B. The case involves judicial review proceedings under Section 50 of the Planning and Development Act 2000 (as amended), focusing on the interpretation and application of the Habitats Directive and related environmental assessment legislation.
The Applicants include a large environmental group and an unincorporated entity represented by an individual who sought leave to appeal on different grounds. The procedural context involves certification under Section 50A(7) of the Planning and Development Act 2000 for leave to appeal on points of law of exceptional public importance. The Court considered submissions and evidence including an affidavit from an expert on freshwater pearl mussels relevant to the protected species at issue.
Legal Issues Presented
- Whether Articles 6(2) to 6(4) of the Habitats Directive impose a positive obligation on planning authorities to ensure restoration of a protected habitat or species from unfavourable to favourable conservation status in the context of appropriate assessment under Article 6(3).
- The nature and scope of the obligation to use the best scientific evidence in conducting an appropriate assessment, including whether the Court may consider evidence not before the planning authority.
- Whether it is lawful for mitigation measures to be left to post-consent conditions and agreements, or whether such measures must be fully assessed and secured as part of the appropriate assessment or environmental impact assessment.
- Whether points concerning compliance with Environmental Impact Statement (EIS) and Environmental Impact Assessment (EIA) requirements under updated national regulations and EU directives raise questions of law suitable for certification.
- The appropriate standard of judicial review applicable to decisions on appropriate assessments under the Habitats Directive.
- Whether the Court can or should make a preliminary reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (TFEU).
Arguments of the Parties
Applicants' Arguments
- The Applicants argue that the planning authority has a legal obligation under Article 6(3) of the Habitats Directive to ensure that developments do not adversely affect the restoration objective for protected species and habitats, particularly where conservation status is unfavourable and at risk.
- They contend that the Court’s earlier judgment incorrectly interpreted Article 6(2) as imposing only a negative obligation to prevent deterioration rather than a positive restoration obligation.
- The Applicants assert that the planning authority must rely on the best scientific evidence available and that new evidence, including that from an expert affidavit, should be considered to identify any lacunae in the evidence presented.
- They challenge the legality of leaving mitigation measures to be agreed upon post-consent, arguing that such measures must be assessed and secured as part of the decision-making process.
- The Applicants seek certification on whether the Environmental Impact Statement and Environmental Impact Assessment complied with the relevant EU directives and national regulations, including the proper application of a purposive approach by the courts.
Respondent and Company B's Arguments
- The Respondent and Company B argue that the Court’s interpretation of Article 6(3) and the related obligations is consistent with settled EU jurisprudence, including the Advocate General’s opinions and CJEU decisions.
- They maintain that the planning authority had before it the best scientific evidence reasonably available and that new evidence not before the authority cannot be considered by the Court on judicial review.
- They assert that mitigation measures left to post-consent conditions relate to technical details and are lawful, relying on established case law analogies from planning law.
- They contend that the points raised regarding EIS and EIA compliance are fact-specific and do not raise novel or uncertain points of law warranting certification.
- They emphasize the public interest in the expeditious determination of planning matters and argue that delays caused by appeals could negatively impact commercial developments and renewable energy targets.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Glancr Teoranta v. An Bord Pleanála and Mayo County Council [2006] IEHC 250 |
Principles governing certification of points of law of exceptional public importance for appeal under Section 50A(7). |
The Court adopted these principles to determine whether to grant certification for leave to appeal. |
| Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2 |
Criteria for certification including exceptional public importance, desirability of appeal, legal uncertainty, and public nature of the issue. |
Used to reinforce the test for certification and to assess the public interest in allowing the appeal. |
| Sweetman v. An Bord Pleanála (Case C-258/11) |
Interpretation of Article 6 of the Habitats Directive as a coherent whole; obligations to maintain or restore habitats. |
The Court analyzed this case to examine the extent of restoration obligations under Article 6(3) and found the law evolving. |
| Briels and Others v. Minister van Infrastructuur en Milieu (Case C-521/12) |
Clarification of Article 6(3) concerning adverse effects and the need to preserve site integrity. |
The Court referenced this case in considering the legal obligations on competent authorities in appropriate assessments. |
| Houlihan v. An Bord Pleanála (unreported, High Court, 1993) |
Principles on leaving technical details to post-consent conditions in planning decisions. |
Applied by analogy to assess the lawfulness of leaving mitigation measures to post-consent agreement. |
| Boland v. An Bord Pleanála [1996] 3 IR 435 |
Legal principles regarding conditions and technical details in planning permissions. |
Used as an analogy for the approach to mitigation measures in appropriate assessments. |
| Arklow Holiday Homes Limited v. An Bord Pleanála [2006] IEHC 5 |
Environmental Impact Assessment principles and discretion of planning authorities. |
Considered but distinguished as relating to EIA rather than appropriate assessment under Habitats Directive. |
| McNamara v. An Bord Pleanála [1998] 3 IR 453 |
Functus officio principle regarding the High Court’s power to make preliminary references to the CJEU. |
The Court noted this principle but did not decide on a reference given certification of points of law. |
| Von Colson v. Land Nordrhein-Westfalen (Case-14/83) [1984] ECR 189 |
Principles on purposive interpretation of EU law by national courts. |
Referenced in considering the proper approach to EU directives and judicial review. |
| Marleasing SA v. La Comercial Internacionale de Alimentacion SA (C-106/89) [1990] ECR I-4135 |
Obligation on national courts to interpret national law in conformity with EU law. |
Applied in assessing the courts’ approach to EU environmental law. |
| Nathan v. Bailey Gibson Ltd [1998] 2 IR 162 |
Application of EU law principles in Irish courts. |
Referenced in the context of judicial interpretation of EU law obligations. |
| Watson v. the Environmental Protection Agency [2000] 2 IR 454 |
Judicial review standards and EU law compliance. |
Considered in relation to standard of review in environmental cases. |
Court's Reasoning and Analysis
The Court began by outlining the statutory framework for certification of leave to appeal under Section 50A(7) of the Planning and Development Act 2000, emphasizing the requirement that points of law be of exceptional public importance and that it be desirable in the public interest to grant leave. The Court applied established principles from precedent cases, noting that the jurisdiction to certify should be exercised sparingly and only in cases where legal uncertainty exists and clarification would benefit future cases.
Regarding the Habitats Directive, the Court identified a novel and unresolved legal question concerning whether Article 6(3) imposes a positive restoration obligation on planning authorities when the conservation status of a habitat or species is unfavourable. The Court found that the law is still evolving and that prior CJEU decisions do not conclusively resolve this issue. The Court accepted that this point arises directly from its earlier judgment and is of exceptional public importance due to the implications for environmental protection and planning law.
On the obligation to use the best scientific evidence, the Court acknowledged that competent authorities must base appropriate assessments on the best available scientific knowledge. The Court recognized the complexity of determining when evidence is sufficiently current and complete, especially where new evidence emerges after the authority’s decision. The Court found this issue also raises a point of law of exceptional public importance.
Concerning mitigation measures, the Court considered whether it is lawful to leave detailed mitigation to post-consent conditions. It concluded that while some technical details may be left for later agreement, the potential adverse effects and the mitigation measures must be properly described, examined, and evaluated during the appropriate assessment. The Court found this issue to raise a novel question of law requiring clarification.
The Court addressed the Applicants’ points on compliance with EIS and EIA directives and found that the domestic legislation and regulations had been amended to cure prior transposition issues. The Court held that the points raised were fact-specific and did not raise uncertain or exceptional points of law warranting certification.
Regarding the standard of review and the possibility of a preliminary reference to the CJEU, the Court found no grounds to certify these points. It noted settled principles on the application of EU law by national courts and observed that the High Court was functus officio with respect to making a reference after deciding substantive issues.
Balancing the public interest, the Court acknowledged concerns about delay but concluded that the public importance of clarifying the law on restoration, best scientific evidence, and mitigation measures outweighs the risk of delay to the proposed development.
Holding and Implications
The Court GRANTED certification for leave to appeal to the Court of Appeal on three specific points of law related to the interpretation and application of the Habitats Directive in appropriate assessments:
- The obligation of planning authorities under Article 6(3) to ensure that developments do not adversely affect the restoration objective of habitats and species with unfavourable conservation status.
- The duty to rely on and procure the best scientific evidence in conducting appropriate assessments, including the extent to which courts may consider evidence not before the planning authority.
- The lawfulness of leaving mitigation measures to post-consent conditions versus the requirement to assess and secure such measures as part of the assessment process.
The Court refused certification on points concerning compliance with Environmental Impact Statement and Assessment regulations, the standard of judicial review applicable to appropriate assessments, and the question of making a preliminary reference to the CJEU.
The decision allows the Applicants to appeal on points of exceptional public importance, which will provide authoritative guidance on key aspects of environmental and planning law. No new precedent was set by the Court itself beyond the certification decision, and the direct effect is to permit further judicial consideration by the Court of Appeal of the certified issues.