Factual and Procedural Background
Planning permission for a liquefied natural gas regasification terminal ("the gas terminal") was granted by An Bord Pleanála on 31 March 2008 under the Strategic Infrastructure Development (SID) procedure. The permission imposed a ten-year time limit for carrying out and completing the development works, but did not limit the operational period thereafter. No development works commenced within this period, and the permission expired accordingly.
In September 2017, the Developer applied to extend the duration of the planning permission by five years, seeking to alter the relevant condition to allow a total of fifteen years. This application was made pursuant to section 146B of the Planning and Development Act 2000 (PDA 2000), although doubts were raised about the appropriateness of this procedural route, with the court concluding that only section 42 of the PDA 2000 provides the lawful basis for such an extension.
An Bord Pleanála decided on 13 July 2018 to grant the extension. The Applicant challenged this decision by judicial review, contending that the extension engages the Habitats Directive and that the expired planning permission cannot be revived. An Bord Pleanála and the Developer maintain that a mere temporal extension does not trigger the Habitats Directive's procedural requirements and that the extension can be granted even after expiry.
The case engages complex issues concerning the application of the Habitats Directive to extensions of planning permission duration, the proper statutory procedure for such extensions, and the legal effect of the expiration of planning permissions.
Legal Issues Presented
- Whether a decision to extend the duration of a planning permission constitutes the agreement of a project triggering Article 6(3) of the Habitats Directive.
- Whether the fact that the original development consent was granted under national law that did not properly implement the Habitats Directive affects the applicability of the Directive to the extension decision.
- Whether the extension of an expired planning permission is valid or whether the permission ceases to have effect upon expiration and cannot be revived.
- What considerations a competent authority must have regard to in carrying out a screening for appropriate assessment under the Habitats Directive when extending a planning permission.
- Whether a distinction exists between time-limits imposed on the construction phase versus the operational phase of a project in relation to the Habitats Directive.
- Whether the national court has an obligation to interpret domestic legislation to ensure compliance with the Habitats Directive even if such interpretative issues have not been expressly pleaded.
- Whether a national procedural rule precluding challenge to an earlier expired development consent in subsequent proceedings is consistent with EU law and the remedial obligation under the Habitats Directive.
Arguments of the Parties
Applicant's Arguments
- The extension of the planning permission duration engages the Habitats Directive and requires screening and, if necessary, an appropriate assessment of the entire project, not just the alteration.
- Since the original planning permission expired before the extension decision, the permission ceased to have effect and cannot be revived.
- The original planning permission was granted under a legal regime that did not properly transpose the Habitats Directive, thus the adequacy of the original assessment can be questioned in these proceedings.
- The competent authority must consider updated conservation objectives, expanded protected site boundaries, and new scientific data in the screening assessment.
An Bord Pleanála's Arguments
- A mere extension of the duration of a planning permission is a temporal change that does not alter the project and therefore does not engage Article 6(3) of the Habitats Directive.
- Even though there was no legal obligation, An Bord Pleanála carried out an ad hoc screening exercise confined to the effects of the alteration (the extension) itself, not the entire project.
- The application for extension was incorrectly made under section 146B rather than section 42, but the board maintained that the extension could be granted.
- The original planning permission had expired, but the board contends the extension decision remains valid.
- The adequacy of the original assessment cannot be challenged in these proceedings, and the Applicant's attempt to re-agitate earlier criticisms amounts to an impermissible collateral challenge.
Developer's Arguments
- The expiration of the 2008 planning permission does not preclude the grant of an extension of duration retrospectively.
- The application for extension was validly made and the extension decision is lawful.
- The procedural safeguards under section 42 are not mandatory where an application is made under section 146B.
- The Applicant has not pleaded that the decision was made under the incorrect statutory provision and thus the court lacks jurisdiction to decide on that basis.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Merriman v. Fingal County Council [2017] IEHC 695 |
The Habitats Directive does not apply to an extension of the duration of a planning permission under section 42 PDA 2000. |
The court considered this precedent but noted significant legal developments since, including the Advocate General's opinion in Case C-411/17, and distinguished the facts. |
| Case C-411/17 Inter Environnement Wallonie |
Extension of duration of development consent is subject to the Habitats Directive. |
The Advocate General's opinion was central to the court's decision to refer questions to the CJEU for preliminary ruling. |
| Case C-418/04 Commission v. Ireland |
Improper transposition of the Habitats Directive by equating appropriate assessment with environmental impact assessment. |
The court noted the 2008 permission was granted under a regime that did not comply with the Habitats Directive as per this precedent. |
| Case C-404/09 Commission v. Spain |
Appropriate assessment must contain complete, precise and definitive findings capable of removing all reasonable scientific doubt. |
The court found the 2008 permission lacked such findings, affecting the adequacy of the original assessment. |
| Brown Bear II (Case C-243/15) |
Proceedings raising issues under the Habitats Directive are subject to the procedural requirements of the Aarhus Convention. |
The court considered this in relation to procedural fairness and access to judicial review. |
| Sweetman v. An Bord Pleanála [2018] IESC 1 |
Reaffirmed the doctrine of impermissible collateral challenge in planning judicial review. |
The court applied this principle to bar challenges to expired planning permissions via subsequent applications. |
| Stadt Wiener (Case C-348/15) |
Competent authorities have a remedial obligation to remedy failures to carry out environmental impact assessments. |
The court considered whether national procedural bars to challenging earlier consents are consistent with this remedial obligation. |
| Ashbourne Holdings Ltd. v. An Bord Pleanála [2003] 2 IR 114 |
Where a specific statutory power is subject to restrictions, it is not legitimate to rely on a general power to achieve the same result circumventing those restrictions. |
The court applied this principle to reject the use of section 146B as a substitute for section 42 for extending planning permission duration. |
| Dublin Corporation v. Hill [1994] 1 IR 86 |
Local authority could not rely on enforcement mechanism without a time-limit in preference to one with a time-limit. |
The court drew analogy supporting the principle that statutory restrictions cannot be side-stepped by invoking a general power. |
| Callaghan v. An Bord Pleanála (No. 1) [2017] IESC 60 |
Irish courts may consider constitutional and EU law principles in statutory interpretation even if not raised by parties. |
This supported the court's approach to interpret national law in light of EU law obligations. |
| South-West Regional Shopping Centre Ltd. v. An Bord Pleanála [2016] IEHC 84 |
Sections 146B and 146C provide the only statutory provisions authorising amendment of existing planning permissions. |
The court noted this but distinguished it from the issue of extending duration post-expiry. |
| Grace v. An Bord Pleanála [2017] IESC 10 |
Omission of statutory requirements in later legislation may indicate deliberate legislative intent. |
The court considered this in interpreting the absence of a provision allowing extension of expired permissions. |
| Meagher v. Minister for Social Protection [2015] 2 IR 633 |
Statutory interpretation must avoid absurd or unworkable results. |
The court applied this principle in assessing the interpretation of time limits and extensions. |
Court's Reasoning and Analysis
The court identified the central issue as whether extending the duration of a planning permission constitutes a "project" under Article 6(3) of the Habitats Directive, thereby triggering procedural requirements including screening and appropriate assessment. It noted that the original permission was granted under a regime that did not properly implement the Habitats Directive, lacking a proper appropriate assessment.
The court acknowledged the Advocate General's opinion in Case C-411/17, which supports the proposition that extensions of duration are subject to the Habitats Directive, and decided that the question is not acte clair. Consequently, the court resolved to refer several detailed questions to the Court of Justice of the European Union (CJEU) under Article 267 for a preliminary ruling.
Regarding the statutory basis for extending duration, the court held that section 42 of the PDA 2000 provides the exclusive lawful mechanism, containing important safeguards including compliance with the Habitats Directive and limits on extension length. The application in this case was made under section 146B, which lacks such safeguards, and thus was not the correct procedure.
The court considered whether it could determine the case based on this procedural error despite the Applicant not pleading it explicitly. It concluded that, due to the interpretative obligation to ensure compliance with EU law, a flexible approach to pleadings is warranted.
The court also analysed the effect of the planning permission's expiration, concluding that under national law the permission ceased to have effect upon expiry and cannot be revived. However, it recognized that this issue is intertwined with EU law and the Habitats Directive, and thus resolution must await the CJEU ruling.
Finally, the court addressed the objection of impermissible collateral challenge, whereby the Applicant seeks to question the adequacy of the original permission's assessment outside the statutory time-limit. The court noted tension between domestic time-limit jurisprudence and the EU law remedial obligation to remedy failures to assess environmental impacts, and included this issue in the Article 267 reference.
Holding and Implications
The court's final decision is to REFER QUESTIONS TO THE CJEU pursuant to Article 267 of the Treaty on the Functioning of the European Union for a preliminary ruling on the applicability and interpretation of the Habitats Directive in the context of extending the duration of planning permissions.
The court held that the extension of duration can only be lawfully granted under section 42 of the PDA 2000, which includes safeguards for compliance with the Habitats Directive, and not under section 146B. However, the court refrained from setting aside the impugned decision on this procedural ground at this stage due to jurisdictional considerations and the need for the CJEU's guidance.
The court recognized unresolved issues concerning the validity of extending expired permissions and the possibility of collateral challenges to prior inadequate assessments. These issues will be clarified by the CJEU's ruling.
The direct effect of the decision is to pause final determination of the judicial review pending the CJEU's judgment. No new domestic precedent on the substantive issues is established until the CJEU ruling is received.