Sweetman v An Bord Pleanala & Anor (Approved)

Factual and Procedural Background

This judicial review concerns an application by the Plaintiff challenging the decision of the Board dated 20 July 2018, which granted Company B planning permission for a development involving the abstraction of freshwater from Loch an Mhuilinn, Gorumna Island, The State, and associated works. The purpose of the development was to bathe salmon in fish farms off the coast in freshwater to treat diseases. The initial application was made to County Council, which refused permission, leading to the appeal to the Board. The Plaintiff initially also sought reliefs related to the transposition of EU directives but abandoned that aspect before the hearing.

Legal Issues Presented

1. Whether the Board erred in law by granting planning permission without obtaining consent from all owners of the land concerned under Regulation 22(2)(g) of the Planning and Development Regulations 2001.
2. Whether the Board erred in screening out the Connemara Bog Special Area of Conservation (SAC) for the purposes of appropriate assessment under the Habitats Directive.
3. Whether the Board was obliged to carry out an environmental impact assessment (EIA) of the proposed development and the connected fish farms, considering EU case law.
4. Whether the Board breached its obligations under Article 4(1) of Directive 2000/60/EC (Water Framework Directive) by granting permission without ensuring non-deterioration and good surface water status due to the absence of an EPA classification of the water body.

Arguments of the Parties

Applicant's Arguments

• The planning application was invalid due to lack of written consent from certain owners of the lakebed, breaching Regulation 22(2)(g), thus the Board lacked jurisdiction to grant permission.
• The Board failed to properly conduct an appropriate assessment under the Habitats Directive by screening out the Connemara Bog SAC, misunderstanding the test of "likely" and "significant effect".
• The Board breached the EIA Directive by failing to require an EIA for the combined developments of the abstraction project and the fish farms it services, arguing that they are intrinsically connected and not severable.
• The Board breached the Water Framework Directive by approving the development without a proper evaluation of the water body status, as the EPA had not assigned a status to Loch an Mhuilinn, making it impossible to assess compliance with non-deterioration and good status requirements.

Respondent's Arguments

• The Board noted that the Plaintiff did not raise the arguments in submissions to the Board or the County Council, and no other person objected on these grounds.
• The Board maintained that Regulation 22(2)(g) was satisfied as there was no evidence of objection from owners lacking consent, and the Plaintiff’s arguments were hypothetical.
• The Board argued that there was no breach of the Habitats Directive, submitting that there was no evidence of potential significant effects on the Connemara Bog SAC given the distance and nature of the development.
• Regarding the EIA, the Board contended that the fish farms were not part of the planning application and subject to separate licensing regimes with their own EIA requirements; the abstraction development was ancillary and did not require an EIA.
• On the Water Framework Directive, the Board argued that permission could be granted despite the absence of a water body status classification, relying on mitigation measures and absence of evidence of deterioration.

Notice Party's Arguments

• The notice party adopted the Board’s submissions and emphasized that consent letters had been submitted and accepted by the County Council.
• They argued that the Connemara Bog SAC was correctly screened out due to distance, scale of development, and lack of direct pathways for impact.
• The proposed development is not listed under Annex I or II of the EIA Directive and does not require an EIA; the fish farms are subject to separate licensing and regulatory regimes.
• They supported the mitigation measures and monitoring arrangements for water levels in the lake to ensure environmental protection.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed analysis of each legal issue grounded in statutory interpretation, case law, and EU law principles.

Regarding consent under Regulation 22(2)(g), the Court emphasized that consent is required only from owners of the land or structures "concerned" by the application. The Court found uncontradicted evidence that all owners whose land the pipeline physically traversed had given consent. The temporary pipe did not rest on the lakebed and did not impact lands of other owners. Riparian rights over water do not equate to ownership of land "concerned" by the application, and thus consent from riparian rights holders was not required. Consequently, the Board did not err in accepting the application without additional consents.

On appropriate assessment, the Court applied the low threshold test from Kelly v. An Bord Pleanála and found that the evidence supported the Board’s conclusion that only the Kilkieran Bay SAC was likely to be significantly affected, not the more distant Connemara Bog SAC. The Court rejected the Plaintiff’s assertion of error in screening out the Connemara Bog SAC, finding no evidence to the contrary. The Court also found that the Board applied the correct test regarding adverse effects on site integrity.

Concerning the EIA obligation, the Court held that the argument based on Case C-275/09 (Brussels airport) was inadmissible as it was not pleaded and raised for the first time at hearing. Substantively, the Court found that the water abstraction development and the fish farms are distinct projects subject to separate licensing regimes. There was no multi-stage consent process linking them, and the abstraction development was ancillary, not intrinsic, to the fish farms. Therefore, no EIA was required for the combined developments under EU law.

On the Water Framework Directive, the Court provided a comprehensive review of the WFD regime and relevant CJEU jurisprudence, particularly the Weser case. It found that the EPA had not assigned a status to Loch an Mhuilinn as required by Irish implementing legislation and the WFD. Without such classification, it was impossible for the Board to evaluate whether the proposed development complied with Article 4(1) of the WFD concerning non-deterioration and achievement of good surface water status. The Board’s reliance on proxy evaluations and mitigation measures was insufficient to ensure compliance with the WFD. Consequently, the Board failed in its legal obligation under EU law.

Holding and Implications

The Court QUASHED the Board’s decision granting permission for the proposed development solely on the basis of non-compliance with the Water Framework Directive.

The direct effect of this decision is that the planning permission granted for the abstraction development is invalidated. The Court did not find merit in the other grounds of challenge and did not set new precedent on those issues. The ruling underscores the necessity for planning authorities to ensure full compliance with EU environmental directives, particularly the WFD, including reliance on competent authority classifications before granting permission for developments affecting water bodies.