Eco Advocacy CLG v An Bord Pleanala (Approved)

Factual and Procedural Background

This judicial review concerns a proposed development of 320 dwellings at a site in a designated heritage town, located near zones of archaeological potential and architectural conservation areas. The site is adjacent to the River Boyne and River Blackwater Special Area of Conservation (SAC) and Special Protection Area (SPA). The land includes a recorded monument and is close to protected structures and views.

Previous development proposals on the site were refused in 2008, 2009, and 2011 due to issues including lack of sustainable drainage systems and poor design quality given the site's heritage context. Originally zoned for commercial or industrial use, the land was re-zoned for residential development.

Following pre-planning meetings and screening reports, the developer lodged an application under the strategic housing development procedure. After further consideration and reports, permission was granted by the planning board on 27th October 2020.

The applicant sought judicial review of the board's decision, obtaining leave on 14th January 2021. The hearing took place in February 2021, with additional affidavits and submissions permitted thereafter. Judgment was reserved following the hearing.

Legal Issues Presented

1. Whether the planning board failed to properly consider compliance with the development plan and local area plan.
2. Whether the pre-planning stage decisions were sufficiently certain and binding.
3. Whether past breaches of planning law by related companies should affect the current decision.
4. Whether the board failed to have regard to relevant submissions.
5. Whether the decision contained adequate reasons as required by domestic law.
6. Whether the decision was unreasonable on the evidence.
7. Whether mitigation measures should be disregarded at the Environmental Impact Assessment (EIA) screening stage under EU law.
8. Whether the board failed to properly address issues raised in submissions during the screening process, specifically regarding the Habitats Directive and appropriate assessment.
9. Whether there is a requirement to expressly state the reasoning documents of the competent authority in EIA and Habitats Directive screening decisions.
10. Whether there is an obligation to expressly address all specific headings and sub-headings in Annex III of the EIA Directive.
11. Whether the pre-planning stage engages EU law obligations, including the Aarhus Convention.

Arguments of the Parties

Applicant's Arguments

• The planning board failed to adequately address compliance with local and county development plans.
• Pre-planning decisions lacked certainty and were improperly treated as binding.
• Related companies' past breaches of planning law, including destruction of burial grounds, should influence the decision.
• The board failed to properly consider submissions from statutory bodies and others, particularly concerning ecological and heritage impacts.
• The decision lacked sufficient reasons under domestic law.
• The decision was unreasonable and failed to properly screen for the need for EIA and appropriate assessment, improperly relying on mitigation measures at the screening stage.
• The EIA screening was inadequate, lacking detailed consideration of environmental impacts and scientific doubts.
• The board did not explicitly state which documents set out the reasons for its decisions, contrary to principles of legal certainty and good administration under EU law.
• The pre-planning process violated EU law and the Aarhus Convention by excluding public participation.

Notice Party's Arguments

• The applicant lacked bona fides, was hostile to the developer, and misled the court at the ex parte stage; however, these allegations were rejected as overstated.
• The applicant’s pleadings were insufficiently detailed and failed to comply with procedural requirements, raising difficulties in advancing certain complaints.
• The pre-planning process is not binding in substantive planning decisions.
• The board properly considered submissions and the inspector’s report contained adequate reasons under domestic law.
• Mitigation measures can be considered at the screening stage if they are integral to the design.
• The complaints about the EIA and appropriate assessment screenings were inadequately particularised and should fail in limine.
• The possibility of a reference to the Court of Justice of the European Union (CJEU) exists, but the applicant’s late attempt to seek such a reference was characterized as a delay tactic.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by addressing preliminary issues, rejecting allegations that the applicant lacked bona fides or acted with animus. It acknowledged some pleading deficiencies but emphasized that these did not justify refusing relief or discharge of leave to apply for judicial review. The court recognized the procedural importance of clear pleadings but noted respondents also bear responsibility to raise objections timely to maintain equality of arms.

On domestic law issues, the court found that complaints about failure to address compliance with development plans and pre-planning certainty were inadequately pleaded or legally misconceived. It confirmed that pre-planning decisions are not binding in substantive planning processes, relying on established precedent.

The court rejected the argument that the board failed to have regard to submissions, clarifying that there is no obligation to provide detailed narrative discussion of every submission. It held that the reasons given by the board, including incorporation of the inspector’s report, met the standard required by domestic law.

Regarding unreasonableness, the court found the decision supported by sufficient reasons and not manifestly unsustainable.

Turning to EU law, the court considered the EIA Directive and Habitats Directive issues. It held that mitigation measures are generally to be disregarded at the screening stage for appropriate assessment, citing the CJEU’s People Over Wind judgment. However, it recognized ambiguity in Irish case law on whether standard design features integral to a project may be considered, concluding the issue was not acte clair and suitable for referral to the CJEU.

The court also addressed the adequacy of the EIA screening, noting the applicant’s complaint that the inspector’s report lacked detailed reasoning on ecological and heritage concerns. It observed that the submissions from statutory bodies were not explicitly addressed in detail, raising a referrable question on the level of reasons required under EU law to dispel scientific doubt at the screening stage.

The court acknowledged procedural complexities concerning the identification of precise reasoning documents and the obligation to address all Annex III headings of the EIA Directive, raising further referrable questions.

It rejected the applicant’s EU law complaints about the pre-planning stage as inadequately pleaded and noted that challenges to the validity of legislation require specific procedural steps not taken here.

The court concluded that the EU law questions raised relate to interpretation rather than application of EU law and are necessary for the decision. Since answers are not acte clair, the court exercised its discretion to refer these questions to the CJEU under Article 267 TFEU.

The court ordered the parties to provide further focused submissions to assist in framing the questions for referral, including relevant EU and domestic legal provisions and case law, and to consider potential amici curiae participation. It outlined procedural directions for managing the reference and participation of interested parties.

Holding and Implications

The court’s final decision is to grant leave for judicial review but not to quash the planning board’s decision at this stage. Instead, it exercises its discretion to make a preliminary reference to the Court of Justice of the European Union on several EU law questions concerning the screening stages of environmental assessments.

The direct effect is that the planning permission remains valid pending the CJEU’s ruling. The court’s referral aims to clarify EU law interpretation to guide future decisions in similar cases. No new domestic precedent was set beyond procedural and interpretative guidance on judicial review pleadings and the obligations of planning authorities under EU environmental law.