An Taisce - The National trust For Ireland v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The Applicant sought judicial review of a planning permission granted for the Notice Party’s proposed cheese manufacturing facility. The High Court previously dismissed the initial judicial review application. The current opinion concerns the Applicant’s application for leave to appeal the dismissal under section 50A(7) of the Planning and Development Act 2000. The Court considered relevant case law on leave to appeal in this context.

Legal Issues Presented

1. Whether, absent scientific evidence contradicting the developer’s Natura Impact Statement (NIS), the Applicant was precluded from contending that the Board’s assessment under Article 6(3) of the Habitats Directive left reasonable scientific doubt as to the effects of the proposed development on protected sites.
2. Whether the indirect environmental effects of the project, including those due to milk production, fall within the scope of the assessment required by Article 2(1) of the EIA Directive and Section 172(1) of the 2000 Act.
3. Whether the Court was correct in concluding that the Applicant’s proceedings constituted a collateral attack on government policy.
4. Whether, absent scientific evidence contradicting the developer’s conclusions on potential deterioration of water bodies or jeopardising attainment of good status under the Water Framework Directive, the Applicant was precluded from contending that the Board’s decision contravened the directive as clarified in Case C-461/13, Weser.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully analysed each proposed point of law for exceptional public importance raised by the Applicant in seeking leave to appeal.

Regarding the first issue on scientific certainty and the Habitats Directive, the Court clarified that an applicant who fails to produce or point to scientific evidence raising doubt about a Natura Impact Statement cannot validly complain that the Board left scientific doubt unaddressed. The Court emphasized that the totality of materials before the Board must be considered, including those from the developer and other parties, and that the Board is not obliged to accept an uncontradicted NIS if it is flawed on its face. The Court rejected the Applicant’s over-interpretation of the prior judgment and held that the evidential burden aligns with established jurisprudence, not constituting a burden shift.

On the second issue concerning indirect environmental effects under the EIA Directive, the Court found the alleged effects of milk production too remote to require assessment. The Court accepted the Board’s submission that it was not established that the project would increase raw material demand or production to a degree necessitating assessment. The Court distinguished prior case law involving direct environmental consequences and noted the lack of demonstrated functional or legal connection between the project and milk production on numerous farms. The Court also clarified that effects of the project, if established, require assessment whether site-specific or not, but here the effects were not sufficiently connected.

Concerning the third issue on collateral attack, the Court rejected the Applicant’s characterization that the proceedings amounted to a collateral attack on government policy. It explained that the doctrine applies only to untimely challenges to individual decisions, not to challenges to general measures such as statutes or policies. The Court observed that the Applicant’s true grievance appeared to be with government policy to increase the national herd rather than with the individual planning decision. The Court acknowledged the forensic strategy but held it was not legally valid to challenge policy by contesting individual decisions beyond procedural limits.

Regarding the fourth issue on the Water Framework Directive, the Court found the Applicant was not precluded from advancing contentions but that those contentions failed due to lack of pleading specificity and evidential basis. The Court distinguished relevant precedent where water bodies had unassigned status, noting the water body affected here had an assigned “good” status. The Court also rejected late arguments not raised at the hearing and found no basis for a reference to the Court of Justice of the European Union under article 267 TFEU at this stage.

Finally, the Court contextualized the case within systemic challenges of delay in environmental judicial review. It highlighted the importance of protecting applicants exercising environmental participation rights under the Aarhus Convention and cautioned against victimisation or intimidation. The Court suggested systemic reforms to improve efficiency, including appointing more judges, establishing a dedicated environmental court division, and reconsidering the leave to appeal procedure to the Court of Appeal, while emphasizing that these systemic issues do not affect the legal correctness of the present decision.

Holding and Implications

The Court DISMISSED the Applicant’s application for leave to appeal.

The direct effect is that the prior dismissal of the judicial review application stands, and the Applicant cannot proceed with an appeal on the proposed points of law. The decision does not establish new legal precedent but reaffirms existing principles regarding evidential burdens, the scope of environmental assessments, the application of the collateral attack doctrine, and procedural requirements in judicial review of planning decisions. The Court’s remarks on systemic reform are advisory and do not affect the outcome.