Waltham Abbey Residents Association v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

The developer submitted an application under the strategic housing development (SHD) procedure on 11 June 2020 for 123 apartments and associated works at a site in County Cork. A tree survey and screening reports for environmental impact assessment (EIA) and appropriate assessment (AA) were prepared. The EIA screening report lacked specific analysis of flora, fauna, or bats, and did not address biodiversity. The AA screening report made only general references to disturbance to fauna and focused on Natura 2000 sites rather than the site's ecology. The arboricultural assessment identified thirteen trees for removal but did not consider the potential use of trees by bats. The EIA screening proposed retaining vegetation where possible but several trees, including oak trees with potential bat habitats, were removed.

The applicant made submissions to the planning board, which recommended granting permission. The board adopted the AA screening but conducted its own EIA screening, which did not reference EU law or the EIA Directive, relying instead on domestic regulations. The proceedings commenced on 3 November 2020, seeking certiorari of the board's grant of permission. The High Court found for the applicant on domestic law issues (module 1), with leave to appeal granted. The Supreme Court allowed the appeal on domestic law grounds but did not remit any issues back to the High Court. The question of EU law requirements, including those under the EIA Directive, remained unresolved and was to be addressed in a separate module (module 2).

Legal Issues Presented

1. Whether the statutory pre-consultation procedures under the Planning and Development (Housing) and Residential Tenancies Act 2016 are incompatible with Article 6(4) of Directive 2011/92/EU (EIA Directive) and/or the applicant's rights to fair procedures and natural and constitutional justice.
2. Whether the planning board erred in its assessment of potential impacts on Natura 2000 sites under Article 6(3) of Directive 92/43/EEC (Habitats Directive) and domestic law (not pursued).
3. Whether the planning board's grant of permission was inconsistent with Directive 2000/60/EC (Water Framework Directive) and related regulations (not pursued).
4. Whether the planning board erred in failing to consider potential disturbance of bats or destruction of their resting places and in screening out the need for an environmental impact assessment despite insufficient evidence.
5. Whether the planning board failed to comply with Article 299 of the Planning and Development Regulations 2001 and/or Article 4(4) of the EIA Directive (domestic law aspect disposed of; EU law not argued).
6. Whether the developer failed to comply with Article 292(1) of the 2001 Regulations (not pursued).
7. Whether the proposed development failed to meet Development Plan standards regarding parking provision (not pursued).

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 analysed the adequacy of the planning board's environmental impact assessment screening, focusing on potential impacts on bats, a species protected under the Habitats Directive. The evidence indicated possible bat presence, including proximity to a river corridor, observed bats on site, and an oak tree with a cavity potentially used as a roost. The developer's reports lacked specific surveys for bats and did not adequately address potential disturbance or destruction of resting places.

The court considered the precautionary principle central to EU environmental law, which requires that an EIA be conducted where there is a risk that a project may have significant environmental effects. The planning board's EIA screening relied on incomplete information and failed to exclude doubt regarding significant effects on bats. The court identified unresolved questions of EU law concerning the developer's obligation to provide relevant information and the competent authority's duties when faced with insufficient data, especially regarding strictly protected species.

Consequently, the court decided to refer specific questions of EU law to the Court of Justice of the European Union (CJEU) under Article 267 TFEU to clarify these issues. The questions focus on the interpretation of Article 4(4) and Annex IIA of the EIA Directive, the precautionary principle, and the protection of species under Article 12 of the Habitats Directive.

The court also ordered procedural directions for submissions in the format of a prior relevant case and scheduled further mention dates, reserving costs and liberty to apply.

Holding and Implications

The court's final decision was to refer questions of EU law to the Court of Justice of the European Union (CJEU) for preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU).

The direct consequence is that the planning board's decision on environmental impact assessment screening, particularly concerning bats and the adequacy of information, remains subject to clarification by the CJEU. No immediate change was made to the planning permission, but the referral indicates that future decisions must carefully consider the requirements under EU law, including the precautionary principle and protection of strictly protected species. The ruling does not set new domestic precedent but highlights unresolved EU law questions that will guide subsequent cases.