Dark Sky Roscommon v An Bord Pleanala (Approved)

Factual and Procedural Background

The Applicant is a non-governmental organization established to protect the night-time environment of The City by raising awareness of light pollution and promoting mitigating lighting designs. The Applicant sought certiorari to quash a decision of the Respondent Board dated 18 January 2022, which granted planning permission for a 21 light floodlighting development at The School in The City. The development proceeded with the Applicant's knowledge during the proceedings, but the Applicant chose not to challenge the continuation and awaited the outcome of this application. The dispute concerns whether the Respondent properly assessed the environmental impact, particularly on a protected bird species, the Greenland White-fronted Goose, which is a qualifying interest for a nearby Special Protection Area (SPA) located approximately three kilometres from the development site.

Legal Issues Presented

1. Whether the Respondent Board failed to properly assess the impact of the proposed floodlighting development on the receiving environment, specifically regarding the Greenland White-fronted Goose.
2. Whether the Respondent failed to consider or engage with submissions concerning the potential significant effects of the development on the conservation objectives of the Bellanagare Bog SPA under Article 6(3) of the Habitats Directive and section 177U of the Planning and Development Act 2000.
3. Whether the screening for appropriate assessment was correctly carried out in light of reasonable scientific doubt raised by ecological reports about the development's impact on the SPA.
4. The proper interpretation and application of the conservation objectives relating to restoration of the qualifying interest species, particularly in the context of a species currently absent from the site but protected under the Habitats Directive.

Arguments of the Parties

Applicant's Arguments

• The Board failed to properly assess the environmental impact of the development on the Greenland White-fronted Goose and the receiving environment.
• The Board did not adequately consider or engage with the Applicant's submissions and ecological evidence indicating a likely significant effect on the SPA.
• The development could adversely affect the conservation objective of restoring the favourable conservation condition of the geese, despite their current absence from the SPA.
• Reliance on scientific evidence that raises reasonable scientific doubt about the impact is sufficient to require further appropriate assessment under Article 6(3) of the Habitats Directive and section 177U of the Planning and Development Act 2000.

Respondent and Notice Party's Arguments

• All relevant issues, including the ecological report relied upon by the Applicant, were properly considered by the Inspector and the Board.
• There was no evidence or reasonable scientific doubt of a significant effect on the geese.
• The Board was entitled to prefer the expert report of the notice party's expert over other reports, provided reasons were given.
• The conservation objectives of the SPA do not include repopulation of abandoned areas; Article 6(3) aims to ensure the site's integrity is not compromised.
• The geese have abandoned the site, and migratory birds are expected to avoid illuminated areas, thus no significant impact arises.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sweetman C-258/11	Low threshold for "likely" effect under Article 6(3) of the Habitats Directive; "likely" means "possibility of".	The Court adopted this low threshold as incorporated into Irish law, emphasizing that the threshold operates as a trigger for appropriate assessment.
Kelly v. An Bord Pleanála [2014] IEHC 400 and [2019] IEHC 84	Application of Article 6(3) screening and the requirement to exclude all reasonable scientific doubt.	The Court referenced these cases to affirm the need to consider reasonable scientific doubt and the low threshold for triggering assessment.
People Over Wind v. An Bord Pleanála [2015] IECA 272	Clarification that Article 6(3) protects site integrity but does not impose a positive obligation to restore species.	The Court distinguished between considering impact on restoration objectives and imposing restoration obligations.
Reid v. An Bord Pleanála [2021] IEHC 362	Requirement to exclude all reasonable scientific doubt regarding impacts on European sites.	The Court emphasized that the decision-maker must exclude all reasonable scientific doubt, not merely balance competing expert opinions.
Balz v. An Bord Pleanála [2019] IESC 90	Obligation on competent authorities to address and explain responses to public submissions.	The Court stressed the importance of addressing concerns raised by experts and the public to maintain confidence in the planning process.
Case C-477/19 Magistrat der Stadt Wien ('Hamster case')	Protection obligations continue even if a species has abandoned a site; assessment of recolonisation probability must be based on best scientific data.	The Court held that absence of a species does not eliminate the need for protection and appropriate assessment.
Case C-127/02 Waddenzee	Development likely to undermine conservation objectives is likely to have a significant effect on the site.	Cited to support that developments affecting restoration objectives may significantly impact a site.
Case C-674/17 Luonnonsuojeluyhdistys Tapiola ('Finnish Wolves case')	Assessment of species return probability must rely on best scientific knowledge.	Used to underline the necessity of scientific evidence in evaluating potential recolonisation effects.

Court's Reasoning and Analysis

The Court examined the ecological evidence before the Respondent’s Inspector, notably two expert reports with differing conclusions on the impact of the floodlighting development on the Greenland White-fronted Goose and the Bellanagare Bog SPA. The Inspector relied heavily on the notice party’s expert report, which concluded no significant effect due to the geese’s abandonment of the site and their likely avoidance of illuminated areas.

Conversely, the other expert report raised reasonable scientific doubt about the development’s impact, emphasizing the importance of dark skies for migratory birds and the potential cumulative effects on the SPA’s conservation objectives, including the restoration of the qualifying interest species.

The Court found the Inspector’s conclusion—that the geese avoiding the illuminated area equated to no significant impact—was inconsistent with the SPA’s conservation objectives, which include restoring the favourable conservation condition of the species. The Inspector failed to properly consider how the development could hinder potential recolonisation or restoration of the geese, despite endorsing the expert’s view that birds would avoid the light.

The Court highlighted the legal requirement under Article 6(3) of the Habitats Directive and section 177U of the Planning and Development Act 2000 that any plan or project likely to have a significant effect on a protected site must be subject to an appropriate assessment. The threshold for triggering such assessment is low and based on the possibility of a significant effect, not proof of actual harm.

The Court emphasized that the Respondent was obliged to exclude all reasonable scientific doubt about significant effects, not merely prefer one expert’s opinion over another without adequate reasoning. The failure to properly address the reasonable scientific doubt raised by the opposing expert undermined the legality of the Respondent’s decision.

Furthermore, the Court underscored that the absence of the species from the site does not remove the obligation to protect it or to consider impacts on restoration objectives, consistent with jurisprudence from the Court of Justice of the European Union.

The Court also noted the Respondent’s failure to properly consider or address the Applicant’s submissions and the ecological concerns raised, which is contrary to principles of public confidence and transparency in decision-making.

Holding and Implications

The Court held that the Respondent Board failed to properly apply the relevant provisions of Article 6(3) of the Habitats Directive and section 177U of the Planning and Development Act 2000 by not conducting a proper screening for appropriate assessment. The Board did not adequately consider the reasonable scientific doubt regarding the development’s potential impact on the restoration of the qualifying interest species in the Bellanagare Bog SPA.

The Court found that the Board's decision to grant planning permission was legally flawed due to this failure. The Court indicated it would hear further submissions on appropriate orders, especially considering the development's completion.

No new precedent was established; the decision affirms and applies existing legal principles concerning environmental assessment and the protection of European sites under domestic and EU law.

The Applicant was granted an indicative entitlement to costs.