Doyle & Ors v An Bord Pleanala & Ors (Approved)

Factual and Procedural Background

This judgment concerns a judicial review challenge to two related planning decisions made by a planning board in Ireland regarding a large-scale data centre development and an associated electrical substation near a rural area outside The City in The State. The site includes farmland and several buildings, including a barn known as Building 6C, which was found to contain a single Leisler's Bat roost as of March 2022. The data centre application involved six two-storey data centre buildings and ancillary works on a 60-hectare site, accompanied by an Environmental Impact Assessment Report (EIAR) and a Natura Impact Statement (NIS). The substation application involved the construction of a 110kV GIS substation with underground transmission cables connecting to existing infrastructure.

The planning authority initially granted permission for the data centre in August 2022, which was appealed to the planning board. The board appointed an inspector who recommended granting permission for both the data centre and substation, subject to conditions. The board issued decisions granting permission for both developments on 5 April 2024, following environmental impact assessments (EIA) and appropriate assessments (AA).

The applicants, comprising several individuals and environmental groups, sought judicial review of the board's decisions, filing their statement of grounds on 30 May 2024. Leave to apply for judicial review was granted on 26 June 2024, with a hearing fixed for 25 February 2025. Subsequently, the board conceded that it had erred in failing adequately to consider environmental effects on bat fauna, specifically regarding a factual error in the inspector's report about the presence of a bat roost on the site. The court ordered a modular hearing to address this concession, focusing on sub-grounds 91-93 of the applicants' statement of grounds, concerning the inspector's factual error about bat roosts.

Legal Issues Presented

1. Whether the planning board erred in law by failing adequately to consider the environmental effects of the proposed developments on bat fauna for the purposes of the Environmental Impact Assessment (EIA), specifically regarding the presence and loss of a Leisler's Bat roost at Building 6C.
2. Whether the factual error in the inspector's report concerning the bat roost was material and sufficient to vitiate the board's planning permissions.
3. Whether the court should exercise its discretion to quash the board's decisions based on the conceded error or withhold relief on the basis that the error was harmless and immaterial.
4. Procedural questions related to the modularisation of the hearing and the scope of issues to be addressed in the initial module versus subsequent modules, particularly concerning the requirement for a derogation licence before granting development consent.

Arguments of the Parties

Notice Party's Arguments

• The inspector's report contained a factual error in stating that no bat roosts were recorded during surveys, overlooking the identification of a single Leisler's Bat roost in Building 6C in March 2022 documented in the revised EIAR.
• The single bat roost was of local importance only, too small for a nursery roost, and comprehensive mitigation and compensation measures were included in the EIAR and conditioned in the planning permission.
• The public was not misled as the information about the bat roost was available in the amended EIAR.
• Other identified roosts and trees with potential roost features (PRFs) were either not required to be removed or were subject to mitigation measures, thus not constituting errors in the inspector's report.
• The factual error was a harmless error, immaterial in the overall context of the EIA and the inspector's consideration of bat-related issues on a 60-hectare site.
• The board's decision would have been no different had the inspector not made the error, given the acceptance of the EIAR's conclusions and the mitigation measures proposed.
• Quashing the board's decisions would be disproportionate, and the court should exercise discretion against quashing.
• Reliance on established jurisprudence supports that errors that make no difference should not lead to quashing, particularly where evidence of harmlessness is unchallenged.

Applicants' Arguments

• Bat roosts are strictly protected under European law (Article 12(1)(d) of the Habitats Directive), and any destruction of a bat roost is by definition a significant environmental impact.
• The size of the bat roost is irrelevant to its legal protection.
• The board failed to consider the environmental impact of destroying the bat roost, rendering its decision indefensible.
• The board's concession is correct given the acknowledged error in the inspector's report.
• The notice party's characterization of the error as harmless is without basis, as the weight the board would have given to the destruction of a strictly protected roost is unknown and cannot be assumed.
• The board's acceptance of the EIAR's conclusions was based on a fundamental factual mistake regarding the existence of the bat roost.
• The carrying out of the EIA by the competent authority does not absolve the board from considering the significant environmental impact arising from the destruction of the bat roost.
• Relevant case law cited by the notice party is distinguishable because, in this case, the error resulted in a significant environmental impact not being considered.
• The board could not lawfully have granted planning permission without a derogation licence authorizing the removal or disturbance of the bat roost prior to consent.
• The court should reject any assumption that the board would have granted permission in breach of European law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the factual error in the inspector's report which stated that no bat roosts were recorded during surveys, overlooking the presence of a single Leisler's Bat roost in Building 6C identified in March 2022 and documented in the revised EIAR. The court noted that Leisler's Bats exhibit frequent roost switching behavior, with roosts changing every two to ten days, making the assessment of impacts on bats appropriately focused on the overall roost resource rather than any individual confirmed roost at a single point in time.

The bat surveys complied with professional guidelines and adopted a precautionary roost resource approach, considering potential roost features (PRFs) in addition to confirmed roosts. The consolidated EIAR concluded no likely significant residual negative effects on biodiversity, including bats, after mitigation and compensation measures were implemented. These measures were conditioned in the planning permission.

The applicants participated fully in the process, had access to the consolidated EIAR including information on the bat roost, and did not raise concerns about the roost or challenge the EIAR's conclusions. The competent authority and prescribed bodies, including the National Parks & Wildlife Service, raised no objections following the submission of further information on bat roost removal and mitigation measures.

The court accepted the developer's uncontradicted expert evidence that the highly mobile nature of bats and the comprehensive mitigation strategy mean that the factual error was immaterial and harmless, not affecting the substantive outcome of the planning permission. The error did not amount to a breach of European law in the circumstances, as the mitigation measures accounted for potential and actual roost losses.

The court rejected the applicants' arguments that the error was fundamental and that the board's concession precluded the notice party from defending the decision. It emphasized that the harmless error doctrine allows the court to consider evidence from interested parties, including developers, to exclude reasonable doubt that the error would have influenced the outcome.

The court also clarified that the modular hearing procedure required the current module to proceed on the assumption that other grounds, including those concerning the absence of a derogation licence, did not affect the validity of the decision. Issues relating to the derogation licence would be addressed in a subsequent module.

In sum, the court held that the inspector's factual error was a harmless error that did not materially affect the board's decision to grant planning permission, given the comprehensive mitigation measures, the precautionary approach, and the absence of any challenge to the EIAR's conclusions on residual impacts.

Holding and Implications

The court's final decision is as follows:

The judicial review proceedings are dismissed insofar as they concern the modular hearing on sub-grounds 91-93 related to the inspector's factual error about the bat roost.

The court ordered the matter to be listed for a further mention to arrange processing of the remaining grounds (Module II), subject to any contrary submissions. No order was made as to the applicants' costs for this module, and the notice party's costs were reserved, with any award to be applied by way of set-off only.

The decision means that the conceded factual error regarding the bat roost does not invalidate the planning permissions for the data centre and substation. The court confirmed the applicability of the harmless error doctrine in environmental and planning judicial review contexts, emphasizing the role of comprehensive mitigation and the importance of assessing the totality of material before the decision-maker.

No new legal precedent was established beyond the application and confirmation of existing principles regarding harmless error, the evaluation of expert evidence, and procedural modularisation in judicial review hearings.