European Court to rule on Bord Pleanála’s reasons for excluding EPAs

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A High Court judge wants the Court of Justice of the EU (CJEU) to rule on questions of European law concerning whether An Bord Pleanála should give more specific reasons when it decides that developments do not do not require environmental impact or appropriate assessment.

Judge Richard Humphreys will await the CJEU’s findings before delivering his final judgment on an environmental group challenge to the board’s authorization for a strategic real estate development of 320 residential units in Trim, Co Meath.

The challenge, by Eco Advocacy CLG, based in Enfield, Co Meath, concerns an October 2020 clearance granted to Keegan Land Holdings Ltd (KLH) for development at Charterschool Land, Manorlands, Trim.

Eco Advocacy’s concerns with the development relate to its size, scale and height, its effect on Trim’s cultural and architectural heritage, and its potential impact on the environment.

The Boyne River and Blackwater River Special Protection Area is located approximately 700 m north of the site.

The group says none of the concerns raised by him or others, including the Department of Culture, Heritage and Gaeltacht County Council, An Taisce and Meath, have been properly addressed by the Council of administration.

He claimed that a report by a council inspector recommending approval of the development contained “rhetorical” and “uninformative” findings on a range of issues.

The group contested the inspector’s findings that a full environmental impact assessment (EIA) and proper assessment were not necessary. He said no proper screening had been done before it was determined that an EIA or AA was not necessary.

The council, in granting the authorization, set out issues that it “had taken into account” but had not set out the reasons or considerations for its decision to grant the authorization, it is said.

“Completely insufficient”

The council’s decision that the development was unlikely to have significant effects on the environment was “grossly inadequate,” he argued.

Last May, Judge Humphreys rejected the domestic law grounds for the group’s challenge.

It also rejected certain points of EU law raised but decided “in principle” to refer the issues to the CJEU arising from the other grounds for challenging EU law.

These included allegations that the board and its inspector failed to take into account the issues to be considered under the EIA Directive; there was no express statement of what documents exactly set out the chamber’s reasoning; and the board failed to remove any scientific doubt about the impact on the integrity of European sites by failing to address the issues raised in An Taisce and the board’s submissions.

After hearing the parties’ “excellent” observations and the “particularly useful” observations of An Taisce and Client Earth, as court assistants on legal issues, the judge issued a judgment on Monday referring six questions of European law at the CJEU.

This concerns in particular whether EU law obliges a national court to apply EU law which has been invoked by a party even though the particular provision or interpretation has not been specifically invoked.

Challenge

If the answer to that question is yes – and the judge said his view is that yes is the correct answer – then Eco Advocacy can pursue a wider ground to challenge the authorization.

These other reasons relate to the board’s obligations, when it has decided not to carry out an EIA or AA, to specifically indicate which documents set out the reasons for doing so.

The judge said that in his opinion, any selection decision should be accompanied by “express, discreet and specific reasons” and he referred this question because the council’s decision did not expressly state which specific documents explained why an EIA and an AA were not required.

The remaining questions revolve around whether certain mitigation measures were considered inadmissible by the board at the AA screening stage.


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