Neutral Citation  IEHC 393
THE HIGH COURT
IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT, 2000 (AS AMENDED)
PEOPLE OVER WIND, ENVIRONMENTAL ACTION ALLIANCE IRELAND
LAOIS COUNTY COUNCIL, COILLTE TEORANTA AND THE DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT
JUDGMENT of Mr. Justice Haughton delivered the 19th day of June, 2015
1. The applicants have separately applied for certificates for leave to appeal to the Court of Appeal the judgment delivered herein by me on 1st May, 2015 pursuant to s.50A(7) of the Planning and Development Act, 2000 (“the PDA 2000”), as inserted by s.13 of the Planning and Development (Strategic Infrastructure) Act, 2006.
2. The first named applicant has the same legal representation as at the substantive hearing, but the second named applicant is no longer legally represented. The second named applicant is an unincorporated entity led by Mr. David Malone (“Mr. Malone”) and the Court permitted Mr. Malone to represent himself and the second named applicant (“EAA-I”) in respect of its application. Mr. Malone’s application is based on entirely different grounds to that of the first named applicant.
3. The first named applicant has also applied for:-
Article 234 TEC has been renumbered as Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).
“An order referring to the Court of Justice pursuant to Article 234 of the Treaty, the question of the interpretation of Article 6 of the Habitats Directive and in particular, the questions of the interpretation of this Honourable Court of interaction between Article 6(1) – (3) of the Directive and the obligation to restore a European site to favourable conservation status and the question of the leaving over of mitigation measures to post consent conditions”.
4. Section 50A(7) of the PDA 2000 provides that:-
5. Section 50A(11) confers the Court of Appeal with jurisdiction to only determine the point(s) of law certified by the trial judge and to only make orders consequent upon that determination.
"The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal]."
6. The applicant seeking certification must satisfy the Court that:-
7. The principles to be applied in applications such as this were outlined by MacMenamin J. in Glancré Teoranta v. An Bord Pleanála and Mayo County Council  IEHC 250, as follows:-
Point 4 has no application to this case.
"1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.
2. The jurisdiction to certify such a case must be exercised sparingly.
3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.
4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court….
5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.
6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court….
7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.
8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.
9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases."
8. The above principles were followed by Clarke J. in Arklow Holidays Ltd. v. An Bord Pleanála  IEHC 2, where he held that:-
Citing with approval a passage from p. 641 of Simons on Planning and Development Law (2nd Ed.), Clarke J. accepted that “regard must be had to the decision itself, and not to the merits of the arguments which resulted in that decision”, and as to point (d) above he accepted that “…if the decision of the High Court was based on narrow grounds (in particular, on factual grounds) it may be that no point of law can properly be isolated.”
(a) the decision must involve a point of law of exceptional public importance;
(b) it must be desirable in the public interest that an appeal should be taken to the Supreme Court;
(c) there must be uncertainty as to the law; and
(d) the importance of the point must be public in nature and transcend the individual facts and parties of a given case.
I adopt the foregoing principles in addressing these applications.
9. In Glancré MacMenamin J. also stated (p. 3):-
Counsel for the first named applicant submitted that this statutory intention can no longer be assumed in the light of Article 11 of the Environmental Impact Assessment (“EIA”) Directive and the decision of the Court of Justice of the European Union (“CJEU”) in Case C-72/12 of Altrip and Others v. Land Rheinland-Pfalz. Article 11 provides:-
“It is clear that the statutory regime which has been devised by the legislature indicates an interest to ensure that the planning process is not to be hampered by a completely unrestricted access to the court which may cause harmful delays. I am satisfied that it is a restriction to be lifted only in exceptional cases.”
10. Counsel relied on the following passages from the decision in Altrip:-
“1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.”
11. The first named applicant seeks certification in relation to points of law concerning ‘appropriate assessment’ under the Habitats Directive, rather than environmental assessment, but I accept that these passages would apply equally to legal challenges relating to the appropriate assessment requirements. However, Article 11 is satisfied by the right conferred by s.50 of the PDA 2000 on members of the public having locus standi to challenge decisions by way of judicial review in the High Court, and the observations of the CJEU in Altrip certainly apply to that right. The possibility of a further appeal to the Court of Appeal goes beyond the bare right of review required by Article 11, and, for this reason, consideration of whether to allow such an appeal is not circumscribed by the Altrip case. Accordingly, the Court’s entitlement to consider the possible harmful affects of the inevitable delay that an appeal would entail when considering whether an appeal “is desirable in the public interest” is unaffected by the decision in Altrip.
“27. However, neither the new requirements arising from Article 10a of Directive 85/337, nor the actual requirement that [the] project be subject to an environmental assessment, can in themselves be considered to make administrative procedures more cumbersome and time-consuming. As the Advocate General observed in point 59 of his Opinion, the legislation at issue in the main proceedings does not create new requirements of that kind but is instead designed to improve access to a legal remedy. Furthermore, if extending the right of action of the public concerned to challenge acts or omissions relating to such projects is likely to increase the risk that those projects will become the subject of contentious proceedings, that increase of a pre-existing risk cannot be regarded as affecting a situation already established.
28. Although it is true that that extension may have the effect, in practice, of delaying the completion of the projects involved, a disadvantage of that kind is inherent in the review of the legality of decisions, acts or omissions falling within the scope of Directive 85/337, a review in which the legislature of the European Union has, in accordance with the objectives of the Arhus Convention, sought to involve members of the public concerned having a sufficient interest in bringing proceedings or maintaining the impairment of a right, with a view to contributing to preserving, protecting and improving the quality of the environment and protecting human health.”
Dr. Moorkens’ Affidavit
12. Dr. Evelyn Moorkens swore an affidavit on 2nd June, 2015 in support of the first named applicant’s application for certification. A question was raised as to whether, and if so to what extent, the Court should have regard to this affidavit.
13. In Glancré the Court took into account new material that was not before the Court at the substantive hearing when deciding the certification issue. The right to adduce relevant new material would seem logical because the wider public importance of a point of law, and the public interest, will not necessarily have featured or been centre stage at the substantive hearing.
14. I am satisfied that in principle I can have regard to new evidence insofar as it is directed at demonstrating that the points of law raised have implications of public import wider than the facts of this particular case, or relates to the desirability (or otherwise) of an appeal in the public interest.
15. Some of the averments in Dr. Moorkens’ affidavit are relevant to these issues, and where regard is had to these I mention them in this judgment. Many of her averments are not relevant or admissible e.g. those taking issue with the merits of arguments determined in the substantive judgment, and averments providing new factual information or expressing new opinions with regard to the Nore Freshwater Pearl Mussel (“NFPM”), and I have disregarded these save to the extent that they may undermine averments which she makes that are relevant.
The First Named Applicant’s Points of Law
16. In a three page document submitted to the Court (“Points for Certification” set out in full in Schedule 1 to this judgment) this applicant seeks to raise a wide range of issues over seven paragraphs which include elements of recital and argument. This document is too unwieldy for a Court to consider it line by line. What does emerge is that all points raised relate exclusively to ‘appropriate assessment’ under the Habitats Directive, and factually all relate to the status and circumstances of the NFPM.
The written submissions filed on behalf of the first named applicant more usefully break down the points raised into three areas relating to:-
17. By the first three paragraphs of the Points for Certification the first named applicant effectively poses the question whether Article 6(3) of the Habitats Directive imposes an obligation on the respondent in conducting an appropriate assessment to ensure that the proposed development would not adversely affect the objective of restoration, from unfavourable to favourable conservation status, of a protected habitat or species. In argument, counsel emphasised that the unfavourable conservation status of the habitat and species central to this case is a novel aspect not previously considered by the Irish courts.
18. Prima facie this raises a point of law concerning the ambit and application of Article 6(3). The first named applicant argues that my judgment at para. 224, where it is stated that Article 6(2) “does not place on member states the legal obligation to take positive steps to restore a habitat to a favourable conservation status where historically that status was/is unfavourable or at risk” is flawed and gives rise to uncertainty. They rely inter alia on a dictum of the CJEU in Sweetman v. An Bord Pleanála (Case C-258/11) at para. 32 that “the provisions of Article 6 of the Habitats Directive must be construed as a coherent whole in the light of the conservation objectives pursued by the directive”, and the following statement:-
19. The respondent and Coillte argued that the point is not one of uncertainty in that the decision accords with the EU jurisprudence. They rely on the opinion of Advocate General Sharpston in Sweetman at para.s 41–45 to the effect that “Article 6(2) imposes a general requirement on the Member States to maintain the status quo” (para. 44) and, in para. 45:-
“36. It follows that Article 6(2) to (4) of the Habitats Directive impose upon the Member States a series of specific obligations and procedures designed, as is clear from Article 2(2) of the directive, to maintain, or as the case may restore, at a favourable conservation status natural habitats and, in particular, special areas of conservation.” (Emphasis added)
They also relied on her dictum in para. 57 that “Article 6(3) may determine that the effect of the plan or project on the site will be neutral, or even beneficial. But if the effect is negative, it cannot proceed – by virtue of that provision, at least.” They argue that this opinion was adopted by the CJEU in Sweetman, and restated by Advocate General Sharpston in Briels and Others v. Minister van Infrastructuur en Milieu (Case C-521/12), a restatement that my judgment relied on and from which I quoted extensively.
“Article 6(3), by contrast, is not concerned with the day-to-day operation of the site. It applies only where there is a plan or project not directly connected with or necessary to site management….”
20. In that these submissions suggest the law on the correct interpretation and ambit of Article 6(3) is settled and certain, I disagree. The CJEU decision in Sweetman was not expressly concerned with a conservation objective of restoration (it concerned loss of limestone pavement from a road development impinging on a ‘site of Community Importance’); the Briels case was also concerned with total loss of part of a Special Area of Conservation (“SAC”). Neither case concerned a habitat or species the current conservation status of which is unfavourable to the extent of being at risk, as in the present case. Moreover, the Opinions of Advocate General Sharpston, while weighty, do no have the status or force of law. Indeed it seems to me that the law is still evolving in respect of appropriate assessment under the Habitats Directive. The question raised concerns a novel issue that has not previously been decided in the Irish courts, or, I believe, in the CJEU.
21. In my view, it could be argued that my conclusion on restoration is at odds with the decision in Sweetman, and an incorrect interpretation or application of Article 6(3). The decision on this question also has a knock-on effect in respect of the evidence that must be presented to a competent authority for its consideration and ‘appropriate assessment’. I accept that my decision may give rise to uncertainty amongst environmental and other experts involved in the preparation and presentation of Natura Impact Statements (“NIS”) in respect of other planning applications and the nature of the ‘best scientific evidence’ that must be adduced and considered, and to that extent I accept the evidence of Dr. Moorkens in para. 4 of her affidavit.
Does this Question Arise Out of My Decision?
22. The question as posited by the applicants is recorded in para. 203 of my judgment, and is the subject of extensive ‘Discussion’ of Article 6 and relevant jurisprudence in para.s 222–239.
23. The respondent and Coillte argued that it did not arise out of the decision in that it was never disputed that the status of the NFPM was unfavourable and its habitat vulnerable and that it had not bred since the 1970s, and in that the Court decided that the respondent had in any case had regard to the objective of restoration of the habitat. They rely on para. 239 of the judgment, the opening sentence of which reads:-
They also relied on a sentence in para. 241 concerning the suite of mitigation measures:-
“239. Accordingly, while the Board was obliged to, and did have regard to, the conservation objective of restoration (as it was part of the NIS [Natura Impact Statement]), the Board was not required by Article 6(3) or Part XAB of the PDA 2000 to refuse permission on the basis that the proposed development and mitigation measures did not necessarily have a beneficial effect in terms of restoring the habitat of the NFPM.” (Emphasis added)
24. Three points are made in response to this. Firstly, while the restoration objective was referred to in the NIS, and in particular in the National Parks and Wildlife Service (“NPWS”) ‘Conservation Objectives’ for the SAC, the text of the decision of the respondent did not specifically address the restoration objective. Secondly, the reference to mitigation measures is couched in terms of a comment rather than a finding of fact as such.
“Even to a lay person they appear to be comprehensive and detailed and are measures that in all probability will be an improvement on the existing drainage from the site where routine forestry operations continue to be undertaken.”
25. Thirdly and most importantly from a fair reading of para. 239, and particularly in the context of the preceding discussion in the judgment, it is apparent that the correct interpretation as to the scope of Article 6(3) was centre stage, and the ratio decidendi is the finding that the Board was not required by Article 6(3) to refuse permission on the basis that the development would “not necessarily have a beneficial effect in terms of restoring the habitat of the NFPM”. This ratio is repeated in the concluding ‘Decision of the Court’ at para. 260 where I stated:-
Exceptional Public Importance
26. Turning to the issue of exceptional public importance, “the overall aim of the Habitats Directive is to maintain or restore the favourable conservation status of habitats and species of community interest” (NPWS Conservation Objectives for the River Barrow and River Nore SAC 002162, p. 2). Almost by definition there is public importance in relation to points of law arising under the Directive. Pursuant to the Directive, numerous species and habitats in the State have been identified for protection, including restoration to a favourable conservation status, under Natura 2000. The restoration of habitats or species that are damaged/endangered must be recognised as an important part of this regime, and the question of the extent to which planning authorities must have regard to restoration as a conservation objective when undertaking appropriate assessments is, I am satisfied, one of exceptional public importance, as this concerns the preservation of our natural heritage. This is emphasised by the following facts that are not contested:-
27. I am also satisfied that prima facie there would be a public benefit to having this question clarified by way of an appeal for the reasons already given above relating to public importance, but also insofar as it is likely to affect the approach to other cases. In this regard I accept the evidence of Dr. Moorkens in para. 9 of her affidavit that “there are thousands of appropriate assessments or screening[s]” carried out each year (although this may be a matter of which judicial notice can be taken). Amongst these there are inevitably going to be cases in which there exists the possibility of adverse effect of a development on a protected European site or species existing at the development site.
“260. The Board was not required to be satisfied that the development would have a ‘positive’ or ‘improving’ or ‘restorative’ effect on the mussels or their habitat (i.e. in line with the NPWS objective of “restoration to a favourable conservation status”), nor was it obliged to impose conditions requiring ‘restoration’.”
In considering public benefit I also take into account the physical scale and extent of the proposed development, and that the first named applicant is a large grouping of members of the public.
28. Coillte rely on the matters averred to in the affidavit sworn by Jude Byrne on 24th September, 2014 on foot of which these proceedings were admitted to the Commercial Court. These refer to the financial aspects of the proposed development, its reliance on certain funding, and its capacity to deliver jobs. Coillte further urge on me that the delay that an appeal would entail counters any public benefit to such an extent that certification is not desirable in the public interest. They rely on the public interest in “the expeditious determination of planning judicial reviews”, which was acknowledged by MacMenamin J. in Glancré when cautioning that the restriction on certification should only be lifted in exceptional cases. More particularly, their written submission states:-
29. In argument Counsel added that the applicants would have 28 days to lodge an appeal, thus bringing us to the summer recess, that the Court of Appeal is listing cases for next spring, and that even if priority were given to an appeal it would be very unlikely that a decision could be obtained before 31st December, 2015.
“The Court can, and should have regard to the fact that the proposed development is a significant commercial development which will contribute to the public interest in Ireland meeting the targets set out under the Renewable Energy Directive 2009/28/EC that 20% of all energy must be derived from renewable energy sources by 2020 and that the case was admitted to the Commercial List precisely because of the urgency in resolving he proceedings as the business case for the proposed development, known as the Cullenagh Wind Farm, draws upon the supports of REFIT II. REFIT stands for “Renewable Energy Feed in Tariff” and is the primary means through which electricity from renewable sources is supported in Ireland. The scheme operates by guaranteeing new renewable generation a minimum price for electricity exported to the grid over a 15 year period. In order for a project to qualify for REFIT II a project must have:
(a) before the 31st December 2015 a grant of planning permission and a valid grid connection offer. The Cullenagh Wind Farm was granted planning permission by An Bord Pleanála on the 13th June 2014, which said decision is the subject matter of the within proceedings. It also has a valid grid connection offer.
(b) Before the 31st December 2017 the windfarm substation must be built and energised or the substation built and the turbines delivered to the site. The windfarm must generate 75% of its Maximum Export Capacity within 9 months of the 31st December 2017 (i.e.March 2017).”
30. The force of Coillte’s argument is somewhat undermined by the fact that the proposed windfarm development is a commercial development. Ultimately it is primarily intended to produce profit for Coillte. The fact that it may contribute to Ireland meeting its renewable energy targets is not necessarily proven, but even if that is assumed, the primary objective is that of a successful commercial enterprise and the public benefit to the State would seem to be secondary.
31. Counsel also argued that the applicants had a very full opportunity to make their case before Laois County Council, An Bord Pleanála and the High Court, and that the Court saw fit to admit the matter to the Commercial Court. As that will generally be the case where a large windfarm is under consideration, it seems to me that it is an argument of limited weight, and it is undermined in this case by the fact that the Department of Arts, Heritage and the Gaeltacht/NPWS made no submission to the respondent on the appeal to An Bord Pleanála as they did not receive notification of the appeal.
32. In weighing these matters and in balancing the competing public interests, it is my view that the public interest in the desirability of an appeal is greater than the risk of damaging delay in the commencement of the proposed development.
33. Accordingly, the Court will certify in respect of an appeal on the ‘restoration’ point of law.
34. In that para. 1 of the Points for Certification references Articles 6(2)-6(4) of the Habitats Directive, this is too widely framed as my decision was based on Article 6(3)– see para. 239 of the judgment. Article 6(2) commences “Member States shall take appropriate steps…” and relates to the obligations of Member States under the Directive. While my judgment does consider Article 6(2) this was in the context of the correct interpretation of Article 6(3) which applies to decisions of ‘competent national authorities’, such as the respondent, and does not form part of the ratio decidendi of my decision. Accordingly, it is not appropriate to consider certification of points of law relating to Article 6(2) or Article 6(4).
35. Secondly, as the case concerned the potential adverse effect of the development on a habitat and species in a candidate SAC situated outside the development site, the question to be certified must be subject to a limitation reflecting this fact.
Best Scientific Evidence
36. There is no issue in this case that the competent authority, whether a local planning authority or the respondent, when conducting an ‘appropriate assessment’ must assess and examine the application based on the ‘best scientific evidence’. The parties accept, as I accepted in my decision, the law as distilled by Finlay Geoghegan J. in Kelly v. An Bord Pleanála  IEHC 400 at para.s 39–40 of her judgment, quoted in full in my judgment at pp. 86–88. In brief, best scientific evidence must be used to identify the affect of the proposed development on the European site; the assessment “must contain complete, precise and definitive findings and conclusions and may not have lacunae or gaps” and the findings must follow “analysis and conclusions following an evaluation each in the light of the best scientific knowledge in the field”; and permission can only be granted when “….the Board decides that no reasonable scientific doubt remains as to the absence of the identified potential effects.” The phrases ‘best scientific evidence’ and ‘no reasonable scientific doubt’ do not appear in the Habitats Directive, but emerged from the consideration of Article 6(3) by the CJEU – see Waddenzee (Case C-127/02)  ECR I-7405 – and in particular para. 61 of that judgment where the phrase ‘best scientific knowledge in the field’ is used.
37. The certification sought relates generally to the obligation of the respondent to seek or procure the best scientific evidence in carrying out an appropriate assessment. Related questions arise: whether the respondent was entitled to regard the evidence before it in relation to the NFPM as the best scientific evidence; whether the Court is constrained to consider only the matters before the respondent on the appeal, or whether it can or should consider additional scientific evidence given in Dr. Moorkens’ first affidavit sworn on 23rd January, 2015; and if so, does this demonstrate such lacuna in the evidence before the respondent that its decision should be quashed. In presenting these points counsel emphasised a submission that he also made at the substantive hearing that the question of best scientific evidence, and whether it was before the respondent and considered by it, goes to the jurisdiction of the respondent to conduct an appropriate assessment.
38. I am satisfied that these questions do arise as related points of law of exceptional public importance. The respondent in conducting an appropriate assessment will generally have a body of relevant scientific evidence which may or may not be the best scientific evidence. Prior to undertaking the appropriate assessment the respondent may appoint an inspector to investigate the application/appeal; it may direct an oral hearing; and it may engage its own expertise (for instance a person such as Dr. Moorkens, an acknowledged expert on freshwater pearl mussels, who avers that she is on the respondent’s panel of experts). The respondent’s members of course also have expertise but this will not necessarily be sufficient to fill in lacunae or gaps to provide the best scientific evidence. The question then arises as to the circumstances in which the respondent has a duty to ascertain whether it has possession of the best scientific evidence, and if not, whether it can or should procure such evidence. These are questions that will arise in many instances.
39. Furthermore these questions do arise from my decision as I took the view that there was material before the respondent that could be regarded as reflecting the best scientific evidence on the NFPM in relation to an ongoing breeding program from 2009 under which juvenile mussels were to be ‘translocated to suitable habitats within the Nore catchment’. This was in the form of what might be described as secondary material headed ‘Overview of Freshwater Pearl Mussel in Catchment’ contained within a Forestry Development document – see para. 210 of my judgment. However that document dated 28th January 2011 referred to information from 2009 and the first named applicant argued and seeks to argue that it was out of date and incomplete, particularly in light of Dr. Moorkens’ evidence in her affidavit sworn on 23rd January, 2015 that the actual introduction of juvenile NFPM to the River Nore was taking place in July, 2014, only weeks after the Board’s impugned decision. In para. 212 of my decision I regarded the Court as compelled to disregard this ‘new’ evidence as it was not before the respondent.
40. The respondent and Coillte argued that no such points of law arise from my decision as it was ‘fact specific’ and I concluded that the respondent had before it the best scientific evidence (the Forestry document and the NPWS Conservation Objectives) along with hydrological evidence (presented in the NIS and appeal submissions), and in reality the only additional evidence from Dr. Moorkens was the start date of the re-seeding of juveniles which could not be regarded as scientific evidence, let alone ‘best scientific evidence’. However, it seems to me that the status of the breeding program could be regarded relevant scientific evidence. Moreover, there is an argument as to whether information on a breeding program that is over three years old can be the best scientific evidence, and this has wider implications for appropriate assessments in general.
41. I am of the view that it is also desirable in the public interest that appropriate questions concerning ‘best scientific evidence’ be certified for an appeal, for the same reasons that I have given in respect of the ‘restoration’ issue.
Standard of Review
42. The first named applicant also sought certification in relation to the broader question of “what is the standard of review to be applied by the Court in determining whether or not a proper AA has been conducted”. This broader issue was not the subject of any of the main grounds (1)–(14) in respect of which leave was originally granted in the application for leave to appeal to the High Court, and it was not one which was fully argued before me at the substantive hearing. The standard of review set out in O’Keeffe v. An Bord Pleanála  1 IR 39 is mentioned very briefly in para. 101 of my judgment, but even this is only in the context of Environmental Impact Statements, not appropriate assessments. I refuse certification under this head.
Mitigation Measures Left Over by Conditions to Further Agreement
43. The first named applicant seeks certification of the following point of law:-
44. Condition 16 in the impugned decision requires a “Construction-Stage Ecology Management Plan” to be submitted to and agreed with Laois County Council, to include details of pre- and post-construction fauna studies and details of sequencing of construction and removal of vegetation. Condition 17 also requires agreement on a Construction Management Plan, and condition 17(k) imposes a requirement that ‘no silt whatsoever’ is carried from the development site in surface water. Commenting on this in my judgment at para. 251, I observed:-
“Is it permissible in an AA or in an EIA to leave over to post consent conditions the mitigation measures to be employed on site, or must the mitigation measures and the likelihood of their being achieved and the manner in which they will be achieved, secured and implemented be considered and assessed as part of the assessment itself?”
Counsel argued that this is an additional mitigation measure that is nowhere described, analysed or examined, and queried ‘how is it to be achieved?’. Counsel argued that no assumption can be made by the respondent or the Court that a condition such as condition 17(k) will ensure that the integrity of the habitat and species are protected.
“This may in practice be a very onerous requirement, indeed it is possible that it is such a stringent requirement that Coillte may not be able to comply with it.”
45. Mitigation measures were the subject of detailed consideration in my decision from para.s 228–251, and the ensuing para.s 252–257 considered the specific question posed above in respect of appropriate assessment, and led to the following conclusion:-
46. In reaching this conclusion I followed, by analogy, and applied, the principles enunciated in Houlihan v. An Bord Pleanála (unreported, High Court, Murphy J., 4th October, 1993) and developed by Hamilton C.J. and Blayney J. in Boland v. An Bord Pleanala  3 IR 435. Those were of course planning cases decided without reference to the Habitats Directive and did not concern ‘appropriate assessment’. This is noted in para. 256 of my judgment, where I observed that:-
“265. The Board was entitled to leave over to subsequent agreement between Coillte and the local authority, in consultation as required with other state agencies, technical matters or matters of detail, including the details of mitigation measures. The matters left over in the conditions for such agreement do relate to detail or technical matters and were properly left over.”
In the concluding paragraph of this part of my judgment I stated:-
“It must be accepted that the nature of an AA is different to the normal planning decision in respect of which the local authority or the Board retains a discretion to grant or refuse permission…In respect of AA, the potential adverse effects on the integrity of the European Site must be properly described, examined and evaluated. This includes mitigation measures.”
47. The respondent and Coillte asserted that no point of law arose from my decision as it was consistent with existing case law, and that my decision applied only to the facts in the present case. Reliance was placed by Coillte on analysis of Clarke J. in Sweetman v. An Board Pleanala  IEHC 153 where the Court upheld a condition requiring ground water monitoring to be carried out along the route of the permitted road. While this is a persuasive authority factually, it may be materially different in terms of the risk identified and the nature of additional measures that might be required following monitoring studies, and it did not feature consideration by the Court of similar conditions, and in particular condition 17(k) in the instant case. It is also not a decision that was considered by me at the substantive stage.
“…Thus, the Court’s view is that it was entirely reasonable in this instance for the Board to leave over for further agreement matters such as the detail of the size and position of proposed drains and settling ponds and the type of bunding and filtration devices that might be used in order to comply with the conditions imposed. This finding should not be taken as applying the criteria established in the Boland case to all AAs carried out by planning authorities or the Board. Rather, there are sufficient parallels to allow some analogy to be drawn between the approach in that case and the proper approach to mitigation measures conditioned in a planning proposal requiring AA.”.
48. The next case relied upon is Arklow Holiday Homes Limited v. An Bord Pleanála  IEHC 5, in which Clarke J. followed the CJEU in Wells v. Secretary of State for Transport (Case C-201/02)  ECR I-723 and the Supreme Court in Boland. This case was raised in argument before me at the substantive hearing. However, it relates to environmental impact assessment, in respect of which the Board retains some discretion, unlike ‘appropriate assessment’.
49. I accept the submission that my decision reflects some uncertainty in the law. I am satisfied that the first named applicant has raised a novel point of law of exceptional importance upon which a judgment of the Court of Appeal on a question of principle would have a wide application and bring desirable certainty as to whether the principles developed in the case law mentioned above apply equally to all appropriate assessments. Having regard to the decision in Arklow, the question insofar as it relates to EIA is already the subject of legal principles that are certain, and accordingly no question falls to be certified relating to mitigation measures arising from adverse affects identified on environmental impact assessment.
50. The respondent and Coillte also argued that the point of law does not arise on the facts of this case because in para. 251 of my judgment I rejected, as a matter of fact, an argument to the effect that the mitigation measures designed to eliminate the entry of sediment into the watercourse had not been assessed. I do not accept this submission for two reasons. Firstly, in para. 251 I expressly accepted that condition 17(k) – which appeared to me to be a standard type of condition – was a mitigation measure that had not previously been identified before the respondent issued its decision. The first named applicant can therefore argue that condition 17(k), and how Coillte propose to achieve the ‘no silt whatsoever’ in surface water discharges, could not have been properly analysed and examined by the respondent. Secondly, while I decided that other mitigation measures left over for agreement were technical matters, or matters of detail, that issue was contested at the substantive hearing (see for example argument over siltbusters referred to in para. 247 of the judgment).
51. For reasons already given in respect of the ‘restoration’ issue I am of the view that it is desirable in the public interest that this question be certified. The decision on appeal will be of particular benefit to appropriate assessment decision makers, and experts preparing and presenting Natura Impact Statements involving mitigation measures.
Preliminary Reference to the CJEU under Article 267 of the TFEU
52. Although the possibility of a reference was raised very briefly by Counsel for the applicants at the substantive hearing it was not something that was pursued or argued. An issue arises as to whether this Court can now refer having decided all substantive matters relating to EU law, particularly having regard to the decision of the Supreme Court in McNamara v. An Bord Pleanála  3 IR 453 which would tend to suggest that in this regard the High Court is functus officio. However, these issues do not need to be decided in the light of my decision to certify certain points of law, rendering any reference by this Court unnecessary.
53. Having regard to comments made earlier in this judgment I have set out in Schedule 2 the revised wording of the points of law that I intend to certify for appeal. I will allow the relevant parties to address the Court further on the wording before the points are finalised. In this regard, I am mindful that if an appeal is to be pursued Coillte has good reasons for wanting it to be argued and determined at the earliest possible time.
Mr. Malone’s Application for Certification
54. On behalf of EAA-I, Mr. Malone submitted the following questions in respect of which a certificate is sought pursuant to s.50A(7):-
55. In support of his application Mr. Malone relied on his written submissions (both the one page document accompanying the proposed questions, and an eight page document) and he made oral submissions in the course of which he also relied on a letter dated 6th March, 2014 from the European Commission to Mr. Malone. I have carefully considered his submissions and documents.
“1. Whether the Environmental Impact Statement (EIS) submitted with the planning application was in compliance with the new EIS definition in the European Union (Environmental Impact Assessment) (Planning and Development Act 2000) Regulations 2012, which was adopted in order to ratify/correct the mischief identified by the Court of Justice of European Union in Case C-50/09;
2. Whether the Environmental Impact Assessment (EIA) carried out by An Bord Pleanala complied with Article 3 of the EIA Directive 2011/92/EC, as interpreted by the CJEU in Case C-50/09, and was in accordance with the European Union (Environmental Impact Assessment) (Planning and Development Act 2000) Regulations 2012;
3. Whether the court, in dealing with a case in which the Court of Justice of European Union had made a relevant ruling regarding the EIA Directive (Case C-50/09), should have used the purposive approach in reaching its decision”
Points 1 and 2 – EIS and EIA
56. It is convenient to deal with these two points together because Mr. Malone raises the question whether there was compliance with the European Union (Environmental Impact Assessment) (Planning and Development Act 2000) Regulations, 2012 (“the Regulations”) in respect of firstly the EIS submitted by Coillte with the planning application, and secondly the EIA carried out by the respondent.
57. The background to this is that the CJEU in various cases, and most lately Case C-50/09, ruled that Ireland had failed to properly transpose Directive 85/337/EEC (the original environmental impact statement/assessment directive) as amended and now codified in Directive 2011/92/EC.
58. Since the decision in Case C-50/09, Ireland has adopted measures that now make its domestic legislation compliant with the EIA Directives. In so far as is relevant to Mr. Malone’s application these measures include amendment of the PDA 2000 and the adoption of the Regulations. The amendments to the PDA 2000 include a new definition of EIS which now:-
In this regard it is important to note that Article 94 and Schedule 6 of the Planning and Development Regulations 2001, which already set out the information that must be contained in an EIS, is consistent with Annex IV of the EIA Directive.
“means a statement of the effects, if any, which proposed development, if carried out, would have on the environment and shall include the information specified in Annex IV of Council Directive No. 2011/92/EU”.
59. The amendments also provided for a new definition of “environmental impact assessment” in s.171A, and inserted s.172(1D) which now requires the planning authority/the respondent to “consider whether an environmental impact statement under this section identifies and describes adequately the direct and indirect effects on the environment of the proposed development…”.
60. Accordingly, three matters are now certain and uncontroversial: firstly, the ‘mischief’ referred to by Mr. Malone in his submissions has been cured, and secondly, Article 94/Schedule 6 under the 2001 Regulations (already compliant insofar as is relevant) and the now compliant national legislation and the Regulations were the context in which Laois County Council and the respondent considered and assessed Coillte’s planning application and appeal, the subject of these proceedings. Thirdly, it was also the context in which the Court conducted its judicial review – see para.s 82-93 setting out the relevant domestic legislative background by reference to the amended legislation and the Regulations.
61. It should also be noted that no leave was sought or given, and no argument was ever addressed in these proceedings, suggesting any basis for any alleged failure by Ireland to properly transpose the EIA Directives. Mr. Malone’s assertion that Ireland has failed to transpose amending Directive 2014/52/EU is flawed in that Ireland has until May 2017 to achieve this, and I can also not discern any point turning on the amendment in this recent Directive.
62. Paragraphs 98–101 of my judgment record my decision that the respondent was entitled to decide, as it did, that the EIS was compliant with the Regulations, and that the respondent was therefore entitled to undertake an EIA. Para. 106–112 of my judgment then considers whether the respondent carried out an EIA, and in para.s 113 I conclude that it did and that it was complete in that it concluded that the proposed development, either by itself or cumulatively with other projects, would not be likely to have significant effects on the environment. In para.s 114–117 this overall conclusion is confirmed. Then in para.s 118–146 the judgment deals with particular aspects of the EIA – Visual Impact, Noise Impact, Shadow Flicker and Haul Routes – and concludes in each instance that the EIA was in accordance with law and legally sound. It is notable the Mr. Malone’s written submissions reprise arguments that I considered and determined, on the facts, in the sections of the judgment to which I have just referred.
63. Mr. Malone in his main submission suggests that there is still a serious problem with ‘implementation and enforcing’ the findings in Case C-50/09, but this brings him back to arguing that the Court’s findings on the facts of this case were incorrect. He is also precluded by my decision as to the scope of the judicial review from making any submission in relation to the grid connection that was not part of Coillte’s planning application.
64. Accordingly, points 1 and 2 do not arise out of any point of law that was contested or uncertain, but rather are ‘fact specific’, and nothing is raised that would transcend the facts. Put another way, any decision of an appellate court in respect of these questions would not clarify the law or decide any other case. Accordingly, I refuse the application to certify points 1 and 2.
Point 3 – Purposive Approach
65. It is well established that the manner in which Irish courts are to apply EU law is settled both at national and European level. The Irish courts are required to interpret and apply national law in the light of directives, including directives that have yet to be implemented by national legislation, and in conformity with Community law, including the jurisprudence of the CJEU. See Von Colson v. Land Nordrhein-Westfalen (Case-14/83)  ECR 189; Marleasing SA v. La Comercial Internacionale de Alimentacion SA (C-106/89)  ECR I-4135; the Supreme Court in Nathan v. Bailey Gibson Ltd  2 IR 162, and O’Sullivan J. in Watson v. the Environmental Protection Agency  2 IR 454.
66. I have also considered Mr. Malone’s submission headed ‘Human Rights Issues’ and his reliance on certain Articles of the Treaty of the European Union. This is rather general in nature and is not sufficiently focussed on the EU or national law relevant to the present case, or the facts of the case, for me to be able to discern any precise point of law capable of certification.
67. Accordingly, point 3 does not raise any question of law that is uncertain or which it is desirable in the public interest to certify.
68. I therefore refuse EAA-I/Mr. Malone any certificate for leave to appeal.
POINTS OF LAW FOR CERTIFICATION FOR LEAVE TO APPEAL TO SUPREME COURT1
1. Do Articles 6(2) – 6(4) of the Habitats Directive impose a legal obligation on member states to take positive steps to restore a habitat type to a favourable conservation status where historically that status was/is unfavourable or at risk? Was this Honourable Court correct in finding at paragraph 224 of its judgment that there was no such obligation in article 6(2) of the Directive and that rather, the obligation on member states is a negative obligation to prevent deterioration and not a positive obligation to restore a site to a favourable conservation status?
2. If the obligation is not one of restoration, how does only a negative obligation to prevent deterioration of a habitat or species achieve the objectives of Article 6(3) Habitats Directive as identified by the Court of Justice in Briels wherein the Court held that in order for the integrity of a site as a natural habitat not to be adversely affected for the purposes of the second sentence of Article 6(3) of the Habitats Directive the site needs to be preserved at a favourable conservation status?
3. This Honourable Court recognizes at paragraph 165 of its judgment that the NFPM is in terminal decline with no recorded breeding since 1970 and this is recognised as being a result of the existing, unfavourable status of the sub stratum of the River Nore. The Court of Justice has held that preservation at favourable conservation status entails the lasting preservation of the constitutive characteristics of the site concerned. Conservation status is considerable favourable when the specific structure and functions which are necessary for its long-term maintenance exist and are likely to continue to exist for the foreseeable future. In the instant case, the specific structure and functions do not exist for the survival of the NFPM. Accordingly, the conservation status is unfavourable. In circumstances where the conservation status is unfavourable, is a competent authority in conducting an appropriate assessment entitled, as a matter of law, to permit the maintenance of the unfavourable status quo? Furthermore, is the competent authority permitted not to have regard to matters such as the breeding program aimed at restoration of the site?
4. In the context of an appropriate assessment, what does the obligation to ascertain the best scientific knowledge in the field and/or conduct an assessment in the light of such knowledge entail? In particular, was this Honourable Court correct in finding that there is no legal obligation on the Board to consult with expertise or otherwise look beyond the information presented to it in the course of an appeal? Moreover, was this Honourable Court correct in deciding at paragraph 263 of its judgment that the best scientific knowledge available was contained in the conservation objectives for the site, a Forestry Services document from 2011 and the hydrological evidence contained in the EIS and appeal document submitted by the developer?
5. What is the standard of review to be applied by the Court in determining whether or not a proper AA has been conducted (as set out in paragraph 44 of Sweetman) and is the Court constrained only to consider matters that were before the competent authority in its determination? In particular, was the Court precluded (as it held) from considering new evidence that was not presented to the Board as such information was not before the Board when it made its determination? In circumstances where there were gaps or lacunae in the information presented to the Board (in particular the updated status of the breeding program which this Honourable Court considered extraordinary at paragraph 210), is this Honourable Court precluded from considering such gaps or lacunae in its review of the determination?
6. What constitutes a lacuna and, in particular, in the instant case, did the failure of the Board to identify and assess the effects of the proposed development on the breeding program for the NFPM constitute a lacuna? Is the obligation under EIA and AA to identify all of the likely significant effects of a development on the receiving environment? If so does the failure to identify and assess such effects on the program for reintroduction of the NFPM render the decision unlawful?
7. Is it permissible in an AA or in an EIA to leave over to post consent conditions the mitigation measure to be employed on site, or must the mitigation measures and the likelihood of their being achieved and the manner in which they will be achieved, secured and implemented be considered and assessed as part of the assessment itself?
[DRAFT OF HAUGHTON J. 19.06.15 SUBJECT TO FINAL APPROVAL]
POINTS OF LAW CERTIFIED FOR APPEAL
I HEREBY GRANT LEAVE TO THE FIRST NAMED APPLICANT PURSUANT TO S.50A(7) OF THE PLANNING AND DEVELOPMENT ACT, 2000 AS AMENDED TO APPEAL FROM THE JUDGMENT OF THE COURT HEREIN DELIVERED ON 1ST MAY, 2015 LIMITED TO THE DECISION ON ‘APPROPRIATE ASSESSMENT’ IN RESPECT OF THE FOLLOWING POINTS OF LAW WHICH I CERTIFY TO BE OF EXCEPTIONAL PUBLIC IMPORTANCE AND IN RESPECT OF WHICH IT IS DESIREABLE IN THE PUBLIC INTEREST THAT AN APPEAL SHOULD BE TAKEN TO THE COURT OF APPEAL:-
2. BEST SCIENTIFIC EVIDENCE
Do Part XAB of the Planning and Development Act, 2000 (as amended) and/or Article 6(3) of the Habitats Directive impose an obligation on An Bord Pleanála in conducting an appropriate assessment to ensure that the proposed development would not adversely affect a National Parks and Wildlife Service objective of restoration, from unfavourable to favourable conservation status, of a protected habitat and species in a candidate Special Area of Conservation situated outside the proposed development site?
3. MITIGATION MEASURES
(A) What obligation, if any, is on An Bord Pleanála, to seek or procure the best scientific evidence in carrying out an appropriate assessment?
(B) In light of the scientific evidence that was before An Bord Pleanála with regard to the Nore Freshwater Pearl Mussel, in carrying out its appropriate assessment was An Bord Pleanála entitled to regard this as the best scientific evidence for the purposes of deciding the appeal?
(C) In reviewing the decision of An Bord Pleanála in respect of appropriate assessment was the Court constrained only to consider matters that were before An Bord Pleanála or was it entitled or obliged to have regard to the new or additional evidence in the affidavit of Dr. Evelyn Moorkens sworn on 23rd January, 2015 with regard to the Nore Freshwater Pearl Mussel?
(D) If so, does this evidence demonstrate a lacuna in the best scientific evidence put before An Bord Pleanála such that its decision should be quashed or remitted for further consideration?
1 As drafted and proposed by the first named applicant
Where a proposed development is likely to adversely affect the integrity of a European Site but such affect may be avoided by mitigation measures to what extent, if at all, is it lawful for the detail of such measures to be left over by An Bord Pleanála for post consent agreement between the developer and named authorities?