Advocate General gives Opinion on Water Framework Directive
Locations
Opinion of Advocate General Rantos
On 21 September 2023 Advocate General Rantos ('AG') handed down his opinion in Peter Sweetman v An Bord Pleanala, Ireland and the Attorney General, Bradan Beo Teoranta, Galway County Council & the Environmental Protection Agency. This reference related to Member States' obligations under the Water Framework Directive (Directive 2000/60/EC) ('WFD').
Background
Loch an Mhuilinn is a privately owned non-tidal inland lake located on Gorumna Island in County Galway with a surface area of 0.083 km2, or 8.3 hectares.
In July 2018 An Bord Pleanála ("the Board") granted permission to Bradan Beo Teoranta for a development involving the abstraction of freshwater from Loch an Mhuilinn for the purpose of bathing salmon in the freshwater, in fish farms located in the coast off Gorumna Island to rid them of Amoebic Gill Disease and sea lice. The Applicant, Mr Peter Sweetman, brought judicial review proceedings challenging this decision.
On 15 January 2021 the High Court (Ms. Justice Hyland) delivered judgment and found that the Board's decision was unlawful solely on the basis that the Board failed to comply with the requirements of the WFD. In particular, the Court held the Board was obliged to ensure that the test articulated by Article 4(1)(a)[1] of the WFD was fully applied in individual decisions on applications for development consent, using the detailed and complex framework of the WFD. As the Environmental Protection Agency ('EPA'), the competent body in Ireland for classification of surface water bodies under the WFD had not provided a status for Loch an Mhuilinn , the Court held that the Board was precluded from granting planning permission for the proposed development in circumstances where the development would have an impact on a waterbody the status of which, for the purposes of the WFD, was unassigned.
Following delivery of the judgment, Bradan Beo Teoranta wrote to the EPA, who were not a party in the proceedings, to determine the up-to-date position as to the classification and categorisation of Loch an Mhuilinn. The EPA responded indicating that in its view it was not obliged to determine the ecological status of this lake and/or lakes with a surface area less than 0.5km or 50 hectares. In support of this view the EPA referred to Annex II of the WFD which set out physical descriptors of surface waters and also to guidance issued by the European Commission.
The EPA response was brought to the attention of the Court and the judgment was re-opened and a preliminary reference made to the Court of Justice of the European Union (“the CJEU”).
CJEU referral
The questions referred were as follows:
1(a) - Are member states required to characterise and subsequently classify all water bodies, irrespective of size, and in particular is there a requirement to characterise and classify all lakes with a topological surface area below 0.5 km2?
This question was answered 'No'. As such, as per this Opinion, Member States are not required to characterise and classify all lakes with a surface area below 0.5 km2.
The AG referred to Annex II of the WFD and to the series of descriptors based on the physical characteristics of those bodies of water and noted that the descriptor for lakes set a minimum threshold of 0.5 km2. Since Article 5(1)[2] of the WFD expressly states that characterisation must be undertaken according to the technical specifications set out, in particular, in Annex II, it must be held that that directive does not require Member States to characterise lakes with a surface area below 0.5 km2.
In reaching this conclusion, the AG agreed with Ireland's submissions on the reference that to impose such onerous obligations for small elements of surface water could divert resources intended for the implementation of specific obligations for large water bodies under the WFD. On this basis, the AG noted, the fact that lakes with a surface area below 0.5km2 are not subject to characterisation as provided for in Article 5 WFD does not appear incompatible with the objective of the WFD, specifically, preventing the deterioration of surface waters. The AG opined that as Member States are not required to characterise lakes, with a surface area below 0.5km2, logically, it follows that they are also not required to classify the ecological status of such lakes.
1(b) - To what extent is the position different with respect to water bodies in a protected area, if at all?
On the basis that Loch an Mhuilinn is not located within a protected area, the AG stated that this question was hypothetical and, as a result, inadmissible.
2 - If the answer to question 1(a) is yes, can a competent authority for the purposes of development consent grant development consent for a project that may affect the water body prior to it being categorised and classified?
This question was not answered as question 1 was not answered in the affirmative.
3 - If the answer to question 1(a) is no, what are the obligations on a competent authority when deciding upon an application for development consent that potentially affects a water body not characterised and/or classified?
The AG stated that upon deciding upon an application for development contents, the competent national authorities must ensure, by means of an ad hoc analysis, that the project is not capable of causing deterioration in the status of that body of surface water as provided for in Article 4 of the WFD. This answer is unhelpful in that it does not offer much analysis around this view, especially as to what would constitute an 'ad hoc analysis' and if this opinion was to follow through to the CJEU judgment it could potentially create challenges for competent authorities such as the Board. The AG acknowledges same at para. 61 when he states '' Admittedly, such an examination presents certain practical difficulties, if no prior characterisation and classification have been carried out. However, that examination appears to be a necessary step in order to ensure the protection of surface water in the European Union''.
Conclusion
The answer to question 1(a) will be welcomed by Member States in that, as per this Opinion, they do not have to take on the onerous administrative obligation of having to characterise and classify all lakes with a topological surface area below 0.5 km2.
However the answer to question 3 raises questions on the obligations on competent authorities and could create difficulties, in particular the scope of the ad hoc analysis that a competent authority is obliged to carry out.
It must be remembered that this is only the opinion of the AG and as such it is not a statement of the law. This will only come when the judgment of the full court is delivered. A full copy of the opinion can be found here.
[1] 'Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8'
[2] 'Each Member State shall ensure …an analysis… is undertaken according to the technical specifications set out in Annexes II and III and that it is completed at the latest four years after the date of entry into force of this Directive'.
Written by: Patrick Reilly and Craig Farrar