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Case Law Update – Friends of the Irish Environment v An Bord Pleanála (Shannon LNG) Case C-254/19

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Extensions of Duration for Consents Subject to Appropriate Assessment

Introduction
On 9 September 2020, the Court of Justice of the European Union ("CJEU") pronounced Judgment in Friends of the Irish Environment v An Bord Pleanála (Shannon LNG) Case C-254/19.

The case arose from a preliminary reference made by the Irish High Court (Mr. Justice Simons) as to inter alia whether or not an extension of duration consent was an "agreement" that triggered the Habitats Directive. The CJEU found, in circumstances where the original consent had expired, that an extension of duration consent did indeed require Appropriate Assessment ("AA") under the Habitats Directive.

Background

On 31 March 2008, An Bord Pleanála ("the Board") made a decision to grant planning permission for the development of a liquefied natural gas terminal on the River Shannon Estuary. At the time, the Habitats Directive had not been properly transposed into Irish law and consequently - although an EIA was carried out - the original permission did not make any reference to the Habitats Directive.

No works were undertaken on foot of the ten year planning permission and in September 2017 the developer applied to the Board to extend the duration of the permission. On 31 March 2018 the original planning permission expired. On 13 July 2018 the Board granted an extension of duration consent for a further five years pursuant to s. 42 of the Planning and Development Act 2000. Friends of the Irish Environment challenged this decision to extend the duration of the original permission.

The case went before Simons J in the High Court ([2019] IEHC 80) who made a preliminary reference to the CJEU raising six questions, three of which the Court answered in detail, summarised as follows:
 
  1. Does a decision to extend the duration of a planning permission constitute the agreement of a project such as to trigger Article 6(3) of the Habitats Directive?

  2. Would the granting of this extension be affected by the following considerations:
    • The original consent was granted pursuant to a provision of national law that did not properly implement the Habitats Directive at the time?
    • The original consent was not clear whether there was a stage 1 or stage 2 AA, and does not contain “complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt"?
    • The original period of the development consent had expired and ceased to have effect?
    • No works had been carried out pursuant to the original consent?

  3. If such an extension were to be considered a project and thus trigger Article 6(3), what considerations are the competent authority required to have regard to in carrying out an AA screening (e.g. changes to the proposed works, changes to the environmental background, or changes in scientific knowledge)? Or is the competent authority required to assess the environmental impacts of the entire development?
 
Advocat General's Opinion

Advocat General Kokott, whose opinion issued on 30 April 2020, made three principle observations on the questions referred. First, that a decision to extend permission constitutes an agreement of a project within the meaning of Article 6(3). Secondly, that any AA that accompanies an extension must rule out any omissions that may have been left out by the original assessment. This updated AA must include any changes to the development and to the environment. The overarching objective of an AA is to produce a report that has complete, precise and definitive findings capable of removing all reasonable scientific doubt as to the effects of the works on the relevant EU sites. Finally, AG Kokott noted that the obligation of a national court to interpret national law in accordance with EU law does not require that the parties to the proceedings before it expressly assert that specific interpretation, if those parties allege at least an infringement of the relevant provisions of EU law.
 
See our earlier blog on this Opinion here.

General Guidance on Appropriate Assessment

In its Judgment the CJEU offered some useful general guidance on the operation of AAs for competent authorities, as follows:
  1. The fact that the project is not situated in the Natura 2000 areas (i.e. protected EU site) concerned, but outside those zones, does not preclude the application of Article 6(3) of the Habitats Directive. 
  2. There is a two stage procedure under Article 6(3), the first of which is carry out an AA when there is a likelihood that the plan or project will have a significant effect on an EU site, and the second to only agree to a project being authorised if it will not adversely affect the integrity of the site.
Principal Findings of the Judgment of the CJEU
 
Definition of "project"
The CJEU found that the definition of "project" under the EIA Directive is more restrictive than the Habitats Directive and, this being the case, any development which satisfies the definition of a project under the EIA Directive will, by default, satisfy the definition under the Habitats Directive. Under Art. 1(2)(a) of the EIA Directive a project is defined as the execution of construction work or other installation as well as other interventions in the natural surroundings including those involving the extraction of natural resources. In this case the decision to extend a period originally set for the construction of the LNG terminal does relate to a "project" within the meaning of the EIA Directive and therefore also relates to a "project" within the meaning of Article 6(3) of the Habitats Directive.
 
Not a "single operation"
The CJEU distinguished an extension of duration consent from a renewal consent for a recurrent activity that might constitute a "single operation" (and therefore exempted from a new assessment in accordance with Stadt papenburg C-226/08 and Cooperatie Mobilisation C-293/17 and C-294/17), because the extension of duration of the consent in this case allowed for the execution of a project where the intended works had not even commenced.
 
"Agreement" to a Project
Ultimately the CJEU looked at whether the extension of duration of a development consent constituted an "agreement" of that project as referred to by Article 6(3) of the Habitats Directive: "the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned". The Court found that because the original consent had ceased to have effect on the expiry of the 10-year period, it was therefore not altered by the extension of duration consent but replaced by it. It found that it was irrelevant that the project could have proceeded under the original consent and that the extension of duration consent was a new consent.
 
Taking Account of Earlier Assessments
The CJEU went on to state that an assessment made under Article 6(3) of the Habitats Directive cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the protected site. However, a competent authority would be entitled to rely upon a previous AA provided the following requirements were met:
 
  1. It contained complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works.
  2. There had been no changes in the relevant environmental and scientific data
  3. There had been no changes to the project
  4. There were no new plans or projects that must be taken into account.
Such a reliance was not feasible in this case, as the original consent was not preceded by an AA containing complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the two relevant EU sites.
 
Other Questions Referred
The Judgment refrained from answering the Irish Court's questions regarding the difference between a time limit for an "operational" consent and a "construction" consent; whether a national court can raise of its own motion pleas in law that have not been raised by an applicant; and whether a national procedural law that prohibits an objector challenging the validity of an earlier consent that was granted pursuant to a national law that did not properly implement the Habitats Directive.
 
Conclusion

As a result of this Judgment, decision-makers should be aware that decisions to extend the duration of consents that have not been carried out or completed within the timeframe envisaged in the original application, are capable of triggering Article 6(3) of the Habitats Directive. The Judgment is clear that on the facts of this case the original consent had expired and therefore the extension of duration consent was considered a new consent. In those circumstances, and where an AA had not been carried out before granting the original consent (although an EIA had been carried out), the result was that the extension of duration consent should have been subject to an AA.
 
The CJEU Judgment can be found here.
 
Written by Jonathan Moore, Grainne O'Callaghan and Declan Meagher. 

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