Eco-Advocacy v An Bord Pleanála
Locations
Background
Planning permission for a development consisting of 320 dwellings in Trim, Co. Meath was granted in October 2020 by An Bord Pleanála ("the Board"). Trim is a designated heritage town and the development site is close to a zone of archaeological potential and an architectural conservation area. The development site is in the vicinity of the River Boyne and River Blackwater Special Area of Conservation ("SAC") and Special Protection Area ("SPA").
The design of the development site featured a sustainable urban drainage system ('SUDS') which would collect surface water run-off in underground attenuation storage tanks during the operational phase of the site. Following treatment, the water would be discharged into a stream approximately 100 metres south of the development site. This would result in reducing the potential for effects on the protected sites. The Board had decided that a Stage 2 Appropriate Assessment ('AA')[2] under the Habitats Directive was not required.
Challenge
The grant of planning permission was challenged in May 2021. While the High Court rejected the domestic law grounds of challenge and a number of EU law grounds, Mr Justice Humphreys referred six questions to the CJEU concerning the remaining grounds. Two of the more significant questions are summarised as follows:
- Where a party brings a challenge to an administrative decision, but does not specify what provisions of EU law have been breached, can national courts examine this complaint notwithstanding national court rules requiring specific breaches to be set out ('own motion argument')
- Whether a competent authority is entitled to take account of project features that are not intended to reduce harmful effects on a European site even if they have that effect (test for whether an element of a project was a mitigation measure or not)
CJEU Ruling
In relation to the own motion argument, the CJEU found that the national court rules in question (i.e. only being able to pursue points at hearing that have been properly pleaded) did not appear to make the public participation requirements of the EIA/Habitats Directives impossible or excessively difficult to exercise, and were such as to facilitate the proper conduct of proceedings. In addition, the CJEU found that despite the principle of equivalence[3], where there are no rules under national law that allow a court to raise a point not pleaded of its own motion, there is no such obligation conferred on the national court to raise a point of EU law of its own motion.
On the test for mitigation measures point, the CJEU found that where measures are incorporated into the design of a project not with the aim of reducing the negative effects of that project on the site concerned, but as standard features required for all projects of the same type, those elements cannot be regarded as indicative of probable significant harm to that site.
The Judgment followed Advocat General Kokott's Opinion (pronounced in January 2023), and brings clarity in respect of the application of EU law by the domestic courts in respect of both these important points.
Written by Jonathan Moore, Patrick Reilly and Craig Farrar.
[1] Eco Advocacy v An Bord Pleanála (Case C-721/21).
[2] Since the CJEU ruling in C-323/17 People Over Wind and Peter Sweetman v Coillte it has been understood that mitigation measures cannot be taken into account at Stage 1 of an Appropriate Assessment.
[3] The principle of equivalence requires Member States not to treat matters under EU law less favourably than purely domestic matters.