The case arose from a preliminary reference made by the Irish High Court in relation to, inter alia, whether or not an extension of duration consent was an agreement that triggered Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive").
 
The CJEU found, in circumstances where the original consent had expired, that the extension of duration consent in this case did indeed amount to an agreement, which had the consequence of requiring screening to be conducted by the competent authority for Appropriate Assessment under the Habitats Directive and, depending on the outcome of that screening, a number of further steps to be taken.
 

Background

On 31 March 2008, An Bord Pleanála, the competent authority for planning in Ireland ("the Board"), made a decision to grant consent for the development of a liquefied natural gas terminal on the River Shannon Estuary in County Kerry. The consent imposed a 10-year time limit on construction of the development.
 
The site in question is located adjacent to what are now two Natura 2000 sites, namely The Lower River Shannon Special Area of Conservation under the Habitats Directive (Site Code IE0002165), and the River Shannon and River Fergus Estuaries Special Area of Conservation under the Birds Directive (Site Code IE0004077).
 
At the time, the Habitats Directive had not been properly transposed into Irish law and consequently, the original consent did not make reference to the Habitats Directive. Only an Environmental Impact Assessment within the meaning of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 of the effects of certain public and private projects on the environment, as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 ("the EIA Directive") had been carried out.
 
No works had been undertaken during the 10 year consent period and in September 2017, the Developer applied to the Board, pursuant to Section 146B of the Planning and Development Act 2000 as amended ("the 2000 Act") to extend the duration of the consent. In so applying, the Developer submitted that the delays in commencing work arose, inter alia, as a result of changes to Irish policy on access to the national gas transmission grid and, more generally, as a result of Ireland’s economic situation at the time. Thus, the extension application entailed no material alteration of the development.
 
On 13 July 2018, the Board granted an extension of duration consent for a further five years pursuant to Section 42 of 2000 Act. By this date, the original consent had expired.

The Dispute

The Applicant NGO, Friends of the Irish Environment, challenged this decision by way of judicial review in the High Court. Their primary challenge alleged that the extension was not granted in compliance with the Habitats Directive and was therefore contrary to EU law.
 

The Law

The Habitats Directive

Article 6(3) of the Habitats Directive stipulates that: "Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, 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 and, if appropriate, after having obtained the opinion of the general public."

The EIA Directive

The EIA Directive defines "project", in the first indent of Article 1(2)(a), as meaning "the execution of construction works or of other installations or schemes".
 
The EIA Directive then defines "development consent", in Article 1(2)(c), as meaning "the decision of the competent authority or authorities which entitles the developer to proceed with the project".

The Planning and Development Act 2000, as amended

The key provisions of the 2000 Act, relevant to this case, are as follows:

• Section 40(1) provides: "Subject to subsection (2), a permission granted under this Part shall, on the expiration of the appropriate period (but without prejudice to the validity of anything done pursuant thereto prior to the expiration of that period), cease to have effect as regards—

1. in case the development to which the permission relates is not commenced during that period, the entire development, and

2. in case the development is commenced during that period, so much of the development as is not completed within that period."

• Section 42 provides "where the development has not commenced, the local planning authority must be satisfied that an environmental impact assessment, or an appropriate assessment, or both of those assessments, if required, was or were carried out before the planning permission was granted. Moreover, the additional period cannot exceed five years and an application for extension of the duration of a planning permission can be made only once."

• Section 146B then establishes a special procedure in relation to strategic infrastructure developments, which enables the consent to be altered. It provides, at subsection 3:

  "(3) If the Board decides that the making of the alteration—
 
            (b) would constitute the making of such a material alteration, it shall determine whether to
 

1. make the alteration,
2. make an alteration of the terms of the development concerned, … that would be different from that to which the request relates …, or
3. refuse to make the alteration.

(4) Before making a determination under subsection (3)(b), the Board shall determine whether the extent and character of (a) the alteration requested under subsection (1), and (b) any alternative alteration it is considering                  under subsection (3)(b)(ii), are such that the alteration, were it to be made, would be likely to have significant effects on the environment (and, for this purpose, the Board shall have reached a final decision as to what is the extent and character of any alternative alteration the making of which it is so considering)."
 

Reference to the Court of Justice of the EU

Having heard from the parties on the various issues in the case, Simons J. in the Irish High Court[1] decided to make a preliminary reference to the CJEU raising six questions, three of which the Court answered. In making this reference, Simons J. informed the CJEU that the original consent made no reference to either the Habitats Directive or the two protected sites that might be affected by the project at issue in the main proceedings, nor did it contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works.
 
The six questions referred were as follows:
 

1. Does a decision to extend the duration of a development consent constitute the agreement of a project such as to trigger Article 6(3) of the Habitats Directive?

 

2. Is the answer to the first question above affected by any of the following considerations?

 

1. The development consent (the duration of which is to be extended) was granted pursuant to a provision of national law which did not properly implement the Habitats Directive in that the legislation incorrectly equated an appropriate assessment for the purposes of the Habitats Directive with an environmental impact assessment for the purposes of the EIA Directive.
2. The development consent as originally granted does not record whether the consent application was dealt with under the first stage or the second stage of Article 6(3) of the Habitats Directive, and does not contain “complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the site concerned” as required by the Court under its judgment of 24 November 2011, Commission v Spain (C-404/09, EU:C:2011:768).
3. The original period of the development consent has expired, and as a consequence the development consent has ceased to have effect in respect of the entire development.
4. No development works were ever carried out pursuant to the development consent.

 

3. In the event that the answer to the first question is “yes”, what considerations are the competent authority required to have regard to in carrying out a first-stage screening exercise pursuant to Article 6(3) of the Habitats Directive? For example, is the competent authority required to have regard to any or all of the following considerations: (i) whether there are any changes to the proposed works and use; (ii) whether there has been any change in the environmental background, e.g. in terms of the designation of European Sites subsequent to the date of the decision to grant development consent; (iii) whether there have been any relevant changes in scientific knowledge, e.g., more up-to-date surveys in respect of qualifying interests of European Sites?

 
Alternatively, is the competent authority required to assess the environmental impacts of the entire development?
 

4. Is there any distinction to be drawn between (i) a development consent which imposes a time limit on the period of an activity (operational phase), and (ii) a development consent which only imposes a time limit on the period during which construction works may take place (construction phase) but, provided that the construction works are completed within that time limit, does not impose any time limit on the activity or operation?

 

5. To what extent, if any, is the obligation of a national court to interpret legislation in so far as possible in accordance with the provisions of the Habitats Directive and the Convention on the access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, signed in Aarhus on 25 June 1998 and approved on behalf of the European Community by Council Decision 2005/370/EC of 17 February 2005 (“the Aarhus Convention”) subject to a requirement that the parties to the litigation have expressly raised those interpretive issues? More specifically, if national law provides two decision-making processes, only one of which ensures compliance with the Habitats Directive, is the national court obliged to interpret national legislation to the effect that only the compliant decision-making process can be invoked, notwithstanding that this precise interpretation has not been expressly pleaded by the parties in the case before it?

 

6. a) If the answer to the second question, under (a) above, is to the effect that it is relevant to consider whether the development consent (the duration of which is to be extended) was granted pursuant to a provision of national law which did not properly implement the Habitats Directive, is the national court required to disapply a rule of domestic procedural law which precludes an objector from questioning the validity of an earlier (expired) development consent in the context of a subsequent application for development consent?

 
       b) Is such a rule of domestic procedural law inconsistent with the remedial obligation as recently restated  in the judgment of 17 November 2016, Stadt Wiener Neustadt[2]?
 

Advocat General's Opinion

Advocat General Kokott, whose opinion was 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) of the Habitat's Directive.
• Secondly, that any appropriate assessment (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, 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 the specific interpretation sought to be applied, if those parties allege at least an infringement of the relevant provisions of EU law.

 

Judgment of the Court of Justice 

Question 1 and Question 2

In the first instance, the CJEU found that the extension consent amounts to a "project", within the meaning of the Habitats Directive.
 
Having so found, the CJEU went on to determine that the decision by the Board to grant the extension consent amounted to an "agreement" within the meaning of the Habitats Directive, which finding imposes a multitude of consequential obligations on the Board in relation to appropriate assessment.
 
The CJEU reached this finding having applied the following methodology:

• The definition applied to the term "project" within the meaning of Article 1(2)(a) of the EIA Directive can be taken into account in assessing whether a decision relates to a "project" within the meaning of Article 6(3) of the Habitats Directive[3]. This is on the basis that the definition in the EIA Directive is more restrictive than that in the Habitats Directive and if it satisfies the former, it must satisfy the latter[4].
• The definition applied to the term "project" in the EIA Directive refers, in the first indent, to the execution of construction works or of other installations or schemes and, in the second indent, to other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.
• The extension consent in the present case meets such criteria. It must therefore be regarded as relating to a "project" within the meaning of Article 6(3) of the Habitats Directive.
• While the Habitats Directive does not define conditions governing how competent authorities are to "agree" projects, the definition of "development consent" in Article 1(2)(c) of the EIA Directive is relevant in defining that term[5].
• The EIA Directive defines "development consent" as "the decision […] which entitles the developer to proceed with the project". As the original consent in this case ceased to have effect on expiry of the 10-year period, it was not altered by the extension consent and was instead, replaced by it. The original consent had lapsed and it is irrelevant that the project could have previously proceeded under the original consent.
• In entitling the developer to proceed with the project now, the extension consent constitutes "development consent" within the meaning of the EIA Directive and consequently, an "agreement" under Article 6(3) of the Habitats Directive.

This finding, and more particularly the methodology by which it was reached, provides a helpful starting point to developers and competent authorities within the EU who are seeking to ascertain whether proposed works might be found to be a "project" and whether a proposed decision might be found to be an "agreement" within the meaning of the Habitats Directive, which determinations will be absolutely critical to the manner in which the application/decision is prepared and robustness of the ultimate consent granted. This methodology certainly provides clarity on how to approach such determinations, which clarity is welcome in an area heavily fraught with litigation.
 
However, the CJEU also stated that if, having regard to the regularity or nature of activities or the conditions under which activities are carried out, certain activities must be regarded as constituting a single operation, they can be considered to be one and the same project for the purposes of Article 6(3) of the Habitats Directive, and exempted from a new assessment procedure under that provision[6].

In so stating, the CJEU distinguished an extension consent from a renewal consent for a recurrent activity that might constitute a "single operation" and exempted the latter from the obligation to conduct a new assessment. In this case, there was no question of a renewal, on the basis that the intended works had not yet even commenced and the original consent had expired prior to the grant of the extension consent.
 

Question 3

The CJEU found that it is for the Board, as competent authority, to assess whether the extension consent must be preceded by appropriate assessment of its implications within the meaning of Article 6(3) of the Habitats Directive and, if so, whether that assessment must relate to the entire project or part thereof, taking into account, inter alia, previous assessments that may have been carried out and changes in the relevant environmental and scientific data as well as changes to the project and the existence of other plans or projects.
 
Further, the CJEU stated that assessment of a project’s implications must be carried out where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives of the site. A previous assessment, carried out before the original consent was granted, cannot rule out that risk unless it contains full, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works, and provided that there are no changes in the relevant environmental and scientific data, no changes to the project and no other plans or projects.
 
The CJEU reached this finding having applied the following methodology:
 

• An appropriate assessment of the implications of a plan or project implies that, before the plan or project is approved, all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect the conservation objectives of that site must be identified, in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity only if they have made certain that it will not adversely affect the integrity of that site. This is so when there is no reasonable doubt from a scientific point of view as to the absence of such effects[7].
• Thus, 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. Therefore, having not addressed the two adjacent protected sites, the EIA completed for the purpose of the original consent cannot be regarded as adequate for the purpose of screening out the likelihood of significant effects, either individually or in combination with other plans or projects, on those protected sites, when considering the extension application.
• The taking into account of such previous assessments when granting a consent extending the construction period for a project, such as the consent at issue in the main proceedings, cannot rule out the risk that it will have significant effects on the protected site unless those assessments contain complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works, and provided that there are no changes in the relevant environmental and scientific data, no changes to the project and no other plans or projects that must be taken into account.

 
This finding makes clear that the EIA previously conducted for the purpose of the original consent is not adequate for the purpose of the Habitats Directive regarding the extension consent, as the EIA did not contain complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on the two adjacent protected sites, such as to provide a legitimate basis on which to screen out appropriate assessment.
 

Question 4

The CJEU refused to consider this question on the basis that it had no bearing on the dispute and accordingly, declared the question inadmissible. Of particular note is the express statement by the CJEU that "the justification for a reference is not that it enables advisory opinions on general or hypothetical questions to be delivered, but rather that it is necessary for the effective resolution of a dispute".
 

Question 5

The CJEU refused to consider this question on the basis that it did not have before it the factual or legal material necessary to give a useful answer and accordingly, declared the question inadmissible. As the CJEU had already found that the extension consent was granted in breach of Article 6(3) of the Habitats Directive, it did not understand, based on the information before it, why the Irish High Court referred a question seeking to establish the correct legal basis for the extension consent.
 

Question 6

The CJEU also refused to consider this question, on the basis of the answer to questions 1 and 2. The CJEU reiterated that compliance with the Habitats Directive by the original consent is not relevant for the purposes of assessing whether the extension consent constitutes an "agreement" to a "project" under Article 6(3).
 

Final Orders

Having considered the responses of the CJEU to the questions referred, the High Court made an Order of Certiorari quashing the decision of the Board dated 13 July 2018, granting an extension to the term of the original permission, on the ground that the said decision of 13 July 2018 was made in breach of Article 6(3) of the Habitats Directive.  

Key Learnings 

1. 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.
 

2. Definition of "Agreement"

The CJEU found that the definition of "development consent" set out in the EIA Directive is relevant to an assessment of whether a decision amounts to an "agreement" within the meaning of the Habitat's Directive.
 
The definition for "development consent" is "the decision […] which entitles the developer to proceed with the project".
 
As the original consent in this case ceased to have effect on expiry of the 10-year period, it was not altered by the extension consent and was instead, replaced by it. The original consent had lapsed and it is irrelevant that the project could have previously proceeded under the original consent. The extension consent was the consent that "entitled the developer to proceed with the project" and thus was itself the "agreement".
 

3. Taking Account of Earlier Assessments

The CJEU found that an assessment made under Article 6(3) of the Habitats Directive cannot be regarded as adequate 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 are met:

1. It contains complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the works;
2. There has been no changes in the relevant environmental and scientific data;
3. There has been no changes to the project; and
4. There are no new plans or projects that must be taken into account

 

General Guidance on Appropriate Assessment

In its Judgment, the CJEU provided the following additional useful guidance on appropriate assessments:
 

1. The fact that the project is not situated in the Natura 2000 areas concerned (i.e. protected EU sites), and is instead outside of 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 appropriate assessment 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 plan or project being authorised if it will not adversely affect the integrity of the EU site.

 

Conclusion

It is now very clear that decisions to extend original consents, where the development works have not been completed within the timeframe envisaged in the original application, are capable of triggering Article 6(3) of the Habitats Directive.
 
As a consequence, both developers and competent authorities, in the preparation and consideration of extension applications, need to be on high alert in relation to the expiry date of the original consent, whether the initial "project" was assessed within the meaning of the Habitats Directive and whether an additional assessment is required in light of the factors set out at (a) – (d) above. 
 
Whilst on the facts of this case, the original consent had expired and therefore the extension consent was considered a new consent, it will be very interesting to see how developers and competent authorities treat future extension applications, where the expiry date is imminent and/or where it has lapsed but the works have already commenced, which scenarios remain nuanced and unclear.
 
A link to the Judgment of the CJEU can be found here.
 
A link to the Opinion of Advocate general Kokott can be found here.

Finally, a link to the High Court Judgment can be found here. 

Wriiten by Grainne O'Callaghan