The Court of Appeal (CoA) has rejected most of an environmental group's appeal against a refusal to overturn the €116 billion Project Ireland 2040 plan for the country’s development.
Last year, the High Court dismissed claims by Friends of the Irish Environment (FIE) that the plan adopted at a special Cabinet meeting in Sligo in February 2018 was invalid due to alleged lack of proper environmental assessments and failure to properly address climate change.
FIE brought the case against the Government, the Minister for Housing, Planning and Local Government, Ireland and the Attorney General.
It sought to quash the Government's adoption of the plan on grounds of alleged failure to meet the assessment requirements of the Strategic Environmental Assessment (SEA) Directive and the Habitats Directive.
Project Ireland has two principal components, the National Planning Framework (NPF) and the National Development Plan (NDP).
Environmental considerations
The High Court was satisfied the NDP is a financial or budget plan and does not require either a SEA or Appropriate Assessment (AA).
It rejected FIE's arguments the respondents had failed to assess the environmental effects from the plan’s measures to address climate change. The environmental report accompanying the plan, the SEA statement and the NPF itself contain "extensive provisions" dealing with climatic factors, the court found.
It also said a "quantitative assessment" of the likely effect of the NPF on climatic factors sought by FIE cannot be given as the NPF is a policy document which does not give permission for any specific development or project.
The FIE appealed that judgment and the appeal was heard by the three judge CoA earlier this year.
In a judgment on Friday on behalf of the CoA, Ms Justice Caroline Costello rejected most of FIE's appeal.
She said the NPF was required to be subject to AA pursuant to the Habitats Directive and SEA under the SEA Directive.
There was no AA determination for the purposes of the Habitats Directive prior to the adoption by the Government of the NPF in February 2018 and, accordingly, that decision was invalid and ought to be quashed.
However, she said in May 2018, the Minister made an AA determination which satisfied the requirements of the Habitats Directive.
This was a new decision to adopt the NPF, and it complied with the requirements of the Habitats Directive, she said.
Compliance
The NPF was screened for SEA, and it was determined that the NPF was a plan which should be subject to strategic assessment under the SEA Directive.
This involved considering six options, comprising the preferred option and five reasonable alternatives. These were assessed in an identical manner in an SEA Environmental Report and the reasons for preferring one particular option were set out.
There was therefore no failure to assess the reasonable alternatives in a comparable fashion, the judge said.
She also said the level of detail to be provided is that which is “reasonably required”. The court will only interfere with a decision of this nature on conventional public law grounds and no such grounds were made out by the FIE.
The SEA Environmental Report and the SEA Statement comply with the requirement of the SEA Directive to monitor the unforeseen adverse effects of the implementation of the NPF on the environment, she said.
The effects of the NPF on climate change were assessed in the SEA environmental report, she said. FIE had not shown that such assessment was irrational and thus, the adequacy of the assessment was not a matter for the CoA, she said.
The NDP is not a plan or programme to which the SEA Directive or the Habitats Directive applied, she said.
She therefore quashed the February 2018 decision of the Government to adopt the NPF, but otherwise she refused the appeal and affirmed the decision of the High Court.
She also ruled against the FIE on a reference to Europe as she said there was no question of the interpretation of EU law which requires clarification by the Court of Justice of the EU and which is necessary to the resolution of this case.
