In March 2013, An Bord Pleanála granted permission to Clare County Council in respect of the Killaloe Bypass, Shannon Bridge Crossing and R494 Improvement scheme. Following this an application was made in May 2013 to the High Court for Judicial Review of the decision. The applicant’s case focussed on an area of alluvial woodland habitat which, it was claimed, qualified as an Annex I priority natural habitat under the EU Habitats Directive.
ROD was the consulting engineer for the scheme and completed the preliminary design, the Environmental Impact Statement and Natura Impact Statement, and provided assistance with the Statutory Procedures. Clare County Council were the lead authority for the development, working jointly with (the then) North Tipperary County Council under a Section 85 agreement.
Almost three years after the application for judicial review, the Court delivered its decision on May 4th 2016. The Court’s decision was to refuse the subject application, therefore accepting the granting of permission by the Board for the scheme.
Nature of the Legal challenge
The case was an important one for the planning process relating to major infrastructure schemes in Ireland, and to the application of the relevant EIA Directive (2011/92/EU) in particular. The three joint respondents were An Bord Pleanála, Ireland and the Attorney General and the key items of the case were (i) failure by the respondents to identify or deal adequately with a site hosting an alluvial woodland which qualifies as an Annex I priority natural habitat, (ii) that an Environmental Impact Assessment (EIA) carried out by the Board was deficient and (iii) that the Board erred in law by attaching a condition to the consent authorising the management of construction of the development without assessing a construction management plan and relevant mitigation measures.
The High Court decision
The decision included key findings that there was no significant adverse impact to any area of Annex I priority natural habitat, that the area in question was outside the adjacent Lower Shannon Special Area of Conservation and that there was no obligation on the State to commence the process of designation of the site once an area of Annex I priority habitat was identified adjacent to it. This last point related to the issue of “shadow protection”. Whereas it was accepted by the court that the adjacent site of priority habitat existed, the court found that the State has adequately addressed its obligations for sufficient designation of alluvial woodland habitats throughout the national territory. A key finding here is that not every site which exists must be included on the list of proposed Sites of Community Interest furnished by a Member State under Article 5 of the Habitats Directive.
The EIA which the Board carried out included consideration of the EIS and NIS submitted, together with supplementary information requested in the lead up to and at the oral hearing. In finding in favour of the Board on this point, the court commented on the legality of the Board’s decision rather than on its correctness. However the court was satisfied that the Board had received comprehensive technical and factual information as part of the process, and had relied on a “comprehensive body of information and had ample information before it when reaching its decision to grant consent….”.
With regard to the third key item in the case, the court rejected the suggestion that the Board was not entitled to attach the condition relating to the proposed construction management plan. The court noted that the process of including the condition was entirely transparent and was exercised on an evidential basis including consideration of the extensive mitigation measures proposed by the developer and his advisors.
Clare County Council has subsequently received notice of the appellant’s intention to appeal the High Court’s decision. Accordingly, there will be further delay before the people of Killaloe and Ballina will have the benefit of this bypass scheme.