Judges M L Arastey Sahún, F Biltgen, N Wahl, J Passer (Rapporteur)
Advocate General J Kokott
An application for planning permission was submitted to the defendant, the Irish planning board, for the construction of 320 dwellings as part of a development plan near a special area of conservation, designated under Council Directive 92/43/EEC (the Habitats Directive). The design provided that during the operational phase of the site, surface water run-off would be treated to remove any potential contaminants before its discharge into a the river system located approximately 100 metres away from the site of the project. The planning board considered that that sustainable drainage system was not a mitigation measure, but a standard feature of dwelling construction projects such as that at issue. An inspector of the board prepared screening reports on the need for an environmental impact assessment, under Parliament and Council Directive 2011/92/EU (the Environmental Impact Assessment Directive), and for an appropriate assessment of the implications of the plan for the protected site, under the Habitats Directive, and concluded that there would be no adverse impact on the site. An “appropriate assessment” had to be carried out, pursuant to article 6(3) of the Habitats Directive, when there was a likelihood that the plan or project would have a significant effect on the site and was to be authorised only if it would not adversely affect the integrity of the site. The planning board authorised the project and granted planning permission, taking the view, on the basis of the screening reports, that neither type of assessment was required. The claimant, an Irish environmental advocacy group, brought a claim for judicial review of the planning board’s decision before the High Court, Ireland, which rejected the challenge in so far as it was based on domestic law and on certain points of EU law. However, the court did not rule on two grounds that the claimant raised for the first time at the hearing. By failing to precisely state, and provide details of, each ground of review in the statement of claim, the claimant had breached a national procedural rule which further provided that a claimant could not rely upon any grounds or relief other than those set out in the statement. In those circumstances, the High Court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling, the questions, in essence, whether: (i) EU law precluded a national provision such as the Irish procedural rule in issue; (ii) where a competent authority of a member state had decided that an appropriate assessment under article 6(3) of the Habitats Directive was not necessary, it had to state the reasons on which it based its decision in an explicit and detailed manner; and (iii) in order to determine whether it was necessary to carry out an appropriate assessment under article 6(3), account could be taken of a feature, incorporated into the plan as standard, that might reduce the harmful effects of the plan on the site.
On the reference—
Held, (1) the Irish procedural rules in issue appeared to satisfy the principle of effectiveness, since they did not make it impossible or excessively difficult in practice to exercise the rights conferred by Directives 92/43 and 2011/92, but, on the contrary, facilitated the proper conduct of proceedings by requiring that the pleas relied on in the action were sufficiently precise. Further, the national rules did not appear to be contrary to the principle of equivalence, since they applied irrespective of whether the alleged infringements concerned Irish law or EU law. Moreover, the Irish High Court did not appear to have a duty, or option, to raise of its own motion a plea based on the infringement of national law. It followed from the High Court’s judgment in the present case that, under EU law, any pleas in law, not having been formulated with the degree of precision required in the action, had to be declared inadmissible by the national courts. Accordingly, EU law did not preclude a national procedural rule, according to which an application for judicial review, both under national law and under provisions of EU law such as provisions of Directive 2011/92 or article 6(3) of Directive 92/43, had to precisely state each ground, giving particulars where appropriate and identify the facts or matters relied upon as supporting each ground, and a claimant could not rely upon any grounds or relief sought at the hearing other than those set out in that statement (judgment, paras 24, 26–29, operative part, para 1).
(2) Following an appropriate assessment under article 6(3) of the Habitats Directive, the competent authority had to be in a position to state the reasons why it was certain that there was no reasonable scientific doubt with respect to the environmental impact of the proposed project on the site, prior to granting authorisation. That requirement to state reasons had also to be satisfied where, as in the present case, the competent authority approved a project likely to have an effect on a protected site without requiring an appropriate assessment under article 6(3). Accordingly, where a competent authority authorised a plan or project likely to have a significant effect on a protected site without requiring an appropriate assessment within the meaning of article 6(3) of the Habitats Directive, although the authority did not have to respond, in its statement of reasons, to all the points raised during the administrative procedure, it had nevertheless to state to the requisite standard the reasons why, prior to the granting of authorisation, it felt certain that there was no reasonable scientific doubt as to the possibility that that project would significantly affect that site, notwithstanding any opinions to the contrary and any reasonable doubts expressed therein (judgment, paras 39–43, operative part, para 2).
(3) The fact that measures intended to avoid or reduce the harmful effects of a plan or project on the site concerned were taken into consideration when determining whether it was necessary to carry out an appropriate assessment presupposed that it was likely that the site would be affected significantly and that, consequently, such an assessment should be carried out. Taking account of such measures at the screening stage would be liable to compromise the practical effect of the Habitats Directive in general, and the assessment stage in particular, as the latter stage would be deprived of its purpose and there would be a risk of circumvention of that stage, which constituted an essential safeguard provided by the Directive. However, such considerations not did have the effect of precluding the taking into account, during the screening phase of a project, of all the constituent elements of that project inherent in it which had the effect of reducing the harmful effects of the project on the site concerned. Accordingly, article 6(3) of the Habitats Directive meant that, in order to determine whether it was necessary to carry out an appropriate assessment of the implications of a plan or project for a site, account could be taken of the features of that plan or project which involved the removal of contaminants and which might have the effect of reducing the harmful effects of the plan or project on that site, where those features had been incorporated into that plan or project not with the aim of reducing the negative effects of that project on the site but as standard features, irrespective of any effect on the site (judgment, paras 47–49, 52, operative part, para 3).
Oisin Collins SC and Cathal Lenaghan (instructed by O’Connell & Clarke Solicitors, Dublin) for the claimant environmental advocacy group.
Brian Foley SC and David Browne (instructed by B Magee and J Moore, Solicitors) for the defendant planning board.
John Kenny (instructed by FP Logue LLP, Dublin) for the second and third interested parties, An Taisce (The National Trust for Ireland) and ClientEarth AISBL.
Brian Kennedy SC, Aoife Carroll and by Paul Gallagher (instructed by Chief Solicitor) for the Irish Government.
G Palmieri and G Palatiello for the Italian Government.
C Hermes and M Noll-Ehlers, agents, for the European Commission.