Natura Impact Assessment
Planning and Development Act
PART XAB
Appropriate Assessment
Interpretation.
177R.— (1) In this Part—
“appropriate assessment” shall be construed in accordance with section 177V;
“candidate site of community importance” means—
(a) a site—
(i) in relation to which the Minister has given notice pursuant to regulations under the European Communities Act 1972 that he or she considers the site may be eligible for identification as a site of Community importance pursuant to Article 4, paragraph 1 of the Habitats Directive, which notice may be amended in accordance with such regulations under the European Communities Act 1972,
(ii) that is included in a list transmitted to the Commission in accordance with Article 4, paragraph 1 of the Habitats Directive, or
(iii) that is added in accordance with Article 5 of the Habitats Directive, to the list transmitted to the European Commission pursuant to Article 4, paragraph 1 of the Habitats Directive,
but only until the adoption in respect of the site of a decision by the European Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive; or
(b) a site—
(i) which is subject to a consultation procedure in accordance with Article 5(1) of the Habitats Directive, or
(ii) in relation to which a Council decision is pending in accordance with Article 5(3) of the Habitats Directive;
F907[“candidate special area of conservation” means a site that is a candidate site of Community importance or a site of Community importance;]
F908[“candidate special protection area” means a site in relation to which the Minister for Arts, Heritage and the Gaeltacht has given notice pursuant to regulations under the European Communities Act 1972 that he or she considers that the site may be eligible for classification as a special protection area pursuant to Article 4 of the Birds Directive but only until the public notification of the making of a decision by that Minister to classify or not to classify such a site as a special protection area;]
“compensatory measures” shall be construed in accordance with section 177W(7) in relation to making Land use plans and in accordance with section 177AA(8) in relation to granting permission for proposed development;
“competent authority” shall be construed in accordance with section 177S;
“consent for proposed development” shall be construed in accordance with section 177U(8);
“European site” means—
(a) a candidate site of Community importance,
(b) a site of Community importance,
F907[(ba) a candidate special area of conservation,]
(c) a special area of conservation,
(d) a candidate special protection area,
(e) a special protection area;
F907[“foreshore” has the same meaning as it has in section 224;]
“Land use plan” means—
F909[(a) regional spatial and economic strategy,]
(b) a planning scheme in respect of all or any part of a strategic development zone,
F910[(ba) an amendment of a planning scheme in respect of all or any part of a strategic development zone,]
(c) a development plan,
(d) a variation of a development plan, or
(e) a local area plan;
“Natura 2000 network” has the meaning assigned to it by Article 3, paragraph 1 of the Habitats Directive;
“Natura impact report” shall be construed in accordance with section 177T;
“Natura impact statement” shall be construed in accordance with section 177T;
F911[“proposed development” means—
(a) a proposal to carry out—
(i) development to which Part III applies,
(ii) development that may be carried out under Part IX,
(iii) development that may be carried out by a local authority under Part X or XAB or development that may be carried out under Part XI,
(iv) development on the foreshore under Part XV,
(v) development under section 43 of the Act of 2001,
(vi) development under section 51 of the Roads Act 1993, or
(vii) development to which Chapter II or III of Part XXI applies,
(b) notwithstanding that the development has been carried out, development in relation to which an application for substitute consent is required under Part XA, or
(c) a requested alteration within the meaning of Chapter III of Part XXI;]
F907[“road authority” has the same meaning as it has in section 2 (amended by section 11 of the Roads Act 2007) of the Roads Act 1993;]
“screening for appropriate assessment” shall be construed in accordance with section 177U;
“site of community importance” means a site that has been included in the list of sites of Community importance as adopted by the Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive;
“special area of conservation” means a site that has been designated by the Minister as a special area of conservation pursuant to Article 4, paragraph 4 of the Habitats Directive;
“special protection area” means an area classified by the Minister pursuant to Article 4, paragraph 1 or Article 4, paragraph 2 of the Birds Directive, as a special protection area;
F912[…]
F913[(1A) During the period beginning on the date on which section 8 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on 31 December 2023—
(a) the definition of “Land use plan” in subsection (1) shall be construed and have effect as if the following paragraph were inserted after paragraph (e):
“(f) a proposed extension of the duration of an existing development plan;”, and
(b) in this Part, a reference to “draft Land use plan” or “Land use plan” shall be construed and have effect as including a reference to a proposed extension of the duration of an existing development plan referred to in paragraph (f) of the definition of ‘Land use plan’ (inserted by section 8 of the Planning and Development (Amendment) Act 2021).]
(2) Subject to this Part, a word or expression that is used in this Part, and that is also used in the Habitats Directive or the Birds Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Habitats Directive or the Birds Directive, as the case may be.]
Annotations
Amendments:
F907
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 8(a), (b), (c) and (e).
F908
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 31, S. I. No. 474 of 2011.
F909
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 81, S.I. No. 214 of 2014.
F910
Inserted (29.12.2015) by Planning and Development (Amendment) Act 2015 (63/2015), s. 8(a), commenced on enactment.
F911
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 38, S.I. No. 488 of 2022.
F912
Deleted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 8(f).
F913
Inserted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 8(a), S.I. No. 365 of 2021.
F914
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
Modifications (not altering text):
C155
Subs. (1) construed during specified period (3.07.2017 to 31.12.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 23, S.I. No. 270 of 2017.
Definitions (Chapter 1)
3. In this Chapter— …
“specified period” means—
(a) the period from the commencement of this provision until 31 December 2019, and
(b) any additional period as may be provided for by the Minister by order under section 4(2);
…
23. Subsection (1) of section 177R of the Act of 2000 has effect during the specified period as if in paragraph (a) of the definition of “proposed development” there were inserted the following after subparagraph (iii):
“(iiia) development to which Chapter 1 of Part 2 of the Planning and Development (Housing) and Residential Tenancies Act 2016 relates;”.
Editorial Notes:
E367
Definition of “proposed development”, para. (a)(iii) substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 8(d); definition subs177tituted (1.10.2022) as per F-note above.
F915[
Competent Authority.
177S.— (1) A competent authority, in performing the functions conferred on it by or under this Part, shall take appropriate steps to avoid in a European site the deterioration of natural habitats and the habitats of species as well as the disturbance of the species for which the site has been designated, insofar as such disturbance could be significant in relation to the objectives of the Habitats Directive.
(2) F916[Subject to subsection (3), the competent authority] in the State for the purposes of this Part and Articles 6 and 7 of the Habitats Directive, shall be—
F917[(a) in relation to draft regional spatial and economic strategy, the regional assembly for whose area the strategy is made,]
F918[(aa) in relation to a draft National Planning Framework, the Minister.]
(b) in relation to a draft planning scheme in respect of all or any part of a strategic development zone, the planning authority (which term shall be construed in accordance with section 168(5)) in whose area the strategic development zone is situate, or, on appeal the Board, as the case may be,
F919[(ba) in relation to a proposed amendment of a planning scheme in respect of all or any part of a strategic development zone, the Board,]
(c) in relation to a draft development plan, the planning authority for whose area the development plan is made,
(d) in relation to a proposed variation of a development plan, the planning authority for whose area the variation of the development plan is made,
(e) in relation to a draft local area plan, the planning authority in whose area the local area plan concerned is situate,
(f) in relation to a proposed development (other than development referred to in paragraph (g) or (h)), the planning authority to whom an application for permission is made or F920[…] the Board, as the case may be,
(g) in relation to proposed development that is strategic infrastructure development, the Board, or
F916[(h) in relation to proposed development that may be carried out by a local authority under Part X or XAB or proposed development that may be carried out under Part XI, the Board.]]
F921[(2A) During the period beginning on the date on which section 8 of the Planning and Development (Amendment) Act 2021 comes into operation and ending on 31 December 2023, the competent authority in the State referred to in subsection (2) shall be construed and have effect as if the following paragraph were inserted after paragraph (h):
“(i) in relation to a proposed extension of the duration of an existing development plan, the planning authority for whose area the development plan is proposed to be extended in duration.”.]
F922[(3) The competent authority in the State for the purposes of this Part and Articles 6 and 7 of the Habitats Directive, shall, in relation to proposed development to which Chapter III of Part XXI applies, be the Board.]
Annotations
Amendments:
F915
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F916
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 39, S.I. No. 488 of 2022.
F917
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 83, S.I. No. 214 of 2014.
F918
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 35, S.I. No. 436 of 2018.
F919
Inserted (29.12.2015) by Planning and Development (Amendment) Act 2015 (63/2015), s. 8(b), commenced on enactment.
F920
Deleted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 9(a).
F921
Inserted (16.07.2021) by Planning and Development (Amendment) Act 2021 (18/2021), s. 8(b), S.I. No. 365 of 2021.
F922
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 39, S.I. No. 488 of 2022.
Editorial Notes:
E368
Previous affecting provision: subs. (2)(h) substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 9(b); substituted (1.10.2022) as per F-note above.
F923[
Natura impact report and Natura impact statement.
177T.— (1) In this Part—
(a) A Natura impact report means a statement for the purposes of Article 6 of the Habitats Directive, of the implications of a Land use plan, on its own or in combination with other plans or projects, for one or more than one F924[European site], in view of the conservation objectives of the site or sites.
(b) A Natura impact statement means a statement, for the purposes of Article 6 of the Habitats Directive, of the implications of a proposed development, on its own or in combination with other plans or projects, for one or more than one F924[European site], in view of the conservation objectives of the site or sites.
(2) Without prejudice to the generality of subsection (1), a Natura impact report or a Natura impact statement, as the case may be, shall include a report of a scientific examination of evidence and data, carried out by competent persons to identify and classify any implications for one or more than one F924[European site] in view of the conservation objectives of the site or sites.
(3) F925[As respects a draft National Planning Framework, the Government shall prepare a Natura impact report in relation to a draft Land use plan and the following bodies shall also prepare a Natura impact report in relation to a draft Land use plan]—
F926[(a) as respects a draft regional spatial and economic strategy, the regional assembly for whose area the draft strategy is made,]
F927[(aa) as respects a draft National Planning Framework, the Minister.]
(b) as respects a draft planning scheme in respect of all or any part of a strategic development zone, the planning authority (which term shall be construed in accordance with section 168(5)) for whose area the draft scheme is made,
(c) as respects a draft development plan or draft variation of a development plan, the planning authority for whose area the draft plan or draft variation is made, and
(d) as respects a draft local area plan, the planning authority in whose area the local area concerned is situate.
(4) The applicant for consent for proposed development may, or if directed in accordance with subsection (5) by a competent authority, shall furnish a Natura impact statement to the competent authority in relation to the proposed development.
(5) At any time following an application for consent for proposed development a competent authority may give a notice in writing to the applicant concerned, directing him or her to furnish a Natura impact statement F928[…].
F924[(6) Where an applicant for consent for proposed development who, having been directed in accordance with subsection (5), fails to furnish a Natura impact statement within the period specified in the notice, or any further period as may be specified by the competent authority, the application for consent for the proposed development shall be deemed to be withdrawn.]
(7) (a) Without prejudice to subsection (1) a Natura impact report or a Natura impact statement shall include all information prescribed by regulations under section 177AD.
(b) Where appropriate, a Natura impact report or a Natura impact statement shall include such other information or data as the competent authority considers necessary to enable it to ascertain if the draft Land use plan or proposed development will not affect the integrity of the site.
(c) F928[…]]
Annotations
Amendments:
F923
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F924
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 10(a), (b), (d).
F925
Substituted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 18(2) and sch. 3 ref. no. 11, S.I. No. 436 of 2018.
F926
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 84, S.I. No. 214 of 2014.
F927
Inserted (22.10.2018) by Planning and Development (Amendment) Act 2018 (16/2018), s. 36, S.I. No. 436 of 2018.
F928
Deleted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 10(c) and (e).
F929[
Screening for appropriate assessment.
177U.— (1) A screening for appropriate F930[assessment of a draft Land use plan or application for consent for proposed development] shall be carried out by the competent authority to assess, in view of best scientific knowledge, if that Land use plan or proposed development, individually or in combination with another plan or project is likely to have a significant effect on the European site.
(2) A competent authority shall carry out a screening for appropriate assessment under subsection (1) before—
(a) a Land use plan is made including, where appropriate, before a decision on appeal in relation to a draft strategic development zone is made, or
(b) consent for a proposed development is given.
(3) In carrying out screening for appropriate assessment of a proposed development a F930[competent authority] may request such information from the applicant as it may consider necessary to enable it to carry out that screening, and may consult with such persons as it considers appropriate F931[and where the applicant does not provide the information within the period specified, or any further period as may be specified by the authority, the application for consent for the proposed development shall be deemed to be withdrawn].
(4) The competent authority shall determine that an appropriate assessment of a draft Land use plan or a proposed development, as the case may be, is required if it cannot be excluded, on the basis of objective information, that the draft Land use plan or proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site.
(5) The competent authority shall determine that an appropriate assessment of a draft Land use plan or a proposed development, as the case may be, is not required if it can be excluded, on the basis of objective information, that the draft Land use plan or proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site.
(6) (a) Where, in relation to a proposed development, a competent authority makes a determination that an appropriate assessment is required, the competent authority shall give notice of the determination, including reasons for the determination of the competent authority, to the following—
(i) the applicant,
(ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or
(iii) if appropriate, any party to an appeal or referral.
(b) Where a competent authority has determined that an appropriate assessment is required in respect of a proposed development it may direct in the notice issued under paragraph (a) that a Natura impact statement is required.
F931[(c) Paragraph (a) shall not apply in a case where the application for consent for the proposed development was accompanied by a Natura impact statement.]
F930[(7) A competent authority shall, as soon as may be after making the Land use plan or making a decision in relation to the application for consent for proposed development, make available for inspection by members of the public during office hours at the officesof the authority, and may also publish on the internet—
(a) any determination that it makes in relation to a draft Land use plan under subsection (4) or (5) as the case may be, and reasons for that determination, and
(b) any notice that it issues under subsection (6) in relation to a proposed development.]
F930[(8) In this section “consent for proposed development” means, as appropriate—
(a) a grant of permission,
(b) a decision of the Board to grant permission on a planning application or an appeal,
(c) consent for development under Part IX,
(d) approval for development that may be carried out by a local authority under Part X or Part XAB or development that may be carried out under Part XI,
(e) approval for development on the foreshore under Part XV,
(f) approval for development under section 43 of the Act of 2001,
(g) approval for development under section 51 of the Roads Act 1993, F932[…]
(h) a substitute consent under F933[Part XA, or]]
F934[(i) a decision to make a requested alteration under subsection (2) of section 297.]
(9) In deciding upon F930[a declaration or a referral under section 5] of this Act a planning authority or the Board, as the case may be, shall where appropriate, conduct a screening for appropriate assessment in accordance with the provisions of this section.]
F935[(10) In deciding upon an application under section 176A or a determination review or an application referral under section 176C, a planning authority or the Board, as the case may be, shall, where appropriate, conduct a screening for appropriate assessment in accordance with the provisions of this section.]
Annotations
Amendments:
F929
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F930
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 11(a), (b)(i), (d), (e), (f).
F931
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 11(bii), (c).
F932
Deleted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 40, S.I. No. 488 of 2022.
F933
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 40, S.I. No. 488 of 2022.
F934
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 40, S.I. No. 488 of 2022.
F935
Inserted (1.01.2019) by Planning and Development (Housing) and Residential Tenancies Act 2016 (17/2016), s. 27(d), S.I. No. 588 of 2018.
F936[
Appropriate assessment.
177V.— (1) An appropriate assessment carried out under this Part shall include a determination by the competent authority under Article 6.3 of the Habitats Directive as to whether or not a draft Land use plan or proposed development would adversely affect the integrity of a European site and F937[an appropriate assessment shall be carried out by the competent authority, in each case where it has made a determination under section 177U(4) that an appropriate assessment is required, before—]
(a) the draft Land use plan is made including, where appropriate, before a decision on appeal in relation to a draft strategic development zone is made, or
(b) consent is given for the proposed development.
(2) In carrying out an appropriate assessment under subsection (1) the competent authority shall take into account each of the following matters:
(a) the Natura impact report or Natura impact statement, as appropriate;
(b) any supplemental information furnished in relation to any such report or statement;
(c) if appropriate, any additional information sought by the authority and furnished by the applicant in relation to a Natura impact statement;
(d) any additional information furnished to the competent authority at its request in relation to a Natura impact report;
(e) any information or advice obtained by the competent authority;
(f) if appropriate, any written submissions or observations made to the competent authority in relation to the application for consent for proposed development;
(g) any other relevant information.
(3) Notwithstanding any other provision of this Act, or, as appropriate, the Act of 2001, or the Roads Acts 1993 to 2007 F938[and save as otherwise provided for in sections 177X, 177Y, 177AB and 177AC], a competent authority shall make a Land use plan or give consent for proposed development only after having determined that the Land use plan or proposed development shall not adversely affect the integrity of a European site.
(4) Subject to the other provisions of this Act, consent for proposed development may be given in relation to a proposed development where a competent authority has made modifications or attached conditions to the consent where the authority is satisfied to do so having determined that the proposed development would not adversely affect the integrity of the European site if it is carried out in accordance with the consent and the modifications or conditions attaching thereto.
F937[(5) A competent authority shall give notice of its determination under subsection (1) in relation to a proposed development to the applicant for consent to the proposed development, giving reasons for the determination.
(6) A competent authority shall, as soon as may be after making the Land use plan or making a decision in relation to the application for consent for proposed development, make available for inspection by members of the public during office hours at the offices of the authority, and may also publish on the internet—
(a) any determination that it makes under subsection (1) as respects a Land use plan and reasons for that determination, and
(b) any notice given by the authority under subsection (5).]]
Annotations
Amendments:
F936
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F937
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 12(a) and (c).
F938
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 12(b).
F939[
Draft Land use plans and imperative reasons of overriding public interest.
177W.— (1) Where, notwithstanding a determination by a competent authority that a draft Land use plan or part thereof will adversely affect F940[the integrity of] a European site, and in the absence of alternative solutions, a competent authority considers that a land use plan should nevertheless be made for imperative reasons of overriding public interest, the authority shall—
(a) F941[set out the] imperative reasons of overriding public interest that necessitate the making of the Land use plan,
(b) propose the compensatory measures that are necessary to ensure that the overall coherence of the Natura 2000 network is protected,
(c) prepare a statement of case that imperative reasons of overriding public interest exist and of the compensatory measures that are required, and
(d) forward the said statement of case together with the draft Land use plan and Natura impact report to the Minister.
(2) A statement of case referred to in subsection (1)(c) shall specify—
(a) the considerations that led to the assessment by the competent authority that the draft Land use plan would adversely affect the integrity of a European site,
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not proceeding with the draft Land use plan or part thereof),
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the draft Land use plan, and
(d) the compensatory measures that are being proposed as necessary to ensure the overall coherence of F941[the Natura 2000 network], including if appropriate, the provision of compensatory habitat.
(3) In relation to a European site that does not host a priority natural habitat type or priority species, the imperative reasons of overriding public interest may include those of a social or economic nature.
(4) In relation to a European site that hosts a priority natural habitat type or priority species, the only imperative reasons of overriding public interest that may be considered are those relating to—
(a) human health,
(b) public safety,
(c) beneficial consequences of primary importance to the environment, or
(d) subject to subsection (5), and having obtained an opinion from the European Commission, other imperative reasons of overriding public interest.
(5) In invoking imperative reasons of overriding public interest under subsection (4)(d) the competent authority shall advise the Minister why he or she should be satisfied to request an opinion from the European Commission.
F941[(6) A competent authority shall make a statement of case, referred to in subsection (1), available for inspection by members of the public at the offices of the authority during its public opening hours and may also publish the statement on the internet.]
(7) For the purposes of this section and section 177X or 177Y, ‘compensatory measures’ are measures proposed or considered, as the case may be, by a competent authority in the first instance, and by the Minister, as the case may be, for the purposes of ensuring that the overall coherence of F941[the Natura 2000 network] is protected and may include the provision of compensatory habitats.]
Annotations
Amendments:
F939
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F940
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 13(a)(i).
F941
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 13(a)(ii), (b), (c) and (d).
F942[
European site that does not host priority habitat or species and draft Land use plan.
F943[177X.— (1) Where the Minister receives a statement of case under section 177W(1) relating to a European site that does not host a priority habitat type or priority species, he or she shall as soon as possible—
(a) consider whether imperative reasons of overriding public interest exist,
(b) consult with such other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister, and
(c) consider any views of a Minister of the Government consulted pursuant to paragraph (b) and which are received by the Minister before he or she issues a notice under subsection (5) or (6).
(2) (a) Where the Minister considers that imperative reasons of overriding public interest may exist, he or she shall as soon as possible F944[consider whether] the compensatory measures specified in the statement of case are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.
(b) F944[In considering under paragraph (a) whether the compensatory measures specified in the statement of case are sufficient to ensure that the overall coherence of the Natura 2000 network is protected], the Minister may enter into consultations with the competent authority, who may submit a revised or modified plan or revised or modified compensatory measures.
(c) The Minister may enter into F945[…] further consultations with the competent authority in relation to the draft Land use plan, or revised or modified draft Land use plan or the compensatory measures or revised or modified compensatory measures.
F946[(3) Having considered the compensatory measures proposed by the competent authority, the Minister shall, as soon as possible—
(a) after consultations (if any) under paragraphs (b) and (c) of subsection (2), and
(b) after having considered revised or modified compensatory measures (if any) submitted under subsection (2)(b),
form an opinion as to whether the compensatory measures, or revised or modified compensatory measures, as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.]
F946[(4) The Minister, when forming his or her opinion under subsection (3), may also give further consideration to whether imperative reasons of overriding public interest exist and shall form an opinion as to whether such reasons exist before he or she issues a notice under subsection (5) or (6).]
(5) F946[Where the Minister forms the opinion that imperative reasons of overriding public interest exist and that] the compensatory measures, or revised or modified compensatory measures, as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister shall as soon as possible issue a notice to this effect to the competent authority and the competent authority may decide to make—
(a) the Land use plan, or
(b) that part of the Land use plan that would have an adverse effect on the integrity of a European site.
(6) F946[Where the Minister forms the opinion that imperative reasons of overriding public interest do not exist or that] the compensatory measures or revised or modified compensatory measures, as the case may be, are not sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister shall as soon as possible issue a notice to this effect to the competent authority and the competent authority shall not make—
(a) the Land use plan, or
(b) that part of the Land use plan that would have an adverse effect on the integrity of a European site.
(7) Where the Minister issues a notice under subsection (5) he or she shall inform the Commission of the matter, including the compensatory measures proposed.
(8) The competent authority shall make available for inspection by members of the public during office hours at the office of the authority, and may also publish on the internet a notice issued to the authority under subsection (5) or (6).]]
Annotations
Amendments:
F942
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F943
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 32, S. I. No. 474 of 2011.
F944
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 8(a)(i), (ii), S.I. No. 279 of 2021.
F945
Deleted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 8(a)(iii), S.I. No. 279 of 2021.
F946
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 8(b)-(e), S.I. No. 279 of 2021.
Editorial Notes:
E369
Previous affecting provision: original version of section inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011; substituted as per F-note above.
F947[
European site that hosts priority habitat type or species and draft Land use plan.
F948[177Y.— (1) Where the Minister receives a statement of case under section 177W(1) relating to a European site that hosts a priority habitat type or priority species, he or she shall as soon as possible—
(a) consider whether imperative reasons of overriding public interest exist,
(b) consult with such other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister, and
(c) consider any views of a Minister of the Government consulted pursuant to paragraph (b) and which are received by the Minister before he or she issues a notice under subsection (6), (7) or (8).
(2) (a) Where the Minister considers that imperative reasons of overriding public interest may exist and may comprise or include a reason or reasons other than the reasons set out in section 177W(4)(a) to (c), the Minister shall consider whether the opinion of the Commission should be sought in relation to the matter.
(b) Where the Minister proposes not to seek the opinion of the Commission pursuant to paragraph (a) he or she shall, in addition to any consultation that may have taken place under subsection (1)(b), as soon as possible consult with such other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister and request that the other Minister furnish his or her views as soon as possible.
(c) The Minister shall consider any views received from any other Minister of the Government consulted under paragraph (b) where those views are received by the Minister before he or she decides whether to seek the opinion of the Commission under paragraph (a).
(3) (a) Where the Minister considers that imperative reasons of overriding public interest may exist, he or she shall, as soon as possible, F949[consider whether] the compensatory measures specified in the statement of case are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.
(b) F949[In considering under paragraph (a) whether the compensatory measures specified in the statement of case are sufficient to ensure that the overall coherence of the Natura 2000 network is protected], the Minister may enter into consultations with the competent authority, who may submit a revised or modified plan or revised or modified compensatory measures.
(c) The Minister may enter into F950[…] further consultations with the competent authority in relation to the draft Land use plan, or revised or modified draft Land use plan or the compensatory measures or revised or modified compensatory measures.
F951[(4) Having considered the compensatory measures proposed by the competent authority, the Minister shall, as soon as possible—
(a) after consultations (if any) under paragraphs (b) and (c) of subsection (3), and
(b) after having considered revised or modified compensatory measures (if any) submitted under subsection (3)(b),
form an opinion as to whether the compensatory measures, or revised or modified compensatory measures, as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.]
F951[(5) The Minister, when forming his or her opinion under subsection (4), may also give further consideration to whether imperative reasons of overriding public interest exist and shall form an opinion as to whether such reasons exist before he or she issues a notice under subsection (6), (7) or (8).]
(6) F951[Where the Minister forms the opinion that imperative reasons of overriding public interest comprising only a reason or reasons set out in section 177W(4)(a) to (c) exist and that] the compensatory measures, or revised or modified compensatory measures as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister shall issue a notice to this effect to the competent authority and the competent authority may decide to make—
(a) the Land use plan, or
(b) that part of the Land use plan that would have an adverse effect on the integrity of a European site.
(7) Where—
(a) the Minister forms the opinion that imperative reasons of overriding public interest, comprising or including a reason or reasons other than those in section 177W(4)(a) to (c) exist, and
(b) the Minister has obtained the opinion of the Commission in relation to the matter, and
(c) F951[the Minister forms the opinion that] the compensatory measures, or revised or modified compensatory measures as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected,
the Minister shall issue a notice to this effect to the competent authority, accompanied by a copy of the opinion of the Commission, and the competent authority, only after having considered the opinion of the Commission, may decide to make—
(i) the Land use plan, or
(ii) that part of the Land use plan that would have an adverse effect on the integrity of a European site.
(8) Where—
(a) the Minister forms the opinion that imperative reasons of overriding public interest do not exist, or
(b) the Minister forms the opinion that the imperative reasons of overriding public interest comprise or include a reason or reasons other than those in section 177W(4)(a) to (c) and the Minister has decided not seek the opinion of the Commission in relation to the matter, or
(c) F951[the Minister forms the opinion that] the compensatory measures, or revised or modified compensatory measures as the case may be, are not sufficient to ensure that the overall coherence of the Natura 2000 network is protected,
the Minister shall issue a notice to this effect to the competent authority and the competent authority shall not make—
(i) the Land use plan, or
(ii) that part of the Land use plan that would have an adverse effect on the integrity of a European site.
(9) Where the Minister issues a notice under subsection (6) or (7) he or she shall inform the Commission of the matter, including the compensatory measures proposed.
(10) The competent authority shall make available for inspection by members of the public during office hours at the office of the authority, and may also publish on the internet a notice issued to the authority under subsection (6), (7) or (8).]]
Annotations
Amendments:
F947
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F948
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 33, S. I. No. 474 of 2011.
F949
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 9(a)(i), (ii), S.I. No. 279 of 2021.
F950
Deleted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 9(a)(iii), S.I. No. 279 of 2021.
F951
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 9(b)-(f), S.I. No. 279 of 2021.
Editorial Notes:
E370
Previous affecting provision: original version of section inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011; substituted as per F-note above.
F952[
Making of Land use plans or part thereof.
177Z.—F953[(1) Where a competent authority has received a notice from the Minister under section 177X(6) or section 177Y(8) in relation to a draft Land use plan, and the authority is satisfied that the draft plan can be amended so that it no longer contains the parts or elements which were the subject of a determination under section 177V that the plan would adversely affect a European site, then the authority may make the plan having omitted those parts or elements therefrom.]
(2) Subject to the provisions of this Act, where a proposed part of a draft Land use plan is amended or omitted from the plan, its amendment or omission shall not affect the validity of the remainder of the Land use plan where it is made with the part thereof so amended under this section or without the part thereof so omitted under this section.
(3) Notwithstanding that a statement of case referred to in section 177W(1) regarding any part of a draft Land use plan has been submitted to the Minister under that section, the competent authority may proceed to make the plan other than the part thereof so submitted.
(4) Notwithstanding the requirements of this Act, any delay incurred in the making of a draft Land use plan or part thereof arising from compliance with this Part shall not invalidate the plan or part thereof.]
Annotations
Amendments:
F952
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F953
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 34, S. I. No. 474 of 2011.
F954[
Proposed development and imperative reasons of overriding public interest.
177AA.— (1) Where, notwithstanding a determination by a competent authority that a proposed development will adversely affect F955[the integrity of] a European site, and in the absence of alternative solutions, a competent authority considers that consent should nevertheless be given for the proposed development for imperative reasons of overriding public interest, the authority shall—
(a) F956[set out the] imperative reasons of overriding public interest that necessitate the giving of consent for the proposed development,
(b) propose the compensatory measures that are necessary to ensure that the overall coherence of the Natura 2000 network is protected,
(c) prepare a statement of case that imperative reasons of overriding public interest exist and of the compensatory measures that are required,
(d) forward the said statement to the Minister together with a copy of the planning application and Natura impact statement.
(2) A statement of case referred to in subsection (1)(d) shall specify—
(a) the considerations that led to the assessment by the competent authority that the proposed development would adversely affect the integrity of a European site,
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not giving consent for the proposed development),
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the proposed development,
(d) compensatory measures that are being proposed as necessary to ensure the overall coherence of Natura 2000 including, if appropriate, the provision of compensatory habitat and the conditions to which any consent for proposed development shall be subject requiring that the compensatory measures are carried out.
(3) In relation to a European site that does not host a priority natural habitat type or priority species, the imperative reasons of overriding public interest may include those of a social or economic nature.
(4) In relation to a European site that hosts a priority natural habitat type or priority species, the only imperative reasons of overriding public interest that may be considered are those relating to—
(a) human health,
(b) public safety,
(c) beneficial consequences of primary importance to the environment, or
(d) subject to subsection (7), having obtained an opinion from the European Commission other imperative reasons of overriding public interest.
(5) A competent authority shall furnish a copy of the statement of case referred to in subsection (1) to an applicant for consent for proposed development.
F956[(6) A competent authority shall make a statement of case, referred to in subsection (1), available for inspection by members of the public at the offices of the authority during its public opening hours and may also publish the statement on the internet.]
(7) In invoking imperative reasons of overriding public interest under subsection (4)(d) the competent authority shall advise the Minister why he or she should be satisfied to request an opinion from the European Commission.
(8) In this section and in sections 177AB and 177AC ‘compensatory measures’ are measures proposed in the first instance by the applicant and then by a competent authority or the Minister, as the case may be, for the purposes of ensuring that the overall coherence of Natura 2000 is protected and such measures may include the provision of compensatory habitat.
(9) For the purposes of this section and sections 177AB and 177AC a competent authority may attach a condition to a grant of consent for proposed development relating to compensatory measures that the authority or the Minister may require which may include a condition requiring the making of contributions to finance the provision of compensatory measures and any such condition shall have effect as if it was attached to the grant of consent for proposed development, pursuant to the relevant provisions of this Act, that apply to such a grant of consent.]
Annotations
Amendments:
F954
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F955
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 14(a)(i).
F956
Substituted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 14(a)(ii) and (b).
F957[
European site that does not host priority habitat type or species.
F958[177AB.— (1) (a) Where the Minister receives a statement of case under section 177AA(1) relating to a European site that does not host a priority habitat type or priority species, he or she shall as soon as possible F959[consider whether] the compensatory measures are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.
(b) F959[In considering under paragraph (a) whether the compensatory measures specified in the statement of case are sufficient to ensure that the overall coherence of the Natura 2000 network is protected], the Minister may enter into consultations with the competent authority, who having consulted with the applicant for consent for the proposed development, may submit to the Minister a modified proposal for the development, modified proposed conditions to be attached to the proposed development or modified or alternative proposed compensatory measures.
(c) The Minister may enter into F960[…] further consultations with the competent authority in relation to the proposal for the development or any modified proposal for the development, the proposed conditions or any modified proposed conditions to be attached to the proposed development and the F959[compensatory measures or any modified or alternative proposed compensatory measures].
F961[(2) Having considered the compensatory measures proposed by the competent authority, the Minister shall, as soon as possible—
(a) after consultations (if any) under paragraphs (b) and (c) of subsection (1), and
(b) after having considered modified or alternative proposed compensatory measures (if any) submitted under subsection (1)(b),
form an opinion as to whether the compensatory measures, or modified or alternative proposed compensatory measures, as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.]
(3) F961[Where the Minister forms the opinion that the compensatory measures, or modified or alternative proposed compensatory measures, as the case may be], are sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister F961[as soon as possible after forming the opinion], shall issue a notice to this effect to the competent authority and the competent authority may decide to grant consent for the proposed development with or without conditions.
(4) F961[Where the Minister forms the opinion that the compensatory measures, or modified or alternative proposed compensatory measures, as the case may be], are not sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister F961[as soon as possible after forming the opinion] shall issue a notice to this effect to the competent authority and the competent authority shall not grant consent for the proposed development.
(5) Where the Minister issues a notice under subsection (3) he or she shall inform the Commission of the matter, including the compensatory measures proposed.
(6) The competent authority shall make available for inspection by members of the public during office hours at the office of the authority, and may also publish on the internet a notice issued to the authority under subsection (3) or (4).]]
Annotations
Amendments:
F957
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F958
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 35, S. I. No. 474 of 2011.
F959
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 10(a)(i), (ii), (iii)(II), S.I. No. 279 of 2021.
F960
Deleted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 10(a)(iii)((I), S.I. No. 279 of 2021.
F961
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 10(b)-(d), S.I. No. 279 of 2021.
Editorial Notes:
E371
Previous affecting provision: original version of section inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011; substituted as per F-note above.
F962[
European site that hosts priority habitat type or species.
F963[177AC.— (1) (a) Where the Minister receives a statement of case under section 177AA(1) relating to a European site that hosts a priority habitat type or priority species he or she shall as soon as possible F964[consider whether] the compensatory measures are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.
(b) F964[In considering under paragraph (a) whether the compensatory measures specified in the statement of case are sufficient to ensure that the overall coherence of the Natura 2000 network is protected], the Minister may enter into consultations with the competent authority, who having consulted with the applicant for consent for the proposed development, may submit to the Minister a modified proposal for the development, modified proposed conditions to be attached to the proposed development, or modified or alternative proposed compensatory measures.
(c) The Minister may enter into F965[…] further consultations with the competent authority in relation to the proposal for the development or any modified proposal for the development, the proposed conditions or any modified proposed conditions to be attached to the proposed development and the compensatory measures or any modified or alternative proposed compensatory measures.
(2) (a) Where the Minister considers that the imperative reasons of overriding public interest comprise or include a reason or reasons other than the reasons set out in section 177AA(4)(a) to (c), the Minister shall consider whether the opinion of the Commission should be sought in relation to the matter.
(b) Where the Minister proposes not to seek the opinion of the Commission he or she shall as soon as possible consult with such other Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister and request that other Minister to furnish his or her views as soon as possible.
(c) The Minister shall consider any views received from any other Minister of the Government consulted under paragraph (b) where those views are received by the Minister before he or she decides whether to seek the opinion of the Commission under paragraph (a).
F966[(3) Having considered the compensatory measures proposed by the competent authority, the Minister shall, as soon as possible—
(a) after consultations (if any) under paragraphs (b) and (c) of subsection (1), and
(b) after having considered modified or alternative proposed compensatory measures (if any) submitted under subsection (1)(b),
form an opinion as to whether the compensatory measures, or modified or alternative proposed compensatory measures, as the case may be, are sufficient to ensure that the overall coherence of the Natura 2000 network is protected.]
(4) Where the Minister forms the opinion that the imperative reasons of overriding public interest comprise only a reason or reasons set out in section 177AA(4)(a) to (c) F966[and that the compensatory measures, or the modified or alternative proposed compensatory measures, as the case may be], are sufficient to ensure that the overall coherence of the Natura 2000 network is protected, the Minister shall issue a notice to this effect to the competent authority and the competent authority may decide to grant consent for the proposed development, with or without conditions.
(5) Where—
(a) the Minister forms the opinion that the imperative reasons of overriding public interest comprise or include a reason or reasons other than those in section 177AA(4)(a) to (c), and
(b) the Minister has obtained the opinion of the Commission in relation to the matter, and
(c) F966[the Minister forms the opinion that the compensatory measures, or modified or alternative proposed compensatory measures, as the case may be], are sufficient to ensure that the overall coherence of the Natura 2000 network is protected,
the Minister shall issue a notice to this effect to the competent authority, accompanied by a copy of the opinion of the Commission, and the competent authority, only after having considered the opinion of the Commission may decide to grant consent for the proposed development, with or without conditions.
(6) Where—
(a) the Minister forms the opinion that the imperative reasons of overriding public interest comprise or include a reason or reasons other than those in section 177AA(4)(a) to (c) and the Minister has decided not to seek the opinion of the Commission in relation to the matter, or
(b) F966[the Minister forms the opinion that] the compensatory measures or modified or alternative proposed compensatory measures, as the case may be, are not sufficient to ensure the overall coherence of the Natura 2000 network is protected,
the Minister shall issue a notice to this effect to the competent authority and the competent authority shall not grant consent for the proposed development.
(7) Where the Minister issues a notice under subsection (4) or (5) he or she shall inform the Commission of the matter, including the compensatory measures proposed.
(8) The competent authority shall make available for inspection by members of the public during office hours at the offices of the authority and may also publish on the internet a notice issued to the authority under F966[subsection (4), (5) or (6)].]]
Annotations
Amendments:
F962
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F963
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 36, S. I. No. 474 of 2011.
F964
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 11(a)(i), (ii), S.I. No. 279 of 2021.
F965
Deleted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 11(a)(iii), S.I. No. 279 of 2021.
F966
Substituted (14.06.2021) by Planning and Development, Heritage and Broadcasting (Amendment) Act 2021 (11/2021), s. 11(b)-(f), S.I. No. 279 of 2021.
Editorial Notes:
E372
Previous affecting provision: original version of section inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011; substituted as per F-note above.
F967[
Regulations.
177AD.— (1) The Minister may by regulations make provision for such matters of procedure and administration as appear to the Minister to be necessary or expedient for any matter referred to in this Part as prescribed or to be prescribed.
(2) Without prejudice to the generality of the forgoing, the Minister may make regulations, for the purpose of this Part, to give effect to a provision of the Treaty on the European Union, or a legislative act adopted by an institution of the European Union, including the Habitats and Birds Directives.
(3) Without prejudice to the generality of subsection (1) or (2), regulations under this section may—
(a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations,
(b) contain provisions repealing, amending or applying, with or without modification, other law, exclusive of the European Communities Act 1972 and the European Communities Act 2007,
(c) make provision for—
(i) compensatory measures including relating to provision of compensatory habitat, conditions that may be attached to a consent for proposed development, financial contributions, or bonds required in relation to compensatory measures, implementation, management, and supervision of implementation of compensatory measures,
(ii) conditions for the purposes of this Part that may be attached to a consent for proposed development, including in relation to protection of species or habitats of species,
(iii) consultation between an applicant for consent for proposed development and a competent authority for any purpose under this Part,
(iv) consultation between a competent authority and the Minister for any purpose required under this Part,
(v) in relation to proposed development or classes of development, in addition to matters provided by or under this Act in relation to an application for consent for proposed development, the submission of a Natura impact statement with an application for consent,
(vi) information or classes of information to be contained in a Natura impact statement or a Natura impact report,
(vii) qualifications of persons or classes of persons who shall furnish information referred to in subparagraph (vi),
(viii) information or classes of information to be contained in notices published under this Part,
(ix) persons or classes of persons to be notified that an appropriate assessment or a screening appropriate assessment is to be carried out,
(x) persons or classes of persons to be notified of the outcome of an appropriate assessment or a screening for appropriate assessment,
(xi) records, or classes of records to be retained and the periods for which they should be retained by a competent authority in relation to appropriate assessment of Land use plans.]
Annotations
Amendments:
F967
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
Editorial Notes:
E373
Power pursuant to section exercised (21.09.2011) by Planning and Development (Amendment) (No. 3) Regulations 2011.
F968[
Appropriate Assessment of certain development carried out by or on behalf of local authorities.
177AE.— (1) Where an appropriate assessment is required in respect of development—
(a) by a local authority that is a planning authority, whether in its capacity as a planning authority or in any other capacity, or
(b) by some other person on behalf of, or jointly or in partnership with, such a local authority, pursuant to a contract entered into by that local authority whether in its capacity as a planning authority or in any other capacity,
F969[within the functional area of the local authority concerned F970[…], (hereinafter in this section referred to as “proposed development”)], the local authority shall prepare, or cause to be prepared, a Natura impact statement in respect thereof.
(2) Proposed development in respect of which an appropriate assessment is required shall not be carried out unless the Board has approved it with or without modifications.
(3) Where a Natura impact statement has been prepared pursuant to subsection (1), the local authority shall apply to the Board for approval and the provisions of Part XAB shall apply to the carrying out of the appropriate assessment.
F971[(3A) A local authority shall not be eligible to make an application under subsection (3) in relation to proposed development in the maritime area, unless it—
(a) is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
(b) is the owner of land on which it is proposed to carry out the development concerned, or
(c) makes the application with the consent, or on behalf, of the owner of land on which it is proposed to carry out the development concerned.
(3B) The Board shall neither consider an application for permission under subsection (3) in relation to proposed development in the maritime area nor grant approval for such development under subparagraph (i), (ii) or (iii) of paragraph (a) of subsection (8), unless the applicant for such approval—
(a) is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
(b) is the owner of land on which it is proposed to carry out the development concerned, or
(c) makes the application with the consent, or on behalf, of the owner of land on which it is proposed to carry out the development concerned.]
(4) Before a local authority makes an application for approval under subsection (3), it shall—
(a) publish in one or more newspapers circulating in the area in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development, and—
(i) stating that—
(I) it proposes to seek the approval of the Board for the proposed development,
(II) a Natura impact statement has been prepared in respect of the proposed development,
(III) the Board may give approval to the application for development with or without conditions or may refuse the application for development,
(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the Natura impact statement may be inspected free of charge or purchased, and
(iii) inviting the making, during such period, of submissions and observations to the Board relating to—
(I) the implications of the proposed development for proper planning and sustainable development in the area concerned,
(II) the likely effects on the environment of the proposed development, and
(III) the likely significant effects of the proposed development on a European site,
if carried out,
and
(b) send a copy of the application and the Natura impact statement to the prescribed authorities together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—
(i) the likely effects on the environment of the proposed development,
(ii) the implications of the proposed development for proper planning and sustainable development in the area concerned, and
(iii) the likely significant effects of the proposed development on a European site,
if carried out.
(5) (a) The Board may—
(i) if it considers it necessary to do so, require a local authority that has applied for approval for a proposed development to furnish to the Board such further information in relation to—
(I) the effects on the environment of the proposed development, or
(II) the consequences for proper planning and sustainable development in the area in which it is proposed to situate the said development of such development, or
(III) the likely significant effects of the proposed development on a European site,
as the Board may specify, or
(ii) if it is provisionally of the view that it would be appropriate to approve the proposed development with certain alterations (specified in the notification referred to in this subparagraph) to be made to the terms of it, notify the local authority that it is of that view and invite the authority to make to the terms of the proposed development alterations specified in the notification and, if the authority makes those alterations, to furnish to it such information (if any) as it may specify in relation to the development, in the terms as so altered, or, where necessary, a revised Natura impact statement in respect of it.
(b) If a local authority makes the alterations to the terms of the proposed development specified in a notification given to it under paragraph (a), the terms of the development as so altered shall be deemed to be the proposed development for the purposes of this section.
(c) The Board shall—
(i) where it considers that any further information received pursuant to a requirement made under paragraph (a)(i) contains significant additional data relating to—
(I) the likely effects on the environment of the proposed development,
(II) the likely consequences for the proper planning and sustainable development in the area in which it is proposed to situate the said development of such development, and
(III) the likely significant effects of the proposed development on a European site,
or
(ii) where the local authority has made the alterations to the terms of the proposed development specified in a notification given to it under paragraph (a)(ii),
require the local authority to do the things referred to in paragraph (d).
(d) The things which a local authority shall be required to do as aforesaid are—
(i) to publish in one or more newspapers circulating in the area in which the proposed development would be situate a notice stating that, as appropriate—
(I) further information in relation to the proposed development has been furnished to the Board, or
(II) the local authority has, pursuant to an invitation of the Board, made alterations to the terms of the proposed development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the development as so altered or a revised Natura impact statement in respect of the development has been furnished to the Board,
indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place, or places, where a copy of the information or the Natura impact statement referred to in clause (I) or (II) may be inspected free of charge or purchased and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and
(ii) to send to each prescribed authority to which notice was given pursuant to subsection (4)(b)—
(I) a notice of the furnishing to the Board of, as appropriate, the further information referred to in subparagraph (i)(I) or the information or statement referred to in subparagraph (i)(II), and
(II) a copy of that further information, information or statement,
and to indicate to the authority that submissions or observations in relation to that further information, information or statement may be made to the Board before the expiration of a period (which shall not be less than 3 weeks) beginning on the day on which the notice is sent to the prescribed authority by the local authority.
(6) Before making a decision in respect of a proposed development under this section, the Board shall consider—
(a) the Natura impact statement submitted pursuant to subsection (1) or (5)(a)(ii), any submission or observations made in accordance with subsection (4) or (5) and any other information furnished in accordance with subsection (5) relating to—
(i) the likely effects on the environment of the proposed development,
(ii) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the said development of such development, and
(iii) the likely significant effects of the proposed development upon a European site,
(b) the report and any recommendations of the person conducting a hearing referred to in subsection (7) where evidence is heard at such a hearing relating to—
(i) the likely effects on the environment of the proposed development,
(ii) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the said development of such development, and
(iii) the likely significant effects of the proposed development upon a European site.
(7) The person conducting an oral hearing in relation to the compulsory purchase of land which relates wholly or partly to a proposed development under this section in respect of which a local authority has applied for approval shall be entitled to hear evidence relating to—
(a) the likely effects on the environment of the proposed development,
(b) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the said development of such development, and
(c) the likely significant effects of the proposed development upon a European site.
(8) (a) The Board may, in respect of an application for approval under this section of proposed development—
(i) approve the proposed development,
(ii) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,
(iii) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or
(iv) refuse to approve the proposed development, and may attach to an approval under subparagraph (i), (ii) or (iii) such conditions as it considers appropriate.
(b) Without prejudice to the generality of the foregoing power to attach conditions, the Board may attach to an approval under paragraph (a)(i), (ii) or (iii) a condition requiring—
(i) the construction or the financing, in whole or in part, of the construction of a facility, or
(ii) the provision or the financing, in whole or in part, of the provision of a service,
in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.
(c) A condition attached pursuant to paragraph (b) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the approval operates of the benefits likely to accrue from the grant of the approval.
(9) (a) The Board shall direct the payment of such sum as it considers reasonable by the local authority concerned to the Board towards the costs and expenses incurred by the Board in determining an application under this section for approval of a proposed development, including—
(i) the costs of holding any oral hearing in relation to the application,
(ii) the fees of any consultants or advisers engaged in the matter, and
(iii) an amount equal to such portion of the remuneration and any allowances for expenses paid to the members and employees of the Board as the Board determines to be attributable to the performance of duties by the members and employees in relation to the application, and the local authority shall pay the sum.
(b) If a local authority fails to pay a sum directed to be paid under paragraph (a), the Board may recover the sum from the authority as a simple contract debt in any court of competent jurisdiction.
(10) (a) Where an application under this section relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board shall not, where it decides to approve the proposed development, subject that approval to conditions which are for the purposes of—
(i) controlling emissions from the operation of the activity, including the prevention, limitation, elimination, abatement or reduction of those emissions, or
(ii) controlling emissions related to or following the cessation of the operation of the activity.
(b) Where an application under this section relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board may, in respect of any proposed development comprising or for the purposes of the activity, decide to refuse the proposed development, where the Board considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development is or will be situate or is unacceptable on habitats grounds having regard to the provisions of Part XAB.
(c) (i) Before making a decision in respect of proposed development comprising or for the purposes of an activity, the Board may request the Environmental Protection Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the Board in relation to the proposed development.
(ii) When making its decision the Board shall have regard to the observations, if any, received from the Agency within the period specified under subparagraph (i).
(d) The Board may, at any time after the expiration of the period specified by the Board under paragraph (c)(i) for making observations, make its decision on the application.
(e) The making of observations by the Agency under this section shall not prejudice any other function of the Agency under the Environmental Protection Agency Act 1992.
(11) (a) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for approval under this section.
(b) Without prejudice to the generality of paragraph (a), regulations under this subsection may make provision for—
(i) enabling a local authority to request the Board to give a written opinion on the information to be contained in a Natura impact statement,
(ii) matters of procedure relating to the making of observations by the Environmental Protection Agency under this section and matters connected therewith, and
(iii) requiring the Board to give information in respect of its decision regarding the proposed development for which approval is sought.
(12) In considering under subsection (6) information furnished relating to the likely consequences for proper planning and sustainable development of a proposed development in the area in which it is proposed to situate such development, the Board shall have regard to—
(a) the provisions of the development plan for the area,
(b) the provisions of any special amenity area order relating to the area,
(c) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,
(d) where relevant, the policies of the Government, the Minister or any other Minister of the Government, and
(e) the provisions of this Act and regulations under this Act where relevant.
(13) A person who contravenes a condition imposed by the Board under this section shall be guilty of an offence.
F969[(14) This section shall apply to proposed road development, other than proposed road development within the meaning of section 2(1) of the Roads Act 1993, by or on behalf of a road authority.
(15) Where a proposed development to which this section applies is also required to be submitted to the Board under section 175, it shall be sufficient for the applicant to make one application to the Board provided that the applicant complies with this section and section 175 and in such a case the Board shall issue one decision in relation to the application under this section and section 175.
(16) Where a proposed development to which this section applies is also required to be submitted to the Board under section 226, it shall be sufficient for the applicant to make one application to the Board provided that the applicant complies with this section and section 226 and in such a case the Board shall issue one decision in relation to the application under this section and section 226.]]
Annotations
Amendments:
F968
Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.
F969
Inserted (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 15.
F970
Deleted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 41, S.I. No. 488 of 2022.
F971
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 41, S.I. No. 488 of 2022.
F972
Inserted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(h)(i), not commenced as of date of revision.
F973
Substituted by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(h)(ii), not commenced as of date of revision.
Modifications (not altering text):
C156
Propsective affecting provision: subs. (10)(aa) inserted and (b) amended by Water Environment (Abstrations and Associated Impoundments) Act 2022 (48/2022), s. 116(h)(i), (ii), not commenced as of date of revision.
F972[(aa) Where an application under this section relates to proposed development which comprises or is for the purposes of an activity for which an abstraction licence is required, the Board shall not, where it decides to approve the proposed development, subject that approval to conditions which are for the purposes of controlling the abstraction related to the operation of the activity.]
(b) Where an application under this section relates to proposed development which comprises or is for the purposes of an activity for which F973[an integrated pollution control licence, an abstraction licence] or a waste licence is required, the Board may, in respect of any proposed development comprising or for the purposes of the activity, decide to refuse the proposed development, where the Board considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development is or will be situate or is unacceptable on habitats grounds having regard to the provisions of Part XAB.
C157
Developments approved under section declared exempted developments for purposes of Act and references in section to local authority construed by Dublin Transport Authority Act 2008 (15/2008), s. 44(14), (15), as inserted (8.02.2016) by Public Transport Act 2016 (3/2016), s. 1(b)(iv), commenced on enactment.
Functions of Authority in relation to public transport infrastructure.
44.— …
[(14) The carrying out by the Authority, on its behalf or at its direction of—
(a) a proposed road development (within the meaning of the Roads Act 1993) that has been approved by An Bord Pleanála under section 51 (as amended by section 9 of the Roads Act 2007) of that Act, or
(b) a proposed development that has been approved by An Bord Pleanála—
(i) under subsection (9) (inserted by section 34(c) of the Planning and Development (Strategic Infrastructure) Act 2006) of section 175 of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section, or
(ii) under subsection (8) of section 177AE (inserted by section 57 of the Planning and Development (Amendment) Act 2010) of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section,
shall be exempted developments for the purposes of the Act of 2000.
(15) For the purposes of section 175 and 177AE of the Act of 2000 where a proposed development relates to public transport infrastructure an application for approval under section 175(3) or 177AE(3) may be made by the Authority, with the concurrence of the local authority concerned, and, accordingly, references in those sections to a local authority shall be read as references to the Authority.
…]
Editorial Notes:
E374
Authorisations or approvals issued to water authorities under section deemed to be issued to Irish Water (30.10.2015) by Water Services (No. 2) Act 2013 (Other Licences, Authorisations and Permits) Order 2015 (S.I. No. 462 of 2015), in effect as per arts. 3 and 4.
E375
Previous affecting provision: subs. (1) amended (21.09.2011) by European Union (Environmental Impact Assessment and Habitats) Regulations 2011 (S.I. No. 473 of 2011), reg. 15; substituted (1.10.2022) as per F-note above.
S.I. No. 708/2022 –
European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022
I, DARRAGH O’BRIEN, Minister for Housing, Local Government and Heritage, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving further effect to Council Directive 92/43/EEC of 21 May 19921 and Directive 2011/92/EU of the European Parliament and of the Council of 13 December 20112 , as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 20143 , hereby make the following regulations:
Citation
1. These Regulations may be cited as the European Union (Planning and Development) (Habitats and Environmental Impact Assessment) Regulations 2022.
Definition
2. In these Regulations, “Act of 2000” means the Planning and Development Act 2000 (No. 30 of 2000).
Amendment of section 173A of Act of 2000
3. Section 173A of the Act of 2000 is amended –
(a) in subsection (1) –
(i) in the definition of “application for a licence”, by the substitution of “a licence” for “an integrated pollution prevention and control licence”, and
(ii) in paragraph (c) of the definition of “application for permission”, by the insertion of “181(2A),” after “177AE,”,
(b) in subsection (2) –
(i) by the insertion of “or, in the case of an application for approval under section 181(2A), the applicant for a licence under Part IV of the Act of 1992 in respect of an activity to which the application for approval relates,” after “applicant for a grant of permission”, and
(ii) by the substitution of “a licence” for “an integrated pollution prevention and control licence”,
(c) in subsection (3), by the insertion of “or was exempted, in accordance with this Act, from being so required” after “by or under this Act”,
(d) by the insertion of the following subsection after subsection (3):
“(3A) Where a grant of permission has been issued, or an order under section 181(2)(a) has been made, in respect of a proposed development comprising or for the purposes of an activity in respect of which a licence under Part IV of the Act of 1992 is required, and the application for permission in respect of the development was not accompanied by an environmental impact assessment report and the planning authority or the Board did not require the submission of an environmental impact assessment report, the planning authority or the Board shall, on a request in that behalf made to it by –
(a) the applicant for the grant of permission, or
(b) in a case where an order has been made under section 181(2)(a), the applicant for the licence under Part IV of the Act of 1992 in respect of the activity concerned,
also provide written confirmation to the applicant concerned that an environmental impact assessment in respect of the development is not required by or under this Act, or was exempted, in accordance with this Act, from being so required.”,
(e) by the substitution of the following subsection for subsection (4):
“(4) Where a planning authority or the Board receives a notice and request from the Environmental Protection Agency under section 87(1D)(a) or 87(1E)(a) of the Act of 1992, the planning authority or Board shall –
(a) comply with the request within the period specified in the request, and
(b) enter into consultations, as referred to in section 87(1D)(c) or 87(1E)(c), as the case may be, with the Environmental Protection Agency.”,
(f) in subsection (5)(c), by the substitution of “a licence” for “an integrated pollution prevention and control licence”, and
(g) in subsection (6), by the substitution of “a licence under Part IV” for “integrated pollution prevention and control licence”.
Amendment of section 181 of Act of 2000
4. Section 181 of the Act of 2000 is amended –
(a) in subsection (2A) –
(i) in paragraph (b), by the insertion of “, other than where a declaration has been made under paragraph (ba)(i),” after “the Minister concerned shall”,
(ii) by the insertion of the following paragraphs after paragraph (b):
“(ba) Where a Minister concerned is satisfied that the carrying out of a proposed development is for the sole purpose of responding to a civil emergency, he or she may –
(i) declare that the proposed development is exempt from a requirement under paragraph (b), arising only on the basis that an environmental impact assessment of the proposed development is required, to prepare an application for approval and apply to the Board for such approval, or
(ii) declare that the proposed development is exempt from a requirement under paragraph (c) to prepare an environmental impact assessment report in respect of the development and include such report with an application to the Board under paragraph (b),
if the Minister considers that the application of the requirement concerned would have an adverse effect on that purpose.
(bb) Notice of a declaration made under paragraph (ba) shall, as soon as may be, be published in Iris Oifigiúil and in at least one daily newspaper published in the State.”,
(iii) in paragraph (c), by the insertion of “or a declaration is made under paragraph (ba)(ii)” after “under subsection (2I)”,
(iv) in paragraph (e), by the insertion of “, except where a declaration is made under paragraph (ba)(i),” after “shall not”, and
(v) in paragraph (f), by the insertion of “or a declaration is made under paragraph (ba)(ii)” after “or subsection (2I)”,
(b) in subsection (2T), in paragraph (a)(i), by the substitution of “or, in respect of a proposed development not directly connected with or necessary to the management of a European site, would be likely to have a significant effect either individually or in combination with other plans or projects on a European site” for “or an adverse effect on the integrity of a European site”, and
(c) in subsection (2W), in paragraph (a), by the substitution of “or, in respect of a proposed development not directly connected with or necessary to the management of a European site, its likely significant effect either individually or in combination with other plans or projects on a European site” for “or adverse effect on the integrity of a European site”.
Amendment of section 181A of Act of 2000
5. Section 181A of the Act of 2000 is amended –
(a) in subsection (1) –
(i) by the substitution of “Subject to section 181B(4) and (4A)” for “Subject to section 181B(4)”, and
(ii) by the substitution of the following paragraph for paragraph (b):
“(b) identified as likely to have significant effects on the environment in accordance with section 176 or, in respect of such development not directly connected with or necessary to the management of a European site, likely to have a significant effect either individually or in combination with other plans or projects on a European site in accordance with section 177U,”, and
(b) in subsection (2), by the substitution of “Subject to section 181B(4) and (4A)” for “Subject to section 181B(4)”.
Amendment of section 181B of Act of 2000
6. Section 181B of the Act of 2000 is amended –
(a) in subsection (2), by the deletion of paragraph (d),
(b) in subsection (3)(a), by the deletion of “or adverse effects, if any, of the proposed development on the integrity of a European site”,
(c) by the substitution of the following subsection for subsection (4):
“(4) The Minister for Defence may, where he or she is satisfied that a proposed development or part of a proposed development is for the sole purpose of national defence, declare that the proposed development or relevant part of the proposed development is exempt from a requirement under section 181A(1), arising only on the basis that an environmental impact assessment of the proposed development is required, to apply for approval and prepare an environmental impact assessment report, if he or she considers that the application of section 181A or 181C would have adverse effects on such purpose.”,
(d) by the insertion of the following subsection after subsection (4):
“(4A) A Minister of the Government may, where he or she is satisfied that a proposed development or part of a proposed development is for the sole purpose of responding to a civil emergency, declare that the proposed development or relevant part of the proposed development is exempt from a requirement under section 181A(1), arising only on the basis that an environmental impact assessment of the proposed development is required, to apply for approval and prepare an environmental impact assessment report, if he or she considers that the application of section 181A or 181C would have adverse effects on such purpose.”,
(e) in subsection (5), by the deletion of “or (4)”, and
(f) by the insertion of the following subsection after section (5):
“(5A) Notice of any exemption granted under subsection (4) or (4A) shall, as soon as may be, be published in Iris Oifigiúil and in at least one daily newspaper published in the State.”.
Amendment of section 181C of Act of 2000
7. Section 181C of the Act of 2000 is amended, in subsection (3), by the substitution of the following paragraph for paragraph (a):
“(a) to make a determination of whether a development of a class specified in regulations made under section 181(1)(a) which it proposes to carry out or have carried out is likely to have significant effects on the environment in accordance with section 176 or, in respect of such a development not directly connected with or necessary to the management of a European site, is likely to have a significant effect either individually or in combination with other plans or projects on a European site in accordance with section 177U (and inform the applicant of the determination), or”.
/images/ls
GIVEN under my Official Seal,
20 December, 2022.
DARRAGH O’BRIEN,
Minister for Housing, Local Government and Heritage.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
These Regulations are made under section 3 of the European Communities Act 1972 (No. 27 of 1972) for the purpose of giving further effect to Article 1(3) of the Environmental Impact Assessment Directive; giving further effect to Article 6(3) of the Habitats Directive; and aligning the Planning and Development Act with the Environmental Protection Agency Act.
The amendments to Sections 181(2A) and 181B will facilitate a Minister of the Government granting an exemption to a development or part of a development, the subject of Section 181(1) Regulations or a Section 181(2) Order, which has the response to civil emergencies as its sole purpose, and has been identified as likely having significant effects on the environment, from the requirement to apply for approval to An Bord Pleanála or to submit an environmental impact assessment report to An Bord Pleanála, where the Minister is satisfied that the application of sections 181(2A) to (2AA) – relating to section 181(2) Orders, and sections 181A to 181C – relating to section 181(1) Regulations development would have adverse effects on such purpose. The amendments will also remove the exemption provided at Sections 181B(2)(d) and 181B(4)(b) from the requirement to screen for Appropriate Assessment.
The amendments to Section 181(2T), 181(2W), 181A and 181C will ensure that the existing transposition provisions in relation to the test for screening for Appropriate Assessment, is consistent with Article 6(3) of the Habitats Directive.
The amendments to Section 173A will align the Planning and Development Act with the Environmental Protection Agency Act and will continue the facilitation of interaction between An Bord Pleanala and the Environmental Protection Agency and applicants where EIA is required for a development and an EPA licence is also required for the related activity.
1 OJ No. L. 206, 22.7.1992, p.7.
2 OJ No. L. 026, 28.1.2012, p.1.
3 OJ No. L. 124, 25.4.2014, p. 1.
Cases
Sliabh Luachra Against Ballydesmond Windfarm Committee v An Bord Pleanala
[2019] IEHC 888 (20 December 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019IEHC888.html
Cite as: [2019] IEHC 888
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Page 1 ⇓THE HIGH COURTCOMMERCIAL[2019] IEHC 888[ 2019 No. 63 J.R.]BETWEENSLIABH LUACHRA AGAINST BALLYDESMOND WINDFARM COMMITTEEAPPLICANTANDAN BORD PLEANÁLARESPONDENTANDSILVERBIRCH RENEWABLES LIMITED AND KERRY COUNTY COUNCILNOTICE PARTIESJUDGMENT of Mr. Justice Denis McDonald delivered on 20th December, 2019Table of ContentsIntroduction……………………………………………………………………………………………………………………………1The grounds of challenge………………………………..……………………………………………………………………5Material contravention of the development plan………………..………………………………………………7The legal requirements for appropriate assessment…………………………………………………………16The statement of ground……………………………………………………………………………………………………20The challenge to the late delivery of expert evidence by the applicant……………………………21Some subsidiary issues raised by the applicant in relation to the assessment carried outby the respondent…………………………………………………………………………………………………………………37The assessment carried out by the inspector and the respondent…………………………………44Did the assessment identify, in the light of the best scientific knowledge, all aspects of thedevelopment which could adversely affect the hen harrier or the freshwater pearlmussel?…………………………………………………………………………………………………………………………………45Potential impacts on the hen harrier………….………………………………………………………………………46The potential impacts on the freshwater pearl mussel…..…………………………………………………54Have the necessary complete precise and definitive findings and conclusions beenmade?……………………………………………………………………..……………………………………………………………62The hen harrier…………………………….………………………………………………………………………………………63The freshwater pearl mussel………………………………………………………………………………………77Peat slippage …………………………………………………………………………………………………………………96Post consent conditions……………………………………………………………………………………………………101Page 2 ⇓Conclusions in relation to appropriate assessment……………………………………………………………108EIA………………………………………………………………………………………………………………………………………109Overall Conclusion……………………………………………………………………………………………………………118Introduction1. In these proceedings the applicant seeks to challenge a decision of the respondent dated27th November, 2018 granting planning permission for the construction of a windfarmand associated works on elevated ground between the villages of Gneeveguilla, CountyKerry and Ballydesmond, County Cork. The application for permission for the proposedwindfarm development envisaged the erection of fourteen turbines with a rotor diameterup to 120m and a blade tip height of up to 150m above ground level, two permanentmeteorological masts, two medium voltage substations, one high voltage substation,thirteen site entrances comprising seven new site entrances and six upgraded siteentrances, three barrow pits and adjacent repositories, the provision of new and upgradedinternal site service roads and surface water management measures, temporary sitecompounds, underground cabling and associated infrastructure necessary to construct thedevelopment. The respondent, in its decision to grant permission, reduced the number ofturbines from fourteen to twelve. As described in more detail below, the exclusion of twoof the turbines from the development was largely prompted by concerns about the impactof those particular turbines on the hen harrier.2. If allowed to proceed, the proposed development will span an area of approximately 96hectares and will extend across 15 individual land holdings. The site is located to thewest of and sloping towards the upper reaches of the Blackwater river valley. Thesouthwestern extent of the proposed site is located close to the watershed between theBlackwater river and Laune river catchments. The site is drained by a number oftributaries of the river Blackwater including the Tooreengarriv/Carhoonoe, Mountinfantand Reansup streams. Although the site is located close to the watershed between theBlackwater and Laune catchments, all drainage serving the proposed infrastructure will bedesigned to discharge via the Blackwater catchment with one minor exception which isnot relevant for present purposes.3. The developer is the first named notice party namely Silverbirch Renewables Ltd(“Silverbirch”). Its application for planning permission for the proposed development wasrejected by the County Council (the second named notice party) (“the County Council”)on 30 May, 2017 for the following reasons:-(a) In the first place, having regard to the extent, size and scale of the turbines theCounty Council considered that the development would create a significant visualintrusion in the landscape by reason of the height and spatial extent of theproposed turbines which would be excessively dominant and visually intrusive. TheCounty Council took the view that the development would therefore seriously injurethe residential amenity and visual amenities of the area and would, inter alia,contravene Objective ZL-1 of the Kerry County Development Plan, 2015-2021:Page 3 ⇓(b) Secondly, noting that the site is located within the catchment of the Blackwaterriver which provides a home to the endangered freshwater pearl mussel, theCounty Council was not satisfied that the construction would not cause pollution oflocal water courses;(c) Thirdly, the County Council took the view that two of the turbines (namely T8 andT9) are located within an area known as Barna Bog used by hunting hen harrierswhich may breed in the nearby Stacks Mullaghareirk Mountains, West Limerick hillsand Mount Eagle Special Protection Area (“The Stacks SPA”). In particular, theCounty Council considered that the proposed development would cause the loss ofhen harrier hunting habitat which would have a significant adverse effect on theStacks SPA.4. Silverbirch appealed the refusal of Kerry County Council to the respondent. In turn, therespondent appointed an inspector to review the matter and prepare a report withrecommendations. The inspector conducted an analysis of the proposed development andreported with a recommendation that planning permission might be granted by therespondent for a development comprising twelve of the proposed turbines but excludingturbines T8 and T9. Thereafter on 23rd November, 2018 the respondent, by direction ofthat date, decided to grant permission. The relevant decision to grant subsequentlyissued on 27th November, 2018.The grounds of challenge5. The applicant seeks to challenge the decision of the respondent to grant permission forthe development on the following grounds:-(a) The principal ground on which the applicant seeks to challenge the decision of therespondent is that there was a failure to carry out and record any AppropriateAssessment in accordance with national and European law. In making this case,the applicant has raised concerns in relation to both the hen harrier and thefreshwater pearl mussel;(b) Next, the applicant makes the case that there is nothing to suggest that therespondent carried out an Environmental Impact Assessment (“EIA”). In thiscontext, although the issue is addressed in the report of the inspector appointed bythe respondent, neither the direction nor the decision of the respondent record thatthe respondent carried out an EIA;(c) Thirdly, the applicant contends that, in granting permission for the proposeddevelopment, the respondent has contravened s. 37 (2) of the Planning andDevelopment Act, 2000 (“the 2000 Act”) in circumstances where (so the applicantcontends) the proposed development materially contravenes the Kerry CountyDevelopment Plan (“the development plan”).Page 4 ⇓6. In circumstances where the third of those issues is very net and can be disposed ofbriefly, I propose to deal with that issue first. Thereafter, I will address the first andsecond issues listed in para. 5 above.Material contravention of the development plan7. As noted above, one of the three grounds on which the County Council refused permissionfor the proposed development was that it would contravene Objective ZL-1 of thedevelopment plan. According to that plan, the purpose of Objective ZL-1 is to protect thelandscape of County Kerry as a major economic asset and an invaluable amenity whichcontributes to the quality of peoples’ lives. The applicant contends that the decision ofthe respondent to grant permission contravenes s. 37 (2) of the 2000 Act. Under s. 37,the respondent may only grant permission for a development which materiallycontravenes a development plan where certain conditions (described in para. 9 below) aremet.8. It is important to note that, in its decision, the council did not specifically state that thedevelopment materially contravened the development plan. That is the language which isused in the 2000 Act. Section 37 (2) (a) of the 2000 Act provides as follows:-“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under thissection decide to grant a permission even if the proposed development contravenesmaterially the development plan relating to the area of the planning authority towhose decision the appeal relates.”9. The power given to the respondent by s. 37 (2) (a) is significantly qualified by theprovisions of s. 37 (2) (b) which are in the following terms:-“(b) Where a planning authority has decided to refuse permission on the grounds that aproposed development materially contravenes the development plan, the Boardmay only grant permission in accordance with paragraph (a) where it considersthat—(i) the proposed development is of strategic or national importance,(ii) there are conflicting objectives in the development plan or the objectives are notclearly stated, insofar as the proposed development is concerned, or(iii) permission for the proposed development should be granted having regard toregional spatial and economic strategy for the area, guidelines section 28, policydirectives under section 29, the statutory obligations of any local authority in thearea, and any relevant policy of the Government, the Minister or any Minister of theGovernment, or(iv) permission for the proposed development should be granted having regard to thepattern of development, and permissions granted, in the area since the making ofthe development plan.”Page 5 ⇓10. It will be seen from the language of s. 37 (2) (a) and (b) that the provisions areconcerned with material contravention of a development plan. As noted in para. 8 above,that is not the language which the County Council used in its decision of 30th May, 2017to refuse permission. The relevant reference to the County Development Plan is in factrolled up with a number of other considerations. The relevant reason is in the followingterms:-“Having regard to the spatial extent, size and scale of the proposed turbinesrelative to the nature of the receiving environment of hilly and flat farmlands andtransitional marginal landscapes, it is considered that a windfarm development ofthe scale proposed would create a significant visual intrusion in this landscape byreason of the height and spatial extent of the proposed turbines which would beexcessively dominant and visually obtrusive when viewed from the surroundingcountryside and villages. The proposed wind farm would have a significant impacton the value and character of the landscapes in the area and would seriously injurethe amenity and quality of life of communities and individuals who dwell in thearea. The proposed development would, therefore, seriously injure the residentialamenities and visual amenities of the area, would be contrary to the provisions ofthe Wind Energy Guidelines… and Section 7.4.5.15 of the Renewable EnergyStrategy 2012, would contravene Objective ZL-1 of the Kerry County DevelopmentPlan… and would be contrary to the proper planning and sustainable developmentof the area”.11. In my view, s. 37 (2) is not engaged in the present case. This is for the simple reasonthat, as the text of the reason relied on by the County Council makes very clear, thedecision to refuse permission was not stated to be on the basis that the developmentwould materially contravene the development plan. I can therefore see no basis todistinguish the present case from the circumstances addressed by Haughton J. in PeopleOver Wind v. An Bord Pleanála [2015] IEHC 271. In that case, Haughton J. dealt with theissue as follows at para. 270:-“270. In refusing to grant permission, the planning authority did not use the phrase‘materially contravene’ when outlining that the development would breach objectiveNH13/001 of the Laois County Development Plan … – it merely refers to‘contravene’. This important distinction was recognised by O’Malley J in Nee v. AnBord Pleanála [2012] IEHC 532 – a case in which the Court came to the conclusionthat the omission of the word ‘material’ must have been a deliberate choice on thepart of the Council. No evidence has been put before this Court to suggest that, bythe wording it adopted, Laois County Council intended to refer to a materialcontravention.”12. The approach taken by Haughton J. is consistent with the views previously expressed byO’Malley J. in Nee v. An Bord Pleanála [2012] IEHC 532 (to which Haughton J. referred inthe course of his judgment in People Over Wind v. An Bord Pleanála). In Nee, at para. 40of her judgment, O’Malley J. stated:-Page 6 ⇓“…The section relied on specifically provides that the Board may grant permission‘even if’ the refusal is for a material contravention. That would make little sense ifevery refusal by a Planning Authority for contravention of a Plan was to be deemedto be for a material contravention. It would also have the effect of very significantlyreducing, if not abolishing, the jurisdiction of the board in cases not coming withinthe excepted categories. I do not believe that to be the intent of the section”.13. As noted above, I can see no point of distinction between the present case and the factsconsidered by Haughton J. in People Over Wind. In the present case, there is nothing inthe materials before the court to support the suggestion that it had been the intention ofthe County Council to conclude that the development constituted a material contraventionof the Development Plan.14. Moreover, this is not a case where the respondent has itself purported to grant permissionin material contravention of the Development Plan. The impact of the proposeddevelopment on the landscape is addressed extensively in paras. 8.12.1 to 8.12.8 of theinspector’s report. Having carefully considered the issue, the inspector came to theconclusion that he was satisfied that the overall visual impact of the development on thearea would be “within acceptable limits”. In turn, the respondent, in its direction of 23rdNovember, 2018 expressly decided to grant permission in accordance with the inspector’srecommendation. In doing so, the respondent stated that it had taken into account thepolicies of the County Council as set out in the Development Plan. Having considered,inter alia, the Development Plan, the character of the landscape and the topographysurrounding the site, the characteristics of the site and of the general vicinity, the patternof existing and permitted development in the area, the distances from the proposeddevelopment to dwellings or other sensitive receptors, and the report of the inspector, therespondent considered that the development would not have a significant adverse effecton the landscape or the visual or residential amenities of the area. Thus, in deciding togrant permission, there is nothing to suggest that the respondent (who, in accordancewith the provisions of the 2000 Act conducts a de novo assessment of the application)was exercising any jurisdiction under s. 37 (2) (a). It only exercises such a jurisdictionwhere there is a material contravention. Based on the extensive analysis carried out bythe inspector in relation to this issue, and based on the reasons set out in the Boarddirection (summarised above) it is clear that the respondent took the view that theproposed development was acceptable in terms of landscape and visual amenity.15. Accordingly, in circumstances where there is nothing to suggest that the County Councilrefused permission on the grounds that the development would materially contravene theDevelopment Plan and in circumstances where the decision of the respondent was nottaken in exercise of its jurisdiction under s. 37 (2) (a), it follows that this ground ofchallenge to the decision of the respondent fails.The legal requirements for appropriate assessment16. The provisions of Article 6 of the Habitats Directive are well known and do not require tobe set out here. No issue arises in relation to the language used in Article 6. Nor doesPage 7 ⇓any issue arise in relation to the provisions of the 2000 Act implementing Article 6. It isnot, therefore necessary, to set out the relevant statutory provisions which apply.17. It is clear from the report of the inspector in this case that, although the proposeddevelopment site is not located within any Natura 2000 designation, there are a numberof protected sites in the wider area including the Stacks SPA and the Blackwater RiverSpecial Area of Conservation (“the Blackwater SAC”). In light of the potential for thedevelopment to have adverse impacts on the integrity of those Natura 2000 sites, theinspector stated as follows at p. 112 of his report:-“… any development likely to have a serious adverse effect on a Natura 2000 sitewould not normally be permitted and… any development proposal in the vicinity of,or affecting in any way, a designated site should be accompanied by such sufficientinformation as to show how the proposal will impact on the designated site.Therefore, a proposed development may only be authorised after it has beenestablished that the development will not have a negative impact on the fauna,flora or habitat being protected through an Appropriate Assessment pursuant toArticle 6 of the Habitats Directive. Accordingly, it is necessary to screen the subjectproposal for the purposes of ‘appropriate assessment’”18. Having carried out a screening exercise, the inspector concluded that the developmenthad the potential to have an adverse impact upon, inter alia, the Stacks SPA and theBlackwater SAC. Insofar as those two sites are concerned, the inspector recognised, inparticular, that the development could have a potential impact on the roosting, breeding,and foraging habits of the hen harrier but it also had potential implications fordownstream protected habitats and species within the Blackwater SAC. These include thefreshwater pearl mussel.19. Accordingly, it was necessary to carry out a stage 2 appropriate assessment. It is nowwell established that there are quite stringent requirements that must be complied withwhere a stage 2 appropriate assessment is carried out. Those requirements have beenthe subject of a number of decisions of the CJEU which, in turn, have been applied inIreland in Kelly v. An Bord Pleanála [2014] IEHC 400 and in Connelly v. An Bord Pleanála[2018] IESC 31. It is clear from the judgment of Finlay Geoghegan J. in Kelly and fromthe judgment of Clarke C.J. in Connelly that there are four requirements which must besatisfied namely:-(a) In the first place, the appropriate assessment must identify, in the light of the bestscientific knowledge in the field, all aspects of the development project which havethe potential, either as a consequence of the development itself or in combinationwith other plans or projects to affect the European site in the light of itsconservation objectives;(b) Secondly, there must be complete, precise and definitive findings and conclusionsregarding the previously identified potential effects on any European site. Thisrequires findings to be made following appropriate analysis and evaluation each inPage 8 ⇓the light of the best scientific knowledge in the field. The findings and conclusionscannot have any lacunae or gaps;(c) Thirdly, on the basis of those findings and conclusions, the planning authority, if itis to grant permission for the development, must be able to determine that noreasonable scientific doubt remains as to the absence of the identified potentialeffects. It is clear from the decision of Finlay Geoghegan J. in Kelly (in para. 48 ofher judgment) that these findings must be appropriately recorded. In particular,Finlay Geoghegan J. said:-“In accordance with the CJEU decision in Sweetman, it is for the nationalcourt to determine whether the appropriate assessment (including thedetermination) was lawfully carried out or reached, and to do so, it appearsto me that the reasons given for the Board’s determination in an appropriateassessment must include the complete, precise and definitive findings andconclusions relied upon by the Board as the basis for its determination. Theymust also include the main rationale or reason for which the Boardconsidered those findings and conclusions capable of removing all scientificdoubt as the effects of the proposed development on the European siteconcerned in the light of … its conservation objectives. In the absence ofsuch reasons, it would not be possible for a court to decide whether theappropriate assessment was lawfully concluded or whether the determinationmeets the legal test required by the judgments of the CJEU”; and(d) Fourthly, where these requirements are satisfied, the planning authority maydetermine that the proposed development will not adversely affect the integrity ofany relevant European site and will not be prevented from granting permission onArticle 6 grounds.The statement of grounds20. In the statement of grounds, the applicant complains that the respondent failed to carryout an appropriate assessment. The case made overlaps with the applicant’s complaints inrelation to EIA and, for that reason, it may be convenient, at this point, to summariseboth elements of the applicant’s case. In making that case, the applicant has made thefollowing points:-(a) In para. 4 of the statement of grounds it is alleged (in quite general terms) thatthere was a failure to carry out and record any or any adequate EIA in respect ofthe proposed development.(b) In para. 9 of the statement of grounds, it is alleged that the respondent has failedto engage with its obligation to maintain and restore the habitat of the freshwaterpearl mussel. It is alleged that the respondent has taken an entirely differentapproach in this case to the mitigation measures (necessary to ensure that thereare no adverse effects on the mussel) to the approach taken in other cases where itis alleged more extensive measures were required to be put in place. In thisPage 9 ⇓context, the applicant contends that the mitigation measures which the respondenthas found to be satisfactory in this case are “different and significantly lessadvanced than those considered (and indeed considered insufficient) in other cases.Reference is made to the refusal by the respondent in respect of an appeal inrespect of a wind farm in Doonbeg and to the decision of the Board the subject ofthe proceedings in People Over Wind v. An Bord Pleanála [2014] IEHC 487”. Inparticular, the applicant points to the conditions imposed in the People Over Windcase that the mitigation measures should ensure that there would be zero siltemissions from the development. It should be noted that silt emissions areparticularly deleterious to the freshwater pearl mussel and to the salmonids whichare so essential for the successful reproduction of the mussel;(c) It is also alleged that the assessment was conducted on the basis of inadequateinformation and inadequate surveys of the receiving environment. Having regardto the deficiencies and uncertainties identified in the objections to the applicationfor planning permission made to the County Council, and the further deficienciesidentified by the observers to the appeal, it is alleged that it was not possible forthe respondent to conduct any proper or lawful appropriate assessment. In supportof this contention in the Statement of Grounds, Mr. Fred O’Sullivan (who swore theverifying affidavit on behalf of the applicant) explained in para. 9 of that affidavitthat a large number of observations were made to the respondent. These includedobservations from local individuals, An Taisce, Birdwatch Ireland, Raptor LIFEProject, Towercorn Ltd, Duhallow Environment Working Group and the Irish RaptorStudy Group. For example, in the submission made by the Irish Raptor StudyGroup (authored by Dr. Allan Mee together with two others) reference was made tothe fact that in 2017 a second breeding pair of hen harriers was identified withinthe proposed windfarm area on Barna Bog (which had not been identified in thematerial submitted by Silverbirch). Furthermore, in the submission made by theDuhallow Environment Working Group, attention was drawn to the proximity of theproposed development to the Blackwater SAC. The submission referred to siltentering the river from another windfarm then under construction and it highlightedthe danger to the freshwater pearl mussel which, the submission explained are“highly endangered and require clean water [to] survive”.(d) It is also alleged that the respondent, in adopting the report of its inspector, did notcarry out any adequate appropriate assessment. It is alleged that the report is“wholly deficient” and that it fails to provide any complete, precise and definitivefindings in the context of appropriate assessment. Complaint is made, in particular,that the inspector, in purporting to carry out an appropriate assessment, appears tohave relied significantly (if not entirely) on the EIA carried out (which is recorded inthe same report). The applicant makes the point that an EIA and an appropriateassessment are conducted to a different standard and necessarily have a differentfocus. It was accordingly submitted in the course of the hearing that the inspector(and therefore the respondent itself) had applied the wrong standard in purportingto carry out the appropriate assessment.Page 10 ⇓(e) As pleaded in paras. 13 and 15 of the Statement of Grounds, the applicant makesthe case that the conclusion of the inspector (and thus of the respondent itself) inrespect of the hen harrier focussed entirely on the omission of turbines T8 and T9.This point is made both in respect of the appropriate assessment issue and inrelation to the EIA issue. In particular, it is alleged that the inspector offered noassessment at all of the effects of the remaining twelve turbines on the hen harrier.The case made by the applicant is that no assessment whatever was made of thedevelopment of twelve turbines and related infrastructure for which permission wasgranted by the respondent.(f) Again, with respect to the hen harrier, it is contended that the language used bythe inspector (and thus by the respondent itself) is vague and uncertain and thatthis is not appropriate in the context of appropriate assessment. It is alleged thatthere are no actual findings, let alone complete findings. In this context, theapplicant draws attention, for example, to the observation made by the inspector,in the course of his report, that he was “inclined to conclude that the Barna area isof local importance to the hen harrier”.(g) With regard to the hydrological and hydrogeological impacts of the development, itis alleged that the assessment of the inspector at p. 122 of his report is utterlyinadequate. It is alleged that the report does not deal at all with any of the speciesfor which the Blackwater SAC was designated. In particular, it is alleged that,notwithstanding the view of the County Council that the mitigation measuresproposed were unsatisfactory, the inspector (and thus the respondent) did not evenset out what the mitigation measures are. It is also alleged, accordingly, that it isnot clear on what basis the inspector could be said to be satisfied beyond areasonable scientific doubt that the mitigation measures will be effective.(h) It is also alleged that the mitigation measures themselves are unclear anduncertain and that most of them have been left over to be agreed post consent. Inthe particular context of the freshwater pearl mussel it is alleged that it is entirelyunclear how the mitigation measures will operate to protect the species (which, asnoted above, is highly sensitive to waterborne sediment and siltation). The case ismade that condition 17 in particular imposes no more than a requirement to followgeneric construction techniques and that the condition is contrary to law havingregard to the provisions of the Habitats Directives and the decision of the CJEU inCase C-416/17 Holohan. It is alleged that the condition does not prescribe anyspecific level of sediment; nor does it prescribe any actual mitigation.The challenge to the late delivery of expert evidence by the applicant21. As noted in para. 20 (b) above, the Statement of Grounds was verified and supported byan affidavit sworn by Fred O’Sullivan on behalf of the applicant on 30th January, 2019.Thereafter, Silverbirch made an application to admit the proceedings into the CommercialList. An order to that effect was made by Haughton J. on 11th March, 2019. In thatorder, the court, in accordance with an agreed directions timetable, directed thatopposition papers should be filed by 15th April, 2019, a replying affidavit on behalf of thePage 11 ⇓applicant (if required) should be filed by 27th May, 2019 and thereafter any replyingaffidavits by the respondent or the notice parties should be delivered by 17th June, 2019.There was some slippage in that timetable in that the opposition papers on behalf of therespondent were not filed until 29th April, 2019. As a consequence, the timetable wasadjusted. The last adjustment made to the timetable is recorded in an order made by meon 31st July, 2019 which extended the time for filing of the replying affidavit on behalf ofthe applicant to 7th August, 2019 following which the submissions of the parties were tobe exchanged.22. On 27th August, 2019 two additional affidavits were filed on behalf of the applicant, onewas sworn by Dr. Allan Mee (who had been one of the authors of the submission made tothe respondent by the Irish Raptor Study Group). Dr. Mee is a zoologist and aprofessional ornithologist and his affidavit, consisting of 69 paragraphs, deals extensivelywith the hen harrier and with the impacts of the proposed development on that bird. Theaffidavit also raised issues in relation to merlins, bats, woodcock, red grouse and theshort-eared owl. He also raised issues in relation to cumulative impacts of thedevelopment along with other windfarm developments in the vicinity. The affidavit alsocontains a number of criticisms of the approach taken by the inspector and therespondent.23. The second affidavit was sworn by Darren Reidy who is an ecologist with a particularinterest in wetland and aquatic habitats. As his affidavit makes clear, Mr. Reidy isassociated with the Duhallow Environment Working Group (which also made submissionsto the respondent in the course of the appeal). His affidavit, comprising 59 paragraphs,deals extensively with the freshwater pearl mussel, the proximity of the knownpopulations of the mussel to the proposed windfarm, and the threats facing the long-termsurvival of the mussel. He highlights that the national population of the mussel is indecline as a result of eutrophication and sedimentation of habitat. As I understand it,eutrophication arises as a consequence of algal growth which uses up oxygen in thewater. The affidavit also contains a critique of the approach taken by the respondent andMr. Reidy also addresses and takes issue with the extent of the mitigation measuresproposed. In common with Dr. Mee, Mr. Reidy also raises issues in relation to cumulativeimpacts. He also raises questions in relation to impacts on salmon, lamprey, plantsurveys and flora assessment (specifically Japanese knotweed and giant rhubarb).24. Neither of these new affidavits could, by any stretch, be considered to be by way of areply to the affidavits sworn on behalf of the respondent and Silverbirch. In substanceand in form, they do not even purport to respond to the averments made by Mr. PierceDillon in his affidavit sworn on behalf of the respondent or to the averments made by Mr.Damien Courtney in his affidavit sworn on behalf of Silverbirch. They also canvass anumber of issues which are not raised in the Statement of Grounds at all. In this context,in the course of the hearing before me, counsel for the applicant very properlyacknowledged that the applicant is not entitled to advance a case which is not pleaded inthe Statement of Grounds. In their written submissions delivered in advance of thehearing and in the course of oral argument at the hearing, both the respondent andPage 12 ⇓Silverbirch have strongly objected to the admission of the affidavits sworn by Dr. Mee andMr. Reidy.25. Counsel for the applicant submitted that there is no obligation on a party in theapplicant’s position to file all of the evidence to support the case made within the relevanteight-week period allowed for the bringing of judicial review proceedings. Counsel arguedthat an applicant cannot be expected to source and engage experts in that timeframe. Healso suggested (although there was no affidavit evidence on behalf of the applicant inthese proceedings to this effect) that an applicant seeking judicial review can have greatdifficulty in sourcing an appropriate expert and persuading that expert to provide expertopinion evidence. Some latitude should be allowed for that purpose. Counsel alsosuggested that there was no prejudice to the respondent or to Silverbirch.26. In my view, there may well be cases where there is a genuine difficulty in obtainingevidence from an appropriate expert within the relatively short period of time allowed fora challenge to a decision of the respondent. Where that occurs and where such expertevidence is necessary, one would expect that an applicant would, at the very least, makeclear in the Statement of Grounds and verifying affidavit that it is intended to support thecase by reference to expert evidence. In such circumstances, both the court and therelevant respondent and notice party would be put on notice of the applicant’s intentionand would have an opportunity to address, by means of appropriate directions, a timelinefor the delivery of such evidence and any necessary response from the respondent andnotice party. However, that is not what occurred here. There was no suggestion made atany point prior to August 2019 that stand-alone expert evidence would be adduced onbehalf of the applicant. The directions given by the court (on the basis of an agreementbetween the parties) merely envisaged the delivery of a replying affidavit. As notedabove, the affidavits of Dr. Mee and Mr. Reidy are not by way of reply to the oppositionpapers and verifying affidavits filed on behalf of the respondent and Silverbirch. In truth,both affidavits are stand-alone affidavits which make no attempt to address what wassaid in the opposition papers.27. Moreover, it is manifest from the affidavits of Dr. Mee and Mr. Reidy that they were bothassociated with groups who participated in the appeal process before the respondent andmade submissions to the respondent. In circumstances where both the Irish RaptorStudy Group and the Duhallow Environment Working Group had participated in theappeal, they were already fully familiar with the documents filed in the course of theappeal and in particular were familiar with the nature of the proposed development andthe Natura 2000 interests which they believed could be adversely affected by theproposed development. No explanation has been furnished as to why, in thosecircumstances, it was not possible to obtain affidavits from Dr. Mee and Mr. Reidy at theoutset or, at the very least, at an early stage in these proceedings.28. With regard to the suggestion made by counsel for the applicant that no prejudice hasbeen suffered by the respondent and Silverbirch, it is important to bear in mind that, ascounsel for the respondent highlighted, in the course of her submissions, the affidavitsPage 13 ⇓(comprising 128 paragraphs in total) were delivered in the middle of the long vacation inrelation to a Commercial Court case which was due to commence on the second day ofterm. The arguments made in both affidavits are extensive. As counsel said they are“roving”. I believe counsel was correct to suggest that they bear all the hallmarks ofauthorship by someone who has taken a microscope to try and find any point that couldpossibly be made and then to cover those points in extenso in the affidavits.Notwithstanding the very proper confirmation by counsel for the applicant that theapplicant cannot go beyond the case made in the Statement of Grounds, no attempt ismade in the affidavits by either deponent to confine themselves to the matterscomplained of in the Statement of Grounds.29. In my view, there is significant force in the point made by counsel for the respondentabout the timing of the delivery of the affidavits. They were delivered at a time whichmade it virtually impossible to respond to them while, at the same time being in aposition to maintain the hearing date of 8th October, 2019 (namely the second day ofMichaelmas term). In this context, it seems to me that, contrary to the submissionsmade by counsel for the applicant, there is a real prejudice to the respondent and thenotice party by reason of the late delivery of affidavits of this kind. The nature of thisprejudice was described by Clarke J. (as he then was) in Woori Bank v. KDB (Ireland) Ltd[2006] IEHC 156 as “logistical prejudice”. That observation was made in the context ofan application to amend a pleading. It is generally accepted that a relatively liberalapproach should be taken to such applications (as the judgment of the Supreme Court inCroke v. Waterford Crystal [2005] 2 I.R. 283 makes clear). However, notwithstandingthis liberal approach, Clarke J. identified that such an application could be refused incircumstances where prejudice (including “logistical prejudice” as explained by him in hisjudgment) would be caused to the opposing party. At para. 4.2 of his judgment in thatcase, Clarke J. explained the position as follows:-“4.2 a party may be able to persuade the court that what I might call logistical prejudicewould occur if the amendment is allowed. This will particularly be the case wherethe amendment is sought at a very late stage and could have the effect ofsignificantly disrupting the intended proceedings. In such cases it may be that anamendment which could properly have been made at an earlier stage might berefused because to permit the amendment would have the effect of so altering animminent trial as to require a significant adjournment to the prejudice of the partyagainst whom the amendment is sought. It may well be that in the context ofmodern case management and the undoubted intention of the rules applicable tothe Commercial Court (which rules are obviously predicated on an efficient andmanaged pre-trial process coupled with an early trial of the issues) that suchlogistical prejudice may loom larger in the considerations of the court.The effectiveness of case management can be significantly reduced if parties whodo not comply with the directions of the court can escape the consequences of suchfailure without significant adverse results. Similarly belated applications to amend(after, for example, the parties have filed witness statements and the like) canPage 14 ⇓have a significant effect on the ability to conduct a trial in a timely and orderlyfashion. In that context it should also be noted that the nature of the relief soughtcan be a material factor in assessing the adverse consequences of a delay in trial.For example, claims for a specific performance or other similar proceedings (whoseexistence can have an effect on the ability of parties to deal in a commercial fashionwith their assets) should be disposed of as quickly as possible and amendmentswhich could have the effect of significantly delaying such proceedings can, in anappropriate case, give rise to a significant degree of what I have described aslogistical prejudice”.30. Although those observations were made in the context of an application to amend, itseems to me that very similar considerations arise here where, without any prior warning,expert evidence (particularly extensive expert evidence of the kind set out in theaffidavits of Dr. Mee and Mr. Reidy) is delivered at a very late stage in the proceedingswhen a trial is imminent and when the opposing parties would have no ability to respondto those affidavits without putting the trial date in jeopardy. As noted previously, there isno basis on which it could plausibly be suggested (and counsel for the applicant verywisely did not make the suggestion) that the affidavits are in the nature of a reply to thecase made by the respondent and Silverbirch in their respective opposition papers.31. The loss of a date for a trial is a significant prejudice in the context of proceedings of thiskind. Trial dates are allocated well in advance of a trial. If a trial cannot proceed on thedate allocated to it, it may take many months before the court is in a position to allocatea new trial date. In this case, the trial date was fixed in March 2019 on the basis of thedirections (agreed between the parties at that time) recorded in the order of Haughton J.I have no doubt that, in March 2019, there were ample trial dates available in Michaelmasterm 2019. However, by the time these affidavits were delivered in August 2019, the trialdates for Michaelmas term were already fully allocated. It would not have been possibleto secure a new trial date for a four day hearing before Hilary term 2020 at the veryearliest. This would be a particular prejudice in a case of this kind in circumstanceswhere, as the relatively short timeframe for challenge provided by the 2000 Actdemonstrates, the underlying legislative intention is that challenges of this kind should bedealt with promptly.32. The observations of Clarke J. apply with even added force in the context of proceedingswhich are brought pursuant to such statutory provisions and against a backdrop wherethe Commercial Court has already been persuaded that the proceedings are of sufficienturgency to merit entry into the Commercial List and case management by the judge incharge of that list. In para. 13 of the affidavit of Damien Courtney grounding theapplication for admission of the proceedings into the Commercial List, Mr. Courtneystated:-“13. Given the importance of the Silverbirch Windfarm to meeting the State’s targets forgreenhouse gas emission reduction and renewable energy sources, the capitalexpenditure incurred to date, the further expenditure to complete the project, thePage 15 ⇓long delay in the planning process already in the proposed new [RenewableElectricity Support Scheme], the awaited decision on connections after ECP-1 andthe deadlines for lease options, Silverbirch is very anxious to have the withinchallenge to the permission granted dealt with as expeditiously as possible. Havingthe within proceedings case managed within the Commercial List … is, I say andbelieve, the most effective way in which to achieve this outcome”.33. Against that backdrop, it is striking that the affidavits of Dr. Mee and Mr. Reidy weredelivered nine months after the decision of the respondent which is now the subject of thechallenge in these proceedings. In my view, the delay in this case is such and the timingof delivery of the affidavits is such that it was incumbent on the applicant, if it wished tobe in a position to rely on such affidavits, to fully explain and justify their delivery at sucha late (and crucial) stage of the proceedings. No satisfactory explanation or reason hasbeen put forward to justify the late delivery of these affidavits. The timing of the deliveryof the affidavits is not addressed anywhere on oath by the applicant. In light of the failureto properly explain and justify the delivery of these affidavits, I am left with no alternativebut to exclude them from consideration. In the absence of an objectively justifiableexplanation for their late delivery, the logistical prejudice to the respondent andSilverbirch is such that the affidavits must be excluded.34. If I have correctly understood the submissions of counsel for the applicant, there appearsto have been an apprehension that, without expert evidence, the applicant could finditself without any evidence to support the case made in the Statement of Grounds. Thisconcern appears to have arisen as a consequence of the approach taken by White J. in AnTaisce v. An Bord Pleanála [2015] IEHC 633 and by O’Neill J. in Harrington v. An BordPleanála [2014] IEHC 232. In both of those judgments, judicial review proceedings weredismissed on the grounds that the relevant applicant had failed to prove the case madeby it in its Statement of Grounds. In Harrington, the applicant failed to provide anyevidence to support her contention that the site in question was a priority habitat. In AnTaisce, the relevant applicant (Friends of the Irish Environment) had failed to provide anyevidence to substantiate a bald assertion on affidavit that the extraction of peat on bogssupplying the Edenderry Power Plant is likely to have significant effects on the RiverBarrow and River Nore SAC. However, if there was such a concern in this case, it existedat the outset of these proceedings. On the facts, there is no reason to suppose that sucha concern could not have been addressed by filing affidavits from Dr. Mee and Mr. Reidyin early course. Moreover, it is difficult to see that such a concern could be said to arisein this case. It is clear from the entire process that took place in the course of the appealbefore the respondent and from the approach taken both by the respondent andSilverbirch in these proceedings that it was acknowledged that the position of the henharrier and the freshwater pearl mussel would have to be considered and that a Stage 2appropriate assessment would have to be carried out which involved the requirement thatthe respondent be satisfied beyond any reasonable scientific doubt that the developmentwill not adversely affect either of these endangered species. The concerns in relation toboth species were specifically raised by a number of participants in the process. Therewas no dispute between the parties that the hen harrier is a special conservation interestPage 16 ⇓for the purposes of Stacks SPA or that the development site lies adjacent to part of theboundary of the SPA. Likewise, there was no dispute between the parties in this caseabout the fact that the proposed site is hydrologically connected to the Blackwater Riverand that the potential exists for indirect impacts on the Blackwater SAC and on thefreshwater pearl mussel in particular. Accordingly, I can see no basis for theapprehension voiced by counsel for the applicant that, without expert evidence, theapplicant could find itself unable to advance the case made in its statement of grounds.35. In the circumstances, it is unnecessary to consider the further arguments advanced bythe respondent and Silverbirch in relation to the admissibility of the affidavits of Dr. Meeand Mr. Reidy. For completeness, it should be noted that it was strongly urged by therespondent, as an additional basis for contesting the admissibility of the late affidavits,that the affidavits contained material which had never been placed before the respondentin the course of the appeal. Reliance was placed on the decision of Murphy J. in Hennessyv. An Bord Pleanála [2018] IEHC 678 and the decision of Haughton J. in People Over Windv. An Bord Pleanála [2015] IEHC 271. In both of those cases the court took the view thatany affidavit evidence containing new material which was not before the respondent couldnot be considered by the court in a judicial review challenge to a decision of therespondent. It is true that in the latter case, the court granted the applicant leave toappeal to the Court of Appeal on a number of questions pursuant to s. 50A (7) of the2000 Act including a question as to whether, in reviewing the decision of the respondent,in respect of appropriate assessment, the court was confined to a consideration ofmatters that were before the respondent. In People Over Wind v. An Bord Pleanála[2015] IECA 272 the Court of Appeal did not consider it necessary to determine thatquestion. In those circumstances, counsel for the applicant contended that the questionremained open. However, as matters currently stand and, in the absence of any decisionof the Court of Appeal or the Supreme Court to the contrary, the legal position is as setout in the judgments of Murphy J. and Haughton J. and, accordingly, if it were necessaryto decide this issue, I would be compelled, in accordance with the principles set out in ReWorldport Ireland Ltd (in liquidation) [2015] IEHC 189 to take the same approach here.In light, however, of my view that the affidavits are not admissible in any event, it doesnot seem to me to be necessary to make any formal determination in relation to thisaspect of the objection raised by the respondent and Silverbirch to the admission of thelate affidavit. I merely observe that, as a High Court judge, I am obliged to followdecisions of my colleagues in the High Court, in particular, decisions of such recentvintage which were arrived at following a careful consideration of the issues. Forcompleteness, I should also make clear that I entirely agree with the views expressed byMurphy J. and Haughton J. in those cases. For the court to entertain material that wasnot placed before the respondent runs the risk of subverting the role of the court inproceedings of this kind. The court is not engaged in a de novo hearing. The court doesnot itself carry out an appropriate assessment. That is a matter entirely for therespondent. It is not for the court to conduct an appropriate assessment on differentmaterial to what was before the respondent in order to reach a different conclusion. Thetask of the court is to assess whether the respondent, in purporting to carry out anPage 17 ⇓appropriate assessment, has complied with the requirements summarised in para. 19above.36. In light of the conclusions which I have reached in paras 29 to 35 above, I must considerthe case on the basis of the Statement of Grounds and the affidavit of Mr. O’Sullivantogether with the affidavits and materials placed before the court by the respondent andSilverbirch. I do not propose to consider the affidavits of Dr. Mee or Mr. Reidy save toobserve that, while the affidavits go beyond the Statement of Grounds in a number ofrespects, there are significant parts of the affidavits which are consistent with theStatement of Grounds. In circumstances where, it will be necessary, in any event, toaddress the Statement of Grounds, the applicant can therefore be assured that the casewhich it makes will still be determined notwithstanding the exclusion of these twoaffidavits. Given that counsel for the applicant has, as previously noted, very properlyconceded that the applicant is confined to the case made in the Statement of Grounds, Ido not believe that the applicant is, in truth, disadvantaged by the exclusion of theseaffidavits.Some subsidiary issues raised by the applicant in relation to the assessment carriedout by the respondent37. It is next necessary to consider, in the context of the case made in the Statement ofGrounds, whether the assessment carried out by the respondent complies with therequirements summarised in para. 19 above. Before doing so, it may be helpful, at thispoint, to dispose of one aspect of the case made by the applicant. This relates to anaspect of the case summarised in para. 20 (c) above. During the course of the hearing, itwas suggested by counsel for the applicant that the respondent had failed to take intoaccount the submissions made by some of the observers who participated in the course ofthe appeal including the Irish Raptor Study Group and Duhallow Environment WorkingGroup. In this context, I note the submission made by counsel for the respondent thatthe task facing the respondent carrying out an appropriate assessment in an appeal ofthis kind is not to address submissions as such but the specific issues that arise in thecontext of the Habitats Directive. Counsel for the respondent referred to the decision ofCostello J. in O’Brien v. An Bord Pleanála [2017] IEHC 773. In that case, the issue arosein the context of an EIA rather than in the context of appropriate assessment. However,it was submitted by counsel for the respondent that similar considerations apply in thecontext of appropriate assessment where the focus of the planning authority will be onthe qualifying interests in the protected site and the potential impacts of the developmenton those interests. In O’Brien, Costello J. said at paras. 44-45:-“44. The implications of the submissions of the applicants in this case are that theInspector and the Board must examine, analyse and evaluate each of thesubmissions or observations validly made to the Board. This is not what is requiredby either the EIA Directive or the Act of 2000, which simply requires that the directand indirect effects of a proposed development be so assessed, not the submissionsor observations. The arguments advanced by the applicants leads to a result whichwould render the provision of s. 172(1J) (c) effectively otiose. Why would theOireachtas stipulate that the planning authority or the Board had an obligation toPage 18 ⇓consider the submissions and observations submitted by third parties before theplanning authority or the Board informed the public of the main reasons andconsiderations for their decision, if they were already obliged to examine, analyseand evaluate the individual submissions and observations and make thatassessment available to the public under the provisions of s. 172(1J) (b)?45. In my judgment it was not necessary for the Board (or the Inspector) to examine,analyse or evaluate the Bowdler Report or the points made in the report or theexperience of the applicants (or their neighbours) in relation to noise in order tocarry out a lawful EIA. It is sufficient that there is an examination, analysis andevaluation of the direct and indirect effects (including the noise implications) of theproposed development on the environment as set out in … the Inspector’s report.”38. In my view, the approach outlined in O’Brien must now be treated with some caution inlight of the very recent decision of the Supreme Court in Balz v. An Bord Pleanála[2019] IESC 90 where O’Donnell J. (albeit not specifically in the context of either EIA orappropriate assessment) observed at para. 57:-“57. the submission was rejected in limine on the basis of a determination that thematters contained therein were irrelevant. It is a basic element of any decision-making affecting the public that relevant submissions should be addressed and anexplanation given why they are not accepted, if indeed that is the case. This isfundamental not just to the law, but also to the trust which members of the publicare required to have in decision making institutions if the individuals concerned,and the public more generally, are to be expected to accept decisions with which, incases, they may profoundly disagree, and with whose consequences they may haveto live. …” (emphasis added).I do not, however, believe that this always requires that every submission made to therespondent should be individually addressed in a decision of the respondent or in a reportof an inspector which precedes such a decision. What seems to me to be crucial is thatthe points made in submissions should be addressed. In circumstances where there willfrequently be an overlap between submissions made by one observer and another, itseems to me that it would not be necessary to address every submission by name so longas the substantive points made in the submissions are each appropriately addressed. Asnoted in para. 19 above, it is a crucial part of the exercise which the respondent is obligedto carry out, in the context of appropriate assessment, that there should be complete,precise and definitive findings and conclusions regarding any identified potential effectson the qualifying interests of any European site.39. For completeness, it should be noted that the inspector, at pp. 46-49 of his report, notedthe 28 observations that had been received from interested parties during the course ofthe appeal and summarised the principal points made. Among the points highlighted bythe inspector in this section of the report included concerns in relation to the hen harrier,the potential loss of breeding and foraging habitat for hen harriers, displacement anddisturbance during both construction and operational phases and collision risk; thePage 19 ⇓inspector also highlighted concerns with regard to the potential for landslides and peatslippage and the associated ecological pollution; and the inspector also drew attention tothe concerns that had been expressed that construction of the development would likelyhave a detrimental effect on water quality and the hydrological regime of the area withadverse downstream impacts on aquatic habitats including the Blackwater SAC whichsupports a population of freshwater pearl mussel.40. It may also be convenient at this point to address a further concern that was highlighted,in particular, during the course of the submissions made by counsel for the applicant.This relates to the case made by the applicant that none of the concerns of the CountyCouncil in relation to appropriate assessment are addressed in the inspector’s report.This submission needs to be put in context. It is clear from a consideration of the reportthat the inspector carefully summarised the planning history and the particular history ofthe unsuccessful application to the County Council for permission which led to the appeal.Section 4 of the inspector’s report addresses the process before the County Council insome detail summarising, inter alia, the decision of the County Council and the reasonsfor it and also summarising the reports of the County Council planning department(including the report relating to the environment which considers the freshwater pearlmussel) and the report of the biodiversity officer of the County Council that addressesboth the impact on the Blackwater SAC and the impact on the Stacks SPA. However,counsel for the applicant submitted that, thereafter, when the inspector came to carry outthe assessment for the purposes of Article 6 of the Habitats Directive, there was noreference back to the concerns of the County Council in relation to the impact of thedevelopment on the freshwater pearl mussel and the loss of hen harrier hunting habitat.41. In my view, this submission on behalf of the applicant is mistaken. It is clear from aconsideration of s. 37 (1) (b) of the 2000 Act that an appeal to the respondent requiresthe respondent to treat the appeal as though it were an application that had been madeto it in the first instance. Insofar as relevant, s. 37 (1) (b) provides as follows:-“…where an appeal is brought against a decision of a planning authority…, theBoard shall determine the application as if it had been made to the Board in thefirst instance and the decision of the Board shall operate to annul the decision ofthe planning authority as from the time when it was given …”.42. While the analogy is not perfect, the position of the respondent on an appeal from aplanning authority is not unlike the position of the High Court on an appeal from theCircuit Court under s. 38 (2) of the Courts of Justice Act, 1936 (save to the extent thatthe High Court, on such an appeal, is confined to hearing from the same witnesses inrelation to the same subject matter as gave evidence in the Circuit Court). The HighCourt hears such appeals without any reference to the decision actually made by theCircuit Court and reaches its own decision on the evidence heard afresh by it. Ifanything, the position of the respondent on an appeal from a planning authority is evenbroader than the position of the High Court on an appeal from the Circuit Court. In thePage 20 ⇓case of the respondent, it can entertain observations from persons and bodies who didnot participate in the original application before the planning authority.43. It is therefore unsurprising that the inspector, in his report dealing with appropriateassessment, would not refer back to the decision of the County Council or the approachtaken by the County Council. It is, in any event, clear from a consideration of the reportof the inspector that he did, as part of his assessment, have regard to the concerns thatwere voiced in relation to the freshwater pearl mussel and the hen harrier. The questionis whether the assessment carried out by the inspector (and by extension the respondent)complied with the requirements summarised in para. 19 above. It is to that issue towhich I now turn.The assessment carried out by the inspector and the respondent44. As noted in para. 19 above, there are four requirements which must be satisfied for thepurposes of carrying out a valid appropriate assessment. As highlighted by Clarke C.J. inConnelly at para. 8.16, a valid appropriate assessment decision is a necessary pre-condition to a planning consent in cases where appropriate assessment is required. It istherefore necessary, in the present case, to consider each of the requirementssummarised in para. 19 above. I deal below with each of those requirements in turn.Did the assessment identify, in the light of the best scientific knowledge, all aspects ofthe development which could adversely affect the hen harrier or the freshwater pearlmussel?45. In light of the case made in the statement of grounds, it seems to me that this questionarises solely in relation to the hen harrier and freshwater pearl mussel since they are therelevant interests, the subject of the Stacks SPA and the Blackwater SAC respectively,which are in issue in these proceedings. It is clear from the report of the inspector in thiscase that these interests were at the forefront of his consideration of the application.Potential impacts on the hen harrier46. With regard to the hen harrier, the inspector noted that, in common with other protectedspecies under the Birds Directive, the likely potential impacts on bird populations withinthe development site area would typically include:-(a) The disturbance of bird communities within the site and the surrounding area whichmay lead to the desertion of nest sites during the breeding season or avoidance ofthe site by new and returning birds for breeding purposes;(b) The direct loss of habitat from the construction of the turbine bases and hardstanding area;(c) The indirect habitat loss through site development works near the turbine locationsand on access tracks to the site which may reduce the extent of suitable habitatlocations;(d) The risk of collisions with turbine blades.Page 21 ⇓47. It is important, in this context, to note that these impacts are discussed in relation to thesite area as a whole. The observations are not confined to the area in the immediatevicinity of turbines T8 and T9 located on or near Barna Bog. Thereafter, at p.p. 81-85 ofthe report, the inspector addresses the potential impacts on the hen harrier in moredetail. He deals, first, with direct disturbance of nesting birds. The inspector notes that itis acknowledged in the EIS that breeding hen harriers could be disturbed if turbines wereto be constructed in close proximity to nesting territories. The inspector records thatsurveys carried out in 2016 and 2017 identified the presence of one territorial pair of henharriers within the Barna Bog area approximately 700 metres northwest of the nearestproposed turbine which successfully raised two juveniles. While the applicant drawsattention to the fact that the observations made by the Irish Raptor Study Groupidentified one additional breeding pair in this area, I do not believe that this is material inthe context of the identification of the impacts of the development. The key point is thatthe inspector identified the potential impact of the development on breeding pairs.Whether that is one pair or two pairs is not material. The potential for adverse impacts isthe same whether one is dealing with one or more pairs of hen harrier. The inspectornoted that it was in this context that the Department of Arts, Heritage, Regional, Ruraland Gaeltacht Affairs (“the department”) submitted that, in light of this information,turbines T8 and T9 should be omitted. The inspector recorded that the department hadmade this submission in circumstances where those turbines were located within 1km ofthe SPA in an area used regularly by hunting hen harriers and that the loss of huntinghabitat due to disturbance/displacement and mortality attributable to collision aresignificant risks which cannot be ruled out.48. The inspector also identified on p. 82 that the availability of prey for hunting hen harrierscould be reduced as a result of habitat loss following construction or through disturbanceduring the construction phase. The inspector noted in particular that three bird species(which make up a substantial proportion of the hen harriers’ diet) have been recordedbreeding within the proposed development site. This observation was made by theinspector in respect of the entire site and is not confined to the immediate area aroundturbines T8 and T9. In this context, the inspector, at p. 83, said that he would “reiteratethe concerns raised by the Department…that hen harriers will be displaced from huntinghabitat within 250m of operational wind turbines”.49. The inspector next dealt with mortality due to collision with turbines. The inspector notedthat a submission had been made that the hen harriers are well known to fly at lowerelevations (below ten metres in height) when hunting and flights at higher elevations willusually only occur when the birds are returning to the nest, performing display flights, orsimply when flying from one location to another. However, the inspector noted inparticular that juvenile hen harriers are initially quite clumsy and unskilled in the air andthus would be at a greater risk of collision. The inspector also noted that the majority ofhen harrier flying activity recorded within both the development site itself and the 2016study area was below 30 metres in height. The inspector explained that this had led to asubmission being made that the risk of collision with the proposed turbines is consideredto be low. However, the inspector added the observation that the collision risk forPage 22 ⇓juvenile birds from a nest within 500 metres of a turbine “could be much higher”. Theinspector also noted the submission made by the department that there was evidence inthe previous two-year period of hen harrier mortality within the Stacks SPA due tocollisions with turbine blades and that, as a consequence, the risk of collision may havebeen underestimated in previous studies.50. At p. 84, the inspector addressed the issue of site avoidance by foraging harriers leadingto habitat loss. He referred to a number of studies which gave rise to mixed results whichsuggested that in some cases there was avoidance of an area of least 250m from aturbine while in other instances birds had been noted hunting within 50-100 metres ofturbines. The inspector noted that the department had rejected the suggestion made bythe applicant that hen harriers would continue to hunt and had advised that hen harriers“will be displaced from using hunting habitat within 250m of operational wind turbines(which would seem to correspond with the UK study referenced in the EIS)”. Theseobservations by the inspector must be read in conjunction with his observations inrelation to the availability of prey for hunting (summarised in para. 48 above). As notedin para. 48, three bird species (which are an important source of prey for the hen harrier)have been recorded breeding on the development site.51. At p.p. 84-85, the inspector then sets out his conclusions as to the actual impact of thedevelopment on the hen harrier albeit that the applicant contends that this assessment ismanifestly insufficient and, in particular, does not address anything other than theimmediate area of Barna Bog and turbines T8 and T9. That is an issue that I will addresswhen I come to consider the next element of the Article 6 (3) requirements. At this point,I will confine my consideration to the first element of those requirements.52. I should also make clear that p.p. 81-85 of the inspector’s report is in the immediatecontext of the EIA carried by the inspector. However, on p. 118 of his report, theinspector expressly refers back to this section of the report for the purposes ofidentifying, in the context of appropriate assessment, the potential impacts of thedevelopment on the hen harrier. I do not believe that the inspector can be faulted fortaking that course. It is an entirely logical and sensible course to adopt once all relevantpotential impacts for the purposes of appropriate assessment have been identified.53. In my view, the inspector has very comprehensively and fairly identified the potentialimpacts that arise for the hen harrier and, in the course of the hearing before me, no onehas identified a potential impact which has been omitted or overlooked.The potential impacts on the freshwater pearl mussel54. Insofar as the freshwater pearl mussel is concerned, the potential impacts on it areaddressed at p.p. 87-90 of the inspector’s report. The inspector considers a number ofsurveys of the River Blackwater dealing with the presence of the pearl mussel. Theinspector highlights, in particular, the additional impact assessment appended to thegrounds of appeal which had clarified that, while previously, the nearest recordedfreshwater pearl mussel in the River Blackwater were at or near Lisheen Bridge, apopulation of 21 mussels had been observed close to Scrahan approximately 2.6kmPage 23 ⇓hydrologically downstream of the site boundary (and closer than those previouslyrecorded at Lisheen Bridge). The inspector then draws attention to the susceptibility ofthe freshwater pearl mussel to changes in water quality, the requirement for very high-quality rivers with clean river beds and waters with very low levels of nutrients. Theinspector also noted the fact that the population of the freshwater pearl mussel in theBlackwater is currently at an unfavourable conservation status. The inspector thenhighlighted that, in these circumstances, it is clear that any further deterioration insurface water quality within the tributaries and watercourses draining to the RiverBlackwater consequent on the development could potentially have a significant indirectimpact on the freshwater pearl mussel.55. The potentially negative impacts identified by the inspector are set out at p.p. 88-89, p.p.91-92 and also at p.p. 97-98. The potential negative impacts are not confined to theconstruction phase but the inspector also said that potential negative impacts might ariseat the operational stage. The potential impacts comprise:-(a) The pollution of watercourses with suspended solids due to run off of soil fromconstruction and clear-felled areas due to disturbance of fine subsurface substratesin the course of construction and excavations at and adjacent to watercoursecrossings. At p. 98, the inspector specifically refers to the potential for sedimentrelease during clear-felling and construction phase earthworks and the danger ofthe discharge of water with high concentrations of sediment to water courses dueto the dewatering of the excavations required for the turbine and meteorologicalmast foundations;(b) At p.p. 91-92 of his report, the inspector identifies that one of the most significantpotential impacts arising as a direct result of the construction of the proposeddevelopment is the possibility of bog failure/slippage given the peaty subsoilconditions on site. While this section of his report is not concerned directly with theissue of the freshwater pearl mussel, peat slippage would have obviousconsequences for the freshwater pearl mussel if peat fragments were to enter thewatercourses leading to the River Blackwater thereby increasing the level ofsediment. In the course of his oral argument, counsel for the applicant placedsome emphasis on the possibility of peat slippage. While I do not believe that thisforms part of the applicant’s pleaded case (and therefore is not an issue that theapplicant is entitled to pursue) I will, nonetheless, for completeness and withoutprejudice to any pleading point that may arise, briefly consider the arguments thatwere made during the course of the hearing in relation to peat slippage;(c) The contamination of surface waters during construction (and operational works)through the accidental release or discharge of hydrocarbons or other contaminatedsite run-off. At p. 98, the inspector notes that this could include the risk of sewagepollution from temporary toilet facilities on site;(d) Changes to the hydrological regime of the area through the alteration of the flowrates of streams and rivers; andPage 24 ⇓(e) The creation of preferential flow paths for surface water resulting in a significantincrease in the volume of water entering local watercourses which could interferewith the sustained flow of water particularly during dry weather.56. In addition, at p. 90, the inspector acknowledges the concerns raised by the departmentwith regard to previous experience of construction projects in the vicinity of theBlackwater SAC impacting on downstream water quality. While the inspector does notregard an anecdotal report of serious siltation (raised by the department) as sufficientlyrobust evidence, it is clear from p. 90 of the report that the inspector identified thatsiltation or pollution of a watercourse is a potential impact of a development of this kind.This is reinforced by what is said by the inspector at p.p. 118-119 of his report where hedraws attention to the potential for the pollution of watercourses through the release ofsuspended solids.57. Again, as in the case of the hen harrier, while p.p. 88-90 of the inspector’s report dealswith EIA issues, the inspector, when he came to address the appropriate assessmentissues, specifically referred back (at p.p. 118-119 of his report) to the section dealingwith EIA. With regard to the Blackwater SAC, he also stated at p.p. 119-120:-“Potential pathways for impact have been identified in the form of a hydrologicalconnection from the proposed windfarm development site to the SAC, in particularduring the groundworks phase of the construction of the turbines and associatedroadways etc. (such as by way of sedimentation, the accidental release ofpollutants and the risk of landslide). In the absence of more detailed considerationof mitigation measures (e.g. site management and drainage design measures),there is the potential for adverse effects on the European Site which will requirefurther assessment by way of Natura Impact Statement”.58. While the inspector does not refer, at p.p. 119-120 to the possibility for adverse effectsarising from the operational stage of the proposed development, this is something which,as noted above, he expressly identified at p. 88 of his report. It seems to me that thepassage quoted above which highlights the construction phase does not exclude what hadpreviously been said by the inspector at p.p. 88-89. It should be noted that the referenceto “the groundworks phase of the construction…” is prefaced by the words “in particular”.59. It seems to me that the inspector has identified the aspects of the development projectwhich have the potential to affect the freshwater pearl mussel. In this context, it is clearfrom the material available to the respondent during the course of the appeal and inparticular from the expert report of Dr. William O’Connor submitted with the appeal thatthe principal aspects of the development which have the potential to have an impact onthe freshwater pearl mussel will arise during the construction phase. At s. 2.1 of Mr.O’Connor’s report, he identifies that, during the construction phase, the most likelypotential impact of the proposed development is the release of silt laden runoff intowatercourses and subsequent transport of that material to downstream locations withnegative impacts on the freshwater pearl mussel. The potential impacts on water qualityidentified by Mr. O’Connor are consistent with the impacts identified by the inspector atPage 25 ⇓p.p. 88-89 of his report. It should be noted that, at one point in the hearing, it wassuggested by counsel for the applicant that Dr. O’Connor’s report predated the appeal andprovided no new information that was not already available to the County Council.However, in the course of the hearing, it was confirmed that Dr. O’Connor’s report wasprepared for the purposes of the appeal. It is dated June 2017 and therefore post-datesthe decision of the County Council in May 2017.60. At p.p. 16-17 of his report, Mr. O’Connor also identifies the potential impacts from theoperational phase of the development. He explains that the main risk would arise frommaintenance of the facility when oils and lubricants may be used on site. Again, this isconsistent with what is said by the inspector at p.p. 88-89 of his report.61. In these circumstances, it seems to me that the inspector has sufficiently identified theaspects of the development which have the potential to adversely affect the freshwaterpearl mussel in the Blackwater SAC. As the respondent has adopted the inspector’sreport, I can find no fault with the manner in which the respondent has conducted thefirst element of the Article 6 (3) appropriate assessment exercise. The stage 1 screeningexercise carried out by the respondent appears to me to have been conducted whollylawfully.Have the necessary complete precise and definitive findings and conclusions beenmade?62. It is now necessary to consider whether appropriately complete, precise and definitivefindings were made to the requisite standard regarding the identified potential effects onthe hen harrier and the freshwater pearl mussel. As noted in para. 19 above, if planningconsent is to be given for the proposed development, the findings must have no lacunaeor gaps and the respondent must have been able to determine that no reasonablescientific doubt remains that the development will not have an adverse impact upon thehen harrier and the freshwater pearl mussel. I deal below, in turn, with the hen harrierand the mussel.The hen harrier63. The conclusions of the inspector with regard to the hen harrier are set out at p.p. 85-86of his report and at p.p. 121-122. As noted previously, there is a crossover between whatis said in the report about the hen harrier in the context of EIA and in the context ofappropriate assessment. At p. 122 (in the section dealing with appropriate assessment)the inspector expressly refers the respondent to his earlier comments in the context ofEIA. It is therefore necessary to consider what is said by the inspector in both sections ofhis report.64. At p.p. 85-86, the inspector states:-“On balance, given the inclusion of the hen harrier within Annex I of the E.U. BirdsDirective and the protection afforded to same, the overall suitability of theBarna/Barna Bog area for hen harrier breeding and foraging activities asestablished by historical records and more recent survey work, the proximity of theBarna lands to the … [Stacks SPA] …, and the availability/potential usage of thePage 26 ⇓said lands by hen harrier from within the SPA, I am inclined to conclude that theBarna area is of local importance to hen harrier and that the proposed developmentof turbine Nos. T8 & T9 within same would be likely to have an unacceptableenvironmental impact on the hen harrier in the locality given the consequentialloss/disturbance of suitable habitat and the potential risk of collision. Moreover, forthe purposes of appropriate assessment, and having regard to the precautionaryprinciple, it is my opinion that it cannot be definitively established that thedevelopment of turbines (Nos. T8 & T9) within the Barna area would not have anadverse impact on hen harrier. Accordingly, in the event of a grant of permission, Iwould recommend the emission of Turbine Nos. T8 & T9.(N.B. in support of the omission of Turbine No. 9, I would refer the Board to the‘High’ risk weighting applied to the construction of that turbine in the ‘Peat stabilityHazard Ranking Assessment.’ Furthermore, the associated omission of theroad/service infrastructure serving Turbine No. T9 would negate any requirementfor a new crossing of the Carhoonoe Stream thereby addressing the concerns of theDepartment…as regards same)”.65. In the course of his submissions, counsel for the applicant criticised the somewhatequivocal language used in the passage quoted above. In particular, the use of thewords: “on balance” and “I am inclined to conclude…”. Some criticism is also made of theformula of words used later in the same extract where the inspector said that: “it is myopinion that it cannot be definitively established that the development of turbines…T8 &T9 …would not have an adverse impact on hen harrier”. I do not believe, however, thatthe language used by the inspector warrants criticism. As counsel for the respondentmade clear, in the course of her submissions, this finding by the inspector in this sectionof his report is a finding that the development of the windfarm (by the construction ofturbines T8 and T9) in the Barna Bog area would give rise to an unacceptable impact onthe hen harrier given “the consequential loss/disturbance of suitable habitat and thepotential risk of collision”. As counsel for the respondent noted, there is no requirementthat the inspector has to be satisfied that this risk exists beyond a reasonable scientificdoubt. On the contrary, a precautionary approach must be taken in the context of theHabitats Directive. Thus, the inspector (and, in turn, the respondent) only has to besatisfied that the risk cannot be excluded. In my view, this submission of counsel for therespondent is entirely correct.66. However, counsel for the applicant makes a more fundamental point that, in this sectionof the inspector’s report, the inspector concentrates on the Barna Bog area and does notaddress the remainder of the development (i.e. other than turbines T8 and T9). Counselstressed that this was particularly important given the recognition in the report that thedevelopment had the potential for adverse effects on hen harriers within the Stacks SPA.It should be recalled that, as noted in paras. 46 to 50 above, the inspector had previouslyidentified a number of potential impacts on the hen harrier:-(a) Mortality due to collision with turbines;Page 27 ⇓(b) Site avoidance by foraging birds. As noted in para. 48 above, the inspector hadnoted in particular that three bird species (which make up a proportion of the henharriers’ diet) have been recorded breeding within the proposed development site.The inspector did not suggest that this was solely within the area of Barna Bog.(c) Habitat loss and displacement. In this context, it should be noted that, at p. 79 ofhis report, the inspector identified that there were “notable levels of activity withinReaboy in the vicinity of Turbine Nos. T5, T6 & T7”. This is also potentially relevantto the issue of mortality risk;(d) Disturbance of nesting birds. However, the only evidence of nesting birds was inthe vicinity of Barna Bog.67. Accordingly, it is very important to consider what is said by the inspector subsequently atp.p. 121-122 where, referring back to the potential impacts of the hen harrier which hehad identified in the course of his Stage 1 appropriate assessment, the inspectorcontinued as follows:-“The NIS has subsequently concluded that, subject to adherence of a series ofspecified mitigation measures, there would be [no] adverse effects on the integrityof the identified Natura 2000 sites as a result of the proposed development.In order to avoid unnecessary repetition, I would refer the Board to my earliercomments with regard to the implications of the proposed development for the henharrier as set out in my environment impact assessment ….I would reiterate myopinion that given the inclusion of the hen harrier within Annex 1 of the E.U. BirdsDirective…, the overall suitability of the Barna/Barna Bog area for hen harrierbreeding and foraging activities as established by historical records and morerecent survey work, and the proximity of the Barna lands to the [Stacks SPA] andthe availability/potential usage of the said lands by hen harrier from within the SPA,I am inclined to include that the Barna area is of local importance to hen harrierand that the proposed development of Turbine Nos. T8 & T9 within same would belikely to have an unacceptable environmental impact on hen harrier in the localitygiven the consequential loss/disturbance of suitable habitat and the potential risk ofcollision. Therefore, for the purposes of appropriate assessment, and having regardto the precautionary principle, it is my opinion that it cannot be definitivelyestablished that the development of Turbines Nos. T8 & T9 within the Barna areawould not have an adverse impact on hen harriers. Accordingly, in order to ensurethat the proposed development will not adversely affect the integrity of the SPA orundermine/conflict with the Conservation objectives applicable to same, I wouldrecommend the omission of Turbine Nos. T8 & T9 by way of mitigation”.68. It will be seen that this is largely a repetition of what was said by the inspector at p.p. 85-86 (quoted in para. 64 above). The only other relevant observation of the inspector inthis section of his report is at p. 123 where he says (having previously dealt withcumulative impacts):-Page 28 ⇓“Therefore, I consider it reasonable to conclude, on the basis of the informationavailable, that the proposed development, when taken individually and incombination with other plans or projects, will not adversely affect the integrity ofthe [Stacks SPA] …”.69. In her submissions, counsel for the respondent submitted that the inspector’s reportcontained complete precise and definitive findings and conclusions in relation to the entiredevelopment and that the inspector was, in substance, confirming that there were noissues with the balance of the development over and above turbines T8 and T9. She alsocarried out a careful analysis of the submission made to the respondent by the IrishRaptor Study Group and suggested that the points made by the study group in respect ofadverse impacts for the hen harrier did not withstand scrutiny. Counsel accepted that thepoints raised by the study group in relation to the alleged inadequacy of the surveysconducted was not specifically addressed by the inspector but she submitted that thecriticisms of the surveys were so “manifestly wrong that it’s not something that needs tobe addressed…”.70. Counsel for the respondent may well be correct that all of the points raised by the IrishRaptor Study Group do not withstand scrutiny. She may also be correct in her submissionthat there was sufficient material available to allow him to be satisfied that thedevelopment (other than turbines T8 and T9) would not have an adverse impact on thehen harrier. Given the role of the court in proceedings of this kind, it would not beappropriate for me to express any view on that issue. However, I cannot accept that theconclusion articulated by the inspector and adopted by the respondent satisfies therequirements summarised in para. 19 (b) above namely the obligation to make complete,precise and definitive findings and conclusions regarding the identified potential effects onthe hen harrier, following appropriate analysis and evaluation in light of the best scientificknowledge. In my view, there is nothing in the report of the inspector to explain how thedevelopment other than turbines T8 and T9 will not have an adverse impact on the henharrier. The material just quoted focusses solely on the Barna Bog and turbines T8 andT9. It is clear from the earlier sections of the inspector’s report that, as noted in paras.46-47 above, the potential impacts listed in para. 46 arose in relation to the site area as awhole. They were not confined to the area in the immediate vicinity of turbines T8 andT9 located on or near Barna Bog. Accordingly, if the proposed development other thanturbines T8 and T9 was to pass an appropriate assessment (insofar as potential impactson the hen harrier is concerned) there would have to be a conclusion reached as to how itwas that the potential impacts previously identified would not, in fact, arise if theremaining turbines (and associated infrastructure) were to be constructed and operated.71. Furthermore, it is clear from the decisions in Kelly and Connelly that there should beappropriate analysis and evaluation. While there is, very clearly, analysis and evaluationin the inspector’s report of turbines T8 and T9, there is no equivalent evaluation andanalysis of the remainder of the site. In reaching a conclusion in relation to the balanceof the development, the inspector may have had regard to the material contained in theNatura Impact Study (“NIS”). In this context, it appears to follow from the decision inPage 29 ⇓Connelly that a person in the position of the inspector is entitled to rely on other materialsfor the purposes of providing reasons for findings. This appears to be so even where noexpress reference is made by the decision maker to those materials so long as it issufficiently clear to a reasonable observer carrying out a reasonable enquiry that thematters contained in the materials in question formed part of the reasoning for therelevant decision. At para. 9.2 of his judgment in that case, Clarke C.J. said:-“The test is, in my view, that identified in Christian. Any materials can be relied onas being a source for relevant reasons subject to the important caveat that it mustbe reasonably clear to any interested party that the materials sought to be relied onactually provide the reasons which led to the decision concerned. In that regard, itseems to me that the trial judge has, put the matter much too far. The trial judgewas clearly correct to state that a party cannot be expected to trawl through a vastamount of documentation to attempt to discern the reasons for a decision.However, it is not necessary that all of the reasons must be found in the decisionitself or in other documents expressly referred to in the decision. The reasons maybe found anywhere, provided that it is sufficiently clear to a reasonable observercarrying out a reasonable enquiry that the matters contended actually formed partof the reasoning. If the search required were to be excessive then the reasonscould not be said to be reasonably clear.”72. However, it is crucially important to bear in mind that the NIS predated the submissionmade by the Irish Raptor Study Group in the course of the appeal and it seems to me tohave been incumbent on the inspector in those circumstances to address the substantivepoints raised by the Irish Raptor Study Group so as to explain how he came to theconclusion that the points raised by them did not alter the conclusions reached in the NIS.In my view, that required the inspector, at minimum, to identify where in the NIS therelevant analysis is contained which satisfied him that the development (other thanturbines T8 and T9) would not have an adverse impact on the hen harrier. It also seemsto me to have been incumbent on the inspector to explain why he was not persuaded bythe substantive points made by the Irish Raptor Study Group. As noted in paras. 37-38above, I do not believe that it was necessary for the inspector to address every individualsubmission that was made to the respondent so long as the substantive points relevant tothe hen harrier were addressed. There will often be an overlap between the submissionsof one observer and another. The crucial requirement is that the points should beaddressed. If the points are without merit, then that should be stated and the basis forthat view should be explained.73. In addition, it seems to me that the inspector should also have identified by reference tothe NIS where, in his view, it provides an appropriate level of assurance that the potentialeffects previously described by the inspector at an earlier point in his report will not giverise to the adverse effects which were identified as potential impacts at the stage 1screening stage. In particular, there would need to be an answer to the concernsexpressed about the loss of foraging for the hen harrier given the fact recorded in theinspector’s report that the entire site was frequented by three important species of birdPage 30 ⇓favoured by the hen harrier as prey. It also seems to me that the inspector should haveexplained how he came to the conclusion that, notwithstanding what he had said (asnoted in para. 66(c) above) about the level of hen harrier activity in Reaboy in the vicinityof turbines T5, T6 and T7, the development of those turbines and related infrastructurecould safely proceed.74. It also seems to me that the inspector was required to explain, either in the text of thereport itself or by reference to specific sections of the NIS, why he was satisfied that theconcerns outlined by him at p. 83 of his report about collision risk (in particular forjuvenile hen harriers, as summarised in para. 49 above) have been satisfactorily resolved.It seems to me that the inspector should, at minimum, have identified where in the NISthere is material which explains to the requisite standard (i.e. to the extent that there beno reasonable scientific doubt) that the development other than T8 and T9 will not giverise to a material risk of collision.75. In the absence of an appropriate explanation in the report, any person reading theinspector’s report will be left at a loss to understand how the potential impacts identifiedin the report can be said to have been addressed to the extent necessary to enable aconclusion to be reached, following appropriate analysis and evaluation, that the adverseimpacts previously identified at the screening stage will not arise.76. Accordingly, I have come to the conclusion that the report of the inspector does notcomply with the requirements summarised in para. 19 (b) above. As a consequence, itseems to me to follow that the third requirement (summarised in para. 19 (c) above) isalso incapable of being satisfied on the basis of the material currently contained in theinspector’s report. It follows that the decision of the respondent must be quashed on thisground. As the decision in Connelly makes clear, a failure to comply with the Article 6 (3)requirements goes to jurisdiction and invalidates a decision taken by the respondent inbreach of those requirements. The only order that can be made in the circumstances isan order quashing the decision. I am, however, conscious that there may well besufficient materials before the respondent which would enable the respondent to makecomplete precise and definitive findings and conclusions regarding the previouslyidentified potential effects on the hen harrier as outlined in the inspector’s report. Theremay well therefore be a basis to remit the matter to the respondent for a furtherdetermination. I will, however, postpone making any order to that effect pending furthersubmissions from the parties.The freshwater pearl mussel77. The potentially negative impacts identified by the inspector have already beensummarised at para. 55 – 58. It is now necessary to consider whether the Inspector(and, in turn, the respondent) have made complete, precise and definitive findings andconclusions regarding the previously identified potential effects on the freshwater pearlmussel. This is addressed, in the first instance, at pp. 89-90 of the inspector’s reportwhere he says:-Page 31 ⇓“In order to minimise the potential constructional and operational impacts on theaquatic environment attributable to the proposed development, it is intended toimplement a series of mitigation measures as set out in Section 5.8 of the EIS,although regard should also be had to the measures contained in Chapter 6: ‘Soiland Geology’ and Chapter 7: ‘Hydrology’ of the EIS (as supplemented by theassociated appendices and the additional information provided with the grounds ofappeal). Of particular relevance of the context of preserving downstream waterquality during the construction stage is the proposal to implement a spoilmanagement strategy in conjunction with a surface water management plan inorder to prevent sediment-laden surface water runoff from the earth works enteringwater courses. It is also proposed to prepare a detailed Construction andEnvironmental Management Plan for the project which will include ConstructionMethod Statements and a Construction Stage Surface Water Management Plan thatwill incorporate various erosion and sediment control measures including theinstallation of drainage of runoff controls prior to the commencement of sitedevelopment and clearance works; the minimisation of the area of exposed ground;the prevention of runoff entering the site from adjacent grounds; the provision ofappropriate control and containment measures on site; the monitoring andmaintenance of erosion and sediment controls throughout the project; andestablishing vegetation as soon as practical on all areas where soil has beenexposed. These measures are to be further supplemented by a HabitatManagement Plan, the inclusion of an emergency erosion and soil control responseplan as a contingency measure in the Surface Water Management Plan, theimplementation of a water sampling programme both before and duringconstruction, and the adoption of best practice techniques including the installationof interceptor drains, silt fences, check dams, silt traps and settlement/siltationponds etc.It is also proposed to implement an Operational Phase Environmental ManagementPlan for the monitoring of wildlife for the efficacy of the mitigation measures to beundertaken both during and post construction.Whilst I would acknowledge that concerns have been raised by the Department …as regards previous experience of construction projects impacting on downstreamwater quality … and that reference has been made to an anecdotal report of serioussiltation of an upper Blackwater Watercourse being attributable to the constructionof a windfarm with general mitigation measures similar to those cited in thesubmitted EIS, in my opinion, this does not form a sufficiently robust basis onwhich to refuse permission for the subject proposal. In the event that any siltationor pollution of a watercourse could be attributed to a particular developmentproject, I would suggest that it would be necessary in the first instance todefinitively ascertain the actual cause of the pollution event. For example, it isunclear whether or not the occurrence of any such situation would be attributableto a deficiency in the overall design of the project or the mitigation measuresPage 32 ⇓proposed or whether it arose from a failure by the developer/contractor toadequately adhere to the prescribed programme of mitigation.Accordingly, having reviewed the submitted information, including the measures tobe implemented with respect to drainage design and site management during theconstruction and operational phases of the proposed development, in addition tothe proposal to conduct water quality monitoring during all phases of the projectwhich would allow for the opportunity to review and revise measures asappropriate, it is my opinion that the risk of a detrimental impact on downstreamwater quality and the consequence of same on aquatic ecological considerations canbe satisfactorily mitigated both through the nature/design of the works proposedand the implementation of an appropriate programme of pollution control measureswhich are linked to good construction and site management best practice.”78. The passage quoted above is in the section of the inspector’s report dealing with EIAissues. However, in common with the hen harrier, the inspector effectively adopts thissection of his report when he comes to address the appropriate assessment issues. Anumber of criticisms were made by counsel for the applicant of this passage. In supportof the case made in the statement of grounds (summarised in para. 20(g) above),counsel emphasised that the Construction and Environmental Management Plan (“CEMP”)is not yet in existence and therefore could not be assessed by the inspector. He alsodrew attention to what he described as the “vague” and “aspirational” nature of theSurface Water Management Plan (“SWMP”).79. With regard to the concerns expressed by the department (as recorded by the inspector),counsel criticised the approach taken by the inspector on the basis that the inspector didnot satisfy himself as to what happened in relation to the unnamed developmentmentioned in the anecdotal report. However, that is not part of the case made in thestatement of grounds and I therefore do not believe that it is something that I shouldaddress in this judgment. Moreover, the failure of another developer to take appropriatesteps to prevent ecological damage would not, in any event, have entitled the inspector totake an adverse view in respect of the development proposed by Silverbirch.80. Counsel also criticised what he characterised as the “failure” of the inspector tospecifically address the concerns expressed by the Duhallow Environment Working Group.I cannot accept that this criticism is valid. The submissions made by that group do notappear to me to raise any issue which is not addressed by the inspector. I therefore donot propose to consider this criticism further in this judgment. As noted in para. 38above, I do not believe that it is necessary that every individual submission should beidentified by name so long as the relevant substantive points made in the submission areappropriately addressed.81. Counsel for the applicant strongly argued that the concluding part of the passage quotedin para. 77 above suggests that the assessment carried out by the inspector was done toan EIA standard even though the stage 2 appropriate assessment requires a much higherstandard. Counsel also argued that this section of the inspector’s report does not engagePage 33 ⇓with the essential elements of the Article 6(3) test and he highlighted in particular thatthere is no finding in this section of the inspector’s report that the development will notadversely affect the integrity of the Blackwater SAC and the freshwater pearl mussel inparticular.82. However, the inspector returns to the subject of the Blackwater SAC when he purports, ata later stage in his report, to carry out a stage 2 appropriate assessment. As noted abovein the context of the hen harrier, the inspector, at p. 121 of his report, draws attention tothe NIS which he suggests has concluded that “subject to adherence to a series ofspecified mitigation measures, there would be [no] adverse effects on the integrity of theidentified Natura 2000 sites as a result of the proposed development”.83. He then refers to the section in his report dealing with EIA and continues, with regard tothe Blackwater SAC, at p. 122 as follows: -“Similarly, I would refer the Board to my earlier comments with regard to thehydrological implications of the proposed development as set out in myenvironmental impact assessment of the subject application. In my opinion, thisoutlines how the design of the proposed development, when taken in combinationwith specified mitigation measures, will not adversely impact on the integrity of theBlackwater … [SAC] and thus will not compromise its qualifying interests …Therefore, I consider it reasonable to conclude, on the basis of the informationavailable, that the proposed development, when taken individually and incombination with other plans or projects, will not adversely affect the integrity of …the Blackwater … SAC in view of the sites conservation objectives”.84. Again, counsel for the applicant strongly criticised this section of the report and said thatit contains no analysis or evaluation of the mitigation measures and that it does notexplain how the inspector came to the conclusion that the mitigation measures weresufficient to allow a conclusion to be reached, capable of removing any scientific doubt,that the freshwater pearl mussel would not be adversely affected by the proposeddevelopment. In addition, counsel emphasised the points made in the statement ofgrounds summarised in para. 20(a), (f) and (g) above. Counsel also criticised the reportbecause it does not set out what the mitigation measures are. While I agree that it wouldbe preferable that the mitigation measures should have been set out, it is nonethelessclear from the decision of the Supreme Court in Connelly that a party in the position ofthe respondent (and this applies equally to an inspector of the respondent) is entitled torely on other documents submitted in the course of the appeal if it is sufficiently clear to areasonable observer carrying out a reasonable enquiry that the material contained inthose documents actually formed part of the reasoning relied on for the purposes ofmaking the relevant decision. Thus, it will be necessary to consider the relevant materialbefore the board to ascertain whether it would be sufficiently clear to a reasonableobserver carrying out a reasonable enquiry that the inspector had a proper basis to formthe view that the proposed development would not have an adverse impact on thePage 34 ⇓freshwater pearl mussel. The material available to the respondent is considered in paras.86 to 93 below.85. Before addressing the material available to the respondent, I should also, forcompleteness, address the inspector’s assessment of the issue relating to peat stability.As noted in para. 55 above, the inspector identified that the most significant potentialimpact arising as a direct result of the construction of the proposed development is thepossibility of bog failure/slippage given the peaty subsoil conditions on site. While issuesrelating to peat stability do not appear to me to form part of the applicant’s pleaded case,it should be noted that at p.p. 93-97 of his report, the inspector carries out a carefulreview of the information in relation to peat slippage. The inspector identified a numberof discrepancies in the peat stability assessment submitted on behalf of Silverbirch. Inparticular, he recalculated the relevant factors of safety in respect of the turbines and alsoin respect of the proposed Ballynahulla substation. At p. 96 the inspector identified thatthe approach taken in the EIS in relation to historical peat failures in the area was toapply the precautionary principle. Having regard to that principle, Silverbirch, in the EISutilised a conservative risk allocation for historical failure. While a peat slide had occurredin the Sliabh Luachra area in 1896, there were a number of factors which justified a riskranking for the affected areas of the site as “very low” or “low”. In this context, anumber of factors were considered including the fact that significant peat extraction hadtaken place in the intervening 121 years. There was also now the presence of extensiveman-made and natural drainage channels which serve to limit the presence of water onthe affected slopes. At p. 97, the inspector came to the conclusion that the peat stabilityanalysis, notwithstanding certain discrepancies in the material submitted by Silverbirch(which he effectively corrected himself through the analysis undertaken by him)established that the proposed development can safely proceed without giving rise to peatslippage. This is subject to the implementation of a series of mitigation measures. Itseems to me, on the basis of the extensive analysis undertaken by the inspector inrelation to the peat slippage issue, the inspector has arrived at a decision (followingevaluation and analysis) which meets the requirements of the case law, in particular thedecision of the High Court in Kelly and of the Supreme Court in Connelly.86. As noted in para. 84 above, it is next necessary, having regard to the approach taken inConnelly, to consider the material available to the respondent in relation to the freshwaterpearl mussel. In this regard, very extensive material was placed before the respondent bySilverbirch to address the concerns in relation to the Blackwater SAC and the freshwaterpearl mussel in particular. At s. 5.1.1 of the EIS, it was acknowledged that particular careis required with regard to the Blackwater and its feeder streams that drain the proposeddevelopment. The EIS stated that protection of these water courses “will be imperative inpreventing water quality deterioration downstream”. The EIS also stated that bestpractice pollution control measures (which are described in detail elsewhere) will beemployed during the construction phase to prevent the transport of deleterioussubstances to the Blackwater SAC. In this context, it was specifically stated:Page 35 ⇓“release of suspended solids to all surface waters will be controlled by interception(E.G. Silt Traps) and management of site runoff. Any surface water run-off mustbe treated to ensure that it is free from suspended solids, oil or any other pollutingmaterials”.87. Counsel for Silverbirch acknowledged in the course of the hearing that this requirement iscaught by condition 2 of the conditions imposed by the respondent in its decision to grantpermission. Condition 2 requires that all of the environmental, construction andecological mitigation measures set out in the EIS, the NIS and the other particularssubmitted with the application (expressly including the report of Dr. William O’Connordiscussed further below) should be implemented by Silverbirch. Counsel for Silverbirchsubmitted (correctly in my view) that the passage quoted above, although it does not sayso in terms, amounts to a “zero silt requirement” equivalent in its effect to the expresscondition contained in the decision of the respondent in the People Over Wind Case. Ishould also make clear that, in my view, condition 2 goes significantly further than whatwas described by counsel for the applicant, during the course of the hearing, as thestandard or “generic” condition requiring that all environmental and ecological mitigationmeasures should be implemented. Condition 2 specifically addresses the mitigationmeasures in respect of the freshwater pearl mussel since it refers, in terms, to the pearlmussel impact assessment (i.e. the report of Dr. O’Connor).88. Counsel for Silverbirch, in his submissions, drew attention to the underlying rationale ofthe mitigation measures which are proposed to be used in this case. He explained thatthe drainage from the windfarm development will be kept separate from the naturaldrainage on the site and that the drainage from the development site will not dischargedirectly to water courses but instead will be discharged over land through the use of levelspreaders after any siltation has settled out in settlement ponds. He drew attention tothe objective of the SWMP which is to ensure that the drainage network for thedevelopment does not impact on the existing natural drainage network on the subjectsite. Thus, at s. 3.1 of the SWMP it is specifically stated that it is a fundamental principleof the drainage design that: -“… clean water flowing in the upstream catchment, including overland flow and flowin existing drains, is allowed to bypass the works areas without being contaminatedby silt from the works. This will be achieved by intercepting the clean water andconveying it to the downstream side of the works areas either by piping it ordiverting it by means of new drains or earth mounds. In the same section of theSWMP, it is explained that the mitigation measures proposed are designed to thestandard recommended in a 2006 study of freshwater pearl mussel populations inthe Lutter River in Germany by Altmuller & Dettmer. The significance of this is thatthe measures described in Altmuller & Dettmer are specifically referred to in thesub Basin Management Plan for the Blackwater as the appropriate standard ofsediment control for construction projects within the sub basin. The Altmuller &Dettmer study describes a two phase treatment system comprising a sediment trapand plant filtration bed. Water from construction works first enters the sedimentPage 36 ⇓traps and then flows through the plant filtration bed. There is a secondaryvegetative system which attenuates and absorbs the residual particles which do notsettle in the sediment trap. According to the SWMP this two phase system hasproven to be successful in the protection and influential in the restoration of theresident freshwater pearl mussel pollution in the Lutter river in Germany. However,as the SWMP makes clear, the system which is to be put in place here adds afurther phase to the Altmuller & Dettmer system. This will involve a secondarytreatment system in the form of a graded gravel filter bed through which waterfrom the ponds will pass before being dispersed across a wide area of vegetation”.89. Individual settlement ponds will be designed for every single turbine or hardstand areaand for every 1.2 km area of internal access road ensuring that each item of windfarminfrastructure will have its own individual three tier treatment system including settlementpond and vegetative filter. In addition to this system, the SWMP describes additionalmeasures to minimise sediment and erosion at source by minimising exposed areas,establishing vegetation, road cleaning, silt fences, check dams, wheel washes, and theavoidance of works in or near water courses.90. The treatment process summarised above is dealt with in detail in s. 4.2 and 4.3 of theSWMP. A detailed description of the settlement pond design is contained in s. 4.5.Detailed descriptions of the attenuation design are contained in s. 4.6. In s. 4.3.11, acommitment is given that the drainage and treatment system will be managed andmonitored at all times particularly after heavy rainfall events during the constructionphase. The drainage and treatment system will be regularly inspected and maintained toensure that any failures are quickly identified and repaired so as to prevent waterpollution. Similarly, s. 4.3.1.3.1 requires that continuous turbidity monitors will beinstalled upstream and downstream of the site in the river Blackwater which will relayreal-time information and can trigger an alarm if limit values are being approached. Thiswill give advance warning of a potential difficulty. The relevant limits in this regard areset out in Dr. O’Connor’s report at p. 7. These limits are in accordance with therecommendations in the Freshwater Pearl Mussel Conservation Status Assessment Reportpublished by the National Parks & Wildlife Service (“NPWS”) in 2015. It is confirmed onp. 20 of Dr. O’Connor’s report that, prior to construction, the aquatic monitoringprogramme will be agreed in consultation with NPWS and Inland Fisheries Ireland (“IFI”).In addition, a weekly monitoring report will be forwarded to (among others) NPWS andIFI. Crucially, all of these commitments are caught by condition 2 attached to therespondent’s decision and will therefore be fully enforceable.91. The SWMP deals not only with the construction phase but also the operational phase. Ins. 4.4, it provides that, following construction, runoff on the roads, hardstands and otherwork areas will continue to be directed to the outfall weirs. The check dams within thedrainage channels will remain in place to ensure that runoff continues to be attenuatedand dispersed across existing vegetation. Water monitoring will continue during yearsone and two of the operational phase, commencing after the complement of construction.The sediment ponds will be kept in situ once construction has been completed.Page 37 ⇓92. During the course of the hearing, counsel for the applicant suggested, by reference to anearlier version of the SWMP, that its terms were vague and uncertain; that the mitigationmeasures were generic and were not specifically designed with the Freshwater PearlMussel in mind. It is unnecessary to form any view as to whether those criticisms werewell founded with regard to the first version of the SWMP. However, in light of the veryconsiderable detail that is contained in the SWMP which was before the respondent and inlight of the standard by which the mitigation measures were to be applied (namely theAltmuller & Dettmer report), I do not believe that these criticisms are justified in the caseof the SWMP which was considered by the inspector and the respondent. Moreover, theSWMP must also be read in conjunction with the report of Dr. O’Connor. In that report,Dr. O’Connor reviews the SWMP and he expresses the view that the highest standards ofsurface water quality management and pollution control will be employed during theconstruction of the development. Among the features which he highlighted was the useof sedimats which will be used in water courses draining the site. Dr. O’Connor explainedthat these sedimats have been successfully used downstream of drainage maintenanceworks on the River Nore in Co. Laois upstream of the location of a population of Norepearl mussels (which are a particularly rare species of freshwater pearl mussel). Dr.O’Connor also draws attention to the use of continuous turbidity monitors which willprovide real-time information and can trigger an alarm if limit values are beingapproached. Dr. O’Connor expresses the view that, because the development has takenon board key elements and the recommendations of the Blackwater sub-basinmanagement plan, it will be part of the solution rather than the problem for theBlackwater catchment. Crucially, having reviewed the mitigation measures and theproposed monitoring Dr. O’Connor expresses the following view in relation to predictedimpacts: -“the developers demonstrated via a detailed surface water management plan(including erosion and sediment control details) the intention and ability to protectwater quality. With agreement of method statements and a monitoring programmewith IFI and NPWS, implementation of mitigation measures proposed and due tothe considerable distance upstream of the nearest FPM population, no impacts onFPM are predicted to occur as a result of the proposed development. The mitigationmeasures are also considered to be sufficient to protect aquatic species such assalmon and trout which are present in the streams on and near sites. Themeasures will be more than sufficient to protect the nearest FPM population whichoccurs c.2.6 downstream of the boundary of the site and both distance and waterdilution will provide further significant protection to this mussel population”.93. The material summarised in paras. 88-92 above is both very comprehensive andimpressive. Given the approach taken by the Supreme Court in Connelly, it seems to methat the SWMP and the report of Dr. O’Connor in this case provide extensive analysis andevaluation which assist in understanding the conclusion reached by the inspector andsubsequently, by the respondent that the proposed development will not have an adverseimpact on the freshwater pearl mussel in the Blackwater SAC.Page 38 ⇓94. Before reaching any final conclusion on this issue, I should consider two further aspects ofthe case made by the applicant at the hearing before me:-(a) In the course of opening the report of Dr. O’Connor to the court, counsel for theapplicant drew attention to the manner in which Dr. O’Connor dealt with thepotential for a landslide or a peat slide. In this context, it should be noted thatSliabh Luachra was the scene of a natural disaster in 1896 when a moving bogcaused a number of fatalities in the area. As noted above, a concern in relation topeat slippage does not appear to me to be part of the case made in the statementof grounds and to the extent that I address it below, I do so for completeness andwithout prejudice to the fact that this case has not been pleaded.(b) Secondly, as summarised in para. 20 above, the applicant contends that theconditions attached to the decision of the respondent impermissibly leave over forconsideration to a later stage, the construction-stage details of proposals for themanagement of surface water through a Construction Stage SWMP. It might alsoappear from the passage of the inspector’s report quoted in para. 77 above that aCEMP of any kind has yet to be prepared.Peat slippage95. Insofar as the potential for landslide or peat slippage is concerned, the relevant passagein the report of Dr. O’Connor notes as follows:-“The risk of a potential bogburst or landslide occurring on the site as a consequenceof the works required to facilitate construction of the windfarm is negligible.Therefore, the risk of serious pollution or siltation of the watercourses occurring asa consequence of such an incident is negligible subject to the appropriate mitigationmeasures outlined… in the EIS”. (emphasis added).96. Counsel for the applicant submitted that to assess risk as “negligible” was to applyentirely the wrong standard. He argued that it was clear that this fell far short of the“reasonable scientific doubt” standard. However, in response, counsel for the respondentstrongly urged that a negligible risk of an adverse impact was not sufficient to warrantrefusal of a planning consent. She argued that Article 6(3) does not require that the riskof adverse effects should be ruled out to the standard of absolute certainty. She relied, inthis context, on the judgment of the CJEU in Case C-236/01 Monsanto [2003] ECR I-8166. That case was concerned with novel food ingredients which are regulated byRegulation (EC) No. 258/97 (“The Novel Foods Regulation”). Under the Novel FoodsRegulation, novel foods cannot be placed on the market for human use without first givingnotice to the EU Commission. However, there is an accelerated and simplified procedurefor the authorised use of such foods where, on the basis of scientific evidence, the novelfoods are substantially equivalent to existing foods or food ingredients as regards theircomposition, nutritional value, metabolism, intended use and the level of undesirableingredients. In that case, the simplified procedure was used by Monsanto in order toplace on the market novel foods derived from maize. The Italian Health Ministry allegedthat the use of the simplified procedure was improper. The Ministry was concerned thatPage 39 ⇓the proposed product contained a number of transgenic ingredients. The Italian Ministryexpressed concern that the product would be a danger to human health. However, theCommission consulted the EU Scientific Committee for Food which expressed the viewthat the information presented by the Italian Ministry did not provide specific scientificgrounds for considering that the use of the novel foods at issue endangered humanhealth. Nonetheless, the Italian authorities issued a decree prohibiting the sale of theproduct. This was challenged by Monsanto. While the facts of this case are very differentfrom the present case, counsel for the respondent argued that the approach taken by theCJEU is instructive given that, in common with Article 6(3) of the Habitats Directive, theNovel Foods Regulation proceeds on the basis of the precautionary principle. Counsel alsohighlighted the fact that the decision of the CJEU in Monsanto was subsequently cited bythe CJEU in its seminal decision in the context of Article 6(3) in Case C-127/02Waddenzee [2004] ECR I-7448 at para. 59. Crucially, Monsanto was cited in the contextof reasonable scientific doubt (as para. 59 of the judgment in Waddenzee makes clear).97. In the course of its judgment in Monsanto, the CJEU said at para. 106:-“If the twofold objective of [the Novel Foods Regulation], namely ensuring thefunctioning of the internal market in novel foods and protecting public healthagainst the risks to which those foods may give rise, is not to be adversely affected,protective measures adopted under the safeguard clause may not properly bebased on a purely hypothetical approach to risk, founded on mere suppositionswhich are not yet scientifically verified”. (emphasis added).98. The approach taken in Monsanto is also reflected, subsequently, in Waddenzee. In thatcase, Advocate General Kokott expressed the view that absolute certainty is not requiredunder Article 6(3). At paras. 107-108 of her opinion, she said:-“107. However, the necessary certainty cannot be construed as meaning absolutecertainty since that is almost impossible to attain. Instead, it is clear from thesecond sentence of Article 6(3)… that the competent authorities must take adecision having assessed all the relevant information which is set out in particularin the appropriate assessment. The conclusion of this assessment is, of necessity,subjective in nature. Therefore, the competent authorities can, from their point ofview, be certain that there will be no adverse effects even though, from anobjective point of view, there is no absolute certainty.108. Such a conclusion of the assessment is tenable only where the deciding authoritiesat least are satisfied that there is no reasonable doubt as to the absence of adverseeffects on the integrity of the site concerned. As in the case of a preliminaryassessment – provided for in the first sentence of Article 6(3)… – to establishwhether a significant adverse effect on the site concerned is possible, account mustalso be taken here of the likelihood of harm occurring on the extent and nature ofthe anticipated harm. Measures to minimise and avoid harm can also be ofrelevance. Precisely where scientific uncertainty exists, it is possible to gain furtherPage 40 ⇓knowledge of the adverse effects by means of associated scientific observation andto manage implementation of the plan or project accordingly”.99. Although absolute certainty is not required, it is clear from the judgment of the CJEU inthe same case that the Article 6(3) standard is a stringent one. As all of the case lawmakes clear, planning consent can only be granted where the deciding authority issatisfied that there is no reasonable doubt as to the absence of adverse effects on therelevant protected interest. However, it is striking that in para. 59 of its judgment, theCJEU expressly cited the Monsanto decision in the context of reasonable scientific doubt.At para. 59, the CJEU said:-“59. Therefore, pursuant to Article 6(3)…, the competent national authorities, takingaccount of the conclusions of the appropriate assessment of the implications of [therelevant development] for the site concerned, in the light of the site’s conservationobjectives, are to authorise such activity only if they have made certain that it willnot adversely affect the integrity of that site. That is the case where no reasonablescientific doubt remains as to the absence of such effects (see, by analogy, Case C-236/01 Monsanto…, para. 106 and 113)”.100. It should be recalled, at this point, that para. 106 of the judgment in Monsanto (quoted inpara. 97 above) is the paragraph which expressly says that decisions should not be madeon a purely hypothetical approach to risk founded on mere suppositions which are notscientifically verified. Thus, although the CJEU, in para. 59 of its judgment in Waddenzeerefers to the planning authority having “made certain that [the development] will notadversely affect the integrity of that site”, the CJEU was clearly not intending to overrideor reverse the approach taken previously in Monsanto. On the contrary, the CJEU wasreiterating the approach taken in para. 106 of Monsanto. In the circumstances, it seemsto me that the submission of counsel for the respondent is correct. As an expert body,the respondent is in a much better position than the court to form a view as to whether arisk which was described by an expert as no more than “negligible”, is sufficiently remoteto be discounted in the context of an Article 6 (3) appropriate assessment of risk. In myview, having regard to the approach taken in Monsanto, the respondent was not requiredto be absolutely certain that a bog movement or landslide would never occur in thefuture. The relevant standard is reasonable doubt.Post consent conditions101. As noted in para. 20 above, the applicant makes a number of complaints in relation to theconditions imposed by the respondent and contends in particular that the conditions leaveover a number of matters for consideration at a later stage, post consent. The applicantsubmits that this is contrary to the approach taken by the CJEU in Holohan. The applicantalso contends that condition 17 imposes no more than generic construction techniquesand does not include a zero silt requirement such as the condition imposed in the PeopleOver Wind case.102. In Holohan, the CJEU made clear that a planning authority may only leave matters overfor future determination where the authority is certain that the planning consentPage 41 ⇓establishes sufficiently strict conditions to guarantee that the integrity of the Natura sitewill not be adversely affected. At para. 47 of its judgment in Holohan, the CJEU said:-“ … Article 6(3) … must be interpreted as meaning that the competent authority ispermitted to grant to a plan or project development consent which leaves thedeveloper free to determine later certain parameters relating to the constructionphase, such as the location of the construction compound and haul routes, only ifthat authority is certain that the development consent granted establishesconditions that are strict enough to guarantee that those parameters will notadversely affect the integrity of the site.”103. If condition 16 were to be read on its own, one might form the impression that therespondent had left over for future determination the details of the CEMP relating to themethod statements for construction, the location of the site and material compound andthe other elements of the construction required for the development to be carried. Onemight also get a similar impression from what is said by the inspector at p.p. 89-90 of hisreport (quoted in para. 77 above) where he speaks of the proposal to prepare a detailedCEMP and a construction stage SWMP. However, condition 16 and the relevant section ofthe inspector’s report must both be read in context. In particular, they must be read inthe context of condition 2 and the detailed mitigation measures which are required to beput in place as a condition of the grant of permission. Under condition 2, Silverbirch isrequired to implement all of the environmental, construction and ecological mitigationmeasures set out in the EIS, the NIS and the other particulars furnished in the course ofthe planning appeal process including Dr. O’Connor’s report. These include, insofar ascondition 16 is concerned, all of the material set out in Chapter 2 of the EIS dealing withthe construction of turbine foundations, associated crane hardstanding areas, drainageinfrastructure, borrow pits/repositories, windfarm entrances and access roads which aredescribed at p.p. 657-662 of the EIS. They also include the detail in relation toconstruction materials, tree felling, forestry replanting works, site establishment(including temporary site facilities and access) at p.p. 678-679 of the EIS. In addition,further details are given in relation to crane hardstanding area construction, turbinefoundation construction and drainage construction and borrow pits at p.p. 680-683 of theEIS. Thus, it is clear that the matters listed in condition 16 are already addressed indetail in the material which must be read with condition 16. The CEMP required undercondition 16 is necessary so that the local planning authority will be in a position tomaintain oversight and control during the construction phase. As counsel for therespondent said, in the course of oral submissions, condition 16 is not, as contended bythe applicant, a licence to agree terms and conditions in the future. It must be seenagainst the framework of what has been already been addressed in detail in the EIS. Toparaphrase what has been said by the CJEU in Holohan, the decision of the respondentcontains conditions in condition 1 and condition 2 that are, when read with the underlyingdocuments, detailed enough and strict enough to ensure that the parameters of condition16 will not adversely affect the Blackwater SAC or the freshwater pearl mussel inparticular.Page 42 ⇓104. Insofar as condition 17 is concerned, it provides that, prior to commencement ofconstruction, construction-stage details of proposals for the management of surface waterby means of a construction SWMP must be submitted to and agreed with the planningauthority. Again, if one read condition 17 on its own, one might form the impression that,contrary to Holohan, the decision of the respondent left over important matters to beagreed in the future. However, as in the case of condition 16, it is clear that theparameters of the SWMP have already been addressed in detail in the material filedduring the course of the appeal, in particular in the SWMP described in paras. 88 to 90above. By virtue of conditions 1 and, in particular, condition 2, Silverbirch is obliged tocarry out surface water management measures in accordance with the existing SWMP.The purpose of condition 17 is to ensure that the local planning authority will be in aposition to oversee and monitor the carrying out of those surface water managementmeasures in accordance with the criteria set out in the SWMP which has already beenreviewed and accepted by the respondent. In those circumstances, I cannot see howthere is any breach of the principles laid down by the CJEU in Holohan insofar as condition17 is concerned.105. As noted in para. 20 (g) above, the case is also made that condition 17 imposes no morethan a requirement to follow generic construction techniques and that the condition failsto impose a zero silt limit such as that imposed in the People Over Wind case. However,as discussed in paras. 86-87 above, there is, in substance but not in name, a zero siltrequirement in this case as a consequence of the commitment made by Silverbirch thatany surface water run-off must be treated to ensure that it is free from suspended solidsoils or any other polluting material. Furthermore, there are a suite of very specificmeasures which Silverbirch is required to take in this case (as outlined in paras. 88 to 91above) which are very clearly designed to ensure that sediment is not released into anywatercourse. Very specific measures are to be put in place which are designed to protectthe freshwater pearl mussel. The measures in question are detailed and impressive and Ido not believe that one can dismiss them as being merely “generic”.106. With regard to condition 18, it provides for a number of measures in order to protectwater quality and aquatic ecology including the freshwater pearl mussel. Condition 18requires that the water quality downstream should not materially deteriorate as a resultof felling or construction. It also requires that proposals for a detailed programme ofwater quality monitoring throughout the construction period should be submitted to andagreed with the planning authorities. Finally, it requires that continuous turbiditymonitors should be installed upstream and downstream of the site during any fellingactivities and construction. Similar issues arise in relation to condition 18. The applicantargues that condition 18 is not sufficiently precise. The case is also made that it leavesover matters for agreement with the planning authority. There is also a contention thatthe relevant standard to which monitoring is to take place is not specified anywhere in thecondition.107. I take a similar view in relation to condition 18 as I did with regard to conditions 16 and17. While condition 18, on its face, might appear to be imprecise and contrary to thePage 43 ⇓Holohan principle, it must also be read in context. In particular, it must be read withcondition 2 and with all of the material that was placed before the respondent whichSilverbirch is now required to implement in order to protect the freshwater pearl mussel.This includes all of the measures previously discussed in paras. 88 to 91 above and themeasures in the report of Dr. O’Connor. That report also provides the relevant limitsagainst which the requirements of condition 18 are to be assessed. Insofar as mattersare left over for agreement with the local planning authority, it is clear that the measuresin question have already been prescribed in the EIS and the SWMP which were before therespondent and which are now enforceable pursuant to conditions 1 and 2. It isimportant that the local planning authority should have oversight and control over thecarrying out of the measures (the parameters of which are already set out in the materialfurnished to the respondent) so as to ensure that Silverbirch and any contractor retainedby it should fully implement the measures concerned.Conclusions in relation to appropriate assessment108. For the reasons discussed in paras. 101 to 107 above, I am of opinion that the case madeby the applicant in relation to conditions 16, 17 and 18 must fail. It also seems to methat the balance of the applicant’s complaints in relation to appropriate assessment,insofar as the freshwater pearl mussel is concerned, has not been made out. The onlyelement of the applicant’s case that succeeds in relation to appropriate assessment is inrelation to the hen harrier to the extent that it is unclear from the inspector’s report howa conclusion could have been reached that all of the potential impacts on the hen harrierhad been satisfactorily resolved at the stage 2 appropriate assessment.EIA109. It is fair to say that, save for the issue addressed in para. 110 below, there was very littlediscussion at the hearing (or in the written submissions of the parties) of EIA issues. Theprincipal argument made on behalf of the applicant was that there was no evidence thatany EIA had been carried out by the respondent. This was on the basis that there is anabsence of any reference to the carrying out of an EIA in the board direction issued by therespondent or in the decision ultimately made by the respondent. Nonetheless, theapplicant also made a case (as recorded in para. 20 above) that there had been nosatisfactory analysis, evaluation or assessment of the direct and indirect effects andimpacts of the proposed development on the receiving environment contrary to ss. 171Aand 172 of the 2000 Act and Article 3 of the EIA Directive (Directive 2014/52/EU). Thecase was also made that the only EIA carried out was in respect of turbines 8 and 9 andthat no assessment of the remaining turbines had been carried out. To that extent, therewas an overlap between the case made in relation to appropriate assessment and inrelation to EIA.110. The first issue to be addressed is whether, having regard to the absence of any referenceto an EIA in the board direction and decision of the respondent, it can be said that an EIAwas carried out by it. In this context it is clear from the board direction dated 23rdNovember, 2018 that the decision of the respondent to grant permission for thedevelopment was significantly based on the inspector’s report and recommendations. Thesecond paragraph of the board direction expressly states that the respondent:Page 44 ⇓“…decided to grant permission generally in accordance with the Inspector’srecommendation …”.The board direction also refers to the EIS submitted by Silverbirch.111. In its subsequent decision of 27th November, 2018 the respondent explicitly had regardto, inter alia, the EIS the submissions and observations made in connection with theplanning application and appeal (including the observations and submissions made inrelation to the environmental and Natura impacts of the proposed development), and theinspector’s report. The decision also expressly states that the respondent accepted andadopted the appropriate assessment carried out in the Inspector’s report in respect of thepotential effects of the proposed development on the conservation objectives of, interalia, the Stacks SPA and the Blackwater SAC. It will be recalled that the inspector, in hisreport, expressly adopted, as part of his appropriate assessment, the assessmentpreviously described in the EIA exercise carried out by him. That said, it is striking thatthere is no express adoption by the respondent of the EIA carried out by the inspector.112. The relevant legal principles are very usefully summarised and considered in thejudgment of Cregan J. in Buckley v. An Bord Pleanála [2015] IEHC 572. In that case,there was a sentence in the decision of the respondent in relation to EIA in which therespondent stated that it noted the inspector’s report. The question which arose forconsideration was whether that was sufficient to establish that the board had adopted theinspector’s report (which contained a very full EIA). The applicant in that case arguedthat there had been no adoption of the inspector’s report as required by s. 172 (1H) ofthe 2000 Act under which it is provided that, in carrying out an EIA, a planning authorityor the respondent may have regard to and adopt in whole or in part any reports preparedby officials, consultants, experts or other advisors.113. In his judgment, Cregan J. reviewed the relevant case law including the decision of theSupreme Court in Ní Eili v. EPA (Supreme Court, unreported, 30th July, 1999, Murphy J.),the decision of Clarke J. (as he then was) in Maxol v. An Bord Pleanála [2011] IEHC 537,the decision of Finnegan J. (as he then was) in Fairyhouse Club Ltd v. An Bord Pleanála(High Court, unreported, 18th July, 2001), the decision of Kelly J. (as he then was) inCork City Council v. An Bord Pleanála [2007] 1 IR 761 and the decision of Baker J. inOgalas v. An Bord Pleanála [2015] IEHC 205. Those decisions demonstrate very clearlythat it is not necessary that the respondent should expressly adopt the report of aninspector where it is reasonable to conclude that the respondent adopted the reasoning ofthe inspector in arriving at its decision. Cregan J. also cited, in this context, theobservations of McCarthy J. in the Supreme Court in Re. XJS Investments Ltd [1986] I.R.750 where McCarthy J., at p. 756, stressed that planning documents are not to be read inthe same way as legislation emanating from skilled draftsmen. They are to be construedin their ordinary meaning as it would be understood by members of the public withoutlegal training. Cregan J. also referred to the judgment of Haughton J. in RatheniskaTimahoe and Spink Substation Action Group v. An Bord Pleanála [2015] IEHC 18. Atpara. 117 of his judgment, Cregan J. came to the following conclusion:-Page 45 ⇓“117. On the facts of the present case, it is clear that the inspector carried out an [EIA].Indeed the Applicant accepts that were this ‘adopted’ by the Board then itsargument would fall away. In circumstances however, where the Board in itsdecision, at the very outset, stated that it decided to grant permission ‘generally inaccordance with the inspector’s recommendations for the following reasons andconsiderations and subject to the following conditions’ and that it had regard to ‘thereport of the inspector’ and that it adopted all 25 conditions in the Inspector’sReport, I am of the view that it is clear that the Board did ‘adopt’ the Inspector’sReport and carry out an appropriate EIA in accordance with its statutoryobligations.”114. The present case is not quite on all fours with the facts which were considered by CreganJ. in Buckley. Nonetheless, it seems to me that, applying the principles set out in thejudgment of Cregan J. and the further case law analysed by him, the result must be thesame. In this case, the respondent expressly stated in the board direction drawn up onthe date of the meeting at which the respondent considered the appeal that it decided togrant permission generally in accordance with the recommendations of the inspector. Inaddition, as noted in the decision itself, the respondent expressly states, as part of itsreasons and considerations, that it has had regard to the report of the inspector.Furthermore, in common with the facts considered by Cregan J. in Buckley, the conditionsattached to the respondent’s decision are precisely those which were recommended bythe inspector. In those circumstances, it seems to me to be reasonable to conclude thatthe respondent adopted the report of the inspector for the purposes of arriving at itsdecision. Thus, if the inspector carried out an EIA which meets the requirements of s.171A of the 2000 Act and of the EIA Directive, it follows that this has been adopted bythe respondent. In such circumstances, there is no substance to the complaint made bythe applicant that the respondent failed to carry out an EIA.115. It is therefore necessary to consider (to the extent that this arises on the basis of thestatement of grounds) whether the EIA carried out by the inspector satisfies therequirements of s. 171A of the 2000 Act and the EIA Directive. In this context, it isimportant to bear in mind that the focus of the applicant’s case has been the hen harrierand the freshwater pearl mussel. While that case was principally made in the context ofappropriate assessment, this overlapped with the case made in respect of EIA. Theapplicant contended that there had been a failure to examine, analyse and evaluate thedirect and indirect effects of the proposed development on the hen harrier and thefreshwater pearl mussel. There was no attack on the EIA in other respects. This isunsurprising given the very extensive material contained in the report of the inspector inrelation to EIA. The inspector’s report runs to 137 pages in total. 61 of those pages aretaken up with the very detailed EIA carried out by the inspector which, subject to what Isay below in respect of the hen harrier, assesses the direct and indirect effects of theproposed development on each of the interests identified in s. 171A (1) of the 2000 Act.116. Insofar as the hen harrier and the freshwater mussel are concerned, I have alreadyexplained in paras. 46-61 above that the inspector has identified all of the potentialPage 46 ⇓effects on both species in his report. Furthermore, having regard to my finding thatprecise and definite conclusions have been reached as to the absence of adverse impactson the freshwater pearl mussel, it must follow, in my view, that, for the purposes of EIA,this amounts, in substance, to a finding that there will be no direct or indirect effects onthe mussel.117. The position is, however, different insofar as the hen harrier is concerned. I have alreadydrawn attention in paras. 72 – 74 above to the fact that the report is silent in relation tothe effects on the hen harrier in respect of those elements of the development other thanturbines T8 and T9. It seems to me to follow that the report is insufficiently complete toform the view that the inspector has identified all of the actual effects (whether direct orindirect) of the development on the hen harrier. As noted in para. 76 above, it may wellbe the case that the inspector was in a position to form the view that the development(other than turbines T8 and T9) would not have an effect on the hen harrier. However, asthe report does not, in my view, rule out the possibility that such effects might occur, Iam compelled to conclude that there was no sufficient evidence that an EIA wascompleted in respect of the effects of the development (other than turbines T8 and T9) onthe hen harrier. It seems to me to follow that, accordingly, the decision of therespondent must be quashed on the grounds that there is insufficient evidence toconclude that an EIA was completed in respect of the effects of the development on thehen harrier. However, there may well be a basis to remit the matter to the respondentfor further determination. I will, however, postpone making any order to that effectpending further submissions from the parties.Overall Conclusion118. For the reasons outlined above, I have come to the conclusion that the decision of therespondent must be quashed on the grounds set out in paras. 76 and 117 above. I findagainst the applicant in relation to the balance of the claim made by it. I will hear theparties in due course in relation to any consequential orders that should follow. I will alsohear the parties in relation to whether or not the matter should be remitted to therespondent.