Opinion of the Advocate General — ECLI:EU:C:2020:320
Date: 2020-04-30
Language of the case: English
Subject matter: Environment
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Ireland

summary, therefore, the 2008 planning permission was granted pursuant to a national
legislative regime which did not properly transpose the Habitats Directive. The formal
decision to grant planning permission makes no reference to the Habitats Directive at all
nor does it refer to the two European Sites. Accordingly, the decision cannot be said to
contain "complete, precise and definitive findings and conclusions capable of removing
all reasonable scientific doubt as to the effects of the proposed works on the site
concerned" as required under Case C-404/09 Commission v. Spain
(ECLI:EU:C:2011 :768).
10. The 2008 planning permission imposed a ten-year time-limit on the carrying out and
completion of the proposed development works ("construction phase"). The permission
does not purport to impose a time-limit on the operation of the gas terminal thereafter
("operational phase").
11. In the event, no development works were ever commenced during this ten-year period.
In brief, the developer explains that delays arose inter alia as a result of changes to the
Irish policy on access to the national gas transmission grid, and, more generally, as a
result ofthe economic situation from 2008.
12. In September 2017, the Developer made an application to alter the terms of the
development so as to extend the construction phase for a further five years. An Bord
Pleanala made a decision granting this application, with the result that the construction
phase will now expire on 31 March 2023.
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13. This decision was challenged by way of judicial review proceedings before the High
Court. The High Court has decided to refer a number of questions to the CJEU.
4. THERELEVANT LEGAL PROVISIONS
EU legislation
14. Article 6(3) of the Habitats Directive is the principal provision of EU law in respect of
which an interpretation is sought from the CJEU.
Irish national legislation
15. The following provisions of the Planning and Development Act 2000 (No. 30 of 2000)
("the PDA 2000") are relevant.
16. Section 40(1) of the PDA provides that after the expiration of the construction phase of
a planning permission, the permission shall cease to have effect.
"40.-{1) Subject to subsection (2), a permission granted under this Part, shall on
the expiration of the appropriate period (but without prejudice to the validity of
anything done pursuant thereto prior to the expiration of that period) cease to have
effect as regards-
(a) in case the development to which the permission relates is not commenced
during that period, the entire development, and
(b) in case the development is commenced during that period, so much of the
development as is not completed within that period."
17. Section 42 of the PDA 2000 provides for the extension of the duration of a planning
permission. In brief, section 42 provides two alternative bases upon which an application
for an extension of duration can be made. The first is where substantial works have been
carried out pursuant to the planning permission during the period sought to be extended,
and the development will be completed within a reasonable time. The second is where
there were considerations of a commercial, economic or technical nature beyond the
control of an applicant which substantially militated against either the commencement of
the development or the carrying out of substantial works pursuant to the planning
perrmssion.
18. In the case of the second basis, i.e. commercial, economic or technical considerations,
there are a number of safeguards built into section 42 in order to ensure that stale planning
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permissions do not undermine the evolution of planning policy. For example, an
extension of duration cannot be granted if there have been significant changes in
development objectives in the development plan since the date of the permission such
that the development would no longer be consistent with the proper planning and
sustainable development of the area. It is also necessary that there not be an
inconsistency with Ministerial guidelines.
19. Relevantly, a further safeguard is built-in to ensure compliance with both the EIA
Directive and the Habitats Directive. More specifically, where the development has not
commenced, the local planning authority must be satisfied that an environmental impact
assessment, or an appropriate assessment, or both of those assessments, if required, was
or were carried out before the planning permission was granted. (Section 42(l)(a)
(ii)(IV».
20. Section 42 contains a further safeguard in terms of the length of time for which an
extension of duration can be granted. It is expressly provided that the additional period
cannot exceed five years. Moreover, an application for an extension of duration can only
be made once.
21. Sections 146B and 146C of the PDA 2000 provide a procedure whereby a particular type
of planning permission, available in the case of strategic infrastructure development, can
be altered. No express provision is made under these sections for the carrying out of
screening or appropriate assessment for the purposes of the Habitats Directive.
22. Section 50 of the PDA 2000 (as amended) provides that a person shall not question the
validity of a planning decision other than by way of an application for judicial review.
An application for judicial review is subject to an eight-week time-limit. The High Court
has a discretion to extend time in certain specified circumstances.
23. The existence of this time-limit has been interpreted by the national courts as precluding
a litigant from raising-in judicial review proceedings directed to a subsequent planning
decision-complaints that are, in substance, directed to an earlier planning decision in
respect of which the time-limit has long since expired. A court may strike out judicial
review proceedings on this basis. In this regard, the court will look to the substance of
the challenge rather than merely its form. Thus the absence of a formal plea seeking to
set aside the earlier planning decision is not conclusive.
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24. There appears to be a tension between (i) the domestic jurisprudence on time-limits, and
(ii) the case law of the CJEU which identifies a remedial obligation on a competent
authority. This remedial obligation had been identified in the judgments in Case
C-201/02 Wells (ECLI:EU:C:2004:12), and Case C-348/15 Stadt Wiener
(ECLI:EU:C:2016:882). The case law of the CJEU appears to distinguish between (i)
the setting of a time-limit for the bringing of proceedings against development consents
alleged to have been issued in breach of the EIA Directive, and (ii) the (continued)
remedial obligation on a competent authority. Presumably, similar principles apply to
the Habitats Directive: certainly, the judgment in Case C-399/14 Grune Liga
(ECLI:EU:C:2016:10)-albeit in the context of Article 6(2) of the Habitats Directive-
accepts that the adequacy of an appropriate assessment may have to be reviewed
subsequently.
25. The national legislation implementing the Habitats Directive was overhauled following
the judgment of the CJEU in Case C-418/04 Commission v. Ireland
(ECLI:EU:C:2007:780). The two principal pillars of the new regime are Part XAB of
the PDA 2000 (as inserted by the Planning and Development (Amendment) Act 2010),
and the Birds and Natural Habitats Regulations 2011 (S.1. No. 477 of 2011). The
intention seems to be that the two regimes should be mutually exclusive, i.e.
environmental decision-making will be subject to one or the other, but not to both
regimes. As discussed, however, An Bord Pleanala maintains that there is a third
category of environmental decision-making which falls outwith either regime.
26. In the case of each regime, the legislation establishes a general framework which fulfils
the procedural requirements of the Habitats Directive, and then identifies the type of
environmental decision-making which is subject to the general framework. This has the
advantage of avoiding the necessity of introducing amendments to numerous pieces of
individual legislation.
27. The range of decisions subject to Part XAB of the PDA 2000 is narrower than the Birds
and Natural Habitats Regulations 2011. Part XAB applies to decisions defined as
"consent for proposed development" under section 177U(8)of the PDA 2000 as follows.
"(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,
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(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 of2001,
(g) approval for development under section 51 of the Roads Act 1993, or
(h) a substitute consent under Part XA."
28. These are all decisions which are either made under the PDA 2000, or by An Bord
Pleanala exercising a function which has been transferred to it such as, for example, under
the Roads Acts.
29. Relevantly, this list of decisions does not include a decision under either section 42 or
section 146B of the PDA 2000.
30. The Birds and Natural Habitats Regulations 2011 are much broader in their scope. Their
range is determined by the related definitions of "consent" and "project" under regulation
2 thereof.
31. A "consent" is defined as follows.
"'consent' includes any licence, perrmssion, permit, derogation, dispensation,
approval or other such authorisation granted by or on behalf of a public authority,
relating to any activity, plan or project that may affect a European Site, and includes
the process of adoption by a public authority of its own land use plans or projects;"
32. A "project" is defined as follows.
"'project', subject to the exclusion, except where the contrary intention appears, of
any project that is a development requiring development consent within the
meaning of the Planning and Development Acts 2000 to 2011, includes-
(a) land use or infrastructural developments, including any development of
land or on land,
(b) the extraction or exploitation of mineral resources, prospecting for mineral
resources, turf cutting, or the exploitation of renewable energy resources,
and
(c) any other land use activities,
that are to be considered for adoption, execution, authorisation or approval,
including the revision, review, renewal or extension of the expiry date of previous
approvals, by a public authority and, notwithstanding the generality of the
preceding, includes any project referred to at subparagraphs (a), (b) or (c) to which
the exercise of statutory power in favour of that proj ect or any approval sought for
that project under any of the enactments set out in the Second Schedule of these
Regulations applies;"
.---------- ._---, ...
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33. An attempt has been made in the definition of "project" to ensure that there is no overlap
between the Birds and Natural Habitats Regulations 2011 and the provisions of Part XAB
of the PDA 2000. As appears, if a "project" is a development requiring "development
consent" within the meaning of the PDA 2000, then it falls outwith the scope of the 2011
Regulations. The difficulty with the statutory language, however, is that the term
"development consent" is not actually a defined term under the PDA 2000. The closest
one comes to finding such a definition under the PDA 2000 is the definition of "consent
for proposed development" under section 177U(8). The term "development consent" is,
of course, defined under European law, and, in particular, under the EIA Directive.
34. One might have assumed that the two regimes, i.e. Part XAB and the 2011 Regulations,
would be mutually exclusive. On this assumption, the inclusion of reference to
development consents under the PDA 2000 in the definition of"project" under regulation
2 of the 2011 Regulations was intended to indicate that if a particular decision-making
procedure is subject to Part XAB of the PDA 2000, then there is no need to duplicate
those requirements under the 2011 Regulations. However, the statutory language
actually used is imprecise.
5. THE GROUNDSFOR THEREFERENCE
35. The principal issue in dispute in these proceedings is whether an extension or
prolongation of the construction phase of a development consent engages Article 6(3) of
the Habitats Directive. A similar issue is before the CJEU in Case C-411117 Inter-
Environnement Wallonie ASBL. Advocate General Kokott delivered her Opinion on
29 November 2018: ECLI:EU:C:2018:972.
36. For the following reasons, the High Court has concluded that the anticipated judgment in
Case C-411/17 is unlikely to address all of the issues which the High Court has to resolve
in the main proceedings before it. First, the nature of the extension of duration being
sought is different as between the two sets of proceedings. Case C-411117 is concerned
with a time-limit on the operational phase of a project. Specifically, the production of
electricity would have been required to cease by 2015 but for the amendment
subsequently made to Belgian national legislation. The main proceedings before the
High Court, conversely, are concerned with a time-limit on the construction phase of a
---~ --- ----~----
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project. It can be anticipated, therefore, that even if the CJEU were to hold in Case
C-41 1117that the Habitats Directive was engaged on the facts of that case, there would
be an outstanding issue before the High Court as to whether different principles apply to
a time-limit on a construction phase.
37. Secondly, the underlying facts of Case C-411117 involve a nuclear power station. The
case thus presents issues in respect of transboundary impacts, and this gives rise to issues
in relation to the Espoo Convention which are inapplicable to the main proceedings
before the High Court. It also potentially raises issues under the Treaty establishing the
European Atomic Energy Community.
38. Thirdly, the fact that An Bord Pleanala carried out a screening exercise on an ad hoc
basis means that it may be necessary to determine the question of what considerations a
decision-maker is required to take into account in carrying out a screening assessment in
the context of an application to extend the duration of a development consent. The
question then becomes what precisely has to be assessed. Is it sufficient that the
competent authority identifies changes in the regulatory background, e.g. (i) the
designation of European Sites in the interim; (ii) altered environmental conditions in the
surrounding area; and (iii) new scientific findings; or, alternatively, is the competent
authority required to reconsider the very principle of the project. Itwill also be necessary
to examine whether the answer to this question might be different in circumstances where
there had not been proper compliance with the requirements of the Habitats Directive at
the time of the grant of the original planning permission. (cf. Case C-201l02 Wells, and
Case C-399/14 Grune Liga).
39. Fourthly, the fact that the 2008 planning permission had ceased to have effect prior to
An Bord Pleanala making its decision to extend the duration of the permission may be
relevant to the analysis of the CJEU in an Article 267 reference from the High Court. It
is at least arguable that a decision to revive a planning permission which has expired is
more akin to the grant of a "development consent" than is a decision to prolong a
subsisting planning permission.
40. Fifthly, there is already provision made under Irish national law which would appear to
be intended to ensure compliance with the requirements of the Habitats Directive in the
context of an application to extend the duration of a planning permission, namely section
42 of the PDA 2000. The High Court considers that, on the correct interpretation of the
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PDA 2000, an application to extend the duration of a planning permission can only be
made pursuant to section 42, and cannot be made pursuant to section 146B and 146C.
The Developer contends that the High Court is not entitled to rely on this interpretation
of national legislation in circumstances where the applicant for judicial review has not
included an argument in its pleadings to the effect that the decision to extend the planning
permission was made pursuant to the incorrect section. An issue arises as to whether the
obligation upon a national court, such as the High Court, to interpret national law in the
light of EU law can be made contingent on the parties to the main proceedings having
raised an express plea in that regard.
41. Finally, An Bord Pleanala and the Developer contend that it is not open to an objector,
in the context of an application for judicial review challenging the validity of a decision
to grant an extension of duration of a development cbnsent to contend that the initial
decision to grant development consent was invalid for failure to comply with the Habitats
Directive. This issue gives rise to the sixth question below.
6. PROPOSED QUESTIONS FORARTICLE 267REFERENCE
(1). Does a decision to extend the duration of a development consent constitute the
agreement of a project such as to trigger Article 6(3) of Council Directive 921431EEC
of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora
(hereinafter "the Habitats Directive")? 1
(2). Is the answer to Question (1) above affected by any of the following considerations?
(A) The development consent (the duration of which is to be extended) was granted
pursuant to a provision of national law which did not properly implement the
Habitats Directive in that the legislation incorrectly equated an appropriate
assessment for the purposes of the Habitats Directive with an environmental
impact assessment for the purposes of the EIA Directive (Directive
2011192IEU).2
(B) The development consent as originally granted does not record whether the
consent application was dealt with under Stage 1 or Stage 2 of Article 6(3) of
the Habitats Directive, and does not contain "complete, precise and definitive
findings and conclusions capable of removing all reasonable scientific doubt as
to the effects of the proposed works on the site concerned" as required under
Case C-404/09 Commission v. Spain.
(C) The original period of the development consent has expired, and as a
consequence the development consent has ceased to have effect in respect of the
entire development. No development works can be carried out pursuant to the
development consent pending its possible extension.
(D) No development works were ever carried out pursuant to the development
consent.
1 OJ L 206,22.7.1992, p. 7-50.
2 OJ L 26, 28.1.2012, p. 1-21.
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(3). In the event that the answer to Question (1) is "yes", what considerations are the
competent authority required to have regard to in carrying out a Stage 1 screening
exercise pursuant to Article 6(3) of the Habitats Directive? For example, is the
competent authority required to have regard to any or all of the following
considerations: (i) whether there are any changes to the proposed works and use; (ii)
whether there has been any change in the environmental background, e.g. in terms of
the designation of European Sites subsequent to the date of the decision to grant
development consent; (iii) whether there have been any relevant changes in scientific
knowledge, e.g., more up-to-date surveys in respect of qualifying interests of European
Sites? Alternatively, is the competent authority required to assess the environmental
impacts of the entire development?
(4). Is there any distinction to be drawn between (i) a development consent which imposes
a time-limit on the period of an activity (operational phase), and (ii) a development
consent which only imposes a time-limit on the period during which construction works
may take place (construction phase) but, provided that the construction works are
completed within that time-limit, does not impose any time-limit on the activity or
operation?
(5). To what extent, if any, is the obligation of a national court to interpret legislation insofar
as possible in accordance with the provisions of the Habitats Directive and the Aarhus
Convention subject to a requirement that the parties to the litigation have expressly
raised those interpretive issues? More specifically, if national law provides two
decision-making processes, only one of which ensures compliance with the Habitats
Directive, is the national court obliged to interpret national legislation to the effect that
only the compliant decision-making process can be invoked, notwithstanding that this
precise interpretation has not been expressly pleaded by the parties in the case before
it?
(6). If the answer to Question (2)(A) above is to the effect that it is relevant to consider
whether the development consent (the duration of which is to be extended) was granted
pursuant to a provision of national law which did not properly implement the Habitats
Directive, is the national court required to disapply a rule of domestic procedural law
which precludes an objector from questioning the validity of an earlier (expired)
development consent in the context of a subsequent application for development consent?
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Is such a rule of domestic procedural law inconsistent with the remedial obligation as
recently restated in Case C-348/15 Stadt Wiener?
Mr Justice Garrett Simons
High Court of Ireland
Dated 13 March 2019.