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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ryanair Designated Activity Company v An Bord Pleanala (Approved) [2025] IEHC 74 (14 February 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025_IEHC_74.html Cite as: [2025] IEHC 74 |
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[2025] IEHC 74
THE HIGH COURT
PLANNING & ENVIRONMENT
[H.JR.2024.0000745]
IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000
BETWEEN
RYANAIR DESIGNATED ACTIVITY COMPANY
APPLICANT
AND
AN BORD PLEANÁLA
RESPONDENT
AND
DAA PLC
NOTICE PARTY
JUDGMENT of Humphreys J. delivered on Friday the 14th day of February 2025
1. The Water Framework Directive (WFD) requires that a planning decision-maker should refuse permission for a project if it may cause a deterioration of the status of a body of surface water or jeopardise the attainment of good surface water status or of good ecological potential and good surface water chemical status. Taking time out from running one of the world's largest and most successful airlines in order to commendably champion the strict enforcement of European environmental law, with the benefit, quite rightly, of the costs protection of the Aarhus Convention in so doing, Ryanair complains that the wording of the board's decision granting permission for an airport underpass and related works doesn't expressly address the latter limb of the prohibition. The primary issue is whether that point is effectively academic because the applicant hasn't established anything on the facts that would require such consideration or that would raise an issue under that limb that doesn't arise under the first limb.
2. This relates to a development on four sites located within lands in the ownership of daa, including two sites at the airfield in the townlands of Collinstown, Coultry and Huntstown, Co. Dublin. The proposed development will consist of the construction of a subterranean underpass of runway 16/34 and all associated and ancillary works. The planning application is accompanied by an environmental impact assessment report (EIAR) and a Natura Impact Statement (NIS) (https://www.pleanala.ie/en-ie/case/316138).
3. As stated in the EIAR:
"1.1.2 The Airport is unofficially divided into an Eastern Campus and a Western Campus, with the Crosswind Runway (16/34) bisecting the two. Passenger activity is concentrated in the Eastern Campus which hosts key Airport infrastructure, including the Terminal buildings, passenger piers, and the majority of aircraft stands. The primary infrastructure supporting surface access to the Airport operates on the East also, including the Ground Transportation Centre, short-term car parking, taxi holding area and main access roads. Operations in the Western Campus are currently focused on the West Apron which is mainly used for cargo operations, General Aviation, and contingency stands, as well as transit and business aviation.
1.1.3 The current means of access from the Eastern Campus to the Western Campus - the West Apron Surface Crossing, directly over Runway 16/34 - will no longer be viable once the new North Runway becomes operational in 2022, as Runway 16/34 will be required as an additional taxiway as well [as] having a continuing role for essential occasional use in line with the terms of Condition 4 of the North Runway Planning Permission. The Irish Aviation Authority (IAA) has also advised that the continued use of the Surface Crossing after the opening of the North Runway is, unsustainable from a safety perspective. All traffic to and from the West Apron will, as described in Chapter 3: Proposed Development, then have to use the 8km Perimeter Road.
1.1.4 The permanent solution which best suits the operational and regulatory requirement to provide safe, efficient, dedicated access to the West Apron, that avoids interfaces with operational runways and taxiways, is to construct an underpass beneath the taxiways and Runway 16/34. Compared with the other alternatives that have been studied, this has the advantage of providing quick, safe access from the eastern campus to the western campus. Alternatives are discussed in more detail in Chapter 2: Alternatives."
4. The notice party made the application to Fingal County Council (the council) for permission for inter alia the construction of a subterranean underpass on 1st September 2022.
5. The applicant made a submission on the planning application on 3rd October 2022.
6. A planner's report was prepared by the council on 26th October 2022, and recommended that further information be sought from the notice party.
7. The notice party submitted further information on 21st December 2022.
8. The applicant made a submission on the further information provided by the notice party on 20th January 2023.
9. A second planner's report was prepared by the council on 27th February 2023, which considered the further information and recommended that permission be granted for the proposed development subject to conditions.
10. By decision dated 27th February 2023, permission for the proposed development was granted by the council.
11. The applicant lodged an appeal to the board of the council's decision on 24th March 2023.
12. The notice party lodged an appeal to the board in respect of a number of conditions imposed by the council and an appeal was also lodged by SMTW Environmental DAC.
13. The notice party made submissions on the appeals on 24th April 2023.
14. The board sought further submissions on 17th May 2023 from the parties to the appeals.
15. The notice party lodged a responding submission on 1st June 2023.
16. A s. 132 notice was issued by the board on 7th July 2023.
17. The notice party made a submission in respect of that request on 25th July 2023.
18. The applicant made a submission on the notice party's s. 132 submission on 12th September 2023.
19. The board's scientist also prepared a report on the proposed development dated 12th December 2023.
20. The board's ecologist prepared a report on the proposed development dated 14th December 2023.
21. The board's inspector prepared a report following a site inspection on 22nd November 2023, and that report is dated 19th December 2023.
22. A board direction was made on 8th March 2024 (BD-015770-24), in which it was recorded that the board had decided to grant permission generally in accordance with the inspector's recommendation.
23. By order dated 17th April 2024 (ABP-316138-23), the board granted permission for the proposed development subject to 13 conditions.
24. Following the making of the present application, a separate application (F23A/0781) was made (the infrastructure application), which involves daa seeking to increase the passenger cap, and put in place infrastructure including the underpass at issue here. That was made on what was described a "precautionary" basis, although in that context daa is also seeking permission for additional stands (so the material contravention issue argued in the present case wouldn't presumably arise).
25. The infrastructure application was made to the council on 15th December 2023.
26. In the infrastructure application, following the bullet-point list under Project Element 11: Junction Improvements it is stated that: "Overall the proposed development will result in a [loss] of 4no. Narrow Body Equivalent (NBE) stands (2no. at Pier 3 and 2no. at Pier 4), however there will be an overall net increase of 33no. NBE stands across the airfield resulting in a total capacity of 167no. NBE."
27. A request for further information was made by the council on 16th February 2024.
28. That request was responded to by daa on 13th November 2024.
29. The council considered that response to further information to be "significant additional information", hence advertisement was required.
30. The final date for third-party observations/submissions was 8th January 2025, and the matter remains before the council.
31. These proceedings were issued on 7th June 2024.
32. The applicant was given leave to commence judicial review proceedings on 24th June 2024 (the order being perfected on 27th June 2024).
33. The applicant issued an originating notice of motion on 28th June 2024, with a return date of 8th July 2024.
34. The opposing parties accepted that s. 50B of the Planning and Development Act 2000 applies to the proceedings.
35. On 21st October 2024, a hearing date was allocated in February 2025 by way of the expedited procedure.
36. The board filed its opposition papers on 8th November 2024.
37. The notice party filed its opposition papers on 14th November 2024.
38. The applicant served its written submissions on 13th January 2025.
39. The board served its written submissions on 22nd January 2025.
40. The notice party served its written submissions on 28th January 2025.
41. The applicant served its replying written submissions on 31st January 2025.
42. The matter was listed for hearing on 6th February 2025 for 3.5 hours, after which judgment was reserved.
43. The reliefs sought in the statement of grounds are as follows:
"1. An order of Certiorari by way of application for judicial review quashing the Board Order of 17th April 2024 (ABP Ref 316138-23) granting the Notice Party permission for the construction of a tunnel and associated works at Dublin Airport.
2. Such declaration(s) of the legal rights and/or legal position of the applicant and/or persons similarly situated as the court considers appropriate.
3. A Declaration that Section 50B of the Planning and Development Act 2000 as amended, and/or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure Campaign Limited v. An Bord Pleanála whereby in proceedings where the application of national environmental law is at issue, it is for the national court to give an interpretation of national procedural law which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) and (4) of the Aarhus Convention, apply to these proceedings.
4. Further or Other Order.
5. Costs."
44. The pleaded core grounds of challenge are as follows:
"Domestic Law Grounds
1. The decision of the Board of 17th April 2024 (ABP Ref 316138-23)('the impugned decision') granting the Notice Party permission for the construction of a tunnel and associated works at Dublin Airport is invalid as no notice was given to statutory consultees pursuant to Article 28(g) of the 2001 Regulations in respect of a development that might have a significant effect on waterways, further particulars of which are contained at Part 2 below.
2. The impugned decision is invalid as the Board did not comply with the requirements of section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended) and/or failed to have regard to relevant considerations and/or had regard to irrelevant considerations and/or failed to adequately consider Climate Action Plan 2023 and/or Carbon Budgets and/or Sectoral Emissions Ceilings and/or failed to provide any or any adequate reasons and/or less carbon intensive alternatives, further particulars of which are contained at Part 2 below.
3. The impugned decision is invalid in that it contains a material legal error, as the Board incorrectly concluded that the proposed development was consistent with the Dublin Airport Local Area Plan 2020, and/or took into account irrelevant considerations, and/or failed to take into account relevant considerations, and/or failed to give adequate reasons, further particulars of which are contained at Part 2 below.
European Law Grounds
4. The impugned decision is invalid because planning permission was granted in breach of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (the 'Water Framework Directive') and/or Regulations 4 and 5 of the European Communities Environmental Objectives (Surface Waters) Regulations 2009. This is because the Board did not ensure that the grant of planning permission would not cause a deterioration in the status of a body of surface water, or that it would not jeopardise the attainment of good surface water status or of good ecological potential and good surface water chemical status and/or the Board could not have arrived at that conclusion in the absence of the classification of the receiving water bodies for the purpose of the Surface Water Regulations and/ or the Board failed to identify describe and assess the significant environmental impacts for the purposes of section 171A and 172 of the Planning and Development Act and the EIA Directive, further particulars of which are contained at Part 2 below.
5. The impugned decision is invalid as the Board failed to consider adequately or at all the environmental effects of the proposed development on the environment in terms of impacts on bat fauna for the purposes of section 171A and 172 of the Planning and Development Act 2000 and/or had no objective information before it to support a conclusion of no significant effects on the environment for the purposes of that EIA assessment and/or contained lacuna, further particulars of which are contained at Part 2 below.
6. The impugned decision is invalid because the Board erred in law in excluding the possibility of significant effects on the Northwest Irish Sea SPA (Site Code 004236) at Screening Stage and/or unlawfully relied on mitigation measures for the purposes of that assessment and/or the Board's conclusion of no significant effect is irrational and unreasonable and/or the Board failed to provide any or any adequate reasons, further particulars of which are contained at Part 2 below."
46. Core ground 3 is:
"3. The impugned decision is invalid in that it contains a material legal error, as the Board incorrectly concluded that the proposed development was consistent with the Dublin Airport Local Area Plan 2020, and/or took into account irrelevant considerations, and/or failed to take into account relevant considerations, and/or failed to give adequate reasons, further particulars of which are contained at Part 2 below."
47. The parties' positions as recorded in the statement of case are summarised as follows:
"Core Ground 3
Applicant's Position -
The Board's Inspector concluded that the proposed development was a contravention but not a material contravention of the relevant LAP on the sole basis that the reduction in aircraft stands that would result from the proposed development would be short term of temporary.
The loss of the stands is material by reference to the test in Roughan and was raised as a contravention of the LAP by the Applicant on three separate occasions. Furthermore, there was no evidence that such a loss of stands would in fact be short term or temporary and the Board erred and/or relied on irrelevant considerations in concluding otherwise
Board's Position –
The LAP seeks to provide '[s]afe and efficient vehicular access between the eastern and western campus' - which the Proposed development achieves. It also promotes further development of aircraft stands over the plan period and beyond (2050). The proposed development, which involves the temporary loss of two aircraft stands (as the evidence before the Board demonstrated), whilst determined to be a contravention of the objectives in the LAP in relation to aircraft stands, is not a material contravention on an appropriate construction of the LAP and the Board was entitled to so conclude.
As recognised by the Inspector (when the Inspector's Report is holistically read) and the Board (and the Council), there are various objectives in the LAP which seek to advance the Vision for Dublin Airport and in respect of which a balance must be achieved, or where a planning 'judgment call' has to be made, in terms of the weight to be attached to each in the context of any particular development proposal seeking to promote/achieve same - per Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335. In this case, there was nothing irrational about the judgment call of the Board.
The Proposed Development will not frustrate, prohibit or preclude the facilitation of further stands during the LAP period and beyond - the Proposed Development does not make these objectives unattainable or 'imperil' same. The loss of two stand is not a material contravention in such circumstances and, in this respect, noting Ballyboden TTG v An Bord Pleanála [2023] IEHC 722, in this particular case, no objections, including from Ryanair, to the Proposed Development reached the level of describing the proposal as a material contravention; and the planning authority did not find same to be the case.
Notice Party's Position –
The Notice Party adopts the position of the Board. The Council, the Inspector, the Board (and the Applicant in its submissions) all found that the temporary reduction in 2 aircraft stands would result in a contravention of the Airport LAP. No party made a submission to the Council or the Board that the loss of 2 airport stands (temporary or otherwise) amounted to a material contravention of the Airport LAP. The Inspector and the Board correctly interpreted the Airport LAP and lawfully determined that a contravention (but not a material contravention) arose. The reduction of 2 aircraft stands (temporary or otherwise) is not a material contravention and does not meet the test in Roughan and the Board was entitled to so conclude.
The Board did not err in taking account of the fact that the Notice Party stated that it intended to apply for permission to replace the aircraft stands (which it has done and with such an application pending before the Council). However, the determination by the Inspector and the Board that no material contravention arose was determined in light of the provisions of the Airport LAP. Strictly without prejudice to the foregoing, even if the Applicant is correct and the loss of 2 aircraft stands (temporary or otherwise) is a material contravention of the Airport LAP, it does not form a basis to quash the Board's decision and/or the Court ought not, in the exercise of its discretion, quash the Board's decision on this basis."
48. One important principle to note at the outset is, as stated in numerous previous cases included in the court's common list of authorities, a decision must be read in a way that makes sense and is lawful - it is not the case that decisions must be read in the most erroneous way possible so that applicants can get their order of certiorari (e.g. Rostas v. DPP [2021] IEHC 60 (Unreported, High Court, 9th February 2021) at §50; St. Margaret's Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20th February 2024) at §57). Related to that is that a decision should be read in a way that renders it valid rather than invalid: see Mulloy v. An Bord Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12th March 2024) at §178 (citing O'Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1st November 2023); M.R. (Bangladesh) v. The International Protection Appeals Tribunal & Anor [2020] IEHC 41 (Unreported, High Court, 29th January 2029) at §7; Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6) [2024] IEHC 335 (Unreported, High Court, 7th June 2024) at §64). A decision should be read "not solely from an applicant's point of view (an impossible standard), but from the starting point of it being valid rather than invalid where possible. One has to stand back and ask what the decision is fundamentally saying (O'Donnell & Ors v. An Bord Pleanála [2023] IEHC 381 [Unreported, High Court, 1st November 2023] (para. 54): St. Margaret's Recycling v. An Bord Pleanála [2024] IEHC 94 (Unreported, High Court, Phelan J., 20th February 2024) at §57; thus for example "unhelpful" statements should not be read as inconsistent with statutory factors if the decision can be read as valid - E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21st February 2024) per Dunne J.
49. The Dublin Airport local area plan (LAP) (https://www.fingal.ie/dublin-airport-local-area-plan-2020) was adopted in January 2020.
50. The relevant provisions of the LAP that are allegedly contravened are set out in the statement of grounds as follows:
"21. By way of further particulars of the claim, §3.2.1.3 of the Dublin Airport Local Area Plan 2020 identifies in relation to Aircraft Parking Stands that 'The DTTAS Review indicates significant increase in stand capacity is required at the Airport with between 39 - 89 new stands required up to 2050.' This is effectively repeated at §3.3 and §7.7.1 and §7.2.4 the latter of which states 'To meet forecast air traffic demand, .... Increased provision of aircraft parking stands, piers and gates capacity will become increasingly important during the plan period to facilitate the Airport's strategic role as a European hub airport.'. Objectives SBG01 and SBG02 of the Dublin Airport Local Area Plan 2020 include references to 'the development of new stands' and 'improved and expanded parking facilities for aircraft' respectively."
51. The relevant objectives are:
"AIRCRAFT PARKING STANDS, PIERS AND BOARDING GATES
To meet forecast air traffic demand, additional aircraft stands and passenger boarding gates as well as modifications to this existing infrastructure will be required during the plan period to provide greater capacity. To serve upgraded and additional aircraft parking stands, additional piers and modifications to existing pier buildings which accommodate boarding gates will also be required. Increased provision of aircraft parking stands, piers and gates capacity will become increasingly important during the plan period to facilitate the Airport's strategic role as a European hub airport.
AIRCRAFT PARKING STANDS, PIERS AND BOARDING GATE OBJECTIVES
OBJECTIVE SBG01
Facilitate the development of new stands, piers and boarding gates in line with the expansion of associated runway and terminal capacity across the Airport having regard to the need to protect key operational areas.
OBJECTIVE SBG02
Provide improved and expanded parking facilities for aircraft."
52. There is also language supportive of safe permeability between the two campuses of the airport. The inspector noted (inter alia, §9.3.2):
"...there is policy in the LAP (Objective AV01) to support improved safety and operations in the airport. Safe and efficient vehicular access between the eastern and western parts of the airport is specifically referenced in relation to the movement of 'airside' support vehicles and that this will be supported and facilitated...
...
The Dublin Airport Local Area Plan 2020 identifies the need for safe and efficient vehicular access between the eastern and western parts of the airport.
In conclusion, the proposed development...is consistent with the aims of the county and local area plans to provide for safe, efficient access for airside vehicles between the eastern and western parts of the airport and is consistent with the zoning objective."
53. What the inspector said was:
"9.9.2. I recognise that there will be a constraint on aircraft operations during the course of construction and until such time period as the replacement stands are provided. This is clearly a significant issue for aircraft operators. As the planning authority identified, the reduction of aircraft stands is a contravention of the LAP. I would concur with this assessment. However, I do not consider this a material contravention as the intention is not to permanently reduce the number of aircraft stands. Therefore, the short-term reduction in aircraft stands is not, in my opinion, a reason to refuse planning permission."
54. The basis of the holding that the contravention wasn't material was that the removal of stands was temporary. But the temporariness on the facts arose from an intention to apply for a future grant of permission for different stands. The actual stands being removed by the present permission will be permanently removed. Thus I would tend to agree with the applicant that if s. 37(2) of the 2000 Act applied, the inspector's reasoning would somewhat conflate the issues of materiality of the change versus justification for it. A hypothetical future grant of permission for different stands on the basis of a hypothetical future application for such permission seems legally more relevant to the justification issue as opposed to being a solid basis for a finding on the materiality issue.
55. However, the false premise of the applicant's complaint is the assumption made in the pleaded case that s. 37(2) of the 2000 Act applies in the first place.
56. That subsection applies to development plans:
"(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section decide to grant a permission even if the proposed development contravenes materially the development plan relating to the area of the planning authority to whose decision the appeal relates.
(b) Where a planning authority has decided to refuse permission on the grounds that a proposed development materially contravenes the development plan, the Board may only grant permission in accordance with paragraph (a) where it considers that—
(i) the proposed development is of strategic or national importance,
(ii) there are conflicting objectives in the development plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
(iii) permission for the proposed development should be granted having regard to regional spatial and economic strategy for the area, guidelines under section 28, policy directives under section 29, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or
(iv) permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan.
(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall, in addition to the requirements of section 34(10), indicate in its decision the main reasons and considerations for contravening materially the development plan."
57. Section 2 defines development plan:
"'development plan' means a development plan under section 9(1);"
58. That doesn't include an LAP, which puts a very different complexion on the complaint under this heading.
59. Such a conclusion is reinforced by s. 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016 which provides (in the strategic housing development (SHD) context exclusively) for express material contravention of an LAP or a development plan - whereas in regular planning such as here, the 2000 Act refers to material contravention of the plan only.
60. That interpretation is also reinforced by s. 34(6) of the 2000 Act (as amended by the Planning and Development (Amendment) Act 2010) which provides for a procedure to be gone through by a planning authority in relation to material contravention of an LAP or a plan:
"(6) (a) In a case in which the development concerned would contravene materially the development plan or local area plan, a planning authority may, notwithstanding any other provision of this Act, decide to grant permission under this section, provided that the following requirements are complied with before the decision is made, namely—
(i) notice in the prescribed form of the intention of the planning authority to consider deciding to grant the permission shall be published in at least one daily newspaper circulating in its area and the notice shall specifically state which objective of the development plan or local area plan, as the case may be, would be materially contravened by granting this permission,
(ii) copies of the notice shall be given to each of the following—
(I) the applicant,
(IA) the regional assembly for the area in which the planning authority is situated,
(II) a prescribed body which has been notified of the application by the planning authority, and
(III) any person who has made a submission or observation in writing in relation to the development to which the application relates,
(iii) any submission or observation as regards the making of a decision to grant permission and which is received by the planning authority not later than 4 weeks after the first publication of the notice shall be duly considered by the authority
(iiia) not later than 6 weeks from the publication of the notice under subparagraph (i), the chief executive shall prepare a report for the members of the planning authority—
(I) stating the main reasons and considerations on which the proposal to grant permission is based,
(II) summarising the issues raised in any submissions or observations in accordance with subparagraph (iii), and
(III) advising the members of his or her opinion regarding the compliance or otherwise of the proposed development with any relevant Ministerial guidelines under section 28 or any relevant policies or objectives of the Government or Minister of the Government or with any regional spatial and economic strategy,
and the report shall be considered by the members before a resolution is passed under subparagraph (iv), and
(iv) a resolution shall be passed by the planning authority approving the proposal of the chief executive to grant permission.
(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) that the number of the members of the planning authority voting in favour of the resolution is not less than three-quarters of the total number of the members of the planning authority or where the number so obtained is not a whole number, the whole number next below the number so obtained shall be sufficient, and the requirement of this paragraph is in addition to and not in substitution for any other requirement applying in relation to such a resolution.
(ba) Where a resolution referred to in paragraph (a) has been passed by a planning authority in accordance with paragraph (b), the planning authority shall—
(i) send to the regional assembly for the area and the Office of the Planning Regulator a copy of the notice under paragraph (a) that relates to the resolution, and
(ii) at the same time, inform the regional assembly for the area and the Office of the Planning Regulator in writing that the resolution was passed."
61. So the contrast is clear - where a council is materially contravening an LAP in a normal planning context, or where the board is doing so in a SHD context, there is a reasoning procedure to be gone through. No such procedure applies to contravention of an LAP by the board in normal planning. Maybe that's an anomaly, maybe it isn't, but that's what s. 37(2) of the 2000 Act says and the clear wording is reinforced by contrast with other provisions of legislation which are phrased very differently.
62. Had s. 37(2) applied, there would be a clear legal distinction between materiality of a contravention and the justification for the contravention. In the absence of the application of that provision, the distinction is not legally significant. So when the inspector says that the intended temporariness of the reduction makes it immaterial, we can regard that as in substance equivalent to saying that any contravention of the LAP is not a reason to refuse permission. Indeed the inspector says that expressly: "Therefore, the short-term reduction in aircraft stands is not, in my opinion, a reason to refuse planning permission". In line with the caselaw referred to above, the decision should be read in a way that makes sense and is valid if such a reading is available - and it is here.
63. Thus in the absence of an applicable legal requirement that makes the distinction between materiality and justification determinative or particularly legally relevant in the specific legal context we are dealing with here, the inspector's wording overall, while not perhaps ideal, isn't sufficiently flawed so as to warrant certiorari.
64. Core ground 4 is:
"4. The impugned decision is invalid because planning permission was granted in breach of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (the 'Water Framework Directive') and/or Regulations 4 and 5 of the European Communities Environmental Objectives (Surface Waters) Regulations 2009. This is because the Board did not ensure that the grant of planning permission would not cause a deterioration in the status of a body of surface water, or that it would not jeopardise the attainment of good surface water status or of good ecological potential and good surface water chemical status and/or the Board could not have arrived at that conclusion in the absence of the classification of the receiving water bodies for the purpose of the Surface Water Regulations and/ or the Board failed to identify describe and assess the significant environmental impacts for the purposes of section 171A and 172 of the Planning and Development Act and the EIA Directive, further particulars of which are contained at Part 2 below."
65. The parties' positions as recorded in the statement of case are summarised as follows:
"Applicant's Position -
The Board failed to consider the proposed development by reference to the correct WFD status - heavily polluted - of the Cuckoo Stream that flows through the site and which will be culverted and diverted during construction. The status brings with it certain obligations pursuant to the Surface Water Regulations which, consequently and axiomatically, the Board also did not consider the proposed development in the context of its impacts on a heavily polluted waterbody.
Secondly, and without prejudice, the Board reached a conclusion in respect of impacts on the Cuckoo Stream in relation to half of the test in Article 4(1) WFD as interpreted by the Court of Justice in. Bund fur Umwelt. The Board's conclusion is a necessary but not sufficient conclusion for the purposes of a lawful decision for the purposes of Article 4.
Board's Position –
This ground is abstract and lacking in any evidential/factual substance - as evidenced by the Applicant's Submissions which assert that 'the Applicant does not require evidence in order to make that case' (Submissions, §38).
The evidence before the Board (which the Applicant ignores) was presented and premised on express consideration of the objectives of the WFD and Surface Water Regulations (per the EIAR and Appendices to same, including the WFD Assessment), and detailed that there would be no adverse effects on water. The Board agreed with this evidence (having assessed same and noting the absence of any contrary evidence) - which clearly demonstrated that the Proposed Development would not contravene or frustrate the objectives of the WFD or the Surface Water Regulations. Noting that the evidence demonstrated that there would no adverse effects on water, there can be no 'adverse effects...which would be contrary to the requirements to prevent deterioration and to improve the status of bodies of surface water and groundwater' or the objectives of the Surface Water Regulations.
Notice Party's Position –
The Notice Party adopts the position of the Board. The Board did not err in its application of the test set out in Article 4 of the Water Framework Directive ('WFD') or in respect of its assessment having regard to the WFD status of the Cuckoo Stream. The Notice Party submitted a Water Framework Directive Assessment as appendix 7-1 to its EIAR, which addressed both the test set out in Article 4 of the WFD and the Surface Water Regulations and concluded that the proposed development would cause no adverse effects on water. No complaint is made by the Applicant: (i) that the Cuckoo Stream was misclassified and / or (ii) that any relevant assessments were not carried out by the Notice party. Neither has the Applicant, either in these proceedings or before the Board, presented any evidence to contradict the conclusions in respect of such assessments (which were ultimately adopted by the Board)."
66. In general terms EU law doesn't require an applicant to make European law points during the process before challenging a decision so I think we can assume that this isn't disqualifying. The opposing parties accepted that anyway.
67. Starting with the argument of failure to apply the Water Framework Directive test, we need to be clear what the "test" is. In the judgment of 1 July 2015, Bund für Umwelt und Naturschutz Deutschland e.V. v Bundesrepublik Deutschland, C-461/13, ECLI:EU:C:2015:433 (commonly known by reference to the River Weser, the 744 km-long federal waterway in Lower Saxony to which the case related), the CJEU (Grand Chamber) ruled:
"1. Article 4(1)(a)(i) to (iii) of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy must be interpreted as meaning that the Member States are required — unless a derogation is granted — to refuse authorisation for an individual project where it may cause a deterioration of the status of a body of surface water or where it jeopardises the attainment of good surface water status or of good ecological potential and good surface water chemical status by the date laid down by the directive.
2. The concept of 'deterioration of the status' of a body of surface water in Article 4(1)(a)(i) of Directive 2000/60 must be interpreted as meaning that there is deterioration as soon as the status of at least one of the quality elements, within the meaning of Annex V to the directive, falls by one class, even if that fall does not result in a fall in classification of the body of surface water as a whole. However, if the quality element concerned, within the meaning of that annex, is already in the lowest class, any deterioration of that element constitutes a 'deterioration of the status' of a body of surface water, within the meaning of Article 4(1)(a)(i)."
68. The core argument in the applicant's legal submissions is:
"34. The test is two-fold. It refers to both a diminution in status and the possibility of jeopardising the attainment of good water status. While there is a single concluding line in the EIAR (as quoted above) that identified that the proposed development would not jeopardise the attainment of good surface water status, nowhere in the analysis of the Board, via the Inspector or the Appendix to the Inspector's Report from Mr Smyth, did it consider whether the proposed development would jeopardise the attainment of good status for the waterbody. Instead the Board wrongly confined its analysis to whether the proposed development would lead to a change in status."
69. The applicant puts this in argument as an autonomous obligation - the board has to satisfy itself of the Weser tests anyway. That is valid insofar as it goes but autonomous obligations can't be allowed to get out of hand. There has to be something making such an obligation relevant (the onus of proof as to which lies - as always - on an applicant) before a decision could be quashed for failure to address that obligation.
70. The context is an acceptance that the Cuckoo Stream is polluted. The inspector stated:
"11.12.7. The Cuckoo Stream is classed as having a Bad Ecological WFD status."
71. The inspector said at para. 11.9.26:
"I am satisfied that the mitigation measures set out are sufficient to ensure that proposed development would not cause a deterioration to the ecological status of surface waterbodies or the groundwater status of the waterbodies. The removal of any historic contamination in the subsoil would be beneficial."
72. And went on to say:
"11.9.30. I am satisfied that the proposed development will not give rise to further deterioration of surface water or groundwater."
73. Thus the context here is that the board found that there wasn't going to be a deterioration in the status of the Cuckoo Stream. In such a context and even bearing in mind the acceptance that the stream was of poor status it is hard to see immediately how this project (as opposed to some hypothetical other project), which doesn't cause deterioration, could nonetheless somehow jeopardise the attainment of good surface water status. In particular, the applicant hasn't shown anything specific to suggest that there was anything about this particular project that while not causing a deterioration of the status of the stream could have jeopardised the attainment of good water status. In that context, this technical complaint isn't a plausible basis to hold that the board failed to consider something it was required to consider. Even in the case of autonomous obligations, the board can't do all the work - an applicant still has an onus to overcome to show that there was something needing express treatment. This applicant hasn't done that here.
74. In that regard I entirely agree with Holland J. in Salmon Watch Ireland CLG v. Aquaculture Licences Appeals Board [2024] IEHC 421 (Unreported, High Court, 12th July 2024) in relation to an analogous complaint there:
"1097. The [relevant] Applicants' pleas ... are entirely abstract and theoretical. While they correctly identify matters not considered by [the decision-maker], they do not state any basis for the implied premise that those matters required consideration. They do not lay any basis in particulars or facts for any case for certiorari."
75. Such a conclusion is also consistent with An Taisce v. An Bord Pleanála (No. 1) [2021] IEHC 254, [2021] 4 JIC 2003 (Unreported, High Court, 20th April 2021) and Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2022] IEHC 700, [2022] 12 JIC 1609 (Unreported, High Court, 16th December 2022).
76. Insofar as there is a separate point that seems to suggest that the WFD requires the board to take positive steps in any development consent decision in order to restore or improve the status of the stream, that isn't what EU law requires. There is no principle that permission must be refused if a project doesn't contribute positively to the attainment of WFD objectives. In Weser, the CJEU has phrased the requirement negatively. There is no authority to support that and such authority as exists firmly rejects that notion, which is purely a figment confected by the applicant here.
77. In R. (Tarian Hafren Severn Shield CYF) v Marine Management Organisation [2022] EWHC 683 (Admin), [2022] PTSR 1261, [2022] 3 W.L.U.K. 375, Holgate J. rejected this argument:
"163. There is nothing in the language of Article 4(1)(a) [of the WFD] or in the decision in Bund fur Umwelt to suggest that a regulatory approval must be refused unless the project would itself contribute (e.g. positively) towards the attainment of a good surface water status, or good chemical status. Those legal sources do not indicate that, for example, a proposal must contribute to that objective by reducing existing chemical levels which cause the current status of the water body to be less than 'good', a fortiori where there is no evidence to indicate that either the proposal, or the project of which it forms a part, would contribute to those chemical levels.
164. The legal issues in the Bund fur Umwelt case were concerned with very different matters, in particular whether article 4(1)(a) applies to decision-making on regulatory project approvals as well as water management planning, and whether Article 4(1)(a) is infringed where a proposal would cause the quality of a water body to deteriorate without reducing its 'status class'. The requirement laid down by the CJEU in relation to the second objective of Article 4(1)(a) is that a project should not jeopardise the attainment of good surface water status. 'Jeopardise' means endanger or put at risk.
165. [Counsel for the applicant] did not explain how this proposal, which would not cause any harm to the chemical quality of the water body (including the two chemicals for which it is currently failing), could itself jeopardise, let alone 'would be bound to jeopardise', its enhancement from a moderate to a good status. For that reason alone ground 5 [alleging breach of the WFD on this basis] should fail."
78. A similar logic applies here. The applicant hasn't pointed to anything in EU legislation or jurisprudence or that of member states or former member states to support such an interpretation - that isn't a surprise because such an interpretation is obviously unworkable. A vast number of projects won't contribute positively to water quality - the directive only requires that they don't make things worse. This isn't a point on which any reasonable doubt arises.
79. Insofar as the applicant makes a further point that the information in the EIA was inadequate, that exaggerates the extent to which certainty is attainable or to which acknowledged uncertainty is an obstacle to a lawful grant of permission.
80. Yes the inspector does acknowledge some uncertainty as to the available information:
"11.9.26. The impacts of the proposed Underpass on Water are adequately described and suitable mitigation measures are proposed. The Third Party has argued that the Conceptual Design Model is lacking in detail and I would agree with that. The pump test data is not provided, but is, in any case, limited. However, under the circumstances that the majority of the proposed Underpass is beneath an operational runway, this lack of detail is understandable. I am satisfied that the mitigation measures set out are sufficient to ensure that proposed development would not cause a deterioration to the ecological status of surface waterbodies or the groundwater status of the waterbodies. The removal of any historic contamination in the subsoil would be beneficial."
81. But total certainty isn't a requirement of EIA or of pretty much anything. The inspector expressly finds that the "lack of detail is understandable". That is an evaluative judgement that is reasonably open in principle to a decision-maker and certainly hasn't been shown to be unlawful here. The context for that has to include the information provided from daa, which in principle the board was permitted to accept. The response by daa dated 24th April 2023 at §1.5.2 states:
"It is right and proper to acknowledge uncertainty in an EIAR as sometimes data is limited, hence the EIAR notes that there is 'very limited' information available on the depth of groundwater. This in no way detracts from the soundness of the assessment presented since, as the Third Party notes, robust assumptions were made in the design process. The EPA Guidelines provide (page 25), that: 'Where uncertainty arises then an EIAR needs to describe the "worst case" scenario of the accumulation of effects that could arise from these other projects.' As demonstrated throughout the application, the worst case has been considered.
Ground investigations to date indicate a GWL at approximately 3-4 mbgl. The same ground investigations also indicate the glacial till at that level is relatively impermeable. Any groundwater rise during construction within the glacial tills may not necessitate any specific change in construction methods. However, it should be noted that all groundwater control during construction is completely the contractor's responsibility.
If the water table does rise into the more permeable made ground above the glacial till, gasketed sheet piles (as one option) could be installed to provide a positive barrier against groundwater intrusion, or a temporary dewatering system may also be considered by the contractor. It should also be noted that any reduction in groundwater levels from what has already been observed will be beneficial to construction.
Final design of the proposed structure normally considers worst case scenario where groundwater level is at existing ground level, therefore it would not be impacted by higher groundwater levels as the majority of the structure is completely submerged, based on observed groundwater table, and any rise in groundwater would be above the proposed Underpass, and therefore not increasing buoyant forces on the proposed Underpass itself.
During the 2022 ground investigation, standpipes were installed in the 11 boreholes and two pump tests were conducted to monitor the seasonal groundwater levels and assess the hydraulic conductivity of the soil.
As stated above, ground investigation can increase in scope as design/construction develops. The proposed Underpass, at this stage, has had a typical initial ground investigation that covers the area of the preferred alignment. The ground investigation conducted in 2022 included 11 boreholes along the approx.1 km project plan length. This is considered sufficient at this stage, and it is in accordance with EN 1997-2: 2007: Eurocode 7 - Geotechnical design - Annex B.3 examples of recommendations for the spacings and depth of investigations. Depending on the variability of the ground (i.e., strata levels consistent at all borings or lenticular material indicated by different ground at the same level at adjacent or nearby borings), the designer may choose to complete additional ground investigations to provide further ground information to inform their detailed design.
When a project progresses to detailed design, it is understood that the design is at a preliminary stage and further information may be required. This commonly includes further ground investigations. For the proposed Underpass, a ground investigation for a reasonable cross section of the area of the preferred alignment has been performed in 2022, which provided enough information to verify the preferred alignment was feasible and could be constructed. This is in accordance with EN 1997-2: 2007: Eurocode 7- Annex 8.3, which recommends for linear structures a borehole spacing of 20m to 200m. As discussed above, the designer will determine how much additional ground information is required to inform their detailed design and their construction methods. This ground investigation could vary from two to three targeted boreholes to a more comprehensive plan across the entire alignment. The scope of the additional investigations can be driven by the construction methods and temporary works of the chosen contractor as much as by a requirement to refine the detailed design rather than alter the overall design."
82. It's inherent in science generally that certainty isn't available: see for example Friends of the Irish Environment v. Minister for the Environment & Ors. [2025] IEHC 61 (Unreported, High Court, 7th February 2025). The inspector's judgement that the limitation on the information available was understandable hasn't been shown to be unlawful here.
83. Finally under the overall heading of core ground 4, reference to Luxembourg wasn't sought by any party in the statement of case, although was belatedly raised by the applicant in literally the closing seconds of the hearing. But the issue raised hasn't been shown to arise on the facts. Therefore a reference would not be "necessary" within the meaning of art. 267 TFEU and any purported reference would be inadmissible. And insofar as the argument of an implausible positive obligation to promote good water status is concerned, no reasonable basis - indeed no basis whatsoever - for doubt as to the EU law position has been demonstrated. The reference procedure isn't there for any and every EU law point someone could dream up on a given day. It is only where, in particular, there is a reasonable basis for doubt as to the correct position and where the question properly arises on, and is necessary having regard to, the findings of fact. Both criteria are lacking here.
84. In outline summary, without taking from the more specific terms of this judgment:
(i) Section 37(2) of the 2000 Act doesn't apply to material contravention of an LAP. Therefore there isn't any legally significant distinction between materiality of a contravention or justification for it. In the event of contravention of an LAP, the issue for the board is whether permission should be granted notwithstanding any such conflict.
(ii) In such a context, the wording of the inspector's report on this issue is not a basis for certiorari because the classification of the proposed temporary nature of the removal of stands under the heading of materiality rather than justification (on the basis of a hypothetical future permission decision) doesn't go to any legally significant distinction. The decision should be read in a way that is valid rather than invalid if that is available, as it is here, and thus as equivalent to saying that the intended temporary nature of the overall loss of stands means that contravention of the LAP is not a reason to refuse permission.
(iii) The applicant hasn't demonstrated any factual basis to suggest that the second leg of the WFD test as interpreted by the CJEU applies in this case or raises any separate issue warranting discussion by the board, or any factual basis to demonstrate as unlawful that the inspector's finding that any lack of detail in the EIA was understandable.
(iv) The argument that the WFD requires refusal of permission unless any given permission positively contributes to the restoration of good status to any relevant water bodies lacks any authority whatsoever and is clearly unworkable.
(v) A reference to the CJEU would be inadmissible in the absence of a factual foundation for the argued issues, and insofar as the proposed unworkable positive obligation to promote good water status is concerned would be inappropriate as no authority or other plausible for such an interpretation of EU law has been shown and no reasonable or any doubt arises. Such authority as exists firmly rejects that position.
85. For the foregoing reasons, it is ordered that:
(i) the proceedings be dismissed;
(ii) unless any party applies otherwise by written legal submission within seven days from the date of this judgment, the foregoing order be perfected forthwith thereafter on the basis of no order as to costs; and
(iii) the matter be listed on Monday 24th February 2025 to confirm the foregoing.