Friends of the Irish Environment Ltd v An Bord Pleanála.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2020:680
• Date: 09 September 2020
• Docket Number: C-254/19

JUDGMENT OF THE COURT (First Chamber)

9 September 2020 ( *1 )

(Reference for a preliminary ruling – Directive 92/43/EEC – Conservation of natural habitats and of wild fauna and flora – Article 6(3) – Scope – Concepts of ‘project’ and ‘agreement’ – Appropriate assessment of the implications of a plan or project for a protected site – Decision extending the duration of a development consent for the construction of a liquefied natural gas regasification terminal – Original decision based on national legislation which did not properly transposed Directive 92/43)

In Case C‑254/19,

REQUEST for a preliminary ruling under Article 267 TFEU from the High Court (Ireland) made by decision of 13 March 2019, received at the Court on 26 March 2019, in the proceedings

Friends of the Irish Environment Ltd

v

An Bord Pleanála,

intervening party:

Shannon Lng Ltd,

THE COURT (First Chamber),

composed of J.-C. Bonichot (Rapporteur), President of the Chamber, M. Safjan, L. Bay Larsen, C. Toader and N. Jääskinen, Judges,

Advocate General: J. Kokott,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Friends of the Irish Environment Ltd, by F. Logue, Solicitor, J. Kenny, Barrister-at-Law, and J. Devlin, Senior Counsel,

– An Bord Pleanála, by B. Magee, Solicitor, F. Valentine, Barrister-at-Law, and N. Butler, Senior Counsel,

– the European Commission, by C. Hermes and M. Noll-Ehlers, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 30 April 2020,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7; ‘the Habitats Directive’).

2 The request has been made in proceedings between Friends of the Irish Environment Ltd and An Bord Pleanála (Planning Board, Ireland; ‘the Board’) concerning the latter’s decision to grant an additional period of five years for the construction of a liquefied natural gas regasification terminal, on top of the 10-year period originally set in a previous decision.

Legal context

European Union law

The Habitats Directive

3 Under Article 6(3) of the Habitats Directive: ‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

The EIA Directive

4 Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘the EIA Directive’), defines, in the first indent of Article 1(2)(a) thereof, the concept of ‘project’ as meaning ‘the execution of construction works or of other installations or schemes’.

5 Under Article 1(2)(c) of the directive ‘development consent’ is defined as meaning ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’.

Irish law

6 Section 40(1) of the Planning and Development Act 2000, in its version applicable to the main proceedings (‘the PDA 2000’), provides: ‘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.’

7 Section 42 of the PDA 2000 provides that, on application by the interested party, the duration of a planning permission may be extended where substantial works were carried out pursuant to the planning permission during the period originally set, and the development will be completed within a reasonable time or 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. In that last scenario, an extension of duration cannot be granted however if there have been significant changes in the 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 concerned. It is also necessary that the project not be inconsistent with the ‘Ministerial guidelines’.

8 In addition, section 42 of the PDA 2000 states that, 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. Moreover, the additional period cannot exceed five years and an application for extension of the duration of a planning permission can be made only once.

9 Section 50 of the PDA 2000 provides that a person cannot question the validity of a planning permission otherwise than by way of judicial review, within a period of eight weeks if it is not to be out of time, which may be extended in certain circumstances.

10 Section 146B of the PDA 2000 establishes a special procedure whereby the planning permission for a strategic infrastructure development can be altered.

11 Section 146B of the PDA 2000 provides: ‘… (3) If the Board decides that the making of the alteration— … (b) would constitute the making of such a material alteration, it shall determine whether to (i) make the alteration, (ii) make an alteration of the terms of the development concerned, … that would be different from that to which the request relates …, or (iii) refuse to make the alteration. (4) Before making a determination under subsection (3)(b), the Board shall determine whether the extent and character of (a) the alteration requested under subsection (1), and (b) any alternative alteration it is considering under subsection (3)(b)(ii), are such that the alteration, were it to be made, would be likely to have significant effects on the environment (and, for this purpose, the Board shall have reached a final decision as to what is the extent and character of any alternative alteration the making of which it is so considering).’

The dispute in the main proceedings and the questions referred for a preliminary ruling

12 On 31 March 2008, the Board granted development consent for a project for the construction of a liquefied natural gas regasification terminal on the south bank of the River Shannon estuary in County Kerry (Ireland). The development consent provided that the works were to be carried out within a period of maximum 10 years (‘the original consent’).

13 The project was to be carried out in the vicinity of two Natura 2000 sites, namely the Lower River Shannon Special Area of Conservation (Site IE0002165) and the River Shannon and River Fergus Estuaries Special Protection Area (Site IE0004077).

14 The referring court points out that, at the time the original consent was granted, the Court had ruled, in its judgment of 13 December 2007, Commission v Ireland (C‑418/04, EU:C:2007:780), that the Irish legislation did not transpose the Habitats Directive properly, in particular, as follows from paragraphs 230 and 231 of that judgment, in that the appropriate assessment of the implications for the purposes of that directive was equated with the assessment required for the purposes of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

15 According to the referring court, the original consent made no reference to either the Habitats Directive or the two protected sites that might be affected by the project at issue in the main proceedings, nor did it contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works.

16 In September 2017, construction of the terminal still had not commenced and the developer applied to the Board, pursuant to section 146B of the PDA 2000, for an extension of the duration of the development consent. He explained on that occasion that the delays in commencing work 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 of Ireland’s economic situation. The application thus submitted to the...