European court judgment may be good news for Kilkenny road objectors

A European court judgment has clarified environmental obligation issues raised in a legal challenge over a planned extension of the northern ring road of Kilkenny city.

The judgment appears to represent good news for the challengers to the proposed development.

The High Court sought a preliminary ruling from the EU Court of Justice because of the Irish court’s concerns about the adequacy of a Natura Impact Statement (NIS) and an Environmental Impact Statement (EIS) provided by Kilkenny County Council concerning the road development.

The CJEU judgment, published this week, said an Appropriate Assessment (AA) of proposed development must dispel “all reasonable scientific doubt” concerning the effects of that proposed development on protected sites.

The ruling will now be applied to the case by four residents, Brian Holohan, Richard Guilfoyle, Noric Guilfoyle and Liam Donegan, when it resumes before the High Court on a date to be fixed.

The four have challenged An Bord Pleanála’s July 2014 grant of consent to Kilkenny County Council for the ring-road extension. The project proposes construction of about 1.5km of single carriageway road and one roundabout, adaptation of a second roundabout, plus a footpath and cycle track along the city side, and various other works.

The road crosses two Natura 2000 sites, the River Nore Special Protection Area, designated by Ireland under the Birds Directive, and the River Barrow and River Nore site of community importance (SIC) listed since 2004 under the Habitats Directive.

The applicants claim the Board failed to consider the environmental effects of the main alternatives studied and that an appropriate assessment purportedly carried out was deficient.

The Board granted consent in July 2014 notwithstanding a report from one of its inspectors stating the EIS and NIS was not adequate and further information was required.

The NIS was based on a document drafted by the National Parks and Wildlife Service on conservation objectives.

Effect on species

In referring issues to the CJEU, the High Court said the NIS does not fully examine the effect on species other than those for which the River Barrow and River Nore site was listed or address the effects on protected species or habitats to be found outside the boundaries of the sites.

The High Court also raised issues about the adequacy of the EIS, including failures to address the effects of the project on all the species identified in the EIS.

The issues concerned the interpretation of the Habitats Directive and the EIA Directive.

In its ruling, the CJEU said the Habitats Directive means an AA must catalogue all the habitat types and species for which a site is protected. An AA must also identify and examine the implications of the proposed project for the species present on that site, those for which the site had not been listed and those to be found outside the boundaries of the site, provided those implications are liable to affect the conservation objectives of the site.

A competent authority can only grant a consent which leaves a developer free to determine parameters relating to the construction phase if that authority is certain the consent establishes conditions “strict enough” to guarantee those parameters will not adversely affect the integrity of the site, it said.

The Habitats Directive also requires, when a competent authority rejects findings in a scientific expert opinion recommending that additional information be obtained, the AA must include an “explicit and detailed” statement of reasons “capable of disspellling all scientific doubt” concerning the effects of the work on the site.

The CJEU also ruled the EIA Directive obliges a developer to supply information that expressly addresses the significant effects of their project on all specifies identified in the environmental statement supplied.