Court rejects challenge to new bypass

THE HIGH Court has dismissed claims by environmental campaigners and the State that An Bord Pleanála's go-ahead for construction of the €317 million Galway city outer bypass road is invalid because it breaches European law.

Mr Justice George Birmingham, in separate judgments likely to have implications for other environmental challenges, yesterday rejected on all grounds the challenges to An Bord Pleanála's November 2008 approval for the road scheme.

The challenges were made by environmentalist Peter Sweetman and Hands Across The Corrib Ltd, "Carraig Ban", Ballinfoyle, Co Galway, an environmental non-government organisation.

The judge also refused applications by both challengers and the State to refer issues to the European Court of Justice concerning interpretation of provisions of the EU habitats directive so as to secure clarity on the meaning of those.

The judge ruled that the planning board's decision document clearly and succinctly addressed the major issues in the case and left no doubt as to how the board had reached its decision.

He ruled the board had given clear reasons for its decision that the road project would not adversely affect the "integrity" of the Lough Corrib candidate Special Area of Conservation (cSAC)site but would have a "localised" severe impact.

He rejected the arguments that once the board found there would be a localised severe impact on the site, it followed as a matter of law that such an impact would adversely affect the integrity of the site within the meaning of Article 6.3 of the habitats directive.

A central issue in the case was interpretation of Article 6.3, which stipulates any plan likely to have a significant effect on a protected site must be appropriately assessed as to its implications for the site's conservation objectives and prohibits approval of any plan which adversely impacts on the "integrity" of the site.

The applicants had contended, where it was concluded a proposed development would have a significant effect on a protected site and this was an adverse effect, then approval must be refused at that stage and an alternative procedure adopted designed to deal specifically with projects that adversely affect the integrity of relevant sites.

The judge found the board had not misinterpreted the directive or the regulations. He said the directive has been considered in many legal cases and he had not been referred to any unequivocal statement that a significant effect on a site equates to an effect on the "integrity" of a site.

It was clear a "formidable threshold" must be crossed before a project could be approved as one not adversely affecting the integrity of a protected site, he noted.

He ruled the "clear language" of the directive provided for a two-stage procedure involving the national authorities ascertaining (1) whether a proposed project was likely to have a significant effect on a site and, if so, considering (2) if the project would affect the integrity of a site.

The directive and regulations also made clear, even if the site was adversely affected, it was possible some projects might still proceed for imperative reasons of overriding public interest, he said.