High Court dismisses challenge to planning approval for waste water plant citing substantial compliance with EIA Directive.

Neutral Citation: [2013] IEHC 402

THE HIGH COURT

[2011 947/J.R.]

BETWEEN

Enda Craig

Applicant

v.

An Bord Pleanála

Respondent

-And-

Donegal County Council

Notice Party

Judgment of Mr. Justice Hedigan delivered on the 26th of August 2013.

Application

1. The applicant seeks to quash the respondent's decision of the 12th August, 2011, to grant approval to the notice party under

s.226 of the Planning & Development Act 2000 for a waste water treatment plant. The applicant submits that the Court is both

entitled and obliged to examine whether or not there has been substantial compliance with the requirements of the Environmental

Impact Assessment Directive and the adequacy of the Environmental Impact Statement delivered and if an error has been made then

the decision should be quashed.

Factual background

2.1 Donegal County Council plans to construct a waste water treatment plant (hereinafter "WWTP") in Co. Donegal for a population

equivalent of 8,800 with an outfall into Lough Foyle at Carnagave, 1.5km north of Moville. It is envisaged that the plant will

encompass four pumping stations, rising mains, overflow pipelines and associated road improvement works. Treated effluent outfall

would be into Lough Foyle.

In September 2007 the Council sought an opinion from An Bord Pleanála under s.226 (7) of the Planning & Development Act 2000 (as

amended) in relation to the proposed development, owing to the trans-boundary nature of the project (Lough Foyle borders both the

Republic and Northern Ireland) and the potential environmental effects on the Lough. The proposed development and ancillary pipe

work did not come above the threshold for a mandatory Environmental Impact Statement (hereinafter "EIS") - which is a population

equivalent of 10,000 or more. However the Council requested An Bord Pleanála to treat it as a project requiring an EIS and on the 2nd

January, 2008, owing to the sensitivity of the site An Bord Pleanála determined an Environmental Impact Assessment (hereinafter

"EIA'') be prepared and submitted to it for approval.

2.2 On the 22nd August, 2008, Donegal County Council applied, pursuant to s.226 of the Planning & Development Acts 2000-2011 to

An Bord Pleanáa for permission for the construction of the WWTP. The Board appointed Mr. Daniel O'Connor as inspector to advise on

the application and he presided at an oral hearing on the 30th June and the 1st July, 2009.At the hearing a preliminary draft of the

project was presented by the Council .On the 6th October, 2009, he reported on this hearing and his report recommended for a

number of reasons that the proposed development be refused. On the 4th February, 2010, the Board met and requested further

information in relation to the project from the Council. On the 8th April, 2010, the inspector reported on this further information and

again recommended refusal. In all the inspector recommended refusal of the application three times.

The Board disagreed with the inspector's opinion and planning permission for the project was granted subject to conditions in the

Board's decision of the 12th August, 2011.

On the 6th October, 2011, the applicant made an ex-parte application to Peart J. and obtained leave to apply for judicial review of

the Board's decision.

Environmental Assessment

3. The EIA is a four stage process. It commences with the submission of an EIS to An Bord Pleanála by the local authority under

sections 175 and 226 of the Planning and Development Acts. An EIS is required where a WWTP has capacity in excess of 10,000

population equivalent and where there are sensitive environmental issues such as where a site is designated a special area of

conservation (hereinafter "SAC") and would be affected by the project. Following submission of the EIS the local authority is obliged

to publish a notice of the proposed development. Thereafter, third parties may make submissions/observations and such evidence as

may be adduced before an inspector. This evidence and the report/recommendation of the inspector forms part of the totality of

material placed before the Board. At the discretion of An Bord Pleanála a request for further information may be made for the purposes

of the EIA. A copy of the EIS is also furnished to the EPA as a prescribed body, dealing with water quality.

Applicant's Submissions

4.1. Bias

The applicant had initially argued that the appointment of Mr. Conall Boland to the board of An Bord Pleanála raised an apprehension

of subjective bias but he later amended this to allege an apprehension of objective bias. The applicant argues that the involvement of

Mr. Boland in the determination of whether the project should be granted permission was inappropriate having regard to his past

employment. Mr. Boland was previously a technical director of RPS Consultants (or its sister company) which carried out studies in

respect of the development the subject matter of the application and produced what the applicant considers was a critical and

contentious report entitled "Hydrodynamic and water quality modelling study" in the EIS. This report concerned an area of expertise

with which Mr. Boland is familiar. The applicant argues that the apprehension of bias is heightened due to the fact that Mr. Boland

was central to the processing of the application for the WWTP. He was the author of all of the Board's directions regarding the

application for the WWTP and in particular the Board's directions which on three separate occasions (being the 4th February, 2010,

the 8th April, 2010, and the 24th June, 2010) departed from its own inspector's recommendation to refuse consent for the proposed

WWTP. The applicant submits that it is highly unusual if not unprecedented for an inspector to recommend refusal of consent three

times and for the Board to ignore this recommendation.

The applicant contends that because the inspector's recommendation did not accord with the views of Mr. Boland he effectively

removed the inspector entirely from the process by way of his final direction of the 24th June, 2010, whereby the board sought

information from the Environmental Protection Agency (hereinafter "EPA" )without any recourse to the inspector.

The applicant argues that there were other board members having no conflict of interest who could have undertaken the role Mr.

Boland performed and his involvement was therefore unnecessary. Also of note, the applicant argues, is the fact that the Board's

code of conduct would have required Mr. Boland not to handle the application for the WWTP had it come before him two years earlier

as this would have been within one year of his employment with the company that produced the study.

The applicant contends that having regard to all of the above there was an understandable apprehension of objective bias on his

part.

The test for objective bias was alluded to by Fennelly J. in Kenny v Trinity College Dublin [2008] 2 IR 40. where he stated at

paras.18-21:-

"The test for deciding whether objective bias exists in the case of any adjudication has been repeated in slightly different

terms in many cases over many years.....Denham J. described the test authoritatively in her judgment in Bula Ltd v. Tara

Mines Ltd. No 6 [2000] 4 IR 412 .At p.441 she stated:-

' .. .it is whether a reasonable person in the circumstances would have a reasonable apprehension that the

applicants would not have a fair hearing from an impartial judge on the issues....it is an objective test-it invokes the

apprehension of the reasonable person."

The applicant submits that it is clear that he passes this test in showing that the Board's decision was motivated by bias.

4.2. Inadequacy of EIS/EIA

The applicant contends that the EIS and EIA process carried out by the Board were deficient for the purposes of the Board's

assessment of the likely impacts of the proposed development. His argument in this regard is premised on two points.

Firstly, he argues that the Board contravened Directive 85/337 EEC (hereinafter the "EIA Directive") in carrying out an assessment

without having sufficient information (such as regarding the design of the project) to enable it to be carried out correctly. Article 3 of

the EIA Directive provides that:-

"The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each

individual case and in accordance with the Articles 4 to 11, the direct and indirect effects of a project on the following

factors:

-human beings, fauna and flora,

-soil, water, air, climate and the landscape,

-the inter-action between the factors mentioned in the first and second indents,

-material assets and the cultural heritage.

He argues that Article 3 should be complied with prior to development and contends that the Board did not carry out an adequate

assessment of the overall impact of the scheme but concentrated on the wastewater treatment plant and pipe.

Commission v Ireland (Case C- 50/09) dealt with the adequacy of Ireland's transposition of the EIA Directive .The ECJ ruled therein

that the Planning & Development Act 2000 (as amended) and the Environmental Protection Agency Act 1992 (as amended)

inadequately transposed the EIA Directive and was in breach of it. The ECJ made a distinction between the obligation at the end of

the decision making process to take into consideration information gathered by the Board and the obligation of the Board to carry out

an assessment of that information. At paras. 36-40 it held:-

"Article 3 of Directive 85/337 makes the competent environmental authority responsible for carrying out an environmental

impact assessment....[a]s stated in Article 2(1) of the directive, that assessment is to be carried out before the consent

applied for to proceed with a project is given......the competent environmental authority may not confine itself to

identifying and describing a project's direct and indirect effects on certain factors, but must also assess them in an

appropriate manner.....[t]hat assessment obligation is distinct from the obligations laid down in Articles 4 to 7,10 and 11

of Directive 85/337,which are, essentially, obligations to collect and exchange information, consult, publicise and

guarantee the possibility of challenge before the courts.....[h]owever, that obligation to take into consideration, at the

conclusion of the decision making process, information gathered by the competent environmental authority must not be

confused with the assessment laid down in Article 3 of Directive 85/337."

There were four matters in relation to the project about which the inspector was concerned and on which the respondent never

received information despite seeking same (correctly deeming this necessary following case 50/09) from the EPA by way of letter to it

on the 30th June, 2011. These matters were:-

1. The standard of treatment to be employed at the proposed WWTP at Camagave;

2. The revised discharge standard for the plant by Donegal County Council during the course of the oral hearing;

3. The potential impacts on the quality of the receiving waters arising from the operation of the proposed WWTP at

Camagave;

4. The potential impacts on the receiving waters from the proposed emergency outfalls at the pumping stations at

Carrickarory, River Row (Moville) and Greencastle pier.

It is argued that the EIA stopped at the point the letter to the EPA was sent as the respondent did not have sufficient information to

make an assessment and it could not continue until this information was received.

The applicant argues that from the wording of the letter to the EPA it is clearly evident that the Board was requesting the EPA to

provide it with an analysis of information as part of the EIA and it was not an idle request especially considering it enclosed almost

the whole file on the matter with the letter. The applicant points to the fact that the letter refers to the oral hearing where the

environmental impacts of the WWTP discharge to Lough Foyle and associated dispersion modelling were discussed. The respondent

informs the EPA that at the hearing the applicant proposed a stricter treatment standard for effluent than that set out in the EIS and

said that "....it is considered appropriate that the Board consults further with the Agency prior to completing the environmental

impact assessment for the project and making its decision....the Agency is therefore invited to comment on the information contained

in the EIS....." (being 1-4 above).

Moreover, the applicant contends, the Board direction dated the 24th June, 2011, and signed by Mr. Boland expressly records that

"the board decided to defer consideration of the application and to consult with the EPA having regard to the implications of the ECJ

ruling 50/09".

In its response to the Board's letter dated the 22nd July, 2011, the EPA declined the Board's invitation to comment on the above four

matters and did not furnish any of the data sought.

The applicant argues that if the Board deemed this information necessary but it was not furnished to it, the Board cannot have

conducted an assessment of the information (let alone one in accordance with case C- 50/09). The respondent did not (and could

not) undertake either an investigation or an analysis of the standard of treatment to be employed at the proposed WWTP based on 1-

4 above to enable it to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on

the factors set out in the first three indents of Article 3 of the EPA Directive and the interaction between those factors.

Moreover, the applicant argues, the Board was further impeded in carrying out an appropriate assessment since it had inadequate

information before it in terms of the design of the proposed development. He points to the fact that only a preliminary model of the

WWTP (the so called "design and build" project) was presented at the hearing. This type of project leaves the critical decision making

to the construction contractor and the applicant queries how a meaningful assessment of it could be done as it had yet to be fully

designed.

He argues that the respondent erred in law by failing to consider whether and how the quality of treated effluent could be reduced

from the proposed level of 50,000 coliform forming units (CFU) in the EIS to that proposed at the oral hearing of 2,000 CFU .It is

obliged under Directive 85/337 EEC and the Planning & Development Act 2000 to show how such a change would be effected and its

impacts.

The applicant suggests the inspector also found the EIS inadequate. This is evident from p.137 of his report where at para. 6.1. (a)

he states that the proposal for treatment should be refused having regard to:-

"a) The inadequacy of the information provided in the Environmental Impact Statement and in evidence at the oral hearing

regarding the proposed form of treatment."

The respondent could have sought the necessary data from the EPA by way of Regulation 44 of the Waste Water Discharge

(Authorisation) Regulations 2007 which provides that where the Board considers that a development is likely to have an effect on

waste water discharges it may request the agency to make observations in relation to same. However, the Board did not do this and

instead proceeded to make its decision of the 8th August, 2011, in the absence of any of the data it had determined was necessary

to make an assessment for the purposes of the EIA Directive.

The applicant does not dispute the need for a WWTP and is not against the project per se. He argues that if the process is done

correctly and according to legislation he would have no further complaint. However, he submits that in fact the process was not

completed correctly and the Board is in clear breach of the EIA Directive and the judgment of the ECJ in case C- 50/09. The applicant

therefore contends that the Board's decision must be quashed. He relies on Berkeley v Secretary of State (2003) 3 All ER 897 where

Lord Hoffman stated at p.907:

"Although s. 288(5)(b), in providing that the court 'may' quash an ultra vires planning decision, clearly confers a discretion

upon the court, I doubt whether....the court may exercise that discretion to uphold a planning permission which has been

granted contrary to the provisions of the directive. To do so would seem to conflict with the duty of the court under

article 5 of the EC Treaty (now article IOEC) to ensure fulfilment of the United Kingdom's obligations under the Treaty."

4.3 Northern Ireland-EIS/EIA

The second point on which the applicant argues that the EIA/EIS fell short of requirements is in relation to Northern Ireland. The

applicant argues that there is no evidence that Donegal County Council assessed the trans-boundary effect of the project or

considered what areas and territories the project would impact upon, given that Lough Foyle borders both the Republic and Northern

Ireland.

The applicant submits that the Board never appears to have directed its mind to the extent and status of that boundary in its

assessment as posited by Mr. McCartney. The respondent may argue that it notified the Northern Irish authorities of the project

however the applicant argues that merely notifying them is inadequate. He submits that the respondent should have considered from

the outset where the outfall would be placed and this should have been properly assessed by the Council but this was not done.

The applicant further notes that an issue has recently arisen regarding ownership of the seabed of the Lough being the seabed on

which the project will impact. If the UK was to lay claim to this it means that the Council would be attempting the compulsory

purchase of crown lands for the project to progress.

4.4 Habitats Directive

The applicant submits that the respondent erred in law and acted ultra vires in the manner in which it assessed and approved the

proposed project before it had ascertained that it would not adversely affect the integrity of European sites as required by the EC

(Natural Habitats) Regulations 1997 (as amended) and Directive 92/43/EEC (as amended) on the conservation of natural habitats and

of wild flora and fauna (hereinafter known as "the Habitats Directive") in circumstances where there would be direct discharge into a

proposed site.

Pursuant to the Habitats Directive certain sites may be designated as natural habitats and part of the Natura 2000 European

Ecological Network. The sites so designated are subject to the provisions of the Directive. Article 6(3) thereof requires that:-

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a

significant effect thereon,....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 ...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 respondent Board is the competent authority for the purposes of Article 6.

The applicant accepts that the entire Lough is not designated a natural habitat however portions of it are so designated. The

applicant further accepts that the outfall pipe is not spilling into a designated site. However, he contends that it will be spilling into

the Lough and argues that effluent could be carried to other parts of the Lough that are designated as a SAC.

The applicant submits that following the Waddenzee case (Case C- 127/02), the respondent must satisfy itself to an extremely high

standard that the proposed WWTP will not have an adverse effect on the integrity of the site. Waddenzee was a reference for a

preliminary ruling concerning the interpretation of Article 6(3) and the extent of the obligation to ascertain that a project will not

adversely affect a site's integrity.

The applicant contends that from this ruling it is clear that where any doubt exists as to the effects of the project, the proposed

development must be refused.

The applicant also relies on Commission v Portugal (case C-239/04) where General Kokott found in a similar vein to Waddenzee at

para. 31 of his opinion that:-

"Under ... Article 6(3)...it is not sufficient ......to prove ex post facto that a project had no negative impact. On the

contrary, any reasonable scientific doubt as to the absence of adverse effects on the integrity of the site must be

removed before the project is authorised."

Since, as per Article 6 (3) the proposed WWTP, the subject of these proceedings, is not directly connected with or necessary for the

management of any European site consent to the proposed development can only be given where an Bord Pleanála has ascertained

that it will not adversely affect the integrity of the site.

The applicant is concerned about the adverse effect of the project on the Lough and the beaches and coastline in the vicinity given

that it is an important water body and a major amenity. He is also concerned that no consideration was given to the unique ecological

situation of the Lough as the Foyle area is a narrow inlet and, while a marine area, it is almost completely enclosed and is unique in

terms of its tidal conditions but also in terms of its ecological importance. It is evident from p.63 of the inspector's report that The

Loughs Agency shared the applicants concerns that no proper evaluation had been undertaken, specifically regarding receptors such

as eel, salmon and lamprey which are protected under the Habitats Directive in the designated areas. The applicant argues, as Mr Me

Cartney of the Loughs Agency does at p.77 of the inspector's report, that an appropriate assessment was not carried out under the

Habitats Directive in relation to those receptors downstream which while not in a protected area may be affected on the migratory

routes to the designated areas.

Respondent's Submissions

5.1 Bias

The respondent refutes the unwarranted allegation that Mr. Boland acted inappropriately and that the Board's decision was motivated

by bias. The respondent notes that the applicant in his pleadings complained of subjective bias but in his oral submissions attempts

instead to raise an apprehension of objective bias.

The legal principles regarding an evaluation of an allegation of bias were laid out in Usk & District Residents Association Ltd. V An Bord

Pleanála & Ors. [2009] IEHC 346 where Me Menamin J. said at para. 22:-

"Objective bias is to be distinguished from subjective bias. To establish the former, it must be shown that there existed

some factor, extraneous to the decision making process, which could give rise to a reasonable apprehension that the

decision-maker might have been biased."

In O'Reilly v Cassidy [1995] I.L.R.M 306, Flood J. held that the fact that a judge's daughter was briefed before him on a licensing

application was not a reasonable ground on which bias could be found. He found that in addition to such relationship there must exist

some factor which could give rise to a fear in the mind of a reasonable man that in the circumstances the relationship could affect

the outcome of the case.

The respondent submits that it is evident from the applicant's second affidavit dated the 8th January, 2013, at para. 59 (wherein he

says "...it would be very difficult, no matter how objective Mr.Boland would try to be, to distance oneself from a firm that he was

once employed by...when one has held such a senior position in that firm...it is difficult to reconcile this with a person who was

disinterested in the outcome sufficient to allow an objective assessment ...")that bias is not being prosecuted from the viewpoint of

someone who might have a reasonable apprehension of bias (objective bias) but is based on a claim of subjective bias. The

applicant's allegation of bias is without foundation. Mr. Boland swore an affidavit setting out that he had no involvement with RPS.

MCOS was one of the leading Consultancy firms in Ireland. Mr. Boland began working there at the beginning of his career and rose to

the position of technical director. Kirk was similarly one of the leading firms in Northern Ireland. Both firms were acquired separately by

an international company- RPS, between 2002 and 2004. The respondent submits that the applicant sought in his pleadings to impute

an improper relationship from the sole fact that Mr. Boland worked for a company which carried out a particular study for the EIS and

was related to one in Northern Ireland. He has now changed tack and characterises his claim in this regard under the heading of

objective bias.

The respondent argues that the applicant's concerns are baseless and relies on O'Neill v Irish Hereford Breed Society Limited [1992] 1

IR 431 where at p. 450 Murphy J. held:-

"...not every prior involvement by a member of a body exercising a quasi​ judicial function with a person or the conduct of

a person whose affairs are under consideration by the body would necessarily disbar the member from acting in the

matter, certain forms of involvement would undoubtedly have that result."

The standard a reasonable person may expect as regards the "prior involvement" rule must depend entirely on the context of the

case. Under s.106 of the Planning & Development Act 2000 as amended by s.15 of the Planning & Development (Strategic

Infrastructure) Act 2006 there is a legislatively mandated make-up of the Board of An Bord Pleanála and the persons thereon are

appointed by reason of their experience and background. A reasonable person must realise that those persons appointed to the board

will be nominated by representative associations of persons whose professions relate to engineering and would have considerable

engineering background and expertise in the field. There are few engineers in Ireland dealing with the area the subject matter of

waste water treatment plants and by virtue of this Mr. Boland was appointed to the board.

It is denied that Mr. Boland took advantage of his role on the Board to ensure that the board's decision would be favourable to RPS or

that he usurped the role of the inspector. It is submitted that the applicant misunderstands the inspector's role vis a vis An Bord

Pleanála. Under s.146 of The Planning & Development Act 2000 the inspector's function is to consider an application by making a

written report and recommendation. The Board is the ultimate assessor of a project not the inspector.

The respondent argues that Kenny v. Trinity College Dublin on which the applicant relies is not in point herein. That case is

distinguishable from this one, it is contended, since Kenny involved not merely a planning issue but an allegation of fraud against an

architect, where the brother of the judge hearing the matter was a partner in the firm of architects implicated. No such relationship

exists herein. In the circumstances the respondent contends there is no reason for a reasonable person to have any grounds for

suspicion much less to conclude that Mr. Boland might have been actuated by bias or a desire to assist RPS.

5.2 Habitats

The respondent contends that there is no legal or factual basis for the applicant's contention that it has breached the EC (Natural

Habitats) Regulations 1997 or the EIS requirements. The respondent notes that Lough Foyle itself is not a designated site although

there are two Natura 2000 designated sites within the Lough. Those sites are roughly 11.5km and 4.5 km away from the discharge

point of the WWTP.

Thus, the respondent argues it did not have to meet the requirements of Article 6(3) of the Habitats Directive as the discharge will

not take place into a protected site. Similarly it is argued that the board is not bound to meet Article 6(3) on the basis that areas

near the protected sites must not be harmed since the protected areas in question are far from the outfall.

There is no basis for contending that the Council did not consider the impact on Northern Ireland as it is patently obvious from the

EIS and the inspector's report that the entirety of the Lough was assessed.

The assessment obligations which arise in relation to habitats were considered in Sweetman vAn Bard Pleanála [2010] IEHC 53 where

it was held that such obligations only arise for projects which are likely to have a significant effect on SACs. As Sweetman makes

clear the decision of which projects fall within this category is a decision for the board. The Board felt it had sufficient evidence

before it to determine that the effect of the project on the receiving waters in Lough Foyle was unlikely to produce a significant

effect on the relevant sites.

Despite an assessment not being required the EIS did deal with these matters and the inspector in his report of the 6th October,

2009, in fact outlined how the EIS dealt with them under the heading "Flora and Fauna" at s. 3.4 of his report. On water quality the

inspector expressly stated at s. 5.6 of his report that the EIS found that "the impact on water quality....is not considered to give rise

to significant negative water quality impacts". Donegal County Council took the view that the overall impact of the scheme on water

quality would be positive and the inspector agreed.

The applicant appears to be relying on the expert report of Ms. Dubsky entitled "Considering Impacts on Sea Grass Zostera Marina"

wherein she states that insufficient consideration was given to eelgrass. The respondent considers the manner in which the applicant

characterises her report to be of concern. The report actually states that the main problem arises from the discharge of raw sewage

which is what the WWTP seeks to eliminate. Ms. Dubsky correctly acknowledges that Lough Foyle is not as a whole a designated

Nature 2000 site and there is no designation in the vicinity of the outfalls. Nonetheless the outfall location was considered in light of

portions of the area being covered by nature conservation designations.

She deals with the legal status of eelgrass at p.4 of the report. She explains that it is a qualifying species but is not designated in

Lough Foyle. Thus, the respondent argues, while the grass is of significance it is not of legal significance in the context of the

Habitats Directive. Nonetheless, the effect on marine habitats including eel grass was also considered, as is evident from the

inspector's report and part 4 of the EIS, as were oysters, which are not a protected species under the Directive.

The applicant is concerned about the effect on salmon, otters and rare birds. It is clear from the inspector's report that the impacts

on otter, birds and salmon was considered. It is clear from part 4 of the EIS that Donegal County Council also addressed the impacts

on potentially affected species.

5.3 Northern Ireland.

The respondent argues that the applicant in his second affidavit has introduced a point on which leave was not sought, being the

jurisdictional issue, where he maintains that the "extent of the national territory" was "the most fundamental consideration in the

entire application" and that the respondent failed to take this into account when assessing the project. He further contends that the

development for which permission has been granted lies in part outside the jurisdiction, to the extent of contending that it may

require the compulsory acquisition of "crown lands". The respondent asserts that the only grounds the applicant may advance are

those for which he was granted leave and the applicant's arguments are in any event completely without foundation and entirely

misconceived.

The respondent denies that it failed to consider its obligations vis- a- vis the status and extent of the adjoining territory or that it

omitted to assess any trans-boundary effects the development may have had, and argues that any claim to the contrary is without

merit and factually baseless. Trans-border effects were identified and engaged with. In fact Donegal County Council specifically asked

the board to submit an EIA because of those potential effects.

There were detailed consultations between Donegal County Council and the relevant Northern Irish authorities. The respondent

submits that almost as many northern bodies as southern were consulted demonstrating that the Council was concerned with the

cross- border effects of the project.

Moreover, p.5 of the Board's decision expressly refers to its consideration of input from the Loughs Agency and the Planning Service

of Northern Ireland. Although in the end the Board did not agree with the suggestion made by the Loughs Agency it cannot be

presumed from this that it did not have any regard to the agency's suggestions.

The entities who made submissions have not made any complaints and the respondent submits that the applicant does not have

standing to now make a complaint on their behalf.

5.4 EIA/EIS

It is the statutory function of An Bord Pleanála to assess the adequacy of the EIS as part of the EIA process. In this process the

planning authority, and on appeal the Board, must be appraised of the likely significant effects on the receiving environment of a

proposed development. The Board in its decision (at p.2 "Reasons and Considerations") indicated that it completed its assessment on

the basis of the EIS furnished by the Council and the modelling exercise as presented at the oral hearing and was satisfied that the

proposed discharge would be compatible with protecting water quality in Lough Foyle.

The Board clearly felt that the EIS contained a sufficient and appropriate level of information to assist it in assessing the main effects

of the proposed development and to enable it to carry out the EIA having regard to the requirements under the Planning Act 2001 and

Planning & Development Regulations 2001. The inspector expressly stated at s. 5.1 of his report on the 6th October, 2009, that "The

EIS submitted is considered to comply with legislative requirements."

It is argued that the applicant's contentions in relation to the inadequacy of the EIS are misconceived, having regard to the

requirements of the discretionary provisions of Article 94 of the 2001 Regulations which states:-

"94. An EIS shall contain-

(a) the information specified in paragraph 1 of Schedule 6,

(b) the information specified in paragraph 2 of Schedule 6 to the extent that-

(i) such information is relevant to a given stage of the consent procedure and to the specific characteristics of the

development or type of development concerned and of the environmental features likely to be affected, and

(ii) the person or persons preparing the EIS may reasonably be required to compile such information having regard,

among other things, to current knowledge and methods of assessment, and

(c) a summary in non-technical language of the information required under paragraphs (a) and (b)."

It is argued that the applicant fails to recognise the discretion afforded to the competent authority to seek and obtain further

information as part of the EIA process, in addition to the EIS.

The applicant maintains that the EPA was not consulted until 2011, some weeks before the application was determined. This is

incorrect. From a memo dated the 25th May, 2010, it is clear that the board received submissions from the Agency in relation to both

sets of additional information submitted by the Council. Moreover, the respondent denies that a letter to the EPA of the 30th June,

2011, was a request for further information. It submits that the language used in that letter can be contrasted with a letter dated

the 10th February, 2010, to Donegal County Council where the respondent clearly states that it is looking for further information. It

says "....hereby requires you to furnish the following further information...". whereas the letter sent to the EPA states that the EPA

"...is invited to comment on the information contained in the EIS....". The board argues that the letter of the 30th June, 2011, is no

more than an invitation to comment and nothing arises from the EPAs failure to do so.

The respondent argues that the applicant errs in its reliance on case C-50/09 and argues that the split decision process in that case

is irrelevant to this case. In that case the European Court of Justice accepted that the Supreme Court interpretation of the EIA

complied with the Directive, but found that there were shortfalls in the legislation therefore clarity was needed as it was not evident

in the transposing measures.

The respondent submits that the requirement of the EIA process is to assess the likely environmental effects of a proposed

development for which the EIS merely sets the agenda for further discussion and deliberation. It relies on the dicta of Mac Mahon J. in

Klohn v. An Bord Pleanála 1 I.R. 59 who noted at p.63:-

"It is also worth emphasising that the environmental impact statement is a document submitted by the developer, the

terms of which are set when it is submitted. In contrast, the environmental impact assessment is a process which is an

ongoing exercise undertaken by the decision maker. A great deal can happen...between the lodging of the environmental

impact statement ... and the final decision...."

Thus the EIS is merely the point of departure in the EIA, which is followed by written submissions then possibly an oral hearing. The

EIS is only intended to facilitate the board in assessing the likely significant effects of the development which must form part of the

process of considering the planning application. The respondent does accept that the WWTP design was preliminary, but this does not

signify that the board was unaware of the very elements of the design. It is not necessary for an EIS to contain exhaustive detail. As

Elias J. held in Hereford Waste Watchers Limited v. Hereford Council [2005] EWHC 191 Admin at para.22:-

"It is therefore only with respect to anticipated significant effects that relevant information, including relevant data,

should be provided".

The Board had ample evidence before it on which it could assess the likely impact of discharge from the outfall pipe of Lough Foyle

which is the applicant's main concern and was satisfied that the proposed discharge would be compatible with protecting the quality

of water at Lough Foyle and would not result in any significant adverse effects on the environment.

It is well established that assessment of the adequacy of an EIS is a factual matter requiring a particular planning expertise and is a

matter for the decision maker (An Bord Pleanála).

In Klohn v An Bard Pleanála Me Mahon J. at p.64 held:-

".....[T]he content of the environmental impact statement is primarily determined by the wording of the relevant

regulations ...whereas its adequacy is determined by the decision maker..."

Therefore there is a limited basis upon which the respondent's decision may be judicially reviewed either in respect of the adequacy of

the EIS or whether it has sufficient information before it to conduct an EIA.

In Klohn at 73 Mac Mahon J. also held:-

"...in cases such as this the court in reviewing the Board's decision will not interfere with the bona fide exercise of its

discretion in these matters. It is not the court's function to second guess the respondent and substitute its own decision

for that of the Board. The legislature, in its wisdom, vested the power to make such a decision in a body which has

expertise and experience in these matters. Such a body is much better qualified and in a much better position to make

such technical decisions in this specialised area than the court....."

Moreover, there is a presumption that the decisions of the board are valid and that it has performed its functions properly until the

contrary is shown The respondent points again to Klohn where Mac Mahon J. held at p.74:-

"Furthermore one must assume....that statutory bodies....exercise their powers and discharge their functions in a lawful

and proper manner..."

5.5 Failure to give reasons

In its decision the board explains in detail its main reasons and considerations in granting planning permission. It also explains it

reasoning for deciding not to accept the inspector's recommendation.

The Board's obligation to recite its main reasons is contained in s.34 (10) of the Planning and Development Act 2000. This provides

that :-

"(10) (a) A decision given under this section or section 37 and the notification of the decision shall state the main reasons

and considerations on which the decision is based, and where conditions are imposed in relation to the grant of any

permission the decision shall state the main reasons for the imposition of any such conditions, provided that where a

condition imposed is a condition described in subsection (4), a reference to the paragraph of subsection (4) in which the

condition is described shall be sufficient to meet the requirements of this subsection.

(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse

permission is different, in relation to the granting or refusal of permission, from the recommendation in-

(i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the

case of a planning authority, or

(ii) a report of a person assigned to report on an appeal on behalf of the Board, a statement under paragraph (a) shall

indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission."

In Grealish v An Bord Pleanála [2007]2 IR 536 at para. 40 O'Neill J. described the legal duty arising under s. 34(10) of the 2000 Act

as:-

"....a very light one, one could even say almost minimal."

There are two different requirements in s.34(10) and this distinction was highlighted in Mulholland v An Bord Pleanála (No.2) (2006] 1

IR 453 wherein Kelly J. drew a distinction between s. 34(10) (a) which requires that the main reasons and considerations should be

provided for a decision to grant or refuse permission, and (as is pertinent in this case) s. 34(10)(b) which requires that a decision to

differ from the recommendation of an inspector should be supported by the main reasons alone.

On the particular standards required of reasons in such a case in O'Neill v An Bord Pleanála [2009] IEHC 202 at paragraphs 34-37

Hedigan J. held with specific regard to the s.34(10)(b) situation that :-

"There was no obligation to provide detailed reasoning equivalent to the highly professional and highly detailed report of

the inspector herself. Only the main reasons were required and, in my opinion, they were amply provided...The respondent

was not required to deliver a discursive judgment not to engage in a full re-evaluation of the inspector's report."

In this case the respondent argues its decision contains a proper and adequate indication of the main reasons for not accepting the

recommendation in the inspector's report and the board has complied fully with its obligations under s.34 (10) and there is no

obligation on the board to outline every matter that to which it had regard in arriving at its decision.

Notice party Submissions

6.1 Adequacy of EIS/EIA

The notice party adopts the respondent's submissions.

It notes that the WWTP itself was sub-threshold the requirements for a mandatory EIS as was the associated pipe work.

Nonetheless, an EIS and EIA were conducted and the overall proposal was assessed therein.

As part of this assessment it was noted in the EIS that the proposed project would have an overall positive environmental effect,

however the notice party submits, the applicant has attempted to argue the matter in such a way as to make it appear that the

statement concluded that a negative environmental impact would ensue.

The matters of which the applicant complains such as flora & fauna, water quality and soils were considered in the EIS and by the

inspector in his report and it was found that there was no significant impact on any of them.

The Loughs Agency did not raise any concerns in respect of the Northern Irish side of the Lough. It is accepted that it did raise

concerns regarding salmon, eel and lamprey which would travel throughout the Lough however the notice party submits that this

concern was adequately addressed by the County Council.

The notice party asserts that the preliminary design of the project upon which the EIS was based was conclusive in a number of

respects e.g. the hydraulic design, as is evident from the affidavit of Ms. Conibear. Therefore it is argued that the respondent did

have enough information to conduct a thorough assessment of the project. The applicant has not raised any precedent in support of

his argument that final design is a requirement of the EIS process.

In Klohn v An Bord Pleanála & Ors. [2009]1 IR 59 Me Mahon J. explained the role of the EIS at p.63 finding that:-

"Although the EIS is intended to be comprehensive, it is rarely definitive. As the first document in the investigation

process, it is, at most, the point of departure in an ongoing process. It is intended to launch a process which will attract

comment and submissions from other parties, including observations from those with entitlements to participate in the

process. The intention is that, as a seminal document, it sets the agenda for further discussion and deliberation which

will, finally, provide a body of information which will enable the decision maker to make its assessment in full possession of

the relevant environmental factors."

It is submitted that the EIS prepared by the Council contained an appropriate level of information having regard to the above and

requirements under the Planning Act and Planning Regulations 2001.

The difference between the EIA and EIS and their relationship was set out by Clarke J. in Arklow Holidays Ltd. v. An Bord Pleanála &

Ors. [2006] IEHC 15 where he stated at para. 6.2:-

"It is, of course, necessary to note that there is a distinction between the EIS (which is a document prepared by the

developer and submitted to the planning authority) and the environmental impact assessment ("EIA'') which is the process

required, as a matter of EU law, of the competent authority (in this case the planning authority) prior to the grant of

development consent. It is clear that, as a matter of EU law, it is open to the competent authority to supplement any

information submitted on behalf of the developer with its own enquiries."

The applicant contends that where there is reliable scientific information that a development would have a severe negative impact on

European sites, the standard of certainty, as required by Waddenzee, is met and therefore the Board must refuse the Development.

The notice party argues that this is an untenable argument on the facts. There is no opposing scientific information that it would

have any impact on any EU site.

Decision

7.1. The issues that arise in this case are as follows;

(a) objective bias;

(b) failure to assess the impact on the Northern Ireland side of Lough Foyle;

(c) inadequacy of the EIS/EIA.

7.2 The bias issue, as first raised, claimed direct bias on the part of Mr. Boland in his handling of the application to An Bord Pleanála,

i.e. subjective bias. This is the only bias that was pleaded in the case. It was vigorously pursued with references to alleged clear bias

on the part of Mr. Boland. In his second affidavit, the applicant alleged that Mr. Boland usurped the role of the inspector. It was

speculated that he may have known the engineers involved in the project and was even friendly with them. No evidence of this was

produced but clear impropriety was alleged. When Mr. Boland swore an affidavit explaining in detail his very tenuous link with RPS

(Northern Ireland), it appears the response to this was to increase the level of allegation. No evidence of any kind was produced to

back up these allegations. They appear to have been based on a misunderstanding of the role of the Inspector vis-a-vis An Bord

Pleanála. Presumably on wise advice, the allegation of actual bias, i.e. subjective bias, was withdrawn at the hearing. In its place was

raised a claim of objective bias. This involves the reasonable apprehension of a reasonable person fully informed of all the relevant

facts that he would not have a fair hearing from an impartial tribunal. See Kenny v. TCD [2008] 2 I.R. 40, Fennelly J. at paragraphs

18- 21, where he cited the judgment of Denham J. in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412 at p. 441. Before

dealing with this entirely changed claim in relation to bias, I think it is important to point out the following. Sad and sobering

experience has shown that the planning process attracts egregious forms of corruption and dishonesty. Constant vigilance is

undoubtedly required to combat this plague. Sharp and focused litigation is certainly one of the effective tools for doing this. The

courts, therefore, must always be alert to any allegations of impropriety alleged to be present in the planning process and ready to

investigate in accordance with their proper role. Litigants bringing cases before the courts are frequently private individuals dedicated

to trying to protect the environment. Their battle is often a David and Goliath struggle. Nevertheless, such litigants should be careful

not to unjustly indict the good name and integrity of those involved in the planning process in their pleadings before these courts. To

do so without solid evidence, completely absent herein, is an abuse of the process of the court and does nothing to assist the case

of good planning or environmental protection. In justice to the parties involved herein, I think I must state unequivocally that Mr.

Boland's good name and integrity have been thoroughly vindicated in these proceedings. I am sorry to say that, on the other hand,

the plaintiff’s credibility as a plaintiff has been badly damaged by his apparent ratcheting upward of his allegations against Mr. Boland

after he, in his affidavit, had given a more than reasonable answer to the allegations of bias. No reasonable or fair person would have

responded thus. Turning to the bias issue as it is now raised, do the facts of this case support the claim of objective bias? On the

basis of the pleadings and the affidavit herein, it appears that the claim is essentially based, firstly, on an alleged link between Mr.

Boland and RPS (Northern Ireland) who prepared the Hydrodynamic and Water Quality Modelling Study dated March 2007, and,

secondly, on Mr. Boland allegedly taking over the role of Inspector.

7.3 In his replying affidavit herein sworn on the 29th May, 2012, Mr. Boland deals comprehensively with the relationship between his

former employer, RPS Consulting Engineers Limited, located in Ireland and RPS Consulting Engineers Limited, located in Northern

Ireland. He explains how those two companies were originally completely independent from each other. The company in Ireland being

originally M. C. O'Sullivan & Co. Ltd., the one in Northern Ireland being originally, Kirk McClure Morton. This company was the largest

consulting engineering firm in Northern Ireland and did some work in Ireland. Both these companies were acquired in or about 2002 by

RPS Group plc., a U.K. company. RPS group acquired a number of other companies in Ireland and Northern Ireland providing planning

and environmental services in both jurisdictions. These companies were re-branded as RPS- MCOS (the Ireland Company) and RPS

Consulting Engineers Ltd. (the Northern Ireland Company). RPS- MCOS subsequently re-branded again as RPS Consulting Engineers.

Both, he avers, are different corporate entities and each company in the RPS Group in Ireland and in Northern Ireland acted

independently. Mr. Boland also states that although as an engineer he can understand such reports, he has no specific expertise in

hydrodynamic and water quality modelling which is a highly specialised area of environmental engineering. He further explains that he

was a technical director with his former company employer and not, as the applicant thought, a company director. He swears further

that during his employment he was unaware that Donegal County Council had engaged RPS in Belfast or that they were seeking to

build a waste water treatment plant near Moville. He states he does not know the staff of RPS Northern Ireland other than through

corporate social events nor did he know in what projects they were involved. He himself was not involved in any way with the

preparation of the report nor was he in any way involved with the Moville project. He notes lastly that he was first involved with the

Board's file in this project in November 2009, almost three years after he left RPS and the Board's decision was made over four and a

half years after he left RPS. The Court must also bear in mind that persons such as Mr. Boland are chosen to sit on the Board

precisely because of their professional background and experience. See s. 106 of the Planning and Development 2000, as amended. As

is clear from this provision, those appointed to the Board will first be nominated by representative associations prescribed for that

purpose and appointed by reason of their expertise. In relation to this case, appointments must be made of two members from

nominations of bodies representative of persons whose professions or occupations relate to physical planning, engineering and

architecture as may be prescribed. Consequently, the apprehension that a reasonable person may have must accommodate the fact

that such persons (including engineers) are appointed precisely by reason of their experience and background. By definition they must

have a very considerable engineering background. Ideally they should be persons of considerable experience and be leaders in their

field.

7.4 The test of objective bias is as set out by Fennelly J. in Kenny v. TCD (cited above). In that case the apprehension raised

involved one of the Judges of the Supreme Court who was the brother of an architect who was one of the partners of a firm, Murray

O'Laoire Architects. It was alleged this firm had deliberately misled the High Court in its reports. The apprehension alleged was that

the Judge in question might find difficulty in adjudicating on such a serious charge against his brother's architectural practice.

Fennelly J. cited the test set out by Denham J. in Bula Ltd. v. Tara Mining Ltd. (No. 6) [2000] 4 I.R. 412 at p. 441;

"... it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances

would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the

issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any

party. It is an objective test- it invokes the apprehension of the reasonable person."

Fennelly J. continued;

"20. The hypothetical reasonable person is an independent observer, who is not over sensitive, and who has knowledge of

the facts. He would know both those which tended in favour and against the possible apprehension of a risk of bias....

21. The test of objective bias is expressed in general terms. Its application demands an appreciation of all the

circumstances of the individual case, followed by a particularly careful exercise of the faculty of judgement. In his

judgment in O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419, where the allegation was one of pre-judgment bias,

Finlay C.J. expressed the view, at p. 439, that, in analysing the facts, he should 'take the interpretation more favourable

where there is ambiguity to the plaintiff than to the defendant.' Whether or not that is a principle of general application, it

applies in a special way in the present case, where this court is asked, in a very real way, to adjudicate on whether one

of its own judgments was tainted by objective bias. That fact obliges it, in order to ensure respect for the principle that

justice must not only be done but be seen to be done, to act with great care and circumspection. It should err on the

side of caution.

22. An important aspect of this case is the substance and character of the allegations being made by the plaintiff in

these proceedings. He alleges that the first defendant engaged in deliberate misleading of the High Court with the result

that the court made an incorrect decision. The affidavits exchanged in the High Court show that the plaintiff alleges that

the firm of architects were implicated in this action by the first defendant.

23. In his judgment in Orange Ltd v. Director of Telecoms (No. 2) [2000] 4 I.R. 159, Barron J. approved a lengthy

passage from the judgment of the Court of Appeal in England (consisting of Lord Bingham C.J., Lord Woolf M.R. and Sir

Richard Scott V.C.) in Locabail (UK.) Ltd v. Bayfield Properties Ltd [2000] 1 Q.B. 451, which contains the following

relevant statement at p. 480:-

,... a real danger of bias might well be thought to arise if there were personal friendship or animosity between the

judge and any member of the public involved in the case; or if the judge were closely acquainted with any member

of the public involved in the case, particularly if the credibility of that individual could be significant in the decision

of the case .. .'

A witness will suffice. The question is whether a reasonable observer might have a reasonable apprehension that a Judge,

hearing such allegations being made against the firm of architects in which his brother was a member, although that

brother was not in any way directly involved in the subject matter of the litigation, might find it difficult to maintain

complete objectivity and impartiality. Could such an observer be concerned that the allegations were of a nature to cast

doubt on the integrity of at least one member of the firm and that a Judge should not adjudicate in such a dispute.

Applying the most favourable interpretation of the facts from the plaintiff’s point of view, and bearing in mind that the

Court should be especially careful where it is considering one of its own judgments, I believe that the test of objective

bias should be held in all the circumstances to be satisfied."

7.5 Applying this test to the present case, it is clear no relationship anywhere close to that in Kenny exists herein between the firm

who produced the hydrodynamic report and Mr. Boland, the decision-maker. No allegation such as was made in Kenny is levelled at

RPS. It seems to me that it would not be reasonable for an independent observer appraised of all the facts to have an apprehension

that they would not get an impartial hearing from An Bord Pleanála for these reasons. Thus I find that the claim of bias has not been

substantiated.

Alleged failure to assess the impact on the Northern Ireland side of Lough Foyle

7.6 This claim is made at paragraph (E) (11) of the statement of grounds. In paragraph 25 of his grounding affidavit, the applicant

states his view that nobody appears to have considered the effect that the development would have on the Northern Ireland part of

Lough Foyle. Notwithstanding this statement, in the same paragraph he acknowledges that the application was forwarded to the

Northern Ireland authorities and that they made submissions. He expresses the view that their concerns were not met.

This claim appears entirely at variance with the evidence. The reason that Donegal County Council decided to submit the application

to An Bord Pleanála was because there was a trans-border aspect to it. Further, the EIS report at 1.4.3 notes that there had been

consultation with the Londonderry Port Authority and the Loughs Agency, which is a trans-border body established under the 1998

Good Friday Agreement. The following page of the EIS lists thirteen Northern Ireland bodies that were consulted. At 4.1.3.2 it notes

the partial jurisdiction of the Environment and Heritage Service of Northern Ireland and in the context of designated areas it refers

again to this Northern Ireland body at 4.3.3.2. Finally, in its decision at page 5, An Bord Pleanáa considered but did not accept a

suggestion made by the Planning Service of Northern Ireland and the Loughs Agency to locate the discharge pipe outside of Lough

Foyle due to the limited scale of discharge and the EIA assessment that impacts on water quality would be acceptable and would be

a substantial improvement on the current situation.

In the light of the above, it is clear that there was, in fact, a trans-border assessment made based on submissions made by the

Northern Ireland authorities. This in fact was done at the request of Donegal County Council in choosing to make the application to An

Bord Pleanála. This part of the applicant's case is entirely without foundation.

No adequate EIS/EIA carried out

7.7 The applicant contends that the Board contravened Directive 85/337 EC by carrying out an assessment without having sufficient

information. This in turn is based upon the proposition that the Board sought information from the Environmental Protection Agency,

presumably on the basis it needed such information and did not obtain any information therefrom. What was the status of this request

for information by the Board to the EPA? Is it really a formal request for information as the applicant claims or just an invitation to

comment which was declined by the EPA as the respondents claim? A comparison with an admitted formal request for information may

be helpful. By letter dated 10th February, 2010, the Board sent a request for information to Donegal County Council. In its first

paragraph the Board invokes its statutory power to require that certain information be furnished to it. The request is quite clearly a

demand. The specific information is outlined and Donegal County Council is warned that the response should be delivered by a very

specific time and date. The Board also reserves its right to require Donegal County Council to publish newspaper notice of the

furnishing of any additional information, to allow for inspection of the same and for the making of further submissions in relation to the

same to the Board.

By contrast, in its letter to the EPA dated 30th June, 2011 which the applicant considers to be in the nature of a request for

information pursuant to s. 175(5)(a) as applied to s. 226 of the Planning and Development Act 2000 and as made above to Donegal

County Council, the Board invites the EPA to comment. The Board states that it would greatly appreciate a response by a particular

date.

These two requests are clearly entirely different from each other in nature. Whilst the first is mandatory in nature, the second is no

more than an invitation to an interested party to comment on the information contained in the EIS and the mitigation measures

proposed therein. The EPA, for their own reasons, declined to provide this information. The applicant mischaracterises this invitation

to the EPA when he equates it with the requests made pursuant to s. 175(5) (a) of the Planning and Development Act 2000. The

invitation to comment is not made pursuant to the statute and there is no obligation upon the Board to insist upon an answer nor any

bar on their proceeding without one. Thus, the ground upon which the applicant relies in order to argue that the Board did not

examine the substance of the EIS is not supported by the evidence upon which it sought to base that argument.

7.8 The second ground was that there was not an adequate EIS. The adequacy of an EIS is dealt with in Article 111 of the 2001

Regulations;

"(1) The Board shall consider whether an EIS received by it in connection with an appeal complies with Article 94."

The adequacy of an EIS is thus clearly a matter for the Board which is the decision​ maker. See Klohn v. An Bord Pleanála [2009] 1 I.R.

59 at p. 64, Kenny v. An Bord Pleanála [2001] I.R. 565 at p. 578. The assessment of the adequacy of the EIS is a factual matter

involving considerable expertise in planning. It is classically a specialist matter upon which an expert body must decide. The test for

this Court in examining such an assessment is thus the O'Keeffe one. Was there relevant evidence before the Board upon which it

could rationally rely in order to come to its decision?

Examining this question, the following must be noted; the inspector stated in his report that "the EIS submitted is considered to

comply with legislative requirements". See s. 5.1 of the Inspector's report of the 6th October, 2009 (at p. 96).

In Kenny v. An Bord Pleanála cited above, McKechnie J. held;

"Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the

Environmental Impact Study or the debate on it had before the inspector. These are not matters of concern to this court.

The [planning authority] and the respondent, as these bodies must under the regulations, were satisfied as to the

Environmental Impact Statement, with the inspector and the respondent also being satisfied with the evidence, both

documentary and oral, produced at the oral hearing. That in my view, concludes the matter."

Thus, the statutory requirements having been found to have been complied with, and the above is evidence they were, the adequacy

of the assessment by the Board of the EIS is not something this Court needs further consider. In any event, it does appear to be a

statement that deals with all the matters required by the sixth schedule to the Planning and Development Regulations 2001. I have

heard no convincing evidence that it does not.

7.9 The applicant alleges that there is a direct discharge into a "proposed site". He accepts that the entire Lough is not designated a

natural habitat, but states that certain portions are. It is accepted that the outfall pipe is not filling into a designated site, but is into

Lough Foyle and it is claimed that the effluent could be carried into other parts of the Lough that are designated. He argues that

where there is any doubt, planning permission should be refused, see Waddenzee v. SLNV ECR 2004 1-07405. He finally notes that s.

63 of the Inspectors' Report shows that the Loughs Agency shares its concerns specifically in relation to eel, salmon and lamprey.

The respondent argues that the Lough is not designated although there are two Natura 2000 designated sites within it. These are

11.5km and 4.5km respectively from the discharge point. The only two designated areas are on the Northern Ireland side. Therefore,

the respondent argues that they do not have to meet the requirements of Article 6(3) of the Habitats Directive, because there is no

discharge into a protected site.

It seems to me that there is no evidence, only an assertion, that the discharge might affect these designated areas above. It should

be noted that the evidence is that approximately twenty times the effluent flows into the Lough from the Northern Ireland side than

from the Ireland side. In any event the Inspector agreed with Donegal County Council that the overall impact of the scheme on water

quality would be positive, although barely noticeable. Moreover Part 4 of the EIS did in fact address the impact on species it

considered likely to be affected. See the report at 4.3.3.4, 4.3.3.5 and 4.3.4.2. The Habitats Directive envisages projects that are

likely to have a significant effect on special areas of conservation and it is only those that require an assessment. The Board's

decision on such matters is an exercise by it of its planning expertise and challengeable only on O'Keeffe grounds. See Sweetman v.

An Bard Pleanála [2010] IEHC 53. As noted above, the Board did have evidence before it as to the possible effects of the proposed

outfall pipe. Thus, even were it a designated area, the effects were considered and found not significant.

7.10 More generally on this aspect of the applicant's case, it seems to me that the evidence does not support a case of an

inadequate EIA by the Board herein. The Board had a very substantial volume of evidence before it enabling a thorough assessment of

the likely impact of the discharge from the proposed outfall pipe on Lough Foyle. There was sufficient evidence to assess this whole

project so as to decide upon any significant effects thereof on the immediate environment. It is quite clear that the Board, whilst

accepting some of the reservations of the inspector, notably, with regard to the Glen Burnie pumping station, did not share all and

ultimately disagreed with his recommendation. That is its role. The inspector recommends but the Board decides. The decision is given

by the Oireachtas to the Board and not to the inspector. That such a scenario is contemplated by the planning infrastructure

provided by law is demonstrated by the provision requiring the Board to state its reasons when it does not follow the inspector's

recommendation. This the Board did fully in this case.

7.11 The purpose of the project dealt with herein is the improvement of the water quality in Lough Foyle. All of the evidence is that

the present situation is untenable. Ms. Dubsky's report, produced by the applicant, shows that raw sewage is being discharged into

Lough Foyle at the moment. The evidence establishes that this project will greatly enhance the water of this beautiful Lough to the

great benefit of all. The evidence as opened to the Court in this case overwhelmingly demonstrates that the sooner this project

commences, the better. It is a great pity it has been delayed so long.

7.12 For all the above reasons the reliefs sought are refused.