High Court certifies no point of law of exceptional public importance for appeal to Supreme Court on EU habitat protection.

Neutral Citation: [2016] IEHC 374

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 356 J.R.]

IN THE MATTER OF SECTION 50 OF THE PLANNING AND DEVELOPMENT ACT 2000 (AS AMENDED)

BETWEEN

PETER SWEETMAN AND THE SWANS AND THE SNAILS LTD.

APPLICANTS

AND

AN BORD PLEANÁLA AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

CLARE COUNTY COUNCIL

NOTICE PARTY

AND

NORTH TIPPERARY COUNTY COUNCIL

NOTICE PARTY

(No. 2)

JUDGMENT of Mr. Justice McDermott delivered on the 24th day of June, 2016

1. The applicant seeks a certificate from the court for leave to appeal the judgment delivered on the 4th May, 2016 pursuant to s.

50A (7) of the Planning and Development Act 2000 (as amended) (the Act) which provides:-

“The determination of the Court … of an application for judicial review … shall be final and no appeal shall lie from the

decision of the court to the Supreme Court in either case save with leave of the Court which leave shall only be granted

where the court certifies that its decision involves a point of law of exceptional public importance and that it is desirable

in the public interest that an appeal should be taken to the Supreme Court.”

The reference to the Supreme Court is now to be construed as a reference to the Court of Appeal pursuant to ss. 74 and 75 of the

Court of Appeal Act 2014.

2. The principles applicable to the determination of whether a certificate should be granted on an application for judicial review

pursuant to s. 50 of the Planning and Development Act 2000 were considered by McMenamin J. in Glancré Teoranta v. An Bord

Pleanála [2006] IEHC 250 and summarised as follows:

“(1) The requirement goes substantially further than that a point of law emerges in or from the case, it must be one of

exceptional importance being a clear and significant additional requirement.

(2) The jurisdiction to certify such a case must be exercised sparingly.

(3) The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to

enable the courts to administer that law not only in the instant, but in future such cases.

…

(5) The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of

law during the hearing.

(6) The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative

requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).

(7) The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an

interpretation would not take into account the use of the word “exceptional”.

(8) Normal statutory rules of construction apply which mean inter alia that “exceptional” had to be given its normal

meaning.

(9) “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law.

Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily

operation of the law in question.

(10) Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to

be certified be such that it is likely to resolve other cases.”

These principles have been endorsed and applied in a number of decisions including Arklow Holidays Ltd. v. An Bord Pleanála [2008]

IEHC 2, Ashbourne Holdings Ltd. v. An Bord Pleanála [2002] ILRM 321, Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704, Ógalas

Ltd. (t/a Homestore and More) v. An Bord Pleanála [2015] IEHC 205, Callaghan v. An Bord Pleanála (No. 3) [2015] IEHC 493 and

Dunnes Stores v. An Bord Pleanála [2015] IEHC 387.

3. The draft point advanced by the applicant for certification is:-

“Whether “shadow protection” or “de facto protection” may extend to a habitat designated as a priority habitat in Annex I

to Council Directive 92/43/EEC, notwithstanding the fact that, as occurs in the instant case, the site hosting such a

natural priority habitat has not been identified and/or listed as a Site of Community Importance (SCI) and/or designated

as a Special Area of Conservation (SAC) pursuant to the provisions of Article 6 of that Directive.”

4. The applicant submits that the question posed arises out of a number of findings made in the judgment of the 4th May. The

applicant sought an order of certiorari of the decision of An Bord Pleanála made on the 25th March, 2013 to grant permission to Clare

County Council under s. 51 of the Roads Act 1993 (as amended) in respect of the Killaloe By-Pass. It was submitted that habitats

which could be classified as Annex I priority natural habitats on the basis of their ecological characteristics were entitled to de facto

protection under Council Directive 92/43/EEC of the 21st May 1992 on the Conservation of Natural Habitats and of Wild Fauna and

Flora (the Directive). This included the habitats of alluvial wet willow/alder (Alnus Glutinosa) woodland which constituted areas of

natural habitats of community interest whose conservation required designation as Special Areas of Conservation (SAC) as contained

in Annex I of the Directive. The “shadow protection” issue arose in these proceedings in respect of an area of 0.15 hectares found to

constitute an alluvial woodland. This area was not part of the lower River Shannon SAC, though it was situated on a nearby area of

land. It was intended in the course of the development that this area would be removed and replaced. It was not a Site of Community

Interest (SCI) and had not been submitted on the national list of proposed sites to the Commission for inclusion on a list of Sites of

Community Interest under the Directive. It was not a “European site” under Part XAB of the Planning and Development Act 2000.

5. This small area of 0.15 hectares would therefore be affected on a temporary basis if the proposed development were to proceed.

However, it would be subject to re-colonisation and mitigation measures and an additional area of the same priority habitat would be

developed nearby. These measures were adopted and approved as conditions to which the permission granted by An Bord Pleanála

was subject. It was concluded that this area of wet alluvial woodland would not suffer adverse effects as the result of long term

substantial loss or disturbance of the habitat. It would be restored, enhanced and expanded and that process would be subject to a

system of professional monitoring and supervision to ensure compliance with the condition.

6. The applicant contended that the 0.15 hectares of alluvial woodland was properly the subject of “shadow protection” even though

it fell outside the statutory protection afforded to “a European site” and/or an SCI or SAC under the Directive and/or a European site

under Part XAB of the Act.

7. The extent of the legal protection applicable to an Annex I site was considered by the court. The judgment sets out the framework

of protection provided under the Directive and the jurisprudence of the CJEU in respect of such sites. It is clear that the case law

provides protection to Annex I type habitats once the Member State has determined that it should be proposed to the Commission on

the national list. The Commission then considers whether the sites included on the national list should be nominated as Sites of

Community Importance. Once nominated by the Commission as an SCI the site must be designated as an SAC by the Member State

which then has a duty to protect the site in accordance with the provisions of Article 6 of the Directive.

8. The case law of the CJEU extended this protection to sites which have been identified by the Member State and notified to the

Commission as Annex I Priority Habitats but which have not yet been designated as SAC in a series of cases referred to in the

judgment including Case C-117/03 Societá Italiana Dragaggi SpA and others v. Ministero delle Infrastrutture e dei Transporti [2005]

ECR I-167, Case C-244/05 Bund Naturschutz in Bayern eV and others v. Freistaat Bayern [2006] ECR I-8445 and C-103/00

Commission v. Hellenic Republic [2002] ECR I-1147. The Member State has an obligation following the compilation of a national list to

provide interim protection in respect of sites included on the national list once they have been proposed under Article 4(1) pending

the completion of the decision making process (Dragaggi). A State may not authorise intervention on a site which may give rise to a

risk of serious compromise of the ecological characteristics for which it was proposed as an Annex I site pending determination of its

designation (Bund Naturschutz in Bayern). In Commission v. Hellenic Republic it was held that a Member State would be open to

infringement action by the Commission for a failure to list a site where there is no dispute between the Member State and the

Commission concerning the requirement that it should be designated as a protective site. Thus “shadow protection” is extended under

CJEU jurisprudence in limited and defined circumstances. Under domestic legislation it would be something of a misnomer to call such

protection “shadow protection” as statutory protection has been accorded to “European sites” under Part XAB of the 2000 Act: this

embodies the jurisprudence of the CJEU concerning the extent of the protection afforded at the various stages of the designation

process. The rationale is clear. Sites which are nominated by a Member State should not be depleted or destroyed and should be

protected by the Member State to the same degree as a designated SAC pending completion of the designation process, otherwise

the Commission will be deprived of making an appropriate decision for its designation.

9. A European site, as defined by s. 177R, means a candidate site of community importance, a site of community importance, a

candidate special area of conservation, a special area of conservation, a candidate special protection area and a special protection

area. The definition includes all sites requiring protection under the Directive and the jurisprudence of the CJEU. These sites are

subject to the full range of protections provided under Article 6 of the Directive.

10. The question posed is based on a legal premise that the protection required under Article 6 and Part XAB of the Act to European

sites also applies to sites containing Annex I habitats of alluvial woodland which were not submitted as part of the national list. The

0.15 hectares of alluvial woodland is not a “European site”. It was established on the evidence and the court was satisfied that it was

not a site which was entitled to Article 6 protections in accordance with the domestic statutory framework, the Directive or the

jurisprudence of the CJEU.

11. The court was also satisfied that Ireland, in submitting its list of candidate sites of community importance and engaging in the

process of designating special areas of conservation, complied with its obligations under Articles 4, 5 and 6 of the Directive. It had

completed the designation process for alluvial woodland with the Commission and to its satisfaction, as described at paras. 54 to 59

and 63 of the judgment.

12. The court also found that the 0.15 hectares was an area of alluvial woodland as described in Annex I. The claim made for

“shadow protection” under the Habitats Directive was addressed by the court in its judgment at paras. 62 to 75. The list of sites to

be furnished under Article 4(1) of the Directive does not have to be exhaustive (Case C-67/99 Commission v. Ireland, 2001 I-

05757). The CJEU has made clear that there is a margin of discretion vested in Member States when selecting sites for inclusion in

the list subject to compliance with a number of conditions. The Commission then adopts, in cooperation with the Member State, the

sites on the proposed list as sites of community importance. It is not obliged to adopt each site nominated by the Member State.

Following its adoption the Member State must then designate the site as a special area of conversation. Article 5 provides for a

bilateral consultation procedure between the Member State and the Commission, if the Commission is dissatisfied with the list of

proposed SCIs. In Ireland’s case the Commission did not invoke any consultation process under Article 5 in respect of the alluvial

woodland sites nominated. On the contrary it determined that Ireland is compliant with its obligations in that regard.

13. I am not satisfied that the proposition advanced in this case is based on any legal uncertainty arising from either the provisions of

the Directive or the jurisprudence of the CJEU. It does not arise from the clear definition of “European site” contained in Part XAB of

the Act. It is inconsistent with a number of the principles under which the designation process works. It is clear that a Member State

is not required to list every Annex I type habitat on its list under Article 4(1), nor, is the Commission obliged to designate every site

on that list as a site of community importance. Furthermore, the Commission’s determination of compliance is also considered on a

local and European wide assessment in respect of a habitat. The Court was also satisfied that there was no basis for the submission

that Ireland has defaulted in its obligations under the Habitats Directive. The Commission was satisfied that the State had advanced a

sufficient list of “alluvial woodland” sites, relevant to the preservation of the named species, for designation as SCIs.

14. The applicant submits that legal uncertainty exists between the judgment of the Court in this case and that of the High Court

(Charleton J.) in Sandymount and Merrion Residents Association v. An Bord Pleanala [2013] IEHC 542 (SAMRA) as to whether “shadow

protection” must be granted to an Annex I type site which has not been submitted as part of the national list under Article 4(1). It is

submitted that Charleton J. endorsed the concept of shadow protection when a priority “species” was likely to be jeopardised by the

authorisation of an intervention such as development consent.

15. In SAMRA, the State proposed the designation of part of Dublin Bay as a special area of conservation. Prior to the designation,

planning development consent/licence for the extension of an existing waterway treatment plant at Ringsend was granted. It was

proposed to relocate an effluent outfall tunnel from the inner to the outer bay. A question arose as to the legal implications for the

proposed consent/licence following the subsequent proposal to designate the site as an SAC. It was an important feature of the case

that the State proposed part of Dublin Bay for designation on the basis set out at Annex III (Stage 1) of the Directive and the

relevant scientific information pursuant to Article 4(1). It was therefore a case in which Ireland as the Member State had nominated

the area on its national list. The facts of the case fall within the case-law of the CJEU extending “shadow protection” to nominated

areas under Article 4(1) prior to the completion of the designation process.

16. In SAMRA Charleton J. analysed the decision of the CJEU already referred to above in some detail and the decision in European

Commission v. Republic of Cyprus (Case C-340/10, ECLI:EU:C:2012:143) upon which the applicant relies. In that case the

Commission, having received a complaint from an environmental group regarding the inadequate protection of the Cypriot grass snake,

initiated proceedings against Cyprus for failure to include an area of the Paralimni Lake, the snake’s habitat, in its national list of SCIs.

In December, 2009 Cyprus informed the Commission that the site had been officially included in the national list of SCIs in November,

2009 save for an area at the northern end of the lake. Cyprus stated that it had never disputed that the site at Paralimni Lake should

constitute an SCI. The issue was whether the boundary which had been set for the SCI in its proposal was sufficient for the

protection and conservation of the species at issue. It claimed therefore that the matter should be addressed under Article 5 of the

Directive. The court, noted the principles set out in Dragaggi and Bund Naturschutz cases also apply:

“46. … in any event, mutatis mutandis, to the sites which the Member State at issue does not dispute satisfy the

ecological criteria in Article 4(1) of the Habitats Directive and which, therefore, should have been included in the national

list of SCIs sent to the Commission.

47. It cannot be permitted, under the Habitats Directive and the objective which it pursues, that a site such as that at

issue in the present case, which the Member State concerned does not dispute must be included in that list, does not

enjoy any protection.”

17. Charleton J. summarised the position as follows:-

“6.0 It is clear that the underlying objectives of the Directive must be upheld and the duty of effective cooperation on

Member States is not to be diminished or dissolved through either self serving conduct such as inappropriate development

or through ignoring the fundamental objectives of seeking out and notifying sites that require conservation to the

Commission. That is not conduct which occurred in this case. The respondent Minister followed both a timescale and a

procedure that was consistent with effective cooperation and did so with the guidance of the Commission.”

18. The applicants also rely on the earlier statement by Charleton J.:

“5.0 Finally, even before a site is designated, the issue finally arises whether there is some shadow protection that

proceeds backwards from the designation so as to ensure that the obligations of the Regulations of 2011 apply, despite

the fact that a relevant permission, albeit one applicable to only the built environment and not to any discharge from the

site, has already being given? The answer appears to be that this is possible in some circumstances but that such

circumstances do not arise in this case.”

19. The two principles identified by Charleton J. arise from the jurisprudence of the CJEU, namely that national authorities are not

entitled to undermine the integrity of a site or the protection of flora or fauna where they have been notified by authorities of works

which “strike against that protection” and that where a site is central to the protection and maintenance of a priority species and

there is no scientific disagreement between the Commission and the Member States, which requires the procedure of Article 5 to be

invoked, the protection of a site of priority natural habitat will arise and be enforceable. This was so because “no one is entitled to

destroy the object for which one proposes legal protection” and “in failing to designate an area … listed in the Annexes to the

Directive as requiring priority protection, there can be no reliance on failure to comply with the law”. However, it is important to recall

that in Commission v. Cyprus, Cyprus acknowledged that the site ought to be accommodated as a SCI in accordance with Article 4.1

and Stage 1 of Annex III.

20. The court is satisfied that it is now well established that:

(1) European sites once selected are protected.

(2) If a disagreement occurs between the Commission and the Member State over the relevant site a consultation

procedure under Article 5(1) may be invoked.

(3) Where there is no disagreement between the Member State and the Commission as to the status of the site and the

Member State agrees that it ought to be included on it’s national list, failure on the part of the Member State to protect

the site may be the subject of legal action by the Commission outside the provisions of Article 5(1).

21. It is clear therefore that in SAMRA Ireland nominated the site in issue for designation as an SAC. An issue arose as to the legal

consequences of the subsequent proposal to designate the site as an SAC for an existing consent/ licence. It was not a case in

which Ireland had failed to nominate a site as part of its national list. It did not concern the issue of whether “shadow protection”

applies to a priority site which the State has not proposed as part of its national list because it did not consider it or did not consider

it a suitable site under Article 4 of Stage 1 of Annex III to do so. There is clearly no conflict between the Commission and Ireland in

relation to its designation of alluvial woodlands sites in accordance with its obligations. The protective measures under consideration

in SAMRA only arose because of Ireland’s proposal of the site under Article 4.

22. The applicant also relies upon the extrapolated sentence from Charleton J.’s judgment at para. 4.1 that:-

“If, however, and this is not stated in [Article 5] there is no question but that a priority species inhabits a site, or the site

is a priority natural habitat, a failure to designate may lead without more to direct action before the Court of Justice of

the European Union.”

23. That sentence occurs at the tail-end of an extensive review of the process under which an Annex I site may be considered for

inclusion upon a national list in accordance with Article 4(1) and the Stage 1 procedure under Annex III. The sentence clearly reflects

the jurisprudence of the CJEU as established in the Cyprus case which is discussed later in the judgment.

24. I am not satisfied that any legal uncertainty arises between the judgment in this case and SAMRA. The facts of the cases are

significantly different but I am satisfied that the principles applied in each case are the same.

25. I am therefore satisfied that no point of law emerges from the judgment which requires to be resolved or clarified. The principles

of law applicable under the Directive, the domestic statutory framework, domestic case law and jurisprudence of the CJEU are clear.

26. I am not satisfied that the applicant has established that there is an evolving jurisprudence concerning the issue that arose in

this case which gives rise to uncertainty. The process of designation of Special Areas of Conservation has previously been considered

in Commission v. Ireland (Case C-67/99, 2001 I-05757) and the subsequent jurisprudence of the CJEU in Dragaggi,, Bund

Naturschutz, Commission v. Hellenic Republic and Commission v. Cyprus which set out clear principles applicable to the protection of

Annex I sites. I do not consider that this jurisprudence or the interpretation which the applicant seeks to place on the judgment of

Charleton J. in SAMRA provides a basis upon which to conclude that the law on this topic is anything other than settled and clear. The

SAMRA judgment is clearly rooted in that jurisprudence and does not provide an arguable basis upon which to impute the uncertainty

which it is claimed would be resolved by answering the proposed question. It is not authority for the existence of a parallel process of

“shadow protection” of sites outside the legal process and framework described in the judgment and the legal principles described

above.

27. This Court made findings of fact in relation to the 0.15 hectares. It is clear that this area of alluvial woodland will not be subject

to permanent destruction. It will be temporarily removed and re-colonised. An additional area of 0.76 hectares of similar habitat will be

cultivated nearby. It is difficult to avoid the conclusion that the level of protection provided under the conditions set out by An Bord

Pleanála in respect of this area is of such a high standard that it would easily fulfil the requirement of Article 6 protection if it were

applicable.

28. The court is mindful of the public interest that exists in the conservation of Annex I habitats. There is no evidence that the

proposed point is one upon which many other cases depend or will depend. There is nothing exceptional in that point, which depends

upon selective quotes from the SAMRA judgment which I am satisfied are taken out of context and in my view do not reflect the

fundamental principles relied upon in that judgment and the provisions of the designation process under the Directive.