High Court refuses to overturn €116bn State development plan

A High Court judge has refused an attempt to overturn the Government’s €116 billion Project Ireland 2040 development plan.

In a judgment on Friday, Mr Justice Anthony Barr dismissed claims the plan adopted at a special Cabinet meeting in Sligo in February 2018 is invalid due to alleged lack of proper environmental assessments and failure to properly address climate change.

Friends of the Irish Environment (FIE) brought a case against the Government, the Minister for Planning, Ireland and the Attorney General seeking to quash the adoption of the plan.

The say the plan fails to meet the assessment requirements of the Strategic Environmental Assessment (SEA) Directive and the Habitats Directive. Project Ireland 2040 has two principal components, the National Planning Framework (NPF) and the National Development Plan (NDP).

In his judgment, Mr Justice Barr said he was satisfied the NDP is a financial or budget plan and does not require either a SEA or Appropriate Assessment (AA). He rejected FIE’s arguments that the respondents had failed to assess the environmental effects the plan’s measures would have on climate change.

Extensive provisions

The environmental report accompanying the plan, the SEA statement and the NPF itself contain “extensive provisions” dealing with climatic factors, he said.

FIE wants a “quantitative assessment” of the likely effect of the NPF on climatic factors but that cannot be given as the NPF is a policy document which does not give permission for any specific development or project, he said.

It was clear climatic factors are “one of the main drivers” behind the features provided for in the NPF, he added.

Earlier in the judgment, he held the NDP does not require a SEA assessment under the SEA Directive because it is not a plan or programme within the definition of that directive. In particular, it does not define the criteria and detailed rules for the development of land or for consents in relation to particular projects, he said.

The plan was rather a “budgetary plan” which provides certain designated projects are compatible with the objectives of the plan and as such may be considered appropriate for public funding.

He rejected arguments the Government’s adoption of the NPF and NDF on February 16th 2018 was void and in breach of European law because the required determination the plan would not adversely affect a European site had not been made by the Government as part of an AA under the Habitats Directive.

He was satisfied, “in reality”, the necessary determination had been made by the Minister in advance of a government meeting held on February 16th 2018 and was put in written form on May 14th 2018.

While the regulations provide a determination must be made in writing, due to the fact it must be made available to the public, they do not say “when” that determination must be reduced to writing and envisage the determination can be reduced to writing after the date it is made, he found.

Reasons for decision

In the context of the duty on public authorities to give adequate reasons for their decisions, he held the determination set out clearly the documentation containing the reasons for reaching that decision.

He was also satisfied a determination by the Minister is effectively a determination by the Government. He rejected FIE’s argument that there was no adequate consideration, in line with the SEA Directive, of alternatives to the plan.

He accepted the respondents argument, when one looks at the legislation as a whole, the requirement to carry out a full SEA only relates to the plan it is proposed to adopt. He was satisfied, where one is dealing with a high level strategic plan such as the NPF, sufficient information was given in relation to the reasonable alternatives and there was sufficient assessment of those to enable members of the public and other stakeholders to comment in a meaningful way on the draft NPF and the environmental report.

The judge also rejected arguments the respondents had failed to comply with monitoring provisions set out in the relevant EU environmental regulations and that inadequate consideration was given to FIE’s submissions on the plan.