The Court of Appeal (CoA) has dismissed most of an environmentalist group’s appeals against the refusal to overturn Project Ireland 2040’s € 116 billion plan for the country’s development.

Last year, the High Court dismissed claims by Friends of the Irish Environment (FIE) that the plan adopted at a special Cabinet meeting in Sligo in February 2018 was invalid due to the alleged absence of ‘appropriate environmental assessments and failure to properly address climate change.

The FIE brought proceedings against the government, the Irish Minister for Housing, Planning and Local Government and the Attorney General.

He sought to overturn the government’s adoption of the plan on the grounds that it would not meet the assessment requirements of the Strategic Environmental Assessment (SEA) Directive and the Habitats Directive.

Project Ireland has two main components, the National Planning Framework (NPF) and the National Development Plan (NDP).

Environmental considerations

The High Court was convinced that the NDP is a financial or budgetary plan and does not require an SEA or an Appropriate Assessment (AA).

He rejected the FIE’s arguments that respondents had not assessed the environmental effects of the plan’s measures to tackle climate change. The environmental report accompanying the plan, the SEA statement and the NPF itself contain “detailed provisions” dealing with climatic factors, the court said.

He also said that a “quantitative assessment” of the likely effect of the NPF on the climatic factors sought by the FIE cannot be provided because the NPF is a policy document that does not authorize any specific development or project.

The FIE appealed the judgment and the appeal was heard by all three CoA judges earlier this year.

In a judgment delivered Friday on behalf of the CoA, Judge Caroline Costello dismissed most of the FIE’s appeals.

She said MFN should be submitted to AA in accordance with the Habitats Directive and to SEA under the SEA Directive.

There had been no AA determination for the purposes of the Habitats Directive prior to the government’s adoption of the NPF in February 2018 and, therefore, this decision was invalid and should be overturned.

However, she said in May 2018, the minister made an AA decision that met the requirements of the Habitats Directive.

It was a new decision to adopt the MFN, and it was in line with the requirements of the Habitats Directive, she said.

Compliance

The MFN was reviewed for the SEA, and it was determined that the MFN was a plan that should be subject to strategic assessment under the SEA Directive.

This involved considering six options, including the preferred option and five reasonable alternatives. These have been assessed identically in an environmental SEA report and the reasons for favoring a particular option have been set out.

There was therefore no omission to assess reasonable alternatives in a comparable manner, the judge said.

She also stated that the level of detail to be provided is that which is “reasonably required”. The court will only interfere with a decision of this nature for conventional reasons of public law and no such reason has been established by the FIE.

The SEA Environmental Report and SEA Statement are in line with the SEA Directive’s requirement to monitor the unintended negative effects of MFN implementation on the environment, she said.

The effects of NPF on climate change were assessed in the environmental report of the SEA, she said. The FIE had not shown that such an assessment was irrational and, therefore, the adequacy of the assessment did not fall under the CoA, she said.

The NDP is not a plan or program to which the SEA directive or the Habitats directive applied, she said.

She therefore overturned the government’s February 2018 decision to adopt the NPF, but if not, dismissed the appeal and upheld the High Court’s decision.

She also spoke out against the FIE on a reference to Europe as she said there was no question of interpretation of EU law which needs clarification by the EU Court of Justice and which is necessary for the resolution of this matter.