About the Habitats Directive (92/43/EEC)
The Habitats Directive 92/43/EEC is an EU law that aims to ensure the long‑term conservation of Europe’s most threatened natural habitats and wild species by maintaining or restoring them to a favourable conservation status. It does this primarily through the designation and protection of Special Areas of Conservation, which form part of the Natura 2000 network alongside sites protected under the Birds Directive. Member States must identify and propose suitable sites, adopt conservation measures and management plans, strictly protect certain listed species, and regulate plans or projects likely to affect protected sites through an assessment and authorisation regime. The Directive is enforced through its transposition into national legislation, supervision and surveillance obligations on Member States, periodic reporting to the European Commission, and, where necessary, infringement proceedings before the Court of Justice of the European Union for failures to comply.
Massey v. an Bord Pleanála [No. 4] [2025] IEHC 309
A developer, Curns Energy Limited, sought planning permission for a renewable energy project, which the respondent classified as Strategic Infrastructure Development (SID). The applicant challenged this decision, arguing primarily that the respondent carried out an Appropriate Assessment (“AA”) screening for the project under the Habitats Directive in the absence of legally valid conservation objectives for the relevant European sites. He also raised a technical point concerning the corporate identity of the applicant for permission.
Relevant EU Directives
- Habitats Directive (Council Directive 92/43/EEC):
The applicants questioned what criteria a court can withhold certiorari where AA screening was carried out in the absence of valid conservation objectives, and if those criteria were applied correctly in the present case.
The Court acknowledged that the absence of site-specific conservation objectives was a procedural shortcoming, for which it granted declaratory relief. However, it refused to quash the planning permission based on the fundamental purpose of the Habitats Directive's AA under Article 6(3) which is to prevent adverse effects on European sites. Based on the specific evidence, the High Court found that the development could not have had any effect on these protected sites. Therefore, even assuming a breach occurred, the Court applied the principle of "harmless error", holding that the violation did not affect the outcome. The Court justified this by aligning with the CJEU's ruling in Gemeinde Altrip (C-72/12), which permits withholding annulment for defective assessments where the error is proven to be inconsequential. - EIA Directive (Directive 2011/92/EU): To address the issue regarding the AA, the Court looked to the EIA Directive and CJEU jurisprudence to determine the limits of the “harmless error” doctrine. In Gemeinde Altrip, a “harmless error” for a defective assessment does not require annulment if evidence shows no impact on protected sites. By aligning the case with Altrip, the Court found the alleged defect was procedural and, on the uncontroverted evidence, harmless, thus quashing the permission was unnecessary.
Key Points of EU Law
The examination of both directives was performed in the context of the “harmless error” principle as established in Gemeinde Altrip and affirmed in Irish law by Carrownagowan Concern Group v. An Bord Pleanála [2025] IESCDET 9. It ruled that a procedural breach of the Habitats Directive, such as conducting an AA without valid conservation objectives, does not automatically invalidate a planning permission if uncontroverted evidence proves the error had no actual effect on protected European sites. The High Court prioritised the substantive protective goals of the directives instead of adhering to a rigid procedural application when no harm had been committed. The Court further stressed that harmless error applies only to procedural irregularities, not substantive irregularities such as the complete lack of an EIA.
Conclusion
The High Court refused leave to appeal the matter to the Supreme Court and upheld the planning permission. As the procedural breach was shown to pose no effect on protected European sites, the certiorari was not warranted.
Eco Advocacy v. An Bord Pleanála [2025] IEHC 195
Despite receiving declaratory relief and costs, the applicant did not obtain certiorari on a wind farm in a prior version of the case (Eco Advocacy v. An Bord Pleanála [2025] IEHC 15) because it did not provide evidence sufficient to show that the respondent’s reasons for its assessments were defective. In response, the applicant launched thirteen points or sub-points of alleged exceptional public importance (under eight broad headings). These included the questions: whether the respondent had taken account of a submission by the Minister advising the planning authority that the developer’s screening for an Appropriate Assessment (“AA”) was not supported by scientific advice; was it necessary for the respondent to address in its reasons for screening out a development for AA, the opinions to the contrary and/or any reasonable doubts expressed in an expert scientific opinion if it has decided to grant permission and; in the context of the case is it in accordance with the EIA Directive to impose a 105 minute limit to the applicant’s oral submissions. 1
Relevant EU Directives
- Habitats Directive (Council Directive 92/43/EEC) : The Court held that the requirements of the Habitats Directive regarding the extent of reasons needed for an AA screening have been definitively clarified by the CJEU in a prior case involving the same applicant, Eco Advocacy (C-721/21). The Court held that while a competent authority must provide reasons sufficient to demonstrate that a project will not adversely affect the integrity of a European site, there is no obligation to rebut every contrary scientific submission.
Key EU Law Points
The judgment reiterates that the burden of proof was on the applicant to prove that the decision was flawed. The Court also determined that with regards to the 105-minute time limit, that member states have procedural autonomy, provided that such rules do not render the rights granted under the relevant EU directives as impossible to exercise.
Conclusion
The Court dismissed the appeal in its entirety. It was also held that none of the thirteen points were issues of law but of applicability. None of the points were of public importance and they failed to meet the standards of the public interest test.
1 It is worth noting that references by the parties to a ‘105 minute limit’ were an incorrect premise: “there’s something rather forlorn about the fact that the question is framed on the incorrect premise of a 105-minute time allocation where that was only the initial allocation and not the final provision of 2 hours for the applicant overall” (para. 30).
Friends of Ardee Bog v. an Bord Pleanála and Others [2025] IESC 13
The applicants filed a judicial review to challenge certain decisions of the first respondent (an Bord Pleanála) in respect of the construction of a 4.5 kilometre road and two bridges at Ardee, Co. Louth. This judgment concerns the single question as to whether the Supreme Court should grant the applicant leave to appeal from a decision of the High Court pursuant to Article 34.5.4° of the Constitution.
Relevant EU Directives
- Habitats Directive (Council Directive 92/43/EEC): While the inspector determined that the project not likely to be any direct or indirect effects on any Special Protection Area (“SPA”) environment, an Appropriate Assessment (“AA”) was conducted for the purposes of Article 6 of the Habitats Directive. However, there was no site-specific conservation objectives in place for one of the potentially impacted SPAs and the applicant maintains, inter alia, that this omission was fatal to the validity of the Board's decision and that there was no proper AA screening as required by Article 6(3) of the Habitats Directive.
Key Points of EU Law
The judgment emphasises that the existence of valid, site-specific conservation objectives for a European site may be a jurisdictional pre-requisite for a competent authority to conduct a valid Appropriate Assessment screening under Article 6(3) of the Habitats Directive. This issue was deemed to be one of general public importance, given its potential to affect a large number of development projects.
Conclusion
The Court granted the applicant leave to appeal to on the specific issue of the validity of An Bord Pleanála's decision given the absence of site-specific conservation objectives for the Special Protection Area. Leave to appeal was refused on all other grounds, which the Court found had either been abandoned in the High Court or were not properly pursued.
Duffy v. An Bord Pleanála [2024] IEHC 558
The applicant challenged a decision by the respondent, An Bord Pleanála (“the Board”), granting planning permission to Pat McDonagh for a Motorway Service Area near Ennis, Co. Clare. The challenge focused on concerns regarding wastewater treatment. The development included an on-site Wastewater Treatment Plant (“WwTP”) that would ultimately discharge into Uisce Éireann’s Clareabbey WwTP. The applicant, a civil engineer and planning consultant, claimed the Clareabbey WwTP lacked hydraulic capacity to accommodate the additional load, and that this could impact protected European sites (Special Area of Conservation, ‘SACs’, and Special Protection Areas, ‘SPAs’) under the Habitats Directive. The Board had relied on submissions from Uisce Éireann - including a “no objection” statement - and on environmental reports, including Annual Environmental Reports (AERs) showing the plant was within capacity. The applicant argued that the Board failed to consider or properly engage with scientific data on capacity and stormwater overflows, breaching obligations under EU environmental law. He also cited past planning refusals and EPA concerns as evidence of insufficient capacity. This case examined two main EU Directives.
Relevant EU Law Directives
- Habitats Directive (Council Directive 92/43/EEC): Article 6(3) requires an Appropriate Assessment (“AA”) for any plan or project likely to affect a European site. At para. 37, Holland J. observed the following as to the requirement for scientific evidence and certainty in AA: “Article 6(3) of the Habitats Directive requires that AA contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on European sites”. Holland J. noted that the Board must do its own AA but may in so doing adopt its inspector’s report as to AA, as established in South West Regional Shopping Centre v An Bord Pleanála [2016] IEHC 84. Holland J. held that the Board could lawfully adopt the inspector’s AA findings and that its conclusion - that there would be no adverse effect on site integrity - was rational and evidence-based.
- Urban Waste Water Treatment Directive (Council Directive 91/271/EEC) (“the UWWTD”): Mr. Duffy alleged that stormwater overflows (“SWOs”) and WwTP load breaches violated this Directive. Holland J. observed in para. 37 that under this Directive, all urban wastewater must be treated before it is discharged:
“By Article 4(1) UWWTD, all urban wastewater entering collecting systems must be subject to secondary or equivalent treatment before discharge. The UWWTD recognises a general need for secondary treatment to prevent adverse effect on the environment by urban waste water effluent discharge.”
Holland J. also discussed, in the same paragraph, the nature of secondary treatment:
“The UWWTD defines ‘secondary treatment’ as treatment of urban wastewater by a process generally involving biological treatment with a secondary settlement or other process in which the requirements established in Table 1 of Annex I are respected. Table 1 states requirements for discharges from urban waste water treatment plants as to Biochemical Oxygen Demand (BOD5), Chemical Oxygen Demand (COD) and Total Suspended Solids.”
Holland J. acknowledged the relevance of Commission v. Ireland (Case C-427/17) which emphasised the need for limiting SWOs and ensuring proper treatment. However, Holland J. stated that these points were not properly pleaded. Furthermore, Holland J. accepted that even if SWOs existed, the Board was not required to reject planning permission solely on that basis. Regarding enforcement of WwDL compliance, Holland J. held that this lies primarily with the EPA, not the planning authority.
Key EU Law Points
Holland J. reaffirmed that under the Habitats Directive, AA must be based on complete and precise scientific information and must remove all reasonable scientific doubt. The Board may lawfully adopt its inspector’s AA if fully accepted, and Holland J. found that the Board’s AA was rational and legally sufficient. Under the UWWTD, all wastewater must receive secondary treatment, and uncontrolled stormwater overflows such as SWOs may breach this requirement. Although Holland J. acknowledged relevant CJEU case law on SWOs, ultimately, he declined to rule on those issues as they were not properly pleaded. Holland J. held that enforcement of wastewater treatment compliance lies with the EPA, not the planning authority.
Conclusion
Holland J. dismissed the judicial review, finding that the Board’s AA was lawful and rational. The Board was entitled to rely on Uisce Éireann’s submissions and consistent annual environmental data indicating sufficient WwTP capacity. The applicant failed to properly plead key claims, particularly under the UWWTD, and advanced assertions unsupported by evidence. No breach of EU law or procedural unfairness was established.
