The High Court has quashed An Bord Pleanála’s 2018 permission for a freshwater abstraction project at Loch an Mhuilinn, Gorumna Island, after finding the Board could not assess whether it complied with EU water rules. The judgment was delivered by Ms Justice Niamh Hyland on 15 January 2021.
Peter Sweetman brought judicial review proceedings challenging permission granted to Bradán Beo Teoranta. The project would abstract up to 4,680 cubic metres of water a week from the lake for up to 22 weeks a year, to bathe salmon from four licensed fish-farm sites in Kilkieran Bay. Galway County Council had refused planning permission before the Board granted it on appeal.
The central successful ground concerned the Water Framework Directive. The court found that the EPA had not assigned Loch an Mhuilinn a status through the assessment and monitoring process required under the Directive and Irish implementing rules. Without that status, the Board could not determine whether the project risked deterioration or jeopardised the achievement of good surface water status. The Inspector and Board had relied on alternative abstraction-risk methods and proposed safeguards, including stopping abstraction at a specified lake level. The judge held those measures did not substitute for the Directive’s required assessment.
The court rejected Sweetman’s other grounds. It found that consent from owners of parts of the lakebed was not required: there was no evidence the floating temporary pipe would cross or affect their land, and riparian rights over water did not make that land “concerned” by the planning application. It also found sufficient evidence to support screening out Connemara Bog SAC from appropriate assessment, given the distance, scale and lack of a direct pathway identified in the evidence.
The court further held that Sweetman’s argument seeking an environmental impact assessment of the fish farms as well as the abstraction project had not been properly pleaded. Considering it anyway, the judge found the water project was not a stage in the fish farms’ separate licensing process and was not part of a single project requiring a combined EIA on the basis argued.
The permission was quashed solely because the Board had not complied with the Water Framework Directive. The judgment did not determine any possible claim concerning interference with private riparian rights.