The High Court has said it will in principle refer questions to the Court of Justice of the European Union about whether a developer or planning authority must obtain more information when there is uncertainty about the environmental effects of a proposed development, including possible effects on strictly protected species such as bats.
The questions arose in a judicial review brought by Waltham Abbey Residents Association over An Bord Pleanála’s 2020 permission for 123 apartments and associated works in Ballincollig, County Cork. O’Flynn Construction Co. Unlimited Company was a notice party. The judgment, delivered by Mr Justice Humphreys on 24 March 2023, concerns the remaining challenge to the board’s environmental impact assessment screening, particularly the treatment of bats.
The judgment records that the site was within 400 metres of the River Lee, residents had reported seeing bats flying over it, and one of six oak trees on the site had a cavity that could raise questions about bat use. The tree survey identified 13 trees for removal but did not assess their potential use by bats, including for roosting, foraging or commuting. The developer’s screening reports did not specifically assess bat impacts. The inspector recommended that tree-felling follow the advice of a suitably qualified ecologist; the board included that requirement as condition 21 of its permission.
The residents’ legal challenge alleged, among other things, that the board lacked adequate information to screen out the need for an environmental impact assessment. The judgment records that several other grounds were not pursued, and that the domestic-law part of a separate ground had already been decided in earlier proceedings. The judge identified four questions about the obligations arising under the EU environmental impact assessment rules and the precautionary principle, including whether more information is required when material submitted later raises doubt about environmental effects.
The court did not decide those EU-law questions or determine the remaining challenge to the permission. It said it would in principle refer the questions to the EU court, subject to possible refinement of their wording. The parties were directed to make simultaneous submissions within two weeks, after which the case would be listed for mention. Costs were reserved. The formal reference order was to follow those submissions.