The High Court has granted An Bord Pleanála leave to appeal a ruling that overturned its planning decision, certifying a question about whether an environmental statement must be a distinct, identifiable document. The order will not be perfected until the applicant, Waltham Abbey Residents Association, has had an opportunity to consider whether to seek leave to cross-appeal.
The application followed a May 2021 judgment in which the court quashed the board’s decision. In this further judgment, delivered on 7 October 2021, Mr Justice Humphreys said the appeal question was whether “statement” in the planning regulations means a distinct identifiable document, including a clearly identifiable section within a larger document.
The dispute concerns Article 299B of the Planning and Development Regulations 2001. The judge said the regulations require a statement indicating how available results from relevant environmental assessments under other European Union legislation have been taken into account. He had concluded in the earlier judgment that this required an identifiable statement, rather than fragments gathered from different parts of a developer’s application.
The board argued that it should be able to satisfy itself that the necessary information appeared somewhere in the application materials. The judge said there had been no distinct stand-alone document in this case. He also identified concerns about the limited explanation of how other assessments were considered and the absence of reference to several potentially relevant EU directives, including the Water Framework Directive.
The judge said a disagreement between his earlier ruling and a later High Court judgment in Pembroke Road Association v An Bord Pleanála made the first question suitable for appeal. He rejected the board’s proposed second question, concerning whether an application lacking such a document had to be refused, saying it did not meet the test for certification.
The judge stressed that certification does not resolve the underlying planning dispute. Even if an appeal court answers the certified question in the board’s favour, further issues about the board’s consideration of the regulations and EU law would remain. Those matters could be decided by the appeal court or sent back to the High Court.
The certified question is whether the word “statement” requires a distinct identifiable document, which may form part of a larger document. The residents’ association was given seven days to notify the court if it wished to make a submission or application concerning a cross-appeal.