The High Court has refused to quash An Bord Pleanála’s 2008 decision on the Galway City Outer By-Pass, rejecting a challenge to its interpretation of habitats law after a telescoped judicial review hearing. The court granted leave on that ground but dismissed the substantive challenge. It also refused leave on a separate claim that the Board gave inadequate reasons.
The case concerned the Board’s decision of 20 November 2008, which approved the section between Junction M (Garraun) and Junction A (Gortatleva) and refused approval for the section from Junction A to Junction W (An Baile Nua), including the western distributor connection.
Peter Sweetman argued that once a project was found likely to have a significant adverse effect on a protected site, that finding meant the site’s integrity would be adversely affected and the project could not be approved under Article 6(3) of the Habitats Directive and Regulation 30 of the Natural Habitats Regulations 1997. The State respondents supported the challenge on this legal issue. An Bord Pleanála and the councils argued that the law required a further assessment of whether the effect would harm the site’s integrity.
Mr Justice Birmingham found the legislation required a two-stage process: first assess whether a project is likely to have a significant effect, then determine whether it would adversely affect the site’s integrity. A project could proceed only if the authorities were satisfied there was no adverse effect, with no reasonable scientific doubt remaining as to its absence. The judge concluded that the Board had not misinterpreted the legislation and declined to quash its decision. He considered but did not make a reference to the European Court of Justice.
The court also rejected the inadequate-reasons ground at the leave stage. It found the Board’s decision sufficiently addressed the central issue and noted that the decision expressly agreed with the inspector’s assessment of environmental impacts. The inspector’s report had been made available at the same time as the decision.
The judgment recorded that the proposed road was expected to remove about 1.5 hectares of the Lough Corrib candidate Special Area of Conservation after mitigation. It also noted that the extended site had not been adopted by the European Commission as a Site of Community Importance when the Board made its decision, but found that this did not remove the protection available under national law.