The High Court dismissed An Taisce’s judicial review challenge to An Bord Pleanála’s 2014 approval of an N86 road improvement scheme, ruling that the case was a late collateral challenge to an earlier Board decision.
Mr Justice Haughton held that the relevant decision was the Board’s direction of 16 November 2011 requiring an environmental impact statement (EIS) for the 28km scheme. The court found that the direction set the initial parameters for the EIS and could only be challenged by judicial review within the statutory time limit. An Taisce did not challenge it within eight weeks, and did not apply to extend the time.
An Taisce argued that a 4.2km section already approved by Kerry County Council and the later 28km scheme formed one 32km project. It said the Board should have required an environmental assessment covering the whole route, and that dividing the works between separate consent processes amounted to unlawful “project splitting.” It also argued that the Board had a continuing duty to remedy deficiencies in the assessment.
The 4.2km section had been approved by the council in June 2011 under a separate planning process and was completed in mid-2013. Its approval was not directly challenged in these proceedings. The judge said that decision was “unimpeachable” and that An Taisce could not now argue that an EIS or environmental impact assessment should have been required for that section.
The Board had initially refused approval for the 28km scheme in 2013. After that decision was quashed in separate proceedings brought by Kerry County Council, the Board reconsidered the application and granted approval in November 2014. An Taisce sought to quash that approval.
Justice Haughton concluded that the challenge to the 2014 approval depended on showing that the EIS had been unlawfully limited to the 28km scheme. That, in turn, required challenging the 2011 direction. He therefore found that the proceedings amounted to a collateral attack on that out-of-time decision and dismissed the case.
The court did not decide whether the works amounted to project splitting under EU or domestic law. It also noted that environmental screening, an appropriate assessment, a nature impact statement and an environmental report had been prepared for the 4.2km section, and that the EIS for the 28km scheme considered cumulative effects, including those of the shorter section.