The High Court has referred five questions to the Court of Justice of the European Union (CJEU) about environmental assessment screening in a challenge to permission for 123 apartments and associated works in Ballincollig, Co Cork. The substantive judicial review has been adjourned pending the CJEU’s ruling; the High Court has not yet decided whether to quash the permission.
The case was brought by Waltham Abbey Residents Association against An Bord Pleanála, Ireland and the Attorney General. O’Flynn Construction Co. Unlimited Company is the notice party. The board granted permission on 16 September 2020.
The dispute concerns whether the board could conclude that an environmental impact assessment (EIA) was unnecessary when the information before it did not include a bat survey. The judgment records that the developer’s EIA screening report did not analyse effects on bats, and that a tree assessment identified trees for removal without assessing their use by bats. The association told the board that bats had been seen flying over the site and raised concerns about possible effects on bat habitat and routes.
An inspector recommended permission, with tree-felling to follow the advice of a suitably qualified ecologist to address potential effects on bats. That was reflected in condition 21. The board carried out its own EIA screening and concluded that an EIA report was not necessary. The High Court’s judgment says the board’s screening decision did not refer to the relevant EU directive provisions. It also finds that the information available did not definitively exclude a possible risk of significant effects on bats.
The judgment sets out competing proposed answers from the residents’ association and the board. The association argued that inadequate information should prevent screening out an EIA where significant effects could not be excluded. The board argued that the competent authority must assess whether it has enough information and may seek more where needed. These are submissions to the referring court, not findings by the CJEU.
The High Court’s five questions ask whether EU law requires adequate scientific surveys or, where information is insufficient, requires a project to proceed to full assessment; whether the approach changes for strictly protected species; and what must happen when another party supplies information capable of raising doubt. The court’s own proposed answers generally favour requiring adequate information or treating potential effects as not excluded, but those answers are not a final ruling on the EU-law questions.
The court ordered the questions referred under Article 267 of the Treaty on the Functioning of the European Union. It adjourned the substantive determination pending the CJEU judgment, directed the parties to prepare papers for transmission within 28 days, and reserved unresolved costs until further order. The reference does not itself decide the ultimate validity of the planning permission.