The Supreme Court has dismissed an appeal by Save Cork City Community Association CLG, holding that An Bord Pleanála had jurisdiction to screen for an environmental impact assessment (EIA) when considering approval for flood-defence works at Morrison’s Island in Cork.
The appeal concerned the Board’s 2020 approval of works proposed by Cork City Council. The council applied under section 177AE of the Planning and Development Act 2000, which applies to local-authority development requiring appropriate assessment. The association argued that the Board had no power under that section to conduct EIA screening and that its decision was therefore unlawful.
The works had earlier been pursued through the council’s Part 8 planning procedure. In January 2019, the High Court quashed the council’s decision to use that route, finding that the development required appropriate assessment and therefore fell outside the procedure. The council then applied to the Board under section 177AE.
The Board’s inspector screened the project for EIA and concluded that an EIA was not required. The Board approved the development, generally in accordance with the inspector’s recommendation. The association challenged that approval in the High Court, which dismissed the relevant ground of challenge. The Supreme Court granted leave to appeal on the jurisdiction question.
In a judgment delivered by Mr Justice Woulfe on 21 December 2022, the Supreme Court agreed with the High Court. It said section 177AE was unclear about who should determine whether a project also required an application under section 175, the provision associated with EIA. Reading the legislation as a whole, the Court concluded that the Board had the implied power to make that determination, which was equivalent in substance to EIA screening.
The Court also reasoned that the usual Part 8 screening route could not apply once the development required appropriate assessment. It said that left the Board, as the competent authority considering the section 177AE application, with the screening role. The Court noted that the parties accepted an EIA screening determination was required by EU law.
The association’s appeal was dismissed. The Court did not make a definitive ruling on whether the approval should be quashed if the Board had lacked screening jurisdiction: it said that question did not need to be decided after finding that the Board had jurisdiction. The judgment addresses the Board’s power to screen; it does not state that an EIA was required or order a fresh assessment.