The High Court has refused Peter Sweetman leave to seek judicial review of An Bord Pleanála’s approval for the New Ross Bypass, finding his grounds insubstantial after hearing the leave application and the substantive case together.
Mr Justice Hedigan delivered the judgment on 2 March 2010. The challenge concerned the Board’s decision of 22 December 2008 to approve the road, which crosses a site protected under the EU Habitats Directive. The applicant had narrowed his challenge to Article 6 of the Directive.
Sweetman argued that no conservation objectives had been set for the site, that evidence from ecologist Ms Dubsky raised reasonable scientific doubt about the project’s effects, and that the Board had failed to use a stepwise approach to decide whether such doubt remained. The respondents and notice parties disputed those claims. They said the site-specific conservation objectives were set out in the project’s Environmental Impact Statement, and that Ms Dubsky had not addressed the proposed mitigation measures.
The judge said approval under Article 6(3) required the competent authority to be sure the project would not adversely affect the site’s integrity, with no reasonable scientific doubt remaining. He stressed that judicial review examines whether a decision was lawful, not whether the court considers it correct.
The court found that the Environmental Impact Statement set out comprehensive, site-specific conservation objectives and that the inspector had assessed the project against them. The inspector’s report also considered Ms Dubsky’s evidence about potential impacts on fish, otters, bats, woodland and the pink lagoon. According to the judgment, her concerns about potential impacts did not address or criticise the proposed mitigation measures.
The inspector considered those measures detailed and onerous, and concluded that the road would not threaten habitats or species or affect the integrity of a European site. Justice Hedigan found that the inspector had dealt with the doubts raised and that the Board could conclude that no reasonable scientific doubt remained.
The decision was a refusal of leave to apply for judicial review following a “telescoped” hearing of leave and substance together. The court did not quash the Board’s approval; it concluded that the grounds for the challenge were insubstantial.