The High Court has reopened Peter Sweetman’s challenge to permission for freshwater abstraction from Loch an Mhuilinn in Co Galway and referred questions about the Water Framework Directive to the Court of Justice of the European Union (CJEU). The court did not decide those questions or determine the challenge again in this judgment.
In January 2021, Ms Justice Niamh Hyland quashed An Bord Pleanála’s permission for the project solely because the Board had not complied with the Directive. She found that the lake was a surface water body but had no status assigned by the Environmental Protection Agency (EPA). In her view, without that status it was not possible to assess whether the project would cause deterioration or comply with the Directive’s requirement to achieve good surface water status. She rejected three other grounds advanced by Sweetman.
The proposed project would abstract up to 4,680 cubic metres of freshwater a week, for up to 22 weeks a year, from May to September. The water was intended to treat salmon at four licensed sites operated by Bradán Beo Teoranta in Kilkieran Bay, to address Amoebic Gill Disease and sea lice.
After that judgment, Bradán Beo sought the EPA’s views. In a letter dated 28 January 2021, the EPA said Loch an Mhuilinn was not a designated Water Framework Directive water body because it did not meet the relevant size or protected-area criteria. The EPA’s position was that it was not required to determine the lake’s status. The letter was circulated to the parties.
The judge said the EPA’s position raised a fundamental issue that could affect the outcome: whether the Directive requires every water body to be designated, regardless of size. Although the information could, with reasonable diligence, have been brought forward at the original hearing, she concluded that the issue’s importance justified reopening the case. She said the threshold was met whether framed as “strong reasons” or “exceptional circumstances.”
The court has asked the CJEU whether member states must characterise and classify all water bodies, including lakes smaller than 0.5 square kilometres, and whether the position differs for water bodies in protected areas. If classification is required, it asks whether development consent can be granted before classification. If it is not, it asks what obligations apply to an authority considering consent for a project that may affect an unclassified water body.
The referral leaves those EU-law questions for the CJEU. The High Court’s earlier judgment has been reopened; this judgment makes no final determination of the underlying compliance issue.