Key Contact: Alice Wittaker – Partner

In Case C‑41/24, Waltham Abbey Residents Association, (6 March 2025), the European Court of Justice (EU Court) has identified certain obligations of a competent authority when conducting Environmental Impact Assessment Screening under Directive 2011/92/EC, as revised by Directive 2014/52/EU.

In this article, I aim to highlight a lack of logic in the EU Court’s approach and the difficulty that this creates for decision-makers.

The EIA Directive applies only to project categories listed in Annex I or II of the EIA Directive, or Schedule 5 Part 1 or Part 2 of the Planning and Development Regulations 2001, as amended (PDR). Usually it is straightforward to determine whether a proposed development falls within one or more of the project types, but not always. Take #solar photovoltaic (PV) projects as an example.

In at least three cases in which Philip Lee LLP acted for An Bord Pleanála (ABP), the High Court and Supreme Court agreed with ABP that EIA Screening is not required for solar PV projects:

– Sweetman v ABP and IGP Solar [2020] IEHC 39;

– Kavanagh v ABP and Highfield Solar [2020] IEHC 259; and

– Concerned Residents of Treascon and Clondoolusk v ABP and Elgin Energy [2024] IESC 28.

In Kavanagh, the Court set out six detailed reasons as to why Annex II, category 3(a): Industrial installations for the production of electricity, steam and hot water (projects not included in Annex I) does not cover solar PV. It is perplexing, therefore, that the European Commission’s recently published “Interpretation of definitions of project categories of annex I and II of the EIA Directive” states, without citing any legal authority, that “while there is no express reference to solar installations, such installations should be considered as falling under” category 3(a) of Annex II.

There is no doubt, however, that a solar PV project may require EIA Screening by reason of some other aspect of the proposed project, for example where it would involve the restructuring of a rural landholding (see S.I. 383/2023). A project falling under that category, or any other category listed in Part 2 of Schedule 5 of the PDR, and that is below the prescribed threshold in those regulations, is subject to a requirement for EIA Screening.

Consultation is underway currently with Irish Government Departments and their agencies and other public bodies regarding the EIA Screening thresholds that should be prescribed by the new regulations to be made under the Planning and Development Act 2024. According to the recently published 2024 Act Implementation Plan, the intention is to prescribe both upper (inclusion) thresholds above which EIA is mandatory and lower (exclusion) thresholds for which EIA Screening is not required.

The Waltham Abbey case involved the exclusion of EIA Screening of the development of less than 200 apartment units.

EIA Screening Information

The information for EIA Screening is provided by the developer to the competent authority. The developer is required to provide the information listed in Schedule 7A of the PDR, so far as is relevant to the characteristics of the project concerned.

The competent authority makes the EIA Screening Determination based on this information taking account of the Screening criteria set out in Schedule 7 of the PDR.

According to the EU Court in Waltham Abbey, the competent authority cannot conclude that there is a risk of significant environmental effects on the ground that the information provided by the developer is incomplete, without having first asked the developer to provide the additional information to enable the EIA screening procedure to be completed.

The EIA Directive does not provide for further information requests for EIA Screening purposes.

The EIA Screening procedure does not require public consultation. The Screening Determination is made available to the public together with the main reasons for the Determination.

Unsolicited Third Party Information

When the revised Directive 2014/52 was being negotiated, one of the proposals was to make EIA Screening subject to public consultation but this was not adopted in the final legislation. Instead, Recital 29 of Directive 2014/52 states that, ‘taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities … constitutes good administrative practice’, while also stating that ‘no formal consultation is required at the screening stage’.

According to the EU Court in Waltham Abbey, the competent authority should take into account all relevant information available to it, including unsolicited third party information.

Where a third party has provided the competent authority with “objective evidence” as regards the potential significant effects on the environment “in particular on a species protected” under the Habitats Directive 1992/43/EC, the competent authority should ask the developer to provide additional information unless the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment. In such circumstances, the competent authority must be able to determine (to the requisite standard of proof), without such additional information, that significant environmental effects are not likely.

EIA Screening Standard of Proof

EIA is required for any Annex I or II project that is likely to have a significant effect on the environment, taking account of the assessment criteria in Annex III of the Directive (or Schedule 7 of the PDR).

Based on the precautionary principle EIA is required where there is  “a probability or a risk” of significant environmental effects. A risk of significant environmental effects exists “if it cannot be excluded on the basis of objective evidence that the project is likely to have significant effects on the environment” (C-526/16 Commission v Poland).

A proposed development is likely to have significant environmental effects where it poses a risk of substantial or irreversible change in environmental factors, including:

(a) population and human health;

(b) biodiversity, with particular attention to species and habitats protected under the Habitats and Birds Directives;

(c) land, soil, water, air and climate;

(d) material assets, cultural heritage and the landscape;

(e) the interaction between these factors; and

the effects which may derive from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the particular project.

As the EIA Screening wording is “in essence similar to that of Article 6(3)” of the Habitats Directive (see Case C-127/02 Waddenzee, paragraph 42), the EU Court considered it appropriate, in Waltham Abbey, to apply the standard of proof that is otherwise applicable when carrying out screening for significant effects on the Natura 2000 Network of European sites under the Appropriate Assessment (AA) procedure in Article 6(3) of the Habitats Directive.

In that context, the EU Court noted that

  • AA is required where there is doubt as to the absence of significant effects on a European site (see Case C‑538/09 Commission v Belgium, paragraph 41); and
  • Where a competent authority decides to permit a project without AA, it must give clear reasons as to why it was certain as to the absence of significant effects, notwithstanding any opinions to the contrary or any reasonable doubts expressed therein, and that there was no reasonable scientific doubt as to the possibility that the project would significantly affect a European site (see Case C-721/21 Eco Advocacy, paragraph 43).

Arising from this case law on the AA Screening obligations under Article 6(3) of the Habitats Directive, the EU Court in Waltham Abbey deduced that the same standard of proof should apply in the context of EIA Screening.

In that respect, the EU Court determined that two conditions must be satisfied before the competent authority is obliged to ask the developer for additional information:

  • First, the third party information must relate to the potential ‘significant’ effects of the project on the environment; and
  • Second, that information must be of such a nature as to preclude the conclusion that “there can be no reasonable scientific doubt as to the possibility of the project having significant effects on the environment.”

Response to the High Court questions

The High Court asked five questions that the EU Court distilled down and ultimately responded as follows:

“where, in the context of a [EIA] screening procedure … , a third party has provided the competent authority with objective evidence as regards the potential significant effects of that project on the environment, in particular on a species protected under [the Habitats Directive] … , that authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an EIA is necessary for that project. However, where, despite the observations submitted to that authority by a third party, the competent authority is able to rule out, on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, that authority may decide that an EIA is not necessary, without being required to ask the developer to provide it with additional information.”

The EU Court determined that, where in the context of an EIA Screening a third party provided objective evidence on potential significant effects of the project on the environment, in particular on a species protected under the Habitats Directive, the competent authority must ask the developer to provide it with additional information and take that information into account before deciding whether or not an EIA is necessary for that project.

However, where, despite the third party’s information, the competent authority is able to rule out on the basis of objective evidence, the possibility that the project in question is likely to have significant effects on the environment, the authority may decide that an EIA is not necessary, without being required to ask the developer to provide it with additional information.

Lack of Clarity in the EU Court’s Reasoning

There is a distinct lack of clarity in the EU Court’s reasoning in this case, which is not helped by the fact that the ruling was delivered without the benefit of a prior Opinion of an Advocate General.

Firstly, the EU Court does not explain why, when asked about the standard of proof for EIA Screening insofar as strictly protected species such as bats are concerned, the Court had regard to the standard of proof for AA Screening of the implications of a project on a European site under Article 6(3) of the Habitats Directive. Strictly protected species such as bats are listed in Annex IV of the Habitats Directive. As noted in a recent post such species are, by definition, rare or vulnerable and relatively uncommon.

The AA procedure under Article 6(3) is applicable to projects that are likely to have a significant effect on a European site that hosts habitats or species for which the site has been selected for designation. Relevant species are listed in Annex II of the Habitats Directive. There is some cross-over between Annex II and Annex IV, but it is clear that European sites are designated for a much broader range of species than those listed in Annex IV.

Secondly, the EU Court does not explain why it is appropriate to “deduce” from Article 6(3) case law that the standard of proof for the purposes of EIA Screening is that of “no reasonable scientific doubt” as to the absence of significant effects on the environment. The logic of the Court would have been clear had it confined its conclusion to the environmental factor “biodiversity”, on the basis that particular attention is to be given to the effects of the project on habitats and species protected under the Habitats and Birds Directive.

The EU Court used the term in particular in relation to effects on species, but did not expressly confine its legal analysis or conclusion as to the standard of proof for EIA to this individual environmental factor.

If the EU Court intended to apply the “no reasonable scientific doubt” to the EIA Screening procedure generally, it is frankly difficult to see how this would work in practice, where the EIA Screening assessment is required to consider a wide range of environmental factors, many of which are not scientific in nature, for example: material assets, cultural heritage and the landscape.

Passage of Time

The EU Court has put it back on the High Court to determine whether, in the light of the information available to An Bord Pleanála when it made its original planning decision on 16 September 2020, including third party information, the Board could “with certainty” rule out all reasonable scientific doubt as to the possibility that the project at issue would have significant effects on the environment, in particular on species protected under the Habitats Directive.

The underlying judicial review proceedings have travelled from the High Court to the Supreme Court, back to the High Court, to the EU Court and now back to the High Court. In the meantime, over four of the five year duration of the permission for just under 200 apartment units have elapsed. This is precisely the developer’s nightmare scenario that the new Planning and Development Act 2024 is aiming to prevent (see previous article on this – Stop the Clock!).

Key Contacts