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Elaine Kelly Dunne & Or. -v- Offaly County Council and Guessford Limited Trading as Oxigen (May 2019)


Monday, August 12, 2019

The High Court recently quashed a decision of Offaly County Council to renew a waste facility permit for a recycling and transfer facility operated by Oxigen. This was following Judicial Review proceedings which challenged the Appropriate Assessment (“AA”) screening carried out by the Council in the course of a statutory review of the permit under the Waste Management (Facility Permit and Registration) (Amendment) Regulations 2008 as amended.

This decision is of relevance to all public authorities responsible for licensing and permitting which come within the scope of the European Communities (Birds and Natural Habitats) Regulations 2011. The Regulations give effect to the Habitats Directive 92/42/EEC and at Section 42 oblige a public authority to screen for AA any plan or project for which an application for consent is received by it and to which the Regulations apply. The definition in the Regulations of the terms “plan” and “project” are broad with far reaching implications for local authorities.

In this case, at Section G of the AA screening report in response to the query ‘explain why these effects are not considered significant’ and under the heading “Finding of No Significant Impacts” the report stated:

Due to current and proposed activities at the facility and the proximity to the designated areas the impacts are limited and all can be controlled through the implementation of appropriate mitigation measures/ permit conditions.

Ms. Justice O’ Regan, found:

… it cannot be said that the screening report confirms that there are no doubts as to the absence of significant effects (see Waddenzee at para. 44). Nor can it be said that the substance of the Report is such that significant effect has been excluded (para. 99 of Kelly, 2019.)

The Court stated that section G of the AA screening report was ambiguous as to significant effect and suggested that there are limited impacts on designated areas which can be contained through the implementation of mitigation measures or permit conditions. The screening report did not clearly confirm that there were no doubts as to the absence of significant effects.  In coming to its decision to quash the permit, the Court held:

I am satisfied that the screening assessment undertaken which appears to comprise the site inspection and the report of the 8th of December, 2016 involved mitigation measures which possibly effect reducing the impact on a European site and therefore a full A.A. assessment (stage two phase) was required to be undertaken prior to any decision being made. Further, in the circumstances, such screening did not in my view confirm that there are no doubts as to the absence of significant effects on the Raheenmore Bog SAC. ….”

The issue of Appropriate Assessment has been the subject of a number of recent court decisions in the context of planning legislation and consents. Authorities should also be mindful of the requirements of the 2011 Regulations including  Section 27 which obliges public authorities in the exercise of their functions including consent functions to take steps to avoid in European Sites the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated in so far as such disturbance could be significant in relation to the objectives of the Habitats Directive.

 

Should you require further information or advice in relation to the above article please contact the Environment and Climate team at Philip Lee.


Author

Rachel Minch

PARTNER


Leonora Mullett

SENIOR ASSOCIATE

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