Key Contacts: Leonora Mullett – Partner | David Wacks – Associate |
Public bodies need to be cautious when acting as both a Project Developer and as a Competent Authority for EIA purposes on a project . Such authorities can be guided by a recent decision of the CJEU which is of great relevance to competent authorities which carry out EIA screening functions under the EIA Directive, as amended, in relation to projects they are developing.
The case concerns Article 9a of the EIA Directive inserted by the amending 2014 Directive which provides:
“Member States shall ensure that the competent authority or authorities perform the duties arising from this Directive in an objective manner and do not find themselves in a situation giving rise to a conflict of interest.
Where the competent authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from this Directive.” (emphasis added).
How might this issue typically arise for a Competent Authority?
This is the type of situation which would arise where, for example, a local authority is carrying out what is often referred to as “own” or “Part 8 development” pursuant to Section 179 of the Planning and Development Act 2000, as amended and Part 8 of the Planning and Development Regulations 2001. In order for a local authority to proceed with such development, it is necessary to screen same to ensure that neither an EIA nor Appropriate Assessment is required .If either are required, an application for consent must be made to An Bord Pleanála.
Recent decision from the CJEU and its core findings
The matter of Provincie Oost-Vlaanderen and Sogent Case C-236/24, involved a request by a Belgian Court for a preliminary ruling by the CJEU concerning a development consent which allowed for the reconversion of a laundry site.
‘Sogent’, a Belgian public body established by the City of Ghent, applied to the municipal council of Ghent for development consent for the project which was accompanied by a screening note on the expected effects of that project on the environment.
An environmental officer for the City of Ghent decided that that the project “did not have an expected significant effect on the environment” and, as such, an EIA was not required. Development consent was granted to Sogent by the municipal council of the City of Ghent.
Owners of an adjacent building brought an administrative appeal of the environmental officer’s decision and this was dismissed. The decision was further appealed by the building owners to the Belgian Council for consent disputes, which held in their favour and annulled the decision to grant development consent. It considered that the decision was contrary to Article 9a of the EIA Directive on the basis that the municipal council of the City of Ghent was the ‘de facto’ developer of the project and that it had erred in finding that it was competent to decide on the application for development consent at issue.
This decision was then in turn appealed by the Province of East Flanders and Sogent to the Belgian Council of State, who stayed proceedings and referred the following question to the CJEU:
“Is Article 9a of [Directive 2011/92] to be interpreted as meaning that, in cases where the competent authority is also the developer, the appropriate separation between conflicting functions when performing the duties arising from that directive must also be applied to the assessment of whether the projects referred to in Article 4(2) of [that] directive are subject to assessment in accordance with Articles 5 to 10 of [that] directive?”
Having considered the facts and the law, the CJEU held that where the Competent Authority is also the developer, Member States shall at least implement, within their organisation of administrative competences, an appropriate separation between conflicting functions when performing the duties arising from the EIA Directive. It held:
“That appropriate separation must be organised in such a way that an administrative body internal to the authority competent to make that determination has real autonomy, meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to perform its duty objectively”.
The CJEU reiterated the position that the interpretation of a provision of EU law requires account to be taken not only of its wording, but also of its context, and the objectives and purpose pursued by the act of which it forms part. The legislative history of a provision of EU law may also reveal elements that are relevant to its interpretation.
It held that the references to “performing duties arising from the Directive” used in both paragraphs of Article 9a, includes the duty of performing EIA screening. The Court held that “the need to ensure consistency in the application of the safeguards laid down in Article 9a of Directive 2011/92 presupposes that the competent authority can take a decision in an objective manner and does not find itself in a situation giving rise to a conflict of interest, in particular with regard to the developer who provides that authority with the information on the basis of which it must take a decision, both during the screening procedure and during the environmental impact assessment procedure”.
The Court found that the effectiveness of Article 9a would be undermined if the objectivity of the competent authorities and the absence of conflicts of interest were not guaranteed at all stages of the performance of the duties entrusted to those authorities by the EIA directive as regards both the screening and the subsequent assessment of the effects of a project on the environment.
So what does this mean in practice for Competent Authorities?
Personnel of Competent Authorities must not find themselves in a position which gives rise to a conflict of interest or lack of objectivity by them in carrying out their obligations under the EIA Directive.
The CJEU made specific reference to the competent authority being provided with such administrative and human resources to ensure the requisite objectivity by those making EIA decisions.
We consider a practical way of mitigating any future Article 9a claims on a project level would be, for a public body -which is a competent authority and developer -at the outset of a project it is developing, to consider the need for an EIA screening, identify who will carry out the Screening exercise and who will make the Screening Determinations. At this stage the public body should also identify which department or officials are sponsoring the project and retain a record of this to demonstrate that no conflicts arose. On a programme basis however competent authorities must ensure they have adequate administration and decision-making resources to allow them fulfil their screening and EIA obligations objectively and independently of those who are developing the project.
Whilst an analogy can be drawn to a competent body exercising functions under the Habitats Directive, that Directive does not contain a provision similar to Article 9 a EIA however it would appear reasonable that in exercising functions under the Habitats Directive for a project it is developing , a public body would ensure no conflict of interest arises.
A failure to take heed of this CJEU judgment could give rise, for example, to an appeal of a decision or judicial review proceedings, which will cause delays to projects and potentially annulment of decisions with financial and resource implications also.
This article was prepared by partner, Leonora Mullett and associate, David Wacks. Please get in touch if you would like to hear more or have any queries.
