Disagreeing with an EIAR
Discharging the Evidential Burden
In considering an Environmental Impact Assessment Report (“EIAR”), An Bord Pleanála ("ABP") or a Planning Authority must give equal consideration to the views of those who may disagree with its analysis and conclusions. In addition, planning decision-makers in Environmental Impact Assessment (“EIA”) have an 'autonomous obligation' to satisfy themselves as to the effects that a Proposed Development may have on the environment.
Two recent judgments in the High Court highlight how much more difficult it is to challenge the evidence of an EIAR as part of an application for Judicial Review
The General Legal Position
A Planning Application subject to EIA may still be granted even where the decision-maker finds that the Proposed Development will cause significant adverse environmental effects. This position is very different from that under the Habitats Directive which denies jurisdiction to permit development that will adversely affect the integrity of a European Site. Notwithstanding this significant difference in the effect of findings in EIA versus Appropriate Assessment, those opposed to Proposed Development will often seek to challenge the findings of an EIAR and assert that the environmental consequences of a Proposed Development will be more serious than any portrayed in the EIAR.
The content of an EIAR must comply with the content requirements of the Planning and Development Regulations 2001 (“PDR 2001”). It would be highly unusual for an EIAR not to satisfy these basic standards. Criticism of an EIAR is usually more specific, perhaps pointing to inadequate detail, matters which have not been considered and should have been, differences of emphasis given to certain factors, questioning of the scientific approach employed etc. Such issues will often be raised by experts in the critics' belief (perhaps justified) that such expressions of opinion will carry more weight.
In considering an EIAR and any criticism thereof, it has long been clear that as long as a developer has satisfied the basic requirements as to content (see Arts 108 and 111 PDR 2001 and, for SID, s37(E)(2) Planning and Development Act 2000, “PDA 2000”), the adequacy of that content is a matter for the planning decision-maker (Klohn v ABP [2009] 1 IR 59, 64, McCallig v ABP [2013] IEHC 60, Dunnes Stores v ABP (No 1) [2016] IEHC 226).
“Once the statutory requirements have been satisfied, I should not concern myself with the qualitative nature of the environmental impact study or the debate on it had before the inspector. These are not matters of concern to this court.” (McKechnie J, Kenny v ABP (No 1) [2001] 1 IR 565, 578)
The adequacy of an EIAR can only be challenged on the basis that no reasonable planning decision-maker would have made such a determination. This is a very high standard and rarely satisfied in practice.
The two recent High Court decisions are as follows.
