The CJEU has this week delivered judgment in Case C-461/17 Holohan v. An Bord Pleanála ECLI:EU:C:2018:649 , the third CJEU judgment this year concerning the Habitats Directive (as well as, this time, the 2011 EIA Directive).  Once again the case involved reference from the Irish High Court. The applicants challenged a decision of the An Bord Pleanála in July 2014 to grant consent for the proposed Kilkenny Northern Ring Road Extension which would, if constructed, cross the River Nore Special Protection Area and River Barrow and River Nore Site of Community Importance.

Amongst other things, the CJEU held:

  1. An appropriate assessment (AA) must catalogue the entirety of habitat types and species for which a site is protected.
  1. The AA must also identify and examine the implications of the proposed project for the species present on that site and for which that site has not been listed – as well as the implications for habitat types and species outside the boundaries of that site, insofar as those implications are liable to affect the conservation objectives of the site.
  1. Where the competent authority rejects the findings in a scientific expert opinion recommending that additional information be obtained, the ‘appropriate assessment’ must include an explicit and detailed statement of reasons capable of dispelling all reasonable scientific doubt concerning the effects of the work envisaged on the site concerned.
  1. Under Article 5(1)&(3) of the 2011 EIA Directive, the developer was obliged to supply information that expressly addressed the significant effects of the proposed project on all species identified in the environmental statement.
  1. Under Article 5 of the 2011 EIA Directive, the developer was required to supply information in relation to the environmental impact both of the proposed project and of all the main alternatives studied by the developer (including any such alternative that had been rejected at an early stage), together with the reasons for his choice taking into account of the environmental effects.

In relation to future projects, the final of these findings must be considered in the context of the new wording introduced by the 2014 EIA Directive relating to alternatives, which now requires developers to include a “description of the reasonable alternatives studied by the developer”.

Tim Buley and Charles Banner acted for the United Kingdom, instructed by the Government Legal Department (Charles drafted the UK’s written observations and Tim appeared at the hearing).

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