Supreme Court of Ireland Decisions

1. This is an appeal by the Plaintiff from the judgment and Order of the High Court of the 13th of December 1999 discharging an interim injunction and refusing his application for an interlocutory injunction restraining the first named Defendants from carrying out certain works, including the felling of trees, at the Glen of the Downs, County of Wicklow, for the purpose of widening the road which runs through the Glen of the Downs. The first named Defendant is the owner of the lands on which the proposed works are to be carried out. It is claimed that the first named Defendant and the second named Defendant failed to comply or give effect to the provisions of the European Communities (Natural Habitats) Regulations, 1997 (S.I. No. 94/1997) as amended by the European Communities (Natural Habitats) (Amendment) Regulations, 1998 (S.I. No. 233/1998) and/or Council Directive No. 92/43/EEC of 21st May 1992, as amended by Council Directive No. 97/62/EEC of 27th October 1997 ('the Habitats Directive'). Interlocutory relief was not sought against the second named Defendant. This is not the first time which the Plaintiff has brought proceedings seeking to restrain the first named Defendant from carrying out their road widening works at the Glen of the Downs. The first set of proceedings were dismissed on the merits by this Court on the 2nd of December 1999. Those proceedings concern different legal issues and different statutory measures than those which arise in this case. Subsequent to those proceedings the Plaintiff sought an injunction against the first named Defendant by way of judicial review on much the same grounds as the relief sought in these proceedings. That application was dismissed in an appeal to this Court on the grounds of delay having regard to the rules governing applications for judicial review. The present proceedings were commenced by plenary summons issued on the 13th December 1999, subsequent to which, they sought and were refused as aforesaid interlocutory relief by the High Court. Obviously these proceedings must be treated as distinct from the previous proceedings. There is a material difference, no doubt for good reason, between the Plaintiff s written submissions and those advanced at the hearing and clearly the Court is only concerned with the latter.

2. These proceedings have their origin in a decision by the second named Defendant on the 12th August 1999, pursuant to Chapter 1 of Part II of the European Communities (Natural Habitats) Regulations, 1997, as amended, hereafter the "Regulations", that the Glen of the Downs should be placed on a list of sites for designation as special areas of conservation. In general terms the Plaintiff claims that as a consequence of that decision certain obligations under those regulations, or alternatively pursuant to the Habitats Directive, fall on the Minister for the Arts, Heritage, Gaeltacht and the Islands and/or Wicklow County Council and until those obligations have been complied with the first named Defendants Wicklow County Council, should be restrained from proceeding with their road works project.

3. The Regulations in question were adopted with the express intention of implementing the Habitats Directive. The Habitats Directive has been subsequently amended and consequently so have the Regulations. These amendments are not relevant to the issues in this case. 1 will set out here the more pertinent provisions of the Habitats Directive and the Regulations

4. At this point I think it would be useful to refer in general terms to the scheme of the Habitats Directive and certain provisions of the Regulations.

5. One of the primary purposes of the Directive is to ensure the restoration or maintenance of natural habitats (and species) of Community interest at a favourable conservation status and for this purpose to designate special areas of conservation in order to create a coherent European Ecological Network. (See Recital 10 and Article 2 of the Directive). With this end in mind Article 4.1 expressly requires that each Member State "shall propose a list of sites" of particular natural habitat types on the basis of criteria set out in Annex III. Article 4.1. then requires that this list be transmitted to the Commission, within three years of the notification of the Directive, together with certain information on each site.

6. It is worth noting that the Directive does not seek to impose on the Member States any duties or obligations in respect of any site which it has placed on such a list other than the transmission of the list to the Commission within a certain time and with the appropriate information.

7. At this point the initiative is given to the Commission which is required to establish, pursuant to Article 4.2, in agreement with each Member State, "a draft list of sites of Community importance drawn from the Member States lists identifying those which lost one or more priority natural habitat types..." Again this draft list is to be established on the basis of certain criteria specified in the Directive with provision for flexible selection of sites in certain circumstances. The third sub-paragraph of Article 4.2 provides for the adoption by the Commission of a list of sites selected as sites of Community importance in accordance with procedures laid down in Article 21. In short this means that the Commission would submit the proposed list of selected sites for approval by a Committee consisting of representatives of the Member States and chaired by a representative of the Commission. If the Committee expresses an opinion in favour of the Commission's proposal the list of sites as proposed is adopted. If the Committee fails to express a favourable opinion the Commission's proposal is to be referred to the Council of Ministers who may take a decision by a qualified majority. In the event of the Council of Ministers failing to take a decision within three months the Commission is empowered to adopt its own proposal. As Article 4.4. of the Directive makes clear, it is only once a site of Community importance has been adopted in accordance with the foregoing procedure that the Member State is placed under an obligation to act in a certain manner concerning such a site. It must designate that site as "a special area of conservation" as soon as possible and within six years at most, establishing priorities for its maintenance or restoration. Article 5 expressly provides for the application of Article 6(2), (3) and (4) to a site as soon as it has been placed on a list adopted by the Commission in accordance with the procedure laid down in Article 21.

8. Article 6 provides for what might be called some of the more substantive provisions of the Directive, in imposing on Member States, in respect of sites adopted by the Commission in accordance with Article 21, inter alia an obligation to take conservation and preservation measures, to assess the implications of certain plans or projects likely to affect them with a view to approving or disapproving of such plans or projects.

9. Part II Chapter 1 contains the implementing measures for the drawing up of a proposed list of sites for transmission to the Commission in accordance with Article 4(1) of the Habitats Directive. This is referred to in section 3(1) as the "candidate list of European sites". Chapter II of Part II provides for certain consequential steps to be taken by the Minister as soon as practicable after she has been notified by the Commission that a site has been adopted as a site of Community importance in accordance with the provisions of the Directive. Such steps include the designation of such sites as special areas of conservation within a period of six years from their adoption by the Commission.

10. Chapter III contains provisions for the conservation and preservation of designated special areas of conservation. In particular Regulation 14 imposes restrictions on the carrying out by any person of certain operations and activities on any land included in a special area of conservation subject to certain conditions which include the giving of notice of the proposed operation or activity to the Minister and in certain circumstances the written consent of the Minister.

11. Regulation 15(1) of that chapter provides that where a consent of the Minister is sought pursuant to Regulation 14, the Minister, in certain circumstances, is required to cause an assessment to be made of the implications for the site in view of that site's conservation objectives.

12. Significantly, Regulation 14 and Regulation 15(1) also apply to a site placed on a list in accordance with Chapter 1 of Part II of the Regulations, that is to say. a site placed by the Minister on the candidate list of European sites. Regulation 16 gives power to the Minister to decide to give consent for an operation or activity which has been the subject of an assessment pursuant to Regulation 15(1). The discretion of the Minister to give her consent is heavily circumscribed where there is a negative assessment of the implications for the site of the proposed operation or activity.

13. The overall effect of Regulations 14 and 15(1) is that no person may proceed with the proposed operation or activity on a designated site or a candidate list site unless either the conditions laid down in Article 14 have been met or, if section 15 applies, the consent of the Minister has been given in accordance with the provisions of that section and section 16.

14. It is important to note here that "operation or activity" for the purposes of this Regulation, is given a special meaning in the interpretation section set out in Part I, Section 2 of the Regulations. This section expressly excludes development by a Local Authority from the meaning of "operation or activity".

15. Part IV of the Regulations concerns planning and development matters and, in particular, at sections 27, 28 and 29, the obligations of Local Authorities and An Bord Pleanala in granting planning permission and the obligations of Local Authorities in carrying out certain developments. Section 30 specifically concerns proposals for road development and in particular requires the Minister for the Environment to ensure that there is an appropriate assessment of the implications for a European site of such development, where an application for the approval of the Minister has been made in accordance with section 51 of the Road Acts 1993. The Minister's discretion to grant a consent is a limited one where there is a negative assessment of those implications.

16. It was submitted on behalf of the Plaintiff, that following the decision of the second named Defendant that the Glen of the Downs should be included in the candidate list of European sites, certain obligations arose under sections 14 and/or 15 of the Regulations. In particular the consent of the Minister pursuant to section 14 is necessary before the development proposed by the first named Defendant could take place. Alternatively, there must be an assessment pursuant to section 15(1) of the Regulations before the Minister can consider giving her consent. In the course of the hearing Counsel for the Plaintiff rightly acknowledged that section 14 and section 15(1) only applied to operations and activities as defined by the Regulations and that that definition excluded from its scope development by a Local Authority, such as Wicklow County Council were proposing to carry out at the Glen of the Downs. However, Counsel contended that these provisions, and in particular Section 14 were intended to implement the substantive provisions of Article 6 of the Directive and the Minister, in making the Regulations, clearly intended that the obligations imposed by Article 6 as implemented by section 14 should apply to both land included in a special area of conservation and a site placed on the candidate list of European sites. It was submitted that although Article 6 of the Directive only applied to sites of Community importance, that is sites adopted by the Commission pursuant to the procedures laid down in Article 21 of the Directive, the Minister, by including sites on the candidate list of European sites in section 14 of the Regulation, intended that the obligations created by Article 6 of the Directive would apply even to those sites. The application of Article 6 of the Directive is not limited in its scope by the exclusion of developments by bodies such as Local Authorities. It was submitted that Article 6 applies to "any plan or project" (not directly connected with or necessary to the management of the site but likely to have a significant effect thereon) which is quite different from the terms, "operation or activity", as used in section 14 of the Regulations and in any case does not contemplate an exception for developments by Local Authorities. In substance, Counsel argued that Section 14 of the Regulations was in this respect incompatible with the Directive. The Local Authority were therefore bound to observe the obligations imposed by the Directive and disregard the exemption which the Regulations purported to give to developments by Local Authorities from the application of that section.

17. Counsel also submitted that if the Court did not accept the foregoing submissions that a question be referred to the Court of Justice of the European Communities pursuant to Article 234 (formerly Article 177) of the EC Treaty as to whether the obligations created by Article 6, and in particular sub-articles (2), (3) and (4) thereof, apply to a site on the candidate list of sites.

18. In my view the argument made on behalf of the Plaintiff is not well founded. It is not contested in this context that Article 6 of the Directive, and in particular sub-articles (2), (3) and (4), which are the ones in issue in these proceedings, do not apply until a site has been placed on the list of sites as selected as sites of community importance and so adopted by the Commission in accordance with the procedures laid down in Article 21. This is expressly stated in Article 4(5) of the Directive.

19. Counsel for the Plaintiff is correct in submitting that in implementing provisions of Article 6 of the Directive by means of section 14 of the Regulations, the Minister also applied those provisions to certain operations or activities affecting sites placed on the candidate list of European sites. However, in so doing the Minister gave a higher level of protection to those sites than the Directive required. Since the Directive did not require a State to do so the decision of the Minister to give this added protection to such candidate list sites was discretionary and a matter of national policy. The Minister could have left out reference to such sites in section 14 of the Regulation without in any way being in breach of the duty and the obligations imposed on the State by the Directive. Since the application of the provisions of section 14 of the Regulation was a matter of policy for the Minister and not an obligation flowing from the Community Directive the Minister was entitled to limit the extent of the application of section 14 to sites on the candidate list of European sites as she thought appropriate. In short, to the extent that section 14 was applied to such a site it is purely a national measure and not a measure implementing the Directive.

20. While the Minister, in adopting the Regulations, applied section 14 to sites placed on the candidate list of European sites she clearly did it in a limited way by confining its application to operations or activity as defined in section 2 of the Regulations.

21. In my view it is the clear intention of section 14 of the Regulations read in conjunction with the interpretation provisions of section 2 that an operation or activity such as the proposed road widening of the Glen of the Downs by the Local Authority be excluded from its application. This limitation on the application of Article 14 is true both for land included in a special area of conservation as well as a site, such as Glen of the Downs, which falls into the category of those placed on the candidate list of European sites. Section 14 of the Regulations is therefore not intended to be a full implementation of Article 6 of the Directive since development by a Local Authority is excluded from the section whether it has implications for either category of land or sites. It would appear that Part IV of the Regulations and in particular section 29 is intended to be the implementing provision of Article 6 concerning development by a Local Authority which may affect sites of community importance. However we are not concerned here with such a category of site or the implementation of the Directive concerning that category.

22. Having expressly confined the application of section 14 of the Regulations to operations and activities as defined in section 2, which does not include development by a Local Authority, the Minister cannot be said to have intended to apply the provisions of Article 6 of the Directive to all kinds of works affecting a candidate list site. The submission of the Plaintiff was premised on the Minister's intention to apply Article 6 in its entirety to all plans or projects affecting such sites and not on an obligation to do so under the Directive. The Minister having clearly intended and expressly done otherwise the Plaintiff is not entitled to the relief sought on this ground.

23. As regards the submission on behalf of the Plaintiff that Article 6 of the Directive does not envisage any exemption for developments by a Local Authority, the first named Defendants contend that Article 6 is given effect, as concerns Local Authorities, by the provisions of Part IV of the Regulations in particular section 29. However, Article 6 and this issue only concern sites selected as sites of Community importance and so adopted by the Commission in accordance with the procedure laid down in Article 21. It is common case that the Glen of the Downs is not one of those sites and therefore it is not necessary to address this issue.

24. As regards a reference to the Court of Justice of European Communities, pursuant to Article 234 of the Treaty, this obligation only concerns questions on the interpretation of Community law. The issue here is the extent to which the Minister intended to apply section 14 of the Regulations to the site in question. This is purely a question for the interpretation of national law in respect of which the Court of Justice has no jurisdiction in such a reference and Article 234 has no applicability. To the extent that Counsel for the Plaintiff relied on sections 15 and 16 of the Regulations the submissions in that regard ran in parallel to and were the same as those advanced with regard to Section 14 and for the same reasons I am of the view that they are not well founded.

25. Counsel for the Plaintiff also relied on section 30 of the Regulation as imposing on the relevant Minister a duty to ensure an appropriate assessment of the implications for the site in question of the proposed road development. In the course of her submissions Counsel properly acknowledged that section 30 only applies to European sites, which the site at the Glen of the Downs clearly is not. However, it was submitted first of all that the State was under an express obligation to have drawn up its list for transmission to the Commission within three years of the notification of the Directive to the Member States. Accordingly, it was submitted the State should have established and transmitted such a list by May 1995. It was further submitted that the clear intention of the Habitat Directive, and its overall purpose, is to protect sites which are designated sites or which are to be designated sites in the future. This is of particular relevance to this case where, had the State fulfilled its obligations and transmitted a list of sites to the Commission within the period of three years provided for, the Glen of the Downs site would or could by now have been a designated site and subject to the provisions of the Regulations as such, and in particular section 30 thereof. The first named Defendant should not be allowed to profit from the State's delay in this regard and avoid the obligations created by the Directive. The site in question should therefore be treated as being subject to the protections and obligations afforded and created by the Directive. Accordingly, it was submitted, that even if the first named Defendant is acting in conformity with the Regulations it is not acting in conformity with the Directive.

26. With regard to this argument I would first of all observe that there is no material before the Court upon which it could conclude that the Glen of the Downs site will or would have been included in the list of proposed draft list of sites of Community importance to be proposed by the Commission and drawn from the lists of Member State sites. The same applies concerning the possible inclusion of that site in the sites adopted pursuant to Article 21 of the Directive as being sites of Community importance since this would depend on the opinion of the Committee and/or the Council of Ministers. Moreover it seems to me that it would be similarly difficult to hold that had the Minister drawn up a list of sites within the three years envisaged in the Directive, that the Glen of the Downs would necessarily have been included in such a list. For this reason alone it seems to me that the Plaintiff cannot succeed on this point. To hold otherwise one would have to suppose that a Minister, within three years of notification of the Directive would have concluded on the basis of the relevant criteria that the land at Glen of the Downs should be placed on the candidate list of sites. One would then have to suppose that that site would have been chosen by the Commission for incorporation in its proposals submitted to the Committee and then that the Committee would actually approve the Commission's proposals or if they failed to do so that the Council of Ministers would have decided (or taken no decision) to include it in the appropriate list.

27. Moreover, for the procedures envisaged by the Directive to culminate in the adoption of a site as a site of Community importance certain facts concerning the nature of the Habitat would have to be ascertained, the appropriate criteria applied to them, perhaps in a flexible manner as envisaged in Article 4.2. Accordingly, in my view there is no factual or material basis on which it can be determined at this stage that the site in question would have been or will be in the future adopted as a site of Community importance and become a designated site.

28. In any case, it is quite clear from the scheme, object, structure and express wording of the Directive that the provisions of Article 6 are only to take effect, as regards any particular site, when that site has actually been placed on the list referred to in the third sub-paragraph of Article 4.2 of the Directive, that is, the list adopted in accordance with the procedures laid down in Article 21. (see Article 4.5.) Certainly Article 6 will apply to any sites so adopted in the future. It would also be a pre-emption by this Court of the functions of the Commission, the Committee and perhaps the Council of Ministers if it were to treat the Glen of the Downs site now as being one to which Article 6 applies.

29. Counsel has also submitted that if the foregoing submission is not accepted that a reference be made to the Court of Justice of the European Communities pursuant to Article 234. In my view the question of a reference does not arise. Since there is no factual or material basis on which the Court could conclude or assume that the site in question would have been or will be in fact adopted as a site of Community importance the question of applying or interpreting the Directive, on the basis of Counsel's submission, does not arise.

30. Issues were also raised concerning delay on the part of the Plaintiff in initiating the proceedings and whether such delay disentitled him to the interlocutory relief sought. Arguments were also addressed to the question of the balance of convenience. In the circumstances I don't think it is necessary to deal with these issues.

31. For all the reasons set out above I am of the view that the Plaintiff's application should be refused.