An Bord Pleanala approved the €317 million Galway city bypass after finding the impact of the road project on the Lough Corrib candidate Special Area of Conservation site, while "locally severe"", would not adversely affect the "integrity" of the site, it has been claimed before the Commercial Court.
The Board's decision was akin to saying, if we have a lot of early Church stained glass in Ireland, it does not matter if you allow 10 per cent of it to be destroyed, Paul O'Higgins SC, for environmental campaigner Peter Sweetman, said. That was "entitrely contrary" to the purpose of European law on conservation of habitats.
In proceedings by Mr Sweetman which opened this week and are expected to last six days, the State has agreed with his claim that the Board's approval of November 2008 is invalid because it breaches provisions of the EU Habitats Directive requiring such projects must not adversely affect the integrity of a conservation site, in this case the Lough Corrib candidate Special Area of Conservation (cSAC ) site.
The State has also claimed the approval exposes it to potential legal action and fines by the European Commission.
Under the Habitats Directive, Mr Sweetman claims EU member states cannot approve projects which will have a signifciant impact on a cSAC and/or priority ntaural habitat when there has been no assessment of solutions which do not impact.
The Board's own inspector had recommended approval should be refused after an oral hearing in which the inspector accepted the alternatives to the proposed road project had not been subject to an appropriate assessment, Mr Sweetman said. The National Parks and Wildlife Service of the Department of the Environment also expressed opposition to the project during the oral hearing.
In opposing Mr Sweetman's challenge, the Board denies any breach of the Habitats Directive or the EC (Natural Habitats ) Regulations and claims it took account of all the evidence before it before granting approval.
The Board said it considered the approved road development would be an appropriate solution to the identified traffic needs of Galway city and surrounding area and, while having a "localised severe impact" on the Lough Corrib cSAC, would not adversely affect the integrity of the cSAC.
The challenge to the approval for the N6 Galway City Outer Bypass scheme is one of two being heard in tandem by Mr Justice George Birmingham. The Board granted approval for the road scheme with the exception of a connection between Gortatlev and An Baile Nua.
The case by Mr Sweetman, Lower Rathmines Road, Dublin, is against the Board and the State, with Galway city council and Galway county council as notice parties, and essentially centres on the arguments the road approval breaches the Habitats Directive and Article 30 of the EC (Natural Habitats ) Regulations.
Other issues relate to whether the "substantial grounds" standard of review applied by the Irish High Court to environmental cases, and the alleged "prohibitive" cost of such challenges, breaches Irish and European law provisions relating to rights of access to the courts and other right.
The second action is by Hands Across the Corrib Ltd, "Carraig Ban", Ballinfoyle, Co Galway, an environmental non-government organisation. It claims the Board's approval for the road project was based on a flawed Environmental Impact Assessment and argues an "efficient, intelligent, public transport system" is a "very real alternative" to the proposed by-pass.
Galway City and County Councils want the project to go ahead and are supporting the Board in its arguments.
Mr O'Higgins told the court the Board acted irrationally, erred in law and failed to give any adequate reasons for its conclusion that approval for the project would not adversely affect the Lough Corrib cSAC and did not breach Article 6 of the Habitats Dirertcive.
Mr Sweetman claims the Board accepted an Environmental Impact Statement from the Galway councils although that EIS had failed to discuss the impact on a priority habitat and included incorrect maps.
The fact a Limestone Pavement (Priority Habitat ) had been designated at Menlo on the route of the proposed road was not included in the EIS, it was also argued. The hearing continues.