Further delays for bypass after Supreme Court refers matter to European Court of Justice

The Supreme Court has agreed to refer to the European Court of Justice key issues in a legal dispute about whether An Bord Pleanala's go-ahead for the €317 million Galway city outer by-pass road is invalid on grounds it breaches European law. The referral means the proposed road project faces further delays.

The five judge court, presided over by the Chief Justice, Mr Justice John Murray, last week granted the application for referral made by the State and environmental campaigner Peter Sweetman. An Bord Pleanala, which granted approval for the road project in late 2008, and the Galway City Council, had both opposed referral.

The Chief Justice, referring to the council's concern about incurring a further Eu 2.8 million expenditure next month through having to restart the compuslory purchase process because existing consents will lapse, remarked it was a matter for the legislature that compulsory purchase laws do not cater for such situations as had arisen before the court.

The ECJ will now be asked to clarify provisions of the EU Habitats Directive and the sides have been given two weeks to draft appropriate questions for that court. The final decision on the exact question to be referred will be made by the Supreme Court.

The case centres on the interpretation of Article 6.3 of the Habitats Directive which stipulates any plan likely to have a significant effect on a protected site must be appropriately assessed as to its implications for the site's conservation objectives. Article 6.3 also prohibits approval of any plan which adversely impacts on the "integrity" of the site.

In allowing the road project, An Bord Pleanala found the road would have a "localised" severe impact on the Lough Corrib candidate Special Area of Conservation site but would not adversely effect the "integrity" of the site.

The Attorney General disagreed with the Board's view and argued, as the project involved the destruction of some protected limestone paving which could not naturally renew itself, this breached Article 6.3.

The State says the Board appeared to have taken the view, because only a portion of the protected site was affected, the integrity of the site was not breached. However, the State believes the directive contains a systematic prohibition on doing anything that caused permanent deterioration to a protected habitat.

The State wants the ECJ to define what is meant by "adverse impact" on the "integrity" of a protected site and particularly to define what is meant by "integrity" within the provisions of the directive.

After the ECJ gives its ruling, the Supreme Court will have the assistance of that interpretation when determining Mr Sweetman's appeal against the High Court's rejection last October of his challenge to the road project. The appeal was supported by the State given its view the board's decision does not comply with the Habitats Directive.

The State has told the court it wants the road to be built but this must be done in accordance with law and the requirements of EU law.

The High Court last October rejected two separate challenges to An Bord Pleanala's November 2008 approval for the road scheme brought by Mr Sweetman and Hands Across The Corrib Ltd, "Carraig Ban", Ballinfoyle, Co Galway, an environmental non-government organisation.


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