High Court dismisses Ryanair's challenge to An Bord Pleanála's airport underpass decision under the Planning and Development Act 2000.

[2025] IEHC 74

THE HIGH COURT

PLANNING & ENVIRONMENT

[H.JR.2024.0000745]

IN THE MATTER OF SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT

ACT 2000

BETWEEN

RYANAIR DESIGNATED ACTIVITY COMPANY

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

DAA PLC

NOTICE PARTY

JUDGMENT of Humphreys J. delivered on Friday the 14th day of February 2025

1. The Water Framework Directive (WFD) requires that a planning decision-maker should

refuse permission for a project if it may cause a deterioration of the status of a body of surface water

or jeopardise the attainment of good surface water status or of good ecological potential and good

surface water chemical status. Taking time out from running one of the world’s largest and most

successful airlines in order to commendably champion the strict enforcement of European

environmental law, with the benefit, quite rightly, of the costs protection of the Aarhus Convention

in so doing, Ryanair complains that the wording of the board’s decision granting permission for an

airport underpass and related works doesn’t expressly address the latter limb of the prohibition. The

primary issue is whether that point is effectively academic because the applicant hasn’t established

anything on the facts that would require such consideration or that would raise an issue under that

limb that doesn’t arise under the first limb.

Geographical context

2. This relates to a development on four sites located within lands in the ownership of daa,

including two sites at the airfield in the townlands of Collinstown, Coultry and Huntstown, Co. Dublin.

The proposed development will consist of the construction of a subterranean underpass of runway

16/34 and all associated and ancillary works. The planning application is accompanied by an

environmental impact assessment report (EIAR) and a Natura Impact Statement (NIS)

(https://www.pleanala.ie/en-ie/case/316138).

3. As stated in the EIAR:

“1.1.2 The Airport is unofficially divided into an Eastern Campus and a Western Campus,

with the Crosswind Runway (16/34) bisecting the two. Passenger activity is concentrated in

the Eastern Campus which hosts key Airport infrastructure, including the Terminal buildings,

passenger piers, and the majority of aircraft stands. The primary infrastructure supporting

surface access to the Airport operates on the East also, including the Ground Transportation

Centre, short-term car parking, taxi holding area and main access roads. Operations in the

Western Campus are currently focused on the West Apron which is mainly used for cargo

operations, General Aviation, and contingency stands, as well as transit and business

aviation.

1.1.3 The current means of access from the Eastern Campus to the Western Campus –

the West Apron Surface Crossing, directly over Runway 16/34 - will no longer be viable once

the new North Runway becomes operational in 2022, as Runway 16/34 will be required as

an additional taxiway as well [as] having a continuing role for essential occasional use in line

with the terms of Condition 4 of the North Runway Planning Permission. The Irish Aviation

Authority (IAA) has also advised that the continued use of the Surface Crossing after the

opening of the North Runway is, unsustainable from a safety perspective. All traffic to and

from the West Apron will, as described in Chapter 3: Proposed Development, then have to

use the 8km Perimeter Road.

1.1.4 The permanent solution which best suits the operational and regulatory requirement

to provide safe, efficient, dedicated access to the West Apron, that avoids interfaces with

operational runways and taxiways, is to construct an underpass beneath the taxiways and

Runway 16/34. Compared with the other alternatives that have been studied, this has the

advantage of providing quick, safe access from the eastern campus to the western campus.

Alternatives are discussed in more detail in Chapter 2: Alternatives.”

A brief outline of the timeline of the present application

4. The notice party made the application to Fingal County Council (the council) for permission

for inter alia the construction of a subterranean underpass on 1st September 2022.

5. The applicant made a submission on the planning application on 3rd October 2022.

6. A planner’s report was prepared by the council on 26th October 2022, and recommended

that further information be sought from the notice party.

7. The notice party submitted further information on 21st December 2022.

8. The applicant made a submission on the further information provided by the notice party on

20th January 2023.

9. A second planner’s report was prepared by the council on 27th February 2023, which

considered the further information and recommended that permission be granted for the proposed

development subject to conditions.

10. By decision dated 27th February 2023, permission for the proposed development was

granted by the council.

11. The applicant lodged an appeal to the board of the council’s decision on 24th March 2023.

12. The notice party lodged an appeal to the board in respect of a number of conditions imposed

by the council and an appeal was also lodged by SMTW Environmental DAC.

13. The notice party made submissions on the appeals on 24th April 2023.

14. The board sought further submissions on 17th May 2023 from the parties to the appeals.

15. The notice party lodged a responding submission on 1st June 2023.

16. A s. 132 notice was issued by the board on 7th July 2023.

17. The notice party made a submission in respect of that request on 25th July 2023.

18. The applicant made a submission on the notice party’s s. 132 submission on 12th September

2023.

19. The board’s scientist also prepared a report on the proposed development dated 12th

December 2023.

20. The board’s ecologist prepared a report on the proposed development dated 14th December

2023.

21. The board’s inspector prepared a report following a site inspection on 22nd November 2023,

and that report is dated 19th December 2023.

22. A board direction was made on 8th March 2024 (BD-015770-24), in which it was recorded

that the board had decided to grant permission generally in accordance with the inspector’s

recommendation.

23. By order dated 17th April 2024 (ABP-316138-23), the board granted permission for the

proposed development subject to 13 conditions.

A brief outline of the timeline of the related infrastructure application

24. Following the making of the present application, a separate application (F23A/0781) was

made (the infrastructure application), which involves daa seeking to increase the passenger cap,

and put in place infrastructure including the underpass at issue here. That was made on what was

described a “precautionary” basis, although in that context daa is also seeking permission for

additional stands (so the material contravention issue argued in the present case wouldn’t

presumably arise).

25. The infrastructure application was made to the council on 15th December 2023.

26. In the infrastructure application, following the bullet-point list under Project Element 11:

Junction Improvements it is stated that: “Overall the proposed development will result in a [loss] of

4no. Narrow Body Equivalent (NBE) stands (2no. at Pier 3 and 2no. at Pier 4), however there will be

an overall net increase of 33no. NBE stands across the airfield resulting in a total capacity of 167no.

NBE.”

27. A request for further information was made by the council on 16th February 2024.

28. That request was responded to by daa on 13th November 2024.

29. The council considered that response to further information to be “significant additional

information”, hence advertisement was required.

30. The final date for third-party observations/submissions was 8th January 2025, and the

matter remains before the council.

Procedural history

31. These proceedings were issued on 7th June 2024.

32. The applicant was given leave to commence judicial review proceedings on 24th June 2024

(the order being perfected on 27th June 2024).

33. The applicant issued an originating notice of motion on 28th June 2024, with a return date

of 8th July 2024.

34. The opposing parties accepted that s. 50B of the Planning and Development Act 2000 applies

to the proceedings.

35. On 21st October 2024, a hearing date was allocated in February 2025 by way of the

expedited procedure.

36. The board filed its opposition papers on 8th November 2024.

37. The notice party filed its opposition papers on 14th November 2024.

38. The applicant served its written submissions on 13th January 2025.

39. The board served its written submissions on 22nd January 2025.

40. The notice party served its written submissions on 28th January 2025.

41. The applicant served its replying written submissions on 31st January 2025.

42. The matter was listed for hearing on 6th February 2025 for 3.5 hours, after which judgment

was reserved.

Relief sought

43. The reliefs sought in the statement of grounds are as follows:

“1. An order of Certiorari by way of application for judicial review quashing the Board

Order of 17th April 2024 (ABP Ref 316138-23) granting the Notice Party permission for the

construction of a tunnel and associated works at Dublin Airport.

2. Such declaration(s) of the legal rights and/or legal position of the applicant and/or

persons similarly situated as the court considers appropriate.

3. A Declaration that Section 50B of the Planning and Development Act 2000 as

amended, and/or Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011

and/or that the interpretative obligation set out in Case C-470/16 North East Pylon Pressure

Campaign Limited v. An Bord Pleanála whereby in proceedings where the application of

national environmental law is at issue, it is for the national court to give an interpretation of

national procedural law which, to the fullest extent possible, is consistent with the objectives

laid down in Article 9(3) and (4) of the Aarhus Convention, apply to these proceedings.

4. Further or Other Order.

5. Costs.”

Grounds of challenge

44. The pleaded core grounds of challenge are as follows:

“Domestic Law Grounds

1. The decision of the Board of 17th April 2024 (ABP Ref 316138-23)(‘the impugned

decision’) granting the Notice Party permission for the construction of a tunnel and

associated works at Dublin Airport is invalid as no notice was given to statutory consultees

pursuant to Article 28(g) of the 2001 Regulations in respect of a development that might

have a significant effect on waterways, further particulars of which are contained at Part 2

below.

2. The impugned decision is invalid as the Board did not comply with the requirements

of section 15 of the Climate Action and Low Carbon Development Act 2015 (as amended)

and/or failed to have regard to relevant considerations and/or had regard to irrelevant

considerations and/or failed to adequately consider Climate Action Plan 2023 and/or Carbon

Budgets and/or Sectoral Emissions Ceilings and/or failed to provide any or any adequate

reasons and/or less carbon intensive alternatives, further particulars of which are contained

at Part 2 below.

3. The impugned decision is invalid in that it contains a material legal error, as the

Board incorrectly concluded that the proposed development was consistent with the Dublin

Airport Local Area Plan 2020, and/or took into account irrelevant considerations, and/or

failed to take into account relevant considerations, and/or failed to give adequate reasons,

further particulars of which are contained at Part 2 below.

European Law Grounds

4. The impugned decision is invalid because planning permission was granted in breach

of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23

October 2000 establishing a framework for Community action in the field of water policy (the

‘Water Framework Directive’) and/or Regulations 4 and 5 of the European Communities

Environmental Objectives (Surface Waters) Regulations 2009. This is because the Board did

not ensure that the grant of planning permission would not cause a deterioration in the

status of a body of surface water, or that it would not jeopardise the attainment of good

surface water status or of good ecological potential and good surface water chemical status

and/or the Board could not have arrived at that conclusion in the absence of the classification

of the receiving water bodies for the purpose of the Surface Water Regulations and/ or the

Board failed to identify describe and assess the significant environmental impacts for the

purposes of section 171A and 172 of the Planning and Development Act and the EIA

Directive, further particulars of which are contained at Part 2 below.

5. The impugned decision is invalid as the Board failed to consider adequately or at all

the environmental effects of the proposed development on the environment in terms of

impacts on bat fauna for the purposes of section 171A and 172 of the Planning and

Development Act 2000 and/or had no objective information before it to support a conclusion

of no significant effects on the environment for the purposes of that EIA assessment and/or

contained lacuna, further particulars of which are contained at Part 2 below.

6. The impugned decision is invalid because the Board erred in law in excluding the

possibility of significant effects on the Northwest Irish Sea SPA (Site Code 004236) at

Screening Stage and/or unlawfully relied on mitigation measures for the purposes of that

assessment and/or the Board’s conclusion of no significant effect is irrational and

unreasonable and/or the Board failed to provide any or any adequate reasons, further

particulars of which are contained at Part 2 below.”

45. Helpfully, the applicant has withdrawn the challenge other than in respect of core grounds 3

and 4.

Domestic law issues

Core ground 3 – inconsistency with LAP

46. Core ground 3 is:

“3. The impugned decision is invalid in that it contains a material legal error, as the

Board incorrectly concluded that the proposed development was consistent with the Dublin

Airport Local Area Plan 2020, and/or took into account irrelevant considerations, and/or

failed to take into account relevant considerations, and/or failed to give adequate reasons,

further particulars of which are contained at Part 2 below.”

47. The parties’ positions as recorded in the statement of case are summarised as follows:

“Core Ground 3

Applicant’s Position –

The Board’s Inspector concluded that the proposed development was a contravention but

not a material contravention of the relevant LAP on the sole basis that the reduction in

aircraft stands that would result from the proposed development would be short term of

temporary.

The loss of the stands is material by reference to the test in Roughan and was raised as a

contravention of the LAP by the Applicant on three separate occasions. Furthermore, there

was no evidence that such a loss of stands would in fact be short term or temporary and the

Board erred and/or relied on irrelevant considerations in concluding otherwise

Board’s Position –

The LAP seeks to provide ‘[s]afe and efficient vehicular access between the eastern and

western campus’ – which the Proposed development achieves. It also promotes further

development of aircraft stands over the plan period and beyond (2050). The proposed

development, which involves the temporary loss of two aircraft stands (as the evidence

before the Board demonstrated), whilst determined to be a contravention of the objectives

in the LAP in relation to aircraft stands, is not a material contravention on an appropriate

construction of the LAP and the Board was entitled to so conclude.

As recognised by the Inspector (when the Inspector’s Report is holistically read) and the

Board (and the Council), there are various objectives in the LAP which seek to advance the

Vision for Dublin Airport and in respect of which a balance must be achieved, or where a

planning ‘judgment call’ has to be made, in terms of the weight to be attached to each in

the context of any particular development proposal seeking to promote/achieve same – per

Four Districts Woodland Habitat Group v An Bord Pleanála [2023] IEHC 335. In this case,

there was nothing irrational about the judgment call of the Board.

The Proposed Development will not frustrate, prohibit or preclude the facilitation of further

stands during the LAP period and beyond – the Proposed Development does not make these

objectives unattainable or ‘imperil’ same. The loss of two stand is not a material

contravention in such circumstances and, in this respect, noting Ballyboden TTG v An Bord

Pleanála [2023] IEHC 722, in this particular case, no objections, including from Ryanair, to

the Proposed Development reached the level of describing the proposal as a material

contravention; and the planning authority did not find same to be the case.

Notice Party’s Position –

The Notice Party adopts the position of the Board. The Council, the Inspector, the Board

(and the Applicant in its submissions) all found that the temporary reduction in 2 aircraft

stands would result in a contravention of the Airport LAP. No party made a submission to

the Council or the Board that the loss of 2 airport stands (temporary or otherwise) amounted

to a material contravention of the Airport LAP. The Inspector and the Board correctly

interpreted the Airport LAP and lawfully determined that a contravention (but not a material

contravention) arose. The reduction of 2 aircraft stands (temporary or otherwise) is not a

material contravention and does not meet the test in Roughan and the Board was entitled

to so conclude.

The Board did not err in taking account of the fact that the Notice Party stated that it intended

to apply for permission to replace the aircraft stands (which it has done and with such an

application pending before the Council). However, the determination by the Inspector and

the Board that no material contravention arose was determined in light of the provisions of

the Airport LAP. Strictly without prejudice to the foregoing, even if the Applicant is correct

and the loss of 2 aircraft stands (temporary or otherwise) is a material contravention of the

Airport LAP, it does not form a basis to quash the Board’s decision and/or the Court ought

not, in the exercise of its discretion, quash the Board’s decision on this basis.”

48. One important principle to note at the outset is, as stated in numerous previous cases

included in the court’s common list of authorities, a decision must be read in a way that makes sense

and is lawful – it is not the case that decisions must be read in the most erroneous way possible so

that applicants can get their order of certiorari (e.g. Rostas v. DPP [2021] IEHC 60 (Unreported,

High Court, 9th February 2021) at §50; St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC

94 (Unreported, High Court, Phelan J., 20th February 2024) at §57). Related to that is that a

decision should be read in a way that renders it valid rather than invalid: see Mulloy v. An Bord

Pleanála [2024] IEHC 86 (Unreported, High Court, Holland J., 12th March 2024) at §178 (citing

O’Donnell v. An Bord Pleanála [2023] IEHC 381 (Unreported, High Court, 1st November 2023); M.R.

(Bangladesh) v. The International Protection Appeals Tribunal & Anor [2020] IEHC 41 (Unreported,

High Court, 29th January 2029) at §7; Save Roscam Peninsula CLG v. An Bord Pleanála (No. 6)

[2024] IEHC 335 (Unreported, High Court, 7th June 2024) at §64). A decision should be read “not

solely from an applicant’s point of view (an impossible standard), but from the starting point of it

being valid rather than invalid where possible. One has to stand back and ask what the decision is

fundamentally saying (O’Donnell & Ors v. An Bord Pleanála [2023] IEHC 381 [Unreported, High

Court, 1st November 2023] (para. 54): St. Margaret’s Recycling v. An Bord Pleanála [2024] IEHC

94 (Unreported, High Court, Phelan J., 20th February 2024) at §57; thus for example “unhelpful”

statements should not be read as inconsistent with statutory factors if the decision can be read as

valid – E.M. v. Minister for Justice and Equality [2024] IESC 3 (Unreported, Supreme Court, 21st

February 2024) per Dunne J.

49. The Dublin Airport local area plan (LAP) (https://www.fingal.ie/dublin-airport-local-area-

plan-2020) was adopted in January 2020.

50. The relevant provisions of the LAP that are allegedly contravened are set out in the statement

of grounds as follows:

“21. By way of further particulars of the claim, §3.2.1.3 of the Dublin Airport Local Area

Plan 2020 identifies in relation to Aircraft Parking Stands that ‘The DTTAS Review indicates

significant increase in stand capacity is required at the Airport with between 39 – 89 new

stands required up to 2050.’ This is effectively repeated at §3.3 and §7.7.1 and §7.2.4 the

latter of which states ‘To meet forecast air traffic demand, …. Increased provision of aircraft

parking stands, piers and gates capacity will become increasingly important during the plan

period to facilitate the Airport’s strategic role as a European hub airport.’. Objectives SBG01

and SBG02 of the Dublin Airport Local Area Plan 2020 include references to ‘the development

of new stands’ and ‘improved and expanded parking facilities for aircraft’ respectively.”

51. The relevant objectives are:

“AIRCRAFT PARKING STANDS, PIERS AND BOARDING GATES

To meet forecast air traffic demand, additional aircraft stands and passenger boarding gates

as well as modifications to this existing infrastructure will be required during the plan period

to provide greater capacity. To serve upgraded and additional aircraft parking stands,

additional piers and modifications to existing pier buildings which accommodate boarding

gates will also be required. Increased provision of aircraft parking stands, piers and gates

capacity will become increasingly important during the plan period to facilitate the Airport’s

strategic role as a European hub airport.

AIRCRAFT PARKING STANDS, PIERS AND BOARDING GATE OBJECTIVES

OBJECTIVE SBG01

Facilitate the development of new stands, piers and boarding gates in line with the expansion

of associated runway and terminal capacity across the Airport having regard to the need to

protect key operational areas.

OBJECTIVE SBG02

Provide improved and expanded parking facilities for aircraft.”

52. There is also language supportive of safe permeability between the two campuses of the

airport. The inspector noted (inter alia, §9.3.2):

“…there is policy in the LAP (Objective AV01) to support improved safety and operations in

the airport. Safe and efficient vehicular access between the eastern and western parts of

the airport is specifically referenced in relation to the movement of ‘airside’ support vehicles

and that this will be supported and facilitated…

…

The Dublin Airport Local Area Plan 2020 identifies the need for safe and efficient vehicular

access between the eastern and western parts of the airport.

In conclusion, the proposed development…is consistent with the aims of the county and local

area plans to provide for safe, efficient access for airside vehicles between the eastern and

western parts of the airport and is consistent with the zoning objective.”

53. What the inspector said was:

“9.9.2. I recognise that there will be a constraint on aircraft operations during the course of

construction and until such time period as the replacement stands are provided. This is

clearly a significant issue for aircraft operators. As the planning authority identified, the

reduction of aircraft stands is a contravention of the LAP. I would concur with this

assessment. However, I do not consider this a material contravention as the intention is not

to permanently reduce the number of aircraft stands. Therefore, the short-term reduction

in aircraft stands is not, in my opinion, a reason to refuse planning permission.”

54. The basis of the holding that the contravention wasn’t material was that the removal of

stands was temporary. But the temporariness on the facts arose from an intention to apply for a

future grant of permission for different stands. The actual stands being removed by the present

permission will be permanently removed. Thus I would tend to agree with the applicant that if

s. 37(2) of the 2000 Act applied, the inspector’s reasoning would somewhat conflate the issues of

materiality of the change versus justification for it. A hypothetical future grant of permission for

different stands on the basis of a hypothetical future application for such permission seems legally

more relevant to the justification issue as opposed to being a solid basis for a finding on the

materiality issue.

55. However, the false premise of the applicant’s complaint is the assumption made in the

pleaded case that s. 37(2) of the 2000 Act applies in the first place.

56. That subsection applies to development plans:

“(2) (a) Subject to paragraph (b), the Board may in determining an appeal under this section

decide to grant a permission even if the proposed development contravenes materially the

development plan relating to the area of the planning authority to whose decision the appeal

relates.

(b) Where a planning authority has decided to refuse permission on the grounds that a

proposed development materially contravenes the development plan, the Board may only

grant permission in accordance with paragraph (a) where it considers that—

(i) the proposed development is of strategic or national importance,

(ii) there are conflicting objectives in the development plan or the objectives are not

clearly stated, insofar as the proposed development is concerned, or

(iii) permission for the proposed development should be granted having regard to

regional spatial and economic strategy for the area, guidelines under section 28,

policy directives under section 29, the statutory obligations of any local authority in

the area, and any relevant policy of the Government, the Minister or any Minister of

the Government, or

(iv) permission for the proposed development should be granted having regard to

the pattern of development, and permissions granted, in the area since the making

of the development plan.

(c) Where the Board grants a permission in accordance with paragraph (b), the Board shall,

in addition to the requirements of section 34(10), indicate in its decision the main reasons

and considerations for contravening materially the development plan.”

57. Section 2 defines development plan:

“‘development plan’ means a development plan under section 9(1);”

58. That doesn’t include an LAP, which puts a very different complexion on the complaint under

this heading.

59. Such a conclusion is reinforced by s. 9(6) of the Planning and Development (Housing) and

Residential Tenancies Act 2016 which provides (in the strategic housing development (SHD) context

exclusively) for express material contravention of an LAP or a development plan – whereas in regular

planning such as here, the 2000 Act refers to material contravention of the plan only.

60. That interpretation is also reinforced by s. 34(6) of the 2000 Act (as amended by the

Planning and Development (Amendment) Act 2010) which provides for a procedure to be gone

through by a planning authority in relation to material contravention of an LAP or a plan:

“(6) (a) In a case in which the development concerned would contravene materially the

development plan or local area plan, a planning authority may, notwithstanding any other

provision of this Act, decide to grant permission under this section, provided that the

following requirements are complied with before the decision is made, namely—

(i) notice in the prescribed form of the intention of the planning authority to consider

deciding to grant the permission shall be published in at least one daily newspaper

circulating in its area and the notice shall specifically state which objective of the

development plan or local area plan, as the case may be, would be materially

contravened by granting this permission,

(ii) copies of the notice shall be given to each of the following—

(I) the applicant,

(IA) the regional assembly for the area in which the planning authority is

situated,

(II) a prescribed body which has been notified of the application by the

planning authority, and

(III) any person who has made a submission or observation in writing in

relation to the development to which the application relates,

(iii) any submission or observation as regards the making of a decision to grant

permission and which is received by the planning authority not later than 4 weeks

after the first publication of the notice shall be duly considered by the authority

(iiia) not later than 6 weeks from the publication of the notice under subparagraph

(i), the chief executive shall prepare a report for the members of the planning

authority—

(I) stating the main reasons and considerations on which the proposal to

grant permission is based,

(II) summarising the issues raised in any submissions or observations in

accordance with subparagraph (iii), and

(III) advising the members of his or her opinion regarding the compliance

or otherwise of the proposed development with any relevant Ministerial

guidelines under section 28 or any relevant policies or objectives of the

Government or Minister of the Government or with any regional spatial and

economic strategy,

and the report shall be considered by the members before a resolution is passed

under subparagraph (iv), and

(iv) a resolution shall be passed by the planning authority approving the proposal of

the chief executive to grant permission.

(b) It shall be necessary for the passing of a resolution referred to in paragraph (a) that the

number of the members of the planning authority voting in favour of the resolution is not

less than three-quarters of the total number of the members of the planning authority or

where the number so obtained is not a whole number, the whole number next below the

number so obtained shall be sufficient, and the requirement of this paragraph is in addition

to and not in substitution for any other requirement applying in relation to such a resolution.

(ba) Where a resolution referred to in paragraph (a) has been passed by a planning authority

in accordance with paragraph (b), the planning authority shall—

(i) send to the regional assembly for the area and the Office of the Planning

Regulator a copy of the notice under paragraph (a) that relates to the resolution,

and

(ii) at the same time, inform the regional assembly for the area and the Office of the

Planning Regulator in writing that the resolution was passed.”

61. So the contrast is clear – where a council is materially contravening an LAP in a normal

planning context, or where the board is doing so in a SHD context, there is a reasoning procedure

to be gone through. No such procedure applies to contravention of an LAP by the board in normal

planning. Maybe that’s an anomaly, maybe it isn’t, but that’s what s. 37(2) of the 2000 Act says

and the clear wording is reinforced by contrast with other provisions of legislation which are phrased

very differently.

62. Had s. 37(2) applied, there would be a clear legal distinction between materiality of a

contravention and the justification for the contravention. In the absence of the application of that

provision, the distinction is not legally significant. So when the inspector says that the intended

temporariness of the reduction makes it immaterial, we can regard that as in substance equivalent

to saying that any contravention of the LAP is not a reason to refuse permission. Indeed the

inspector says that expressly: “Therefore, the short-term reduction in aircraft stands is not, in my

opinion, a reason to refuse planning permission”. In line with the caselaw referred to above, the

decision should be read in a way that makes sense and is valid if such a reading is available – and

it is here.

63. Thus in the absence of an applicable legal requirement that makes the distinction between

materiality and justification determinative or particularly legally relevant in the specific legal context

we are dealing with here, the inspector’s wording overall, while not perhaps ideal, isn’t sufficiently

flawed so as to warrant certiorari.

EU law issues

Core ground 4 – breach of the WFD

64. Core ground 4 is:

“4. The impugned decision is invalid because planning permission was granted in breach

of Article 4(1) of Directive 2000/60/EC of the European Parliament and of the Council of 23

October 2000 establishing a framework for Community action in the field of water policy (the

‘Water Framework Directive’) and/or Regulations 4 and 5 of the European Communities

Environmental Objectives (Surface Waters) Regulations 2009. This is because the Board did

not ensure that the grant of planning permission would not cause a deterioration in the

status of a body of surface water, or that it would not jeopardise the attainment of good

surface water status or of good ecological potential and good surface water chemical status

and/or the Board could not have arrived at that conclusion in the absence of the classification

of the receiving water bodies for the purpose of the Surface Water Regulations and/ or the

Board failed to identify describe and assess the significant environmental impacts for the

purposes of section 171A and 172 of the Planning and Development Act and the EIA

Directive, further particulars of which are contained at Part 2 below.”

65. The parties’ positions as recorded in the statement of case are summarised as follows:

“Applicant’s Position –

The Board failed to consider the proposed development by reference to the correct WFD

status – heavily polluted - of the Cuckoo Stream that flows through the site and which will

be culverted and diverted during construction. The status brings with it certain obligations

pursuant to the Surface Water Regulations which, consequently and axiomatically, the Board

also did not consider the proposed development in the context of its impacts on a heavily

polluted waterbody.

Secondly, and without prejudice, the Board reached a conclusion in respect of impacts on

the Cuckoo Stream in relation to half of the test in Article 4(1) WFD as interpreted by the

Court of Justice in. Bund fur Umwelt. The Board’s conclusion is a necessary but not sufficient

conclusion for the purposes of a lawful decision for the purposes of Article 4.

Board’s Position –

This ground is abstract and lacking in any evidential/factual substance – as evidenced by

the Applicant’s Submissions which assert that ‘the Applicant does not require evidence in

order to make that case’ (Submissions, §38).

The evidence before the Board (which the Applicant ignores) was presented and premised

on express consideration of the objectives of the WFD and Surface Water Regulations (per

the EIAR and Appendices to same, including the WFD Assessment), and detailed that there

would be no adverse effects on water. The Board agreed with this evidence (having assessed

same and noting the absence of any contrary evidence) – which clearly demonstrated that

the Proposed Development would not contravene or frustrate the objectives of the WFD or

the Surface Water Regulations. Noting that the evidence demonstrated that there would no

adverse effects on water, there can be no ‘adverse effects…which would be contrary to the

requirements to prevent deterioration and to improve the status of bodies of surface water

and groundwater’ or the objectives of the Surface Water Regulations.

Notice Party’s Position –

The Notice Party adopts the position of the Board. The Board did not err in its application

of the test set out in Article 4 of the Water Framework Directive (‘WFD’) or in respect of its

assessment having regard to the WFD status of the Cuckoo Stream. The Notice Party

submitted a Water Framework Directive Assessment as appendix 7-1 to its EIAR, which

addressed both the test set out in Article 4 of the WFD and the Surface Water Regulations

and concluded that the proposed development would cause no adverse effects on water. No

complaint is made by the Applicant: (i) that the Cuckoo Stream was misclassified and / or

(ii) that any relevant assessments were not carried out by the Notice party. Neither has the

Applicant, either in these proceedings or before the Board, presented any evidence to

contradict the conclusions in respect of such assessments (which were ultimately adopted

by the Board).”

66. In general terms EU law doesn’t require an applicant to make European law points during

the process before challenging a decision so I think we can assume that this isn’t disqualifying. The

opposing parties accepted that anyway.

67. Starting with the argument of failure to apply the Water Framework Directive test, we

need to be clear what the “test” is. In the judgment of 1 July 2015, Bund für Umwelt und Naturschutz

Deutschland e.V. v Bundesrepublik Deutschland, C-461/13, ECLI:EU:C:2015:433 (commonly known

by reference to the River Weser, the 744 km-long federal waterway in Lower Saxony to which the

case related), the CJEU (Grand Chamber) ruled:

“1. Article 4(1)(a)(i) to (iii) of Directive 2000/60/EC of the European Parliament and of

the Council of 23 October 2000 establishing a framework for Community action in the field

of water policy must be interpreted as meaning that the Member States are required —

unless a derogation is granted — to refuse authorisation for an individual project where it

may cause a deterioration of the status of a body of surface water or where it jeopardises

the attainment of good surface water status or of good ecological potential and good

surface water chemical status by the date laid down by the directive.

2. The concept of ‘deterioration of the status’ of a body of surface water in Article

4(1)(a)(i) of Directive 2000/60 must be interpreted as meaning that there is deterioration

as soon as the status of at least one of the quality elements, within the meaning of Annex V

to the directive, falls by one class, even if that fall does not result in a fall in classification of

the body of surface water as a whole. However, if the quality element concerned, within the

meaning of that annex, is already in the lowest class, any deterioration of that element

constitutes a ‘deterioration of the status’ of a body of surface water, within the meaning of

Article 4(1)(a)(i).”

68. The core argument in the applicant’s legal submissions is:

“34. The test is two-fold. It refers to both a diminution in status and the possibility of

jeopardising the attainment of good water status. While there is a single concluding line in

the EIAR (as quoted above) that identified that the proposed development would not

jeopardise the attainment of good surface water status, nowhere in the analysis of the Board,

via the Inspector or the Appendix to the Inspector’s Report from Mr Smyth, did it consider

whether the proposed development would jeopardise the attainment of good status for the

waterbody. Instead the Board wrongly confined its analysis to whether the proposed

development would lead to a change in status.”

69. The applicant puts this in argument as an autonomous obligation – the board has to satisfy

itself of the Weser tests anyway. That is valid insofar as it goes but autonomous obligations can’t

be allowed to get out of hand. There has to be something making such an obligation relevant (the

onus of proof as to which lies – as always – on an applicant) before a decision could be quashed for

failure to address that obligation.

70. The context is an acceptance that the Cuckoo Stream is polluted. The inspector stated:

“11.12.7. The Cuckoo Stream is classed as having a Bad Ecological WFD status.”

71. The inspector said at para. 11.9.26:

“I am satisfied that the mitigation measures set out are sufficient to ensure that proposed

development would not cause a deterioration to the ecological status of surface waterbodies

or the groundwater status of the waterbodies. The removal of any historic contamination in

the subsoil would be beneficial.”

72. And went on to say:

“11.9.30. I am satisfied that the proposed development will not give rise to further

deterioration of surface water or groundwater.”

73. Thus the context here is that the board found that there wasn’t going to be a deterioration

in the status of the Cuckoo Stream. In such a context and even bearing in mind the acceptance that

the stream was of poor status it is hard to see immediately how this project (as opposed to some

hypothetical other project), which doesn’t cause deterioration, could nonetheless somehow

jeopardise the attainment of good surface water status. In particular, the applicant hasn’t shown

anything specific to suggest that there was anything about this particular project that while not

causing a deterioration of the status of the stream could have jeopardised the attainment of good

water status. In that context, this technical complaint isn’t a plausible basis to hold that the board

failed to consider something it was required to consider. Even in the case of autonomous obligations,

the board can’t do all the work – an applicant still has an onus to overcome to show that there was

something needing express treatment. This applicant hasn’t done that here.

74. In that regard I entirely agree with Holland J. in Salmon Watch Ireland CLG v. Aquaculture

Licences Appeals Board [2024] IEHC 421 (Unreported, High Court, 12th July 2024) in relation to an

analogous complaint there:

“1097. The [relevant] Applicants’ pleas … are entirely abstract and theoretical. While they

correctly identify matters not considered by [the decision-maker], they do not state any

basis for the implied premise that those matters required consideration. They do not lay

any basis in particulars or facts for any case for certiorari.”

75. Such a conclusion is also consistent with An Taisce v. An Bord Pleanála (No. 1) [2021] IEHC

254, [2021] 4 JIC 2003 (Unreported, High Court, 20th April 2021) and Concerned Residents of

Treascon and Clondoolusk v. An Bord Pleanála [2022] IEHC 700, [2022] 12 JIC 1609 (Unreported,

High Court, 16th December 2022).

76. Insofar as there is a separate point that seems to suggest that the WFD requires the

board to take positive steps in any development consent decision in order to restore or improve

the status of the stream, that isn’t what EU law requires. There is no principle that permission must

be refused if a project doesn’t contribute positively to the attainment of WFD objectives. In Weser,

the CJEU has phrased the requirement negatively. There is no authority to support that and such

authority as exists firmly rejects that notion, which is purely a figment confected by the applicant

here.

77. In R. (Tarian Hafren Severn Shield CYF) v Marine Management Organisation [2022] EWHC

683 (Admin), [2022] P.T.S.R. 1261, [2022] 3 W.L.U.K. 375, Holgate J. rejected this argument:

“163. There is nothing in the language of Article 4(1)(a) [of the WFD] or in the decision in

Bund fur Umwelt to suggest that a regulatory approval must be refused unless the project

would itself contribute (e.g. positively) towards the attainment of a good surface water

status, or good chemical status. Those legal sources do not indicate that, for example, a

proposal must contribute to that objective by reducing existing chemical levels which cause

the current status of the water body to be less than ‘good’, a fortiori where there is no

evidence to indicate that either the proposal, or the project of which it forms a part, would

contribute to those chemical levels.

164. The legal issues in the Bund fur Umwelt case were concerned with very different

matters, in particular whether article 4(1)(a) applies to decision-making on regulatory

project approvals as well as water management planning, and whether Article 4(1)(a) is

infringed where a proposal would cause the quality of a water body to deteriorate without

reducing its ‘status class’. The requirement laid down by the CJEU in relation to the second

objective of Article 4(1)(a) is that a project should not jeopardise the attainment of good

surface water status. ‘Jeopardise’ means endanger or put at risk.

165. [Counsel for the applicant] did not explain how this proposal, which would not cause

any harm to the chemical quality of the water body (including the two chemicals for which

it is currently failing), could itself jeopardise, let alone ‘would be bound to jeopardise’, its

enhancement from a moderate to a good status. For that reason alone ground 5 [alleging

breach of the WFD on this basis] should fail.”

78. A similar logic applies here. The applicant hasn’t pointed to anything in EU legislation or

jurisprudence or that of member states or former member states to support such an interpretation

– that isn’t a surprise because such an interpretation is obviously unworkable. A vast number of

projects won’t contribute positively to water quality – the directive only requires that they don’t

make things worse. This isn’t a point on which any reasonable doubt arises.

79. Insofar as the applicant makes a further point that the information in the EIA was

inadequate, that exaggerates the extent to which certainty is attainable or to which acknowledged

uncertainty is an obstacle to a lawful grant of permission.

80. Yes the inspector does acknowledge some uncertainty as to the available information:

“11.9.26. The impacts of the proposed Underpass on Water are adequately described

and suitable mitigation measures are proposed. The Third Party has argued that the

Conceptual Design Model is lacking in detail and I would agree with that. The pump test

data is not provided, but is, in any case, limited. However, under the circumstances that

the majority of the proposed Underpass is beneath an operational runway, this lack of detail

is understandable. I am satisfied that the mitigation measures set out are sufficient to

ensure that proposed development would not cause a deterioration to the ecological status

of surface waterbodies or the groundwater status of the waterbodies. The removal of any

historic contamination in the subsoil would be beneficial.”

81. But total certainty isn’t a requirement of EIA or of pretty much anything. The inspector

expressly finds that the “lack of detail is understandable”. That is an evaluative judgement that is

reasonably open in principle to a decision-maker and certainly hasn’t been shown to be unlawful

here. The context for that has to include the information provided from daa, which in principle the

board was permitted to accept. The response by daa dated 24th April 2023 at §1.5.2 states:

“It is right and proper to acknowledge uncertainty in an EIAR as sometimes data is limited,

hence the EIAR notes that there is ‘very limited’ information available on the depth of

groundwater. This in no way detracts from the soundness of the assessment presented

since, as the Third Party notes, robust assumptions were made in the design process. The

EPA Guidelines provide (page 25), that: ‘Where uncertainty arises then an EIAR needs to

describe the “worst case” scenario of the accumulation of effects that could arise from these

other projects.’ As demonstrated throughout the application, the worst case has been

considered.

Ground investigations to date indicate a GWL at approximately 3-4 mbgl. The same ground

investigations also indicate the glacial till at that level is relatively impermeable. Any

groundwater rise during construction within the glacial tills may not necessitate any specific

change in construction methods. However, it should be noted that all groundwater control

during construction is completely the contractor's responsibility.

If the water table does rise into the more permeable made ground above the glacial till,

gasketed sheet piles (as one option) could be installed to provide a positive barrier against

groundwater intrusion, or a temporary dewatering system may also be considered by the

contractor. It should also be noted that any reduction in groundwater levels from what has

already been observed will be beneficial to construction.

Final design of the proposed structure normally considers worst case scenario where

groundwater level is at existing ground level, therefore it would not be impacted by higher

groundwater levels as the majority of the structure is completely submerged, based on

observed groundwater table, and any rise in groundwater would be above the proposed

Underpass, and therefore not increasing buoyant forces on the proposed Underpass itself.

During the 2022 ground investigation, standpipes were installed in the 11 boreholes and two

pump tests were conducted to monitor the seasonal groundwater levels and assess the

hydraulic conductivity of the soil.

As stated above, ground investigation can increase in scope as design/construction develops.

The proposed Underpass, at this stage, has had a typical initial ground investigation that

covers the area of the preferred alignment. The ground investigation conducted in 2022

included 11 boreholes along the approx.1 km project plan length. This is considered

sufficient at this stage, and it is in accordance with EN 1997-2: 2007: Eurocode 7 -

Geotechnical design - Annex B.3 examples of recommendations for the spacings and depth

of investigations. Depending on the variability of the ground (i.e., strata levels consistent

at all borings or lenticular material indicated by different ground at the same level at adjacent

or nearby borings), the designer may choose to complete additional ground investigations

to provide further ground information to inform their detailed design.

When a project progresses to detailed design, it is understood that the design is at a

preliminary stage and further information may be required. This commonly includes further

ground investigations. For the proposed Underpass, a ground investigation for a reasonable

cross section of the area of the preferred alignment has been performed in 2022, which

provided enough information to verify the preferred alignment was feasible and could be

constructed. This is in accordance with EN 1997-2: 2007: Eurocode 7- Annex 8.3, which

recommends for linear structures a borehole spacing of 20m to 200m. As discussed above,

the designer will determine how much additional ground information is required to inform

their detailed design and their construction methods. This ground investigation could vary

from two to three targeted boreholes to a more comprehensive plan across the entire

alignment. The scope of the additional investigations can be driven by the construction

methods and temporary works of the chosen contractor as much as by a requirement to

refine the detailed design rather than alter the overall design.”

82. It’s inherent in science generally that certainty isn’t available: see for example Friends of

the Irish Environment v. Minister for the Environment & Ors. [2025] IEHC 61 (Unreported, High

Court, 7th February 2025). The inspector’s judgement that the limitation on the information

available was understandable hasn’t been shown to be unlawful here.

83. Finally under the overall heading of core ground 4, reference to Luxembourg wasn’t sought

by any party in the statement of case, although was belatedly raised by the applicant in literally the

closing seconds of the hearing. But the issue raised hasn’t been shown to arise on the facts.

Therefore a reference would not be “necessary” within the meaning of art. 267 TFEU and any

purported reference would be inadmissible. And insofar as the argument of an implausible positive

obligation to promote good water status is concerned, no reasonable basis – indeed no basis

whatsoever – for doubt as to the EU law position has been demonstrated. The reference procedure

isn’t there for any and every EU law point someone could dream up on a given day. It is only where,

in particular, there is a reasonable basis for doubt as to the correct position and where the question

properly arises on, and is necessary having regard to, the findings of fact. Both criteria are lacking

here.

Summary

84. In outline summary, without taking from the more specific terms of this judgment:

(i) Section 37(2) of the 2000 Act doesn’t apply to material contravention of an LAP.

Therefore there isn’t any legally significant distinction between materiality of a

contravention or justification for it. In the event of contravention of an LAP, the

issue for the board is whether permission should be granted notwithstanding any

such conflict.

(ii) In such a context, the wording of the inspector’s report on this issue is not a basis

for certiorari because the classification of the proposed temporary nature of the

removal of stands under the heading of materiality rather than justification (on the

basis of a hypothetical future permission decision) doesn’t go to any legally

significant distinction. The decision should be read in a way that is valid rather than

invalid if that is available, as it is here, and thus as equivalent to saying that the

intended temporary nature of the overall loss of stands means that contravention of

the LAP is not a reason to refuse permission.

(iii) The applicant hasn’t demonstrated any factual basis to suggest that the second leg

of the WFD test as interpreted by the CJEU applies in this case or raises any separate

issue warranting discussion by the board, or any factual basis to demonstrate as

unlawful that the inspector’s finding that any lack of detail in the EIA was

understandable.

(iv) The argument that the WFD requires refusal of permission unless any given

permission positively contributes to the restoration of good status to any relevant

water bodies lacks any authority whatsoever and is clearly unworkable.

(v) A reference to the CJEU would be inadmissible in the absence of a factual foundation

for the argued issues, and insofar as the proposed unworkable positive obligation to

promote good water status is concerned would be inappropriate as no authority or

other plausible for such an interpretation of EU law has been shown and no

reasonable or any doubt arises. Such authority as exists firmly rejects that position.

Order

85. For the foregoing reasons, it is ordered that:

(i) the proceedings be dismissed;

(ii) unless any party applies otherwise by written legal submission within seven days

from the date of this judgment, the foregoing order be perfected forthwith thereafter

on the basis of no order as to costs; and

(iii) the matter be listed on Monday 24th February 2025 to confirm the foregoing.