The Irish High Court Refers Six Questions to the Court of Justice of the European Union During a Dispute Over A Gas Terminal Development

On 15 February 2019, the Irish High Court decided to refer six questions to the CJEU on the interpretation of the Habitats Directive during a dispute over a gas terminal development. The facts of the case, Friends of the Irish Environment v an Bord Pleanála [2019] IEHC 80 are briefly outlined below.
Following an environmental impact assessment, on 31 March 2008 consent to develop the gas terminal had been granted under the special national statutory regime for Strategic Infrastructure Developments (SIDs). The consent was granted for a period of 10 years “to allow a reasonable period for the completion of this extensive development”. No development took place during the 10 year period. In September 2017 the developer made an application to alter the terms of the development consent to replace the 10 year limitation period placed on the construction phase with a 15 year limitation period. The application was made under s. 146B of the Irish Planning and Development Act 2000, as amended. (Under s. 146B(3)(a) where the Irish Planning Board decides that a requested development consent alteration is immaterial, it may grant the developer permission to alter the development consent.) On 13 July 2018, the Irish Planning Board concluded that in this case the alteration was immaterial, and the developer’s application should be granted. Friends of the Irish Environment challenged this decision before the Irish High Court; and the High Court referred six questions on the application of the requirements of the Habitats Directive to assessments of requests for extensions to development consents to the CJEU. The six questions can be viewed in the annex to the judgment here.