High Court quashes permission due to failure to comply with Water Framework Directive

Sweetman v An Bord Pleanala

Executive Summary

Peter Sweetman successfully challenged the Board's decision to grant planning permission for abstraction, on WFD grounds. The failure to have assigned a Water Framework Directive (WFD) status to the relevant water body meant the Board could not carry out a valid assessment and made it impossible for the Board to evaluate whether the proposed works were compliant with Article 4(1) of the WFD.

Facts

Bradán Beo (a licensed fish farm operator) sought permission to abstract a maximum of 4,680m³ of freshwater per week from Loch an Mhuilinn Gorumna Island, in Galway (the Lake), a privately owned non-tidal inland lake (characterised as a body of surface water under the WFD) for up to 22 weeks annually from May-September. The development consisted of the abstraction of freshwater from the Lake, along with associated works, including a temporary pipe link to the lake.

The abstraction would take place 4 hours a day for a maximum of 4 days a week. The abstracted freshwater would be used to bathe diseased salmon to rid them of Amoebic Gill Disease and sea lice and would be pumped from the lake via a pipeline to a proposed headwall at the coast road where another pipeline would carry the fresh water to tarpaulins which would be towed by boat to the sites where the fish would be treated. Galway County Council had refused permission for the proposed development but An Bord Pleanála allowed the company’s appeal in July 2018.

Mr Sweetman's challenge

Mr Sweetman raised a variety of arguments, including (i) the Board's failure to conduct an AA and alleged significant effects on Connemara Bog SAC and (ii) that no valid EIA was ever carried out for the four fish farms that this development was intended to service. These were not successful. The one ground that he was successful on was compliance with the WFD, specifically that the Board had breached its obligation under Article 4(1) to ensure non-deterioration and the achievement of good surface water status when granting approval for a development affecting a surface water body.

Why was he successful on WFD grounds? 

The Lake had not been granted a status by the EPA. This was required by the WFD in order to determine where it stood in terms of key WFD concepts of deterioration and good surface water status. This was the big difficulty in the Board's case – since the Lake hadn't been assigned a status, it was impossible for the Board to evaluate whether the proposed works were compliant with Article 4(1) of the WFD and what impact the development would actually have on the status of this surface water body. The Board was in difficulty here – it could not evaluate the proposed abstraction from the Lake by reference to WFD criteria, because the EPA had failed to assess its status. Mr Sweetman argued that the Board acted ultra vires in conducting a risk characterisation of a water body when that classification could only be made by the EPA (the competent authority for these assessments). He argued successfully, that the reliance by the Inspector and the Board on some type of proxy evaluation that referred to concepts said to stem from the WFD were not sufficient to establish compliance with the WFD.

Interestingly, the Board's Inspector had noted that the WFD status of the Lake was "not known" and in his conclusions, noted that the lake ecology would “probably be at risk” due to water abstraction on one classification methodology and “probably not at risk” using a different classification methodology. The Court was convinced by Mr Sweetman's argument that the Board ultimately had no information before it to tell if the water abstraction would cause a deterioration of the status of a body of surface water or otherwise jeopardise the attainment of good surface water status as required under the WFD. This was the fatal flaw in the Board's case. 
 
Weser

The Court considered the application of the Weser judgment, as the leading case on WFD and the interpretation of Article 4.  In that case, the CJEU concluded that Article 4 meant that Member States were required (unless a derogation was 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 WFD. 

On the concept of "deterioration of the status" of a body of surface water, it concluded 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 WFD, 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. Hyland J noted the significance of this – deterioration is not an abstract concept to be measured before and after the proposed development, but rather it is about the precise the impact of an activity on the assigned status of a surface water body. 

Key point in terms of Article 4

A Member State is not at large in deciding in any given case whether a project impacting upon a surface water body will cause a deterioration of its status or jeopardise the attainment of good surface water status/ecological potential/water chemical status. They must carry out the analysis required by Article 4 of the WFD and each of the specific steps mandated by this. The requirements identified by Article 4 i.e. whether the proposal affects the good surface water status and, separately, whether it causes a deterioration of the status of the body of water, may only be answered if the previous steps required by the WFD have already been carried out in respect of the surface water body in question. It is not possible to decide whether a proposed project will jeopardise the attainment of good surface water status or good ecological potential and good chemical status and/or will cause deterioration to the status of a surface water body unless the status of that water body has been determined in accordance with the detailed criteria set out in the annexes. 

There were a number of reports submitted to the Board (including hydrological feasibility assessments, a report on water abstraction and surveys on trout). These were not the same methodologies as required by the WFD. What this meant was that the Inspector was forced to carry out "some kind of proxy evaluation which makes reference to the WFD but does not in fact employ the architecture of the WFD. In truth, the Inspector is simply reciting the conclusions of the Ryan Hanley report without carrying out any independent evaluation of the conclusions of those reports by reference to the criteria set out in the WFD." In the absence of a status evaluation by the EPA, the Inspector simply was not in a position to consider compliance with the WFD. 

Conclusion

The Board was obliged to ensure that the test articulated by Article 4(1)(a) was fully applied in individual authorisation decisions using the detailed and complex framework of the WFD. Where that fails to happen, any decision made by the Board will be vulnerable to judicial review, as occurred in this case. Where the EPA has not carried out or provided an assessment of a water body's status, it is not sufficient for the Board to apply an alternative (or proxy) assessment. This judgment makes clear that reliance on some type of proxy evaluation, does not constitute compliance with the WFD. It is not enough for the Board to refer to concepts from the WFD. The specific steps set out in the architecture of the WFD must be identified and followed. 

For more information please contact Alison Fanagan, Consultant or Mark Thuillier, Associate or any member of the Environmental & Planning team.

Date published: 28 January 2021