The recent dismissal by the High Court (Court) of a judicial review of the N2 Slane Bypass scheme highlights a rising feature of planning litigation: challenges based on alleged deficiencies in a competent authority’s environmental expertise.
Since amendments to the EIA Directive (under Directive 2014/52/EU) objectors have increasingly relied on the requirement that competent authorities have, or have access to, sufficient expertise to examine an Environmental Impact Assessment Report (EIAR) submitted by an applicant for consent/approval. In the Slane Bypass challenge, this obligation was framed as a defining element of the EIA process itself, which is an argument we see arising in complex or environmentally sensitive developments.
Slane Bypass decision
The applicant sought to undermine the decision by questioning the expertise of An Coimisiún Pleanála (Commission) to independently examine the environmental material submitted to it in the application for approval.
While the Court accepted that the obligation to have, or have access to, sufficient expertise under the amended EIA Directive is legally binding, the challenge failed at a fundamental level. The Court held that the applicant had not demonstrated, beyond bare assertions, that the Commission in fact lacked the requisite expertise. While the applicant’s assertions carried “some weight”, without evidence, they were insufficient to discharge the substantial burden of proof which rests on the applicant. The Court emphasised that where an alleged error turns on an expert opinion, it must be substantiated by expert evidence, which the applicant did not produce. The Court had particular regard to the fact that the applicant did not challenge the methodology or substance of the assessments contained in the EIAR, nor did he dispute the expertise informing those assessments.
Ultimately, the applicant had not demonstrated how this allegation of a lack of expertise undermined the EIA carried out by the Commission.
While the Court expressed “serious doubts” as to whether the Commission had the necessary expertise to address certain issues raised by the applicant, the applicant had not established, on an evidential basis, the alleged lack of expertise on the part of the Commission.
For developers, the Court’s reasoning is particularly important. The judgment reaffirms that a statutory decision maker is presumed to be competent to perform the functions conferred on it by statute.
From a development perspective, this decision offers some reassurance. It confirms that the courts will not readily entertain challenges to planning consents or approvals based on a generalised unease about an alleged lack of institutional competence, particularly where the decision maker is a specialist planning authority with long established experience of major infrastructure and strategic development.
However, this case is unlikely to be the end of the road for competency-based challenges. Similar challenges will likely arise in the future, perhaps backed by expert evidence. Developers should ensure that their applications for consent/approval are accompanied by a well-structured EIAR, a clear and defensible assessment of alternatives, and a level of technical detail that anticipates scrutiny.
Seen in this light, the Slane Bypass decision reflects a broader reality of modern planning litigation. While “expertise” challenges are increasingly deployed, their success depends on evidence capable of displacing the strong presumption of validity and competence that attaches to decisions of specialist planning authorities. For developers navigating complex consenting regimes, that presumption remains a critical pillar of legal certainty.
Link to the full judgment here.
If you have a query regarding this article, please contact a member of our Environment & Planning team or your usual William Fry contact.
Contributed by Emma-Louise Nolan
