M6 - Galway City Ring Road [planning decision pending]

antoobrien

Sponge Bob wrote: »

Not really. The "otiose" reference was to whatever sweetman advanced in argument. You are misquoting the Good Judge.

Indeed

In all the circumstances, I am not at all persuaded that the Board, in its decision, has misinterpreted the Directive and the Regulations. On the contrary, its approach accords with the clear language of the legislation. Appeals for a purposive or teleological interpretation in the present case are misplaced. Of course, one would wish to interpret both the European and domestic legislation so as to give effect to the intention of the framers. However, no approach to interpretation authorises “guess work”, nor does it authorise a court to engage in legislating. This is not a case where it is sought to give a broad or even expanded interpretation to a particular phrase so as to cater for a particular set of facts, when doing so would clearly have been the intention of those responsible for the legislation. Neither, is it a question of interpreting the words of legislation in a broad or expansive manner so that lacunae can be filled. Instead, what is sought is that the Directive and the Regulations be read as if the reference to integrity of the site were deleted or that the phrase was entirely otiose. What is sought is not a “reading in” or a “reading up”, but rather a “reading out” and the taking of a red pencil to the clear words of both the Directive and the Regulations. I feel quite unable to engage in such an exercise.

Predalien

antoobrien wrote: »

It should be noted that the issue at hand does not just affect Ireland, but the wider EU as it is claimed that it has not been decided what bodies can interpret the EU Habitiats.

Thanks for your reply, is it not more accurate that the argument is that the competent authorities have not interpreted the Directive correctly in their assessment that the integrity of the site will not be adversely impacted? Will the court provide a definition for integrity? By literal interpretation integrity means whole, but that would surely be too narrow a definition for the directive considering how restrictive it may be.

Sponge Bob

And of course if an old idea were resurrected to build a bridge across in Collinamuck it would divide the same sac in half...whereas this clips the outskirts

One affects "integrity" the other locally affects the EDGE of a large site.

If sweetmans most peculiar ecologic were followed to its inevitable conclusion you couldn't even fart in Menlo any more. However he did succeed in pointing to the supremes that a menu of applicable tests should be written for supremes and high courts by the ECJ and then the Supremes can apply that special menu at home...or anywhere else.

Just like a district judge can state a case to the high court where interpretation is important.

antoobrien

Predalien wrote: »

Thanks for your reply, is it not more accurate that the argument is that the competent authorities have not interpreted the Directive correctly in their assessment that the integrity of the site will not be adversely impacted?

No, the High court have already ruled otherwise. I know it's a long read, but it's worth taking a look at the judgement

Predalien wrote: »

Will the court provide a definition for integrity? By literal interpretation integrity means whole, but that would surely be too narrow a definition for the directive considering how restrictive it may be.

The questions referred to the ECJ are:

1. What are the criteria in law to be applied by a competent authority to an assessment of the likelihood of a plan or project the subject of Article 6(3) of the Habitats Directive1, having "an adverse effect on the integrity of the site"?
2. Does the application of the precautionary principle have as its consequence that such a plan or project cannot be authorised if it would result in the permanent non-renewable loss of the whole or any part of the habitat in question?
3. What is the relationship, if any, between Article 6(4) and the making of the decision under Article 6(3) that the plan or project will not adversely affect the integrity of the site?

So to answer your questions, question (1) above should deal with the definition of integrity of the site.

Your second question appears to be dealt with by question (2), which it appears has some precedent, in that the authorities building the A49 in Germany were allowed to introduce certain compensatory measures to offset the impact on a small area of the SAC in question (this SAC is about 10% of the size of the Lough Corrib SAC, so in theory it should be applicable to the road).

spacetweek

Having said that I'm surprised that an environmental protection law can be overridden so easily by simply saying that the project is strategic. According to that logic you could build anything anywhere so long as it was strategic!

antoobrien

spacetweek wrote: »

Having said that I'm surprised that an environmental protection law can be overridden so easily by simply saying that the project is strategic. According to that logic you could build anything anywhere so long as it was strategic!

Not just strategic, there are levels of public importance required.

ARtcile 6.4

Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.

In other words, it has to be for public heatlh and safety e.g. building a "green" power plant to replace a coal plant

Sponge Bob

antoobrien wrote: »

In other words, it has to be for public heatlh and safety e.g. building a "green" power plant to replace a coal plant

Or not having sick people die in ambulances in Galway Traffic ...seeing as the only Regional Hospital in the West, serving the region from Donegal to Limerick, is on the wrong side of Galway.

Predalien

antoobrien wrote: »

Not just strategic, there are levels of public importance required.

ARtcile 6.4


In other words, it has to be for public heatlh and safety e.g. building a "green" power plant to replace a coal plant

And certainly relieving Galway's chronic congestion would improve air quality in the city and thus improve public health.

Iwannahurl

Sponge Bob wrote: »

Not really. The "otiose" reference was to whatever sweetman advanced in argument. You are misquoting the Good Judge.

Perhaps these are the kinds of argument that make lawyers rich!

Mr. Justice Birmingham (a former Fine Gael TD who lost his seat in 1989, IIRC) said that what was being sought was an "otiose" interpretation of a particular piece of the text in question. He felt "unable to engage in such an exercise" or, as they probably don't say in lofty legal circles, he didn't want to go there. The Supreme Court may or may not have wanted to go there, but where they did go was to the ECJ.

GalwayMagpie

How long is this expected to do on for?

When will they make a judgement? (correct term?)

I guessing they will probably deliberate for a few weeks first.

Iwannahurl

spacetweek wrote: »

Having said that I'm surprised that an environmental protection law can be overridden so easily by simply saying that the project is strategic. According to that logic you could build anything anywhere so long as it was strategic!

Sponge Bob wrote: »

Or not having sick people die in ambulances in Galway Traffic ...seeing as the only Regional Hospital in the West, serving the region from Donegal to Limerick, is on the wrong side of Galway.

Or labelling a proposed development comprising a four-star hotel, apartments, retail units, a bus station and a train platform or two "strategic infrastructure" in order to dodge local democratic scrutiny...

Irish and Proud

Predalien wrote: »

antoobrien wrote: »

Not just strategic, there are levels of public importance required.

ARtcile 6.4


In other words, it has to be for public heatlh and safety e.g. building a "green" power plant to replace a coal plant

And certainly relieving Galway's chronic congestion would improve air quality in the city and thus improve public health.

Add into the mix, road safety - how could it be safe to have huge volumes of traffic travelling through Galway and intermingling with cyclists/pedestrians. You just can't simply dump motorway traffic into a city - motorways should continue round/past their destination cities.

antoobrien

Iwannahurl wrote: »

Perhaps these are the kinds of argument that make lawyers rich!

Mr. Justice Birmingham (a former Fine Gael TD who lost his seat in 1989, IIRC) said that what was being sought was an "otiose" interpretation of a particular piece of the text in question. He felt "unable to engage in such an exercise" or, as they probably don't say in lofty legal circles, he didn't want to go there.

He didn't want to "go there" because he knew that he would be exceeding his powers. Also from the quoted text:

However, no approach to interpretation authorises “guess work”, nor does it authorise a court to engage in legislating.

Iwannahurl wrote: »

The Supreme Court may or may not have wanted to go there, but where they did go was to the ECJ.

In going to the ECJ, the Supreme court have asked for the rules that are not stated, which the high court ruled that shouty inferred from text that isn't there.

Iwannahurl

The point is that, after Birmingham declined to quash the ABP decision, both the State and Peter Sweetman sought leave to appeal to the Supreme Court.

Leave to appeal was granted some time later, on the grounds that there were critical points of law to be addressed with regard to interpretation of the Habitats Directive.

Sponge Bob

Iwannahurl wrote: »

The point is that, after Birmingham declined to quash the ABP decision, both the State and Peter Sweetman sought leave to appeal to the Supreme Court.

Birmingham(sic) UPHELD the ABP decision. He was given no valid grounds on which to quash it.

The court case brought by sweetman was a load of tendentious nonsense and nobody has ever shown otherwise. A failed green politician appealed to the Supreme court...not the attorney general on their own initiative.

Sweetman was objecting to the New Ross Bypass around the same time. As the judge said to him on that occasion.

I conclude that the grounds raised are insubstantial and therefore I refuse leave to apply for judicial review.

That of course would describe most of sweetmans flummery. He was in court another time with an argument to the court that the court was the wrong kind of court and that he had a right to a different kind of court.

The country does not have any money to indulge this serial ecoidiocy any more.

Iwannahurl

Sponge Bob wrote: »

Birmingham(sic) UPHELD the ABP decision. He was given no valid grounds on which to quash it.

Birmingham in his own words: "on the substantive point, the challenge fails and accordingly, I decline to quash the decision." (Sic)

Birmingham's judgment was issued in 2009, so fulminating about that case is a bit retro.

Moving on a bit, after the State and Peter Sweetman were granted leave to appeal to the Supreme Court (concerning points of law of major public importance, interpretation of the Habitats Directive etc) the Supreme Court subsequently referred these very significant matters to the ECJ, where the case now rests.

These days it seems that the State is concerned about the possibility of "injunction measures" by the European Commission on matters relating to the Habitats Directive. The turf-cutting issue is a case in point.

http://www.rte.ie/news/2011/1122/bogs.html

Sponge Bob

You forgot to quote this bit of his judgement

The question in this case is not how or why the Board came to the decision that it did. In truth how they arrived at their conclusion must be obvious to any informed observer and suggestions to the contrary can really only be advanced by those who choose not to be informed.

Thankfully serially vexatious litigants such as sweetman can be slapped for costs since Gormley himself signed certain parts of the Planning And Development act 2010 into law in September 2010. The taxpayer will be most relieved.

Iwannahurl

Sponge Bob wrote: »

You forgot to quote this bit of his judgement

The taxpayer will be most relieved.

That's so 2009.

Still, has to make you wonder about the suitability for high office of people like Susan Denham, Adrian Hardiman, John Murray, John MacMenamin and Frank Clarke...

The Irish taxpayer, whoever he is at this stage, will take relief wherever it can be found I suppose.

Irish and Proud

Sponge Bob wrote: »

You forgot to quote this bit of his judgement

The question in this case is not how or why the Board came to the decision that it did. In truth how they arrived at their conclusion must be obvious to any informed observer and suggestions to the contrary can really only be advanced by those who choose not to be informed.

Thankfully serially vexatious litigants such as sweetman can be slapped for costs since Gormley himself signed certain parts of the Planning And Development act 2010 into law in September 2010. The taxpayer will be most relieved.

It's about time there was such a law!

Sponge Bob

Irish and Proud wrote: »

It's about time there was such a law!

Sadly the ecoloonies benefit from a higher threshhold in law to their being declared vexatious.....despite the change 2 years back.

GalwayMagpie

http://edition.pagesuite-professional.co.uk/launch.aspx?referral=other&refresh=Zp31f0K74Br1&PBID=a2fc81f2-0ccf-4dbf-aca1-00bedf4bde35&skip=

The Galway Advertiser (online edition) are reporting that the UK and the Greeks backup up An Bord Pleanala and said they acted correctly.
It would appear that Sean Kyne is now a little optimistic and reckons that submission could swing it in our favor

antoobrien

GalwayMagpie wrote: »

How long is this expected to do on for?

When will they make a judgement? (correct term?)

I guessing they will probably deliberate for a few weeks first.

No date has been announced but it's expected to take 6 months or so.

GalwayMagpie wrote: »

http://edition.pagesuite-professional.co.uk/launch.aspx?referral=other&refresh=Zp31f0K74Br1&PBID=a2fc81f2-0ccf-4dbf-aca1-00bedf4bde35&skip=

The full text of the article is available on the advertiser website, without having to use the page reader. Here's the first few paragraphs:

There were hopeful signs for the future of the Galway City Outer Bypass at a European Court of Justice oral hearing yesterday after support was shown for An Bord Pleanála’s decision to grant permission for the first half of the project.

Giving the optimistic prognosis, Galway West Fine Gael Deputy Seán Kyne explained that both the UK and Greek governments made presentations during the hearing held in Luxembourg which stated that the planning authority had “acted correctly in interpreting the various articles of the Habitats Directives”.

An Bord Pleanála had granted the permission, however while subject to a legal challenge the Supreme Court sought guidance on a point of EU law. The hearing was held to examine what criteria an authority needs to apply when determining whether a planning project will have an adverse effect on the integrity of an area such as a national habitat area or a special area of conservation. The hearing also examined whether a project can be authorised if it will affect the integrity wholly or partially of such environmentally sensitive and protected areas.

Sponge Bob

Reasoned Opinion by an Advocate General due in the next fortnight. While not a judgement as such it is strongly indicative of what the judgement will be.

spacetweek

Sponge - I am thoroughly confused by your sig....

Sponge Bob

spacetweek wrote: »

Sponge - I am thoroughly confused by your sig....

The Cavan National Congress

Iwannahurl

Sponge Bob wrote: »

Reasoned Opinion by an Advocate General due in the next fortnight. While not a judgement as such it is strongly indicative of what the judgement will be.

An Advocate General of the European Court of Justice, Eleanor Sharpston QC, has issued an opinion on the points of EU law referred to the ECJ by the Irish Supreme Court.

Such opinions are not binding, but it is reported that they are influential and are followed in a majority of cases.

The story is on the front page of the Galway City Tribune (Nov 23), but the Galway News website only has this brief piece:

EUROPEAN COURT UPHOLDS VIEW OF OBJECTORS TO CITY BYPASS

The Advocate General of the European Court of Justice has upheld the view of objectors to the outer city bypass.

The judge advocat has recommended that in relation to the conservation of natural habitats and of wild fauna and flora 'an effect which is permanent or long lasting must be regarded as an adverse one'.

Campaigner Peter Sweetman took the case on arguing that a previous decision to grant planning for the bypass was invalid as it breached the EU habitats directive.

The Justice Advocate General working on the case has today delivered a judgement, to assist the judges who are presiding over the case.

The final outcome on the case is expected in a few months time.

Giving her opinion, AG Sharpston emphasises the integrity of a site, whether potential adverse effects are permanent or long-lasting, and the application of the precautionary principle:

[W]here ... a plan or project is ‘likely to have a significant effect’ on [a] site ... there must be an appropriate assessment of the implications for the site. It is only where, following that assessment, the competent national authorities have ascertained that the plan or project will not ‘adversely affect the integrity of the site’ that they may agree to it.

...

In order to establish whether a plan or project to which Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora applies has an adverse effect on the integrity of a site, it is necessary to determine whether that plan or project will have a negative effect on the constitutive elements of the site concerned, having regard to the reasons for which the site was designated and their associated conservation objectives. An effect which is permanent or long lasting must be regarded as an adverse one. In reaching such a determination, the precautionary principle will apply.

The City Tribune report includes a quote from Peter Sweetman, who said that the Advocate General's opinion showed that opponents of the project had been "100% right from the beginning".

Sweetman and his supporters may feel vindicated by the Advocate General's opinion, but I think it's a bit previous to assume it's the end of this saga. The ECJ has yet to issue its judgment, after which the case will presumably revert to the Irish Supreme Court. Also, proponents of the GCOB, including Sean Kyne TD, want to see the IROPI process being invoked:

The Minister for the Environment may, notwithstanding a negative assessment and where that Minister is satisfied that there are no alternative solutions, decide to agree to the proposed road development where the proposed road development has to be carried out for imperative reasons of overriding public interest.

.

spacetweek

In this case, IROPI is easily provable.

Sponge Bob

Sweetman won something to do with article 6(3) versus Regulation 30 ....whatever that means .:)

The AG is prepared to consider slicing and dicing a SAC. Most of our SACs are a mix of habitats and ecowhatnots. Something that affects the Lake ( it is a "Lough Corrib SAC" innit ) would go to the overall integrity of the site but in this case a supplementary ecosystem accounting for 1% of the SAC is to lose 1% of ITS extent.... or 0.01% of the Total. But these are supplementary not primary ecosystems.

Anyway read points 56 and 83 The EIS did note that Limestone pavement would be affected. Adding more limestone pavement to the SAC, particularly at the northern end, is simple. Make it so and we are at the end of listening to ecomentalists howling about the subject.

56 It follows that the constitutive characteristics of the site that will be relevant are those in respect of which the site was designated and their associated conservation objectives. Thus, in determining whether he integrity of the site is affected, the essential question the decision-maker must ask is ‘why was this particular site designated and what are its conservation objectives?’. In the present case, the designation was made, at least in part, because of the presence of limestone pavement on the site – a natural resource in danger of disappearance that, once destroyed, cannot be replaced and which it is therefore essential to conserve.

83 In order to establish whether a plan or project to which Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora applies has an adverse effect on the integrity of a site, it is necessary to determine whether that plan or project will have a negative effect on the constitutive elements of the site concerned, having regard to the reasons for which the site was designated and their associated conservation objectives. An effect which is permanent or long lasting must be regarded as an adverse one. In reaching such a determination, the precautionary principle will apply.

I'd say this latest kerfuffle of Sweetmans is near its end, thankfully.

galwayrush

How does the likes of Sweetman afford this ?, or does the taxpayer pick up the tab for his folly?

Sponge Bob

The Taxpayer pays, of course. Aarhus convention and Directive 2003/35/EC 'public participation' . The taxpayer has already paid for excruciatingly expensive environmental scoping and assessment studies before the objectors show up at hearings and in the courts.

Consider it a green tax if you will.