Following a European Court of Justice (CJEU) ruling* which overturned established practice in Ireland and across Europe, Cork City Council is to undertake a new environmental screening of the Morrison’s Island Public Realm & Flood Defence Project.
The original environmental screening report for the Morrison’s Island project was completed a month before the CJEU decision and at the time of signing was in full compliance with all existing and established processes and procedures. However, as the CJEU decision was a clarification of its interpretation of the requirements of an EU directive, the decision has retrospective effect. It imposes a new requirement upon Cork City Council that could not have been foreseen a month previous.
Due to this new requirement to undertake a new environmental screening process (termed ‘appropriate assessment’ (AA)) , Cork City Council is not proceeding with the Part 8 planning process which was the subject of a judicial review.
The new AA screening will be completed as soon as possible. Upon completion of the AA process, the Council will immediately submit the Morrison’s Island project to An Bord Pleánala (ABP) for planning permission through the Part 10 planning procedure.
Points to Note:
This new AA Screening has not been undertaken due to a flaw or error in either the Part 8 documentation or the processes undertaken which at the time followed the established processes of many years. The CJEU decision in effect overturned established practice both in Ireland and across Europe.
It is also important to note that no changes to the project design or scope are required or are being proposed.
Lord Mayor, Cllr Mick Finn said: “The decision changes the planning avenue for the Morrisons Island public realm and flood defence plans from a Part 8 process which is handled by Cork City Council to a Part 10 process handled by An Bord Pleanála. The council’s plans, already revised significantly as part of the Part 8 process to accommodate public consultations, will now be submitted to ABP which will afford members of the public a chance to make further submissions on the project. ABP will adjudicate on these submissions in a completely new process.”
Deputy Chief Executive, Ruth Buckley, said: “Cork City Council remains fully committed to the delivery of the full Morrisons Island project. This project is vital if we are to mitigate flood risk for Cork city traders and residents who, less than a decade ago, suffered €130 million of damage by flooding. While the impact of this European Court ruling will result in delay, it is anticipated that by acting quickly the City Council will minimise delays to the project delivery timeframe”.
BACKGROUND:
In March 2018, Cork City Council undertook an AA analysis and screening for the Morrison’s Island Public Realm and Flood Defence Project. This screening indicated that the potential for the project to have harmful effects on the Harbour Special Protection Areas (SPAs) and SACs (Special Area of Conservation) was minimal.
A Nature Impact Statement (NIS) was not considered necessary as under established practice (supported by extensive Irish case law and case law in other jurisdictions), the mitigation measures necessary to offset these potentially minimal harmful effects were instead factored into the project’s construction plan.
However, a month later in April, in an unrelated wind farm case, the CJEU issued a declaratory judgment stating that if there is any impact or potential impact, no matter how small or insignificant, then an NIS must be carried out. As this was a declaratory judgement, clarifying a point of law, it is retrospective and must therefore be applied to existing decisions and future decisions regarding AA screenings.
CJEU
*The Court of Justice of the European Union(CJEU) Case which has led to this outcome is case number C- 323/17 - People Over Wind, Peter Sweetman v Coillte Teoranta.
