Tommy Broughan (Dublin North East, Labour)
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Question 517: To ask the Minister for Transport the position regarding the Galway city bypass; if the Galway city bypass is currently the subject of legal proceedings between his Department and the Department of the Environment, Heritage and Local Government; the estimated timeframe of this legal action; the future of the road project; and if he will make a statement on the matter. [1633/10]

Noel Dempsey (Meath West, Fianna Fail)
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As Minister for Transport, I have responsibility for overall policy and funding in relation to the national roads programme element of Transport 21. The construction, improvement and maintenance of individual national roads, is a matter for the National Roads Authority (NRA) under the Roads Acts 1993 to 2007 in conjunction with the local authorities concerned.

The proposal for the construction of the Galway City Outer Bypass was approved in part by An Bord Pleanála (ABP) in November, 2008. Part of the scheme involving a section of non-national road to the west of Galway City linking the N59 Moycullen Road to the R336 Spiddal Road was rejected by the Board on environmental grounds.

Two judicial review proceedings were taken challenging the ABP decision to approve part of the project. The grounds cited included claims that ABP had erred in law in giving its approval and had misinterpreted and incorrectly applied provisions of the EU Habitats Directive and the implementing Irish legislation in reaching its decision.

The European Commission has expressed serious concerns in relation to what it believes is a failure to comply with the requirement of the Habitats Directive. Based on the advice of the Attorney General, the State shares those concerns and contends that ABP has misinterpreted the Habitats Directive.

The correct interpretation of the Habitats Directive is critical not only for the purpose of this project but for all future projects. The Attorney General has therefore advised that it is essential to ensure that the Habitats Directive is being properly interpreted by ABP as otherwise this could create very serious problems, including delays, for future projects. For that reason the State supports an early referral of one of the cases, which raises this issue of interpretation of European law, to the European Court of Justice as the best option for obtaining legal certainty on the interpretation issue. Clarity on interpretation will avoid future expensive challenges to other projects on this ground.

High Court judgments were delivered on the 9 October 2009, in respect of both proceedings. The Court declined to quash the Board's approval and ruled against the applicants on all points.

Subsequent to the High Court ruling, Counsel for the State and for one of the notice parties sought leave to appeal the judgement to the Supreme Court. Leave to appeal was granted on 6 November 2009 on the basis that the issue involved a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. A date for the appeal hearing is now awaited. An early referral of the case to the European Court of Justice will be sought in order to ensure clarity of the law in respect of the application of the Habitats Directive.

There are no legal proceedings between me and the Minister for Environment, Heritage and Local Government nor is there any dispute or difference between us in relation to this matter. The Minister for the Environment Heritage and Local Government and I are in full agreement that the proper course of action in this case is to obtain clarity on the application of the Habitats Directive as it applies to this and all other road construction projects and to ensure full compliance with European Union and national law.

I am fully committed to the implementation of this project. However, it can only be implemented if it is compliant with national and EU law. As there is a challenge to the validity of the consent the NRA was advised by my Department in a letter dated the 2 July 2009, that it would be inappropriate to expend further Exchequer monies on this project until the challenge is resolved.