[2025] IEHC 218
THE HIGH COURT
PLANNING & ENVIRONMENT
[H.JR.2024.0000037]
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50, 50A AND 50B OF THE PLANNING AND DEVELOPMENT ACT 2000
BETWEEN
PADDY MASSEY
APPLICANT
AND
AN BORD PLEANÁLA, IRELAND AND THE ATTORNEY GENERAL, MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE
RESPONDENTS
AND
CURNS ENERGY LIMITED
NOTICE PARTY
(No. 3)
JUDGMENT of Humphreys J. delivered on Friday the 11th day of April 2025
2. The request is being made in proceedings concerning a challenge to a planning permission to the notice party for development of a wind farm and associated infrastructure on the Cork/Waterford border. Details are set out at https://www.lyrenacarrigawindfarm.com/. The development is to include 17 wind turbines within two clusters, a substation and a lithium ion battery storage facility co-located with the substation. The project relates to renewable energy infrastructure covered by Article 16(6) of Directive 2018/2001 as amended by Directive 2023/2413. Insofar as concerns an order quashing the permission, this is being refused by the referring court. However a question of interpretation of EU law arises in connection with declaratory relief.
3. Article 3 of Directive 93/43 provides:
"1. A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range.
The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC.
2. Each Member State shall contribute to the creation of Natura 2000 in proportion to the representation within its territory of the natural habitat types and the habitats of species referred to in paragraph 1. To that effect each Member State shall designate, in accordance with Article 4, sites as special areas of conservation taking account of the objectives set out in paragraph 1.
3. Where they consider it necessary, Member States shall endeavour to improve the ecological coherence of Natura 2000 by maintaining, and where appropriate developing, features of the landscape which are of major importance for wild fauna and flora, as referred to in Article 10."
4. Article 6 of Directive 93/43 provides:
"1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in Annex II present on the sites.
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted.
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."
5. Article 7 of the Directive provides:
"Obligations arising under Article 6 (2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4 (4) of Directive 79/409/EEC in respect of areas classified pursuant to Article 4 (1) or similarly recognized under Article 4 (2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC, where the latter date is later."
6. Directive 79/409 was replaced by Directive 2009/147. Articles 3 and 4 of the latter Directive provide:
"Article 3
1. In the light of the requirements referred to in Article 2, Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats for all the species of birds referred to in Article 1.
2. The preservation, maintenance and re-establishment of biotopes and habitats shall include primarily the following measures:
(a) creation of protected areas;
(b) upkeep and management in accordance with the ecological needs of habitats inside and outside the protected zones;
(c) re-establishment of destroyed biotopes;
(d) creation of biotopes.
Article 4
1. The species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat in order to ensure their survival and reproduction in their area of distribution.
In this connection, account shall be taken of:
(a) species in danger of extinction;
(b) species vulnerable to specific changes in their habitat;
(c) species considered rare because of small populations or restricted local distribution;
(d) other species requiring particular attention for reasons of the specific nature of their habitat.
Trends and variations in population levels shall be taken into account as a background for evaluations.
Member States shall classify in particular the most suitable territories in number and size as special protection areas for the conservation of these species in the geographical sea and land area where this Directive applies.
2. Member States shall take similar measures for regularly occurring migratory species not listed in Annex I, bearing in mind their need for protection in the geographical sea and land area where this Directive applies, as regards their breeding, moulting and wintering areas and staging posts along their migration routes. To this end, Member States shall pay particular attention to the protection of wetlands and particularly to wetlands of international importance.
3. Member States shall send the Commission all relevant information so that it may take appropriate initiatives with a view to the coordination necessary to ensure that the areas provided for in paragraphs 1 and 2 form a coherent whole which meets the protection requirements of these species in the geographical sea and land area where this Directive applies.
4. In respect of the protection areas referred to in paragraphs 1 and 2, Member States shall take appropriate steps to avoid pollution or deterioration of habitats or any disturbances affecting the birds, in so far as these would be significant having regard to the objectives of this Article. Outside these protection areas, Member States shall also strive to avoid pollution or deterioration of habitats."
7. Section 37E of the Planning and Development Act 2000 (the 2000 Act) (https://revisedacts.lawreform.ie/eli/2000/act/30/section/37E/revised/en/html#:~:text=37E.,respect%20of%20the%20proposed%20development) allows direct applications to An Bord Pleanála (the board) for development consent for strategic infrastructure development (SID).
8. Blackwater Callows SPA is a site designated for the purposes of Directive 2009/147. It was provided for by the European Communities (Conservation of Wild Birds (Blackwater Callows Special Protection Area 004094)) Regulations 2012 (S.I. No. 191 of 2012) (https://www.irishstatutebook.ie/eli/2012/si/191/made/en/print), which includes the Whooper Swan (Cygnus cygnus) as a qualifying interest.
9. The European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011) (https://www.irishstatutebook.ie/eli/2011/si/477/made/en/print) transposes the Directives referred to above. Article 26 provides:
"Conservation objectives and measures to be undertaken by the Minister
26. (1) The Minister shall exercise his or her functions relating to nature conservation so as to secure compliance with the requirements of the Habitats Directive and the Birds Directive.
(2) The Minister shall establish such particular conservation objectives as he or she, from time to time, considers necessary to achieve the maintenance of the habitat types or species in respect of which a site has been identified as a European Site at favourable conservation status or their restoration to such favourable status.
(3) The Minister may, where he or she considers it would contribute to the achievement of the objective of Article 3(1) of the Habitats Directive, namely to enable the natural habitat types listed in Annex I to that Directive and the habitats of the species listed in Annex II to that Directive to be maintained at or, where appropriate, restored to a favourable conservation status in their natural range, establish the conservation or restoration of such a habitat type or the habitat of such a species as a conservation objective of a site.
(4) The Minister shall, having established conservation objectives under paragraph (2) or (3) or identified under subparagraph (7)(b) one or more additional bird species for inclusion in the conservation objectives of the site, notify the bodies and persons referred to in Regulations 16(6) and 16(7) providing those bodies and persons, within a reasonable period, with a statement of the updated conservation objectives of the site concerned, and shall publish them on the Department's website.
(5) The Minister shall establish the conservation measures which he or she considers necessary, in respect of special areas of conservation designated under Regulation 14 including, if need be, management plans either specifically designed for the sites or integrated into appropriate plans.
(6) The Minister shall establish the administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I to the Habitats Directive and the species in Annex II to that Directive present on the sites including, but not limited to, management agreements under Regulation 24, threat response plans under Regulation 39 and administrative agreements under Regulation 40.
(7) The Minister may, for the purposes of the Birds Directive—
(a) establish conservation measures which he or she from time to time considers necessary, in respect of special protection areas designated under Regulation 18 including, if need be, management plans either specifically designed for the sites or integrated into appropriate plans,
(b) identify additional species referred to in Article 4(1) and 4(2) of the Birds Directive for inclusion in the conservation objectives of the site, and
(c) establish in relation to special protection areas the administrative or contractual measures which he or she considers correspond to the ecological requirements of the species in Annex I to the Birds Directive and of the regularly occurring migratory species not in Annex I to the Birds Directive present on the sites.
(8) In relation to the exercise of his or her functions under this Regulation, the Minister may consult with such persons as he or she considers appropriate."
10. A SID determination letter issued to Innogy Renewables Ireland Limited on 28 May 2020 enabling it to apply directly to the board for permission for a SID development.
11. Relying on that, on 8 January 2021, the notice party, Curns Energy Limited, made an application for development consent under section 37E of the 2000 Act for the wind farm development. The application documentation contained a suite of documents, including, inter alia, an environmental impact assessment report (EIAR), an appropriate assessment (AA) screening report and a Natura impact statement (NIS).
12. The nearest European Site to the development site is the Blackwater River (Cork/Waterford) SAC [002170] located adjacent to the north-eastern boundary of the site. The development is 9.9 km from the Blackwater Callows SPA.
13. In March 2021, the Chief Executive of Waterford City and County Council made a report on the wind farm development under section 37E(4) of the 2000 Act. Similarly, in March 2021, the Chief Executive of Cork Council also made a report on the wind farm development.
14. Submissions were received from six prescribed bodies including Inland Fisheries Ireland, the Development Applications Unit (formerly NPWS) and Irish Water.
15. A total of 679 observations were submitted by members of the public, including the applicant.
16. On 26 January 2022, generic conservation objectives were adopted for Blackwater Callows SPA and other sites.
17. On or about 8 April 2022, the board sought further information from Curns. A response was provided by Curns on 11 October 2022, which included a series of appendices comprising expert reports.
18. Following correspondence from the board, Curns published notices advising of the submission of the further information and the date by which submissions were to be made to the board. Submissions were received from three prescribed bodies and 196 observations were received from members of the public. No further submissions from the planning authorities were received.
19. On 8 May 2023, the board decided that no oral hearing was to be held.
20. Curns was invited to make a submission in response to the observations made by the public in response to the developer's further information. This response was received by the board on 23 June 2023.
21. In August 2023, the board's inspector made her report recommending that planning permission be granted for the wind farm development, subject to conditions.
22. The board met to consider the file on 19 October 2023, and prepared a direction recommending that planning permission be granted.
23. By order dated 8 November 2023, the board granted planning permission for the impugned development.
24. On 24 March 2024, site-specific objectives and conservation measures were put in place for Blackwater Callows SPA.
25. The proceedings were issued on 11 January 2024.
26. In correspondence dated 7 February 2024, it was confirmed that the Minister will consent to a declaration that the Second and or Third and Fourth Respondents failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of Directive 2009/147 and Article 6 of Directive 92/43 and transposing legislation by failing to have in place the necessary site specific conservation objectives and conservation measures in the Blackwater Callows Special Protection Area.
27. The matter was heard on 4 and 5 March 2025 and then listed for further mention on 25 and 31 March 2025 and 7 April 2025.
28. The referring court has found that it can exclude any reasonable possibility that any failure to consider conservation objectives and/or measures in this case would give rise to effects on any European site. Hence the referring court has refused an order quashing the development consent, irrespective of the outcome of the present preliminary reference. However, the referring court requests the CJEU to address the question set out below for the purpose of deciding whether or not to grant declaratory relief to the applicant.
30. The referred question is:
"Does Article 6(3) of Directive 92/43 as applied to Directive 2009/147 by Article 7 of the former Directive have the effect that a determination by a competent authority of a Member State as to whether or not a plan or project not directly connected with or necessary to the management of any site for the purposes of Directive 2009/147 is likely to have a significant effect on any such site, either individually or in combination with other plans or projects, ought to be carried out by reference to conservation objectives and/or measures established for any site concerned and/or in particular for any site which is proposed to be screened out of consideration as one unlikely to be significantly so affected?"
31. The applicant's proposed answer is Yes - the risk of a significant effect "is deemed to be present where it cannot be ruled out, having regard to the best scientific knowledge in the field, that the plan or project might affect the conservation objectives of the site" - the judgment of 9 September 2020, Friends of the Irish Environment Ltd v An Bord Pleanála, C-254/19, ECLI:EU:C:2020:680 paragraphs 50-51 and caselaw cited. The relevant assessment cannot be carried out in the absence of conservation objectives. This is reflected in Article 42 of the European Communities (Birds and Natural Habitats) Regulations 2011.
32. The respondent's proposed answer is No. The absence of conservation objectives having been established for the site concerned is not a jurisdictional bar to the carrying out by a competent authority of an AA screening. AA screening is governed by the first part of the first sentence of Article 6(3) of Directive 92/43. There is no textual basis in Article 6(3) itself or elsewhere in Directive 92/43 for such a jurisdictional bar, nor is there any contextual basis for inferring the existence of such a jurisdictional bar, nor is there is any purpose served by reading in the existence of same. Insofar as AA screening comprises four steps (per Section 3.1 of Commission Notice (2021/C 437/01)), such a jurisdictional bar would needlessly preclude the carrying out of the first three of those steps pursuant to which the requirement for a Stage 2 appropriate assessment can be screened in or out in a given case without reference to the conservation objectives for the site concerned. Such a jurisdictional bar would, for example, unnecessarily deprive the competent authority of competence to exclude at the screening stage plans or projects that would have no appreciable effect on the site concerned. Whether an absence of conservation objectives affects a competent authority's ability to carry out screening necessarily falls to be assessed on a case-by-case basis. Any conclusion that the competent authority's ability to carry out AA screening is affected would have to have an evidential basis. To require a blanket jurisdictional bar goes far beyond the text and purpose of Directive 92/43.
33. The notice party's proposed answer is No, the absence of conservation objectives does not deprive the competent authority of jurisdiction to assess whether a project is likely to have a significant effect on the qualifying interests of the SPA. The taking into account of conservation objectives would, if anything, narrow the scope of any screening for AA - by shifting focus from effects per se to effects by reference to the conservation objectives. Recital 7 of Directive 2009/147 states that "conservation is aimed at the long-term protection and management of natural resources as an integral part of the heritage of the peoples of Europe". Article 1(i) of Directive 92/43 defines "conservation status of a species" as meaning:
"the sum of the influences acting on the species concerned that may affect the long-term distribution and abundance of its populations within the territory referred to in Article 2.
The conservation status will be taken as 'favourable' when:
- population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and
- the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and
- there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis;"
Conservation objectives aim to define favourable conservation status for the purposes of the Directive 92/43. In theory, a plan or project may be considered as likely to have significant effects on an SPA but escape such conclusions when viewed in light of conservation objectives - which take into account matters such as population dynamics, range of species and having a sufficiently large habitat. Screening for AA, which does not take into account conservation objectives, would, if anything, involve a more enhanced/expansive scope for screening, which is consistent with the fact that screening involves a low threshold. This is further fortified by the fact that a competent authority is mandated to adopt a precautionary approach to screening for AA. On the facts of this case, the competent authority found there were no effects and so it logically follows that there is no possibility/likelihood of significant effects to the qualifying interests, regardless of the conservation objectives.
34. The State's proposed answer is No. Conservation objectives may be relevant to appropriate assessment screening but are not a jurisdictional requirement or bar. There is no textual basis in Article 6(3) from which a jurisdictional bar could be inferred, and neither the context nor the purpose of Article 6(3) requires or supports such an inference. If a jurisdictional bar existed, it would constitute a complete prohibition on the granting of consent with respect to any plan or project, if there were a single site anywhere in the country that lacked conservation objectives. There could be no justification for implying such an extreme obligation into Article 6(3), where it will frequently be possible to screen out a site without reference to conservation objectives. This would be to adopt an overly formalistic position, such as Advocate General Sharpston warned against in her opinion delivered on 22 November in Sweetman v An Bord Pleanála, C-258/11, ECLI:EU:C:2012:743 at [48]. Any circumstance in which a lack of conservation objectives might impact on a competent authority's ability to carry out the screening exercise will necessarily arise only on a case-by-case assessment and does not equate to or require a jurisdictional bar.
35. The referring court's proposed answer is No. The process of screening for appropriate assessment would be unworkable if the competent authority was required to consider conservation objectives and/or measures of any site being screened out. The vast majority of sites can be screened out due to distance and the lack of a plausible pathway. There is no textual link in the Directive between screening and objectives or measures.
36. The relevance of the question is that if the answer is Yes, the applicant will be given a declaration that the screening exercise here ought to have been carried out by reference to the conservation objectives and/or measures of the relevant SPA.
37. Given the significant overlap with C-27/25, Knocknamona, and the fact that similar considerations for priority apply in the present case including the impact on the present and other applications for renewable energy infrastructure, the referring court respectfully requests an Order affording the present reference priority over other cases pursuant to Rule 53(3) of the Rules of Procedure and/or an Order that this reference and Case C-27/25, Knocknamona be joined pursuant to Rule 54(1) and (2) of the Rules of Procedure.
38. For the foregoing reasons, it is ordered that:
(i) the question set out in this judgment be referred to the CJEU pursuant to Article 267 TFEU;
(iii) the applicant has requested the referring court to inform the CJEU that he does not wish his name to be anonymised for the purposes of the proceedings in the CJEU and therefore that he can be named by the CJEU including by way of the publication of materials or of the judgment of that court; and
(iv) the substantive determination of the proceedings be adjourned pending the judgment of the CJEU, without prejudice to the determination of any appropriate procedural or interlocutory issues in the meantime.