Kavanagh v. An Bord Pleanala: Clarifying EIA Exemptions for Solar Farms under Irish Planning Law

Introduction

The case of Kavanagh v. An Bord Pleanala & Ors ([2020] IEHC 259) addresses crucial questions surrounding the application of Environmental Impact Assessments (EIA) for solar farm developments in Ireland. James Kavanagh, the applicant, challenged the decision of Wicklow County Council to grant planning permission to Highfield Solar Limited for a 59-hectare photovoltaic (PV) solar farm. The primary legal issue centered on whether the proposed development necessitated an EIA under the Planning and Development Regulations 2001, aligned with the EU Environmental Impact Assessment Directive.

Summary of the Judgment

Mr. Justice Brian O’Moore delivered the judgment on May 29, 2020, ruling in favor of An Bord Pleanala and other respondents. The court concluded that the proposed solar farm did not fall within the categories requiring an EIA as stipulated in both the 1985 EIA Directive (as amended) and the Irish Planning and Development Regulations 2001. Consequently, the application for judicial review by Mr. Kavanagh was dismissed.

Analysis

Precedents Cited

The judgment extensively referenced prior cases and EU directives to elucidate the scope of EIA requirements. Notably:

• Commission v. Ireland (Case C-215/06): Highlighted that certain energy projects, like wind farms, do not inherently fall under EIA requirements unless specific ancillary activities (e.g., peat extraction) are involved.
• Comune di Castelbellino (Case C-117/17): Clarified interpretations of paragraph 3(a) of Annex II, distinguishing between different types of energy installations.
• Kraajeveld (Case C-72/95): Emphasized the broad purpose of the EIA Directive but reinforced that only projects listed in Annexes I and II are subject to its requirements.
• Sweetman v. An Bord Pleanála [2020] IEHC 39: Reinforced the interpretation that solar farms do not fall within the EIA Directive's Annexes as applied in Irish law.

Legal Reasoning

The court meticulously analyzed the textual provisions of the EIA Directive and their transposition into Irish law. Central to the reasoning were:

• Directive Scope: The EIA Directive mandates assessments only for projects explicitly listed in its Annexes. Solar farms were scrutinized under both Annex I and Annex II but found not to meet the criteria.
• Interpretation of Annex II, Paragraph 3(a): The court rejected Mr. Kavanagh's argument that this clause should be read disjunctively ("electricity or steam or hot water"), asserting it must be interpreted cumulatively ("electricity and steam and hot water"). This interpretation aligns with industry realities and legislative intent.
• Legislative Intent and Drafting History: The absence of solar farms in the 2014 Directive, despite recognition of their environmental impacts, indicated that they were not intended to be encompassed within the Directive's EIA requirements.
• Consistency with EU Law: The court adhered to the principle that national law must align with EU directives' clear boundaries, avoiding overextension of EIA obligations beyond their defined scope.

Impact

The judgment sets a significant precedent in environmental and planning law within Ireland:

• Clarity on EIA Requirements: Developers of solar farms can proceed without mandatory EIA, provided their projects do not inadvertently trigger ancillary activities that do require assessments.
• Guidance for Future Projects: The ruling offers a clear framework for determining when EIA is necessary, potentially expediting renewable energy projects by reducing regulatory burdens.
• EU Directive Interpretation: Reinforces the importance of adhering strictly to the letter of EU directives in national law, preventing judicial overreach.

Complex Concepts Simplified

Environmental Impact Assessment (EIA)

An EIA is a process used to evaluate the environmental consequences of proposed projects before decisions are made. It ensures that potential adverse effects on the environment are considered and mitigated.

Annexes I and II of the EIA Directive

These annexes enumerate the types of projects that automatically require an EIA (Annex I) or may require one based on certain criteria (Annex II). Projects not listed do not need an EIA under the directive.

Transposition of EU Directives

Transposition refers to the process by which EU directives are incorporated into the national laws of member states. Proper transposition ensures that national law aligns with EU requirements.

Conclusion