Introduction

The case of Power & Anor v An Bord Pleanála & Ors (Approved) ([2024] IEHC 108) adjudicated by the High Court of Ireland on February 28, 2024, centers on the legal challenges posed by environmental assessments related to windfarm developments. The Applicants, Moya Power and Wild Ireland Defence CLG, contested the granting of planning permission by An Bord Pleanála (“the Board”) to Knocknamona Windfarm Limited (“KWFL”) for modifying existing windfarm structures. The key issues revolved around the adequacy of the Environmental Impact Assessment (EIA) conducted for the proposed amendments and the public participation in the planning process.

Summary of the Judgment

The High Court dismissed the Applicants' primary grounds of challenge. Ground 1, alleging inadequacy in the EIA process, was rejected as the Board correctly identified the project as a “change or extension” under Annex II §13(a) of the EIA Directive. The Court affirmed that the cumulative assessment conducted was sufficient in evaluating the environmental impacts. Ground 2, concerning public participation, was also dismissed due to lack of evidence showing undue burden. Furthermore, Grounds 5 & 6, related to Appropriate Assessment (AA) and conservation objectives, were dismissed following the State's concession that such objectives were not adequately established. Ultimately, the Court upheld the legality of the Board’s decision, affirming the proper identification and assessment of the windfarm’s proposed amendments.

Analysis

Precedents Cited

The judgment extensively referenced key EU and Irish cases to substantiate its findings:

• FitzPatrick v An Bord Pleanála [2019] IEHC 23: Established that only the specific project seeking development consent undergoes EIA, not overarching masterplans.
• Bund Naturschutz in Bayern v Freistaat Bayern Case C‑396/92: Emphasized that modifications to existing projects under the EIA Directive still require appropriate assessments.
• Commission v Spain 2004 Case C‑227/01: Reinforced the necessity of EIA for projects exceeding defined thresholds, regardless of modifications.
• Derrybrien Windfarm Case [2008] C‑215/06: Clarified that amendments increasing windfarm capacity fall within Annex II §13(a), necessitating EIA.
• Ó Grianna & Ors v An Bord Pleanála [2014] IEHC 632: Highlighted the importance of cumulative assessments in EIA and appropriate project delineation.
• South-West Regional Shopping Centre Promotion Association Limited & Stapleyside Co. v An Bord Pleanála [2016] IEHC 84: Affirmed that amendments to existing permissions are subject to EIA based on their impact.
• Coyne v. An Bord Pleanála [2023] IEHC 412: Supported the acceptability of conducting separate EIAs for different project components with cumulative effect assessments.

Legal Reasoning

The Court's reasoning hinged on the correct identification of the project under the EIA Directive. By categorizing the proposed amendments as a “change or extension” within Annex II §13(a), the Board adhered to EU law, requiring EIA based on potential environmental impacts. The cumulative assessment, which evaluated the windfarm in conjunction with existing structures like the Woodhouse Windfarm, was deemed adequate. The Court also addressed public participation concerns, noting the lack of evidence for undue procedural burdens imposed on the Applicants.

Regarding Grounds 5 & 6, the Court acknowledged the State’s concession that conservation objectives for the Blackwater Callows SPA were not properly established. However, it determined that the Board still possessed jurisdiction to conduct AA based on the assessment provided, concluding that the proposed development would not adversely affect the integrity of the SPA.

Impact

This judgment reinforces the framework under the EIA Directive concerning project definition and cumulative assessments. It affirms that:

• Proper Project Identification: Amendments to existing projects must be correctly classified to determine EIA requirements.
• Cumulative Assessment Sufficiency: Thorough cumulative assessments that consider all project facets ensure compliance without necessitating a singular, overarching EIA.
• AA Jurisdiction: The absence of formal conservation objectives does not inherently strip authorized bodies of the jurisdiction to perform AA, provided assessments are scientifically sound.

Future cases involving modifications to large-scale environmental projects will likely reference this judgment to ensure accurate project classification and comprehensive environmental assessments.

Complex Concepts Simplified

Conclusion

The High Court’s decision in Power & Anor v An Bord Pleanála & Ors underscores the importance of precise project definition and robust cumulative assessments in environmental law. By upholding the Board’s correct classification of the windfarm amendments under Annex II §13(a) and affirming the sufficiency of the cumulative EIA, the Court reinforced adherence to EU directives that aim to safeguard environmental integrity while accommodating necessary development. Additionally, the judgment clarified that Appropriate Assessment can be conducted even in the absence of formally established conservation objectives, provided that scientific certainty regarding environmental impacts is achieved.

Overall, this ruling serves as a critical reference point for future environmental litigation, emphasizing compliance with procedural and substantive requirements under the EIA and Habitats Directives. It ensures that environmental protections remain robust without impeding legitimate and sustainable development efforts.