Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála, Ireland and the Attorney General and Elgin Energy Services Limited

Factual and Procedural Background

The Appellant challenged a 4 October 2021 decision of the Agency that granted Company A permission to construct and operate a 90-hectare photovoltaic solar farm in The County. The planning authority (the County Council) had previously approved the project on 5 May 2021. The Appellant’s judicial-review claim was dismissed by Judge Humphreys in the High Court ([2022] IEHC 700), and leave to appeal to the Court of Appeal was refused ([2023] IEHC 112). The Supreme Court (Judge Murray delivering judgment) granted leave to appeal on 15 May 2023 ([2023] IESCDET 59). The present judgment resolves that appeal, which centres on environmental-impact-assessment (EIA) obligations under Directive 2011/92/EU as amended and the corresponding Irish legislative framework, including the Planning and Development Regulations 2001 and the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011.

Legal Issues Presented

1. Whether the presence of hedgerow removal (a potential “restructuring of rural landholdings” under Annex II 1(a) of the EIA Directive) obliged the competent authority to screen and, if necessary, assess the entire solar-farm development for EIA purposes.
2. Whether, once planning permission issued without an EIA, the Minister could lawfully perform a subsequent EIA under the 2011 Regulations consistent with EU law.
3. Whether the State properly transposed the EIA Directive given that separate consents (planning permission by the Agency and EIA screening/consent by the Minister) may be required.
4. Whether any alleged transposition or procedural defects warranted quashing the Agency’s grant of planning permission.
5. Preliminary: whether the Appellant’s pleadings were sufficient to permit it to advance the foregoing issues, or whether the appeal was premature pending any application to the Minister.

Arguments of the Parties

Appellant's Arguments

• The Agency was obliged to make an EIA screening (and, if necessary, a full EIA) because removal of 770 m of hedgerow (plus 140 m relocation) constituted “restructuring of rural landholdings,” an Annex II 1(a) project.
• The State failed to transpose Annex II 1(a) properly: solar-farm-related land restructuring is not subjected to EIA within the planning code, and the 2011 Regulations are inadequate.
• It is impermissible to split a single development into component consents; therefore the entire solar-farm project required assessment “as a whole.”
• A later Ministerial EIA could not cure the absence of assessment prior to the Agency’s decision.

Respondents' Arguments

• Solar farms are not listed in Annex I or Annex II; only the hedgerow-removal element, if an Annex II project, requires screening/EIA, and cumulative effects will be addressed at that stage.
• The 2011 Regulations allocate EIA jurisdiction for land-restructuring “activities” to the Minister; the Agency therefore lacked statutory power to screen or assess that element.
• The Appellant’s pleaded grounds never challenged dual-consent sequencing or the validity of the 2011 Regulations; those points are new and inadmissible.
• Even if transposition were imperfect, any defect would not invalidate the Agency’s permission; development cannot proceed without complying with any separate Ministerial consent.

Table of Precedents Cited

Court's Reasoning and Analysis

Pleading deficiency. The Court first examined whether the Appellant had pleaded the issues it sought to argue. Judicial-review rules require precise grounds; no amendments were sought. The Court agreed with Judge Humphreys that the pleadings targeted only the Agency’s alleged failure to screen and a narrow transposition point (that EIA should be within the planning code). Broader arguments about dual consents, sequencing and the validity of the 2011 Regulations were unpleaded. Ordinarily, this would be fatal, but in the unusual circumstances of a fully argued Supreme Court appeal the Court addressed certain substantive questions to avoid wasted resources.

Issue 1 – Scope of EIA. Solar farms are not listed in Annex I or II. The only listed project here is hedgerow removal (restructuring of rural landholdings). Article 4 confines mandatory assessment to listed projects; the Directive requires cumulative consideration of other works but does not expand the assessment to the entire solar-farm development. CJEU authority such as Derrybrien I and Derrybrien II confirms that EIA attaches to the Annex II component, with cumulative impacts considered. Therefore the Appellant’s “whole-project” argument was acte clair and incorrect.

Issue 2 – Ministerial Assessment. Whether the Minister can conduct an effective EIA under the 2011 Regulations is premature; no application has yet been made. In principle, nothing in the Regulations prevents a compliant assessment, and the planning permission does not override the need for Ministerial consent.

Issue 3 – Transposition. EU law allows multiple competent authorities. The Minister’s consent under the 2011 Regulations is itself a “development consent.” The absence of EIA at the planning-permission stage does not breach the Directive because the project cannot proceed without Ministerial approval following appropriate screening/assessment. Accordingly, the transposition is adequate.

Issue 4 – Remedy. As the substantive EIA and transposition complaints failed (and the Ministerial process is outstanding), no basis existed to quash the Agency’s permission.

Holding and Implications

HOLDING: APPEAL DISMISSED.

Consequences: the Agency’s grant of planning permission remains valid. Company A must still obtain Ministerial screening/consent before removing hedgerows; if the Minister refuses or imposes conditions, the development cannot proceed without compliance. The judgment affirms the legality of Ireland’s dual-consent structure and clarifies that Annex II elements trigger EIA only for those elements, with cumulative assessment, not automatic assessment of the entire non-listed project. No new precedent was set concerning the merits of solar-farm EIAs, but the decision reinforces strict pleading requirements in judicial-review litigation.