Toole & Anor v Minister for Housing Local Government and Heritage (Approved)

Factual and Procedural Background

The case concerns a challenge to a foreshore licence authorising temporary environmental surveying for a proposed offshore wind farm project off the coast of counties Wicklow and Dublin. The licence was granted to Company A, a joint venture developing the offshore wind farm, pursuant to the Foreshore Act 1933 and related legislation. The licence permits site investigations including metocean, geophysical, geotechnical, ecological, and archaeological surveys over a wide maritime area known as Codling Bank.

The applicants initiated judicial review proceedings challenging the validity of the licence, despite not having made submissions during the public consultation phase. The core issue is whether the applicants have discharged the burden of proof to establish that the licence is invalid.

Procedurally, the case follows prior related litigation concerning foreshore licences for offshore wind projects, including an earlier case involving the same applicants challenging a different foreshore licence (referred to as Toole I). The current proceedings (Toole II) involve a second licence granted to Company A in May 2023. The Maritime Area Regulatory Authority (MARA) was joined as a notice party after taking over foreshore functions from the Minister. A stay on the licence was granted pending determination of the proceedings but was subsequently discharged.

Legal Issues Presented

1. Whether the foreshore licence is invalid due to lack of lawful delegation of ministerial functions concerning Appropriate Assessment under the Habitats Regulations.
2. Whether the Minister failed to comply with statutory requirements for Environmental Impact Assessment (EIA) preliminary examination or screening.
3. Whether the Minister breached a duty to terminate the licence following an alleged breach of licence condition 31.29 by Company A.
4. Whether the licence is invalid for failing to include mitigation measures required under Article 6(3) of the Habitats Directive as conditions of the licence.
5. Whether the mitigation measures set out in the Appropriate Assessment and licence conditions meet the requirements of Article 6(3) of the Habitats Directive, including specification of responsible bodies and monitoring methods.
6. Whether the Minister lawfully considered cumulative and in-combination effects of the project with other plans or projects in the Appropriate Assessment process.
7. Whether a preliminary reference to the Court of Justice of the European Union (CJEU) is warranted on questions relating to the interpretation of Article 6(3) of the Habitats Directive.

Arguments of the Parties

Applicants' Arguments

• There was no lawful delegation authorising certain Minister of State functions under the Habitats Regulations, rendering the licence invalid.
• The Minister failed to carry out required Environmental Impact Assessment procedures.
• Company A breached licence condition 31.29 by conducting geotechnical surveys before geophysical surveys, obliging the Minister to terminate the licence.
• Mitigation measures identified in the Appropriate Assessment were not made conditions of the licence, contrary to Article 6(3) of the Habitats Directive.
• The mitigation measures lack sufficient detail, specifically regarding the person or body responsible for implementation and methods for monitoring compliance.
• The Minister failed to properly consider cumulative and in-combination effects with other projects and plans.
• All survey data obtained under the licence is unlawful and should be declared so.
• Requested reliefs include quashing the licence, mandamus to terminate the licence, declarations of unlawfulness, and a preliminary reference to the CJEU.

Minister's Arguments

• The licence conditions substantively incorporate the mitigation measures required by the Appropriate Assessment, and no explicit condition is legally necessary to require implementation.
• Any breach of licence condition is denied or, if established, the enforcement function lies with MARA, not the Minister.
• The Minister complied with statutory duties regarding EIA and Appropriate Assessment.
• The Minister lawfully considered cumulative and in-combination effects, including pending projects and plans such as the National Marine Planning Framework.
• The methods for checking implementation of mitigation measures are provided for by legislation and MARA's enforcement powers.
• The applicants bear the burden of proof to demonstrate risk to European sites from any alleged deficiencies and have failed to do so.
• If any amendment to licence conditions is required, mandamus should be directed to MARA rather than quashing the licence.
• The proposed questions for CJEU reference are not necessary for the court to decide and thus inadmissible.

Company A's Arguments

• Supports the Minister's positions, emphasizing the comprehensive environmental assessments and mitigation measures adopted.
• Rejects that the alleged breach of licence condition affects the validity of the licence or the decision to grant it.
• Notes that the Appropriate Assessment and Natura Impact Statement demonstrate no reasonable scientific doubt as to absence of adverse effects on European sites.
• Agrees that enforcement and amendment functions rest with MARA under current law.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the validity of the foreshore licence in light of domestic and EU law, focusing on the applicants' grounds challenging delegation of ministerial functions, compliance with EIA and Appropriate Assessment requirements, alleged breach of licence conditions, adequacy of mitigation measures, and consideration of cumulative impacts.

Regarding the alleged breach of licence condition 31.29, the court found no breach because geophysical surveys required to precede geotechnical surveys had been completed under a prior licence, a practice accepted by the relevant archaeology unit. Even if a breach had occurred, the power to terminate the licence is discretionary and vested in MARA, not the Minister. The applicants failed to join MARA as a respondent and did not establish entitlement to mandamus against the Minister.

On the failure to include all mitigation measures from the Appropriate Assessment as explicit licence conditions, the court held that omission without explanation breached EU law's requirement to remove reasonable scientific doubt about adverse effects on European sites. However, the problem was seen as a drafting and execution error rather than a fundamental flaw. A mandamus order to MARA to amend the licence to include the omitted conditions and correct a typographical error was deemed a proportionate remedy, avoiding the disproportionate remedy of quashing the licence.

Regarding the adequacy of mitigation conditions, the court found that the licence conditions, read in context with the underlying documentation, met Article 6(3) requirements. The applicants had the burden to show that lack of further detail posed a risk to European sites, which they failed to do. The court accepted that legislative provisions and MARA's enforcement powers provide sufficient mechanisms for monitoring implementation.

On cumulative and in-combination effects, the court concluded that the Minister lawfully considered relevant projects and plans, including pending projects reasonably raised during the process. The applicants did not demonstrate evidentially that any omission caused a risk to European sites. The court applied established principles that only relevant and proceeding projects must be assessed, and that absence of some information does not necessarily create a legally significant lacuna.

Finally, the court found that the proposed preliminary reference questions to the CJEU were not necessary for the decision and thus inadmissible under Article 267 TFEU.

Holding and Implications

The court’s final decision was as follows:

• MARA is to be substituted as a respondent in place of the Minister for Housing, Local Government and Heritage.
• A mandamus order will issue requiring MARA to amend the foreshore licence to correct a typographical error and to include three omitted mitigation conditions identified in the Appropriate Assessment.
• The remainder of the proceedings are dismissed.
• No order as to costs is made.
• The stay on the licence is discharged, subject to the notice party complying with the proposed amended conditions pending formal amendment.

The decision directly affects the parties by upholding the licence’s validity while requiring corrective action to ensure compliance with EU law standards for Appropriate Assessment. It clarifies the discretionary nature of enforcement powers vested in MARA and confirms the burden on applicants in environmental judicial review to establish evidential grounds for invalidity. No new legal precedents were established beyond applying existing principles to the facts.