Factual and Procedural Background
The case concerns an application pursuant to sections 50, 50A, and 50B of the Planning and Development Act 2000, challenging a planning permission granted for a wind farm development and associated infrastructure on the Cork/Waterford border. The development includes 17 wind turbines, a substation, and a lithium-ion battery storage facility. The application for development consent was made by Company B under section 37E of the 2000 Act, following a determination letter enabling direct application to the planning board for strategic infrastructure development.
The nearest European Sites to the development are the Blackwater River SAC adjacent to the site boundary and the Blackwater Callows Special Protection Area (SPA) located 9.9 km away. Conservation objectives and measures for the Blackwater Callows SPA were adopted during the proceedings.
The planning board received reports from local authorities and submissions from prescribed bodies and the public. After further information was sought and provided by Company B, and following public and prescribed body observations, the board's inspector recommended granting planning permission subject to conditions. The board subsequently granted permission on 8 November 2023.
The applicant initiated proceedings on 11 January 2024, challenging aspects of the process related to the absence of site-specific conservation objectives and measures for the Blackwater Callows SPA at relevant times. The referring court found no reasonable possibility that any failure to consider conservation objectives affected the European sites and refused to quash the permission but stayed proceedings to seek a preliminary ruling from the Court of Justice of the European Union (CJEU) on a question of EU law relevant to declaratory relief.
Legal Issues Presented
- Whether Article 6(3) of Directive 92/43, as applied to Directive 2009/147 by Article 7 of the former Directive, requires that a competent authority's determination on whether a plan or project not directly connected with or necessary to the management of a site is likely to have a significant effect on that site must be carried out by reference to conservation objectives and/or measures established for that site, including sites proposed to be screened out.
Arguments of the Parties
Appellant's Arguments
- The risk of significant effect is deemed present unless it can be ruled out, based on the best scientific knowledge, that the project might affect the conservation objectives of the site.
- The relevant assessment cannot be properly carried out without reference to conservation objectives, as reflected in domestic regulations.
Respondents' Arguments
- The absence of conservation objectives does not constitute a jurisdictional bar to carrying out an Appropriate Assessment (AA) screening.
- AA screening is governed by the initial part of Article 6(3) of Directive 92/43 and can be conducted without reference to conservation objectives, allowing the competent authority to exclude plans or projects unlikely to have appreciable effects.
- Whether the absence of conservation objectives affects screening must be assessed on a case-by-case basis and cannot be presumed as a blanket jurisdictional bar.
Notice Party's Arguments
- The absence of conservation objectives does not deprive the competent authority of jurisdiction to assess significant effects on qualifying interests.
- Reference to conservation objectives would narrow the scope of screening by focusing on effects relative to conservation objectives rather than effects per se.
- Screening without conservation objectives involves a broader scope, consistent with the precautionary approach mandated for screening.
- In the present case, the competent authority found no effects, so no significant effects exist regardless of conservation objectives.
State's Arguments
- Conservation objectives may be relevant but are not a jurisdictional requirement or bar for AA screening.
- No textual, contextual, or purposive basis exists in Article 6(3) to infer a jurisdictional bar based on the absence of conservation objectives.
- A jurisdictional bar would unrealistically prohibit consent if any site in the country lacked conservation objectives, which is not supported by the Directive.
- Any impact of lacking conservation objectives on screening must be assessed case-by-case and does not equate to a jurisdictional bar.
Referring Court's Position
- Requiring consideration of conservation objectives and/or measures for sites proposed to be screened out would render the screening process unworkable.
- The majority of sites can be screened out due to distance or lack of plausible pathways without reference to conservation objectives.
- No textual link exists in the Directive between screening and conservation objectives or measures.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Friends of the Irish Environment Ltd v An Bord Pleanála, C-254/19 |
Risk of significant effect is present unless ruled out by best scientific knowledge; relevant assessment requires conservation objectives. |
Appellant relied on this judgment to argue that assessments cannot be done without conservation objectives. |
| Sweetman v An Bord Pleanála, C-258/11 |
Warned against overly formalistic or extreme obligations in interpreting Directive provisions. |
State cited this to argue against implying a jurisdictional bar for absence of conservation objectives. |
Court's Reasoning and Analysis
The court considered the interpretation of Article 6(3) of Directive 92/43 in the context of its application to Directive 2009/147. It examined whether the absence of site-specific conservation objectives and measures creates a jurisdictional bar to conducting Appropriate Assessment screening for plans or projects not directly connected with site management.
The court noted that the appellant contended the assessment must reference conservation objectives, while the respondents and the referring court argued that no such jurisdictional bar exists and that screening can proceed without conservation objectives, particularly for sites likely to be screened out due to lack of plausible effects.
The court highlighted the textual and contextual absence of any requirement in Article 6(3) imposing a jurisdictional bar based on conservation objectives. It acknowledged that requiring such reference for all screening would render the process unworkable, especially since many sites can be excluded based on distance or lack of pathways for effect.
The court recognized the precautionary principle underlying screening but emphasized that the scope of screening is broad and does not necessarily require detailed conservation objectives at the screening stage. It also noted that any impact of lacking conservation objectives must be assessed on a case-by-case basis rather than through a blanket prohibition.
Holding and Implications
The court referred the question to the Court of Justice of the European Union (CJEU) for a preliminary ruling pursuant to Article 267 TFEU.
The referring court requested priority treatment of this reference and proposed that it be joined with a related case (C-27/25, Knocknamona) due to overlapping considerations, particularly regarding renewable energy infrastructure applications.
The substantive proceedings are adjourned pending the CJEU’s judgment, without prejudice to procedural or interlocutory matters. No final determination on the merits has been made, and no new precedent has been established by the referring court itself at this stage.