Milner and Anor v An Coimisiun Pleanala and Anor (Approved)

Factual and Procedural Background

The Applicants, local residents, objected to a proposed solar farm on five rural land parcels. The local planning authority granted permission subject to conditions, and the Respondent subsequently granted permission on appeal, also subject to conditions. [1][2][3][4][5]

The Applicants commenced judicial review proceedings challenging the Respondent’s decision. Leave was granted, and an amendment adding a seventh ground was allowed on a de bene esse basis. The proceedings were heard by Judge [Last Name], who dismissed the challenge. [6][7][8][9]

Legal Issues Presented

1. Whether the solar farm was subject to the Environmental Impact Assessment Directive and whether alleged deficiencies in precautionary EIA screening invalidated the permission. [10][11][12]
2. Whether the Respondent adequately considered land use, project duration, development-plan policy, cumulative effects, project size and proposed Natural Heritage Areas. [13][14]
3. Whether the Applicants’ pleadings sufficiently particularised their legal claims and whether they discharged the evidential burden required for judicial review. [15][12][16]
4. Whether relief should be refused as a matter of judicial-review discretion even if an error had been established. [17][18]

Arguments of the Parties

Applicants’ Arguments

• The Respondent conducted a full Schedule 7/Annex III screening of the entire solar farm and was therefore required to comply fully with the EIA screening criteria. [19][20][21]
• The screening allegedly failed to assess existing agricultural land use, project size, cumulative effects, the relevant development-plan policy and three proposed Natural Heritage Areas. [22][23][24][25][26][27]
• The Applicants challenged the description of the development as temporary, arguing that a 40-year operational period was effectively permanent and that continued sheep grazing was merely aspirational. [28][29]
• They contended that the pNHAs had been raised during the planning process and that the decision-maker was required to apply the screening framework to the facts presented, even if the Applicants had not formulated the precise legal argument. [30][31][32]

Respondent’s Arguments

• A solar farm is not an EIA project because it is not within Annex I or Annex II of the EIA Directive. Any precautionary screening of ancillary works did not make the solar farm subject to EIA obligations. [33][21]
• The Respondent argued that the Applicants’ grounds were inadequately particularised, impermissibly merits-based and unsupported by sufficient evidence or expert material. [34]
• The Respondent maintained that the Inspector and Respondent had considered the existing use, development-plan policy, cumulative effects, project size and ecological sensitivities, and had given the main reasons on the main issues. [35][36][37][38][39]

Notice Party’s Arguments

• The Notice Party supported the position that solar farms are not EIA projects and that alleged defects in unnecessary screening were legally irrelevant. [40][41][42]
• It argued that the Applicants had not discharged the burden of proof, particularly because they provided no expert evidence establishing significant environmental effects or defects in the ecological assessment. [43][44][45]
• It contended that the pNHAs were addressed in the ecological material, that two were outside the zone of influence, and that the amendment introducing the seventh ground should be refused. [46][47][48]

Table of Precedents Cited

Court's Reasoning and Analysis

The Court treated the central premise of the challenge as legally incorrect: the solar farm was not a project listed in the EIA Directive. Consequently, any deficiencies in precautionary screening could not invalidate a permission on the basis that mandatory EIA obligations had been breached. [10][11][93][12]

The Court also found that the ancillary access tracks did not constitute relevant road projects and that the limited hedgerow removal did not amount to rural land restructuring. [94][50]

Independently, the Court held that the Applicants had not demonstrated factual or legal error. The existing agricultural use, project size, cumulative effects, development-plan policy and ecological material had been considered in the wider decision-making record. The Court was not required to find that every point appeared expressly in the formal order. [95][96][63][97][98]

The Court rejected the challenge to the word “temporary”. The permission imposed a defined 40-year operational period, decommissioning obligations and restoration requirements. A reversible use could lawfully be described as temporary even if it lasted several decades. [99][100][84]

Regarding the pNHAs, the Court held that Derries Wood had been considered in the ecological assessment and that the other two sites were considered outside the relevant zone of influence. The Applicants had not displaced that evidence, including through cross-examination or expert evidence. [101][102][68]

The Court further held that the pleadings lacked the clarity required for complex EU-law arguments and that later affidavits could not cure pleading deficiencies. [15][103]

Finally, even if a breach had been established, the Court would have refused relief in its discretion. Quashing the permission for failure to comply with EIA obligations that did not apply would have served no useful substantive, environmental or legal purpose, particularly in light of the project’s renewable-energy importance and the absence of demonstrated environmental harm. [17][104][83]

Holding and Implications

DISMISSED. The judicial-review proceedings were dismissed. The proposed order was that there be no order as to costs unless a party made a contrary application within the specified time. [9][105]

The permission therefore remained in force, subject to its conditions. The Court’s decision applied established principles concerning unlisted EIA projects, pleading, evidential burdens, reasons and discretionary judicial review; it did not state that a new precedent was created. [106][18][9]