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

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian Murray
• Judgment Date: 04 July 2024
• Neutral Citation: [2024] IESC 28
• Court: Supreme Court
• Docket Number: S:AP:IE2023:000035

In the Matter of Section 50 of the Planning and Development Act, 2000, As Amended

Between/

Concerned Residents of Treascon and Clondoolusk

Appellants

and

An Bord Pleanála, Ireland and The Attorney General

Respondents

and

Elgin Energy Services Limited

Notice Party

[2024] IESC 28

O'Donnell CJ

Woulfe J.

Murray J.

Collins J.

Donnelly J.

S:AP:IE2023:000035

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT ofMr. Justice Brian Murraydelivered this 4 ^th day of July 2024

Background

1 . In these proceedings, Concerned Residents of Treascon and Clondoolusk, (“ the Appellant”) sought to challenge the legality of a decision of An Bord Pleanála (“ ABP”) of 4 October 2021. The effect of that decision (“ the ABP Decision”) was to grant Elgin Energy Services Limited (“ the Developer”) planning permission (subject to conditions) to construct and operate a photovoltaic solar farm on a site of approximately 90 hectares in Co. Offaly ( “the Proposed Development”). The ABP decision was made following an appeal brought by the Appellant from the decision of the planning authority, Offaly County Council, to grant permission for the Proposed Development (again, subject to conditions). That decision was made on 5 May 2021.

2 . The Appellant's challenge was rejected by Humphreys J. ( [2022] IEHC 700). Thereafter Humphreys J. refused the Appellant's application for leave to appeal that decision to the Court of Appeal ( [2023] IEHC 112). This Court granted leave to appeal by Determination of 15 May 2023 ( [2023] IESCDET 59).

3 . The issues in respect of which leave to appeal to this Court was granted, as further clarified in the course of case management, are set out below. The substantive issues the subject of the appeal all relate to the proper interpretation and application of Directive 2011/92/EU (as amended by Directive 2014/52/EU) (“ the EIA Directive”) and of those provisions of Irish law which give domestic effect to the EIA Directive – particularly the Planning and Development Regulations, 2001 ( SI 600/2001) (as amended) (“ the 2001 Regulations”) and the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 (SI 456/2011) (as amended) (“ the 2011 Regulations”). However, ABP, the Developer and Ireland and the Attorney General (to whose interests in the matter I will come shortly, and to all of whom I will on occasion refer collectively as “ the Respondents”) have vigorously contended that these issues were not pleaded by the Appellant and comprise grounds on which leave to seek judicial review was never given. They also contend that some of these grounds are premature.

The statutory setting

4 . The legal context in which these issues arise is involved. Article 2(1) of the EIA Directive requires Member States to adopt all necessary measures to ensure that, before “ development consent” is given, “ projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.” Those projects are defined in Article 4 of the Directive, read in conjunction with Annexes I and II thereto. Article 4(1) provides that projects listed in Annex I “ shall” be made subject to an assessment in accordance with Articles 5 – 10. Article 4(2) provides that, for projects listed in Annex II, Member States shall determine whether the project shall be made subject to such an assessment. In making that determination, a Member State may rely on a case-by-case examination, apply thresholds or criteria fixed by the Member State, or apply both procedures. But in every case, even where an Annex II project is below these thresholds or outside those criteria, Member States must ensure that it is subject to environmental assessment if it is likely to have significant effects on the environment: Case C-72/95, Kraaijeveld §50; Case C-2/07, Abraham §37; C-75/08, Mellor §50; C-427/07, Commission v. Ireland §41.

5 . The EIA Directive is given effect in Irish law largely (though not exclusively) through the provisions of Part X of the Planning and Development Act, 2000 (as amended) (“ the PDA”) and Part 10 of the 2001 Regulations. Section 176 of the PDA provides that the Minister shall, for the purpose of giving effect to the Directive, make regulations identifying developments which may have a significant effect on the environment and specifying the manner in which the likelihood that such developments would have significant effects on the environment is to be decided. In turn, Article 93 of the 2001 Regulations provides that the “ prescribed” classes of development for the purpose of section 176 are set out in Schedule 5. Schedule 5, Parts 1 and 2 largely correspond with Annex I and Annex II of the EIA Directive.

6 . Sections 176A–176C PDA provide for screening for EIA in relation to development within Schedule 5 and further provision is made in Part 10 of the 2001 Regulations for the screening and, where appropriate, full assessment of “ sub-threshold development”. This is specified in Article 92 of those Regulations as “ development of a type set out in Schedule 5 which does not exceed a quantity, area or other limit specified in that Schedule in respect of the relevant class of development.”

7 . Solar farms are not listed in Annex I or Annex II of the Directive nor is reference made to them in Part 1 or 2 of Schedule 5 to the 2001 Regulations. The High Court has found that solar farms are not a category of project that requires EIA: Sweetman v. An Bord Pleanála[2020] IEHC 39 (“ Sweetman”); Kavanagh v. An Bord Pleanála[2020] IEHC 259 (“ Kavanagh”).

8 . Annex II of the Directive includes, at paragraph 1(a), “ [p]rojects for the restructuring of rural land holdings”. Such projects therefore require assessment as to whether they are likely to have a significant effect on the environment and, if so, they must be subject to EIA.

9 . Until 2011, projects of this kind were included in Schedule 5, Part 2, 1(a) of the 2001 Regulations (subject to the area to be restructured being greater than 100 hectares) and therefore constituted a “ prescribed class” of development for the purposes of section 176 PDA. In broad terms, that meant that development which comprised or included the restructuring of rural land holdings exceeding the threshold, or which was otherwise likely to have a significant impact on the environment, was subject to EIA as part of the planning process and any necessary screening and/or assessment was undertaken as part of that process by the planning authority and/or ABP.

10 . However, the 2001 Regulations were amended in 2011 and “restructuring of rural land holdings” was deleted from Schedule 5, Part 2.1 At the same time, the 2011 Regulations were made by the Minister for Agriculture, Fisheries and Food (now the Minister for Agriculture, Food and the Marine) (“ the Minister”), under which the Minister was given the function of screening and, where appropriate, carrying out an EIA on certain “ activities”, including the restructuring of rural land holdings.

11 . As amended in 2017 (by SI 407/2017), the 2011 Regulations provide that anyone wishing to undertake an “ activity” must submit an application to the Minister for a screening decision: Regulation 7(1).2 Where the Minister determines that the proposed activity is likely to have a

significant effect on the environment, that activity cannot proceed without Ministerial consent: Regulation 8(2). Ministerial consent must also be sought if the proposed activity exceeds the thresholds set out in Schedule 1, Part B of the 2011 Regulations. 3 In either scenario, the application for consent must be accompanied by an environmental impact statement (“ EIS”) in accordance with Regulation 10: Regulation 9(2)(e)(i). The Minister must then carry out an EIA of the application before making a decision on it: Regulation 13 (as amended by SI 142/2013). The Minister may grant consent, refuse consent or attach such conditions to a consent as he or she considers necessary: Regulation 13(7)

12 . When making a screening decision under Regulation 8, the Minister must consider the characteristics of the activity having regard ( inter alia) to “ the cumulation with other activities”: Schedule 2(1)(b). Where the submission of an EIS is required, it must consider “the cumulation of effects with other existing and approved projects or activities”: Schedule 3.5(e) (as substituted by SI 407/2017).

13 . The Proposed Development the subject of these proceedings would involve the removal of 770 meters of hedgerow to the north of the development site while a further three sections of hedgerow (total length 140 meters) will be removed and relocated (“ set back”) by 3 metres.4 That is not in dispute. Nor is it – now – in dispute that, before commencing the Proposed Development, the Developer must, at a minimum, apply to the Minister for a screening decision in respect of that element of the development (as already noted, the Appellant says that Ministerial consent, and an EIA, is required but that does not appear to be agreed).

14 . Subsequent to the ABP Decision, the Planning and Development (Amendment) (No. 2) Regulations 2023 (SI 383/2023) were made. Regulation 4 of those Regulations inserts into Schedule 5, Part 2 of the 2001 Regulations a new paragraph in the following terms:

“(a) Projects for the restructuring of rural land holdings, undertaken as part of a wider proposed development, and not as an agricultural activity that must comply with the European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011, where the length of field boundary to be removed is above 4 kilometres, or where re-contouring is above 5 hectares, or where the area of lands to be restructured by removal of field boundaries is above 50...