Massey v an Bord Pleanála and Others [No. 2]

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 11 April 2025
• Neutral Citation: [2025] IEHC 206
• Court: High Court
• Docket Number: [H.JR.2024.0000037]

In the Matter of An Application Pursuant to Section 50, 50A and 50B of the Planning and Development Act, 2000

Between

Paddy Massey

Applicant

and

An Bord Pleanála, Ireland and The Attorney General, Minister for Housing, Local Government and Heritage

Respondents

and

Curns Energy Limited

Notice Party

[2025] IEHC 206

[H.JR.2024.0000037]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and development – Judicial review – Declaratory relief – Applicant challenging planning permission – Whether a reference to the CJEU was required

Facts: In Massey v An Bord Pleanála & Ors (No. 1) [2021] IEHC 783, the applicant, Mr Massey, challenged the decision of the first respondent, An Bord Pleanála (the board), that the planning application should be given strategic infrastructure development status. The High Court decided the action adversely to the applicant. The applicant challenged the final decision, which was to grant permission. The core grounds of challenge were as follows (the applicant dropped grounds 3, 5 and 6): (1) relationship with pre-application stage; (2) effect on conservation of the Whooper Swan; (4) EIA cumulative impacts; and (7) lack of conservation objectives.

Held by Humphreys J that: (1) the applicant had established an error under this ground but this warranted declaratory relief only; (2) generally the applicant could not succeed due to failure to adduce sufficient evidence that the board’s approach was flawed; (4) the EIA argument was without substance on the facts and failed to account for the fact that cumulative/in-combination impacts were assessed, and that this was not a case of project-splitting on the facts; and (7) the lack of conservation objectives warranted the conceded declaratory relief and as regards whether it also warranted certiorari, the answer was no because on the evidence the Court could exclude a reasonable possibility of effects on European sites - so what the conservation objectives of those sites were, or the conservation measures, did not change that. Humphreys J held that the residual issue as to whether objectives/measures ought in principle to be established prior to screening required a reference to the CJEU but only for the purposes of possible additional declaratory relief.

Humphreys J ordered that: (i) there be a declaration against the board that the application for permission for development under s. 37E of the Planning and Development Act 2000 should have been made by the prospective applicant under ss. 37A to 37D; (ii) there be a declaration against the State respondents that they (a) failed to fulfil their obligations under Articles 3, 4(1) and 4(2) of Directive 2009/147/EC (the Birds Directive) and Article 6 of Council Directive 92/43/EEC (the Habitats Directive), as implemented by S.I. 477 of 2011 and in particular Article 26 thereof, by failing, before 26 March 2024, when site specific conservation objectives were made (without prejudice to any argument by the applicant as to the sufficiency of such objectives), to have in place those objectives in the Blackwater Callows Special Protection Area, and (b) had not put in place the necessary conservation measures in the Blackwater Callows Special Protection Area; (iii) the claim for certiorari be dismissed and the proceedings be otherwise dismissed save in respect of core ground 7 as a basis for declaratory relief only; (iv) the identified questions be in principle referred to the CJEU under art. 267 TFEU in accordance with a judgment for reference to be issued separately.

Reference to CJEU.

(No. 2)

JUDGMENT of Humphreys J. delivered on Friday the 11 ^th day of April 2025

1 . Natura 2000 consists of a Europe-wide network of areas designated under directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (the birds directive) and council directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (the habitats directive). Special protection areas (SPAs) are designated under the birds directive, and sites of Community interest/ special areas of conservation (SACs) under the habitats directive. EU law requires that appropriate assessment (AA) of impacts of developments on such sites be carried out by reference to the conservation objectives (habitats directive, art. 6(3)) applicable to such sites. The directive does not, however, involve a textual link between conservation objectives and the initial process of AA screening – the idea being that certain sites (in any given case, the vast majority of European sites in Ireland and all European sites in all other countries) can be screened out (for example, because they are so far away with no plausible intermediate pathway) on the basis of whether there could be any effects at all, irrespective of the details of any conservation objectives or measures. The applicant here tries to embellish the text of the directive by proposing an outsize extension of the stringent requirements for assessment into the very different and vastly less exacting process of the initial screening process. While that concoction has an obvious negative answer, it is in principle is a question that could be referred to Luxembourg. But there is a separate question as to whether such a reference should be on the basis of declaratory relief only or on the basis of potential certiorari, given that the uncontested evidence in this particular case shows a lack of any reasonable possibility of potential impact on any European site that could possibly warrant quashing this particular permission.

Judgment history

2 . In ( [2021] IEHC 783 Massey v. An Bord Pleanála & Ors. (No. 1) Unreported, High Court, 21st December 2021), the applicant challenged the board's decision that the present planning application should be given strategic infrastructure development (SID) status. That would normally be an impermissibly premature action but in fact the opposing parties were happy to have it decided, so it was – adversely to the applicant. No order was made as to the costs unnecessarily imposed on the respondent and notice party. It will be a matter for the opposing parties in due course as to whether that has any implications in terms of discount or otherwise as to any costs that they may be required to pay at the conclusion of these proceedings

3 . The applicant now comes again challenging the final decision, which was to grant permission.

Geographical context

4 . These proceedings concern a challenge to the decision of the Board (ABP-309121–21, https://www.pleanala.ie/en-ie/case/309121), dated 8th November 2023, under s. 37G of the Planning and Development Act 2000 (the 2000 Act) to grant planning permission to the notice party for development of a wind farm and associated infrastructure on the Cork/Waterford border. Details are set out at https://www.lyrenacarrigawindfarm.com/.

5 . The development is to include 17 wind turbines within two clusters, 11 of which (turbines T1-T11) are to be located in Co. Waterford within the eastern cluster and 6 of which (turbines T12-T17) are to be located in Co. Cork within the western cluster, an underground collector cable connection of c. 3.3 km in length, a substation with a loop-in connection into the Knockraha-Woodhouse 110 kV line via two 40 m overhead lines and a lithium ion battery storage facility co-located with the substation.

6 . The felling of c. 50 hectares of forestry on the site is to be replaced by the planting of a similar sized area on a site near Ballymote in Co. Sligo.

7 . The nearest European Site is the Blackwater River (Cork/Waterford) SAC [002170] located adjacent to the north-eastern boundary of the site. The development is 9.9 km from the Blackwater Callows SPA (p. 216 of inspector's report) which was designated by S.I. No. 191 of 2012 — European Communities (Conservation of Wild Birds (Blackwater Callows Special Protection Area 004094)) Regulations 2012, which includes the Whooper Swan (Cygnus cygnus) as a qualifying interest.

Facts

8 . As noted above, Blackwater Callows SPA was designated in 2012.

9 . An SID determination letter issued to Innogy Renewables Ireland Limited on 28th May 2020.

10 . Relying on that, on 8th January 2021, the notice party, Curns Energy Limited, made an application for development consent under s. 37E of the 2000 Act for the wind farm development. The application documentation contained a suite of documents, including, inter alia, an environmental impact assessment report (EIAR), an AA screening report and a Natura impact statement (NIS).

11 . In March 2021, the Chief Executive of Waterford City and County Council made a report on the wind farm development under s. 37E(4). Similarly, in March 2021, the Chief Executive of Cork Council also made a report on the wind farm development.

12 . Submissions were received from six prescribed bodies including Inland Fisheries Ireland, the Development Applications Unit (formerly NPWS) and Irish Water.

13 . A total of 679 observations were submitted by members of the public, including the applicant.

14 . On 26th January 2022, generic conservation objectives were adopted for Blackwater Callows SPA and other sites.

15 . On or about 8th April 2022, the board sought further information from Curns – a response was provided by Curns on 11th October 2022, which included a series of appendices comprising expert reports.

16 . Following correspondence from the board, Curns published notices advising of the submission of the further information and the date by which submissions were to be made to the board. Submissions were received from three prescribed bodies and 196 observations were received from members of the public. No further submissions from the planning authorities were received.

17 . On 8th May 2023, the board decided that no oral hearing was to be held.

18 . Curns was invited to make a...