Power and Another v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 01 May 2024
• Neutral Citation: [2024] IEHC 247
• Court: High Court
• Docket Number: 2022 No 1016 JR

In the Matter of S.50 of the Planning and Development Act 2000, As Amended and S.3 of the Environmental (Miscellaneous Provisions) Act 2011, As Amended

Between:

Moya Power

Wild Ireland Defence CLG

Applicants

and

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

Respondents

and

Knocknamona Windfarm Limited

Notice Party

[2024] IEHC 247

2022 No 1016 JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT OF Mr Justice Holland DELIVERED 1 May 2024.

Contents

INTRODUCTION, THE PROPOSED APPEAL, ARTICLE 6(3) OF THE HABITATS DIRECTIVE AND S.50A(7) PDA 2000	2
CRITERIA FOR CERTIFICATION OF APPEAL AND TENSIONS WITHIN THEM	4
THE CASE FOR CERTIFICATION	5
APPLICATION OF THE GLANCRÉ CRITERIA	7
Does the Point of Law Arise from the Judgment, is it Determinative and does it invite a “discursive, roving, response”?	7
Exceptional Public Importance?	7
Is the Point of Law Uncertain?	8
Is An Appeal Desirable In the Public Interest?	14
CONCLUSION	23

INTRODUCTION, THE PROPOSED APPEAL, ARTICLE 6(3) OF THE HABITATS DIRECTIVE AND S.50A(7) PDA 2000

1 This judgment decides whether to certify for appeal in this matter in exercise of the discretion to so do, and in light of the restrictions thereon, created by s.50A (7) PDA 2000. That section provides that:

“The determination of the Court of an application for s. 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the [Court of Appeal] in either case save with the leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal shall be taken to the [Court of Appeal].”

2 In my substantive judgment 1 in this judicial review of a planning permission issued in September 2022 for amendments 2 to a windfarm permitted in 2016, I recorded that the State conceded in mid-trial a declaration that it had failed to fulfil its obligations under the Birds Directive 3 and the Habitats Directive 4 “by failing to establish the necessary site specific conservation objectives and conservation measures in the Blackwater Callows Special Protection Area” 5 (“the SPA”). The State conceded that declaration having argued with some force that the “Generic Conservation Objectives” dated 26 January 2022 issued by NPWS 6 as to the SPA were adequate to fulfil those obligations under the Birds and Habitats Directives. I had expressed during trial an anxiety to understand whether those Generic Conservation Objectives were or were not of a kind which the State had conceded to be inadequate in Case C-444/21, Commission v Ireland. 7 I cannot say whether that inquiry prompted or contributed to the State's concession of the declaration which, to the point of its concession, it had actively resisted. However, what is clear is that its concession of the declaration was a concession that those Generic Conservation Objectives were inadequate to fulfil its obligations under the Birds and Habitats Directives to adopt valid conservation objectives and conservation measures as to the SPA.

3 In the Impugned Permission, the Board had,

It is important to say that the substance of this conclusion of absence of adverse effect was not challenged. All accept, at least for the purposes of these proceedings, that the proposed windfarm will not adversely affect the integrity of, inter alia, the SPA. In light, inter alia, of that conclusion, the Board granted the impugned planning permission, which permission I refused to quash for reasons more particularly set out in my substantive judgment.

• • purported to conduct an AA 8 in view of those Generic Conservation Objectives dated 26 January 2022,

• • concluded that there was no reasonable scientific doubt but that the proposed development would not adversely affect the integrity of, inter alia, the SPA.

4 Amongst the arguments for certiorari which I rejected for reasons set out in my substantive judgment was an argument that the existence of valid conservation objectives for any SAC 9 or SPA to be subjected to AA was a jurisdictional precondition to performing such AA.

5 Having rejected the jurisdictional argument, I upheld the Board's conclusion in AA on the basis that it had proved possible on the particular facts of the matter before it, and despite the inadequacy of the conservation objectives, for the Board, without legal error, to

This conclusion had proved possible for the simple reason that the off-site effect 10 in question would require the physical presence of the whooper swan on the Knocknamona Windfarm Site and that presence has been discounted.

• • identify the substantive content of site integrity of the SPA conceivably at risk – the whooper swan.

• • identify the nature of that conceivable risk – collision with wind turbine rotors.

• • conclude as a matter of reasonable scientific certainty, that the proposed development will not adversely affect the integrity of the SPA.

6 However, the Applicants' jurisdictional point, then and now, is that the Board ought never to have got to a consideration in AA of risk, or absence of it, to the whooper swan because, absent conservation objectives for the SPA, it had no jurisdiction to embark on or perform AA. This case is not, in my view, unstateable – if only because

• • Article 6(3) of the Habitats Directive explicitly requires that AA be done “ in view of the conservation objectives” of any Natura 2000 site 11 screened in for AA (as the SPA was) and,

• • at the time of the Board's Impugned Permission and as the conceded declaration now establishes, there were no valid conservation objectives for the SPA.

7 Article 6(3), as relevant, provides as follows:

“3. Any … project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site …… the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

As outlined in the substantive judgment, the caselaw of the CJEU establishes that the Habitats Directive, in particular Article 6(3), requires Member States, before or when designating Natura 2000 Sites, such as SPAs, to set detailed and site-specific conservation objectives for those sites.

8 Accordingly, the Applicants request my certification, pursuant to s.50A(7) PDA 2000, of the following point of appeal:

“Are valid conservation objectives for a Special Protection Area a pre-requisite to the Board's jurisdiction to carry out a valid Appropriate Assessment under Article 6(3) Habitats Directive and thus grant planning permission?”

9 The State stands mute in this application for a certificate. The Board and the Notice Party oppose it.

CRITERIA FOR CERTIFICATION OF APPEAL AND TENSIONS WITHIN THEM

10 The criteria for certification of such an appeal are well-established and uncontroversial as statements of law, however controversial may be their true meaning and their application to a particular case. They are known as the Glancré Principles 12 and have often been recited and applied – including recently, and for example, in Dublin Cycling 13 and MRRA. 14

11 While I have had regard to the detailed principles as recited in MRRA and mention some below, the view was expressed in MRRA that most, if not all of the Glancré Principles are particular expressions of some main principles – which I expand here a little as enabling a holistic approach to the issue of certification (an approach commended in its written submissions by the Board). Those principles are that

• • the High Court's decision in most cases is to be final and unappealable – such that the jurisdiction to certify an appeal should be exercised sparingly and rarely. Accordingly, the default is refusal of certification and the onus is on the applicant for a certificate to demonstrate that the case meets the criteria for certification.

• • the posited point of law must arise out of the decision of the High Court and be determinative of the proceedings, not one which, if answered differently, would leave the result of the case unchanged.

• • the appeal, to be certified, must invoke a point of law of exceptional public importance as to which there is uncertainty in the law – that is a high hurdle. The point must be not merely important, but exceptionally so.

• • for the appeal to be certified, it must be affirmatively desirable in the public interest that the appeal be taken.

12 There was a measure of agreement at hearing that there are internal tensions in the Glancré criteria as they have developed over time. Notably, I am not to assess the strength or weakness of the point proffered for appeal and I must take the intended appellant's case on the point at its height and assume my judgment to be at least possibly wrong on the proffered point – unless it is unstateable (e.g. Dublin Cycling 15). One might think that such an assumption itself implies an assumption of uncertainty in the law. Yet the caselaw also emphasises the putative appellant's obligation to demonstrate such uncertainty. An obvious means of seeking to demonstrate such uncertainty would be to cite the judgment it is sought to appeal to demonstrate that its reasoning is poor or its analysis finely balanced or diffidently expressed – yet the Appellant is not supposed to re-fight the arguments...