Toole and Another v Minister for Housing Local Government and Heritage

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 01 November 2024
• Neutral Citation: [2024] IEHC 610
• Court: High Court
• Docket Number: [H.JR.2023.0000949]

In the Matter of Sections 21B and 3 of the Foreshore Act 1933, As Amended and in the Matter of Section 50B of the Planning and Development Act 2000, As Amended

Between

Ivan Toole and Golden Venture Fishing Limited

Applicants

and

The Minister for Housing, Local Government and Heritage

Respondent

and

Codling Wind Park Limited and The Maritime Area Regulatory Authority (By Order)

Notice Parties

[2024] IEHC 610

[H.JR.2023.0000949]

THE HIGH COURT

PLANNING & ENVIRONMENT

Planning and environment – Judicial review – Burden of proof – Applicants seeking an order of certiorari quashing a foreshore licence – Whether the applicants had discharged the burden of proof to demonstrate that the licence was invalid

Facts: The applicants, Mr Toole and Golden Venture Fishing Ltd, applied to the High Court challenging a foreshore licence authorising temporary environmental surveying in the service of a proposed offshore wind farm. The applicants did not make any submission to the decision-maker during the public consultation process, but launched their complaints for the first time in the judicial review. The primary question was whether the applicants had discharged the burden of proof to demonstrate that the licence was invalid.

Held by Humphreys J that (i) the developer carrying out geophysical works under the previous licence rather than under this licence was not a breach of the licence; (ii) the power to revoke a licence is discretionary and is vested in the Maritime Area Regulatory Authority (MARA) rather than the respondent, the Minister for Housing, Local Government and Heritage, the issue of which licence to rely on for the geophysical surveys was a purely technical issue, and an approach that in practice compels repetition of surveys would damage the environment, so relief under that heading would be inappropriate in any event; (iii) to comply with the EU law standard to exclude all doubt, conditions recommended in the Appropriate Assessment but dropped in the Marine Licence Vetting Committee report without reasons (and wording omitted by clerical error) should have been included in the licence on normal administrative law principles and in the light of the EU law requirement to exclude doubt as to the effects on European sites, but the issue could be corrected easily by mandamus and did not warrant other relief; (iv) the claims of inadequacy of conditions to mitigate environmental harms or inadequacy of consideration of cumulative or in-combination impacts have to be made out evidentially by an applicant, who bears the burden of proof, by reference to possible damage to the integrity of European sites caused thereby, which the applicants had not succeeded in doing; and (v) the applicants had failed to establish the factual and legal premises of the proposal to refer the matter to the CJEU and therefore a reference was inadmissible as it was not “necessary” within art. 267 TFEU.

Humphreys J ordered that: (i) subject to any contrary argument (a) MARA be changed from a notice party to a respondent, (b) there be an order of mandamus requiring MARA to amend the licence in respect of a typographical error and the inclusion of three omitted conditions, (c) the title of the proceedings be amended to substitute the Minister for Environment, Climate and Communications for the first respondent, (d) the proceedings be otherwise dismissed, and (e) there be no order as to costs; and (ii) by way of order to be perfected (a) any stay be discharged and the opposing parties be released from any undertakings or agreements not to implement the impugned decision and/or not to carry out relevant works or uses, subject to the notice party being required to comply with the proposed conditions to be inserted in the licence pending formal amendment, and (b) the matter be listed on 18 November 2024 to confirm the foregoing.

Application refused.

(II)

JUDGMENT of Humphreys J. delivered on Friday the 1st day of November 2024

1 . The decision under challenge is a foreshore licence authorising temporary environmental surveying – not permanent development – in the service of a proposed offshore wind farm. The permission application states that “[w]ith the potential to generate enough locally produced renewable electricity to power the equivalent of up to 1.2 million homes annually, Codling Wind Park will support the delivery of Ireland's Climate Action Plan targets. It will also help reduce Ireland's reliance on imported fossil fuel-based energy and significantly improve energy security”. The Marine Licence Vetting Committee ( MLVC) report on the application notes relevant Government policy including that (a) “[t]he published Programme for Government had committed to achieving 5GW capacity in offshore wind by 2030 off Ireland's Eastern and Southern coasts”, (b) the National Marine Planning Framework states that “[p]roposals that assist the State in meeting the Government's offshore renewable energy targets, including the target of achieving 5GW of capacity in offshore wind by 2030 and proposals that maximise the long-term shift from use of fossil fuels to renewable electricity energy, in line with decarbonisation targets, should be supported” and (c) the Climate Action Plan “recommits Ireland to the ambition to install 5GW of offshore wind capacity in our maritime area by 2030, and introduces a new objective, that by the same year, up to 80% of our electricity will be sourced from renewables” and states that “[i]n addition to increasing our renewable energy share, these targets will support our carbon emission reduction commitments, meet anticipated increases in domestic electricity demand and increase our security of electricity supply”. The applicants did not make any submission to the decision-maker during the public consultation process, but launched their complaints for the first time in the present judicial review. The primary question here is whether the applicants have discharged the burden of proof to demonstrate that the licence is invalid.

Previous relevant caselaw

2 . While there is no specific previous litigation between the existing parties, there are a number of pieces of related litigation to which reference can usefully be made at this point. The notice party helpfully prepared details of related and relevant cases as follows, and I will draw on their wording, which was not objected to.

3 . First of all, in relation to general recent law on foreshore licences, the following are noteworthy:

• (i) Uí Mhuirnín v. Minister for Housing, Planning and Local Government [2019] IEHC 824, ( [2019] 12 JIC 0503 Unreported, High Court, 5th December 2019): This concerned a challenge to the grant of a foreshore lease under the Foreshore Act 1933 for an energy wind wave and tidal test facility in Co. Galway. Quinn J. granted certiorari on the basis that the Minister for Housing, Local Government and Heritage ( the Minister, hereafter, unless another Minister is intended) had regard to mitigation measures in carrying out the screening for Appropriate Assessment ( AA) under art. 6(3) of the Council Directive (EU) 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora ( the habitats directive).

• (ii) Casey v. Minister for Housing, Planning and Local Government [2020] IEHC 227, [2020] 5 JIC 2002 (Unreported, High Court, Murphy J., 20th May 2020): This concerned a challenge to a decision to approve a baseline study and monitoring programme, stipulated as a condition of a foreshore licence for the mechanical harvesting of kelp in Bantry Bay granted to Bioatlantis Aquamarine Ltd in 2014. It emerged during the hearing that the Minister had not complied with the public notice and publication requirements imposed by ss. 21A and 21B of the 1933 Act in respect of the original licence, which was held to mean that the original licensing process was incomplete and ineffective (pending belated publication).

• (iii) Casey v. Minister for Housing, Planning and Local Government [2021] IESC 42, [2021] 7 JIC 1606 (Unreported, Supreme Court, Baker J., 16th July 2021): This was an appeal from the decision of Murphy J., discussed above. The Supreme Court held that the High Court had erred in making the decision on a ground not pleaded, and in incorrectly holding that the Foreshore Act 1933 provided for a free standing procedure to challenge a foreshore licence, separate and distinct from O. 84 RSC. The Supreme Court held that the High Court was correct in finding that the provisions of s. 21A applied to the making of all decisions to grant a foreshore licence, and not only those applications where an environmental impact assessment ( EIA) report was submitted (as argued by the State). It was held, however, that the absence of publication does not result in the invalidity of the foreshore licence. The purpose of s. 21A is to notify interested persons of the making of a licence and to inform them of the right to make a challenge and by what means. Thus, the failure to publish might have an impact on the time within which a challenge to the validity of the licence could be brought by way of judicial review proceedings, but it did not go to the validity of the licence.

• (iv) Coastal Concern Alliance v. Minister for Housing, Local Government and Heritage [2024] IEHC 139, [2024] 3 JIC 2102 (Unreported, High Court, Simons J., 21st March 2024): Those proceedings concerned a challenge to the decision of the Minister to grant a foreshore licence to RWE Renewables Ireland Ltd ( RWE) to carry out marine surveys. The applicant challenged the licence on various grounds, including alleged failures to comply with the requirements of the habitats directive and inadequate EIA under directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment ( the EIA directive)....