Toole and Another v The Minister for Housing, Local Government and Heritage and Another

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 03 July 2023
• Neutral Citation: [2023] IEHC 378
• Court: High Court
• Docket Number: [2023 No. 407 JR]

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

RWE Renewables Ireland Limited and The Minister for Agriculture, Food and The Marine

Notice Parties

[2023] IEHC 378

[2023 No. 407 JR]

THE HIGH COURT

JUDICIAL REVIEW

(No. 3)

JUDGMENT of Humphreys J. delivered on the 3rd day of July, 2023

Judgment history

1 . In ( [2023] IEHC 263 Toole and Another v. Minister for Housing and Others (No. 1) Unreported, High Court, 22nd May, 2023), I granted an interim stay on the foreshore licence impugned in the proceedings.

2 . In ( [2023] IEHC 317 Toole v. Minister for Housing (No. 2) Unreported, High Court, 16th June, 2023), I continued the stay on an interlocutory basis.

3 . I am now dealing with the main module of the substantive challenge (later potential modules to look forward to include issues regarding Luxembourg and the stay revisited).

Facts

4 . On 26th May, 2010, Dalkey Island Special Protection Area (SPA) was designated by the European Communities (Conservation of Wild Birds (Dalkey Islands Special Protection Area 004172)) Regulations 2010 ( S.I. No. 238 of 2010). The qualifying interests were:

Sterna dougallii (Roseate Tern) [A192];

Sterna hirundo (Common Tern) [A193]; and

Sterna paradisaea (Arctic Tern) [A194].

5 . On the same date, the Lambay Island SPA was established by the European Communities (Conservation of Wild Birds (Lambay Island Special Protection Area 004069)) Regulations 2010 ( S.I. No. 242 of 2010). The qualifying interests were:

Reefs [1170];

Vegetated sea cliffs of the Atlantic and Baltic coasts [1230];

Halichoerus grypus (Grey Seal) [1364]; and

Phoca vitulina (Harbour Seal) [1365].

6 . On 8th March, 2019, the Rockabill to Dalkey Island Special Area of Conservation (SAC) was defined by the European Union Habitats (Rockabill to Dalkey Island Special Area Of Conservation 003000) Regulations 2019 ( S.I. No. 94 of 2019). This specified the qualifying interests as:

Reefs [1170]; and

Phocoena phocoena (Harbour Porpoise) [1351].

7 . On 22nd October, 2019, the South Dublin Bay SAC was established by the European Union Habitats (South Dublin Bay Special Area of Conservation 000210) Regulations 2019 (S.I. No. 525 of 2019). The qualifying interests were:

Mudflats and sandflats not covered by seawater at low tide [1140];

Annual vegetation of drift lines [1210];

Salicornia and other annuals colonising mud and sand [1310]; and

Embryonic shifting dunes [2110].

8 . On 25th January, 2021, a previous licence was granted in favour of the first named notice party (reference FS 007029) with effect from December, 2020, and on foot of that the first named notice party carried out what is referred to in the papers as a “2020 site investigation campaign”, although that appears to have happened in 2021.

9 . The licence now under challenge was sought under s. 3 of the Foreshore Act 1933 on 1st October, 2021, to undertake geotechnical and geophysical site investigations and ecological, wind, wave and current monitoring to provide further data to refine wind farm design, cable routing, landfall design and associated installation methodologies for the proposed Dublin Array offshore wind farm off the coast of counties Dublin and Wicklow.

10 . We perhaps should pause here to clarify the distinction between geotechnical and geophysical investigations (see society of Underwater Technology Guidance):

• (i) Geotechnical investigations tend to be conducted over a wider area and use intrusive techniques to investigate the seabed, involving the taking of physical samples or in situ testing.

• (ii) Geophysical investigations use remote sensing techniques, to achieve various objectives including, for example, the characterisation of the seabed, shallow soils and geology, and to identify any man-made or naturally occurring hazards or objects on the seabed, involving the use of various acoustic, magnetic, electrical or optical based instruments and systems.

11 . The geotechnical and geophysical surveying proposed by RWE are set out in the Investigative Foreshore Licence Application, tab 4, page 39, page 4 and 5 of exhibit IT1.

• (i) Geotechnical:

  • (a) Geotechnical boreholes;

  • (b) Deep push seafloor Cone Penetration Tests (CPT); and

  • (c) Vibrocores.

• (ii) Geophysical:

  • (a) Refraction surveys;

  • (b) 2D UHR & geophysical survey including Bathymetric Survey, Side Scan Sonar, Shallow Reflection Seismic (Sub-bottom Profiling) and Marine Magnetometer; and

  • (c) Geophysical survey including Bathymaetric Survey, Side Scan Sonar, Shallow Reflection Seismic (Sub-bottom Profiling) and Marine Magnetometry.

12 . The application was accompanied by supporting documentation including a Natura Impact Statement and an Appropriate Assessment screening report which were annexes to a Supporting Information Report.

13 . Two public consultation exercises took place in this matter.

14 . The first consultation took place on foot of the application for the licence. That was advertised on 17th November, 2021 and took place from 18th November to 17th December, 2021. A copy of the application, relevant documents, maps and drawings were available for inspection at specified locations.

15 . Some 17 submissions were made during the public consultation process as well as 8 submissions by prescribed bodies. Neither applicant made a submission at this stage.

16 . The developer gave a response on 11th February, 2022 following the submissions from prescribed bodies.

17 . It then submitted a more extensive 86-page response on the public submissions on 22nd March, 2022.

18 . In May 2022, an independent environmental consultant (IEC), Hartley Anderson Ltd, prepared an appropriate assessment (AA) screening report to inform the Minister.

19 . The Minister was also informed by an Environment Screening Stage Report prepared by the Department's Marine Advisor dated 20th June, 2022 which accepted that likely significant effects could not be discounted.

20 . The Minister then published an AA Screening Determination on 20th June, 2022.

21 . On foot of this, the Minister carried out a second public consultation exercise, which took place under reg. 42 of the European Communities (Birds and Natural Habitats Regulations) 2011 ( S.I. No. 477 of 2011) from 30th June to 29th July, 2022 in respect of the AA Screening.

22 . The first named applicant made a short submission on 30th June, 2022 as follows:

“I'm a fisherman working in this area, I've 3 vessels and 7 lads working here for 20 plus years, there's been no consultation with fishermen as to where theses wind farms will be placed, it's been a bully boy attitude that the[y']re going to be built so get onboard, There's been more lies told to Europe by our government on the status of kish, bray and codling banks than you could make up, this has been brought to the attention of European Commission by many groups including fishermen, I'm part of an existing industry operating in this area and I won[']t be moving from this area for Rwe/codling or any other windfarm company's (ESB).”

23 . The second named applicant did not make any submission during the consultation.

24 . There were further observations by certain prescribed bodies (Foreshore Marine Advisors, Commissioners of Irish Lights and Inland Fisheries Ireland) and a response to those submissions was submitted by the developer on 10th August, 2022.

25 . There were 19 public submissions made at this juncture and the developer prepared responses, which were submitted to the Department on 16th August, 2022 and on 30th August, 2022.

26 . A further report was prepared by Arup and Hartley Anderson in September 2022 and the Department's Marine Advisor also prepared a report with an attached AA Conclusions Statement.

27 . The Marine Licence Vetting Committee (MLVC) reported in November 2022 and concluded that, with site specific conditions and taking account of the totality of the documentation on file and subject to compliance with specific conditions, the proposed works would not adversely affect fishing, navigation or the environment and were in the public interest, and that the proposed site investigation activities, individually or in combination with other plans or projects, will not adversely affect the integrity of European sites outlined in the report in view of the sites' conservation objectives.

28 . A submission was made to the Minister accordingly, entitled Submission HLG 00537-22: Appropriate Assessment Determination on Foreshore Application FS007188 RWE Renewables Ireland Ltd., Site Investigations for the proposed Dublin Array offshore wind farm, which was approved by Minister of State Burke on 23rd November, 2022.

29 . The impugned five-year foreshore licence itself was executed by licence agreement on 13th January, 2023.

30 . Notice of the licence was published in Iris Oifigiúil on 27th January, 2023 pursuant to s. 21A of the 1933 Act. The first named notice party then proceeded to notify interested parties that borehole drilling would commence in April, 2023.

31 . On 20th April, 2023, the applicants gave notice of an intention to bring proceedings and to seek a “stay or similar relief”. The first named applicant received a notice that, weather permitting, the array borehole element of the survey was intended to commence on 23rd April, 2023.

Procedural history

32 . On 26th April, 2023, proceedings issued and were mentioned to Holland J. Strictly speaking, the proceedings were out of time on the basis of time running from the date of the decision, but given that one can reasonably assume that the applicants were not made aware of the decision until its publication in Iris Oifigiúil,...