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

• Jurisdiction: Ireland
• Judge: Humphreys J.
• Judgment Date: 21 December 2023
• Neutral Citation: [2023] IEHC 716
• 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 and The Maritime Area Regulatory Authority (By Order)

Respondents

and

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

Notice Parties

[2023] IEHC 716

[2023 No. 407 JR]

THE HIGH COURT

JUDICIAL REVIEW

Foreshore licence – Reference – Article 6(3) of Council Directive 92/43/EEC – Referring court seeking a preliminary ruling concerning the interpretation of Article 6(3) of Council Directive 92/43/EEC – Whether the questions to be referred to the CJEU for a preliminary ruling were relevant

Facts: The applicants, Mr Toole and Golden Venture Fishing Ltd, challenged the grant of a five-year foreshore licence by the first respondent, the Minister for Housing, Local Government and Heritage, to the first notice party, RWE Renewables Ireland Ltd, 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, which was executed by licence agreement on 13th January, 2023. A preliminary ruling was requested concerning the interpretation of Article 6(3) of Council Directive 92/43/EEC of 21 May, 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206 22.7.1992, p. 7). The referring court sought the expedited procedure for the reference. The first applicant requested the referring court to inform the CJEU that he did not wish his name to be anonymised for the purposes of the proceedings in the CJEU and therefore that he could be named by the CJEU including by way of the publication of materials or of the judgment of that court.

Held by the High Court (Humphreys J) that eight questions set out in the judgment in relation to which the expedited procedure under Article 105 of the Rules of Procedure of the CJEU was requested, be referred to the CJEU pursuant to Article 267 TFEU. Humphreys J ordered that the CJEU be requested to note that the first applicant had requested the referring court to inform the CJEU that he did not wish his name to be anonymised for the purposes of the proceedings in the CJEU and therefore that he could be named by the CJEU including by way of the publication of materials or of the judgment of that court. Humphreys J ordered that the substantive determination of the remaining elements of the proceedings be adjourned pending the judgment of the CJEU, without prejudice to the determination of any appropriate procedural or interlocutory issues in the meantime. Humphreys J ordered that the parties be required to comply with the directions regarding preparation of papers for transmission to the CJEU as set out in Guidance Notes attached to Practice Direction HC124, so that all papers were received by the List Registrar by 13:00 on 12th January, 2024, at the latest. Humphreys J ordered that the parties be required to comply with the directions to keep the referring court informed of progress of the reference as set out in para. 100(vii) of Eco Advocacy CLG v An Bord Pleanála [2021] IEHC 610. Humphreys J ordered that the CSSO be requested to draw the attention of the Attorney General’s Office and the Law Reform Commission to the errors on the statute book website and the commission’s website as set out in the judgment.

Humphreys J ordered that the matter be listed for mention on 15th January, 2024 to confirm progress in relation to the foregoing and for directions as to the sequence and timing of hearing any interlocutory or procedural issues in relation to the proceedings including any issue on costs other than in relation to the reference. Humphreys J ordered that the costs relating to the reference be reserved with liberty to apply, and the costs, other than relating to the reference and not already disposed of, be adjourned to a date to be fixed.

Reference to CJEU.

(No. 7)

JUDGMENT of Humphreys J. delivered on Thursday the 21st day of December, 2023

1 . This request for a preliminary ruling concerns the interpretation of Article 6(3) of Council Directive 92/43/EEC of 21 May, 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206 22.7. 1992, p. 7).

2 . The request is being made in proceedings challenging the grant of a five-year foreshore licence by the respondent to the first named notice party 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, which was executed by licence agreement on 13th January, 2023.

Expedited procedure

3 . The referring court is seeking the expedited procedure for the reference. Reasons for this request are set out in a separate judgment.

Anonymisation

4 . The first-named applicant has requested the referring court to inform the CJEU that he does not wish his name to be anonymised for the purposes of the proceedings in the CJEU and therefore that he can be named by the CJEU including by way of the publication of materials or of the judgment of that court.

Legal context

European Union law

5 . Article 4(3) TEU provides:

“3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives”.

6 . Article 191 TFEU provides:

“1. Union policy on the environment shall contribute to pursuit of the following objectives:

— preserving, protecting and improving the quality of the environment,

— protecting human health,

— prudent and rational utilisation of natural resources,

— promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.

3. In preparing its policy on the environment, the Union shall take account of:

— available scientific and technical data,

— environmental conditions in the various regions of the Union,

— the potential benefits and costs of action of lack of action, — the economic and social development of the Union as a whole and the balanced development of its regions.

4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned.

The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.”

7 . Article 6(3) of Directive 92/43 provides:

“3. Any plan or 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 and subject to the provisions of paragraph 4, 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”.

8 . Annex IV para. 5(e) of 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 (OJ L 026, 28. 1.2012, p. 1) ( http://data.europa.eu/eli/ dir/2011/92/2014-05-15) provides that assessment shall include:

“5. A description of the likely significant effects of the project resulting from, inter alia: …

(e) the cumulation of effects with other existing and/or approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources; …”

9 . Other relevant EU law material referred to by the parties includes:

• (i) Judgment of 16 December 1981, Pasquale Foglia v Mariella Novello, C-244/80, ECLI:EU:C:1981:302 ( https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61980CJ0244);

• (ii) Judgment of 21 September 1999, Commission v Ireland, C-392/96, ECLI:EU:C:1999:431 ( https://curia.europa.eu...