Ui Mhuirnin v Minister for Housing Planning and local Government

• Jurisdiction: Ireland
• Judge: Mr. Justice Quinn
• Judgment Date: 05 December 2019
• Neutral Citation: [2019] IEHC 824
• Date: 05 December 2019
• Court: High Court
• Docket Number: [2018/212 J.R.]

IN THE MATTER OF THE FORESHORE ACT 1933, AS AMENDED

BETWEEN

MÁIRE UÍ MHUIRNÍN

APPLICANT

AND

MINISTER FOR HOUSING, PLANNING AND LOCAL GOVERNMENT

RESPONDENT

AND

THE MARINE INSTITUTE

NOTICE PARTY

AND

SUSTAINABLE ENERGY AUTHORITY OF IRELAND (BY ORDER)

NOTICE PARTY

[2019] IEHC 824

Quinn

[2018/212 J.R.]

Com. 2018/90

THE HIGH COURT

JUDICAL REVIEW

05/12/2019 No. 2018/212 JR

Planning and development – Renewable energy – Wind wave and tidal test facility – Grant of foreshore lease – Application for judicial review

Facts: The respondent had in 2017 granted a foreshore lease under the Foreshore Act 1933 for the upgrade of an energy wind wave and tidal test facility off the coast in County Galway. The applicant who lived at the sea shore in Spiddal, County Galway objected and had been granted leave to seek judicial review of the decision to grant a lease. The applicant argued, inter alia, that the grant was in breach of Directives 2011/92/EU and 92/43/EEC.

Held by the Court, that the application for judicial review would be allowed in part. Having considered the domestic and EU jurisprudence on Directive 92/43/EEC, it was clear that the respondent had wrongly relied on recommendations that were not appropriate to take into account. The Court was not persuaded to make a declaration in respect of Directive 2011/92/EU or that the respondent had failed to consider submissions from the National Parks and Wildlife service.

The Court invited submissions from counsel on the resulting order to be made

JUDGMENT of Mr. Justice Quinn delivered on the 5th day of December, 2019

1 On 15th December, 2017 the Respondent published notice that he had determined (“the Determination”) to grant a Foreshore Lease to the First Notice Party, the Marine Institute, pursuant to s.2 of the Foreshore Act 1933 for the installation of a ¼ scale renewable energy wind wave and tidal test facility, at a location 2.8 km from the pier at Spiddal, Co. Galway, at a point which is 1.3 km from the shore at its nearest point east of Spiddal. The proposed facility is described as the Galway Bay Marine and Renewable Energy Test Site (“the Test Site”).

2 The Applicant lives at the sea shore near Spiddal. By order of Meenan J. made on 12 March, 2018, she was granted leave to apply for judicial review of the Determination to grant a Foreshore Lease on the grounds of alleged failure to comply, inter alia, with provisions of the Environmental Impact Assessment Directive (2011/92/EU) and the Habitats Directive (92/43EEC)

3 Since 2006 there has operated at the same location a ¼ scale wave energy Test Site for prototype wave energy converters, a Foreshore Lease having been granted for this facility in 2006 by the then Department of Communications, Marine and Natural Resources. The site is operated by the Second Notice Party, Sustainable Energy Authority of Ireland, (“SEAI”), and the First Notice Party, the Marine Institute. It is described as the “Galway Bay ¼ Scale Wave Energy Test Site” or “The Original Test Site” and was for testing only wave energy devices.

4 The description “1/4 scale” refers to both the Test Site conditions which are gentler than those in which a commercial operation would function and to the devices to be tested which are a maximum of one quarter the size of a commercial sized device. The Test Site the subject of the Determination was for an upgrade of the original site which would allow for the testing for a wider range of marine renewable energy devices suitable for testing not only wave energy but also wind and tide devices.

5 The site is said to cover an area of 37 hectares in total, although the physical dimension of the station itself at its longest and widest points is 563m x 670m.

6 In April 2015 a telecommunications cable was installed between the original Test Site and a shore station via Spiddal pier. Its installation was sanctioned under a separate foreshore licence granted by the Respondent. This cable supplies power to the original Test Site and will allow data transfer for testing marine technology and renewable ocean energy devices. This is referred to as the Galway Bay Cable. Whilst electrical power is supplied to the site via this sub – sea cable, there will be no capacity to export power to the national grid from any device deployed at the site.

Grounds for this application

7 The principal grounds of this Application are as follows: -

(1) That the decision was contrary to the Environment Impact Assessment Directive 2011/92/EU (“the EIA Directive”). It is claimed that the Respondent failed to carry out adequate screening for environmental impact assessment in accordance with Annex III to the EIA Directive and/or failed to assess the accumulation of the proposed activity pursuant to the Foreshore Lease with other existing and/or approved and/or reasonably foreseeable projects.

(2) That the decision of the Respondent is contrary to Directive 92/43/EEC of 21 May, 1992, on the conservation of natural habitats and of wild fauna and flora, as amended (“The Habitats Directive”). It is alleged that the Respondent unlawfully assessed mitigation measures when carrying out Stage 1 screening for appropriate assessment contrary to Article 6(3) of the Habitats Directive and contrary to established case law of the Court of Justice of the European Union and the courts of the State.

(3) That the Respondent did not adequately consider and/or assess the best available scientific information, in particular, by a failure to assess submissions or observations made by the National Parks and Wildlife Service. (The Statement of Grounds referred also to a failure to assess submissions of Bird Watch Ireland and Inland Fisheries Ireland, but the submission as regards those two bodies was not pursued at the hearing).

(4) That the Respondent erred on the face of the record by reciting the test for Stage 2 Appropriate Assessment pursuant to the Habitats Directive when no Natura Impact Statement (“NIS”) had been submitted by the Notice Party. The Notice of Determination recorded a conclusion that the proposed development would not adversely affect the integrity of any European site, a conclusion which can only be made after an appropriate assessment had been undertaken.

8 In the Statement of Grounds, the Applicant had sought a declaration that the Respondent erred and acted in breach of the Foreshore Act 1933 in granting a Foreshore Lease to the Notice Party without a Foreshore Site Investigation Licence having been granted to the Notice Party in advance. This matter was not pursued at the hearing.

9 In the Statement of Grounds, the Applicant had also sought a declaration that in discharging functions under the Act and determining applications for Foreshore Leases the principle of curial deference does not apply as the Respondent is not vested with special skills, competence or expertise in adjudicating applications for Foreshore Leases. The Order granting leave to apply for judicial review did not extend to this ground

The Notice Parties

10 The Second Named Notice Party, Sustainable Energy Authority of Ireland, (“the SEAI”), is a body established pursuant to s.4 of the Sustainable Energy Act 2002. Its functions are to promote and assist environmentally and economically sustainable production supply and use of energy, to promote and assist energy efficiency and renewable sources and to promote and assist research, development and demonstration of technologies connected with the development of environmentally and economically sustainable energy production. SEAI has overall responsibility for the Original Test Site and is intended to have overall responsibility for the expanded Test Site.

11 The Marine Institute was established under the Marine Institute Act 1991. It is a state agency responsible for marine research technology and innovation and the provision of scientific and technical advice to government to assist in the development of policy and to support sustainable development of marine resources.

12 The Marine Institute operates the Original Test Site under a service level agreement with SEAI. It is the applicant for and the grantee of the Foreshore Lease and it is intended that it would operate the Test Site.

The Application for Foreshore Lease

13 The application for the Foreshore Lease was submitted by the Marine Institute on 11 February, 2016. The application form itself is quite basic, but the completed form is supported by a series of reports made by the Marine Institute itself and by consultants retained by it.

14 On 6th April, 2016 a revised application was made with some modifications to the height of the proposed wind turbine blades.

Application Form

15 The form states that the purpose of the application is to allow for the upgrade of the Original Site infrastructure and the deployment of a wider range of renewable energy devices and novel marine sensors and technologies. No increase in the scale of the site was sought. The application allows for a maximum of three test devices at any given time, each subject to a maximum deployment duration of eighteen months. Those devices would include wave, tidal and floating wind devices. The Test Site is proposed to be structured into three berths to allow for up to three prototype devices to be deployed and tested at any one time, with only one floating wind device permitted at one time. It was said that there will be no construction activity undertaken above or below sea level.

16 Basic information is given concerning boating activity in the area, concerning noise levels, and in response to the question concerning visual impact, the following information is provided: -

“In clear viewing conditions, the proposed Galway Bay Marine and Renewable Energy Test Site will be a noticeable concentration of variant, but apparently associated, structures covering a small geometric section of Galway Bay. The structures may...