The High Court has referred a question about conservation objectives and bird-protection rules to the Court of Justice of the European Union (CJEU) in a challenge to planning permission for a wind farm on the Cork/Waterford border.
Mr Justice Humphreys said the court could exclude any reasonable possibility that a failure to consider conservation objectives or measures would affect a European site. He therefore refused to quash the planning permission, regardless of the CJEU’s answer. The reference will help the High Court decide whether to grant a declaration concerning the State’s failure to establish site-specific conservation objectives and measures for the Blackwater Callows Special Protection Area (SPA).
The project, proposed by Curns Energy Limited, includes 17 turbines in two clusters, a substation and a lithium-ion battery storage facility. The Blackwater River (Cork/Waterford) Special Area of Conservation borders the development site to the north-east; the Blackwater Callows SPA is 9.9km away. That SPA includes the Whooper Swan as a qualifying interest.
The court’s question asks whether EU law requires an authority, when screening a project for likely significant effects on a protected site, to refer to conservation objectives or measures established for that site, including a site proposed to be screened out. The applicant, Paddy Massey, argued that objectives are necessary for screening and that the absence of conservation measures compounds the problem. The State, An Bord Pleanála and Curns each argued that the absence of objectives or measures does not create a jurisdictional bar to screening. Those positions are submissions; the High Court has not decided the referred question.
The court recorded that the Minister had agreed to consent to a declaration that State respondents failed to meet obligations under EU nature-protection law and transposing legislation by not having the required site-specific objectives and measures in place. Generic objectives for the SPA were adopted on 26 January 2022, and site-specific objectives and measures followed on or about 24 March 2024. The judgment does not make the proposed declaration: that question remains for determination after the CJEU rules.
The planning application was made on 8 January 2021. An Bord Pleanála granted permission on 8 November 2023, after receiving public observations, further information and an inspector’s recommendation. The High Court proceedings began on 11 January 2024. After hearing the matter in March 2025 and further mentions in March and April, the court stayed the balance of the case and referred the EU-law question. It also requested that the reference receive priority or be joined with CJEU Case C-27/25, Knocknamona. The substantive determination of the remaining proceedings is adjourned pending the CJEU’s judgment.