The High Court has quashed a foreshore licence for surveys off the Dublin coast after the State conceded that the approval process did not comply with the Habitats Directive. The court remitted the original licence application to the Minister for Housing, Local Government and Heritage for reconsideration under the correct legal test.
In a judgment delivered on 2 September 2024, Mr Justice Garrett Simons set aside the decision made on 12 November 2020 to grant the licence to RWE Renewables Ireland Ltd. It covered geophysical surveys, seabed sampling, geotechnical surveys and buoy-mounted monitoring equipment about 10 kilometres off the Dublin coast, near Kish and Bray Banks.
The judge found that the decision-making record blurred the two stages of assessment required under the Directive. The Minister’s approved recommendation referred to excluding likely significant effects on European sites “on the basis of mitigation”. The court said mitigation cannot be considered at the initial screening stage; where significant effects cannot be ruled out at that stage, a full appropriate assessment must follow. The record did not show that the Minister had applied the required test for that assessment.
The applicant, Coastal Concern Alliance, also sought to amend its case to obtain a declaration barring the developer from relying on survey data gathered under the licence in future development consent applications. The court refused leave to amend. It said the proposed relief would introduce a substantially new claim against the developer, and the applicant had not properly explained why it waited about three years to seek the change. The judge found that allowing it at that stage would cause significant prejudice.
The developer had submitted that repeating surveys would cost more than €7 million and delay a wind farm application by at least 18 to 24 months on the most optimistic estimate. The judgment considered those claimed consequences in deciding whether to allow the late amendment; it did not make a finding that the developer was liable for them.
The judge also addressed the proposed declaration in case the refusal to amend was overturned on appeal. He said the claim would impose a novel remedy directly on a private developer under the Directive, and concluded that the developer had provided the decision-maker with the correct legal test and sufficient information. The court said the developer bore no responsibility for the Minister’s legal error.
The court ordered the original application returned to the Minister for reconsideration. It said this would provide a route to assess whether the completed activities caused environmental harm and what remedy might be required. The precise form of the order and the parties’ costs remain for later submissions; the case is to be listed for those submissions on a date in October.