The High Court has refused the Minister’s application to strike out a challenge to a foreshore licence as moot, ruling that completion of the authorised activities did not prevent the court from granting an effective remedy if the licence is later found invalid.
The judicial review was brought by Coastal Concern Alliance against the Minister for Housing, Local Government and Heritage and the Minister of State responsible for planning and local government. RWE Renewables Ireland Ltd is a notice party. The challenge concerns a licence for surveys to inform the preliminary design of a proposed wind farm array and associated infrastructure.
The alliance alleges that the licence decision breached the Habitats and Environmental Impact Assessment directives. Its pleaded grounds include challenges to the ecological assessment and screening process. The court did not decide those allegations in this ruling.
The Minister and RWE argued that the case had become moot because the developer had completed the activities it intended to carry out under the licence. RWE gave an undertaking that it would carry out no further surveys under the licence and would surrender it as soon as practicable. The alliance had not applied for a stay, despite being given liberty to do so in 2021.
Justice Garrett Simons held that completing the activities did not extinguish the live dispute about the licence’s validity. If the alliance succeeds at the substantive hearing, remedies could still include a remedial environmental assessment or remediation works. The judge said the precise relief would depend on the basis for any finding of invalidity, and that environmental impact could not be definitively assessed on the strike-out motion.
The court therefore denied the Minister’s motion. The substantive judicial review was listed for July 2024 if it was not struck out; this ruling did not determine its merits.
The alliance also sought to prevent future use of survey data obtained under the licence. The judge held that this novel relief was not included in the pleaded case. The alliance was given liberty to seek permission to amend its statement of grounds, with any motion to be filed by 19 April 2024 and returnable for mention on 2 May. The respondents and RWE may object, including on grounds of prejudice and delay.
The judge’s provisional view was that the alliance was entitled to its costs of resisting the motion, but invited submissions on any different costs order at the 2 May listing.