The High Court has certified an appeal on whether valid conservation objectives for a protected site are a precondition to An Bord Pleanála carrying out an appropriate assessment under EU habitats law.
Mr Justice David Holland ruled on 1 May 2024 that the proposed point of law was of exceptional public importance, that the law was uncertain to the required degree, and that an appeal was desirable in the public interest. The question certified is: “Are valid conservation objectives for a Special Protection Area a pre-requisite to the Board’s jurisdiction to carry out a valid Appropriate Assessment under Article 6(3) Habitats Directive and thus grant planning permission?”
The application followed the court’s substantive judgment in a judicial review brought by Moya Power and Wild Ireland Defence CLG over An Bord Pleanála’s September 2022 permission for amendments to a windfarm permitted in 2016. The amendments included increasing the maximum turbine tip height from 126 metres to 155 metres and changing the meteorological mast. The court had refused to quash the permission.
In the substantive case, the State conceded a declaration that it had failed to meet its obligations under the Birds and Habitats Directives by not establishing the necessary site-specific conservation objectives and measures for the Blackwater Callows Special Protection Area. The Board had carried out an appropriate assessment using generic objectives dated 26 January 2022.
The judge said the applicants’ jurisdictional argument—that the Board could not conduct an assessment without valid objectives—was arguable, but he had rejected it in the substantive judgment. He had found that, on the particular facts, the Board could identify the whooper swan as the relevant conservation interest, assess the risk of collision with turbine rotors, and conclude with reasonable scientific certainty that the project would not adversely affect the site’s integrity. The substance of that no-adverse-effect conclusion was not challenged in those proceedings.
In considering certification, the judge said the absence of a threat to the site’s integrity meant the applicants could not rely on that protection as a public-interest reason for appeal. He also considered the potential delay to the windfarm, but said it weighed somewhat, though not greatly, against certification. He concluded that the legal issue could affect other planning applications and judicial reviews, noting the State’s concession about the protected site and the possibility that generic conservation objectives had been used elsewhere.
The Board and the windfarm company opposed certification; the State took no position on the application. The court said it would certify the point of law for appeal. It was provisionally of the view that the applicants should receive their costs of the certification application and listed the matter for mention on 13 May 2024 to make orders. The judgment does not determine the appeal itself.