The High Court has quashed the Minister’s decision to grant a foreshore lease for an expanded marine renewable energy test site off Spiddal, finding that the assessment of its effects on protected European sites took account of mitigation measures at the wrong stage.
In a judgment delivered on 5 December 2019, Mr Justice Quinn ruled that the Marine Licence Vetting Committee’s Stage 1 screening under the Habitats Directive relied on measures intended to reduce harmful effects, including limiting work to daylight hours, reducing vessel trips and using materials designed to limit pollution. The Minister had regard to and agreed with the committee’s report when granting the lease to the Marine Institute.
The court said the screening report identified potential harmful effects, including noise, sediment disturbance, collision risks and the displacement of marine life. Its conclusion that significant effects on Natura 2000 sites were unlikely came after discussion of the mitigation measures. Under the European Court of Justice ruling in People Over Wind, such measures cannot be considered at the initial screening stage. The Minister’s determination was therefore contrary to Article 6(3) of the Habitats Directive, and the court made an order of certiorari quashing it.
The proposed site was an upgrade of an existing quarter-scale wave energy test facility, intended to allow testing of wave, tidal and floating wind devices. It was not designed to generate electricity for export to the national grid. The lease application allowed up to three prototype devices at a time, each for no more than 18 months.
The applicant also argued that the environmental impact screening failed to assess cumulative effects, including with the Galway Bay cable and proposed Galway Harbour extension. The court rejected the challenge under the EIA Directive, finding that the test site did not fall within the listed project categories. It also accepted that the committee’s treatment of the cable and projects still in development was consistent with the applicable approach to cumulative effects.
A separate challenge alleged that the decision-maker had not properly considered National Parks and Wildlife Service submissions. The court rejected it, noting that the committee had considered the NPWS’s formal submission; an internal email raising concerns had not been sent to the decision-making department before the decision.
The Minister’s notice had also incorrectly stated that the development would not adversely affect the integrity of any European site, a conclusion associated with a full appropriate assessment. The court found that no Stage 2 assessment had taken place, but held that the error did not itself justify quashing the decision because the accessible reports made clear that the decision rested on Stage 1 screening. The court refused declarations on the EIA and NPWS grounds. It said it would hear counsel on the form of the final order.