The Court of Appeal has referred a question to the Court of Justice of the European Union about whether site-specific conservation objectives are required before a competent authority can carry out a valid appropriate assessment of a development proposal affecting a Special Protection Area.
The reference arises from a challenge by Moya Power and Wild Ireland Defence CLG to An Bord Pleanála’s 2022 permission for changes to an already permitted windfarm in County Waterford. The changes allow turbine tip heights to increase from 126 metres to 155 metres, and the permitted meteorological mast to change from a tubular design up to 80 metres high to a lattice design up to 99 metres.
The Board assessed the proposal’s effects on five European sites, including the Blackwater Callows SPA in Cork and Waterford. The SPA is 13 kilometres from the windfarm site at its nearest point and 13.5 kilometres from the nearest turbine. The appeal concerns only that SPA. The parties do not dispute that there were no site-specific conservation objectives for it when the Board made its decision.
The Board relied on its inspector’s report, which said the site had a generic conservation objectives document. The inspector concluded that the relevant habitats were unsuitable for the SPA’s qualifying-interest species other than the Whooper Swan. Surveys did not indicate Whooper Swans within or near the windfarm site. The Board concluded that the proposal would not adversely affect the SPA’s integrity. The Court of Appeal’s reference records that no party disputes that factual conclusion.
The appellants argued that the absence of site-specific objectives meant the Board lacked jurisdiction to carry out a valid assessment. The Board and State respondents argued that an assessment can proceed without them. The windfarm company, Knocknamona Windfarm Limited, adopted those arguments. The State respondents had conceded in the High Court that Ireland failed to meet its obligations by not establishing the necessary site-specific objectives and conservation measures for the SPA.
The High Court upheld the planning permission on 28 February 2024, finding that an assessment without site-specific objectives was valid on the particular evidence in this case. The Court of Appeal has not resolved the appeal. It referred this EU law question: are valid conservation objectives for an SPA a prerequisite to a competent authority’s jurisdiction to carry out a valid appropriate assessment under Article 6(3) of the Habitats Directive when considering development consent?
The Court also requested that the EU court use its expedited preliminary ruling procedure. It noted that no construction had taken place under either permission and that the original 2016 permission is due to expire on 12 December 2026. The reference itself does not determine the appeal or finally decide the validity of the Board’s permission.