The High Court has ordered the Minister for Housing, Local Government and Heritage to amend a condition attached to a foreshore licence for site investigations linked to the proposed Dublin Array offshore wind farm. The court also decided in principle to refer a separate question about pending projects to the Court of Justice of the European Union (CJEU). The judicial review remains ongoing.
In a judgment delivered on 13 July 2023, Mr Justice Humphreys directed the Minister, before any further steps are taken under the licence, to seek an agreed amendment with RWE Renewables Ireland Ltd. If agreement cannot be reached, the Minister must make the amendment under the licence’s own amendment provision. The revised condition is to require coordination with licence holders whose projects overlap the survey area, to ensure there is no temporal overlap. Where needed, the Minister is to determine the timing of activities.
The order addresses a mismatch between a recommendation by the Marine Licence Vetting Committee and the existing licence condition. The committee had recommended requiring coordination to prevent overlapping projects, while condition 31.13 required the licensee to liaise with the Department and use its “best endeavours” to contact other licence holders. The Minister told the court it was prepared to use the licence amendment power to implement the committee’s recommendation.
The judge refused the applicants’ request for a mandatory consultation process on the amendment, finding one was not needed for what he considered a technical correction implementing the result of the earlier public process. He also refused certiorari—an order quashing the licence—on this part of the challenge, identified as core ground 10, sub-issue F.
A separate issue, sub-issue E, concerns whether an appropriate assessment must consider the potential combined effects of projects that have applied for consent but have not yet received a decision. The applicants argued that the Minister was required to consider those pending projects; the Minister disputed that interpretation. The judge said the question had not been resolved by the CJEU and was suitable for referral. He framed the proposed question around the meaning of Article 6(3) of the Habitats Directive.
The court decided in principle to make that referral, primarily in connection with the applicants’ claim for a declaration on the legal position. It directed the parties to file written submissions within seven days so the formal reference could be finalised on the papers. The applicants’ claim to quash the licence on this issue was adjourned generally, with liberty to return to court; it was not decided.
The court also allowed the parties to file evidence and submissions about whether an interim stay on the licence should continue. That question was scheduled for a further hearing on 24 July 2023. The judgment did not decide the stay issue or finally determine the challenge concerning pending projects.