The High Court has referred a legal question to the Court of Justice of the European Union (CJEU) in a challenge concerning grid connection works for Cullenagh Windfarm. It has not yet given final judgment on the applicants’ challenge to Coillte’s decision that the works did not require a Stage 2 Appropriate Assessment.
People Over Wind and Peter Sweetman brought judicial review proceedings against Coillte Teoranta over a determination made on 14 July 2016 under the European Communities (Birds and Natural Habitats) Regulations 2011. The determination concerned works to connect the wind farm to the ESBN substation at Abbeyleix Road in Portlaoise.
The applicants seek to have the determination quashed and a declaration that it breached the Habitats Directive. They argue that the works, alone or in combination with other plans or projects, could significantly affect a European Site and therefore required a Stage 2 Appropriate Assessment. They also contend that Coillte wrongly considered mitigation measures at the initial screening stage, and that the proposed measures were not clearly defined or part of an enforceable development consent.
Coillte maintains that its determination complied with the applicable rules and that the screening did not require a Stage 2 assessment. It argues that protective measures built into a project’s design can be considered at the screening stage.
Mr Justice Max Barrett said the question of whether avoidance or mitigation measures may be considered at screening was central to the proceedings. He noted that the European Commission’s guidance and Irish departmental guidance took a different approach from the reasoning in an English court decision, while previous Irish High Court cases had not conclusively settled the general issue. The CJEU had not ruled on that precise question.
The judge will refer this question to the CJEU: whether avoidance or mitigation measures forming part of a plan or project can, as a matter of law, be considered at the screening stage. He rejected Coillte’s submission that references are generally a matter for appellate courts, stating that the High Court was competent to make a reference where an answer was necessary to decide the case.
The judgment does not determine whether the challenged screening decision was lawful or whether the works require a Stage 2 assessment. The court said it would give final judgment in the judicial review application after receiving the CJEU’s answer. The applicants had said the Nore Freshwater Pearl Mussel, which they described as potentially endangered by the proposal, could be at risk; the court made no finding on that claim.