The High Court has referred eight questions about environmental assessment to the Court of Justice of the European Union in a judicial review challenge to a five-year foreshore licence for site investigations linked to the proposed Dublin Array offshore wind farm.
In a judgment delivered on 21 December 2023, Mr Justice Humphreys formally stayed the substantive finalisation of the Irish proceedings pending the EU court’s ruling. The reference seeks an expedited procedure. The High Court did not decide in this judgment whether the licence was lawful or should be quashed.
The licence, granted to RWE Renewables Ireland Ltd, authorised geotechnical and geophysical investigations and ecological, wind, wave and current monitoring off the coasts of counties Dublin and Wicklow. The work was intended to provide data to refine the proposed wind farm’s design, cable routes, landfall design and installation methods. The licence agreement was executed on 13 January 2023.
The applicants, Ivan Toole and Golden Venture Fishing Limited, challenged the licence. The judgment records that the environmental assessment considered the project’s cumulative effects alongside projects that had already received consent, but not projects with consent applications still pending. The applicants argued that pending projects should have been considered. The State and the first notice party disputed that interpretation of EU law.
The questions referred include whether “in combination with other plans or projects” in the Habitats Directive covers projects awaiting consent; what reasonable steps an authority must take to identify other projects; and how a court should approach a possible remedy if an assessment is found incomplete. The High Court set out proposed answers, including that authorities must take reasonable steps to identify relevant projects. Those are the referring court’s views, not rulings by the EU court.
The case had already involved interim and interlocutory stays of the licence. The High Court also records earlier orders addressing other issues, including an order of mandamus concerning amendment of the licence. On 11 December 2023, it amended that order so it was directed to the Maritime Area Regulatory Authority, following the transfer of relevant functions. The judgment says the parties’ appeals had not, at that time, changed the need for or terms of the EU reference.
The High Court adjourned the remaining substantive issues pending the EU court’s judgment, while leaving open the determination of appropriate procedural or interlocutory matters in the meantime. It reserved the costs relating to the reference and adjourned other outstanding costs.