The Supreme Court has referred questions about European habitat protection rules to the Court of Justice of the European Union in a challenge to permission for a wind farm. The Court found that applicant Edel Grace had standing to pursue the case, but did not decide whether the planning permission was lawful.
The judgment, delivered on 24 February 2017 by Mr Justice Clarke and Ms Justice O’Malley, concerned permission granted by An Bord Pleanála for a wind farm on Coillte-owned land, intended to be developed and operated by ESB Wind Development Limited. The proceedings were brought by judicial review under section 50 of the Planning and Development Act 2000.
The High Court had dismissed the challenge in October 2015 and later refused a certificate that would have allowed an appeal. The Supreme Court granted leave for a direct, or “leapfrog”, appeal under Article 34.5.4 of the Constitution. It held that a party refused a certificate could still ask the Supreme Court for leave to appeal directly if the constitutional threshold was met. The Court said an appeal to the Court of Appeal remained the normal route and considered it appropriate to seek a High Court certificate first unless there were grounds for a direct appeal.
On standing, the Court said Irish law requires a sufficient interest, assessed in environmental cases by considering potential effects on a person’s established interests, the development’s scale and nature, and the person’s proximity or connection to the affected area. A failure to participate in the planning process does not automatically prevent a challenge, though it may be relevant.
Grace lived less than one kilometre from the Special Protection Area and relatively close to the proposed development. She said she chose to live in the area for its natural qualities and was involved in local groups, including a community tourism project. The Court concluded that she had standing. It did not make a final determination on co-applicant Peter Sweetman’s standing, saying it was unnecessary once Grace’s standing was established.
The Court considered the site’s protected status and hen harrier habitat relevant to standing. It said the interests in protecting such a site could extend beyond nearby residents, particularly where a development might affect environmental or amenity values.
The judges concluded that resolving the substantive challenge required an interpretation of Articles 6(3) and 6(4) of the EU Habitats Directive that was not clear. They proposed referring questions to the EU court and allowed the parties 14 days to comment on the proposed reference’s wording. The Supreme Court retained the final decision on its form. The judgment said the reference should seek a procedure for a prompt answer, noting possible effects of delay on the project’s viability. No ruling on the legality of the permission is reported in this judgment.