The High Court dismissed James Kavanagh’s judicial review challenge to planning permission for a proposed solar farm in Wicklow, finding that the project did not fall within the classes requiring an environmental impact assessment (EIA). The court reserved the question of costs for a later hearing.
Wicklow County Council granted permission for the development on 13 June 2018. Kavanagh appealed to An Bord Pleanála, which decided in February 2019 to grant permission in line with its inspector’s recommendation. The inspector had concluded that a solar farm was not among the project types listed in the relevant planning regulations as requiring an EIA.
Kavanagh then obtained leave to seek judicial review. At the substantive hearing, his case focused on whether the EU EIA Directive or Ireland’s planning regulations required an assessment for the development. He argued that the directive’s reference to industrial installations producing electricity covered the solar farm. He also argued that, if solar developments were excluded, the State had failed to transpose the directive properly.
Mr Justice Brian O’Moore rejected those arguments. He interpreted the directive’s category for industrial installations producing electricity, steam and hot water as referring to installations producing those outputs together. He said reading it to cover every electricity-producing installation would make separate provisions for hydroelectric and wind power unnecessary. He also considered the EU legislative history and earlier case law.
The judge held that solar farms were not within Annex I or Annex II of the 2014 directive and were not covered by the corresponding category in Schedule 5 of the Planning and Development Regulations 2001. He said the regulations mirrored the directive in the relevant respects. Since the directive did not require an EIA for solar farm planning applications, he found no failure by the State to give effect to it.
O’Moore also declined to refer any question to the Court of Justice of the European Union, saying the legal issue was sufficiently clear to decide. He noted that another High Court judgment, Sweetman v An Bord Pleanála, had reached the same conclusion on the central issue. The judicial review was dismissed; the court did not decide costs at that stage.