The High Court has asked the Court of Justice of the European Union (CJEU) to deal urgently with a preliminary reference arising from a challenge to a foreshore licence for site investigations linked to the proposed Dublin Array offshore wind farm. The request concerns the timing of the EU court’s consideration; it does not decide whether the licence is valid or whether the assessment behind it was lawful.
In a judgment delivered on 27 October 2023, Mr Justice Humphreys said he had decided to seek a preliminary ruling on an EU-law issue concerning the obligation to carry out an appropriate assessment under the Habitats Directive. The formal order referring the question was to follow. At the parties’ request, he also asked the CJEU to use its expedited procedure under Article 105 of its Rules of Procedure.
The proceedings were brought by Ivan Toole and Golden Venture Fishing Limited against the Minister for Housing, Local Government and Heritage. RWE Renewables Ireland Limited and the Minister for Agriculture, Food and the Marine are notice parties. The case challenges a five-year foreshore licence granted to RWE Renewables Ireland for geotechnical and geophysical investigations and environmental and weather monitoring connected with Dublin Array, off the coasts of Dublin and Wicklow. The licence agreement was executed on 13 January 2023.
The judge gave two reasons for seeking expedition. He said a prompt ruling could help resolve uncertainty affecting a project that the State considers important to its climate commitments. The licence investigations are intended to inform the design of the proposed wind farm and its cable routes. Dublin Array is one of six Phase One offshore wind projects, and its Maritime Area Consent required a development-permission application by 22 June 2024, subject to possible extension. The judgment also noted a 31 December 2025 deadline for securing a route to market, subject to limited extensions.
The applicants’ environmental argument was conditional. They submitted that proceeding without a lawful appropriate assessment, including consideration of combined effects with pending projects, could pose a serious and immediate risk to the environment and Natura 2000 sites, particularly if the stay on implementing the licence were lifted. The judge set out that submission as a reason supporting expedition; he made no finding in this judgment that the assessment was unlawful or that environmental harm would occur.
The court’s order requests that the CJEU apply the expedited procedure to the pending preliminary reference. The judgment records that a stay on implementation of the licence was then in place. It does not determine the underlying judicial review challenge, lift the stay, or grant or refuse permission for the wind farm.