High Court dismisses most grounds challenging offshore wind licences under Foreshore and Planning Acts.

[2023] IEHC 378

THE HIGH COURT

JUDICIAL REVIEW

[2023 No. 407 JR]

IN THE MATTER OF SECTIONS 21B AND 3 OF THE FORESHORE ACT 1933, AS AMENDED

AND IN THE MATTER OF SECTION 50B OF THE PLANNING AND DEVELOPMENT ACT 2000,

AS AMENDED

BETWEEN

IVAN TOOLE

AND

GOLDEN VENTURE FISHING LIMITED

APPLICANTS

AND

THE MINISTER FOR HOUSING, LOCAL GOVERNMENT AND HERITAGE

RESPONDENT

AND

RWE RENEWABLES IRELAND LIMITED AND THE MINISTER FOR AGRICULTURE, FOOD

AND THE MARINE

NOTICE PARTIES

(No. 3)

JUDGMENT of Humphreys J. delivered on the 3rd day of July, 2023

Judgment history

1. In Toole v. Minister for Housing and Others (No. 1) [2023] IEHC 263 (Unreported, High

Court, 22nd May, 2023), I granted an interim stay on the foreshore licence impugned in the

proceedings.

2. In Toole v. Minister for Housing (No. 2) [2023] IEHC 317 (Unreported, High Court, 16th

June, 2023), I continued the stay on an interlocutory basis.

3. I am now dealing with the main module of the substantive challenge (later potential modules

to look forward to include issues regarding Luxembourg and the stay revisited).

Facts

4. On 26th May, 2010, Dalkey Island Special Protection Area (SPA) was designated by the

European Communities (Conservation of Wild Birds (Dalkey Islands Special Protection Area 004172))

Regulations 2010 (S.I. No. 238 of 2010). The qualifying interests were:

Sterna dougallii (Roseate Tern) [A192];

Sterna hirundo (Common Tern) [A193]; and

Sterna paradisaea (Arctic Tern) [A194].

5. On the same date, the Lambay Island SPA was established by the European Communities

(Conservation of Wild Birds (Lambay Island Special Protection Area 004069)) Regulations 2010 (S.I.

No. 242 of 2010). The qualifying interests were:

Reefs [1170];

Vegetated sea cliffs of the Atlantic and Baltic coasts [1230];

Halichoerus grypus (Grey Seal) [1364]; and

Phoca vitulina (Harbour Seal) [1365].

6. On 8th March, 2019, the Rockabill to Dalkey Island Special Area of Conservation (SAC) was

defined by the European Union Habitats (Rockabill to Dalkey Island Special Area Of Conservation

003000) Regulations 2019 (S.I. No. 94 of 2019). This specified the qualifying interests as:

Reefs [1170]; and

Phocoena phocoena (Harbour Porpoise) [1351].

7. On 22nd October, 2019, the South Dublin Bay SAC was established by the European Union

Habitats (South Dublin Bay Special Area of Conservation 000210) Regulations 2019 (S.I. No. 525 of

2019). The qualifying interests were:

Mudflats and sandflats not covered by seawater at low tide [1140];

Annual vegetation of drift lines [1210];

Salicornia and other annuals colonising mud and sand [1310]; and

Embryonic shifting dunes [2110].

8. On 25th January, 2021, a previous licence was granted in favour of the first named notice

party (reference FS 007029) with effect from December, 2020, and on foot of that the first named

notice party carried out what is referred to in the papers as a “2020 site investigation campaign”,

although that appears to have happened in 2021.

9. The licence now under challenge was sought under s. 3 of the Foreshore Act 1933 on 1st

October, 2021, to undertake geotechnical and geophysical site investigations and ecological, wind,

wave and current monitoring to provide further data to refine wind farm design, cable routing,

landfall design and associated installation methodologies for the proposed Dublin Array offshore wind

farm off the coast of counties Dublin and Wicklow.

10. We perhaps should pause here to clarify the distinction between geotechnical and

geophysical investigations (see society of Underwater Technology Guidance):

(i) Geotechnical investigations tend to be conducted over a wider area and use intrusive

techniques to investigate the seabed, involving the taking of physical samples or in

situ testing.

(ii) Geophysical investigations use remote sensing techniques, to achieve various

objectives including, for example, the characterisation of the seabed, shallow soils

and geology, and to identify any man-made or naturally occurring hazards or objects

on the seabed, involving the use of various acoustic, magnetic, electrical or optical

based instruments and systems.

11. The geotechnical and geophysical surveying proposed by RWE are set out in the Investigative

Foreshore Licence Application, tab 4, page 39, page 4 and 5 of exhibit IT1.

(i) Geotechnical:

(a) Geotechnical boreholes;

(b) Deep push seafloor Cone Penetration Tests (CPT); and

(c) Vibrocores.

(ii) Geophysical:

(a) Refraction surveys;

(b) 2D UHR & geophysical survey including Bathymetric Survey, Side Scan

Sonar, Shallow Reflection Seismic (Sub-bottom Profiling) and Marine

Magnetometer; and

(c) Geophysical survey including Bathymaetric Survey, Side Scan Sonar,

Shallow Reflection Seismic (Sub-bottom Profiling) and Marine

Magnetometry.

12. The application was accompanied by supporting documentation including a Natura Impact

Statement and an Appropriate Assessment screening report which were annexes to a Supporting

Information Report.

13. Two public consultation exercises took place in this matter.

14. The first consultation took place on foot of the application for the licence. That was

advertised on 17th November, 2021 and took place from 18th November to 17th December, 2021.

A copy of the application, relevant documents, maps and drawings were available for inspection at

specified locations.

15. Some 17 submissions were made during the public consultation process as well as 8

submissions by prescribed bodies. Neither applicant made a submission at this stage.

16. The developer gave a response on 11th February, 2022 following the submissions from

prescribed bodies.

17. It then submitted a more extensive 86-page response on the public submissions on 22nd

March, 2022.

18. In May 2022, an independent environmental consultant (IEC), Hartley Anderson Ltd,

prepared an appropriate assessment (AA) screening report to inform the Minister.

19. The Minister was also informed by an Environment Screening Stage Report prepared by the

Department’s Marine Advisor dated 20th June, 2022 which accepted that likely significant effects

could not be discounted.

20. The Minister then published an AA Screening Determination on 20th June, 2022.

21. On foot of this, the Minister carried out a second public consultation exercise, which took

place under reg. 42 of the European Communities (Birds and Natural Habitats Regulations) 2011

(S.I. No. 477 of 2011) from 30th June to 29th July, 2022 in respect of the AA Screening.

22. The first named applicant made a short submission on 30th June, 2022 as follows:

“I’m a fisherman working in this area, I’ve 3 vessels and 7 lads working here for 20 plus

years, there’s been no consultation with fishermen as to where theses wind farms will be

placed , it’s been a bully boy attitude that the[y’]re going to be built so get onboard, There’s

been more lies told to Europe by our government on the status of kish, bray and codling

banks than you could make up, this has been brought to the attention of European

Commission by many groups including fishermen, I’m part of an existing industry operating

in this area and I won[’]t be moving from this area for Rwe/codling or any other windfarm

company’s (ESB).”

23. The second named applicant did not make any submission during the consultation.

24. There were further observations by certain prescribed bodies (Foreshore Marine Advisors,

Commissioners of Irish Lights and Inland Fisheries Ireland) and a response to those submissions

was submitted by the developer on 10th August, 2022.

25. There were 19 public submissions made at this juncture and the developer prepared

responses, which were submitted to the Department on 16th August, 2022 and on 30th August,

2022.

26. A further report was prepared by Arup and Hartley Anderson in September 2022 and the

Department’s Marine Advisor also prepared a report with an attached AA Conclusions Statement.

27. The Marine Licence Vetting Committee (MLVC) reported in November 2022 and concluded

that, with site specific conditions and taking account of the totality of the documentation on file and

subject to compliance with specific conditions, the proposed works would not adversely affect fishing,

navigation or the environment and were in the public interest, and that the proposed site

investigation activities, individually or in combination with other plans or projects, will not adversely

affect the integrity of European sites outlined in the report in view of the sites’ conservation

objectives.

28. A submission was made to the Minister accordingly, entitled Submission HLG 00537-22:

Appropriate Assessment Determination on Foreshore Application FS007188 RWE Renewables Ireland

Ltd., Site Investigations for the proposed Dublin Array offshore wind farm, which was approved by

Minister of State Burke on 23rd November, 2022.

29. The impugned five-year foreshore licence itself was executed by licence agreement on 13th

January, 2023.

30. Notice of the licence was published in Iris Oifigiúil on 27th January, 2023 pursuant to s. 21A

of the 1933 Act. The first named notice party then proceeded to notify interested parties that

borehole drilling would commence in April, 2023.

31. On 20th April, 2023, the applicants gave notice of an intention to bring proceedings and to

seek a “stay or similar relief”. The first named applicant received a notice that, weather permitting,

the array borehole element of the survey was intended to commence on 23rd April, 2023.

Procedural history

32. On 26th April, 2023, proceedings issued and were mentioned to Holland J. Strictly speaking,

the proceedings were out of time on the basis of time running from the date of the decision, but

given that one can reasonably assume that the applicants were not made aware of the decision until

its publication in Iris Oifigiúil, they should be entitled to the full period of three months in this

instance running from the date of that notification, particularly having regard to the EU law elements

of the case (see caselaw discussed in Marshall v. ESB [2023] IEHC 73, [2023] 2 JIC 1705

(Unreported, High Court, 17th February, 2023)) and in the end there wasn’t any contest on that

point.

33. On 28th April, 2023, the applicants emailed the Minister of State enclosing a motion to admit

the proceedings to the Commercial Planning and Environmental List pursuant to Practice Direction

HC119, although, as previously emphasised, it would have been preferable if the CSSO had been

served on behalf of the Minister. On the same date, the motion was served on the solicitors for the

first named notice party.

34. At the initial mention date, the matter was adjourned to 8th May, 2023, which was the next

sitting Monday list in the Commercial Planning and Environmental List.

35. On 12th May, 2023 an order was made allowing an amendment to pleadings, and an

amended statement of grounds was filed dated 17th June, 2023.

36. On 12th May, 2023 I granted leave to seek judicial review and extended time for this

purpose, and allowed an amendment. I indicated that there would be an interim stay with reasons

to follow. As noted above, on 22nd May, 2023 I set out the reason for the interim stay in the No. 1

judgment, and on 16th June, 2023 I continued that on an interlocutory basis in the No. 2 judgment.

37. The substantive notice of motion seeking relief by way of judicial review was made returnable

for 19th June, 2023, but expedited directions were given in the meantime for the opposing parties

to confirm costs protection by 26th May, 2023 and file opposition by 2nd June, 2023, for the

applicants to file replying affidavits by 9th June, 2023 and submissions by 12th June, 2023, and for

the respondents to submit the opposing submissions by 16th June, 2023 with a call-over listing on

19th June, 2023.

38. The matter was listed for hearing for three days commencing on 21st June, 2023. On that

date, without objection I made a formal order striking out the Minister of State (previously the

second named respondent), on the basis that he was not an appropriate party since the Minister is

the legal entity and is responsible in litigation terms for acts of the Minister of State.

39. On 22nd June, 2023, I made an order listing the costs of the interlocutory injunction for

hearing on 3rd July, 2023 and giving the State liberty to put in a further affidavit setting out material

regarding the Codling licence application on the basis of that being purely a factual narrative and

without prejudice to the argument that it is legally irrelevant to these proceedings.

40. On 23rd June, 2023 there were a series of procedural rulings which are more fully set out

below, including liberty to the State to put in an affidavit exhibiting a schedule setting out agreed

details of the other projects proximate to the current project (with the parties’ respective positions

where this is not agreed), and liberty to the applicants to put in an affidavit exhibiting material about

the relationship of the project to the Arklow wind farm, on a de bene esse basis.

41. On 26th June, 2023, the applicants sought to put in a last-minute affidavit about the Arklow

wind project, exhibiting additional information including that the Arklow wind farm was 25.3 km

from the development area of the previous RWE application. I allowed this affidavit without prejudice

to the opposing parties’ pleading objections and the objection that the point had already been

answered on affidavit.

42. The matter was listed again on 27th June, 2023 to deal with a draft schedule of other

relevant projects in the Irish Sea which the parties disagreed about. That resulted in a direction to

include the parties’ respective positions if there is no agreement, to make certain changes to the

table by adding all projects referred to in the papers plus their application number and types, plus

liberty to the State to prepare a draft affidavit exhibiting the table and certain documents related to

the North Irish Sea Array II licence (the URL having already been introduced in evidence) to be

agreed between the parties, that the parties will attempt to agree or at least exchange definitions

of the technical terms referred to and the matter be listed on 28th June, 2023 to finalise.

43. On 28th June, 2023, the court was informed that the terms of the additional affidavit were

basically agreed subject to the addition of two further documents to be exhibited as sought by the

applicants, which were not objected to. The table of projects was also discussed with some editing

changes to be made to clarify what was agreed and what the respective positions were. Judgment

was then reserved.

Relief sought

44. The relief sought in the amended statement of grounds is as follows:

“1. An Order of certiorari by way of application for judicial review quashing the Foreshore

Licence (‘the Licence’) granted by the First and/or Second Named Respondent to the First

Named Notice Party in respect of the carrying out site investigations, off the coast of Counties

Dublin and Wicklow (Ref. No. FS007188) dated 13 January 2023 and published in Iris Oifigiúil

on 27 January 2023 .

2. Such declaration(s) as to the legal rights and/or legal position of the Applicants and (if

and insofar as legally permissible and appropriate) persons similarly situated and/or of the

legal duties and/or legal position of the Board as the court considers appropriate.

3. An Interim order and/or stay pursuant to Order 84 Rule 20(8)(a) and/or (b) of the Rules

of the Superior Court, 1986 (as amended) or otherwise staying the effect of the Foreshore

Licence impugned herein, its implementation, or any reliance on it pending the determination

of these proceedings.

4. A declaration that protective cost provisions of 50B of the Planning and Development

2000 Act and/or section 3 of the Environment (Miscellaneous Provisions) Act 2011, and/or

Order 99 and/ or section 169 of Legal Services Regulation Act 2015, as interpreted in light

of Article 9 of the Aarhus Convention, apply to these proceedings.

5. Such further or other order.

6. Liberty to Apply.

7. An Order in respect of the costs of these proceedings.”

45. As noted above, the stay has already been addressed. It was agreed that a protective costs

approach will apply so relief 4 is not an issue either at this stage.

Grounds of challenge

46. The pleaded domestic law grounds, to which I have added a summarising heading, begin as

follows:

“1. [Lack of information/ breach of fair procedures] The application for the Licence

does not provide sufficiently precise or definitive information concerning the placement or

erection of any articles, things, structures, or works in or on the foreshore and, in particular,

the location of such articles, things, structures, or works and/or the nature and extent of

such structures as may be erected at intertidal locations (which are to be prepared in

consultation with an ecologist on foot of Condition 31.12) to allow proper consideration of

the application and informed public participation, as a consequence of which the Licence is

invalid. Further, or in the alternative, the First and/or Second Named Respondent (“the

Minister”) acted in breach of fair procedures in determining the application without such

information or without requesting further information from the First Named Notice Party

(“RWE”) to enable the Minister, the statutory prescribed bodies and the concerned members

of the public to consider the said information and the geophysical and environmental (which

would appear also to include archaeological) data collected during the site survey campaign

in connection with foreshore licence FS 007029 and/or such other data as was available prior

to the granting of the Licence and to facilitate public participation in accordance with the

requirements of Article 9 of the Aarhus Convention in that regard. Further particulars of

which are set out in Part 2 below.”

47. It can be noted that this is in part a European law ground insofar as it references Aarhus, so

I will also consider this ground under the EU law heading as required below. The pleaded domestic

law grounds continue:

“2. [Unlawful delegation] The Minister acted ultra vires and/or unlawfully delegated his

powers to regulate the proposed site investigation by requiring the appointment of an

ecologist for the purposes of (i) supervising all access to the Poolbeg intertidal area by track

machines pursuant to condition 31.10 of the Licence; and (ii) ensuring disturbance is

minimised and the integrity of the relevant European sites is maintained on foot of condition

31.12 of the Licence, in circumstances where the criteria or parameters or obligations on

which the ecologist discharge these responsibilities were not adequately defined under the

terms or conditions of the Licence, as a consequence of which the said Licence is invalid.

Furthermore, the said ecologist would not be answerable to the Minister or any other

independent body as, in the absence of express wording to the contrary, the condition allows

for the ecologist to be appointed by the licensee or other person implementing the Licence.

Further particulars of which are set out in Part 2 below.

3. [Reasons/ matters considered] The Licence is invalid in that the Minister failed to

have any (or any adequate) regard to relevant considerations in determining that it was in

the public interest that a licence should be granted to RWE and/or the Minister failed to

provide any (or any adequate) reasons for determining that it was in the public interest that

a licence should be granted to RWE. Further or in the alternative, in so far as the Minister

took into account the public interest he failed to take any or any adequate account of the

legitimate public interest in, and EU and international obligations regarding, the protection

of the marine environment. In this later regard, reliance will be placed on Core Grounds 5-

10 and the particulars relating thereto in addition to the particulars relating to Core Ground

3. Further particulars of which are set out in Part 2 below.”

48. Core ground 4 was not pursued. It provided as follows:

“4. [Fair procedures – lack of publication] The Licence is invalid in so far as it was made

in breach of fair procedures in that relevant information furnished by the licensee in relation

to the Foreshore application was not made available to the public and/or prescribed bodies

and meetings were held, while the application was still pending determination, between RWE

and the Minister or his servants or agents or advisers from which the public were excluded.

Further particulars are set out in Part 2 below.”

49. Turning to EU law grounds we must begin by returning to the EU law element of core ground

1 (noting that the reference to Article 9 is a misprint for Article 6):

“1. [Aarhus public participation] … the First and/or Second Named Respondent (‘the

Minister’) acted in breach of fair procedures in determining the application without such

information or without requesting further information from the First Named Notice Party

(‘RWE’) to enable the Minister, the statutory prescribed bodies and the concerned members

of the public to consider the said information and the geophysical and environmental (which

would appear also to include archaeological) data collected during the site survey campaign

in connection with foreshore licence FS 007029 and/or such other data as was available prior

to the granting of the Licence and to facilitate public participation in accordance with the

requirements of Article 9 of the Aarhus Convention in that regard. Further particulars of

which are set out in Part 2 below.”

50. The other EU-related grounds, to which I have added a summarising heading, are as follows:

“5. [Absence of information for AA purposes] The Minister has failed to comply with his

legal obligations under Article 6(3) of the Habitats Directive and Regulation 42 of the Habitats

Regulations which it transposes, in relation to both screening for Appropriate Assessment

and Second Stage AA by determining the application in the absence of the best scientific

knowledge available and, in particular, in the absence of (i) the information relating to the

project referred to in Core Ground 1, above, namely, precise and/or definitive information

concerning the placement or erection of any articles, things, structures, or works in or on

the foreshore and, in particular, the location of such articles, things, structures, or works

and/or the nature and extent of such structures as may be erected at intertidal locations

(which are to be prepared in consultation with an ecologist on foot of Condition 31.12, and

(ii) the geophysical and environmental (including archaeological) data collected during the

site survey campaign in relation to foreshore licence FS 007029 (referred to under Condition

31.9) and/or such other data as was available prior to the granting of the Licence. Further

particulars are set out in Part 2 below.

6. [Screening out Dalkey Island SPA] The Licence is invalid in that the Minister has failed

to comply with his legal obligations under Article 6(3) of the Habitats Directive and

Regulation 42 of the Habitats Regulations which it transposes, in relation to screening for

Appropriate Assessment by not providing any or any adequate reasons for ‘screening out’

relevant European Sites (including their QIs) which were within the zone of influence of the

proposed development (‘the screened out European Sites’) and by failing to take into account

relevant considerations and/or best scientific knowledge in concluding that the project,

individually or in-combination with other plans or projects, is not likely to have a significant

effect on the screened out European Sites . The Minister further failed to comply with his

said obligations in relation to AA screening for the reasons referred to, and in particular, the

lacunae identified below under the next Core Ground and the relevant particulars thereof.

Further, while the Minister made a determination that AA was required in respect of the

proposed development, he made no determination that an AA was not required in respect

of the ‘screened out’ European Sites. Further particulars of which are set out in Part 2 below.

7. [Lacunae in AA] The Licence is invalid in that the Minister has failed to comply with his

legal obligations under Article 6(3) of the Habitats Directive and Regulation 42 of the Habitats

Regulations which it transposes, in respect of Stage 2 Appropriate Assessment in that the

AA which the Minister purported to carry out did not contain complete, precise and/or

definitive findings and conclusions such as would enable the Minister to conclude beyond a

reasonable scientific doubt that the proposed development, considered on its own or in

combination with other plans or projects, would not adversely affect the integrity of any

European Site. The information provided to the Minister contained a significant number of

lacunae or gaps in information relating to the effects on European Sites and their Qualifying

Interests. Further, or in the alternative, the Minister did not provide any or any adequate

reasons for the said conclusion of no adverse impact. Further particulars of which are set

out in Part 2 below.

8. [Lack of specificity of mitigation] The Licence is invalid in that Article 6(3) of the

Habitats Directive, being a provision that is transposed by Regulation 42 of the Habitats

Regulations, in that the mitigation measures which were proposed by RWE, and were

subsequently conditioned by the Minister on foot of condition 31.7 and condition 31.25 of

the Licence, and conditions 31.8, 31.9 31.10, 3.12, 31.13, 31.14, 31.15, 31.16 and 31.23

were not described in sufficient detail to enable their effectiveness to be determined as a

result of which the residual impacts of the proposed development on the environment and,

in particular, on the integrity of European sites and/or the relevant qualifying interests or

species of conservation interest associated with such sites could not be determined, as a

consequence of which the conclusion of the Stage two appropriate assessment was defective,

which in turn renders the Minister’s decision invalid. Further particulars of which are set out

in Part 2 below.

9. [Inadequacy of conditions regarding ecologist] The conclusion of the Minister in his

Notice of Determination that “the proposed development on the foreshore would not

adversely affect the integrity of any European Site”, in respect of which he had regard to

“the consent conditions” is flawed as Conditions 31.10 and 31.12 of the Foreshore Licence

are based on the appointment by the licensee of an ecologist, inter alia, to prevent damage

to Qualifying Interests of European Sites, to ensure disturbance to SCIs is minimised and

the integrity of European Sites is maintained. Furthermore, the manner in which the

ecologist is to perform his or her role under the said conditions is not determined by the

terms or conditions of the Foreshore Licence, nor is the ecologist independent in the

performance of that role and the discharge of the responsibilities assigned to him or her on

foot of the said conditions. The provision for the appointment of the said ecologist does not

meet with the requirement for a high standard of environmental protection under EU law in

the context of European Sites in particular, breaches the requirements of the precautionary

principle, and is inconsistent with the Minister’s obligations in relation to AA, as a

consequence of which the said conditions and the Licence are invalid. Further particulars

are set out in Part 2 below.

10. [Lack of consideration of cumulative impacts] The Licence is invalid in so far as

the Minister failed to comply with his legal obligations under Article 6(3) of the Habitats

Directive and Regulation 42 of the Habitats Regulations (which transposes the said Article),

by granting the Licence without considering, adequately or at all, the cumulative impacts

arising from other plans or projects with the potential of having in-combination effects with

the activities permitted by the Licence, as a consequence of which the conclusions reached

by the Minister in relation to AA Screening and Second Stage AA were not justifiable beyond

a reasonable scientific doubt. Further particulars are set out in Part 2 below.”

Decision algorithm for the case

51. The applicants’ request for a reference to Luxembourg on the issue regarding in-combination

effects, together with the volume and nature of doctrines relied on by way of defence, has rendered

this case a somewhat more involved one than usual and accordingly it was appropriate to discuss

with the parties the sequence in which the various points would be addressed. This resulted in a

gratifying degree of agreement on the following decision algorithm:

(i) The first issue is whether the case could be disposed of on the basis of domestic law,

or on the basis of any EU law point apart from the in-combination effects issue that

the court considered it could address without a reference.

(ii) If the court is then required to turn to the in-combination effects issue (reference to

which includes potentially any other EU law point that the court was potentially

minded to refer), it would then consider the opposing parties’ defences on that issue

insofar as those defences would result in a complete dismissal of the ground. If the

matter is so dismissed then the court would skip the next two steps and proceed to

the stay issue. If the court was minded to so dismiss but the process of doing so

itself raised a referable EU law question, the court could consider whether to hold

off on dismissal and proceed to the next step.

(iii) If the in-combination ground had to be considered and was not to be completely

dismissed, the court would then consider the opposing parties’ submission that the

ground should be viewed as a basis for declaratory relief only and not certiorari. If

the court was minded to dismiss the certiorari claim only but the process of doing

so itself raised a referable EU law question, the court could consider whether to hold

off on such dismissal and proceed to the next step.

(iv) On the basis that some relief is live at this point, then irrespective of the nature of

such relief, the next step would be to either decide the in-combination ground or to

refer any appropriate question to Luxembourg.

(v) The following step would be to reconsider the question of continuing, varying by

reference to specified activities (and if so, temporarily staying the variation of) or

discharging (and if so, temporarily staying the discharge of) the stay in the light of

the foregoing and in the light of any possible appeals by any party.

(vi) The court would deal with the costs if the matter was final at that point, or if not

with any costs issues that were appropriate to be dealt with at that stage including

costs of the interlocutory stay if still in dispute at that point.

(vii) Finally the court would deal with any stays on execution of costs, if that were to be

an issue.

52. In order to manage matters from there, a number of procedural questions were addressed

with the parties as follows:

(i) Whether the parties would find the proposed sequence in which the court would

decide the issues to be acceptable. This produced the already referred-to agreement

on the sequence above.

(ii) If so (or subject to any amendment), how far should the court go in the judgment

on foot of the present hearing, in other words, the court will at least deal with step

(i) but should it also deal with any subsequent steps and if so which? The applicants

wanted the court to deal just with step (i), the notice party wanted the court to also

deal with steps (ii) and (iii), and the State wanted to also address step (iv) and

wanted the stay addressed before the end of the legal year. Following discussion,

the developer’s suggestion was agreed as was the proposal to address the stay in

July, 2023.

(iii) Assuming that at least some of these steps will be left over after this judgment,

when will these be dealt with and, in particular, would the parties find it acceptable

to address any of these at the end of the Monday lists? The notice party and State

were agreeable to Mondays with 10th July, 2023 being suggested. The applicants

wanted a full weekday although, following discussion, this wasn’t pressed.

Ultimately, this led to a rather full timetable for the subsequent 5 Mondays as set

out in the order in the final section of this judgment.

(iv) In the light of the foregoing, would the parties be agreeable to postponing the costs

of the interlocutory hearing to a later point per the attached rather than deal with it

on 3rd July, 2023, but retaining 3rd July, 2023 as a target date for a decision on this

phase and possibly for further hearing of subsequent steps? This was agreed.

(v) If so, should the interlocutory stay order be perfected at this point or would that

complicate matters procedurally such that it would be preferable to give the

opposing parties liberty to seek such perfection at a time convenient to them, if

necessary in advance of the determination of costs? The applicants were neutral

and the notice party was happy with liberty to seek perfection of the order. The

State robustly submitted: “The Respondents do not perceive any particular

complication. It is desirable that the interlocutory stay order be perfected as soon

as possible, including in advance of a hearing on step (v)”. As requested therefore,

I directed on 23rd June, 2023 that the order granting an interlocutory stay can be

perfected on the basis that the costs would be adjourned to be dealt with by a

separate order on a date to be fixed in due course.

(vi) Should the foregoing approach to perfection of orders also apply to the sequence of

orders to be made if the court approaches the matter on a step-by-step basis?

Parties gave similar responses to those to the previous question. So I would propose

to give parties whatever perfected orders they want as matters progress.

Step (i) in decision algorithm – core grounds 1 to 9

53. The first stage therefore is to decide the grounds other than the question of in-combination

effects to ascertain whether any of these are determinative. Before doing so, there are some general

issues related to the onus of proof that need to be addressed.

Onus of proof, admissibility of new evidence and effect of lack of cross-examination

54. There was broad agreement that the onus of proof was on the applicants (although that only

applies up to the point when an applicant demonstrates a flaw – the onus as to showing that the

flaw wouldn’t have made any difference is separate and is addressed later in the judgment). The

applicants agreed that they were not entitled to challenge the decision otherwise than by reference

to flaws on the face of the material or matters that were before the decision-maker at the relevant

time, or by reference to exceptions in Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4

JIC 1204 (Unreported, High Court, 12th April, 2021).

55. The State submitted, and I broadly agree, that if what is alleged to be a lacuna is a matter

of pure reason and logic, then the court can identify that, but if the issue is one of expert evidence,

the court can’t determine that without it being established evidentially that a reasonable expert body

would have seen scientific doubt on the face of the materials.

56. It follows however that, in general, where new scientific evidence is presented to the court

for the first time in circumstances not covered by one of the recognised exceptions, as discussed in

Reid No. 1, then such evidence is either inadmissible or of no decisive weight. That unfortunately

impacts on much of the applicant’s new material. Such a procedural rule is equivalent as between

domestic and European law, and does not infringe the principle of effectiveness.

57. Equally significantly, insofar as such new information is admissible (for example to show that

the material was flawed on its face), a significant feature of the case is that the applicants’ expert

evidence has been roundly contested by the opposing parties on affidavit. No application has been

made for cross-examination. The court cannot then find for the applicants on any such contested

issue (RAS Medical Ltd. v. Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 I.R. 63,

[2019] 2 I.L.R.M. 273, [2019] 2 JIC 0501) save in limited circumstances which don’t apply here.

One such limited circumstance might be where one affidavit explains all matters comprehensively

and the other includes bare assertions or bare denials leaving massive and self-evident gaps. A

court is not precluded from relying on flaws on the face of an affidavit merely because its deponent

is not cross-examined.

58. For example, merely offering an opinion based on nothing in particular doesn’t automatically

create a conflict warranting cross-examination if there is an affidavit from the other side that is

clearly framed as directly admissible factual evidence or an expert view based on factual material.

59. As pointed out in Doorly v. Corrigan [2022] IECA 6, [2022] 1 JIC 2104 (Unreported, Court

of Appeal, 21st January, 2022) at para. 137, while conflict between equally inherently credible

averments, with no cross-examination, is normally resolved against the party carrying the onus of

proof, a court is not always obliged to regard all averments as being equally credible, or to disregard

internal or evident problems with them (see by analogy the manner in which the Supreme Court

considered it was entitled to prefer an affidavit over even oral evidence in Koulibaly v. Minister for

Justice, Equality and Law Reform [2004] IESC 50, [2004] 7 JIC 2906 (Unreported, Supreme Court,

Denham J. (Geoghegan and McCracken JJ. concurring), 29th July, 2004)). Among the matters to

which regard might be had included the failure to explain patently relevant questions that are clearly

within that party's responsibility.

60. Furthermore, a conflict that can only be resolved by cross-examination has to be a conflict

between two affidavits of equal evidential weight. A court can prefer an affidavit based on direct

evidence with one based on hearsay evidence without cross-examination – indeed broadly speaking

cross-examination is definitionally pointless in the latter case because the deponent will say in effect

“well, that’s what I was told”: see In re Dunne [2021] IEHC 291, [2021] 5 JIC 0501 (Unreported,

High Court, 5th May, 2021) para. 70.

61. But this isn’t a case where the opposing parties’ affidavits are flawed on their face such as

to invoke this principle.

62. The problem for the applicants is that it is relatively straightforward to ask for an order for

cross-examination in judicial review. A court would be obliged in the interests of justice to grant

such an order in a judicial review matter if certain conditions are met as follows:

(i) the order for cross-examination is applied for by the party carrying the burden of

proof;

(ii) the circumstances are such that a potentially determinative factual issue properly

arises in the judicial review that is a matter for the court and not the decision-maker;

(iii) issue has been properly joined on that question by conflicting factual affidavits;

(iv) the conflicting affidavits are both admissible and are of comparable evidentiary

status (hence a court can, without cross-examination, prefer a non-hearsay affidavit

to a hearsay affidavit even if the issue is interlocutory and the latter is technically

admissible – and indeed normally cross-examination of a hearsay affidavit is

definitionally fairly pointless to begin with);

(v) the conflicting affidavits are comparably relevant to the issue (hence a court can,

without cross-examination, prefer an affidavit that addresses all aspects of an issue

to one that fails to deal relevantly with significant aspects that are clearly within the

knowledge of the deponent);

(vi) the affidavit of the party seeking cross-examination is not so flawed on its face as

to be capable of rejection even without cross-examination; and

(vii) there is no more convenient way of resolving the issue (such as by determining some

other issue or issues that might be determinative such that cross-examination might

be unnecessary, and postponing cross-examination until then).

63. A court can’t adopt a restrictive approach to cross-examination where there is a direct

conflict of admissible relevant evidence, and then find against the party who has been refused that

order on the grounds that they haven’t discharged the onus of proof. Each individual piece of that

drama could be written to sound very reasonable, and the legal process being what it is, those

individual pieces would be written at separate times and possibly by separate judges, but the two in

combination would be so contradictory and unfair as to make Catch-22 look like a CPD manual for

procedural decision-making.

64. What is potentially confusing is the existence of various statements in the caselaw that cross-

examination in judicial review is rare. Which of course it is, but that is ultimately an empirical or

statistical observation, not an issue of principle. Generally, as a matter of fact, the issues in judicial

review are about legal analysis of non-disputed facts. But again, that is dependent on the empirical

position; it is not a paradigm that can simply be imposed on any given litigant on the grounds that

cross-examination in administrative law should be “rare” – as if it was to be parcelled out like a

jealously-guarded ration. Its rarity is merely statistical but such an order should be made in all

cases where the conditions for it are met. In short, cross-examination in judicial review is rare

because the various conditions for it – listed above – don’t normally come together. That’s the

rarity. If those factors do come together then the order should be made – there is no further “rarity”

within that limited category that would create further hoops to jump and obstacles and obstructions

to be overcome.

65. The upshot is that these applicants have unfortunately engaged in the same largely doomed

strategy pursued by a whole distinguished host of environmental litigants before them, namely the

approach of only calling in the experts and lawyers after the decision is made. The difficulties with

the approach to introducing new points that were never put before the decision-maker has been

explained in many previous cases including the following highlighted by the developer:

(i) Reid v. An Bord Pleanála (No. 1) [2021] IEHC 230, [2021] 4 JIC 1204 (Unreported,

High Court, 12th April, 2021).

(ii) An Taisce v. An Bord Pleanála (No. 1) [2021] IEHC 254, [2021] 4 JIC 2003

(Unreported, High Court, 20th April, 2021).

(iii) An Taisce v. An Bord Pleanála [2022] IESC 8, [2022] 1 I.L.R.M. 281, [2022] 2 JIC

1602.

(iv) Environmental Trust Ireland v. An Bord Pleanála [2022] IEHC 540, [2022] 10 JIC

0305 (Unreported, High Court, Holland J., 3rd October, 2022).

(v) Sherwin v. An Bord Pleanála (No. 1) [2023] IEHC 26, [2023] 1 JIC 2701 (Unreported,

High Court, 27th January, 2023) (under appeal but not by the applicant – this was

a point made in favour of the opposing parties).

66. Yes, in many cases the applicant has standing to make the point even without putting it to

the decision-maker, and yes there are some circumstances where the point can succeed even if it

wasn’t made originally, but to bring the case home in such situations, an applicant can only operate

within very defined categories – see Reid No. 1.

Domestic law preliminary issues

67. The State initially made a time objection to the proceedings but sensibly this was not pursued

(State submissions para. 18).

68. The State also complain that the applicants did not make the points now being made during

the public consultations on the licence and objected to the applicants’ locus standi for any issues

other than core ground 3 (State submissions para. 19).

69. The position in relation to the domestic law issues (we will return to the EU law issues) can

be assessed on a ground-by-ground basis.

70. As regards core ground 1, insofar as this makes a jurisdictional complaint regarding a

requirement for precise information, then it is independent of any submission from the applicants.

Insofar as it adds anything to that, it can’t be advanced in the absence of there having been

something before the decision-maker to make that an issue. Insofar as the ground makes a fair

procedures point, the applicants have an onus to show that they would have said something further

during the process if further information had been provided. That is implausible given that the

submission actually made did not even begin to attempt to engage with the detail of the licence. No

breach of fair procedures arises. That is conceptually separate from the Aarhus dimension which I

will consider under the EU law heading.

71. As regards core ground 2, this relates to a condition of the licence. In general, something

that arises subsequently to and consequentially on the actual decision can properly be challenged

after the event. An applicant is not normally obliged to predict such conditions as may be imposed

and pre-emptively make a submission on those possible points, except where draft conditions are in

effect published for discussion. However, this is such a case.

72. Condition 7.1.3 in the Supporting Information Report provides:

“To prevent damage to saltmarsh and sand dune habitat, all access to the Poolbeg inter-

tidal area by track machine will be supervised by an ecologist to ensure these sensitive areas

are avoided. Machinery will be either lowered to the beach by crane from Shellybanks Road,

or brought to shore by barge.”

73. This corresponds to condition 31.10 of the licence.

74. Section 4.4.2 of the NIS provides:

“4.4.6 In order to minimise disturbance of bird receptors within the intertidal areas of the

Foreshore Licence area, the following mitigation measures will be implemented:

• An ecologist would be employed to ensure disturbance is minimised and site integrity

is maintained. If roosting birds are present on the shore during intertidal works, the

nearby sample stations will be postponed until the birds depart, without provocation;

• Drift lines in close proximity to the proposed route would contain the highest

proportion of potential food source for bird species. If present, these will be avoided

by machinery and personnel;

• If for any reason access by sea to the near-shore or intertidal sample locations is

not possible, any temporary access arrangements or structures that are put in place

to allow machinery access to the beach area will be prepared in consultation with an

ecologist and the site should be fully reinstated post works;

• Reinstatement of the intertidal habitat will be carried out to pre-survey conditions.

Spoil from boreholes will be contained and removed off site. Should the boreholes

be close to the HDD cable route, the boreholes will be filled with grout to prevent

weakness during drilling operations during construction.”

75. This is a precursor to condition 31.12.

76. In these relatively unusual circumstances the conditions were up for discussion in the

process. Not having challenged them in the process itself, the applicants can’t do so now in the

absence of anything flawed on the face of the conditions (which hasn’t been made out), or anything

otherwise before the decision-maker that would have required a different approach (which hasn’t

been made out either).

77. As regards core ground 3, standing is not specifically challenged by the State under this

heading. In particular, insofar as reasons are concerned, any given applicant can complain about

reasons if such reasons relate to something that the applicant couldn’t have anticipated or something

that was required to be addressed, or a matter touched on in submissions. So the reasons point

can be advanced.

Domestic law issues

78. Section 3(1) of the Foreshore Act 1933 provides for the power to grant a licence of this type.

This provides:

“(1) If, in the opinion of the appropriate Minister, it is in the public interest that a licence

should be granted to any person in respect of any foreshore belonging to the State

authorising such person to place any material or to place or erect any articles, things,

structures, or works in or on such foreshore, to remove any beach material from, or disturb

any beach material in, such foreshore, to get and take any minerals in such foreshore and

not more than thirty feet below the surface thereof, or to use or occupy such foreshore for

any purpose, that Minister may, subject to the provisions of this Act, grant by deed under

his official seal such licence to such person for such term not exceeding ninety-nine years

commencing at or before the date of such licence, as that Minister shall think proper.”

79. As regards the domestic law grounds generally, the applicants’ case is very light on reference

to any provision of domestic law, as the developer points out (developer’s submissions para. 6).

Core ground 1 – information/ fair procedures

80. As regards core ground 1, the need for information to the level of precision demanded by

the applicants is not a jurisdictional requirement of the 1933 Act. This distinguishes Balscadden

Road SAA Residents Association Ltd. v. An Bord Pleanála [2020] IEHC 586, [2020] 11 JIC 2501

(Unreported, High Court, 25th November, 2020). No breach of domestic law has been made out.

As noted above, the fair procedures argument doesn’t get off the ground, but no breach of fair

procedures has been established in any event given the limited nature of the applicants’ engagement

with the process.

Core ground 2 – unlawful delegation

81. As regards core ground 2, as noted above this doesn’t get off the ground on a standing

basis. But in any event, the 1933 Act doesn’t prohibit a condition of the type imposed. Nor could

such a condition reasonably constitute unlawful delegation contrary to general administrative law

principles, as it deals with matters of execution and detail. We can return to the EU law position

later.

Core ground 3 – public interest

82. As regards core ground 3, as is clear from s. 3(1) of the 1933 Act above, the Minister is

required to consider the public interest, and did so. The applicants complain that this consideration

took inadequate account of the protection of the marine environment, but by its nature any

assessment of a general concept like “public interest” must involve a degree of discretion for the

decision-maker. It can’t plausibly be said that the Minister failed to consider the marine environment

given the extensive EIA and AA consideration. Furthermore, the absence of any particularly relevant

submission from the applicants other than in relation to their own requirements is relevant. No lack

of reasons or failure to consider relevant matters can be established in that context.

EU law preliminary issues

83. The locus standi issue looks somewhat different when viewed from a European perspective.

Case C-137/14 Commission v. Germany (Court of Justice of the European Union, 15th October,

2015, ECLI:EU:C:2015:683) dealt with the access to justice provisions of art. 11 of directive

2011/92/EU on EIA and art. 25 of directive 2010/75/EU on industrial emissions. In particular, at

paras. 75 to 77, the CJEU identifies that a domestic requirement that “pleas in law” (para. 75) to be

made to the court must first be made in the administrative process is not provided for in the

directives which have the objective “of ensuring broad access to justice in the area of environmental

protection” (para. 77). I noted in Reid (No. 1) that the logic of that decision would seem to apply

to any similar access to justice provision in EU environmental law, meaning that an applicant is not

confined to legal grounds that were raised before the decision-maker.

84. While the State didn’t expressly accept that as a general principle, they were in effect

accepting something equivalent for the purposes of the case because they weren’t making any

standing objection in relation to the EU law points. And the developer didn’t make a standing

objection. So in the end there wasn’t any preliminary issue to resolve as regards the EU law points.

EU law issues

85. Identifying the inflection points between the parties in relation to the EU law issue was not

an absolutely straightforward exercise but I will attempt to summarise matters under each relevant

heading.

86. Insofar as there were suggestions that doubt arose in relation to EU law, I should clarify one

point when it is generally appropriate to consult Luxembourg. Such consultation by way of

preliminary references is worth considering where there is some doubt about the position, either by

reason of an inherent difficulty with the EU law argument being advanced by the party in whose

favour the court might otherwise be inclined to decide the matter, or by reference to some piece of

material or jurisprudence. This could include:

(i) any Irish caselaw or institutional or academic material opining on EU law which

illustrates doubt or tension, or about which the referring court may have doubts by

reference to other material;

(ii) any jurisprudence of the European courts or an opinion of an Advocate General;

(iii) any guidance material produced by EU institutions such as the European

Commission;

(iv) any judgments or material produced by the courts or institutions of, or academic

material from, the 26 other EU member states, or other jurisdictions interpreting EU

law such as EFTA members or the UK.

(v) in respect of issues arising under the Aarhus convention, any opinions issued by the

UNECE bodies such as the Aarhus Compliance Committee, or any decisions of UNECE

member state institutions or courts, or academic material in that regard.

87. But if a party can’t point to even a scrap of paper anywhere on the continent in favour of

their position, then any case for a reference is going to be dependent on there being some form of

inherent difficulty or doubt applying to the other side’s EU law analysis. Here, with one major

exception, the applicants thus far haven’t come up with any of the sort of jurisprudential material to

which I have referred. So it makes sense that they have so far limited the claim for a reference to

that sub-issue and points related to the defence offered to it. But I am not ruling out also considering

one further issue, if it involves a referrable question of EU law (very much in the to-be-determined

bracket), as will become apparent below.

Core ground 1 – Aarhus and the right to information

88. The essential EU law point buried in core ground 1 is that the right to public participation

under Aarhus involves an entitlement to access to data relevant to the application which exists as

of the date of the application but has not been published.

89. This is reinforced by Article 6(2) of the Aarhus convention:

“2. The public concerned shall be informed, either by public notice or individually as

appropriate, early in an environmental decision-making procedure, and in an adequate,

timely and effective manner, inter alia, of:

(a) The proposed activity and the application on which a decision will be taken;

(b) The nature of possible decisions or the draft decision;

(c) The public authority responsible for making the decision;

(d) The envisaged procedure, including, as and when this information can be provided:

(i) The commencement of the procedure;

(ii) The opportunities for the public to participate;

(iii) The time and venue of any envisaged public hearing;

(iv) An indication of the public authority from which relevant information can be

obtained and where the relevant information has been deposited for examination by

the public;

(v) An indication of the relevant public authority or any other official body to which

comments or questions can be submitted and of the time schedule for transmittal of

comments or questions; and

(vi) An indication of what environmental information relevant to the proposed

activity is available; and

(e) The fact that the activity is subject to a national or transboundary environmental impact

assessment procedure.”

90. So the applicants are correct that the issue of access to information should be engaged with

by the competent authority as part of the public participation process. But this issue is pleaded as

a fair procedures point (and applicants are to be held to their pleadings – Rushe v. An Bord Pleanála

[2020] IEHC 122, [2020] 3 JIC 0502 (Unreported, High Court, Barniville J., 5th March, 2020); Case

C-721/21 Eco Advocacy CLG v. An Bord Pleanála (Court of Justice of the European Union, 15th June,

2023, ECLI:EU:C:2023:477) – and there is nothing on the evidence to support such a conclusion.

The applicants have not demonstrated as a matter of probability that if only more information had

been published at the outset, they would have engaged with it. That is highly unlikely anyway given

how the applicants approached matters. They only called in lawyers and scientific experts after the

decision was made. So this point isn’t going anywhere. And indeed much of the alleged lack of

information was fairly patent, such as the application being based on indicative locations, but the

applicants didn’t do anything to complain about that at the relevant time. The fact that another

observer complained about lack of information doesn’t create a fair procedures issue for an applicant

who never made the point and hasn’t proved that they would have said or done anything specific if

they had such information.

Core ground 5 – absence of information for AA purposes

91. Paragraphs 4.1.3 and 4.1.4 of the AA screening information report provide that:

“4.1.3 The indicative locations of the survey areas which form the scope of the proposed

works are shown in Figure 3 to Figure 7. The final geotechnical and ecological sampling

locations and buoy deployment positions will be selected after a review of the most up to

date geophysical data available in advance of selection of the sampling stations. The data

will be reviewed for the presence of anomalies of potential anthropological origin and

potential for ecological features such as subtidal reef. Locations will be micro-sited where

necessary to avoid archaeological or ecological impacts. As such, no figure is provided for

the benthic sampling locations, but taking a precautionary approach it has been assumed

that samples could be taken anywhere across the Foreshore Licence application area.

4.1.4 Should the review of the geophysical data identify areas of paleo archaeological

interest which require further archaeological investigation the sampling locations will be

micro-sited to achieve this aim.”

92. Section 3.3.2 of the AA report of the independent environmental consultant states inter alia:

“The inter-tidal and sub-tidal geotechnical sampling locations will be selected after review of

the geophysical and environmental data collected during the 2020 Site Investigation

campaign. The data will be reviewed for the presence of potential ecological features such

as subtidal geogenic reef. Sampling locations will then be micro-sited where necessary to

avoid ecological (as well as archaeological) impacts, specifically with reference to potential

subtidal geogenic reef features within the Rockabill to Dalkey SAC which may not have been

previously mapped or identified.

The applicant will consult with NPWS on the results of the initial site investigation campaign

and the selection of geotechnical sampling locations prior to sampling taking place.”

93. Condition 31.9 of the impugned licence provides:

“The licensee shall ensure that the intertidal and subtidal geotechnical sampling locations

will be selected after review of the geophysical and environmental data obtained from

surveys completed under licence FS 007029 has been reviewed for the presence of potential

ecological features such as Geogenic reef.”

94. There are in essence two complaints in core ground 5.

95. Firstly the applicants allege that the indicative location of the sampling sites in itself fails to

accord with the need for precise and definite information, by reference to best scientific knowledge,

ruling out any scientific doubt as to the impact on a European site.

96. The problem with that is that the applicants haven’t pointed to anything before the decision-

maker to create scientific doubt in relation to the indicative sites issue. The applicants’ doubts have

all come into being after the event. Insofar as the applicants’ expert Ms Heffernan is claiming that

there is doubt on the face of the material, that is contested, and there has been no cross-

examination. Hence the applicants haven’t discharged the burden of proof.

97. The second complaint is that the geophysical and environmental (including archaeological)

data collected during the site survey campaign in relation to foreshore licence FS 007029 was

available prior to the granting of the licence but was not factored into the AA process.

98. The problem with that argument is that without material fed into the process at the time

creating doubt, the absence of such further information didn’t give rise to any particular doubt about

impacts on the reef on the basis of the information before the decision-maker. Insofar as the claim

is made that such a doubt arises on the face of the material, that is contested; and in the absence

of cross-examination that point cannot be resolved in favour of the applicants.

Core ground 6 – screening out Dalkey Island SPA

99. In the context of Dalkey Island SPA, the potential impacts on Arctic Tern are screened out

in the AA screening information report (which was endorsed in the screening document prepared by

the independent environmental consultant and adopted by the Minister) for the following reasons:

“No impact on the QI [qualifying interests] of this SPA is foreseen due to the limited nature

of the works in terms of both spatial and temporal extent. All geophysical and geotechnical

operations will be a minimum of 0.9 km from the SPA boundary in an area that has existing

regular levels of vessel traffic.

Any disturbance impacts or effects upon supporting habitats for QI species that result from

the proposed works would be negligible; therefore no potential for LSE [Likely significant

effects] are predicted.”

100. The applicants complain that this creates lacunae and that the analysis is incomplete and

defective. However again we have the problem that the decision has to be judged on the basis of

the material before the decision-maker, and such doubts didn’t arise on the basis of what the Minister

had at that point. Insofar as it is said that the material is flawed on its face, that can’t be resolved

in favour of the applicants absent cross-examination.

Core ground 7 - lacunae

101. In Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse

Vereniging tot Bescherming van Vogels v. Staatssecretaris van Landbouw, Natuurbeheer en Visserij,

Coöperatieve Producentenorganisatie van de Nederlandse Kokkelvisserij UA (Court of Justice of the

European Union, 7th September, 2004, ECLI:EU:C:2004:482, see paras. 52-54, 59), the CJEU said

of AA that:

“Such an assessment therefore implies that all the aspects of the plan or project which can,

either individually or in combination with other plans or projects, affect those (conservation)

objectives must be identified in the light of the best scientific knowledge in the field.”

102. The complaint made at para. 94 of the applicants’ submissions is that:

“The information provided to the Minister to enable him to carry out a Stage 2 Appropriate

Assessment including that furnished in the reports of RWE, the IEC and the Minister’s

advisers contained a number of significant lacunae or gaps, inter alia, in respect of (i) the

absence of the survey information obtained on foot of under licence FS007029 (in addition

to the lack of precise information relating to the actual location of geophysical sampling

points); (ii) mapping relative to Natura 2000 sites; (iii) the Project description; (iv) waste

materials; (v) duration of drilling; (vi) the assessment of noise; (vii) pollution, (viii)

reinstatement of sub-tidal boreholes; and (ix) ecological surveys.”

103. The applicants complain about various matters including (to give just one example of many)

the impacts on other European sites including Lambay Island SAC.

104. But all of this is esprit d’escalier stuff. The problems arise as with previous grounds.

105. The applicants didn’t make any of these points and didn’t make any hugely detailed attempt

to specify precisely how, when and where the points were raised by other observers. It is certainly

best practice to plead specifically how the point was one that arose out of an identified document or

matter, or should otherwise have been considered in the process as a result of identified factors,

and if an applicant doesn’t do that, she runs the risk of the complaint being viewed as artificial and

manufactured unless the requirement to address the point is clear to the court from other material.

106. But leaving aside any counsel of perfection regarding drafting, and assuming in favour of

the applicants that they can heave this point upright based on submissions by other people, those

submissions were answered by RWE. The point then becomes one of whether a reasonable expert

body would have seen the analysis as flawed. Any such claim has to be established evidentially.

That hasn’t been done for the reasons explained.

Core ground 8 – mitigation measures

107. In respect of Core ground 8, the Applicants submit that:

“[T]he Licence is invalid in that the mitigation measures which were proposed by RWE, and

were subsequently conditioned by the Minister on foot of condition 31.7 and condition 31.25

of the Licence, and conditions 31.8, 31.9 31.10, 3.12, 31.13, 31.14, 31.15, 31.16 and 31.23

were not described in sufficient detail to enable their effectiveness to be determined as a

result of which the residual impacts of the proposed development on the environment and,

in particular, on the integrity of European sites and/or the relevant qualifying interests or

species of conservation interest associated with such sites could not be determined, as a

consequence of which the conclusion of the Stage two appropriate assessment was defective,

which in turn renders the Minister’s decision invalid.”

108. Again the same problems arise. The decision is primarily to be judged by reference to what

was before the Minister at the relevant time. An applicant can go beyond that to argue that the

approach was flawed on its face, but that has to be established evidentially and, given the conflict,

that hasn’t been done in the absence of cross-examination.

Core ground 9 – adequacy of conditions regarding ecologist

109. Case C-461/17 Holohan v. An Bord Pleanála (Court of Justice of the European Union, 7th

November, 2018, ECLI:EU:C:2018:883) allows points of detail to be left for the post-consent

process, but only if the competent authority can be certain that there will be no adverse effects:

“Article 6(3) of Directive 92/43 must be interpreted as meaning that the competent authority

is permitted to grant to a plan or project consent which leaves the developer free to

determine subsequently certain parameters relating to the construction phase, such as the

location of the construction compound and haul routes, only if that authority is certain that

the development consent granted establishes conditions that are strict enough to guarantee

that those parameters will not adversely affect the integrity of the site.”

110. Core Ground 9 complains about the conditions leaving certain matters to the proposed

ecologist, relying on the precautionary principle as a general principle of EU law (Article 191(2)

TFEU) and art. 6(3) of the habitats directive.

111. Condition 31.10 provides:

“The licensee shall ensure that to prevent damage to salt marsh and mud flats and sand

flats not covered by sea water at low tide qualifying interests (South Dublin SAC), all access

to the Poolbeg intertidal area by track machine will be supervised by an ecologist to ensure

these sensitive areas are avoided.”

112. Condition 31.12 states:

“An ecologist is to be employed to ensure disturbance is minimised and site integrity is

maintained. If roosting birds are present on the shore during intertidal works and operations,

the nearby sample stations will be postponed until the birds depart, without provocation ….”

113. The applicants say in essence that “the RWE-appointed ecologist (i.e. an employee or

contractor) will lack independence and impartiality, and is not subject to any oversight whatsoever”.

114. But a much more appropriate and logical interpretation, in line with the natural meaning of

the condition (which is not particularly ambiguous or permissive on its face) is to say that the

objectives to be achieved are clearly set out in the conditions and the ecologist’s function is to

execute those, not to add a layer of discretion to allow those objectives to be undermined.

Step (ii) – arguments for dismissal in limine of core ground 10

115. As core grounds 1 to 9 fail, and as no question appropriate for reference to the CJEU has

been identified that would need to be answered before such an order, I can dismiss those grounds

and then turn to core ground 10. In accordance with the decision algorithm, this brings us to step

(ii) which is to consider the opposing parties’ arguments which would result in the dismissal of that

ground. In that context, it is important to tease out the various sub-issues within the ground,

dispose of any that can immediately be rejected and then outline the various defences to the other

grounds and my assessment of whether these give rise to a valid basis to dismiss the points.

116. Core Ground 10 concerns the issue of cumulative and in-combination effects. There is quite

a lot packed into that ground and it is possible to discern the following main sub-issues either pleaded

or touched on in affidavits, written submissions or otherwise referred to at the hearing, which need

to be addressed separately:

(a) General qualitative criticisms regarding the assessment;

(b) Failure to consider plans as opposed to projects;

(c) Failure to consider other activities not requiring consent;

(d) Failure to consider consented developments;

(e) Failure to consider pending projects;

(f) Inadequacy of the condition imposed to prevent in-combination effects; and

(g) Inadequacy in specification of the projects being considered.

Sub-issue A – qualitative criticisms

117. The qualitative criticisms are unfounded having regard to the lack of material before the

decision-maker that would have made these an issue, and having regard to the lack of cross-

examination, as well as the evaluative nature of the decision-making process concerned. That is an

equivalent and effective rule of domestic procedure and doesn’t raise any problematic issue of EU

law: similar to the pleading rules considered in Case C-721/21, Eco Advocacy CLG.

Sub-issue B – failure to refer to plans as opposed to projects

118. Insofar as plans are concerned, these are not referenced in the Minister’s decision, but this

is an abstract complaint because it hasn’t been shown that there was any plan to which regard

should have been had. That doesn’t raise any problematic issue of EU law, which itself acknowledges

such a principle: see by analogy Case C-72/12 Gemeinde Altrip v. Land Rheinland-Pfalz (Court of

Justice of the European Union (Second Chamber), 7th November, 2013, ECLI:EU:C:2013:712). That

isn’t any kind of wide discretion – it is a conclusion that in the absence of any relevant plan, there

was no meaningful non-compliance with the habitats directive because the item that wasn’t referred

to wasn’t relevant.

Sub-issue C – failure to consider other activities apart from licensed works

119. The applicants’ expert Ms Heffernan complains in her first affidavit (para. 85) that other

activities which cause ongoing disturbance, such as boats, fishing, jet skis, dog walkers and day

trippers to Lambay Island and Dalkey Island are not addressed for the purpose of in-combination

effects. But given the conflict of expert views on the issue of scientific doubt, the applicants would

have had to demonstrate, by cross-examination, how that created doubt on the face of the materials,

based on having first identified how that arose from what was before the decision-maker, as seen

by a reasonable expert. They haven’t done that.

Other projects allegedly not considered – context

120. Before getting into the various categories of project that were allegedly not considered, we

need to identify a list of the projets that are possibly relevant to the matter at hand.

121. Classifying these projects is by no means an easy task but there seem to be three categories

of projects – those consented prior to the application, those consented during the application

process, and those pending as of the date of the licence. We can then sub-divide these into projects

considered for in-combination effects purposes and those not so considered, leaving us with 6

categories overall:

Whether Consented before Consented during Pending as of the

considered licence application the application licence (13.1.23)

(<1.10.21) process (1.10.21-

13.1.23)

Considered in the AA Codling Wind Park Ltd. Dublin Port Celtix Connect Ltd

process (Codling I) Maintenance Dredging installation and

FS007045), lodged (FS007132), licence maintenance of the

24th April, 2020, granted dated 28th fibre-optic

granted 8th February, July, 2022 (addressed Havhingsten

2021 (addressed in in NIS p. 67 and Telecommunications

developer’s AA Hartley Anderson Cable (FS006915); the

screening p. 111, NIS report p. 129). cable landing site is at

p. 69, and Hartley Loughshinny, Fingal,

Anderson report p. Co. Dublin.

129). (considered in

developer’s AA

Ringsend Waste Water screening document,

treatment facilities p. 110, NIS table 7, p.

upgrade (application 67, Hartley Anderson

by Irish Water) report p. 129)

(addressed in (consultation closed

developer’s AA February, 2020,

screening p. 111, NIS pending at time of

p. 68, Hartley NIS).

Anderson report p.

129), permission Dublin Port Capital

granted in 2019 (An Dredging Project

Bord Pleanála case (appears to be

reference: FS007164 although

PA29S.301798). referred to at one point

There was apparently in the papers as

no foreshore aspect to FS007132) (addressed

this. in developer’s AA

screening p. 110,

Statkraft North Irish Hartley Anderson

Sea Array (NISA I) report) (a number of

Site Investigations applications said to

(FS007031), applied have been made,

for 17th December, appears to have been

2019, granted 14th submitted 23rd June,

December, 2021 (the 2021 and remains

developer’s AA pending).

screening p. 111, NIS

p. 69 and Hartley Irish Water Greater

Anderson report p. Dublin Bay drainage

129 refers to the North application in April

Irish Sea Array 2020 to enable the

without specifically construction of a 5.935

indicating the km outfall pipeline

Foreshore Licence (addressed in

number in each case developer’s AA

but on balance this screening p. 111, NIS

relates to NISA I). p. 68 and Hartley

Anderson report p.

Innogy – Site 129). This consisted of

Investigation – Dublin both a planning

Array at Kish and Bray application made on

Banks (FS007029), 20th June, 2018

lodged 26th (An Bord Pleanála case

September, 2019, reference:

determination PA06F.312131) and a

published 28th foreshore licence

January, 2021. This sought on 7th May,

was the developer’s 2020

previous site (FS006843). Both are

investigation licence still pending. The

dated 25th January, planning aspect was

2021, to commence decided by the board

retrospectively on 9th on 11th November,

December, 2020 for 5 2019 but quashed by

years, so was in force the High Court and

as of the present remitted (Joyce-

licence. It was Kemper v. An Bord

considered impliedly Pleanála (No. 2)

by being referred to in [2020] IEHC 601,

the IEC stage 2 report [2020] 11 JIC 2402

at p. 93. (Unreported, High

Court, Allen J., 24th

November, 2020) by

order of 16th July,

2021. The references

to the project on the

papers did not

distinguish between

the planning and

foreshore aspects or

indicate the application

numbers.

Not considered Sure Partners Arklow Codling Wind Park Ltd.

Bank Wind Park Phase Site Investigations for

2 Site Investigations proposed Offshore

(FS007339), lodged Wind Farm, off

15th April, 2021, Counties Wicklow and

decision to grant Dublin (Codling II)

published on 27th (Ref. FS007546),

May, 2022 (prior to lodged 13th June,

the time of the 2022, licence granted

licence). This was dated 12th May, 2023

referenced in the s. 19 (was pending at the

public consultation time of the licence)

submission 4 and the (there are general

AA consultation, references in

submissions 4 and 18. submission to Codling

Bank without

Statkraft North Irish indicating which

Sea Array (NISA II) application is

Site Investigations for concerned –

Export Cable Route submissions 4, 12 and

(FS007358), 16).

application 31st

March, 2021, granted ESB Wind

12th September, 2022 Development Limited

(the developer’s AA Site Investigations at

screening p. 111, NIS Sea Stacks Offshore

p. 69 and Hartley Wind off Dublin and

Anderson report p. Wicklow (FS007134),

129 refers to the lodged 23rd

North Irish Sea Array November, 2020,

without specifically remains pending. This

indicating the was referred to in AA

Foreshore Licence public consultation

number in each case (submissions 4, 9, 12)

but these references and RWE response to

on balance relate to submissions 12 and

NISA I – there was 18. This project is

some suggestion that apparently currently

an ambiguous or paused.

erroneous wording in

Ms Heffernan’s Réalt na Mara Offshore

affidavit amounted to Wind Farm Ltd, site

an acceptance that it investigations off the

was considered but it coasts of Wicklow and

would be Dublin (Ref.

inappropriate to place FS007330), lodged

significance on that if 24th March 2021,

in fact it appears that remained pending.

it wasn’t). It is Referred to in AA

notable that the IEC public consultation

AA report for the NISA submission 4 and 9.

II project assessed This project is

the potential in- apparently currently

combination effects paused.

between NISA II and

the impugned licence

here, but not vice

versa.

Sub-issue D – failure to consider development consent that had already been granted

122. There was a claim of failure to address a number of already-consented projects (Arklow and

NISA II – the applicants didn’t particularly advance any submission on the Innogy licence although

in fact this can be treated as having actually been considered).

123. The problem for the applicant in relation to already-consented projects is that there was no

acceptably clear reference to such projects in the grounds.

124. Sub-ground 93 provides:

“According to the EU Commission’s Guidance on Article 6(3) of the Habitats Directive (2021),

the obligation to take into account cumulative impacts in the context of AA extends to other

plans or projects that have been already completed, approved but uncompleted, or proposed

(i.e. for which an application for approval or consent has been submitted[)]. The Minister

did not have any information before him in relation to proposed projects for which an

application for approval or consent has been submitted, nor did the Minister himself consider

whether any such proposed projects would be capable of having in-combination effects, as

a consequence of which his consideration of cumulative impacts was invalid.”

125. This consists of three points. The first is to refer to the European Commission guidance,

which is merely a statement of legal context. The second point is that the Minister did not have

sufficient information in relation to developments at the proposal stage. The third point is that this

was not validly considered. Points two and three are claims of substantive illegality, by reference to

projects applied for but not consented. There is no reference to consented projects.

126. The fact that the relevant core ground is in wider terms (core ground 10 refers to “the

cumulative impacts arising from other plans or projects with the potential of having in-combination

effects with the activities permitted by the Licence”) isn’t a sufficient answer given the incredible

factual complexity of the matter. The “particulars” are limited to projects at the proposal stage. In

no sense is it acceptably clear from the pleadings that the applicants are seeking to introduce a

whole separate category of consents not referenced in these particulars.

127. The number of potential other projects and the highly technical nature of the factual situation

and the need for expert evidence on each of these is such that there is no way that it would be fair

to the opposing parties to allow the applicant to go beyond the very specific point made in sub-

ground 93 to launch some further dimension never made clear in the wording of the core ground.

Order 84 r. 20(3) RSC applies here.

128. On that basis I think that the already consented projects fall outside the pleadings.

Sub-issue E – failure to consider pending projects

129. The State points out that the particular projects concerned are not identified in sub-ground

93, which is correct. But despite that, the relevant pending projects are relatively identifiable being

the three projects pending as of the date of the licence that were within the 30 km zone of influence,

as set out in the table above. That is a very net grouping, by contrast with the attempted fairly

open-ended reading of core ground 10 which could potentially cover anything ever previously

consented or applied for.

130. The first edition of the European Commission’s document known as the “Article 6 guide”,

and is formally titled Managing Natura 2000 sites, The provisions of Article 6 of the ‘Habitats

Directive’ 92/43/EEC, was published in 2000. It stated:

“4.4.3. ... either individually or in combination with other plans or projects

A series of individually modest impacts may in combination produce a significant impact.

Article 6(3) tries to address this by taking into account the combination of effects from other

plans or projects. It remains to be determined what other plans and projects are covered.

In this regard, Article 6(3) does not explicitly define which other plans and projects are

within the scope of the combination provision.

It is important to note that the underlying intention of this combination provision is to take

account of cumulative impacts, and these will often only occur over time. In that context,

one can consider plans or projects which are completed; approved but uncompleted; or not

yet proposed:

• In addition to the effects of those plans or projects which are the main subject of

the assessment, it may be appropriate to consider the effects of already completed

plans and projects in this 'second level' of assessment. Although already completed

plans and projects are excluded from the assessment requirements of Article 6(3),

it is important that some account is still taken of such plans and projects in the

assessment, if they have continuing effects on the site and point to a pattern of

progressive loss of site integrity.

Such already completed plans and projects may also raise issues under Article 6(1)

and (2) of Directive 92/43/EEC if their continued effects give rise to a need for

remedial or countervailing conservation measures or measures to avoid habitat

deterioration or species disturbance.

• Plans and projects which have been approved in the past and which have not been

implemented or completed should be included in the combination provision.

• On grounds of legal certainty, it would seem appropriate to restrict the combination

provision to other plans or projects which have been actually proposed. At the same

time, it must be evident that, in considering a proposed plan or project, Member

States do not create a presumption in favour of other as yet unproposed plans or

projects in the future.

For example, if a residential development is considered not to give rise to a significant effect

and is therefore approved, the approval should not create a presumption in favour of further

residential developments in the future.

When determining likely significant effects, the combination of other plans or projects

should also be considered to take account of cumulative impacts. It would seem appropriate

to restrict the combination provision to other plans or projects which have been actually

proposed.”

131. The current edition of the Article 6 guide dates from 2019 (2019/C 33/01). Section 4.5.3

states as follows in similar terms:

“4.5.3. … either individually or in combination with other plans or projects

A series of individually modest impacts may, in combination, produce a significant impact.

As the Court has pointed out ‘the failure to take account of the cumulative effect of projects

in practice leads to a situation where all projects of a certain type may escape the obligation

to carry out an assessment, whereas, taken together, they are likely to have significant

effects on the environment’ (C-418/04, C-392/96 paragraphs 76, 82).

Article 6(3) tries to address this by taking into account the combination of effects from other

plans or projects. In this regard, Article 6(3) does not explicitly define which other plans and

projects are within the scope of the in-combination provision.

It is important to note that the underlying intention of this in-combination provision is to

take account of cumulative impacts, and these will often only occur over time. In that

context, one can consider plans or projects which are completed, approved but uncompleted,

or proposed:

• In addition to the effects of those plans or projects which are the main subject

of the assessment, it may be appropriate to consider the effects of already

completed plans and projects in this ‘second level’ of assessment, including

those preceding the date of transposition of the Directive or the date of

designation of the site (see, for example, C-142/16, paragraphs 61 and 63).

Although already completed plans and projects are themselves excluded from

the assessment requirements of Article 6(3), it is still important to take them

into consideration when assessing the impacts of the current plan or project in

order to determine whether there are any potential cumulative effects arising

from the current project in combination with other already completed plans and

projects. The effects of such completed plans and projects would normally form

part of the site’s baseline conditions which are considered at this stage (52).

• Plans and projects which have been approved in the past but have not yet been

implemented or completed should be included in the in-combination provision.

• As regards other proposed plans or projects, on grounds of legal certainty it

would seem appropriate to restrict the in-combination provision to those which

have been actually proposed, i.e. for which an application for approval or consent

has been introduced. At the same time, it must be evident that, in considering

a proposed plan or project, Member States do not create a presumption in favour

of other not yet proposed plans or projects in the future.

For example, if a residential development is considered not to give rise to a significant effect

and is therefore approved, the approval should not create a presumption in favour of further

residential developments in the future.

In addition, it is important to note that the assessment of cumulative effects is not restricted

to the assessment of similar types of plans or projects covering the same sector of activity

(e.g. a series of housing projects). All types of plans or projects that could, in combination

with the plan or project under consideration, have a significant effect, should be taken into

account during the assessment.

Similarly, the assessment should consider the cumulative effects not just between projects

or between plans but also between projects and plans (and vice versa). For example, a new

project to build a major motorway through an area may on its own not adversely affect the

site, but when considered in combination with an already approved housing development

plan for the same area, these impacts may become significant enough to adversely affect

the site. On the other hand, a plan may have no significant impact on Natura 2000 sites on

its own but may be assessed differently if considered in combination with an already

proposed or authorised major development project not included in that plan.

Potential cumulative impacts should be assessed using sound baseline data and not rely only

on qualitative criteria. They should also be assessed as an integral part of the overall

assessment and not be treated merely as an ‘afterthought’ at the end of the assessment

process.

When determining likely significant effects, the combination with other plans and/or projects

should also be considered to take account of cumulative impacts during the assessment of

the plan or project in question. The in-combination provision concerns other plans or projects

which have been already completed, approved but uncompleted or actually proposed.”

132. The most recent Commission guidance document, dating from 2021, is entitled Assessment

of plans and projects in relation to Natura 2000 sites – Methodological guidance on Article 6(3) and

(4) of the Habitats Directive 92/43/EEC (2021/C 437/01) [Brussels, 28.9.2021 C(2021) 6913 final,

Commission notice], and includes the following at p. 21:

“The ‘in combination’ screening requires the identification of other plans and projects that

can have potential effects on the same Natura 2000 sites and then assessing their capacity

to cause significant effects when considered together with the plan or project under

assessment. If this analysis cannot reach definitive conclusions, it should at least identify

any other relevant plans and projects that should be scrutinised in more detail during the

appropriate assessment.

Assessing cumulative effects at the screening stage

A series of individually low-level impacts may, in combination, produce a significant impact.

When determining likely significant effects, the combination with other plans and/or projects

should also be considered to take account of cumulative impacts during the assessment of

the plan or project.

The in-combination provision concerns other plans or projects that have been already

completed, approved but uncompleted, or proposed (i.e. for which an application for

approval or consent has been submitted). In addition, it is important to note that the

assessment of cumulative effects is not restricted to the assessment of similar types of plans

or projects covering the same sector of activity. All types of plans or projects that could, in

combination with the plan or project under consideration, have a significant effect, should

be included during the assessment.

Similarly, the assessment should look at the cumulative effects, not just between projects

or between plans but also between projects and plans (and vice versa). For example, a new

project to build a major motorway may on its own not adversely affect the site, but when

considered in combination with an already approved housing development plan for the same

area, the impacts may become significant enough to adversely affect the site. By contrast,

a plan may have no significant impact on Natura 2000 sites on its own but may be assessed

differently if considered in combination with an already proposed or authorised major

development project not included in that plan.

See further details in the Article 6 Guide – section 4.5.3.”

133. The guidance continues at p. 22:

“Table 2 outlines the key steps for assessing cumulative effects on a Natura 2000 site.

Table 2: Cumulative impact assessment

Steps in the assessment Activity to be completed

… …

Identify all projects/plans that could Identify all possible sources of effects from

act in combination the plan or project under consideration,

together with other sources in the existing

environment and other possible effects

from other proposed projects or plans;

timing and phasing of projects or plans.

134. At pp. 44-45 the guide discusses this further including by reference to multiple wind farms

as an example:

“c) Assessing cumulative effects with other plans and projects

Cumulative impacts can result from the successive, incremental, and/or combined effects of

a development (plan, project) when added to other existing, planned, and/or reasonably

anticipated developments (see also section 3.1.4, table 2 on the key steps for assessing

cumulative effects on a Natura 2000 site). Examples of cumulative impacts include:

• increased pollutant concentrations (particularly in water and soil), beyond levels

compatible with the ecological requirements of the habitat or species protected

in the site;

• reduction of water flow in a watershed due to multiple withdrawals, below the

level which is compatible with the ecological requirements of the habitat or

species protected in the site;

• interference with migratory routes or wildlife movement;

• increased pressure on habitats and species in an ecosystem from different

developments.

Cumulative impacts encompass a broad spectrum of impacts on different geographical scales

and timeframes. In some cases, cumulative impacts occur because a series of projects of

the same type are being developed. Prime examples are:

• when several hydroelectric projects are constructed or planned on the same

river or within the same watershed;

• when multiple oil and gas projects or mineral extraction projects are developed

in close proximity; or

• when a number of wind farms are constructed or planned within the same flyway

or region.

In other cases, cumulative impacts occur due to the combined effects of different types of

projects in the same area, such as the development of a mineral extraction site, access

roads, transmission lines, and other adjacent land uses. In some situations, different

components of the same development are implemented and assessed separately, meaning

that the cumulative impacts from these components should also be subject to a cumulative

impact assessment.

Other plans or projects that could, in combination with the plan or project under

investigation, have a significant effect on a site must be taken into account during the

appropriate assessment. For example, a proposed road will pass some distance from a

Natura 2000 site and the disturbance it will generate (e.g. noise) will not significantly affect

bird species protected in the site. However, if there are other existing or proposed projects

or plans (e.g. a road on the other side of the Natura 2000 site), then the total noise levels

from all these projects combined may cause a significant level of disturbance for those bird

species (noise levels above what it compatible with the ecological requirements of the

species).

To note also that cumulative impacts could occur where impacted areas interact. An example

of this would be where a proposed project is likely to reduce water levels in a Natura 2000

site. Although that resource reduction in itself may not be significant, if existing fertiliser

and pesticide residues reach the site from a nearby intensive farming area, the lower water

levels may mean higher concentrations of pollutants when runoff occurs, to an extent that

the combined effect becomes significant, i.e. concentrations of pollutants beyond the levels

which are compatible with the ecological requirements of the habitat or species protected in

the site.

‘In-combination’ effects should already have been investigated at the screening stage

(Section 3.2), and any other plans and projects that can act in combination should have

been identified. The assessment at the screening stage may have been simplified, but, at

the appropriate assessment stage, the identified impacts of other projects or plans that can

act in combination with the plan or project being assessed should be properly evaluated.

This requires quantifying and/or qualifying the magnitude of these other impacts and

identifying the affected features of the Natura 2000 sites.

As stated in section 3.1.4, the in-combination provision concerns other plans or projects that

have been already completed, approved but not yet completed, or submitted for consent.

In addition to the effects of the plans or projects that are the main subject of the assessment,

it may be appropriate to consider the effects of already completed plans and projects,

including those preceding the date of transposition of the directive or the date of designation

of the site. The effects of such completed plans and projects would typically form part of the

site's baseline conditions which are considered at this stage. Plans and projects that have

been approved in the past but have not yet been implemented or completed should also be

included in the in-combination provision. As regards other proposed plans or projects, in the

interest of legal certainty it would be appropriate to restrict the in-combination provision to

plans that have been actually proposed, i.e. for which an application for approval or consent

has been submitted. At the same time, it must be evident that, when assessing a proposed

plan or project, Member States do not create a presumption in favour of other not yet

proposed plans or projects in the future.

See further details in the Article 6 Guide – section 4.5.3

The geographical scope to use when looking at cumulative effects will depend on the type

of plan or project and the habitats and species significantly present on the site. It could be,

for instance, within a certain radius, on a catchment area basis, or along a bird migration

route. It should however cover the entire geographic area in which all plan or project

activities and their cumulative effects are likely to have implications on the conservation

objectives of the Natura 2000 sites in question.”

135. Hence the guidance envisages that pending applications should be considered in the in-

combination assessment rather than just consented projects and plans, and has expressly provided

to this effect for over 20 years now.

136. The State argues by analogy that there is no obligation to take into account non-consented

projects in an EIA context – see EIA directive annex IV para. 5(e) which applies only to existing or

approved projects. But the habitats directive has always involved a higher standard of certainty.

137. Ms Heffernan points out in evidence (see third affidavit, para. 103) that this approach is

reflected in the State’s own guidance document, Appropriate Assessment of Plans and Projects in

Ireland, Guidance for Planning Authorities, published by the Department of Environment, Heritage

and Local Government in December, 2009 (revised 2010), and currently the responsibility of the

NPWS at pp. 33-34:

“As the underlying intention of the in-combination provision is to take account of cumulative

effects, and as these effects often only occur over time, plans or projects that are completed,

approved but uncompleted, or proposed (but not yet approved) should be considered in this

context (EC, 2002).”

138. While the applicants haven’t expressly pleaded the divergence from national guidance as a

specific ground of challenge, it is nonetheless a striking feature of the case. The State’s attempt to

explain away the contradiction between its own published guidance and its stance to the contrary in

the present case is unconvincing and I will come back to that as a contextual matter potentially

relevant to the issue of discretion.

139. The issue of in-combination effects with other pending projects arose not only from other

submissions, such as the reference to cumulative effects by the Marine Institute, Inland Fisheries

Ireland, the Irish Whale and Dolphin Group (submission 3), Coastal Concern Alliance (submission

17) and submissions 8, 11, 15, but more importantly from the material before the decision-maker

itself, so the applicant not only gets out of the starting blocks on a Commission v. Germany basis

but there is also factual material before the decision-maker by reference to which the complaint can

be advanced.

140. At the broad level I would not quibble with the point made in In re Newry Chamber of

Commerce and Trade [2015] NIQB 65 by Treacy J. at para. 64 that the decision-maker’s views on

the assessment of in-combination effects “are matters of expert judgment which cannot legitimately

be condemned as unreasonable. Furthermore, this is not a matter for an impermissible merits

debate before this court”. However that presupposes a lawful assessment and consideration of the

projects by reference to which the in-combination effects consideration is to take place.

141. Likewise, in Rushe v. An Bord Pleanála at paras. 212-220, Barniville J. upheld the merits of

an in-combination effects analysis, but again that was not a case where there was an issue as to the

process of consideration and in particular whether the decision-maker had factored in the correct

projects to consider. Such a question is at best from the opposing parties’ viewpoint a mixed

question of fact and law, and at worst a pure question of law.

142. Here what makes it an issue of law is that the State adopted a position in principle limiting

the matters to which regard would be had. As noted above, the State very firmly and clearly

submitted that there is no obligation to consider in-combination effects in respect of projects that

were only at the application stage, that is prior to the grant of permission.

143. We will deal with the defences to this point below.

Sub-issue F – inadequacy of condition

144. The second sentence of sub-ground 91 provides as follows:

“Neither the mitigation measures proposed by RWE, nor the conditions imposed by the

Minister are effective in dealing with issues of spatial and temporal overlap in terms of similar

licensed activities.”

145. While sub-optimally, the ground isn’t particularly specific about which conditions it is talking

about or why they aren’t effective, it is acceptably clear as to what the similar licensed activities are

(as listed above) and therefore as to what the condition is. Its ineffectiveness is a matter apparent

on its face so I don’t think that the applicants’ submissions on this issue impermissibly expand their

case.

146. A certain amount of material acknowledging the possibility of in-combination effects through

temporal overlap is directly contained in the development application. The NIS includes the following

at para. 4.3.10 regarding the North Irish Sea Array (NISA):

“The NISA site investigation works were screened into the in combination assessment for

consideration of the harbour porpoise QI of the Rockabill to Dalkey SAC. The NIS for NISA

Foreshore Licence application submitted by Statkraft Ltd concluded no LSE for geotechnical,

metocean and benthic surveys occur[r]ing within the site boundary. Further the effects are

very localised (immediate footprint of the equipment or in the case of drilling within 100 m

of the drilling equipment). Given that the application has yet to be determined and details

on the exact timing of the intended works are unknown, there is a potential for temporal

overlap of the NISA geophysical survey with the surveys for Dublin Array.”

147. The Hartley Anderson Report includes the following at para. 3.5:

“Codling Bank site investigation works: a foreshore licence for these site investigation works

was determined in February 2021, and while a schedule for the works is not available there

is the potential for spatial/temporal overlap. The proposed Codling Bank site investigations

at the Poolbeg landfall overlap with South Dublin Bay and River Tolka Estuary SPA and

Rockabill to Dalkey Island SAC. The potential for incombination effects will be considered

for the qualifying interests of these sites in the Applicant’s NIS. The specific features and

sources of effect to be considered incombination were not indicated.

Greater Dublin Drainage Project: the applicant notes that there is the potential for temporal

overlap between the construction of a marine diffuser related to the Greater Dublin Drainage

Project, due to commence Q2 2022 with works lasting three years. While LSE is not

identified for any particular site in-combination with the survey activities, the applicant notes

that the diffuser construction will be considered further in its NIS.

...

North Irish Sea Array (NISA) site investigation works: there is no spatial overlap between

the proposed NISA surveys and that of the Applicant, however, there is the potential for

temporal overlap. In-combination effects are discounted for the NISA geotechnical,

metocean and benthic surveys due to the localised nature of the effects. Due to the potential

overlap with mobile qualifying interests of Rockabill to Dalkey Island SAC (harbour porpoise)

and Lambay Island SAC (harbour seal, grey seal) in relation to underwater noise from

geophysical surveys, the in-combination effects with the NISA survey in relation to these

sites will be considered in the Applicant’s NIS.”

148. The Hartley Anderson Report continues at section 3.4:

“Irish Water Greater Dublin Bay drainage

The Irish Water construction of a pipeline to the north of Dublin Bay, including a section of

the Baldoyle Estuary, will involve excavation of a trench 5m deep, installation of the pipeline

and backfilling with previously excavated material, together with the installation of two piled

structures. Whilst there is no spatial overlap, the applicant identified the potential for

temporal overlap with the proposed site investigations at Dublin Array.

...

North Irish Sea Array site investigation works

The applicant noted the potential for temporal overlap of the NISA geophysical survey with

the surveys for Dublin Array. The NIS for NISA Foreshore Licence application submitted by

Statkraft Ltd concluded no LSE for geotechnical, metocean and benthic surveys occurring

within the site boundary. The site investigation works at NISA will be undertaken over 20

km from the survey activities at Dublin Array, and any underwater noise generated would

attenuate rapidly to within background levels, with no adverse effects predicted. Given the

localised nature of any effects from survey activities and that both projects were committed

to mitigation in line with the DAHG guidance (see Section 3.3.1), the applicant concluded

that no adverse effects upon site integrity as a result of the proposed works in-combination

with NISA would occur.

...

In-combination underwater noise effects: The proposed site investigations and those other

wind farm site investigations identified above (Codling, NISA) could theoretically happen at

the same time. The risk of injury to harbour porpoise qualifying interests from these surveys

is considered to be very low and only within the immediate vicinity of the survey vessel or

operation. Given the localised nature of any effects from survey activities and that all

projects have committed to mitigation in line with the DAHG guidance, there will be no

adverse incombination effects on the integrity of the site. Further, the licensee shall liaise

with the Department and use their best endeavours to liaise with the holders of Foreshore

licences for other surveys and site investigations to be undertaken in the vicinity of the

Foreshore licence area specified in this application.”

149. Conclusion 7 in the Marine Adviser’s Environmental Assessment and Determinations Report

is as follows:

“The licensee shall liaise with the Department and use their best endeavours to liaise with

the holders of Foreshore licences for other surveys and site investigations to be undertaken

in the vicinity of the Foreshore licence area specified in this application.”

150. The MLVC Report introduces a new proposed requirement, namely to co-ordinate with other

licence holders. The report states in section 9.0:

“Given the existence of other licences in this general area, it is considered prudent in the

interests of mitigating the possible cumulative environmental effects that the applicant be

required, in the event of a licence being granted, to coordinate with other licence holders

that overlap with the survey area as submitted to ensure that no temporal overlap between

two or more projects occurs. It is considered that this requirement shall form part of the

notification condition.”

151. However, for whatever reason (possibly mistake – the State hasn’t really explained this),

the proposed conditions at section 10.0 don’t include such a new condition but only the general

wording previously proposed by Hartley Anderson, stating at proposed condition 14:

“The licensee shall liaise with the Department and use their best endeavours to liaise with

the holders of Foreshore licences for other surveys and site investigations to be undertaken

in the vicinity of the Foreshore licence area specified in this application.”

152. Submission HLG 00537-22: Appropriate Assessment Determination on Foreshore Application

FS007188 RWE Renewables Ireland Ltd., Site Investigations for the proposed Dublin Array offshore

wind farm, approved by Minister of State Burke on 23rd November, 2022, includes the following,

reflective of the MLVC report:

“Significant appropriate consideration has been given to environmental matters by

Independent Environmental Consultants which is reflected in this report. The supporting

environmental reports formed part of this assessment. Given the existence of other licences

in this general area, it is considered prudent in the interests of mitigating the possible

cumulative environmental effects that the applicant be required, in the event of a licence

being granted, to coordinate with other licence holders that overlap with the survey area as

submitted to ensure that no temporal overlap between two or more projects occurs. It is

considered that this requirement shall form part of the notification condition.”

153. But again the submission repeats the contradiction of the MVLC, namely to narratively

propose a “notification condition” that “the applicant be required, in the event of a licence being

granted, to coordinate with other licence holders that overlap with the survey area as submitted to

ensure that no temporal overlap between two or more projects occurs”, but to include as a proposed

condition only the earlier, weaker, wording that does not in terms achieve this.

154. Condition 31.13 of the licence ultimately granted provides:

“The Licensee shall liaise with the Department of Housing, Local Government and Heritage

and use their best endeavours to liaise with the holders of Foreshore Licences for other

surveys and site investigations to be undertaken in the vicinity of the Foreshore Licensed

Area the subject matter of this Licence.”

155. The State’s submission was that the condition should be read as intended to give effect to

the more imperative wording that the MLVC introduced and that was accepted by the Minister in

approving the submission. It is also submitted that the Minister can ensure all this happens anyway

through other powers.

156. Paragraph 6.1 of the licence:

“The Licensee shall not commence any works associated with the Operations in the Licensed

Area, without the prior written consent of the Licensor.”

157. Paragraph 6.3 and 31.2 of the Second Schedule of the licence requires 14 days’ notice to

the Minister of proposed works under the licence. The Minister interprets this as involving 14 days’

notice of beginning any item of works involving the departure of a specific vessel.

158. Paragraph 9.2(10) provides that the licensee shall:

“... not, without the prior written consent of the Licensor, carry out any works, activities or

operations which, in the reasonable opinion of the Licensor, are injurious to or interfere

unreasonably with fishing, navigation, adjacent lands and/or Foreshore, approved scientific

research or the public interest”.

159. Paragraph 9.3 provides that:

“Without prejudice to any other remedy under this Licence, at Law or Environmental Law, if

the Licensor is of the view that the Licensee is in breach of any obligation pursuant to clause

9.2, the Licensor may, by notice in writing, require that the Licensee rectify such breach

within such reasonable time period as is specified by the Licensor.”

160. Paragraph 81 of the State’s written submission obscures this issue by saying that

“cumulative impacts were considered by the MLVC, and a mitigation measure proposed, which was

adopted as a condition of the Licence”. That inaccuracy is the very problem. The condition

narratively proposed by the MLVC was not adopted as a condition of the licence, which instead took

the form of the formula pre-dating the MLVC report.

161. The applicants called the ultimate condition “woolly language”, and one has to agree with

that. There isn’t anything unlawful in itself about a condition of a permission being woolly, all other

things being equal; what makes it potentially unlawful here is the context which requires removal of

all scientific doubt about impacts on European sites together with the contradictory situation that

the MLVC added much stronger language about the need for an imperative condition but didn’t follow

through to actually propose the condition that was so needed, in lieu of the very loose wording of

the condition they inherited. The fact that theoretically the Minister might be able to come at the

problem some other way (even making the contestable assumption that the rosy scenarios promised

in legal submissions are invariably carried through in their totality in practice) doesn’t in itself do a

lot to meet the MLVC’s statements that co-ordination should be ensured or the habitats directive

requirement of removing all scientific doubt. This isn’t a case where a Minister is given a general

power and it is to be assumed that it will be exercised lawfully. Rather it is one where there is a

complex situation involving multiple public and private law actors, where the directive requires

certainty, where the Minister’s official reasoning, supporting the MLVC, supports the need for that,

and where the specific measure that was expressly agreed to as being required to ensure such

certainty wasn’t in fact adopted.

162. The opposing parties predictably complain that the applicants haven’t shown in granular

detail how all of this will impact, how specific impacts on qualifying interests of European sites will

be adversely affected by hypothetical in-combination effects and so on. But surprising as it may

seem, an applicant can’t do all the work. Once an applicant manages to overcome the onus of proof

to demonstrate infirmity in the decision-making process, it is up to the opposing parties to show

that such an infirmity couldn’t have made any difference (see H.A. v. Minister for Justice [2022]

IECA 166, [2022] 7 JIC 2201 (Unreported, Court of Appeal, 22nd July, 2022) at para. 48). They

certainly haven’t done that thus far in relation to such apparent infirmities as the applicants have

identified.

163. The State’s position is not enhanced by the evidence that the alleged plenary powers of the

Minister have not been used in a manner so as to obviate any temporal overlaps. In her third

affidavit, Ms Heffernan deals with the alleged in adequacy of the condition as follows:

“96. ... RWE commenced works on foot of the Licence on or about 25 April 2023, and

Marine Notices 16 of 2023 and 24 of 2023 indicated that works would commence in April

and run until late May 2023. Mr Toole has previously referred to Marine Notice 28 of 2023

(which is exhibited at ‘4IT4’ to Mr Toole’s Fourth Affidavit) and which was issued on 13 April

2023 (the day before the Department emailed to state that there had been compliance with

condition 31.13) related to the Codling Wind Park –Geotechnical Site Investigations. That

Marine Notice indicated that:

‘The Department of Transport has been advised by Codling Wind Park Ltd that

geotechnical site investigations will be conducted on the Codling Wind Park project

site off the coast of County Wicklow. The project works will commence on 8 May

2023 and continue through to late July 2023, subject to weather and operational

constraints.

2. Location of Planned Operations

The Codling Wind Park is a project on the Codling bank approximately 13km off the

east coast of Ireland. The geotechnical investigation (incl. boreholes and cone

penetration tests) is intended to take place at 15 different locations within the

project work site.’

97. Given that the above Marine Notice refers to a start date of 8 May 2023, the Codling

investigations had the potential to overlap with investigations being carried out by RWE. As

the start date is prior to the second licence having been granted to Codling Wind Park, it

would appear to have been issued on foot of Codling’s 2021 Licence, which was not

considered by RWE or the Minister.

98. For the reasons set out above, conditions 31.13 is demonstrated to be ineffective in

dealing with the potential for in combination effects arising from the spatial and temporal

overlap of the effects of similar licensed activities.

99. I have dealt further with the views expressed by the MLVC in relation to the necessity

for the imposition of a condition on the Licence which would ‘ensure that no temporal overlap

between two or more projects occurs’ in the section of my Affidavit below, which provides a

response to the Affidavit of Colin Ryan. No such condition was, in fact, imposed which would

be effective to ensure this objective.”

164. I am not sure that there has been a completely convincing answer to this point so far,

although I bear in mind that the directions did not provide for a reply to this affidavit, so there may

be some wriggle room left for the opposing parties to clarify their position in the next module.

Sub-issue G – inadequate specification of the projects being considered

165. Some points were made in oral submissions about a failure by the developer or State to

identify the foreshore licence and planning application numbers in the course of the process which

could have caused confusion if there were multiple applications. This claim of either no reference or

inadequate or incomplete reference applied to the following projects:

(i) Celtix Connect;

(ii) Dublin Port Company maintenance dredge campaign;

(iii) Ringsend Waste Water; and

(iv) Irish Water Greater Dublin Bay drainage.

166. In addition, a specific point is made in respect of the NISA matters in that it is said that it is

unclear which NISA project was considered.

167. The problem with this argument is that it arose from the materials that were available when

the proceedings were commenced, and could have been raised by the applicants in the statement

of grounds (even if they didn’t have to correct the developer’s homework by raising it in the process).

Not having done that, I don’t think that that point properly arises.

The argument that the in-combination points should be dismissed

168. So what remains live at this point is the argument that the treatment of in-combination

effects was defective because either the Minister wrongly exclude pending projects or because the

condition fails on its face to adequately address such effects or contradicts the reasoning regarding

the need for an imperative condition that was accepted by the Minister.

169. We now turn to whether these points should be dismissed outright. The developer’s

submission helpfully lists out 8 factors which it suggests should be considered as a matter of

discretion, and another 8 headings were raised by the opposing parties in submissions, making 16

objections in total. I can add a 17th point which is whether the criticisms should be considered

cumulatively or in combination, even if they are not up to snuff individually:

(i) It is said that the Commission guidance is only guidance and expresses itself as

subject to the CJEU. That is of course true but that doesn’t make it of no value or

relevance. If the only issue was non-compliance with non-binding guidance then

the State might have a point, but that is a mischaracterisation. The obligation comes

from the habitats directive rather than the guidance, and the issue is whether the

European Commission’s interpretation of the directive correctly reflects the

obligations of the directive. Maybe it does, maybe as the State contends it doesn’t,

but any uncertainty about that makes the case for the reference sought by the

applicants, not for dismissing the proceedings.

(ii) The argument is made that the applicants have to plead a connection between the

matter not considered and an impact on a European site. That sounds plausible but

one has to bear in mind that the applicants are making a process objection rather

than a merits objection under this heading. The issue is that the decision-maker

unlawfully failed to take into account certain matters by adopting an incorrect view

of the law. That is a common or garden administrative law complaint. If it is upheld,

the responding parties would have some onus to show that that couldn’t make any

difference (H.A. v. Minister for Justice at para. 48), unless that was obvious, which

it certainly isn’t. So I don’t think an applicant has to anticipate any possible defence.

Core ground 10 and sub-grounds 91 and 93 are adequate in this regard, even if, like

all pleadings with the benefit of hindsight, they could have been more detailed. The

standard is acceptable clarity, not perfection.

(iii) It is then said that even if the applicants don’t have to plead this in detail, they have

to demonstrate evidentially that any demonstrated potential error could have caused

impacts on a European site. This assumes that the onus of proof on the applicant

doesn’t even slightly shift once they get to the point of demonstrating error. That

isn’t the case but that is doubly so where the exercise is about removing all scientific

doubt under the habitats directive.

(iv) It is then argued that these issues will all be matters for the Minister, who is the

same decision-maker as here, when deciding on the pending applications, so there

isn’t any real problem. So the question of whether project A and project B have

effects in combination could have been addressed when project A is being consented,

but if that isn’t done, then exactly the same exercise can be carried out later when

project B is being consented by the same decision-maker. Hence there’s nothing to

see here. That superficially sounds not only extremely plausible but rock-solid to a

mathematical level of certainty. Forgivably I hope, I was initially somewhat taken

in by that argument, but when one looks in detail at the European Commission

guidance on cumulative and in-combination effects one sees that it is a much more

dynamic and complex problem. Mathematically and logically the argument

regarding two projects makes sense, but we are not talking about two projects. In-

combination effect analysis involves an overall look at how any specific project will

impact in combination with all relevant projects already completed, all relevant

projects consented but not completed as of the date of the consent, and if the

European Commission and the departmental guidance on the NPWS website is to be

believed, all relevant projects that have been applied for as of that date but not

consented. That is a technical exercise specific to the particular development

consent concerned. So the question is not whether project A and project B will have

in-combination effects, but whether project A, project B, and projects C to M will

have in-combination effects. If the decision-maker postpones that to the stage of

consenting project B, she will then find that the question is quite different, namely

perhaps whether project A, project B, and projects K to Z have in-combination

effects, and the opportunity to conduct the specific exercise that should have been

conducted in relation to project A will now be utterly irrecoverable. There are so

many fluctuating variables in this type of analysis that the Minister is not going to

be able to unscramble the egg. Some projects that should have been considered as

relevant to project A may not arise at all for project B, not only due to factual

changes in the nature and stages of the projects but because of possibly different

zones of influence which define which projects are relevant based on their

geographical location.

(v) The Minister goes on to argue that as a matter of fact, in the Codling licence decision-

making process, there was a subsequent analysis of the in-combination effects at

the time of the grant of that licence. But I think the previous problem applies. The

in-combination exercise is by its very nature specific to the situation as of the

particular date of a particular development consent by reference to the particular

geographical location of the specific consented project, the defined zone of influence

related to that, and the particular projects thereby defined as relevant to it

specifically and the nature of such projects as they appear at that time.

(vi) The opposing parties say that the problem is in any event dealt with by the condition.

But even if we didn’t have the problems with the condition as set out above, that is

a post hoc exercise, not the specific in-combination analysis that is required as of

the grant of development consent. The same problems apply.

(vii) The opposing parties argue that the complaint is largely hypothetical because two

of the pending projects have been paused by Government decision communicated

by letter dated 18th May, 2023 (after the licence was granted). However that does

not apply to the Codling II project. Nor does it answer the problem that pausing the

projects as a matter of fact does not dilute the legal obligation to consider the

possible in-combination effects as a matter of European law.

(viii) The next point was that any infirmity should be dealt with by declaration and we will

turn to that in the next section.

(ix) We now come to the argument that the proceedings should be dismissed as a matter

of discretion. The first complaint is that “the Applicants did not make a submission

on RWE’s licence application at Stage One Screening stage”. That is true but

European law gives them a right to bring the present proceedings (or at least that

hasn’t been challenged here) and it would undermine that right to dismiss the

proceedings because they didn’t do something EU law doesn’t require them to do.

(x) The next complaint is that “whilst Mr. Toole did make a submission in June 2022 on

the Stage Two AA, he did not raise any of the issues now pleaded in the Amended

Statement of Grounds”. Again that is true but the same response applies.

(xi) The developer then says that “the issues raised in pre-litigation correspondence by

the Applicants’ solicitors related to the Applicants’ commercial fishing interests and

a purported lack of consultation in respect of the impacts of the site investigations

on his fishing operations”. Again that’s as may be but the previous point applies.

Given the EU law right to litigate the issue without first raising it with the opposing

parties, it would undermine that to dismiss the proceedings on such a basis.

(xii) The developer then says “RWE sought to engage with those concerns both in the

context of the licensing process and directly with Mr. Toole”. That is an

understandable complaint but again the same problem arises.

(xiii) The developer submits: “[s]ince the enactment of the Climate Action and Low Carbon

Development (Amendment) Act 2021, any failure to reduce emissions within the

initial or second five year carbon budget period will require deeper emission

reductions in the next budget period, to ensure that emissions are reduced by 51%

by 2030 over 2018 levels. For the first time, the 2021 Act has made Ministers and

other relevant bodies legally responsible and accountable for inaction or delay in

implementing the sectoral measures and actions specified in the Act, including

specific actions under the latest Climate Action Plan 2023 (‘CAP 23’) , and these

provisions strongly lean against an Order granting certiorari, in particular”. The

problem with that is that as discussed in the No. 2 judgment, the need for measures

to address the climate emergency can’t have the effect of undermining

environmental law. This argument, totally relatable as it is, is just another

incarnation of the immortal insight of Jonathan Swift that “Laws are like Cobwebs

which may catch small flies, but let Wasps and Hornets break through” (“A Tritical

Essay upon the Faculties of the Mind”, in Miscellanies in prose and verse (London,

1711) p. 257). The logic is that it might be just about tolerable for the courts to

occasionally quash modest development consents, but it is taking things too far to

accept that in respect of major projects contributing to important objectives. One

can understand the all-too-human logic of that position but it isn’t jurisprudentially

valid. The legal correctness of the procedural issue involved in the decision-making

process doesn’t depend on the size or importance of the project concerned, so it

would be illogical and more importantly unequal to treat this project differently from

another project where similar issues might arise. Treating like cases alike and

ensuring that the law makes sense overall as a unified whole is a core component of

justice as seen by philosophers from Aristotle to Kant to Dworkin. That is not to say

that the consequences of decisions are irrelevant – they aren’t at all irrelevant. But

the primary metwand by which consequences are to be assessed is their impact on

the system rather than on any particular party who might not want to be on the

losing side of a particular case. And here, there are absolutely no adverse

consequences to the system if the points being made by the applicants are ultimately

upheld. All that would mean is that the Minister would have to follow the Commission

guidance, and that ministerial decisions should not be contradictory by including

imperative language regarding conditions but highly permissive actual conditions. A

fundamental problem not just with this but with most of the other similar points

made against the applicants is that such points would be given short shrift as a basis

to dismiss a more pedestrian case in limine. There shouldn’t be a different rule book

just because this project is particularly important to the State and the developer.

(xiv) The developer goes on to submit that “in that regard, the Dublin Array project

competed successfully in Ireland’s first offshore renewable energy support scheme

(ORESS 1), securing an offer capacity of 824MW, and subject to obtaining the

required consents, once operational it will deliver 16% of Ireland’s CAP 23

commitment (underpinned by the Climate Act) to deliver 5GW of new offshore

generating capacity by 2030 (as, indeed, was recognised in the judgment on the

interim stay application, at §44)”. Again the same points apply unfortunately.

(xv) The next complaint is that “the continued stay has had and is continuing to have

significant programmatic delays on the Dublin Array project and RWE, which will

have commercial, financial and practical implications as well as a reputational impact

on the developing offshore wind sector in Ireland, where offshore wind is critical to

meeting Ireland’s legally binding emission reduction obligations”. It will be no

consolation whatsoever to say that this is all totally understandable but we are

beyond the question of an interlocutory stay at this point – the applicants have made

quite a bit of headway in demonstrating that the points concerned are substantial

ones. Nor do I totally buy the concept of reputational damage because the logic of

the EU law right to an effective remedy is that any project anywhere in the Union

can be challenged by anyone where the relevant directives so provide. Ireland isn’t

uniquely permissive in this respect. Although it possibly doesn’t help that the 1933

Act doesn’t have some of the procedural safeguards in the interests of expedition

that either exist or are proposed for planning law.

(xvi) The final discretionary factor is that “the Applicants delayed in instituting these

proceedings, as well as bringing the application for an interim stay, which delays

have caused and will continue to cause serious prejudice to RWE”. I have previously

addressed this alleged and fairly limited delay in the No. 1 and No. 2 judgments.

European law allows the full limitation period to bring the action, which can’t be cut

back by vague and uncertain requirements of speed within that: see Case C-456/08

Commission v. Ireland (Court of Justice of the European Union, 28th January, 2010,

ECLI:EU:C:2010:46). In addition, the limitation period should not run from prior to

when the applicant could have found out about the decision: see Case C-406/08

Uniplex (UK) Ltd v. NHS Business Services Authority (Court of Justice of the

European Union, 28th January, 2010, ECLI:EU:C:2010:45), C-280/18 Flausch v.

Ypourgos Perivallontos kai Energeias (Court of Justice of the European Union, 7th

November, 2019, ECLI:EU:C:2019:928). It would undermine that to dismiss the

proceedings on the basis of the applicants having exercised such rights.

(xvii) Finally, I can consider the foregoing points cumulatively and in combination, but this

doesn’t lead to a different conclusion I’m afraid.

170. This broad approach is consistent with (although of course not an exact analogy with) what

Donnelly J. said for the Court of Appeal in H.A. v. Minister for Justice at para. 48, rejecting the idea

that certiorari should have been refused because the underlying administrative claim was without

substance:

“The Minister's argument that the trial judge incorrectly granted an order of certiorari on the

grounds that to do so was futile as the remitted reconsideration of the respondent's case

was in effect bound to fail and thus would confer no benefit upon her must be rejected. The

onus was on the Minister to establish that it was very clear that the respondent had no case

and that the trial judge had wrongly exercised his discretion to grant the relief and she has

failed to discharge that onus. The respondent's case has reached the level of arguability that

is required before a court should decline the invitation to refuse to grant certiorari on the

ground that the subsequent remittal would be a futile exercise. The Minister has not

succeeded in establishing that it would be an unjust result to grant the order of certiorari in

the present case.”

171. This judgment is important in that it clearly recognises that once the applicant establishes a

flaw “the onus is on the Minister” (or other decision-maker) to show that that would have made no

difference.

172. Similarly here, we have to ask – can one confidently say that the licence decision, including

conditions, would have been exactly the same had the Minister addressed the issues in the way that

the applicants contend is legally correct? Clearly not. Maybe it would have been, but maybe not.

Certainly the State hasn’t shown that. It would be inconsistent and illogical to refuse relief in such

circumstances (assuming that we get to the point of a formal finding that the applicants’ complaints

amount to legal flaws).

173. This is where the caselaw relied on by the notice party is manifestly distinguishable. In

Concerned Residents of Treascon and Clondoolusk v. An Bord Pleanála [2022] IEHC 700, [2022] 12

JIC 1609 (Unreported, High Court, 16th December, 2022) (under appeal), the error was a harmless

one because it wouldn’t have made any difference. That is not the situation here.

174. So the application to dismiss the whole proceedings in limine is refused at this stage, but

given what has happened in this case to date, it would feel wildly optimistic, if not positively reckless,

to preclude any further twists and turns that might make that something that could be revisited if it

could be demonstrated that anything significantly new arises or that anything major has changed.

Does any proposed dismissal raise a referrable EU law question?

175. As I am not proposing to dismiss the proceedings based on the foregoing 17 factors or any

of them, the question of whether any proposed dismissal raises a referrable EU law question doesn’t

arise.

176. If it had arisen, the applicants’ submission on the issue was:

“If the Court finds that the AA screening or AA carried out by the Minister was invalid and/or

did not comply with the requirements of Article 6(3) of the Habitats Directive, it is submitted

that the Court does not have a discretion to refuse relief having regard to the need to give

effect to the State’s obligations under the Directive: see, for example, Berkeley v Secretary

of State for the Environment [2001] 2 AC 603, at 616, per Lord Hoffmann.”

177. In that case, Lord Hoffmann said as follows:

“I said in Reg. v. North Yorkshire County Council, Ex parte Brown [2000] 1 A.C. 397, 404;

[1999] 2 W.L.R. 452, 458, that the purpose of the Directive was ‘to ensure that planning

decisions which may affect the environment are made on the basis of full information.’ This

was a concise statement, adequate in its context, but which needs for present purposes to

be filled out. The Directive requires not merely that the planning authority should have the

necessary information, but that it should have been obtained by means of a particular

procedure, namely that of an EIA. And an essential element in this procedure is that what

the Regulations call the ‘environmental statement’ by the developer should have been "made

available to the public" and that the public should have been ‘given the opportunity to

express an opinion’ in accordance with article 6.2 of the Directive. As Advocate-General

Elmer said in Commission of the European Communities v. Federal Republic of Germany

(Case C-431/92) [1995] E.C.R. I-2189, 2208-2209, para. 35 -

‘It must be emphasised that the provisions of the Directive are essentially of a

procedural nature. By the inclusion of information on the environment in the consent

procedure it is ensured that the environmental impact of the project shall be included

in the public debate and that the decision as to whether consent is to be given shall

be adopted on an appropriate basis.’

The directly enforceable right of the citizen which is accorded by the Directive is not merely

a right to a fully informed decision on the substantive issue. It must have been adopted on

an appropriate basis and that requires the inclusive and democratic procedure prescribed by

the Directive in which the public, however misguided or wrongheaded its views may be, is

given an opportunity to express its opinion on the environmental issues. In a later case

(Aannemersbedrijf P.K. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland (Case C-

72/95) [1996] E.C.R. I-5403, 5427, para. 70), Advocate-General Elmer made this point

again:

‘Where a Member State's implementation of the Directive is such that projects which

are likely to have significant effects on the environment are not made the subject of

an environmental impact assessment, the citizen is prevented from exercising his

right to be heard.’

Perhaps the best statement of this aspect of an EIA is to be found in the U.K. government

publication ‘Environmental Assessment: A Guide to the Procedures’ (HMSO 1989) at p.4:

‘The general public's interest in a major project is often expressed as concern about

the possibility of unknown or unforeseen effects. By providing a full analysis of the

project's effects, an environmental statement can help to allay fears created by lack

of information. At the same time it can help to inform the public on the substantive

issues which the local planning authority will have to consider in reaching a decision.

It is a requirement of the Regulations that the environmental statement must include

a description of the project and its likely effects together with a summary in non-

technical language. One of the aims of a good environmental statement should be

to enable readers to understand for themselves how its conclusions have been

reached, and to form their own judgments on the significance of the environmental

issues raised by the project.’

A court is therefore not entitled retrospectively to dispense with the requirement of an EIA

on the ground that the outcome would have been the same or that the local planning

authority or Secretary of State had all the information necessary to enable them to reach a

proper decision on the environmental issues.

Although section 288(5)(b), in providing that the court ‘may’ quash an ultra vires planning

decision, clearly confers a discretion upon the court, I doubt whether, consistently with its

obligations under European law, the court may exercise that discretion to uphold a planning

permission which has been granted contrary to the provisions of the Directive. To do so

would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC

Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In

classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely

non-compliance with a relevant requirement but as rendering the grant of permission ultra

vires, the legislature was intending to confine any discretion within the narrowest possible

bounds. It is exceptional even in domestic law for a court to exercise its discretion not to

quash a decision which has been found to be ultra vires: see Glidewell L.J. in Bolton

Metropolitan Borough Council v. Secretary of State for the Environment (1990) 61 P. & C.R.

343, 353. Mr. Elvin was in my opinion right to concede that nothing less than substantial

compliance with the Directive could enable the planning permission in this case to be

upheld.”

178. While this possibly pulls in a slightly different direction from Case C-72/12 Gemeinde Altrip,

it is not in direct conflict with Altrip.

179. One might be allowed to note that not referring this issue is not absolutely straightforward.

Purely as a procedural observation, and not viewing it as either good or bad, one can see a possible

scenario where, for example, I might definitively reject the in limine defences and might then refer

the substantive issue to Luxembourg, the opposing parties might then appeal the order refusing to

dismiss the case in limine, and might then persuade an appellate court to allow that appeal without

referring the applicants’ question about discretion which I have just outlined. The reference of the

substantive issue would become moot and I would withdraw it in such circumstances. Luxembourg

would then be off the pitch so the applicants would be left high and dry with no European remedy

for their EU law complaint. The realist answer to that is “so be it”, unless the applicants can come

up with some legal or academic authority to suggest that a national court can refer a question

premised on domestic law being uncertain and postulating that the trial court’s own, non-definitive,

interpretation of domestic law might be wrong (or refer a question as to whether it was entitled to

refer such a conditional question). I am not currently conscious of such authority and nor does such

a procedure appear to be free from drawbacks, but am open to being enlightened on that. One’s

basic position has to be that appeal courts know best, that any misfortunes the parties suffer

elsewhere are not matters for me, and that parties have constitutional rights of appeal which they

know how to use, and they normally need neither encouragement nor discouragement in that regard.

Step (iii) - the argument that the in-combination points should be relevant to certiorari

only

180. We then move to step (iii) which is whether there is a case for saying that any flaws should

result in declaratory relief only. I have reconsidered points (i) to (xvii) above insofar as they are

relevant to this issue but broadly the analysis is on the same lines.

181. The real problem is that in a more common or garden case, where an applicant comes up

with a potential flaw in the decision-making process, it would take something fairly specific by way

of a legal consideration for a court to decide to grant a declaration only. Examples of where this has

been considered are:

(i) McCallig v. An Bord Pleanála and Others [2013] IEHC 60, [2013] 1 JIC 404 (Unreported,

High Court, Herbert J., 24th January, 2013) is an unusual case where the rationale for

using the asserted “discretion” to grant a declaration rather than certiorari is not readily

apparent and, respectfully, not clearly convincing. In the absence of such convincing

rationale, that decision is best viewed as one on its own facts and has been more or less

treated as such in later jurisprudence in that it has not led to any great outbreak of

declarations in lieu of certiorari.

(ii) Save Cork City Community Association CLG v. An Bord Pleanala & Ors [2021] IEHC 509,

[2021] 7 JIC 2802 (Unreported, High Court, 28th July, 2021) – where the infirmity as to

public participation didn’t affect the applicant. That doesn’t apply by analogy where the

action is essentially environmental public interest litigation and where an applicant seeks

to uphold objective environmental considerations. Here, the infirmity alleged did affect

such considerations.

(iii) Pembroke Road Association v. An Bord Pleanála, The Minister for Housing, Local

Government and Heritage [2021] IEHC 545, [2021] 7 JIC 2912 at paras. 26 and 27. What

Owens J. said was somewhat involved so I will add sub-numbering for the proposed courses

of action to make the options more visible for present purposes:

“[26] No useful purpose would be served by [(1)] setting aside the permission at

this stage. The most that I would be prepared to do is [(2)][(a)] to make a

declaration at some stage that condition 26 in its current form is legally ineffective

and [(b)] in the meantime give the Board an opportunity to amend it by either [(i)]

setting aside the part of its decision and order which relates to that condition and

remitting that matter back for a further decision, or [(ii)] by adjourning these

proceedings to enable the Board to correct the error by exercising its power under

s.146A(1)(iii) of the 2000 Act.

[27] As there is a lack of enthusiasm by the Board and Derryroe for the former

option, I will adjourn these proceedings to enable the Board to cure the legal defect

by exercising its power under s.146A(1)(iii) of the 2000 Act.”

So when the learned judge refers in para. 27 to “the former option”, this in context clearly

doesn’t mean what I have numbered option (1) (full certiorari), nor does it mean option

(2)(a) (the declaration). What it means is option (2)(b)(i), namely partial certiorari and

remittal. So it is clear that a declaration was to be granted where “no useful purpose”

would have been served by certiorari, and where the consent decision itself was valid but

there was a correctable issue with one of the conditions, and a specific statutory provision

which permitted corrections. The error was then actually corrected. Those precise

considerations don’t apply here, although I note that para. 8.2 of the licence agreement

does allow the specific conditions in the Second Schedule to the licence to be amended. I

don’t know whether that is relevant but that certainly hasn’t been shown at the moment.

If the power of amendment was shown to be capable of dealing with this issue, I would

certainly reconsider whether a declaration or some other relief (such as mandamus) or

even an adjournment of the issue pending administrative amendment would be sufficient.

(iv) The approach of declining certiorari where amendment was possible was upheld by the

Supreme Court in Waltham Abbey v. An Bord Pleanála; Pembroke Road Association v. An

Bord Pleanála [2022] IESC 30, [2022] 2 I.L.R.M. 417, [2022] 7 JIC 0401. The developer

places outsize reliance on the comments of Hogan J. at para. 53 onwards, but again the

difference there is that he was dealing with a situation where there was a specific statutory

procedure to correct the error in the decision. In those circumstances it was not necessary

to quash the permission granted. Any analogy to the present case has yet to be

established.

(v) Clifford & Sweetman v. An Bord Pleanála (No. 3) [2022] IEHC 474, [2022] 8 JIC 1502

(Unreported, High Court, 15th August, 2022) – where the breach of the statutory

consultation procedure didn’t affect the applicants. That doesn’t apply by analogy here for

the reasons outlined above.

182. No existing valid doctrine has as of now been demonstrated which could allow me to dismiss

certiorari on a basis that could be rationally justified and applied to cases generally on an equal

basis, consistent with philosophical notions of equal justice and a Kantian categorical imperative.

183. If I were in any doubt about whether sub-issue E in particular should be reduced to being

only a declaration point, which I amn’t, such doubt would be assuaged by the rule of law

considerations that arise from the fact that the State’s published guidance to planning authorities

totally contradicts its submission to the court. That context raises significant concerns that would

warrant the point being dealt with by imperatively effective, rather than merely declaratory, orders

if ultimately upheld. The State’s response to this problem is:

(i) It is stated that the departmental guidance was non-statutory and non-binding. But

one would think they are talking about someone else’s document – this is their own

document. Whether AA is to be done in the manner set out in the guidance is a

matter of law – so either their guidance is correct or it isn’t. Whether it’s binding or

not isn’t the issue.

(ii) It is stated out that the guidance is addressed to and designed for planning

authorities carrying out functions under the Planning and Development Act 2000.

That’s as may be but there can be no suggestion that it is inappropriate to consider

pending projects in other contexts because EU law doesn’t provide any specially

different AA rules for planning versus maritime projects.

(iii) It is argued that because of that context, the guidance doesn’t contemplate

temporally limited foreshore works where the Minister has an ongoing supervisory

power on foot of foreshore licences. But there are a number of fatal flaws that that

argument. Firstly, the post hoc ministerial powers are only able to address the

problem of in-combination effects to a limited and inadequate extent for reasons

explained. Secondly, there is no trace of this alleged qualification in either the

directive, the Commission guidance or the State guidance. Thirdly the directive

requires the assessment before consent, not afterwards. But fourthly and perhaps

most concerningly for rule of law purposes, that exception is capable of being

generalised so as to virtually eradicate the need to consider pending projects, by

excluding any that are pending before the decision-maker concerned with the initial

project. There is nothing magical about the marine context or the ministerial nature

of the decision-maker - the logic would be just as compelling to enable planning

authorities to ignore pending planning applications.

(iv) It is asserted that the guidance is outdated, aspects related to zones of influence of

15 km (p. 32) are said to be seen as out of date and it is claimed that there is now

a more “nuanced” approach to zones of influence. But all of that is irrelevant. The

Commission guidance, in place for 23 years in various editions, and the State

guidance, in place for 14 years in two editions, have been utterly consistent and up

to date on the critical point we are talking about – the need to consider pending

projects for in-combination appropriate assessment. Either that consistent, long-

standing and unchallenged published position at European and national level is

correct, or the ad hoc position to the contrary making its first forensic appearance

in present case is correct. Any other goals the State wants to score in its own net

by way of criticism of its own ministerial guidance are all fine and dandy, but such

self-criticisms don’t resolve that contradiction.

(v) It is asserted that the guidance is heavily based on Commission guidance which has

been superseded by subsequent Commission guidance. That’s a point in favour of

the applicants – it’s normally desirable to follow Commission guidance, but in any

event the superseding guidance, as noted above, is to exactly the same effect on

the critical point we are talking about.

184. To call these excuses makeweight and artificial would be to lend them an air of substance

and gravitas that they do not warrant. All of this raises a concerning rule of law issue. It can’t be

acceptable for the State to assert one legal stance as its published position and an inconsistent one

to meet the forensic needs of a particular case. It compounds those concerns rather than alleviates

them to offer attempted explanations of the type we have just seen. On any analysis, this can’t be

irrelevant to discretionary questions such as certiorari versus declaratory relief.

Does any proposed order limiting the relief to a declaration raise a referrable EU law

question?

185. Again this doesn’t arise, subject to the procedural footnote referred to above.

Next stage – submission on possible reference to the CJEU

186. To set the context for the possible CJEU reference, the applicants’ first proposed question

for reference is as follows:

“Whether Article 6(3) of Council Directive 92/43/EEC of 21 May 1992 on the conservation of

natural habitats and of wild fauna and flora (‘the Habitats Directive’) has the effect that the

competent authority is obliged to take into account the effects of other proposed projects

(i.e. for which an application for approval or consent has been submitted but not determined)

in combination with the effects of the project in respect of which development consent is

sought.”

187. That broadly captures sub-issue E.

188. The second question is:

“If the answer to question one is yes, does the obligation on the competent authority to

consider proposed projects continue up until the date the development consent is granted.”

189. This question seems to be designed to factor in the Arklow Bank project. However since I

conclude that that falls outside the pleaded case then we don’t seem to need this question.

190. The third question is:

“Whether Article 6(3) of the Habitats Directive has the effect that a national Court is obliged

to set aside a decision to grant a development consent where the competent authority has

not taken into account the in combination effects of a proposed project for the reason that

it has yet to be determined, or whether the Court has a discretion not to set aside the said

decision in circumstances where the effects of the project in respect of which development

consent is sought may be taken into account when the application for that other proposed

project is being considered and determined [by the same competent authority] [or has been

taken into account].”

191. I have dealt above with whether that is something I can actually refer given that I am not

proposing to exercise such discretion against the applicants.

192. The fourth question is:

“Whether Article 6(3) of the Habitats Directive has the effect that a national Court is obliged

to set aside a decision to grant a development consent where the competent authority has

not taken into account the in combination effects of another proposed project for the reason

that it has yet to be determined, or whether the Court has a discretion not to set aside the

said decision in circumstances where [the applicant] has not identified the conservation

objectives of any Natura 2000 site which could potentially be subject to the effects of the

project in respect of which consent is sought, in combination with that other project.”

193. The same point applies to that.

194. The fifth question is:

“Whether Article 6(3) of the Habitats Directive has the effect that a national Court is obliged

to set aside a decision to grant a development consent where the competent authority has

not taken into account the in combination effects of another proposed project for the reason

that it has yet to be determined, or whether the Court has a discretion not to set aside the

said decision in circumstances where [the applicant] has not adduced evidence which

demonstrates that the project in respect of which consent is sought, in combination with

that other project, is capable of having an effect on the conservation objectives of any Natura

2000 site.”

195. Again the same issue arises.

196. To these questions one would need to add the issue of sub-issue F, as noted above. Either

this can be addressed without a reference (in which case if it is addressed in favour of the applicants,

we might not need to get to sub-issue E at all, or only for declaratory purpose), or it can’t, in which

case we need a specific wording for a proposed question, which we haven’t got at the moment.

197. However all of this can be discussed further in submissions for the next module.

198. The next step is to hear further submissions from the parties on whether I should decide the

outstanding issues myself or refer them to the CJEU and on what basis. I am leaving all options

that have not already been specifically discounted open for that hearing, if the parties can come up

with something major that is new or that I have overlooked.

Order

199. At the severe risk of over-simplification, I can endeavour, without taking from the more

specific terms of the judgment, to try to summarise the current position.

(i) The applicants’ core grounds 1 to 9 fail, mainly due to a failure to make the points

during the administrative process or failure to cross-examine the opposing

deponents which would have been a prerequisite for discharging the onus of proof

to show that doubt arises on the face of the materials.

(ii) Core ground 10 sub-issues A to D fail mainly for similar reasons or because they are

not pleaded or lack substance.

(iii) Core ground 10 sub-issue E should not be dismissed or limited to a declaration at

this stage, and further submissions will be invited.

(iv) Core ground 10 sub-issue F on the inadequacy of the condition should not be

dismissed or limited to a declaration at this stage, and further submissions will be

invited, although how it could be dealt with by the court may depend on whether

the power to amend the licence is capable of dealing with the point.

(v) Core ground 10 sub-issue G fails because it is not pleaded.

200. The order made on 21st June, 2023 was that the Minister of State be struck out as a

respondent, which was to be without prejudice to the case against the State parties.

201. The order made on 22nd June, 2023 was as follows:

(i) the costs of the interlocutory stay be adjourned to Monday 3rd July, 2023 for a

relatively brief hearing, and the order regarding the interlocutory stay will be

perfected following that hearing; and

(ii) the State be permitted to file an affidavit exhibiting information regarding the

Codling licence without prejudice to any argument that it was legally irrelevant.

202. The order made on 23rd June, 2023 was as follows:

(i) the State to file an affidavit exhibiting the schedule of other projects, with the

parties’ respective positions set out in relation to any matters on which they

disagree;

(ii) liberty to the applicants to put in an affidavit exhibiting material about the

relationship of the project to the Arklow wind farm, on a de bene esse basis;

(iii) it was noted that the decision algorithm was agreed and the judgment to be reserved

on foot of the hearing to deal with steps (i) to (iii) in the decision algorithm insofar

as those need to be decided, as a distinct module;

(iv) the processing of the matter to be as follows at the end of each Monday list:

(a) Monday 26th June, 2023 – decision regarding the applicants’ proposed

new affidavit;

(b) Monday 3rd July, 2023 – target date for decision on current module, and

directions regarding submissions on the CJEU issue (if it arises) in the

week to follow;

(c) Monday 10th July, 2023 – hearing on the CJEU module;

(d) Monday 17th July, 2023 – target date for decision on CJEU issue and

directions regarding submissions on the stay in the week to follow;

(e) Monday 24th July, 2023 – hearing on stay module and target date for ex

tempore announcement of the order on that module; and

(f) Remaining matters of costs and possible stay on costs to be adjourned to

a date to be fixed;

(v) the order to hear the costs of the interlocutory stay on 3rd July, 2023 was varied so

that that hearing will take place in due course on a date to be fixed;

(vi) the interlocutory stay order to be perfected at that point on the basis that the costs

would be adjourned to be dealt with by a separate order on a date to be fixed in due

course; and

(vii) a similar approach will apply going forward where any party requests a perfected

order made contrary to its submissions notwithstanding that costs have not been

dealt with (this was intended to be subject to any contrary application by any other

party).

203. The order made on 26th June, 2023 was that I allowed the applicants to file an additional

affidavit relating to the Arklow Bank project without prejudice to the opposing parties’ pleading

objections and the objection that the point had already been answered on affidavit.

204. The order made on 27th June, 2023 was as follows:

(i) The table of projects is to include the parties’ respective positions if there is no

agreement;

(ii) the parties be directed to make certain changes to the table by adding all projects

referred to the papers plus their application number and types;

(iii) the State to prepare a draft affidavit exhibiting the table and certain documents

related to the North Irish Sea Array II licence (the URL having already been

introduced in evidence) to be agreed between the parties;

(iv) the parties would attempt to agree or at least exchange definitions of the technical

terms referred to; and

(v) the matter be listed on 28th June, 2023 to finalise.

205. The order made on 28th June, 2023 was as follows:

(i) The State to have liberty to file an additional affidavit along the lines of the draft

furnished to also include exhibiting the MLVC report of 26th April, 2022 and the

foreshore licence granted in respect of the Arklow Bank project; and

(ii) The table of projects was to be completed on a basis directed, mainly to make clear

the parties’ respective positions as well as to include some particular matters the

parties wanted to draw attention to, including the wording of condition 31.23 in the

Arklow licence.

206. For the reasons set out in the judgment, it will now be ordered that:

(i) core grounds 1 to 9 and the associated sub-grounds be dismissed;

(ii) sub-issues A to D and G (as identified in the judgment) of core ground 10 be

dismissed;

(iii) the opposing parties’ application to dismiss sub-issues E and F (as identified in the

judgment) in limine be refused at this stage;

(iv) the opposing parties’ application to limit sub-issues E and F to declaratory relief be

refused at this stage;

(v) the next module regarding step (iv) of the decision algorithm be listed to deal with

sub-issues E and F of core ground 10 and with whether the court should decide one

or both of these itself, and if so how, or refer one or both of them to the CJEU and

if so on the basis of what potential relief;

(vi) the matter be listed for any further directions on Monday 3rd July, 2023;

(vii) subject to any contrary submission made forthwith, the parties have until 09:30 on

Friday 7th July, 2023 for simultaneous written legal submissions on step (iv) and

until 09:30 on Monday 10th July, 2023 for simultaneous mutually replying written

legal submissions, and it is confirmed that step (iv) be listed for hearing on Monday

10th July, 2023; and

(viii) if the parties wish to request the opportunity for further evidential steps to be taken

in connection with that hearing, such application must be made forthwith and at the

latest at 09:30 on Tuesday 4th July, 2023, having first endeavoured to agree

directions for such steps inter se.

Postscript

207. Following a further hearing, on 10th July, 2023, the table of projects set out in the original

version of para. 121 of this judgment has been amended so that the Innogy licence will be treated

as having been considered, for reasons that will be explained in a later judgment.