High Court varies stay to permit metocean surveys while continuing proceedings on foreshore licence validity.

[2023] IEHC 592

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. 6)

JUDGMENT of Humphreys J. delivered on Tuesday the 31st day of October, 2023

Judgment history

1. In Toole v. Minister for Housing (No. 1) [2023] IEHC 263, [2023] 5 JIC 2205 (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, [2023] 6 JIC 1603 (Unreported,

High Court, 16th June, 2023), I continued the stay on an interlocutory basis.

3. In Toole v. Minister for Housing (No. 3) [2023] IEHC 378, [2023] 7 JIC 0302 (Unreported,

High Court, 3rd July, 2023), I dismissed the case save as to two points, refused the application to

dismiss those or to reduce them to declaratory issues only, set out a decision algorithm to progress

the case going forward, and invited further submissions.

4. In Toole v. Minister for Housing (No. 4) [2023] IEHC 403, [2023] 7 JIC 1301 (Unreported,

High Court, 13th July, 2023) I dealt with step (iv) in the decision algorithm set out at para. 51 of

the No. 3 judgment by making an order of mandamus and deciding in principle to make a reference

to the CJEU.

5. In Toole v. Minister for Housing (No. 5) [2023] IEHC 590 (Unreported, High Court, 27th

October, 2023) I set out the reasons for the request for the expedited procedure before the CJEU.

6. I am now revisiting the stay in the light of the above developments, which is the module set

out at step (v) in the decision algorithm.

Procedural history

7. This case was initiated on 26th April, 2023. For those who have an interest in such things,it

can be noted that it has gone from a standing start to full pleadings, a full hearing, multiple ancillary

hearings and six judgments within barely more than six months, two of which fell during the long

vacation. Whatever else the parties may complain about, they can’t complain about not getting

reasonably prompt attention relative to other cases.

8. Following the No. 4 judgment on 13th July, 2023, the parties filed affidavits and written

submissions on the stay, albeit that there was some slippage from the timetable set out in that

judgment. The applicants delivered a final replying affidavit, a Fifth Affidavit of Marie Louise

Heffernan, at 23.50 on 21st July, 2023 in unsworn form (sworn on 24th July, 2023). That is objected

to.

9. Separately from that, the applicants and respondent delivered submissions on the proposed

reference, dated 21st and 23rd July, 2023, respectively.

10. The present module was listed for hearing on 24th July, 2023, and adjourned to 25th July,

2023, when it was heard and judgment was reserved. The following procedural directions were given

at that time:

(i) the applicants objected to any further amendment of the licence condition beyond that

that had been directed and the opposing parties were given time until 26th July, 2023

to provide any further written comments on the possible amendment to the licence

with a right to the applicants to reply by 28th July, 2023;

(ii) the State had 7 days from the hearing to endeavour to agree wording regarding a

possible application for the expedited procedure in the CJEU;

(iii) it was noted that the developer indicated that it was not getting involved in

Luxembourg; and

(iv) I reserved the right to also seek further written answers from the parties – as we shall

see that was taken up with a figurative vengeance.

11. The State then prepared a draft request for the expedited procedure, which was circulated

on or about 27th July, 2023. The applicants prepared a replying submission dated 28th July, 2023.

Those documents were useful to the court in preparing the judgment on that issue.

12. On 10th August, 2023, the applicants lodged notices of appeal arising from the No. 3 and

No. 4 judgments, Court of Appeal record nos. 2023/203 and 2023/204. While it’s not a matter for

me, some of the matters relied on as grounds of appeal are hard to recognise as points made in that

form in the High Court, but in fairness to these applicants, that wouldn’t be unprecedented as far as

appellants generally are concerned, if my experience is anything to go by. Also in fairness to the

applicants, a party that loses on some points mid-way through the case would not normally appeal

at that stage but would await the conclusion of the case. Here however the State had expressly

asked for all orders to be perfected as we went along, thereby making such mid-stream appeals

inevitable. At the time, I did pose the question as to whether such a procedure would cause

procedural complication but the State informed me that it saw no such complication. Eye of the

beholder perhaps.

13. On 11th August, 2023, the List Registrar on my behalf communicated with the parties to

request further submissions on one issue that arose in the hearing.

14. On foot of that, the applicants delivered a submission on 4th September, 2023, RWE did

likewise on 11th September, 2023 and the State delivered a submission on 12th September, 2023.

On 14th September, 2023, the applicants sought either a resumed oral hearing or a right to make

a replying written submission. At that point I suggested that, if there was no objection, the applicants

could do so within one week, but in the event of an objection the matter would be listed on 2nd

October, 2023. The former option was acquiesced in and the applicants ultimately delivered a replying

written legal submission on 25th September, 2023.

15. On 28th September, 2023 having reviewed all submissions I communicated further with the

parties about issues that arose from all of the foregoing, particularly matters that were relevant to

the wording of the reference, and listed the matter on 2nd October, 2023.

16. A further hearing then took place on 25th October, 2023 at which final submissions on the

stay and other issues being dealt with in the present module took place.

17. I will now address a number of essentially procedural or technical issues and then turn to

what now falls for decision, drawing on the list of issues set out at the end of the No. 4 judgment at

para. 66 (xi). This has been somewhat more procedurally and substantively involved than most

applications (and to illustrate that for the benefit of the parties, and without giving too much away,

it will be no surprise to those involved in the case that the present judgment went through a record-

breaking 42 draft versions, even bearing in mind that version numbers tend to be indicative rather

than exact calculations of the amount of change involved).

Whether the applicants’ final affidavit should be admitted

18. The notice party did not object to the admissibility of the applicants’ final affidavit (the Fifth

Affidavit of Ms Heffernan) as a matter of principle, while objecting to its relevance and weight. The

State did object to the admission of this affidavit, but the objection was pitched at a very abstract

level, on the basis that the opposing parties had already lashed their colours to the mast in

submissions by that stage. But the State hasn’t shown how that grand-sounding principle has caused

any unfairness in practice. Given the timelines, it seems extremely unlikely that the applicants’

affidavit was drafted with the specific purpose of neutralising points in the opposing parties’

submissions specifically (as opposed to affidavit evidence). Even if that was the case, the opposing

parties could make oral submissions by way of counter-punch. On an overall balance of justice and

fairness basis it seems to me that I should allow this affidavit to be filed, but very much without

prejudice to its legal relevance and weight. However as matters developed that issue has taken on

a different character, as we shall see.

Wording of the licence condition

19. The order of mandamus was provided for in the No. 4 judgment to provide for new wording

for condition 31.13 “along the lines” of wording set out.

20. The developer initially proposed an amended wording as follows (para. 10 of affidavit of Mr

Kelly):

“In the interests of mitigating possible in-combination environmental effects, the Licensee

shall coordinate with other licence holders that overlap with the survey area to ensure that

no temporal overlap between two or more projects surveys occurs.

Where necessary, the Minister will determine the timing of specific survey activities with

potential for in-combination effects to ensure that there is no temporal overlap.”

21. The developer’s concern was for example that relatively inert surveys, specifically buoys and

FLiDAR (Floating Light Detecting and Ranging), might (probably would, since they are in place for

an extended period) overlap temporally with surveys by other developers hence giving rise to a

technical breach of the condition as amended.

22. On the other hand, their wording is over-broad if it implicitly creates a category of activity

that is a project but not a survey. The developer’s basic concern however seems reasonable and can

be addressed by an order that a particular forma, to which I will come, complies with the existingorder

of mandamus to put in place a wording “along the lines” set out in the No. 4 judgment.

23. At the hearing there was a discussion of a wording along the following lines:

“In the interests of mitigating possible in-combination environmental effects, the Licensee

shall coordinate with other licence holders that overlap with the survey area to ensure that

no temporal overlap between two or more projects capable of having cumulative or in-

combination effects occurs. Where necessary, the Minister will determine the timing of

activities implementing such projects to ensure that there is no temporal overlap.”

24. Following the hearing, by way of letter dated 26th July, 2023, the developer took up the

liberty to suggest a further amended wording along the following lines:

“In the interests of mitigating possible in-combination environmental effects, the Licensee

shall coordinate with other licence holders that overlap with the survey area to ensure that

no temporal overlap between two or more projects occurs in respect of activities capable of

having in-combination environmental effects. Where necessary, the Minister will determine

the timing of such activities to ensure that there is no temporal overlap.”

25. The applicants objected to both refinements as not coming within the concept of a wording

“along the lines” of the wording in the order of mandamus, as set out in that order.

26. On balance I think that the developer’s final proposed wording does capture the essence of

the point being made by the MLVC, or in other words, that if the licence is amended in this manner,

there would not be any remaining legal infirmity by reason of a failure to reflect the essence of the

reasoning within the terms of the licence. I provided for flexibility by allowing something “along the

lines” of what was set out, so there isn’t anything wrong in the developer taking that up, as long as

what is proposed is along those lines, which I think it is. Admittedly, as the applicants point out

objectingly, that would leave matters open to the Minister to determine what are in-combination

effects, something which the applicants dispute. But the wording of the condition is to address a

discrete legal point which was the mis-match between the licence and its supporting reasoning.

27. The conclusion under this heading therefore is that I will make an order to the effect that

the developer’s final proposed wording of 26th July, 2023, complies with the order of mandamus

already made.

28. The factual background of all of this is that the applicants’ evidence as to the potential in-

combination or cumulative effects of inert surveys is very light.

29. I now turn to some of the specific issues in the issue paper outlined in the No. 4 judgment,

but not in the order set out.

Issue (a) - Amendment of Statement of Grounds

30. Issue (a) is possible amendment of relief 2 by the substitution of “Minister” for “Board”. The

correction of that typo was not particularly contested so I will give the applicants liberty to file an

amended statement of grounds accordingly.

Issue (j) - Whether the issue of the possible ultimate relief should be revisited

31. Issue (j) on which submissions were invited in the No. 4 judgment was whether the issue of

not limiting core ground 10 sub-issue E to declaratory relief should be revisited in the light of

developments since the question was previously considered.

32. That issue has proven to be more complicated than one might initially imagine.

33. While the notice party was clear that certiorari should be taken off the table, the State

expressly accepted that this was a possible outcome of a subsequent hearing that might take place

after the reference in the event that an error was shown to have occurred. The State subsequently

did somewhat attempt to back-pedal and recharacterize that as just a description of what I had

already held, but that isn’t really a great answer because I specifically left that open in the No. 4

judgment and invited further submissions for the present module. Furthermore such a buck-passing

characterisation contradicts the logic of their acceptance of the need for a further hearing.

34. The obvious problem with taking certiorari off the table at this stage is the possibility that in

the event of an error being established, there would be a remedial obligation to redress any effects,

which presupposes that the court should not generally permit any effects to actually occur while the

decision is under plausible challenge.

35. If there is a reasonable possibility of adverse effects on a European site, then there is an

argument that preserving the option of certiorari would be a requirement of EU law (although I don’t

need to decide this because I am referring this question as set out below). In its Judgment of 7

January 2004, R. (Wells) v Secretary of State for Transport, Local Government and the Regions, C-

201/02, ECLI:EU:C:2004:12, the CJEU said as follows:

“64. As to that submission, it is clear from settled case-law that under the principle of

cooperation in good faith laid down in Article 10 EC the Member States are required to nullify

the unlawful consequences of a breach of Community law (see, in particular, Case 6/60

Humblet [1960] ECR 559, at 569, and Joined Cases C-6/90 and C-9/90 Francovich and

Others [1991] ECR I-5357, paragraph 36). Such an obligation is owed, within the sphere of

its competence, by every organ of the Member State concerned (see, to this effect, Case C-

8/88 Germany v. Commission [1990] ECR I-2321, paragraph 13).

65. Thus, it is for the competent authorities of a Member State to take, within the sphere of

their competence, all the general or particular measures necessary to ensure that projects

are examined in order to determine whether they are likely to have significant effects on the

environment and, if so, to ensure that they are subject to an impact assessment (see, to

this effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 61, and

WWF and Others, cited above, paragraph 70). Such particular measures include, subject to

the limits laid down by the principle of procedural autonomy of the Member States, the

revocation or suspension of a consent already granted, in order to carry out an assessment

of the environmental effects of the project in question as provided for by Directive 85/337.

66. The Member State is likewise required to make good any harm caused by the failure to

carry out an environmental impact assessment.”

36. A similar principle is outlined in the Judgment of 12 November 2019, Commission v Ireland,

C-261/18, ECLI:EU:C:2019:955, (Grand Chamber):

“75. Under the principle of sincere cooperation provided for in Article 4(3) TEU, Member

States are nevertheless required to eliminate the unlawful consequences of that breach of

EU law. That obligation applies to every organ of the Member State concerned and, in

particular, to the national authorities which have the obligation to take all measures

necessary, within the sphere of their competence, to remedy the failure to carry out an

environmental impact assessment, for example by revoking or suspending consent already

granted, in order to carry out such an assessment (see, to that effect, judgments of 7

January 2004, Wells, C‑201/02, EU:C:2004:12, paragraph 64, and of 26 July 2017, Comune

di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589, paragraph 35).

76. As regards the possibility of regularising such an omission a posteriori, Directive 85/337

does not preclude national rules which, in certain cases, permit the regularisation of

operations or measures which are unlawful in the light of EU law, provided that such a

possibility does not offer the persons concerned the chance to circumvent the rules of EU

law or to dispense with their application, and that it should remain the exception (judgment

of 26 July 2017, Comune di Corridonia and Others, C‑196/16 and C‑197/16, EU:C:2017:589,

paragraphs 37 and 38).”

37. The present case has presented an incredible range of conundrums, not all of which have

made it into the light of day in judgments because of the shifting range of thought, arguments and

positions adopted or considered during the course of this matter, not least by the court. However

the particular conundrum here can only be answered by asking how a court should normally deal

with a defective AA and then by applying that to the situation here.

How should a court normally deal with a defective AA?

38. The premise of this discussion is of course that the relevant AA is in fact defective. That is

an assumption for this purpose which will obviously be contested and argued in due course.

39. The normal sequence would be along these lines:

(i) in the context of an interlocutory hearing, if asked to do so the court would consider a

stay on the decision pending the challenge to the AA – normally environmental

considerations and the precautionary principle as well as the strict context of removing

all scientific doubt would favour the grant of such a stay;

(ii) in the context of a substantive hearing, the court would decide on whether the AA is

flawed;

(iii) if the AA was flawed, the order to be made would then be either as follows:

(a). the remedial obligation would normally involve quashing the decision in the

context of a direct challenge to a decision supported by a defective AA (see

Carrownagowan Concern Group v. An Bord Pleanála [2023] IEHC 579 para. 88);

or

(b). taxonomically perhaps under the domestic heading of discretion, if it were

established that the error would not have made any difference by analogy with

Case C-72/12 Altrip, the court might not quash the decision but make some

other order, which I discuss further below.

(iv) the court would then consider remittal if requested to do so; and

(v) if the matter is remitted, the court could give any necessary directions under O. 84 r.

27(4) RSC to the decision-maker as to the methodology of the fresh decision.

40. Suppose for example the court were satisfied that there was not going to be any significant

risk to any European site (just a hypothesis obviously). How would that affect matters?

41. On that premise one could see an argument for both discharging the stay while the process

plays out, and then ultimately considering some order other than quashing the permission overall

once we got to step (iii). That could for example involve quashing the AA alone, directing a fresh

AA and only quashing the decision if something new emerging from that process indicated scientific

doubt about effects on a European site.

42. The logic of working through that hypothesis is that certiorari probably should remain on the

table no matter what happens with the stay, so that the court will have whatever instruments are

needed at its disposal depending on how earlier steps play out.

43. There is another practical and procedural advantage of that which is that it keeps the

question of directions on remittal following certiorari on the table also, which enables the court to

refer questions of a slightly more systemic nature as sought by the State. Otherwise the court might

be confined to matters strictly arising on the facts and pleadings to date, as opposed to questions

needed to guide remittal at a future point. Obviously that involves an acceptance by the parties that

the matters which the State wants the court to refer can be properly the subject of an order of

remittal or indeed declaratory relief by the applicant pursuant to the general claim in that regard, in

due course. If anyone disagrees they need to let the court know immediately but otherwise silence

will be taken as acquiescence.

44. The punchline is that I should not dismiss certiorari at this point and that it should remain

an available relief until at least after the judgment of the CJEU.

Implications for the stay of retaining certiorari as an option

45. But keeping certiorari as an option doesn’t automatically mean there has to be a stay. What

it does mean however, given the precautionary principle, is that the stay should normally remain in

place unless it can be demonstrated to be unnecessary to the same level of certainty as would be

required following a hypothetical future finding that the AA was flawed.

46. Contrary to the applicants’ argument, that is not AA by another name, or the court

impermissibly stepping into the shoes of the Minister or any other dramatic and impermissible

procedure. It is the court deciding on an interlocutory injunction, but calibrating the dials to the most

applicant-friendly position, in view of the precautionary principle. Essentially discharging the stay on

such a premise amounts to saying that as of now one can conclude that the decision would have been

the same had the Minister used an approach that the applicant proposes: see CanterburyCity Council

v. Secretary of State for Housing, Communities and Local Government [2019] EWHC 1211 (Admin).

That doesn’t mean that the ultimate outcome might not result in a new AA or that a new AA could

conceivably throw up something new, but it does mean that any such a possibility is only speculative

if there is no sufficient evidence of a risk of adverse effects on a European site thatcan be brought

home as of now. The applicants complained of the costs burden, which I appreciate,but I am not sure

that that outweighs the rights of other parties to have issues determined in a context like this. In

fairness to developers in this kind of situation, stays or indeed proceedings being brought at all tend

to impose significant costs, and the Aarhus context means that an undertaking as to damages is not

going to be an option. So in that sort of context the financial burden on an applicant in defending an

application to discharge a stay, while a factor, is unlikely in itself to be a decisive factor.

47. The immediate implication is that I am going to refuse the application to discharge the stay

as of now. But I will give liberty to apply if the opposing parties want to have a hearing on that issue

to be conducted on the assumption that all Luxembourg dominoes fall in favour of the applicants.

This includes the following assumptions:

(i) the hearing will be ex nunc, that is can accommodate new scientific evidence not before

the Minister, including but not limited to the evidence already filed;

(ii) the burden of proof will be on the Minister to meet the appropriate standard for AA of

excluding all reasonable scientific doubt as to adverse effects on the integrity of a

European site; and

(iii) the assessment will have to be conducted by reference to the maximal suite of types of

projects that could potentially be considered as set out in the first of the additional

questions proposed by the State for reference, notwithstanding any limitations in the

applicants’ pleadings and notwithstanding that certain elements of the case relevant to

such impacts have already been dismissed.

48. I should finally add that, if hypothetically the opposing parties want another go at the stay

issue, then on that premise, from the court’s point of view, it would be preferable if the Minister

were just to voluntarily conduct a fresh AA based, again voluntarily, on those assumptions, entirely

without prejudice to the State’s contention that those assumptions are not legally required, prior to

seeking the discharge of the stay. For the reasons discussed (i.e., because this is just an interlocutory

injunction, not the court doing an AA) I don’t think that is a legal requirement, but it

is certainly better from my point of view and assuages the applicants’ concerns of any apparent

departure from the orthodox position. As stated there is no such departure, but it would be better

on any possible view to let the Minister work everything through formally first by way of a detailed

exercise, before coming back to the court for a fourth bite of the cherry in terms of opposing the

stay. Also it is not completely inconceivable that such a fresh exercise might result in possible

additional conditions to the licence which the Minister would be best placed to address by amendment

prior to coming back to court. That isn’t to suggest that amendment is likely, only that it is within

the range of the possible.

49. On that basis and subject to the issue of metocean surveys, most of the other questions in

the issue paper, which relate to the stay, no longer arise at this point.

Metocean surveys

50. Mr Kelly in his Third Affidavit reiterates at para. 17 that:

“Broadly, the Licensed activities are classified under the following headings (i) Geotechnical

surveys, (ii) Geophysical surveys, (iii) wind, wave and current (metocean) measurement,

and (iv) ecological monitoring.”

51. At para. 22 of that affidavit he reiterates:

“As I outlined at §13 of my First Affidavit, certain geophysical surveying techniques use

acoustic (noise-producing) systems, while others are passive (not noise-producing). Among

the ‘acoustic’ systems, there are differences in the frequency and energy of the underwater

noise produced, depending on the type of information required and the conditions in which

the equipment will be utilised. This variability between equipment types introduces variability

in the outputs and predicted effects of these systems on the marine environment and

specifically on marine species.”

52. While the specific geophysical survey techniques are not expressly listed on the axis of

acoustic vs passive, Mr Kelly says:

“73. Table 2.1 of the IEC AA Screening report, page 100, tabulates the proposed equipment

to be used for geophysical surveys, as revised following the receipt of RWE’s Response

Document, and the frequency ranges and sound pressure levels SPLpeak for the range of

geophysical survey equipment proposed. As noted, SSS, MBES can be excluded from further

consideration of underwater noise effects as they operate at frequencies that are too high

for the marine mammals to hear, and magnetometers can be excluded because they emit

no noise frequency at all.

74. The proposed refraction survey will take place in shallow waters close to the shoreline,

is non-intrusive and therefore there will be no impact on any protected features. Again, there

is no potential for adverse effects alone or in combination with other plans and projects.”

53. Ms Heffernan replies to this at para. 48 of her Fifth Affidavit:

"In response to paragraph 73, I do not suggest that there is an impact from every piece of

equipment, but all surveys cause disturbance through the presence of boats. This leads to

the possibility of in-combination effects.”

54. At para. 80 Mr Kelly states:

“The Licence permits up to two buoy mounted Floating Lidar (FLiDaR) Units and up to two

buoys incorporating wave and current measurement devices. The physical disturbance to

benthic habitats and communities would be short term, temporary and over a negligible

footprint in the context of a large site and, therefore, with the specified mitigation there is

no potential for adverse effects on any European sites. It is considered that, given the very

small scale of the metocean surveys and their lack of interaction with any habitats or species,

there is no likelihood of in-combination effects with this Licensed activity and any other plans

or projects.”

55. At para. 81 he continues:

“Finally, the Licence permits up to ten static acoustic monitoring devices (SAM) and up to

three annual subtidal benthic ecology surveys comprising drop down video, grab sampling

and epibenthic trawls. With mitigation, there is no potential for adverse effects alone or in

combination with other plans and projects. Any physical disturbance to habitats and

communities would be short term, temporary and over a negligible footprint (§6.4.7,

RIAAS).”

56. Insofar as I can identify what elements of the licenced activities are not the subject of

meaningful and effective challenge by Ms Heffernan, the only activities that one could be confident

about are the metocean surveys (FLiDAR units and buoys). Ms Heffernan hasn’t (at any rate clearly)

identified detailed reasons why those activities would themselves cause material environmental harm

other than the vague comment that they involve boats – but she doesn’t quantify that or assess its

significance in itself, and putting passive equipment in place or maintaining it by definition only

involves limited boat activity. So I would be inclined to vary the stay to permit those. Cross-

examination isn’t inevitably necessary to address a conflict between a clear and detailed reasoned

averment and a somewhat vague one that lacks detail or sufficiently clear reasons: see Doorly v.

Corrigan [2022] IECA 6 at para. 137 to the effect that 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)).

57. I appreciate that putting the FLiDAR and buoys in place will involve some minimal boat

activity but I don’t have anything to suggest that it would be other than fairly once-off or at least

limited and can reasonably be regarded as a de minimis intervention. And insofar as the licence is

to be operated at all in advance of the final order in the proceedings, the Minister will have to

implement the order of mandamus first.

58. That doesn’t imply that there is some principled difference between different elements of the

licence but rather reflects the state of the evidence on whether the passive surveys are significantly

problematic.

Issue (i) - Whether further referrable issues arise

59. Issue (i) is whether the foregoing issues themselves raise any referrable questions of EU

law. The applicants propose one possible question:

“Where a national court or tribunal intends to make a reference to the CJEU pursuant to

Article 267 TFEU concerning the lawfulness of a second stage assessment carried out prior

to consent being granted in respect of a particular project, pursuant to 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’), is the Applicant obliged to demonstrate a risk of

irreparable harm and/or that the risk of an adverse effect to the integrity of a Natura 2000

site cannot be excluded beyond a reasonable doubt in order to obtain continued interim relief

by way of a stay on the implementation of the impugned development consent for that

project.”

60. However I don’t think it is “necessary” in term of Article 267 TFEU to refer any questions

regarding the stay. I intend to deal with that myself pending the judgment of the Luxembourg court.

61. The State proposes the following question:

“If the answer to Question 1 is in the affirmative, must 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 (as amended) be interpreted to mean that appropriate assessment of the implications

for the site of a project requires that the project be considered in combination with other

plans or projects:

(a) for which an application for permission has been made and which are drawn to the

attention of the decision-maker for the purpose of such an assessment; and/or

(b) for which an application for permission has been made to the same decision-maker,

and which are not drawn to its attention for the purpose of such an assessment; and/or

(c) for which an application for permission has been made to a different decision-maker,

and which are drawn to its attention for the purpose of such an assessment; and/or

(d) for which an application for permission has been made to a different decision-maker,

and which are not drawn to its attention for the purpose of such an assessment; and/or

(e) for which no application for permission has yet been made, but which are drawn to

the attention of the decision-maker for the purpose of such an assessment; and/or

(f) for which no application for permission has yet been made, and which are not drawn

to the attention of the decision-maker for the purpose of such an assessment?”

62. This perhaps covers too much ground in one question and I think this can be re-worded into

the following questions:

If the answer to the first question is yes, does Article 6(3) of Directive 92/43 have

the effect that appropriate assessment by a particular competent authority of the

implications for a European site of a proposed project the subject matter of a

development consent requires that the project be assessed cumulatively or in

combination with other plans or projects for which an application for permission

has been made to the same competent authority but not determined, in relation to

projects which are drawn to the attention of the competent authority for the

development consent in question for the purpose of such an assessment, or

alternatively in relation to projects of which that competent authority is or ought

to be aware irrespective of whether they are drawn to its attention for the purpose

of such an assessment?

If the answer to the first question is yes, does Article 6(3) of Directive 92/43 have

the effect that appropriate assessment by a particular competent authority of the

implications for a European site of a proposed project the subject matter of a

development consent requires that the project be assessed cumulatively or in

combination with other plans or projects for which an application for permission

has been made to a different competent authority but not determined, in relation

to projects which are drawn to the attention of the first-mentioned competent

authority for the development consent in question for the purpose of such an

assessment, or alternatively in relation to projects of which that competent

authority is or ought to be aware irrespective of whether they are drawn to its

attention for the purpose of such an assessment?

If the answer to the first question is yes, does Article 6(3) of Directive 92/43 have

the effect that appropriate assessment by a particular competent authority of the

implications for a European site of a proposed project the subject matter of a

development consent requires that the project be assessed cumulatively or in

combination with other plans or projects for which an application for permission is

proposed but has not yet been made to any competent authority?

If the answer to the fourth question is yes, should such an assessment be carried

out in relation to proposed projects which are drawn to the attention of the

competent authority for the development consent in question for the purpose of

such an assessment, or alternatively in relation to proposed projects of which that

competent authority is or ought to be aware irrespective of whether they are drawn

to its attention for the purpose of such an assessment?

63. On the basis set out above, that is the relevance of this to directions in the event of remittal,

I think this is a viable and appropriate set of questions to refer.

64. In addition the State propose the following question:

“If the answer to Question 1 is in the affirmative, may the relevant national court in a

subsequent hearing refuse to quash the decision in question where it is established that

there is no reasonable scientific doubt as to the absence of adverse effects on the integrity

of the European site in question arising from potential in-combination effects of pending

projects?”

65. I think this needs a little re-wording along the following lines:

If the answer to the first question is yes, does Article 6(3) of Directive 92/43 read

in the light of the obligation to remedy the effects of a breach of Union law deriving

from Article 4(3) TEU have the effect that where an appropriate assessment for a

particular development consent was incomplete by reason of failing to correctly

consider the question of cumulative or in-combination effects by reference to

pending projects, a relevant national court before which a challenge to the

development consent is sought may refuse to quash the development consent in

question where the court considers that it has been established that there is no

reasonable scientific doubt as to the absence of adverse effects on the integrity of

any European site arising from cumulative or in-combination effects by reference

to pending projects?

66. The State then proposed a further question as follows:

“If the answer to the preceding question is in the affirmative, should the assessment by the

relevant national court of whether there is no reasonable scientific doubt as to the absence

of adverse effects on the integrity of the European site in question arising from potential in-

combination effects of pending projects proceed on the basis of the evidence provided by

the developer or the competent authorities and, more generally, on the basis of the case-

file documents submitted to the decision-maker at the time that the appropriate assessment

was carried out, or on the basis of the facts and matters as at the time of the decision

authorising implementation of the project.”

67. Again I would re-word this because I think it covers too much ground and really asks both

how the court should do its job and how the Minister should deal with a remitted decision. These

need to be addressed separately. A further question thus would be:

If the answer to the sixth question is yes, does Article 6(3) of Directive 92/43 have

the effect that the assessment by the relevant national court of whether it has been

established that there is no reasonable scientific doubt as to the absence of

adverse effects on the integrity of the European site in question arising from

potential cumulative or in-combination effects by reference to pending projects

proceed on the basis solely of matters pleaded by the applicant, including matters

which the applicant pleaded but failed to establish at an earlier stage of the

proceedings, or of the material before the decision-maker, or matters that satisfy

both criteria, or should such a consideration proceed on the basis of a

consideration of all adverse effects including on the basis of such further evidence

as may be put before the court when considering whether to annul the

development consent, irrespective of whether reliance on such matters has been

pleaded by the applicant and of whether or not the applicant has established a

claim relating to alleged cumulative or in-combination effects at an earlier stage

of the proceedings?

68. The further separate question as to ministerial obligations is:

Does Article 6(3) of Directive 92/43 have the effect that the assessment by the

relevant national competent authority of whether there is no reasonable scientific

doubt as to the absence of adverse effects on the integrity of the European site in

question, in particular as arising from potential cumulative or in-combination

effects by reference to pending projects, should proceed on the basis of the

material before the competent authority at the time that the appropriate

assessment was carried out, or on the basis of the facts and matters as at the time

of the decision as to whether to grant the development consent.

69. In principle I would propose to refer these additional questions and will request the parties

to provide proposed answers and identify relevant authorities in the normal Eco Advocacy v. An Bord

Pleanála [2021] IEHC 265 format and as reflected in PD HC119.

Updated decision algorithm

70. To update the decision algorithm in the No. 3 judgment, having regard to the flood of

developments since then, I would propose the following series of steps (keeping the original

numbering system). Steps (i)-(iv) have already been completed.

(v) (a) 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 – I am dealing with this now and varying the

stay in one respect but otherwise maintaining it.

(b) if the opposing parties so apply, the court can deal with the question of a further hearing

on the stay on the assumptions set out in the judgment.

(c) if such a hearing is directed, the court would 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) subject to clarity on whether the foregoing steps are going to happen or not, and if so

to those steps being taken, and to liberty to apply, the court would then deal with all

adjourned costs including costs of the interlocutory stay applications if still in dispute at that

point, including whether to award those costs, make no order, or reserve costs as respects

all or any element of such costs; and

(vii) finally the court would deal with any stays on execution of costs awarded, if any, if that

were to be an issue.

Order

71. For the foregoing reasons, it is ordered that:

(i) the Fifth Affidavit of Marie Louise Heffernan may be filed without prejudice to its

legal relevance and weight;

(ii) pursuant to O. 84 r. 23(2) RSC the applicants have liberty to file an amended

statement of grounds, to be filed within 7 days from the date of this judgment, so

as to amend relief 2 to substitute “Minister” for “Board”;

(iii) there be an order declaring that the developer’s final proposed wording of the

amended licence condition, dated 26th July, 2023, complies with the order of

mandamus already made as being a wording “along the lines” of the wording in that

order;

(iv) for the avoidance of doubt, the order of mandamus be without prejudice to a possible

order of certiorari in due course, so that it need only be complied with in the event

that either the licence is to be operated in any way pending the final order of the

court, or that such final order does not include an order of certiorari;

(v) the stay be varied to permit the carrying out of the metocean surveys (FLiDAR units

and buoys) authorised by the licence;

(vi) for the avoidance of doubt, the stay be varied to make clear that it does not operate

to preclude or postpone the amendment of the licence in accordance with the order

of the court, such that the amendment process can be completed by the respondent

and first named notice party in accordance with the procedure under clause 26 of

the licence;

(vii) subject to the following, the stay be continued until the final determination of the

proceedings or further order in the meantime;

(viii) there be liberty to apply, including in relation to a further hearing on the stay issue

as set out in the judgment;

(ix) the certiorari claim remain a live relief at least until after the judgment of the CJEU;

(x) the parties be directed to provide simultaneous Eco Advocacy [2021] IEHC 265 type

submissions within 2 weeks on their proposed answers to the additional questions

for reference;

(xi) the matter be listed for mention on a date to be notified by the List Registrar; and

(xii) costs of the present module including costs of written submissions be adjourned to

a date to be fixed.